Federalizing the conflict of laws : some lessons for Australia from the Canadian experience


University of British Columbia

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Master of Laws - LLM




Traditionally, the High Court of Australia has regarded the States of Australia as being "separate countries" for conflict of law purposes and has applied, in a rather formalistic manner, the English common law rules of private international law to resolve intrafederation conflict of laws problems. This paper argues that this approach to intrafederation conflict of laws is inappropriate. Instead, this paper argues that the High Court should follow the approach of the Supreme Court of Canada as exemplified by its decision in Morguard Investments Ltd v De Savoye. That is, the High Court should forsake its formalistic reasoning and instead approach intrafederation conflict of laws rules in a purposive way i.e. identify the purposes of the conflict of laws rules and ensure that the rules operate in a manner that meets these purposes. The purposes and operation of the intrafederation conflict of laws rules can only be understood in the context of the Australian federal environment. Aspects of this environment, such as a unified national legal system and a constitutional "full faith and credit" requirement, point to the conclusion that Australia is "one country and one nation." The States of Australia should be regarded as partners in federation and the conflict of laws rules that mediate the relationship between the laws of the different States should reflect this overall unity. Applying this purposive, contextual approach to the three major questions of the conflict of laws, this paper suggests the following features of an Australian intrafederation conflict of laws: 1. Unified substantive jurisdiction and broad judicial jurisdiction for Australian courts with effective transfer mechanisms to ensure litigation is heard in the most appropriate court; 2. The elimination, to the extent possible, of the "homeward trend" in choice of law rules so that uniform legal consequences will attach throughout Australia to any particular set of facts; and 3. The effective, unqualified enforcement of sister-State judgments throughout Australia.


Conflict of laws -- Australia; Conflict of laws -- Canada; Federal government -- Australia

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