Much of my work over the past fifteen years has involved exploring a phenomenon that had long puzzled me. As an Australian, I was well aware that our legal system was derived from the English common law (which in white settler Australia morphed into the ‘British’ common law because, as Victor Windeyer, a Justice of the High Court of Australia, described, when Scots emigrated they ‘perforce’ adopted it). The conventional narrative surrounding Australian legal independence was that it was slow and grudging, that little happened while the Australianness of Australian law was suppressed by an Anglo elite (famously described by Manning Clark as ‘Austral-Britons’) before the true independent character of Australian law shone through. The victory was capped by the passing of the Australia Acts in the mid-1980s by the United Kingdom, Commonwealth of Australia, and Australian state parliaments through which all vestiges of imperial constraint were formally abandoned.
A Simplified Story?
Viewed from a sufficiently global level, this might be fair rendition of the transition to Australian legal independence. By the time of the Australia Acts, the idea of what an Australian law might look like was viewed in a way that was inconceivable a generation earlier. But if we accept this conventional narrative, we are left with a conundrum. As both a history and law student in the 1980s, I was receiving different inputs on how to process this change. From the Australian History Department at the University of Queensland, immersed in the then-dominant nationalist perspective, the Australia of recent times was fundamentally different from its predecessor. Old habits died hard but, as Donald Horne argued in 1964 in his landmark book The Lucky Country, Australia had to find a new sense of itself in the post WWII world. Clinging to Britishness as a defining identity would not do. None of this new thinking permeated my law studies, at least that I could see. In fact, we studied lots of cases that were decided by Australian judges applying the ‘English’ common law. They appeared to have no sense of shame in doing so and our law lecturers had no reluctance to laud them as some of the finest common law judges in the world (indeed Sir Owen Dixon, Chief Justice of the High Court of Australia, was said alternatively to be the greatest judicial lawyer in the English-speaking world and the most distinguished living exponent of the common law). How could this be? How, as lawyers, could we acclaim Australians who from the nationalist historical perspective were perpetrators of a ‘foreign’ culture? Un-Australian to say the least!
The unsatisfactory answer I arrived at was that the legal and the historical inputs never really tried to reach a compromise. There were periodic attempts to co-opt Australian legal development into the nationalist historical camp (see, for example, The Emergence of Australian Law, a collection of essays published for the bicentenary of white settlement in 1988) but largely cognitive dissonance was the order of the day. The dichotomy was also hidden under the devastating post-modern critique of the nationalist historical tradition: it turned out that the patriotic Australians fighting to establish a new national story were racist and gendered and Australian legal historiography rightly turned to deal with the ramifications of being a settler colony of conquest. But these flaws of the nationalist historical tradition should not blind us to another weakness in its explanation of Australian legal history.
Understanding the Independent Australian Britons
In my view, it is simply ahistorical to view twentieth century Australian legal history as a binary: a period of subservience to English/British common law, and a later period of independence. Simply taking a starting point and end point, noticing the end point is different, and then framing the analysis of the intervening period through the lens of the end point is the worst form of historical determinism. Australian lawyers of the 20th century did not see themselves as puppets of a British law that was forced upon them. From the nationalist historical camp, the failure of these lawyers to decry the imposition of British law can only be seen as a kind of subservience, or at best it identified them as collaborators in the imperial project in which true Australians had no part. But such a view fails to recognise the ubiquity of British race patriotism in constructions of Australian identity, particularly Australian legal identity. Of course there were exceptions, but Australian lawyers were largely British race patriots. But they would have struggled to comprehend that this meant they were also not Australian. The key to understanding the development of an Australian law for much of the twentieth century lies in understanding that Australians had no difficulty with bifurcated loyalties: in the historian WK Hancock’s evocative phrase, the ability to love two soils. Australian lawyers were Hancock’s independent Australian Britons par excellence.
What did this dualism mean for conceptions of the English common law in Australia? First, there are actually surprisingly few references to the ‘English’ common law as opposed to English law or the common law more generally. Even where it was used, it did not connote constraint or subjugation but was shorthand for the body of law, the common law, which was seen as the birthright of British colonists wherever they went in the word. As that common law had to apply in a multitude of different geographical and cultural settings, it needed to have mechanisms to adapt. Some of these were formal – such as concepts of repugnancy – but by the twentieth century the techniques were more subtle. Australian lawyers – and I suspect the lawyers of the white settler colonies in Canada and New Zealand whose formal private lawyer mirrored that in Australia – saw the common law as theirs as much as belonging, in a geographical sense, to England. It was a shared resource of being British and this meant that ‘British’ lawyers everywhere were part of a corporate project to expound the ‘best’ common law. The fact that the common law by necessity would have to vary among jurisdictions applying it did not change its symbolic appeal as something common to the British peoples of the world. Its appeal was as much metaphysical as pragmatic. Seen in this light, it is hardly surprising that there were no calls to abandon the common law akin to throwing off an imperial yoke. Paradoxically, such a call would have been seen as un-Australian!
Exceptionalism in the Shadows of Deference
It is true that, however wistfully Australian lawyers looked at their common law, there was a significant element of imperial hierarchy at play. Apart from certain constitutional questions – Australians early on in discussions about a federation were wary of trusting decisions on constitutional disputes to an English court – the ultimate appellate court for Australian jurisdictions was the Judicial Committee of the Privy Council. This remained so until the mid-1970s for federal courts and until the Australia Acts for state courts. But many of the constraints were self-imposed, most famously the decision of the High Court of Australia in 1943 to prefer decisions of the Appellate Committee of the House of Lords in preference to an earlier inconsistent decision of its own. A nationalist historical view might see this as the ultimate act of submission but this misses the context of the decision. The British peoples of the world were under threat like never before in 1943 and this was no time for quibbling: the unity of the common law reflected the importance of wider unity. When the need for public displays of solidarity had passed it is no surprise that the rule came under pressure, culminating the landmark, unanimous decision of the High Court of Australia to reverse its prior position in Parker v R in 1963. Even then, as I describe in my Current Legal Problems lecture in 2021, the demise of the imperial embrace went through a number of reformulations before it became apparent it could not survive the wider geo-political changes wrought by the Second World War.
In my book, A History of Australian Tort Law 1901-1945: England’s Obedient Servant?, I detail many examples of Australian judges and legislators engaging with the common law of tort in Australian contexts. Some of these are conventional examples of the common law adapting to technological innovation but without guidance from English courts (such as whether a defamatory imputation made on radio amounted to libel or slander). Sometimes the technical innovation played out differently in an Australian context, such as the question of what legal remedies were available when live radio broadcasts of horse racing caused (arguably) economic loss to the owners of the racetracks when patrons could listen to the races without having to pay an entry fee. Sometimes there were areas of English law which had become largely moribund in England but which took on a new vitality in Australian conditions. The range and scope of strict liability for fire, for example, had a dimension not seen in England because, in Australia, the use of fire was a ubiquitous farming practice with the potential to cause damage on a scale not replicated in the mother country. When in the mid-1990s the High Court of Australia in Burnie Port Authority v General Jones Pty Ltd suggested that rules of strict liability for fire were remnants of an inherited English law, the affirmation of the rule by Australian courts throughout the first half of the 20th century as one suitable for Australia seems to have been forgotten (as was the case for the highway immunity, something reinforced when, after the High Court of Australia abolished the common law immunity in Brodie v Singleton Shire Council in 2001, most Australian jurisdictions legislatively reintroduced it, at least in part). And, more radically, Australian legislatures intervened, sometimes by critically evaluating whether English legislative reforms should be adopted in Australia (such as in the survival of causes of action legislation in the early 1940s) or, occasionally, by simply rejecting English authority and developing the common law in a different direction (such as for recovery for negligently inflicted mental harm as in New South Wales in 1944).
Future Directions
While this interaction continued throughout most of the 20th century – and likely before it – the interwar period is especially interesting because of the formal loosening of the political ties between Britain and its white empire (through the Balfour Declaration of 1926 and the Statute of Westminster). This made little difference to the intellectual and cultural milieu in which the ‘transplanted’ common law operated within Australia. If the Australian example tells us anything about legal transplants, it is that pronouncements about the success or otherwise of a legal transplant cannot be evaluated without looking beyond formal legal rules and pronouncements. This would hardly come as a surprise to indigenous Australians whose legal traditions were simply sidelined in the story of the British common law in Australia. More broadly, as Radosveta Vassileva has recently reminded us, the re-imagination of transplants as continuity is as much a political exercise as legal. It is high time for Australians, Canadians and New Zealanders to rethink their transplanted common law, particularly private law, in this light.
Posted by Professor Mark Lunney (King’s College London)
Suggested citation: M Lunney, “British Race Patriotism and Private Law: Et In Arcadia Ego?”, BACL blog available at https://wp.me/p80U0W-1iT
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This piece belongs to the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University).
British Association of Comparative Law 