unification and harmonisation of the … and harmonisation of rules ... there is a definite movement...

"UNIFICATION AND HARMONISATION"OF THE RULES OF LAW

By JOHN GoLDRING·

In Australia there are nine bodies of legislation; Commonwealth,State and Territorial. The laws within each of these systems maydiffer from each other in significant ways. Such differences,especially when occurring in areas of Utechnical law", may causeconsiderable inconvenience to A ustralians and to their legaladvisers. In social and economic terms, for many purposes Australiais a single nation, and is not divided by State boundaries. Enactmentof uniform laws in each part 0/ Australia could lead to muchgreater convenience for businesses, individual citizens and lawyers.

This article examines some of the ways in which internationalorganisations and bodies within other federal nations have beenworking towards the unification and harmonisation of rules 0/law, in selected areas. From this examination, some parallels aredrawn with the situation in Australia. The article also makes somesuggestions for greater uniformity of laws in Australia against thepolitical background which may explain why law in Australia hascome to be diverse.

1. Diversity of Rules and the Reasons for Unification of Law

The modern "'orld includes a large number of national states. Eachhas a different legal system. Some, which are federal states, have anumber of legal systems. There are also some supra-national laws, suchas those of the European Communities, which, unlike the rules ofpublic international law, are enforceable by sanctions. The legislativesovereignty of a national state, of a component of a federation, or of amulti-national organisation, that is, the power to make rules binding onpeople within its relevant territory, is inextricably linked to politicalpower. Law-making power is a quintessential element of nationalidentity and autonomy, and governmental policies are implemented bylaws.

Untrammelled legislative power exercised for political reasons leadsto a great diversity of rules which in turn can lead to severe hardshipand inconvenience where a transaction involves more than one legalsystem. In the modern world, communication is easy, population andmoney are mobile, and it is increasingly likely that more than one legalsystem will be involved in any given transaction.

* B.A., LL.B. (Syd.), LL.M. (Col.); College Fellow in Law, School of Administrative Studies, Canberra College of Advanced Education. Work on this article wascompleted while the author was a Visiting Fellow at the Secretariat of UNIDROIT,Palazzo Aldobrandini, Rome, Italy, from January to July 1977.

284

1978] Unifieation and Harmonisation 285

In international trade or tourism the following example could easilyoccur. A, a resident of Victoria, draws a cheque in Australian dollarson a Victorian bank payable in Melbourne in favour of B, a residentof Italy. A delivers the cheque in Rome. There C steals the chequefrom B, forges B's indorsement and negotiates it to D who takes thecheque in good faith ~nd without notice of any defect in title, forvaluable consideration. The bank pays the cheque in good faith anddebits A's account. The rights and duties between the different partieswill differ according to whether the law of Victoria or the law of Italyapplies. The Victorian law (based on the Bills of Exchange Act 1906(Cth)) does not protect the holder in due course of a cheque againstthe consequepces of forgery, but Italian law does. Both potentiallyapplicable legal systems give a solution to the problem but they aredifferent. The question is, which of the legal systems applies?

The solution is determined by the conflict of laws rules of the placewhere it is proposed to bring an action. These rules are exceedinglytechnical and conceptually involved. They can, inde~d do, fascinatelawyers but they irritate clients because of the cost, delay, and especiallythe uncertainty involved. Conflicts rules, like any other part of the law,differ considerably between legal systems. But in any legal system,conflicts problems are likely to lead to greater uncertainty than usual.This makes the situation unpalatable to commercial people who valuecertainty highly, as it gives them a sounder basis for the exercise of theirbusiness judgment. Any development which will make an area of lawmore certain and predictable has value.

Uniform laws aim primarily at the avoidance of conflict of lawssituations. The reason for the support for the movement towardsunification and harmonisation of rules of law is therefore essentiallypractical. If, in the example above, the laws of Italy and Victoria werethe same, there would be a clear solution to the problem of rightswhich would apply no matter where an action was brought. The resultmay not be favourable to a particular party or sound, but it would beclear, and, as Julius Stone has said, it may be better that a question besettled than it be settled right;l this is a common attitude amongstbusiness people. There is a definite movement for such "unification andharmonisation" of the rules of law.2 One of the reasons why the United

1 "Non Liquet and the Function of Law in the International Community" (1959)35 British Yearbook of International Law 124, 149-150.

2 A recent Australian account of some aspects is Walsh and Ryan, "Harmonisation and Standardisation of Legal Aspects of International Trade" (1977) 51A.L.J. 608. The most recent accounts of the movement for international unificationof law are to be found in International Association of Legal Science, InternationalEncyclopedia of Comparative Law, Vol. II, Ch. 5, "The International Unificationof Private law" by Rene David, (henceforth cited as "David, (1971)") which mustbe read in the l,ight of Professor David's commitment to an idealist basis for theunification of law, but which is an outstanding historical and analytical account ofthe movement, by one of the world's great comparative lawyers; an~ a symposium

286 Federal Law Review [VOLUME 9

Nations General Assembly established the United Nations Commissionon International Trade Law (UNCITRAL) was the realisation by manynations that diversity between the rules of law of various legal systemswas a considerable impediment to international trade.

Where there is a clash of legal systems which may govern a particulartransaction, the conflicts lawyers have their own solution which is toprovider better, simpler conflicts rules.3 This aim is difficult, if notimpossible, to achieve, as conflicts situations are always complex.

Other lawyers, mainly comparative lawyers, have suggested a solutionthrough unification or harmonisation of the rules of law within theseveral legal systems. They see a means by applying a comparativeanalysis of laws to derive common features which can provide thefoundation of a set of rules acceptable to a number of states. This setof rules, as virtually all "unificationists" are at pains to point out, isnot a "supra-national" law set above the national law of anyonestate,4 though at least one comparative lawyer has described a body ofimmanent principles of law independent of national boundaries whichshould indicate the direction of the uniform laws.o

Political nationalism is most important in the modern world; peopleare nationalistic, often fiercely so. They see the laws of their countryas the expression of the will of the people.6 Unity and harmony of rulesof law can only be achieved or maintained if each legislature agreesto enact unified rules or to permit such a rule to be applied in itsterritory. This means that it must refrain from exercising its independentlegislative power in a way that will destroy the unity of those rules.Thus it must agree, to a greater or lesser extent, to the surrender ofsome of its legislative authority.

Quite independently of legislative action, in some areas of law adegree of uniformity has been achieved by the action of privateindividuals. In the areas of both mercantile law and maritime law, rulesof law have been derived from custom. Merchants and mariners havetravelled widely from one political state to another, carrying a commonset of assumptions which have passed into the legal systems of the

in (1968) 16 American Journal of Comparative Law, especially Hay, "TheInternational Unification of Law-A Symposium" 1, and Graveson, "The International Unification of Law" 4. Rodino, "Outlines for a Bibliography on UniformLaw" (1973) 66 Law Library Journal 272 refers to the basic works on the subject.

3 This is the aim of the Hague Conference on Private International Law, whichis discussed, infra p. 295.

4 David, (1971), 7 fI., 210 fI.; Matteucci, "UNIDROIT, The First Fifty Years"[1976] 1 Uniform Law Review 15, 19; ct. Kaiser, "Transnational Relations as aThreat to the Democratic Process" (1971) 25 International Organization 706.

°David, (1971 ); also ''The Methods of Unification" (1968) 16 AmericanJournal of Comparative Law 13.

6 This is the Volksgeist theory, first enunciated by von Savigny, whose YomBeTuf unserer Zeit fur Gesetzgebung und Rechtswissenschaft was published in 1814.For an account of Savigny's theories see Allen, Law in the Making (7th ed. 1966)87-89; or Stone, Social Dimensions of Law and Justice (1966) Ch.2.

1978] Unification and Harmonisation 287

various countries. Thus there are similarities between the laws ofdifferent countries relating to such matters as negotiable instrumentsand collisions at sea.'1

Another influence making for similarity of principles of law has beenthe principles of Roman law. For many years this was the only systemof law taught in the universities of Europe (including England). TheRoman law has had a great influence on the laws of the Europeanstates and of those countries outside Europe which have received thecivil law tradition as part of a colonial legacy or through consciouschoice. The civil law was the source of a great deal of material in thecodes which contain the basic principles of law. Codes were first writtenin France but spread rapidly throughout Europe and to Latin America.

Another unifying influence was the British Empire, which took withit into all the settled continents of the world the rules of the Englishcommon law. As the Empire disintegrated and its territories becameindependent states, the principles of law remained.

In some parts of the world, "law", in the European sense, was notimportant. This was particularly true in C'hina and Japan,s but with thegrowth of international trade, even these countries perceived the needfor a system of rules which would govern the conduct of traders.Mostly the rules were borrowed from one of the European systems oflaw, either the common law of England, or the civil law, as codified inFrance, Germany and Switzerland. For a time this solution, transplantedlaw, was satisfactory. It did not, however, cater for the development ofmulti-national enterprises, and in many cases the alien legal systemswere resented, or were not accepted by the people upon whose countriesthey had been imposed. Political nationalism led to pressure on legislatures to recast their laws in ways more expressive of political feelings,especially nationalistic feelings, within the various countries.9 Thesechanges not only led to greater diversity of laws, but also made the taskof harmonisation more difficult.

2. Australian Interest in the "Unification or Harmonisation" of Law10

Australians have a definite interest in the movement for the unificationor harmonisation of rules of law. Their national state is a federation.In each State and Territory there is a separate system of law; and thereis also a system of federal laws, administered in State and federal

'1 Schmitthoff, "Introduction" and "The Law of International Trade, Its Growth,Formulation and Operation" in Schmitthoff (ed.) , The Sources of the Law ofInternational Trade (Goteborg, 1964).

8 von Mehren (ed.), Law in Japan (Cambridge, Mass., 1963).9 International Legal Center, Law and Development: The' Future of Law and

Development Research (N.Y., 1974); Trubek and Galanter, "Scholars in SelfEstrangement: Some Reflections on the Crisis in Law and Development Studies inthe United States" [1974] Wisconsin Law Review 1062.

10 The following deal with aspects of the unification of law in Australia: Piesse,"Uniformity of State Laws-A Proposal for Action" (1939) 13 A.L.I. 176;Shatwell, "Some Reflections on the Problems of Law Reform" (1957) 31 A.L.I.


courts. There are differences between these laws which cause greatinconvenience and expense to the people generally. The Australianpeople are unlikely to abandon the federal system, but within itunification and harmonisation of the rules of law have great advantages,some of which have already been realised. There is much talk aboutfurther unification.11

Although Australia is relatively small in population, it is rich inresources, and consequently it is dependent on foreign trade to maintainits standards of living. Every time an Australian enters into a transaction in the course of trade with another country (or with anotherState), he exposes himself, directly or indirectly, to the consequences ofa conflict of laws situation. These consequences are visited on the partiesonly rarely, b~t the cost, in money and in "opportunity costs" (lost timeand effort) are sufficiently substantial to justify expense on a smalLgroup of lawyers working, in the context of the international movement,for uniform rules of law which are acceptable to Australian interests.

Australia is involved in the work of international agencies preparinguniform laws on subjects relevant to international trade: shipping,sales, agency and payment. In many of these areas the existing rules oflaw applying in Australia are derived from the principles of Englishlaw, developed by English courts and often reflecting British tradinginterests at a time when Britain dominated the world politically andeconomically. Australia's interests would seem to lie, in such cases, notonly in supporting the principle of unification of law as a means ofavoiding conflicts, but also in working in common with other stateswith similar interests, to formulate a uniform rule which may be morebeneficial economically than the existing ones.12

The work of unification of the rules of law on an international basisis not new. Organisations with such a purpose have existed for eightyyears. International experience may provide some valuable lessons forAustralia in its role as a national state, and particularly in the process

325, and the comments of Sir Owen Dixon at 340-342; Sawer, "Federal-StateCo-operation in Law Reform: Lessons of the Australian Uniform Companies Act"(1963) 4 Melbourne University Law Review 238; Kerr, Uniformity in the LawTrends and Techniques (Garran Memorial Oration, Canberra, 1965); Leach, "TheUniform Law Movement in Australia" (1963) 12 American Journal of Comparative Law 206; Mason, "Law Reform in Australia" (1971) 4 P.L. Rev. 197;Cranston, "Uniform Laws in Australia" (1971) XXX Public Administration(Australia) 229; Kirby, "Uniform Law Reform: Will We Live to See It?" (1977)8 Sydney Law Review 1; and the Annual Reports of the Australian Law ReformCommission.

11 Kirby, Ope cit.12 Similar factors were the main reason for the formation of UNCITRAL:

UNCITRAL Yearbook, Vol. I (1968-1970) 1; Contini, "The United NationsCommission on International Trade Law (UNCITRAL): First Session andPreparatory Work" (1968) 16 American Journal of Comparative Law 666;Farnsworth, "UNCITRAL-Why? What? How? When?" (1972) 20 AmericanJournal of Comparative Law 314.


of achieving a better co-ordination of legal systems within the Australianfederation.

3. The International Unification of Law

The reasons for the movement for the international unification oflaw are practical and pragmatic: the aim is more efficient conflictavoidance. There are degrees of assimilation of the rules of variouslegal systems, ranging from the adoption by a number of states of theidentical text of a law, to a process of "harmonisation" under whichthe effects of a type of transaction in one legal system are brought asclose as possible to the effects of similar transactions under the laws ofother countries.

Some commercial interests have developed another means of avoidingconflicts, by seeking, so far as possible, to avoid involvement with thecourts of any country.13 They do so by the use of contracts whichattempt to provide for every eventuality which the parties can foreseeas arising from the transaction between them. If a dispute occurs over,say, the quality of the goods sold or services performed, or in theinterpretation of the contractual document itself, it is to be resolved,not in the national courts of any country, but by arbitral tribunalsoutside any judicial system, constituted of merchants or expertsappointed by associations of merchants. The terms used in the "standardform contracts" are derived from the experience of the trade, and arebased on practice; they are thus generally acceptable to those who willuse them, because their effects are known and provide certainty.Standard form contracts have been prepared by a number of bodies,both public and private.14 Some are confined to trade in particularcommodities.15

13 Schmitthoff, supra n. 7; also Schmitthoff, "The Unification or Harmonisation ofLaw by Means of Standard Contracts and General Conditions" [1967-1968] IIUNIDROIT Yearbook 93; (1968) 17 International and Comparative LawQuarterly 551; Michida, "Possible Avenues to Preparation of Standard Contractsfor International Trade" in Honnold (ed.) , Unification of the Law GoverningInternational Sale of Goods (Paris, 1966) 251.

14 Perhaps the most widely used standard terms are those of the UniformCustoms and Practice of Bankers for Documentary Letters of Credit (UCP) ,published by the International Chamber of Commerce (ICC) and, since 1962,used by virtually every commercial bank involved in international documentarycredits. See, e.g. Gutteridge and Megrah, The Law of Bankers' CommercialCredits (London, 5th ed. 1976); Ellinger, Documentary Letters of Credit(Singapore, 1970); Purvis and Darvas, Commercial Letters of Credit (1975). TheICC is also responsible for the INCOTERMS, which are standard terms importedinto contracts for international sales, where expressions such as "f.o.b." and "c.i.f."are used. These are discussed in Schmitthoff, The Export Trade (London, 6th ed.1975).

15 Such as grain (London Corn Trade Association) or shipping (e.g. the"Baltime" and "Geneon" forms of charterparty). Standard terms for trade inparticular commodities have been prepared by the United Nations EconomicCommission for Europe; the Economic Commission for Asia and the Pacificprovides arbitration facilities.


The use of standard form contracts is, commercially, the mostimportant form of conflict avoidance used today; and though, in asense, it may be a new "lex mercatoria" it is not an independent systemof law; in the last resort, it can only be enforced through national legalsystems. It can exist because under most legal systems the principle of"autonomy" of parties to contracts is recognised, so that parties arefree to include in their contract terms of their choice which do not runcounter to national law or public policy. However, party autonomy,even in international transactions, is decreasing as legislation enactedin the national interest of various states restricts the types of permissibleactivities.

The use of commercial arbitration in the settlement of internationalcommercial disputes is greatly assisted by the provisions of the 1958New York Convention on the Recognition and Enforcement of ForeignArbitral Awards and Agreements, to which Australia gave effect by theArbitration (Foreign Awards and Agreements) Act 1974 (Cth). Underthis Convention states are obliged to recognise and enforce agreementsand awards made in international arbitration, although they still mayrefuse to do so when this would run counter to their own laws or publicpolicy;16 or, for example, where there is evidence that the awards wereimproperly obtained. The 1958 Convention was the result of an effortby the General Assembly of the United Nations, following a number ofearlier attempts commenced before the Second World War byUNIDROIT (The International Institute for the Unification of PrivateLaw) to unify national laws relating to the enforcement and recognitionof foreign arbitral awards.

Commercial arbitration and the use of standard forms are essentiallya matter of agreement between parties to a contract and not really asystem of unification of the rules of law. The fact that an internationalconvention was necessary to unify the rules of internal law on arbitration of the several national states, illustrates the dependence ofcontractual arrangements on national laws. This dependence means thatdespite efforts of the parties conflict situations may still arise: conflictof laws rules may be important in obtaining recognition or enforcementof an arbitration agreement or award.

Governments have been reluctant to adopt uniform laws on manymatters, particularly where they have not been involved in the preparation of the uniform laws, or where the uniform law is contained in aconvention, which, under the rules of public international law, bindsthe parties to it to enact the uniform rule and to refrain from changing

16 On recent international developments, Sacerdoti, "The New Arbitration Rulesof ICC and UNCITRAL" (1977) 11 Journal of World Trade Law 248; for the lawin Australia, Goldring, "Australian Law and International Commercial Arbitration"(1976) 15 Columbia Journal of Transnational Law 216.


it.1? When a government does accept uniform law, it may do so with

reservations, which means that the uniform law will become part of thenational law of the country in a different way from that which willoccur when the convention is acceded to without reservation. Thus theuniform law will not apply uniformly, as is the case where thereservation to the convention takes the form of a "voluntary" clause.1s

The reservations to the convention may, however, make acceptable asa compromise a uniform law which otherwise would be unacceptable tothe states concerned, and the relative loss of uniformity may be the·necessary political price for achievement of any degree of uniformity.

Efforts to unify the rules of law have commanded the efforts of manyof the world's leading lawyers and legal scholars for many years, butthere is relatively little to show for their efforts. The reasons for this arealmost entirely political, though there is also the reluctance, discussedbelow, of lawyers as a group, to depart from the known and certainrules of national law. There have, however, been some notableachievements.

The work of unification of law requires extensive research,co-ordination, drafting skill, and diplomatic art. These resources arebest provided by institutions equipped for the purpose, and most of theuniform laws, as opposed to standard terms, which exist today, havebeen produced by such institutions. Some uniform laws are producedby institutions formed for a specific purpose.1'D Other bodies, such asUNIDROIT and the Hague Conference on Private International Law,are more general in scope. Some support was given to their work bythe League of Nations, but in recent years the United Nations, boththrough the General Assembly, and also through its regional and otherCommissions,20 has taken a more active interest. The most significantstep taken by the United Nations was the establishment, in 1966, of aCommission on International Trade Law (UNCITRAL).

17 UNCITRAL Report, "Ratification of or Adherence to Conventions ConcerningInternational Trade Law" (1974) Doc. A/CN. 9/91 (reprinted in UNCITRALYearbook, Vol. V (1974) 191).

18 This was the case when the U.K. acceded to the 1964 Hague Convention on aUniform Law on the International Sale of Goods (ULIS). The Uniform Laws onInternational Sales Act 1967 (U.K.), s.1 provides that, under British law, theULIS will apply to a sale only when the parties to the sale specify that it shall. Inother cases the ordinary rules as selected by the general English or Scottish conflictof laws rules will apply.

19 Such as the Universal Postal Union, the Berne Unions, which are concernedwith the protection of intellectual and industrial property, the International RailwayTransport Office (OCTI), and the International Maritime Committee (CMI)which are private or semi-public institutions.

20 Such as the Food and Agriculture Organization (FAO), the World IntellectualProperty Organization (WIPO), the International Labour Organisation (ILO), theInternational Civil Aviation Organization (ICAO) and the IntergovernmentalMaritime Consultative Organization (IMCO).


Where there is a specific area of concern, and especially where thislinvolves a new technology, and states are equally ignorant of possible',interests and problems which may arise, unification seems easier to,achieve, though difficult to maintain, because of legislative and judicialldisregard for the overall desirability of the maintenance of uniformity.21

Much has been written about specific problems of the unification oflaw, particularly in the Yearbooks of UNIDROIT, and their successor,the Uniform Law Review. The discussion here will be confined to areasin which future developments will be of greatest concern to Australians,that is, the areas of trade and transport.

In international trade law, sales and payments have stood out as thesubjects in greatest need of unification, and have attracted the greatesteffort.22 In both areas the original work was done under the auspices ofUNIDROIT, working through committees of experts drawn from theprincipal legal systems of Europe. This work was later taken over byother organisations; the League of Nations sponsored the Conferencein Geneva in 1930 and 1931, which produced Conventions on Negotiable Instruments. Although representatives of the United Kingdom wereinvolved in both the preparation of the texts of the Conventions and inthe Diplomatic Conference which adopted them, the Conventions werenever acceptable to the states whose laws were based on the Bills ofExchange Act 1882 (U.K.), largely because the position of the holderin due course in case of forgery differed substantially under theConvention. There were, however, other significant differences.23 SomeEuropean states, too, did not accept the Geneva Convention, and forthis reason further work on the unification of laws relating to international payments was given high priority by UNCITRAL.

Unification of the law governing international sales of goods has alsohad high priority in the work of UNCITRAL. This was the first taskundertaken by UNIDROIT after its resources had been freed from theearly work on negotiable instruments. A comparative study was begunin the 1930s by a committee of experts including Dr Ernst Rabel, whoseclassic comparative study of the law of sale of goods24 was in part aproduct of this work. After 1936, as a result of political developments,UNIDROIT virtually ceased to function as an international organisation,

21 E.g. air law, discussed by Sand, "The International Unification of Air Law"(1965) 30 Law and Contemporary Problems 400.

22 Gutteridge, "An International Code of the Law of Sale" (1933) 14 BritishYearbook of International Law 75; Donovan, "The Unification of InternationalCommercial Law-Sale and Arbitration" (1959) 2 Melbourne University LawReview 172; Honnold (ed.) , Unification of the Law Governing International Salesof Goods (Paris, 1966); Matteucci, n. 4, 21 supra.

23 von Caemmerer, "The Problem of the Unification of Private Law'-in Europe"(1964) 36 University of Colorado Law Review 307, 309 if.; Kahn-Freund, "On theUses and Misuses of Comparative Law" (1974) 37 Modern Law Review 1, 3-4.

24 Das Recht des Warenkaufs: eine rechtsvergleichende Darstellung (Berlin,1958-1964) 2 vols.


and work on unification of the law of sales ceased until after the SecondWorld War. It was not until 1964 that a Diplomatic C'onference at theHague adopted the Convention on a Uniform Law on the InternationalSale of Goods (ULIS), and associated conventions dealing with theformation of sales contracts. The Convention was accepted by somecountries, but others felt that the text was unsatisfactorY,25 particularlythat it was too favourable to sellers, and thus was more representativeof the interests of the manufacturers in the developed countries than ofthe buyers in the third world. The ULIS and associated uniform lawshave therefore been revised by UN'CITRAL, which comprises nationsselected on a regional basis. UNCITRAL has completed the draft of aConvention on 'Prescription (Limitation) in the International Sale ofGoods,26 and continues to work on revision of the ULIS, whileUNIDROIT works on drafts of uniform laws related to sale, forexample, on a uniform law of agency in international sale.27

In transport, there has been more success in achieving uniform laws.The 1923 Brussels Convention on the Carriage of Goods by Sea hasbeen accepted by most maritime and trading nations. T'he "HagueRules" as the provisions of the Convention 'are known, form part ofthe law of Australia, as the Schedule to the Sea-Carriage of Goods Act1924 (Cth), and are also enacted by State Acts, such as the Sea-Carriageof Goods Act 1924 (N.S.W.) which applies to carriage within the State.The 'Convention was largely the result of efforts by shipowner organisations which make up the International Maritime Committee (CMI)to overcome the effects of laws enacted by the United States, Canada,Australia and New Zealand, which were important trading countrieswithout, at the time, large merchant fleets. Prior to this legislation,goods were carried under contract terms which gave virtually completeimmunity to the carrier in case of loss or damage to cargo. Thebeneficiaries of this arrangement were the shipowners and insurers, andat this time the international shipping and insurance industries weredominated by British interests. The Hague Rules were a compromisebetween the interests of shippers and those of shipowners; they involvedthe acceptance, of certain basic liabilities on shipowners, but thisliability was less than that imposed by, for example, the Harter Act ofthe United States. Although the United States was a party to the 1923Convention, the Senate would not ratify it until 1936, when theCarriage of Goods by Sea Act was finally enacted.

Shipping continues to be a controversial area. Third world countrieshave complained, particularly over the last ten to fifteen years, that

25 Matteucci, n. 4, 27-29 supra.26 Sutton, "The Draft Convention on the International Sale of Goods" (1976) 4

Australian Business Law Review 269; (1977) 5 Australian Business Law Review28; 92.

27 See Rogerson, "The Law Applicable to Agency" Fourth International TradeLaw Seminar 81 (Attorney-General's Department, Canberra, 1977).


they are adversely affected by the regime of liability under the HagueRules. Most of them depend on the export of agricultural and miningproducts, and because they do not have large merchant fleets, areforced to use those owned in the developed world. The cost of shippingand insurance (which is usually, either directly or through reinsurance,underwritten in Europe) is significant. There was considerable debateon the question in UNCTAD, the United Nations Conference on Tradeand Development, and Reports by UNCTAD and UNCITRAL28 haveformed the basis of work by UNCITRAL to revise the Hague Rules.A draft convention has now been prepared which achieves a betterbalance; it is the result of compromise both within the UNCITRALWorking Group which prepared it, and in UNCITRAL itself. It remainsto be seen whether it will be politically acceptable, especially to thedeveloped countries, which, on the whole, are well served by the HagueRules. In 1968, a protocol was prepared by the CMI to bring theHague Rules up to date. This has been accepted by only a few states.29

Further developments await the fate of the draft convention.

Air transport is also an area of relatively uniform national laws. Theoriginal conventions governing the liability of aircraft owners wereprepared by an organisation of airline operators in the 1920s. Theseconventions are continually updated and this task is made easier by thefact that most international air carriers are owned or controlled bygovernments.so

The international carriage of goods and passengers by rail are thesubject of conventions which are widely accepted in Europe; a convention prepared by UNIDROIT, the CMR Convention, covers internationalroad transport of goods. UNIDROIT has also prepared conventions onthe carriage of goods and passengers by inland waterway, which is amatter of some significance in Europe.

In the area of tourism, of growing importance to all states, there issome unification of laws. The Council of Europe has sponsored aconvention, based on a UNIDROIT text, on the liability of hotel-

28 UNCTAD Report, U.N. Doc. TD/B/C.4/ISL/6; UNCITRAL Report, U.N.Doc. A/CN.9/63/Add. 1. See also Sweeney, "The UNCITRAL Draft Convention"(1975-1976) 7 Journal of Maritime Law and Commerce 69, 327, 487, 615;MeGilchrist, "The New Hague Rules" [1974] Lloyd's Maritime and CommercialLaw Quarterly 255; O'Hare, "The Hague Rules Revised: Operational Aspects"(1976) 10 Melbourne University Law Review 527; O'Keefe, "The Contract ofCarriage of Goods by Sea-International Regulation" (1977) 8 Sydney LawReview 68.

29 The U.K. has legislated to give effect to the protocol (Carriage of Goods bySea Act 1971). Early in 1978 a Diplomatic Conference at Hamburg approved thetext of a Convention to replace the Hague Rules, which had been prepared byUNCITRAL.

30 Sand, D. 21 supra; DrioD, "Towards a Uniform Interpretation of the PrivateAir Law Conventions" (1952) 19 Journal of Air Law and Commerce 423; Reportsby ICAO to the Conferences of Organisations Concerned with the Unification ofLaw, UNIDROIT Yearbooks 1956, 1959 and subsequently.


keepers, and UNIDROIT' is seeking to prepare an internationalconvention on this subject. It has already prepared a convention on thetravel contract, which has been widely accepted.

UNIDROIT, the Council of Europe, and other organisations have alsobeen responsible for uniform law conventions relating to enforcementof maintenance obligations, the form of wills, and many other matters.

The Hague Conference on Private International Law, the firstorganisation formed for the purpose of unifying rules of national law,has also produced a large number of conventions designed to unifycertain aspects of the national rules on conflict of laws. These conventions have met with mixed success. The Hague Conference is based on

, an acceptance of the present system whereby rights and obligations intransnational situations are solved according to the methods of conflictof laws, and its attempts are essentially confined to unification ofnational rules on such matters as choice-of-Iaw rules in specific areas,and the enforcement of foreign obligations.31 The activities of theConference are reported regularly in the American Journal of Comparative Law and the International and Comparative Law Quarterly.

Since 1970 Australia has joined both UNIDROIT and the HagueConference on Private International Law; it was one of the initialmembers of UNCITRAL. This interest is justified by Australia's statusas a major trading nation. Following a conference organised by theAustralian National University in 1971 to consider aspects of theUniform Law of International Sales, the Attorney-General's Departmenthas held meetings each year to discuss international trade law. Thesemeetings are attended by practising lawyers, government lawyers,representatives of business, government departments and academics.The proceedings are published.32 The papers presented at these meetingsare concerned largely with current proposals to unify the rules of thelaw of international trade, and analyse the effects of these proposals onAustralian law. The meetings serve not only to inform the professionand business of the developments, but they also allow the Governmentto gauge opinion on these matt'ers, which assists in the formulation ofthe official policy to be followed by Australia within the variousorganisations.

Unification of law on a regional basis has probably been moresuccessful than international unification of law. The Nordic Councilco-ordinates a process of harmonisation of the rules of law among the

31 Nadelmann, "Ways to Unify Conflicts Rules" (1962) 9 Nederlands TijdschriftVoor Internationaal Recht (Special Issue) 349; Nadelmann, "The United StatesJoins the Hague Conference on Private International Law" (1965) 30 Law andContemporary Problems 291.

32 In addition to the volumes published by the Attorney-General's Department,Canberra, for the years 1973-1976, the proceedings have been noted; (1974) 48A.L.I. 155, 269; (1975) 49 A.L.I. 290; (1977) 51 A.L.I. 327.


Scandinavian countries, which is assisted by the similarity of languageand historical development of Scandinavia. Efforts at harmonisation oflaws at first were confined to commercial law, common texts of proposedlaws being discussed by Ministers of the various countries. Later theprocess was extended to other areas, such as family law. Similardevelopments have occurred in the Benelux countries. In LatinAmerica, where the majority of nations share the Spanish language andsimilar" codified laws, there were some moves to unification of laws,particularly the Codig6 Bustamante, which gave some harmonisation toconflict of laws rules, but more recently there has not been the samedegree of co-operation.

There has been some success in harmonisation of the rules of law,especially so far as concerns foreign trade, among the socialist countriesof Eastern Europe. This occurs mainly when one of the states adoptsrules similar to those of another.8S The socialist countries are strongsupporters of the movement to unify and harmonise, the rules ofinternational trade law; some are active members of UNIDROIT, andthe resolution of the UN General Assembly to establish UNCITRALwas sponsored by Hungary.

Within the two great federations of North America, there have beensubstantial moves towards unification of the laws of the States andProvinces. The constituent parts of the United States and Canada are,like the Australian States, socially and culturally homogeneous, andthere is a common legal tradition. Since 1890 the United States has hada National Conference of Commissioners on Uniform State Laws.S4

Canada has had a similar body since 1911.35 Both were established as aresult of suggestions from the national professional associations oflawyers. In the United States uniform laws have been drafted, rangingfrom the Uniform Commercial Code, the most successful example of auniform law, to uniform laws on abortion, drug abuse, and wills. Therange of uniform laws produced in Canada is slightly smaller. However,in both countries, total uniformity is extremely difficult to achieve. Inboth the United States and Canada, there is one State or Province

sa Hazard, "Unity and Diversity in Socialist Law" (1965) 30 Law and Contemporary Problems 270.

M Yntema, "Unification of Law in the United States" [1948] UNIDROIT Yearbook 301; Harno, "Uniform Laws and the Federal System" (1948) 2 OklahomaLaw Review 38; Rossman, "Uniformity of Law-An Elusive Goal" (1950) 36American Bar Association Journal 175, 177; Dunham, "A History of the NationalConference of Commissioners on Uniform State Laws" (1965) 30 Law andContemporary Problems 233; Barrett, "The National Conference of Commissionerson Uniform State Laws; Its Creation, Organization and Operation" [1956] IIUNIDROIT Yearbook 321; as well as the Annual Publications of the Conference.

35 Palmer, "Federalism and Uniformity of Laws: The Canadian Experience"(1965) 30 Law and Contemporary Problems 250; Ryan, "The Conference ofCommissioners on Uniformity of Legislation in Canada" [1970] UNIDROITYearbook 127; Annual Proceedings of the Conference (since 1974 called the"Canadian Uniform Law Conference").


outside the common law tradition, and, in addition, there is the problemof securing political acceptance of a proposed uniform law amongst agreat number of States or Provinces. Nevertheless there is a surprisingdegree of uniformity of legislation on important matters in both theUnited States and Canada. In other federations, such as Switzerland,36Yugoslavia37 and India38 there have also been, with varying degrees ofsuccess, moves towards the unification of laws.

The great drive for unification of law in the first four decades of thiscentury led to considerable duplication of effort and waste of resources.The lack of co-ordination was an early source of criticism.39 Since1948, when it was re-established after the Second World War,UNIDROIT has attempted to fulfil the role of a clearing house ofinformation concerned with the unification of law. It collects andpublishes in a regular news bulletin, information from various bodiesconcerned with the unification of law. It also provides more detailedreports in the bi-annual Uniform Law Review (and formerly in ilsYearbook), which also contains extensive bibliographies on unificationof law. Since 1970 it has published a loose-leaf Digest of Uniform LawActivities.

This very superficial survey of the achievements of unification of lawsboth on an international, and on smaller scales, shows that the unificationof law is a slow and tedious process, involving the difficult task ofreconciling the features of different legal systems by extensive comparative study, followed by detailed, and often fractious negotiationbetween legal experts and subsequently by diplomatic representatives;and that states are often reluctant to accept as law an unknown newtext of hybrid, international origin, the ramifications of which may beunknown and unknowable, in place of a law which, even if unsatisfactory, is at least understood in its legal consequences and economicefIects.40

Lawyers, perhaps more than other members of society, are wary ofunknown new texts. As a group, lawyers tend to be conservative. Whilecommercial interests will often accept change which provides anadvantage over existing practices, lawyers must advise their clients ofthe disadvantages as well as advantages which flow from a particulartransaction. So where a new law is unfamiliar, or if it contains unfamiliar

36 Aeby, "Switzerland and the Unification of Law" [1948] UNIDROIT Yearbook341.

37 Blagojevic, "Unification of Law, Especially of Private Law, in Yugoslavia"[1957] UNIDROIT Yearbook 195.

S8 Rama Rao, "Codification and Unification of Indian Law" [1962] UNIDROITYearbook 111.

39 Gutteridge, "The Technique of the Unification of Private Law" (1939) 20British Yearbook of International Law 37 (Gutteridge, (1939».

40 UNCITRAL Report, supra n. 17; Graveson, "The International Unification ofLaw" (1968) 16 American Journal of Comparative Law 4.


terms which have not been judicially considered in the courts of a state,a lawyer is unlikely to advise reliance on that law. Because lawyersunderstand the existing law, their tendency is to advise retention of asmuch of it as possible. T'he reaction of lawyers to proposed uniformlaws is almost universally adverse.41 In addition, their views are oftenlimited by the legal system in which they work. Principles and expressions drawn from an unfamiliar system are a challenge. They are lessable to manipulate those rules and they are less aware of their limitsand nuances. Given that lawyers are often more involved in the politicalprocesses than members of other professions, this attitude is an extraobstacle to acceptance of uniform laws.

To say that lawyers are always conservative is untrue. Many of themare sufficiently far-sighted to recognise the advantages which a uniformlaw will bring. It is still necessary that lawyers must be convinced ofthe need for uniform laws in certain areas. This is an importantfunction of the International Trade Law meetings organised in Australiaby the Attorney-General's Department.

There have been suggestions that unification of law should be basedon certain basic principles of law which exist independently of nationalsystems of law.42 Professor David takes as his model the jus comune,the basic principles of civil law taught in the universities of Europe,which was common to the States of Europe and unaffected by nationallegislation to any great degree. Before the development of independentnational states, for which legislation was an important part of theirnationalism, according to David, legal problems in any country wouldbe resolved by resort to the same principles. He suggests that there is asimilar body of principles common to all nations, which should formthe basis of uniform laws, and which would apply in transnationalsituations without impinging in any way on the rights of nationallegislatures to make laws applying to purely municipal situations.

This theory runs contrary to the legal positivism which has dominatedcommon law jurisprudence for some time, and as such is not acceptableto common lawyers. Moreover the civil law tradition, in which law isseen as a logical system, by reference to which most problems can besolved, and to which all rules of law, particularly legislation, shouldconform, is not compatible with the practicalities of the task ofunification or harmonisation of the, rules of law. The pragmaticapproach of the legal positivists gives a much better account of thistask, if a theoretical basis is necessary.

The experience described in the preceding part of this article showsthat an attempt to unify law will succeed only where it is a response to

41 Gutteridge, Comparative Law (2nd ed., Cambridge, 1949) 158; David, (1971)24-33.

42 David, (1971) 35-45.

, 1978] Unification and Harmonisation 299

a definite, practical need. Common lawyers see law as a flexible meansof providing solutions to a range of real-life problems. T'he problemsshould not be made to fit into a pre-ordained system, but the solutionsshould be reasonably predictable. The common law to some extent doesprovide a means of solving problems according to principles, but theprinciples are not applied for their own sake; rather they are extendedor restricted according to the nature of the problem, and this pragmaticapproach provides a flexibility which, in political terms, allows the lawto respond to social pressures.

A substantial obstacle in the search for unified or harmonised lawsis the need to strike a balance between the systematic approach of thecontinental legal systems and the pragmatism of the common law. Oneof the possible reasons for the failure of the common law systems toaccept the Geneva Conventions on Negotiable Instruments may be afailure in the conventions to strike the correct balance between the twotheoretical approaches.

The movement to achieve texts of uniform laws seems to be growingrather than diminishing, despite the difficulties both of arriving at thetext of a uniform law and of securing the acceptance of such laws bystates. UNCITRAL is composed of a membership balanced betweencommon law and civil law systems, between developed and developingstates. The membership of UNIDROIT and the Hague Conference isexpanding, so that they too, now reflect a better balance between typesof economy and legal systems. The texts of unified or harmonised laws,as a result, may be more acceptable, but acceptance is always apolitical question.

4. The Methodology of Unification of Law

On the intemationallevel, the traditional way of achieving a uniformlaw was by agreement of states to an international convention or'multilateral treaty, of which the text of the uniform law would eitherbe a part or an annexure. In some legal systems treaties are selfexecuting so that ratification of a treaty is sufficient to bring' itsprovisions into effect as part of the municipal law; in other cases, suchas the United Kingdom and Australia, treaties are not "self-executing"in this sense;43 they require an Act of the legislature before they becomepart of the municipal law. This may raise questions of jurisdiction in themunicipal courts. In Australia section 75 of the Constitution provides:"In all matters - (i) arising under any Treaty ... the High Courtshall have original jurisdiction". In Bluett v. Fadden," McLelland J. of

43 Nettl, "The Treaty Enforcement Power in Federal Constitutions" (1950) 28Canadian Bar Review 1051, 1057; Sawer, "The Execution of Treaties by Legislationin the Commonwealth of Australia" (1956) 2 University of Queensland LawJournal 297, 298.

44 (1956) 56 S.R. (N.S.W.) 254.


the New South Wales Supreme Court held that the High Court hadoriginal jurisdiction in a matter concerning interpretation of a treaty,even though that treaty had effect in Australia only because its provisionshad been enacted by an Act of the Commonwealth Parliament, and thetreaty was relevant because part of the legislation referred to it.Howard" is critical of this decision.

Most conventions which give effect to a uniform law contain aprovision that the parties shall take whatever steps may be necessary toensure that the convention is given effect in the municipal law. Somealso contain a "federal" clause to cover the situation where a federalgovernment becomes party to a convention but lacks the constitutionalpower to enact effecting legislation which is valid in all parts of itsterritory. This is the case in the United States, and at one time wasthought to be the case in Australia. For this reason the WarsawConvention on Civil Aviation, and the Hague Rules are the subject ofcomplementary State and federal legislation. Despite some reservationswhich arose in R. v. Burgess; ex parte HenrytG and Airlines of N.S. W.Pty Ltd v. Commonwealth;i7 the Seas and Submerged Lan4s Case,48and possibly the C.L.M. Case,49 make it clear that where the Commonwealth Parliament legislates to give effect to an international treaty,the external affairs power (Constitution, section 51(xxix)) gives a properbasis for such legislation to extend to every part of Australia.

The legislation itself is no different from any other legislation. Itmust be drafted by the Parliamentary Counsel, allocated priority in thelegislative program by Cabinet, debated in the normal way, and passedby the normal majorities by the legislature. Accession to treaties, on theother hand, is a matter for the executive government. At times, as wasthe case with the Carriage of Goods by Sea Act in the United States,oothe legislature and the executive disagree. In this case the obligationsof the state under the rules of public international law are no answer tothe political power of the legislature. A government which has participated actively in the formulation of a uniform law may be unable tohave that law enacted in its own territory.

A surrender of legislative sovereignty is implicit in ratification ofa treaty. Under public international law where a party to a treaty isprevented by the treaty from repealing or amending the legislationwhich gives effect to the treaty, in political terms, there is an abdication

"Australian Federal Constitutional Law (2nd ed. 1972) 224-225.46 (1936) 55 C.L.R. 608.41 (No.1) (1964) 113 C.L.R. 1; (No.2) (1965) 113 e.L.R. 54.48 New South Wales v. Commonwealth (1975) 8 A.L.R. 1.49 R. v. Judges of Australian Industrial Court; ex parte C.L.M. Holdings Pty Ltd

(1977) 13 A.L.R. 273.50 The United States was an original party to the 1923 Convention; the Senate

refused to repeal the Harter Act for thirteen years, but the Hague Rules werefinally enacted in 1936.


of the right to enact, repeal or amend legislation from time to time inaccordance with what the political rulers perceive to be in the bestinterests of the people of the nation.

Public international law may restrict a party from exercising itsnormal right to pass the legislation which it perceives to be in the bestinterests of the people it represents because, under international law, atreaty may provide that a party will not repeal or amend the provisionsof the treaty.

While, under international law, the provisions of a convention areand remain binding for as long as the convention itself has force, or forthe period specified in the convention, once those provisions becomepart of municipal law, that municipal legislation can be amendedaccording to the constitutional rules in the same way as other municipallaw, despite the obligation of the state under public international lawto refrain from amending or detracting from the provisions of theconvention. In practice, once a convention becomes part of municipallaw through legislative enactment it becomes extremely difficult tochange unless the content of the convention is politically important ata domestic level. The Brussels Protocol of 1968 illustrates this. It wassponsored by the ICMI because of the wide feeling that the HagueRules did not provide a satisfactory solution to problems in the 1960s.Despite the very large number of states which have adopted the HagueRules, only a very few have ratified the Protocol. The work ofUNCITRAL on revision of the Hague Rules did not commence until1971, and this may have led to reluctance of states since then to actupon the Protocol. But even before that time few states took any action.

Lawyers in the United States have voiced concern at provisions notto repeal or amend a treaty. In the early 1950s when the United Stateswas considering joining the Hague Conference on Private InternationalLaw, its observers at meetings of the Conference suggested that few, ifany, of the conventions proposed by the Conference would be acceptable in the United States because the Congress might not be able toenact the provisions of conventions: these could arguably exceed federallegislative power. The observers suggested51 that the Hague Conferencemight follow an alternative method which had been extremely successfulin the unification of laws as between the various States in NorthAmerica, that is, the formulation of "model laws" which could beadopted, with or without modification, by legislation of the variousstates as they chose. It was pointed out that, although there is wideconsultation before the United States National Commissioners onUniform State Laws propose any final draft model law, very few of the

51 Nadelmann and Reese, "The American Proposal at the Hague Conference onPrivate International Law" (1958) 7 American Journal of Comparative Law 239.Criticised by Graveson, supra n. 40.


uniform laws have been adopted by all States, and in fact the Commissioners no longer expect total uniformity. States had been prepared toaccept some uniform laws to overcome hardships to individuals in theareas of commercial law and the enforcement of judgments andmaintenance obligations.

However, the Hague Conference did not accept the suggestion. It sawitself as a diplomatic body whereas matters of drafting and technicallaw were to be left to the expert committees which advised theConference. The Conference felt, too, that it would be better to haveuniform laws which began as and remained uniform. The flexibilityallowed to various states by the model law method would produce toomuch diversity. This proposal to the Hague Conference did lead tosome self-criticism by bodies concerned in the unification of law,though it did not lead to any widespread change in methods ofunification.52 It is now more common for conventions, particularlythose drafted by UNIDROIT, to be in such a form that their provisionsmay be enacted as part of municipal law by states which do not becomeparties to the convention.

It is also possible for the provisions of an appropriate convention tobe incorporated by contracting parties into their agreement.53 Anagreement or statutory stipulation of this type is sufficient under thenational laws of most countries to incorporate the provisions of theconvention into the contract between the parties.

The convention and the model law are the only methods so far usedfor achieving the unification of law by the incorporation of the terms ofa uniform rule into municipal law. All bodies concerned with theunification of law do recognise, however, that the use of standard formcontracts and arbitration is directed to the same end as the unificationand harmonisation of the rules of law, that is, conflict avoidance, andhas a definite role to play. The Conference of Organisations concernedwith the unification of law sponsored by UNIDROIT in 1968 consideredthis subject, and the leading paper at the Conference was delivered byDr Clive Schmitthoff, the chief advocate of the "new lex mercatoria".54

52 E.g. Matteucci, "The Unification of Commercial Law" [1960] Journal ofBusiness Law 137; David, "L'unification ou l'harmonisation legislative sans engagement international" [1967-1968] II UNIDROIT Yearbook 77; David, "TheMethods of Unification" (1968) 16 American Journal of Comparative Law 13.

53 In effect, this is the position with the ULIS in the United Kingdom where,under the Uniform Laws on International Sales Act 1967, the rules of the ULISwill not apply unless the parties so specify. S. 6 of the Sea-Carriage of Goods Act1924 (Cth) provides that every bill of lading must contain a statement that it isto have effect subject to the provisions of the Hague Rules which are a Scheduleto that Act.

54 Schmitthoff, "The Unification or Harmonisation of Law by Means of StandardContracts and General Conditions" [1967-1968] II UNIDROIT Yearbook 93; (1968)17 International and Comparative Law Quarterly 551.


UNIDROIT and the United Nations were involved in the preparationof uniform laws concerning the recognition and enforcement of arbitration agreements and awards.55 Both UNIDROIT and UNCITRALare currently concerned with the preparation of "standard" standardconditions for international sale contracts. The work of UNCITRAL inthis area is significant, in that standard form contracts traditionallyhave been used by economically stronger parties to impose termsfavourable to them on economically weaker parties.56 T'his seems just astrue in international as in domestic situations, and the involvement ofUNCITRAL may lead to the preparation of standard terms whichreflect a more equitable balance of interests.

There are great similarities in the methods of preparation of alluniform laws, whether they be the texts of conventions, "model laws",or standard contracts and conditions, and whether the unification be inan international, a regional, or a national context. Prior to WorldWar II the universal practice of European bodies was to prepare a textwhich represented the compromise between experts drawn from differentlegal systems, accompanied by a Rapport, which explained the text, andunder European legal systems forms part of the travaux preparatoireswhich may be considered by a court in interpreting the provisions ofthe law. The bodies responsible for the work were usually eitherinstitutes staffed by comparative lawyers, or associations interested ina particular subject, and, in either case, much of the detailed workwould be carried out by committees of experts. The lack of success ofmoves to unify laws up to 1939 moved the late Professor H. C.Gutteridge of Cambridge, who had been closely involved with the workof UNIDROIT in the field of international sale, to write a criticalcomment on this work, and to suggest a method which, in largemeasure, has been followed in the international unification of law sincethat time.57 He described the area of unification of law in 1939 as asituation of "disorderliness coupled with a regrettable duplication ofeffort."58

The methods suggested by Gutteridge were based largely on thepractice of the National Conference of Commissioners on UniformState Laws in the United States, though he was very conscious of thedifferences between the international community, and the United States,which is, in social, economic and legal terms, largely homogeneous. In

55 Donovan, supra n. 22; Goldring, "The 1958 U.N. Convention on Recognitionand Enforcement of Foreign Arbitral Awards and the Australian Constitution"(1973) 5 F.L. Rev. 303.

56 Clarke, "Unequal Bargaining Power in the Law of Contract" (1975) 49 A.L.I.229; Peden, Harsh and Unconscionable Contracts (Report to the N.S.W. Ministerfor Consumer Affairs and Co-operative Societies and the Attorney-General, 1976).

57 Gutteridge, (1939).58/bid.


the National Conference,59 once a subject is approved, a draft reportand text is prepared by a group of experts, which may include judges,members of legislatures, government lawyers, private practitioners andacademics. The draft is circulated widely for comment, and consideredby committees of the Conference, and by various other interestedgroups, especially professional associations. It is not submitted to theState governments until it has been considered twice by plenary sessionsof the Conference. The Conference meetings are generally held at thesame time and place as the Conventions of the American Bar Association, which enables close co-operation between the profession and theCommissioners. Once a model law has been approved, it is submitted tothe State governments. As the executive governments of the Statesappoint the Commissioners for each State, the Commissioners normallyhave some political influence. One of the three Commissioners for eachState is also often a member of the State C'ongress. The uniform lawgenerally has the active support of a person concerned in its formulation, in both the executive and the legislative branch of the Stategovernment, which, under the American system, is necessary for itsenactment.

In making his suggestions concerning the unification of law on aninternational level, Gutteridge emphasised several matters. First, thereshould be a comparative study of the area which was the proposedsubject of the uniform law, designed to show the differences andsimilarities between the legal systems on various points, not only interms of strict law, but in the operation of the law. He said "it is notenough to carry out this task within the four walls of a library.... Therelevant rules of law must be studied against the background of legalprocedure and business practice, and this can only be done in a satisfactory manner if contact is established between the various interestsconcerned ...".60 In the United States, an expert study was always thefirst step. Matteucci, who has been associated with UNIDROIT formost of its existence, and is now its President, has elaborated on thenature of the comparative study.61 It should, he says, be conducted onboth the "vertical" and "horizontal" levels. By the "vertical" study hemeans a study of the provisions of the law of a particular stateconducted by an expert in that law. The "horizontal" study is acomparative study of the points of similarity and differences of the legalsystems, using the vertical study. This work is best carried out by ateam of comparative lawyers, working under the auspices of aninstitution, such as UNIDROIT, which has proper facilities for thework. Anything less can result in an "abuse" of comparative law, by an

59 Dunham, Barrett, supra n. 34.60 Gutteridge, (1939) 39.61 Matteucci, "The Methods of the Unification of Law" [1956] II UNIDROIT

Yearbook 3, 41.

1978] Unification and Harmonisatior: 305

62 Kahn-Freund, D. 23, 7-17, 20 supra.63 Gutteridge, supra n. 41.

attempt to apply the principles of a legal system which is part of thesocial structure of one nation to the systems of others, regardless ofwhether the rules are appropriate to those other social systems.62

According to Gutteridge, after this preparatory stage there should bea constructive stage, where, using the comparative study as a basis,experts from the various systems would attempt to produce a draftproposal and explanatory report showing how the proposed wording ofthe uniform law would affect different systems. This stage would involvesome negotiation, but at a "technical" or, to use the Europeanexpression, "scientific" level, rather than a displomatic level. The thirdstage of preparation of a uniform law would involve diplomatic negotiation of the traditional type, probably, but not necessarily, carried outin the traditional surroundings of a diplomatic conference, in whichpolitical considerations would form the basis of the crmpromises; thetechnical problems, for the most part, would alreJady have beendisposed of. The result would be a draft proposal whjch, both legallyand politically, would be acceptable to all countries.

This method, in Gutteridge's view, was more li ely to produceacceptable results than presentation of a draft propo al and Rapportdirect to a diplomatic conference, which often had neit] er the time northe resources to consider them adequately. Gutteridgel did not suggestdispensing totally with the Rapport because of its impo tance as an aidto interpretation (as part of the travaux preparatoires) i most Europeanlegal systems. The emphasis should be on the text itse f, which shouldbe prepared with a view to its functioning as part of the municipal lawof a number of different states. Previously the textyhad been oftenexpressed in general terms, which, though satisfactor as a statementof principles, were unacceptable, especially to comm n lawyers, as apiece of legislation.

Another advantage which Gutteridge saw for the met od he proposedwas the ease with which there could be consultatio with businessinterests and with the practising legal profession in the vfrious countries.Gutteridge pointed out "[i]n every country we find a section of legalopinion which is either hostile to unification or views it with apathy" .63

In the United States and Canada, where the method f unification oflaws was similar, the institutions involved engaged all sections of thelegal profession, through professional associations, dur ng all stages ofthe preparation of uniform laws. This resulted in the] rofession beingwell informed both of the results of the comparative research whichshowed the need for unification of the law, and of t e proposals foruniform law, together with the benefits that the uniform law wouldprovide. In every case there was a need to explain the proposal, and

I


the needs giving rise to it, in the clearest possible terms, and to seeksuggestions on the best means of implementing the proposal. Anothershortcoming which Gutteridge indicated was the need for a clearinghouse of information, which would assist in avoiding duplication ofeffort. This function is now, to a large extent, performed byUNIDROIT,64 and, in the light of available information, most organi~

ations concerned with the unification of law now give considerableattention to determining the priority which should be given to variousprojects. The methods suggested by Gutteridge are still the basis forthe work of most of the organisations concerned with the unification oflaw, including UNCITRAL and UNIDROIT.65

An example of duplication of effort is shown by the following case.Between 1968 and 1977, both the Council of Europe and the Commission of the European Economic Communities have devoted efforts tounification or harmonisation of laws relating to the liability of manufacturers of goods to persons injured by defects in them ("ProductLiability") .,66 The Council of Europe began its work by commissioningUNIDROIT to prepare a comparative study of the laws on the subjectof all member States of the Council of Europe, and also Japan, Canada,and the United States. The three volume report is still a useful reference,but was invaluable as the basis for the work of a Committee of Experts,representing not only the members, but also UNIDROIT, the EEe, andbusiness, insurance, and consumer organisations. The C'ommittee meton seven occasions. Its work was widely discussed, and comments soughtand welcomed. Finally, the Council of Europe approved the text of theproposal, which became the European Convention on Products Liabilityin Regard to Personal Injury and Death (Strasbourg Convention)which was opened for signature early in 1977.

By contrast, the Commission of the EEC was preparing a DraftDirective on the same subject with the aim of increasing consumer

64 By publication of a regular news bulletin, the Uniform Law Review, and theUNIDROIT Digest of Activities Concerned with Unification of Law. It alsosponsors Conferences of Organisations Concerned with Unification of Law, andits Secretariat maintains informal contact.

65 The methods of these two organisations are similar. The comparative study isgenerally published; at the same time it is the basis of work of drafting by aCommittee of Experts or "Working Groupn, who present a final draft fordiplomatic negotiation.

66 Council of Europe, Committee of Experts on the Liability of Producers,Products Liability (Strasbourg, 1972); Association Europeenne d'Etudes Juridiqueset Fiscales, Product Liability in Europe (London, 1975); Lorenz, "Some Comparative Aspects of the European Unification of the Law of Products Liability"(1975) 60 Cornell Law Review 1005; Fleming, "Draft Convention on ProductsLiability (Council of Europe)" (1975) 23 American Journal of Comparative Law729; Wassermann, "Council of Europe, Products Liability Conventionn (1977) 11Journal of World Trade Law 192; Note, [1977] Journal of Business Law 50;Goldring, "Liability of Manufacturers for Defective Goods: Some EuropeanTrendsn (1977) 51 Law Institute Journal 240.


protection and removing barriers to competition within the community.67The Commission, however, appeared to neglect a number of Gutteridge'swarnings; it proceeded with its work at the same time as the C'ouncil ofEurope; its comparative study, if any, or other documents upon whichits proposals are based were not published; it did not engage in as widea program of consultation with interests potentially affected by itsproposals as the C'ouncil of Europe had done. This is remarkable, as theEE'C Commission was represented in the work of the Council of Europe,and there is overlap in membership of the organisations. The variousdraft directives have appeared from the EEC headquarters accompaniedby explanatory memoranda and notes, which do not satisfactorilyexplain the comparative basis for each of the proposals. Commentshave, of course, been passed back to the Commission, and subsequentamendments have been made. However, the text of the draft appears tobe much less acceptable to lawyers, businessmen and consumers thanthe Strasbourg Convention, in the preparation of which they wereconsulted, and which represents their views and interests.68 It would beironic if the EEC' Directive ends up as a replica of the StrasbourgConvention, which is not unlikely, as the first three States to accede tothe Convention were France, Belgium and Luxembourg, all of whichare members of the EEC; it would certainly bear out Gutteridge'sremarks on duplication of effort.

Once uniformity of laws is achieved, whether by means of a convention or by means of model laws, its uniformity must be preserved.69

Where legislative amendment of a uniform law is possible, as it is underthe "model law" method, total uniformity is easily destroyed, asexperience in Australia70 and Canada71 shows. Even if the text can bemaintained in its uniform state, differences in judicial interpretation inthe several countries may have an equally destructive effect. The samewords are used in the text of uniform laws, and there is a resulting"quantitative" limit on the amount of diversity which may result fromdifferences in judicial interpretation; "qualitatively", however, theeffects can be great; interpretation in different ways of a single phrasemay effectively destroy uniformity.72

67 If a Directive is approved unanimously by the Council of Ministers of theEEC, it becomes binding in the sense that each member is required to make suchchanges as may be necessary to bring its own law into accordance with theDirective.

68 Lloyds' of London Press, Product Liability and Insurance (1977), especiallythe paper by Hussey.

'69 Mann, "The Interpretation of Uniform Statutes" (1946) 62 L.Q.R. 278;Malintoppi, "Mesures tendant a prevenir les divergences dans l'interpretation desregles de droit uniforme" [1959] UNIDROIT Yearbook 249, 250.

70 At p. 314 infra.'11 Ziegel, "Uniformity of Law in Canada: The Conditional Sales Experience"

(1961) 39 Canadian Bar Review 165.'12 Malintoppi, Ope cit., 258.


This is recognised by at least some English judges. In The Eurymedon,Scott L.J. said:

The maintenance of uniformity in the interpretation of a rule afterits international adoption is just as important as the initial removalof divergencies. That we should, in a branch covered by aninternational convention, preserve uniformity, is an obviousadvantage, if it is judicially possible.73

Unfortunately, it seems that uniformity of interpretation is notalways judicially possible, at least where there is no single final courtof appeal whose interpretations are binding on the courts of all stateswhich adopt the uniform law.74 The national rules of interpretation ofstatutes will bind the courts if there is a conflict between those rulesand the interests of uniformitY,75 though in Stag Line Ltd v. FoscoloMango & CO.16 both Lord Atkin77 and Lord Macmillan78 suggested thatthere may be some flexibility in the application of English rules ofstatutory interpretation where a uniform law is concerned.

One solution to the problem of differences in interpretation is thatadopted by the United States National Conference of Commissionerson Uniform State Laws (which has had a committee on Uniformity ofJudicial Interpretation for most of its existence). In each model lawemanating from the Conference since 1910, there has been a clause(for example, section 1-102 of the Uniform Commercial C'ode) whichreads: "This Act shall be so interpreted and construed as to effectuateits general purpose to make uniform the laws of those States whichenact it".79 Such a statutory provision, of course, overrides any commonlaw rule of interpretation, but may be of little use where, in the opinionof the judge, the words of the uniform law are clear and unambiguous,and their interpretation does not require the assistance of any aids. Ifjudges and courts are so minded, there are ways in which they can findhow uniform laws are interpreted in other jurisdictions; this is onefunction of the Committee on Uniformity of Judicial Interpretation inthe United States. In the international sphere, cases involving theinterpretation of uniform laws can be found in such publications as the

73 [1938] P. 41, 61, quoted by Mann, Ope cit. 278.74 See, on the judicial unification of law, Lawson, "Uniformity of Laws: A

Suggestion" (1944) 26 Journal of Comparative Legislation and International Law16, 18; Graveson, n. 40, 7 supra; Graveson, "The Judicial Unification of PrivateInternational Law" (1962) 9 Nederlands Tijdschrift Voor Internationaal Recht,(Special Issue) De Conflictu Legem 154; Joske, "Uniformity of Empire Law" (1951)5 Res Judicatae 8; Nadelmann, "Bench and Bar: Unification of Private Law"(1955) 29 Tulane Law Review 328, 334; Mann, supra n. 69; Mason, supra n. 10.

75 Gosse Millerd Ltd v. Canadian Government Merchant Marine Ltd [1929]A.C. 223; Ellerman Lines Ltd v. Murray [1931] A.C. 126.

76 [1932] A.C. 328.77Id. 342-343.78Id.350.79 See generally Lawson, supra n. 74.


Uniform Law Review and Lloyd's Commercial and Maritime LawQuarterly.

It has also been suggested that an international tribunal, possiblythe International Court of Justice, might be given jurisdiction, underthe provisions of the convention, to give an interpretation of its termswhich would be binding on all parties, or that the advisory opinion ofsome other body, such as the Governing Council of UNIDROIT, mightbe binding on the parties.so The suggestion has not received muchsupport; it would cause obvious constitutional problems.81

5. Unification of Law in Australia

Even before federation, despite the existence of six different legalsystems in Australia, there was a measure of uniformity in the law. TheBritish colonists brought with them the English common law andstatutes.82 In the early days of the Australian colonies much legislationwas prepared in the Colonial Office in London, and the same provisionswere often used for several colonies.83 Colonial courts paid deferenceto the Courts of England; if they did not, the Privy Council was acommon appellate tribunal, the decisions of which bound all colonialcourts. Judges and practitioners, if not trained in England, werecertainly immersed in the English tradition. In terms of "lawyers' law",self-goverment made little difference. The Privy C'ouncil remained, andthough statutes were no longer made in England, they were oftencopied verbatim from English legislation, even when some provisionscould not appropriately be applied in Antipodean conditions. The unityand uniformity of the common law, in which the role of statute lawwas subservient, was much prized by Australian jurists until recentyears.84

Like self-government, federation did not greatly affect much of theunity of the law. When, in 1909, the Commonwealth Parliamentexercised its power under section 51 (xvi) of the Constitution to enactthe Bills of Exchange Act, the legislation was, with minor exceptions,a true copy of Judge Chalmers' English Act of 1882. The English Actwas also the basis for the Uniform Negotiable Instruments Act in theUnited States.ss Under the federal compact, much "lawyers' law"remained within the legislative competence of the States. The statuteswere uniform, not because of any conscious co-operation, but becauseActs dealing with such matters as bills of sale, sale of goods, partnership,

80 Graveson, n. 2, 12 supra; David, (1971) 112; Malintoppi, n. 69, 258 supra.81 In Australia, the Constitution confers the "judicial power" of the Common

wealth exclusively upon the courts created under the Constitution. Such power maynot be conferred on any other body: R. v. Davison (1954) 90 C.L.R. 353.

82 Milirrpum v. Nabalco Pty Ltd (1971) 17 F.L.R. 141; Castles, "The Receptionand Status of English Law in Australia" (1963) 2 Adelaide Law Review 1.

83 Lawson, supra n. 74.M Ibid.; Joske, supra D. 74; cf. Graveson, supra n. 2.85 RossmaD, supra D. 34.


succession to property, and companies were copied by the States fromthe same English statutes.

Judicial unification of the law, previously a result of the commonappeals from colonial courts to the Privy Council, remained important,86although part of the unifying function was transferred to the HighCourt of Australia, which, under Chapter III of the Constitution, hasa wide jurisdiction as a general court of appeal from all courts, State orfederal, within Australia. The decisions of the Privy Council and theHigh C'ourt gave uniformity, not least importantly, on the interpretation of similar statutes, which were binding on all inferior courts. Inthe United States, an identical provision in a statute of two neighbouringStates might be so interpreted by the final appellate courts of eachState in a totally contradictory way, without an appeal to the SupremeCourt, but this situation is not, in theory, possible in Australia.

Appeals to the Privy Council are now limited to appeals direct fromState courts.87 Decisions of other English courts still are of persuasivevalue, and will be followed unless there is good reason not to do SO.88

Where an English and an Australian Act have similar provisions, theEnglish interpretation of that provision will be most persuasive. Thehierarchy of the courts and the common law traditions of the judiciaryare a significant factor in unification of law in Australia.

Federation had one most important effect. In areas within thelegislative competence of the Commonwealth Parliament, laws madeby that Parliament were binding throughout Australia. Following theenactment of the Bills of Exchange Act 1909, for example, parties to abill of exchange who were resident in different States no longer werefaced with conflict of laws problems in the enforcement of their rightsand obligations towards each other, as they had been before theenactment. The same law bound all Australians. If there was any Statelaw which might be inconsistent with an Act of the CommonwealthParliament, section 109 of the C'onstitution provided that theCommonwealth law would prevail to the extent of any inconsistency.At first, the areas in which the Commonwealth Parliament chose tolegislate were limited, but over the years there has been not only asteady increase in the areas in which the Commonwealth Parliamenthas made legislative incursions, but also in the scope of the powers ofthat Parliament, according to the interpretation of the Constitution bythe High Court.89

86 Supra n. 74.87 Privy Council (Limitation of Appeals) Act 1968 (Cth); Privy Council

(Appeals from the High Court) Act 1975 (Cth).88 Favelle Mort Ltd v. Murray (1976) 8 A.L.R. 649, 658 per Barwick C.l.; but

see now Viro v. R. (1978) 18 A.L.R. 257 and Attorney-General of the Commonwealth v. T. & G. Mutual Life Society Ltd (1978) 19 A.L.R. 385.

89 The most convenient summary is perhaps Crommelin and Evans, "Explorationsand Adventures with Commonwealth Powers" in Evans (ed.), Labor and theConstitution 1972-1975 (1977) 24.


Commonwealth laws have done away with severe harshness andinconvenience caused by diversity of State laws and the interstateconflict of laws in several areas. Nowhere has this been more effective,or more obvious to most Australians, than in the area of family law.The reform of the law of divorce has been politically sensitive inAustralia because of the political influence of religious groups in thecommunity. Few State governments were prepared to face the politicalconsequences of reform of divorce law. This was one reason whyattempts to formulate uniform State laws were never made. Atfederation, section 51 (xxi) and (xxii) of the Constitution gave theCommonwealth Parliament power to make laws with respect to marriageand divorce. Until 1959, these powers were not exercised. TheMatrimonial C'auses Act 1959 not only unified the law with relation todivorce in Australia, but made substantial reforms, and was regardedat the time as controversial. In 1975 more far-reaching reforms weremade by the Family Law Act which replaced the 1959 Act, but thiswas less controversial because of greater community acceptance of therules provided by the Act, and recognition of family law as a properlegislative activity of the Commonwealth Parliament.90

Other areas of legislative power of the Commonwealth Parliamentare not so clearly defined as those relating to marriage and divorce.Following Huddart, Parker and Co. Ltd v. MooreheaJ9'1 in 1909, thescope of the power given by the Constitution to the Federal Parliamentunder section 51 (xx) of the Constitution to make laws with respect toforeign, trading and financial corporations was unclear. It was thoughtthat this power would not permit the Parliament to make laws withrespect to formation or dissolution of corporations.92

This view is now less tenable.93 In the early 1960s, it was felt thatbusiness interests would be better served by a single system of companylaw throughout Australia. However because of the doubts about theextent of Commonwealth constitutional legislative power, it seemedappropriate that the uniform laws should be enacted by co-operationbetween the State Governments,94 as had occurred with laws relating tohire-purchase. In 1978 it appears that the Commonwealth Parliament,if it so chooses, may exercise legislative power in respect of bothcorporations and consumer credit, especially as most consumer credit

90 Ioske, "Uniform Divorce Laws" (1957) 7 Res Iudicatae 363; also Barwick,"Some Aspects of the New Matrimonial Causes Act" (1961) 3 Sydney LawReview 409; Crommelin and Evans, op. cit. 51-52.

91 8 C.L.R. 330.92 Lane, "Corporations and Trade Practices: The Concrete Pipes Case" (1971)

4S A.L.I. 616; Lane, "Can there Be A Commonwealth Companies Act?" (1972)46 A.L.I. 407.

93 Since Strickland v. Rocla Concrete Pipes Pty Ltd (1971) 124 C.L.R. 468 andthe C.L.M. Case, supra n. 49; Taylor, "The Corporations Power: Theory andPractice" (1972) 46 A.L.I. S; Frankel and Taylor, "A 1973 National CompaniesAct?-The Challenge to Parochialism" (1973) 47 A.LJ. 119.

14 Sawers Leach, Cranston, supra D. 10.


is provided by "financial corporations", other aspects of whose activitiesare regulated under the Financial Corporations Act 1974 (Cth).

If a Commonwealth government now seeks to use the legislativepowers given to the Commonwealth Parliament by the Constitution tothe fullest possible extent, its legislation may not be so restrictivelyinterpreted as has previously been imagined.95 Some provisions of theConstitution restrict the activities of all Australian legislatures, forexample, section 92 of the Constitution. However, other activities maybe legitimate subjects for Commonwealth legislation even though theyhave traditionally fallen within the powers of the States. For example,both the trade and commerce power in section 51 (i) and the corporations power in section 51 (xx) might support a Commonwealth lawrelating to sale of goods (although not to all intra-State sales of goods).

Where there has been international unification of law by means of aconvention to which Australia is a patty, there seems now little doubtthat the Commonwealth Parliament has power to make laws runningthroughout Australia which are necessary to give effect to thatconvention9G even if such a law were not supported by some otherhead of legislative power, such as the trade and commerce power.97

Though the legislative power of the Commonwealth Parliament maybe expanding, it does not, and, in peace time at least, cannot coverevery aspect of life in Australia. T'he federal compact assures this. Manyareas of social activity, and of law, will remain within the legislativecompetence of the States alone. While the States retain a measure oflegislative sovereignty, there will be differences between the laws ofthose States which will cause inconvenience and hardship to individualsinvolved in transactions concerning more than one State. For thepurposes of private international law, in the courts of one State, eachother part of Australia is a foreign country.98 Thus the conflict of lawsproblems which arise in inter-State transactions in Australia are thesame as those which arise in international transactions. The difficultiesare reduced, if at all, only because of the similarities between the lawsof the States and the courts and judicial techniques involved in theiradministration.

The similarities of laws (including conflict of laws rules) andtraditions between the States may explain why there was no early orstrong move for the unification of State laws. However, when the LawCouncil of Australia was formed in the early 1930s, one of the first

95 For an account of the extent to which constitutional powers have been, andmay be, tested, see Evans, "The Most Dangerous Branch? The High Court andThe Constitution in a Changing Society" in Hambly and Goldring (eds), AustralianLawyers and Social Change (1976) 13; Crommelin and Evans, supra n. 89.

96 New South Wales v. Commonwealth (1975) 8 A.L.R. 1; but note the remarksof Gibbs J. in the C.L.M. Case (1977) 13 A.L.R. 273, 275.

97 A suggestion made by the author in 1973: 5 F.L. Rev. 303.98 Pedersen v. Young (1964) 110 C.L.R. 162, 170 per Windeyer J.


suggestions for its activities was that it should, like the American BarAssociation, work towards uniformity of law throughout the Commonwealth. In 1939 the Australian Legal Convention heard a proposal forunification of laws on a number of subjects.99 However, the SecondWorld War interrupted any moves that might have resulted from this.During the war it was necessary for the Commonwealth Governmentto assume control of a broad range of activities, a number of whichnormally lay within the legislative competence of the States, by relyingon section 51 (vi) of the Constitution (the defence power). As a result,there was a great centralisation of power and a growth of bureaucracyduring and immediately after the war. This centralisation was resentedby many Australians, and in the post-war period there were moves forthe return to the States of legislative powers assumed by the Commonwealth during the war. There were at the same time calls for greaterco-operation between the Commonwealth and States in legislation!including the reference of powers by the States to the C'ommonwealthunder section 51 (xxxvii) of the Constitution.2 In general however,both Commonwealth and States were committed to the return oflegislative powers to the States.

Thus, when the late J.J. Cahill, then Premier of New South Wales,sought the assistance of the Commonwealth Government in arriving ata scheme for a uniform Hire-Purchase Act during the 1950s, thatGovernment refused to co-operate. Cahill called a meeting of StateMinisters on his own initiativeS and the result was a co-operative effortwhich produced substantially uniform Acts throughout Australia about1960. There were variations between the statutes; Victoria, for example,refused to include provisions regarding maximum "terms charges" orinterest rates, but the scheme of the Acts, and their language, wasstandardised.

The success of the "uniform" hire-purchase legislation inspiredconfidence among those seeking the uniformity of company law. Inthat area the different requirements of each State law, coupled with thecharacterisation of any company trading outside its home State as a"foreign" company in the State where it was carrying on business, causeda great deal of inconvenience to business and lawyers, whose pressureresulted finally in a series of meetings of the Law Ministers of the States

99 Piesse, "Uniformity of State Laws-A Proposal for Action" (1939) 13 A.LJ.176.

1 Beasley and Baker, "The Need for Co-operation in State and CommonwealthLaws" (1949) 23 A.L.I. 188; ct. Comans, "Co-operation between Legislatures in aFederation: The Australian Experience" (1953) 31 Canadian Bar Review 814;Sawer, "Federal-State Co-operation in Law Reform: Lessons of the AustralianUniform Companies Act" (1963) 4 Melbourne University Law Review 238.

2 Anderson, "Reference of Powers by the States to the Commonwealth" (1951)2 University of Western Australia Law Review 1.

3 Cranston, "Uniform Laws in Australia" (1971) XXX Public Administration(Australia) 229, 233.


and the Commonwealth (representing the Territories) extending overthree years. A model Act was produced which achieved a greater degreeof uniformity than the hire-purchase legislation.4 Even the forms andfees prescribed in the schedules to the Acts were uniform; the regulationswere substantially uniform, and the differences were generally minorand politically motivated, such as the reluctance of South Australia toimpose an age limit for company directors.5 The "uniform CompaniesAct" was enacted by all States and Territories between 1961 and 1964.

Experience with the Acts showed the necessity for some amendments,and at first these were made in a uniform way. However, politicaldifferences over matters more serious than age limits for directors, andthe need, especially in the financially more sophisticated centres ofMelbourne and Sydney, to cope with more subtle means of underminingthe Acts, led to a process of amendments which were not adopted byall of the States. As Ziegel pointed out in relation to uniform legislationon conditional sales in Canada,6 "uniform" legislation simply is not,and does not stay, uniform. States amend parts of it according topolitical judgments made from time to time, and this is certainly trueof the Companies Acts.

Increasing differences in the Acts, together with a series of abusesand frauds revealed in the Report from the Senate Select Committeeon Securities and Exchange7 led to the preparation in 1973 and 1974of Commonwealth Bills for a Corporations and Securities Act and aNational Comp,anies Act. Provided that the Parliament had the necessarypower under section 51 (xx) of the Constitution to make such laws,:8 theywould have superseded the State Acts. The present Federal Government,though of different political persuasion, has indicated that it proposesto introduce some national companies legislation, showing that, like itspredecessor, it recognises that the political importance of the benefitsflowing from a uniform law outweigh the political considerations basedon "States' rights".

A more important outcome of the movement for uniform companylaw than the Act itself was, perhaps, the formation of the firstpermanent institution concerned with unification of laws in Australia.It is a standing committee of the law Ministers of the C'ommonwealthand the States, and was originally called "The Standing Committee ofCommonwealth and State Ministers to Consider Uniform LawProposals", but changed its name to the present "Standing Committee

4 Sawer, op. cit.; Parsons, "Uniform Company Law in Australia" [1962] Journalof Business Law 235; O'Connell, "The Australian Uniform Companies Law" [1964]UNIDROIT Yearbook 191.

i Sawer, op. cit.6 Supra D. 71.1 Australian Securities Markets and Their Regulation (1974) Part 1, Vol. 2,

Chs 15 and 16.8 Text at DD. 92, 93.


of Commonwealth and State Attorneys-General" when the Ministersdecided that uniform law proposals should be only one of its concerns.9

The Standing C'ommittee has no statutory or constitutional basis, nostanding appropriation or funds, no formal rules, and no permanentstaff. It meets several times each year, in each capital city in turn. Themeetings are preceded by a meeting of departmental staff, which settlesthe agenda. The meetings are secret and informal, but action is takenon the basis of unanimity, rather than majority vote. The only publicindication of what is done in the Committee are the press statementsmade by the president (usually the host minister). Any agreement ispersonal only, and does not bind any government, for decisions onproposed legislation must be taken in the normal way as Cabinetdecisions by the Commonwealth and each State. Matters may bereferred back to the Committee if there are any significant objectionsor suggestions in any Cabinet. The drafting of model legislation isentrusted to the parliamentary draftsman of one of the· participatinglegislatures. In practice, much of the support for the activities of theStanding Committee has come from Victoria.

Draft uniform legislation prepared by the Standing Committee is notmade available for public comment or discussion until it has beenintroduced into one of the Parliaments, mainly because the ministersdo not wish to offend the Parliaments of which they must be membersand to which they are responsible; and legislatures traditionally take theview that the members of the legislature should be the first to see anyproposed legislation.tO Legislation introduced into only one legislatureis often amended after public comment, but in the case of uniformlegislation, this causes difficulties. Not only suggestions from the public,but even suggestions from Cabinet Ministers after the Standing Committee has approved a uniform Act are often met with the argumentthat amendment at that stage, no matter how desirable politically or onother grounds, would destroy the uniform nature of the law.

At times, the Standing Committee will seek outside expert advice onmatters which it is considering. The Company Law Committee, underthe chairmanship of Sir Richard Eggleston, was established to reviewthe operation of the Uniform Companies Acts and to suggest measuresfor reform. The C'ommittee continued to meet over several years andproduced a number of reports to the Standing Committee, some of

9 N. H. Bowen, "The Work of the Standing Committee of Attorneys-General"(1971) 45 A.L.I. 489 sets out the history, and describes the activities of theCommittee. Most of the information set out here is drawn from that article; otherinformation is drawn from Sawer, "Who Controls the Law in Australia? TheInstigators of Change, and the Obstacles Confronting Them" in Hambly andGoldring, supra n. 95, 118; Cranston, Ope cit.; Leach, "The Uniform Law Movement in Australia" (1963) 12 American Journal of Comparative Law 206; andthrough personal communication with Professor Sawer and Dr Cranston.

10 Bowen, Ope cit. 491.


which resulted in uniform amendments, and also in uniform legislationdealing with the securities industry. Another expert Committee, underProfessor Arthur Rogerson of Adelaide, prepared a report on reformof the law of consumer credit and the operation of the uniformHire-purchase Acts. Mr J. L. R. Davis of the Australian NationalUniversity prepared a report on domicile. The use of experts by theStanding Committee appears regrettably to be declining, as without apermanent staff or funds the 'Committee is obliged to rely on departmental staff who have other duties.

The work of the Standing Committee, like most work connected withunification of law, tends to be SIOW.11 The preparation of uniform lawson both companies and hire-purchase took between three and fouryears; these were both matters which satisfied the requirements of theUnited States National Conference of Commissioners on Uniform StateLawsl2 in that there was a clear need for reform, and the uniformlegislation, when prepared, was likely to be accepted by all States.Neither the uniform Companies Act nor the uniform Hire-purchaseAct contained much innovation. Where the subject of a proposeduniform law is not purely a matter of technical, or "lawyers' law", butinvolves even the slightest degree of political controversy, the process islikely to be even slower. A government which is reluctant to legislateon a subject may refer that subject to the Standing C'ommittee. Forexample, in 1976 the Trade Practices Act Review Committee madecertain suggestions for the amendment of the Trade Practices Act1974. Some of these were enacted by the Trade Practices (Amendment)Act 1977, but the Committee also recommendedls that the Act be

11 Ibid.; Gutteridge, Comparative Law (2nd ed., Cambridge, 1949) 157.12 Dunham, supra n. 34; Matteucci, "The Methods of the Unification of Law"

[1957] II UNIDROIT Yearbook 3, 18. The criteria set out by the Commissionersin the 1953 Handbook of the National Conference of Commissioners on UniformState Laws 350 are:

"1. There should be a plainly obvious reason and demand for a uniform acton the subject.

2. There should be such an existing demand for the act as to make itspreparation a practical step towards uniformity of state laws. It should bepractically certain that the act when prepared will be accepted by asubstantial number of the state legislatures and enacted into law.

3. It should deal with a subject as to which the lack of uniformity willmislead, prejudice, inconvenience, or otherwise adversely affect the citizensof the states in their activities or dealings in other states or with citizensof other states.

4. As a rule the conference should avoid entirely novel subjects with regardto which neither legislative nor administrative experience is available.

5. It should not relate to subjects that are controversial, for reasons ofpolitical policy, or involve controverted trade or professional standards.

6. It should aim to remove objectional [sic] conflicts in the existing law ofthe states affecting the relations between the states or between residentsof different states." (As quoted by Matteucci); cf. King, commenting onBowen, Ope cit. 496.

13 Report of the Trade Practices Act Review Committee, 1976, paras 9:120-9.127,9.56-9.62.


amended to give greater protection to consumers against the manufacturers of defective products, and harsh and unconscionable terms incontracts. If the Commonwealth Parliament has the power to makelaws in relation to other matters dealt with by the Act, which theC.L.M. Case14 seems to indicate clearly, then it probably has power tolegislate with respect to the matters which were the subject of therecommendations. However, the Government has referred the questionsto the Standing Committee. In part, this may be due to a commitmentby the present Government to "federalism", but it is difficult to imaginethat the opposition of a number of ~ommercial interests to therecommendations was not also a factor.

The possibility that the Standing Committee may be used to. delaythe enactment of any legislation on the pretext of seeking uniformityemphasises the political nature of the decision whether or not to unifylaw, and the political nature of the Standing Committee, which, in thecircumstances, is quite appropriate. The C'ommittee may be used todelay legislation about which there is even a suspicion of politicalcontroversy, as illustrated by the matter of uniform consumer creditlaws, on which Professor Rogerson began work for the StandingCommittee in 1966. Following the publication of the Rogerson Report,15there was considerable opposition to its proposals, which suggested quitesweeping changes in the law. T'he centre of opposition was the FinanceConference of Australia, the trade association of the finance industry.The Attorney-General of Victoria then requested a further report onthe proposals from the Law Council of Australia. When this reportappeared in 1972,1'6 it supported most of the recommendations of theearlier Committee. There was a great deal of discussion of the proposals,and some constructive criticism, but the Standing Committee continuedto inquire into the question. After eleven years, in May 1978, theVictorian Attorney-General introduced the first "uniform" Bills intothe State Parliament. In the meantime, South Australia took thedecision to introduce legislation based on the proposals of the RogersonCommittee.1'7 In doing so, the South Australian Government had tobalance the desirability of uniformity (for the new legislation repealedthe uniform Hire-purchase Act in that State) against the social, economicand political benefits which it considered would flow from the reform.In this case the decision was that the interests of the people were servedbetter by diversity, in the form of a new law which took account of the

14 (1977) 13 A.L.R. 273.15 Adelaide Law School Committee (Rogerson, Trebilcock and Detmold),

Report to the Standing Committee of Commonwealth and State Attorneys-Generalon the Law Relating to Consumer Credit and Moneylending (1969); also Rogerson,"The Legal Regulation of Instalment Credit" (1971) 4 Adelaide Law Review 1.

16 Law Council of Australia, Trade Law Committee, Report to the AttorneyGeneral of Victoria on Fair Consumer Credit Laws (1972); McGarvie and Begg,"The Implementation of Fair Consumer Credit Laws" (1971) 45 A.L.I. 708.

1'7 Consumer Transactions Act 1972-1973 (S.A.); Consumer Credit Act 1972-1973(S.A.).


social situation, rather than by a uniform law which no longer satisfiedsocial demands. In fact, after five years of operation of the SouthAustralian laws, the opposition of the finance industry to the Rogersonproposals has apparently changed to support, if qualified, for the newlegislative scheme.

The Standing Committee cannot be dismissed as a failure, and,indeed, it has had some success. As a result of its efforts, similar, if notuniform, laws have been enacted in all parts of Australia which coversuch matters as rights to off-shore petroleum, marketable securities,enforcement of maintenance obligations, the sale of human blood, andlabelling and packaging of a wide range of consumer goods. TheStanding Committee should co-ordinate law reform,18 but there is littleevidence that it has done SO.19 It does provide a forum for the exchangeof ideas between ministers on a wide range of subjects. Its potential asa means of unification or harmonisation of the rules of laws betweenthe States has not, however, been realised.

The greatest virtue of the Standing Committee is that it is comprisedof practising politicians, who are members not only of the variouslegislatures, but also of the executive governments of the States or theCommonwealth. As such, they are not only concerned in the formulationof uniform laws, and in the political negotiations which are necessarybefore agreement can be reached on the text of such a law, but theyare also in a position to support proposals for uniform law in theCabinet, where the significant decision as to priority in the legislativeprogram is taken. The political position of the members of the StandingCommittee gives it an advantage over any other body concerned withthe unification of law, which is ultimately a political issue. One reasonadvanced for the greater success of the Conference of Commissionersin the United States of America, as compared with Canada, is thatwhile the Canadian Commissioners tend to be either governmentlawyers or practitioners, those in the United States include a numberof legislators.

Though Australia is one unit economically, in language, in life-style,in standards of living, and in legal heritage, in matters of unification oflaw it lags behind not only the United States and Canada, but probablyalso such regional groups as the Nordic Council.

Much of the discussion of uniformity of laws in Australia has arisenin the context of law reform, even though in the United States20 andin the international sphere21 there is a strong feeling that uniform lawsshould not be innovative. It may be a logical consequence that when an

18 Bowen, n. 9, 492 supra.19 Kirby, HUniform Law Reform: Will We Live to See It?" (1977) 8 Sydney Law

Review 1; Australian Law Reform Commission, 1976 Annual Report paras 1-13.20 See Criteria of National Conference of Commissioners on Uniform State Laws

Ope cit.21 Gutteridge, (1939); Matteucci, "UNIDROIT, The First Fifty Years" [1976] 1

Uniform Law Review IS, 19.


Australian asks where the law needs reform, he should immediatelyquestion the diversity of State laws. In 1957, Professor K. O. Shatwellof Sydney University addressed the Australian Legal Convention on"Some Reflections on the Problems of Law Reform",22 an addresswhich acted as a catalyst for a law reform "movement" in Australia.In the course of his comments on this paper, the then Chief Justice ofAustralia, Sir Owen Dixon, said:

In all or nearly all matters of private law there is no geographicalreason why the law should be different in any part of Australia.Local conditions have nothing to do with it. Is it not unworthy ofAustralia as a nation to have varying laws affecting the relationsbetween man and man? Is it beyond us to make some attempt toobtain a uniform system of private laws in Australia?23

Following this comment, there has been considerable discussion ofuniformity in the context of law reform. Since the mid 1950s, the lawreform bug has bitten Australia hard, often and in a great many places.There are now in Australia eleven bodies charged with some aspectof law reform.24 As the Chairman of the Australian Law ReformCommission pointed out recentlY,25 five States have recently consideredreform of the law or procedure of the crime of rape, and in Australiaand New Zealand there have been seven reports on reform of the lawof commercial arbitration-one of the areas which Piesse, in 1939,singled out as ripe for unification.26 This duplication and waste ofresources causes concern to the law reform bodies themselves, who areprobably best aware of the huge and urgent need for law reform andthe scanty resources available for the task. At the Conference of LawReform Agencies in 1976, the Chairman of the Western AustralianCommission, Mr David Malcolm, presented a paper suggesting greaterco-ordination of law reform efforts.27 The Conference adopted thissuggestion and passed it on to the Standing Committee of AttorneysGeneral, which, apparently, rejected it.28 The idea was not new; somecommentators29 have suggested a single law reform agency as the most

22 (1957) 31 A.L.J. 325.23 Id. 342.24Three of them are in Victoria,. They range from the Australian and N.S.W.

Law Reform Commissions, comprised of full-time expert Commissioners, backedby ample research staff and facilities, to the largely part-time bodies in the smallerStates, which can afford fewer resources. There is considerable duplication ofeffort; Kirby, Ope cit. 3; Australian Law Reform Commission, 1976 Annual Reportparas 5, 53-62.

25 Kirby, loco cit.26 Piesse, n. 99, 178 supra.27 "The Pathway to Uniform Law Reform; Co-operation and Co-ordination

Within the Commonwealth", discussed in Australian Law Reform Commission,Third Australian Law Reform Agencies Conference Papers (1976) 62.

28 Australian Law Reform Commission, 1976 Annual Report, para. 12.29 Sawer, n. 1, 252 supra p. 313; Kerr, Uniformity in the Law-Trends and

Techniques (Garran Memorial Oration, Canberra, 1965); Mason, "Law Reformin Australia'" (1971) 4 F .L. Rev. 197.


appropriate means of reforming the law in Australia. The reasons arenot only an appreciation of the expertise needed for law reform andthe scarcity of such resources, but also reasons similar to those whichfavour unification of laws generally-the common interest and backgrounds of people in all parts of Australia. T'he suggestion for a singlelaw reform body appears to be unacceptable politically, not only to theState Governments, but also the present Commonwealth Governmentwhich sees a definite role for the States in law reform.30

The Law Reform Commission Act 1973 (Cth) established theAustralian Law Reform Commission, which, inter alia, replaced theLaw Reform Commission of the Australian Capital Territory. However,section 6(1) (d) of the Act requires the Commission "To considerproposals for uniformity between laws of the Territories and laws ofthe States". If it is feasible to achieve reform and unification of law atthe same time, there are obvious advantages. Although there is noformal co-ordination of efforts between the various law reform agencies,there is considerable informal contact and discussion between them,including annual meetings, and a similarity of results is to be expected.

Among the tasks undertaken by the Standing Committee of AttorneysGeneral31 is that of co-ordination of the work of law reform. If this taskwere undertaken thoroughly and seriously, and the attention of theMinisters was focussed on the advantages of unification as well asthose of law reform in matters which are not politically controversial,not only would it be more likely that the recommendations of lawreform agencies would be enacted in legislation-for it is a continualsource of complaint that recommendations of such agencies, not beingpolitically attractive, receive low priority in the legislative programadopted by Cabinets32-but also, the Australian people would have thebenefit of unified laws throughout the nation. Not only would the lawreform proposal have the support of a Minister, but there would be theadditional spur to action in the knowledge that other States had adoptedthe proposal. Australia is overripe for extensive law reform,33 andresources would be far better used if the aim of the law reform agencieswas not solely the reform of the laws of a particular State, but aproposal which, without great amendment, could be applied in otherparts of Australia.

Uniformity of laws is not an end in itself; its value lies in its practicalbenefits. Many people are distrustful of modification of law; they feel

30 Ellicott, "Law Reform and the Role of the States"-An Address to theTasmanian Young Liberal Convention, Launceston, 13 June 1976; cl. the remarksof Bowen, then Attorney-General in a Government formed by the same politicalparties, n. 9 supra p. 315.

31 Bowen, n. 9 supra p. 315.32 Sawer, n. 9, 131 supra p. 315.33 Mason, supra n. 29. The position has changed little in the intervening six

years.


that it will impose a "dull blanket of uniformity"34 and stifle experimentation by the States, or lead to a reduction in the civil rights ofindividuals,35 whether the uniformity is achieved by overriding legislationof the Commonwealth Parliame~nt or by co-operation between theStates. Under the Australian federal compact it is most unlikely that theStates would be at all willing to compromise their right to enact oramend any legislation from time to time as they deem necessary in theinterests of the people of the State,36 even if it were possible constitutionally for them to restrict the activities of their successors.S7 Thereare severe constraints on the time available to legislatures, and unlessthere are benefits or political advantages in legislation, it stands littlechance of being enacted.38 Nor will the Standing Committee ofAttorneys-General give priority to moves for uniform legislation unlessthey consider that the subject matter justifies the effort involved.

There is both a need and a desire for uniformity of law in Australia.Of the matters suggested by Piesse in 1939 as suitable for uniformlegislation39 only hire-purchase has been considered by the StandingCommittee. Defamation is curently under reference to the AustralianLaw Reform Commission.40 Consumer protection to some extent isalready the subject of Commonwealth legislation,41 though recentreports indicate the need for complementary State legislation to fill gapsin consumer protection where constitutional limitations prevent theapplication of the Trade Practices Act 1974 (Cth).42 Insurance andbankruptcy are matters over which the Commonwealth Parliamentalready exercises power, and where Commonwealth legislation is likelyto become more extensive following two current references to the

34 Kirby, n. 19, 2 supra p. 318.35 E.g. Bray, (1971) 45 A.L.I. 585-586.36 The action of the South Australian Government in introducing consumer

credit legislation in 1972 (text at nne 15-17 supra p. 317) is an outstandingexample of this.

31 The powers of State Governments to bind their successors are extremelylimited; Trethowan v. Attorney-General (N.S.W.) (1931) 44 C.L.R. 394, on appeal(1932) 47 C.L.R. 97; Clayton v. Heffron [1961] S.R. (N.S.W.) 768; South EasternDrainage Board of South Australia v. State Savings Bank of South Australia (1939)62 C.L.R. 603.

38 Sawer, n. 9, 131 supra p. 315.39 N. 99, 178 supra.40 Ellicott, n. 30 supra p. 320. While Attorney-General, Mr Ellicott expressed

the view that the need for a national law on defamation was so strong that hisGovernment would use its control of the Commonwealth Parliament to enact sucha law; see also Kirby, "'The Purest Treasure?' National Defamation Law Reformin Australia" (1977) 8 F .L. Rev. 113.

41 Trade Practices Act 1974 (Cth) Part V.42 White, Fair Dealing with Consumers (Report to the Attorney-General of

South Australia, 1976), Recommendation 2.1; Report of the Trade Practices ActReview Committee, 1976 paras 9.1-9.37.


Australian Law Reform Commission.43 The areas still within Statelegislative competence where unification would provide the greatestbenefits are those of motor vehicles and traffic (including compulsoryinsurance) and workers' compensation. The mobility of Australians atwork and at leisure highlights the anomaly of the coexistence of totallydifferent systems of law in different parts of Australia. No doubt thereare many other activities which, given the national nature of Australiancommercial, economic, social and cultural life, are not confined withinthe boundaries of anyone State, and which are ill-served by a multiplicityof differing State and territorial laws.

6. Can Australia Learn from Others in the "Unification andHarmonisation" of the Rules of Law?

What, if anything, can Australia learn from attempts internationally,and in other federal systems, to unify or harmonise the rules of law?There are some obvious differences; Australia does not have to copewith a diversity of legal systems in the sense that all Australian legalsystems are firmly in the common law tradition, and there are fewdifferences in language, mores, economic or political ideologies, distribution of wealth, etc. Yet, it must, like the international community,contend with the inconvenience and expense which results from relianceon the conflict of laws system to solve interjurisdictional problems. Italso must face the reality that the decision whether or not to unify lawsis one which can only be taken for political reasons, regardless ofinconvenience to the legal profession or its clients.

The Australian State legislatures, like those of the nation states, havea degree of legislative sovereignty, though limited under the federalcompact, and are as jealous of their sovereignty as are independentstates of their untrammelled sovereignty. Australian States would not,and probably could not, bind themselves for the future to legislate ina certain way and to refrain from amending such legislation, regardlessof the interest of the people of the States. Yet this is required of anindependent state which becomes party to a convention for a uniformlaw. Australian States also know that, where the need for uniformitybecomes sufficiently obvious as to give some political prestige to uniformlegislation, if they do not act the Commonwealth Government, whateverits political persuasion, will do so to the extent that it has, or mighthave, the constitutional power. The most certain and permanent meansof achieving uniformity of laws in Australia is for the CommonwealthParliament to enact uniform legislation. If uniformity is to be achievedby co-operation between the States, it must be by the "model law"method.

43 Commonwealth Constitution, SSe 51(xiv), (xviil; The Attorney-General referredto the Commission questions of insurance (excluding workers' compensation andcompulsory third party insurance) in September 1976, and questions of theinsolvency of consumers in May 1976.


The methodology of unification of law outside Autsralia may offersome assistance. Professor Sawer" was particularly critical of themethods used in preparing the uniform companies legislation; not leastthat the uniform Act represented the lowest common denominator ofwhat was acceptable to the States, rather than any improvement onexisting law. It does not appear that the methods of unificationsuggested by Professor Gutteridge45 are well known in Australia, buttheir adoption would surely result in some improvement.

No doubt, before a proposal for a uniform law is placed before theAttorneys-General, there has been some comparative study of theexisting law in each of the States and Territories, but it is usuallyavailable only to the Ministers and their departmental staffs. The viewsof the public generally, and of the legal profession, would be desirableat the preparatory and constructive stages of uniform law. Indeed, theLaw Council of Australia, though it has not pressed for the establishment of a body similar to the Conferences of Commissioners in theUnited States and Canada, has assisted attempts to unify law on an adhoc basis, and there is no reason to suppose it would be unwilling tocontinue to assist.46 But perhaps professional bodies play too great arole in the unification of law in North America. The profession certainlyhas a role, as lawyers are most closely concerned with the day-to-dayoperation of the law, and are most aware of any shortcomings in it. Thelegal profession is also well equipped to comment on the technicaldetail of proposed legislation, but it is not the whole of the community,nor in any way representative of it; it is a conservative elite with vestedinterests and is likely to be antipathetic to any innovation in the law,whether motivated by a desire for uniformity, for law reform, or forany other reason, unless the change is based on a clearly perceivedneed with obvious benefits. Thus, the legal profession, and any otherinterested groups and individuals in the community should be encouragedto participate in the preparatory and constructive stages of unificationof law. The final stage, of negotiation, must be political, and the finaldecision whether or not to adopt a uniform law must be' made bylegislators who, unlike the lawyers, are responsible to the public andmust face the electors periodically.

The Standing Committee of Attorneys-General is a highly appropriatebody to co-ordinate and supervise moves for unification of law byco-operation between the States and the 'Commonwealth. It has, however,

44 N. 1, supra p. 313. ct. O"Connell, n. 4 supra p. 314.45 N. 39 supra p. 297.46 Nicholson, "Lawyers and Law Reform" (1976) 1 Legal Service Bulletin 333;

these views were amplified in personal communication to the author, April 1976.On May 12, 1976, the President of the Law Council, Mr D. A. K. Ferguson, in aPress Release called for Uniformity of State Laws "wherever possible and whereverappropriate". The press statement was made in the context of comments on thefailure of governments to implement proposals for law reform.


no funds and no permanent staff. Yet Gutteridge47 emphasised the needfor a central body to co-ordinate research, to organise work, and to actas a clearing house for information. If the public and sectional interestsare to be consulted on the unification of law, as has just been suggested,staff are required to undertake the work of consultation and to collateand analyse any submissions that may be received. At the present time,it is unlikely that funds could be made available in Australia to providea full secretariat for the Standing Committee, and to do so mightinvolve duplication of resources.

There could be, and perhaps is, a close connection between theinterests of law reform and those of unification of law in Australia.Law Reform Commissions already have libraries, research staff, andfacilities and contacts necessary to obtain public opinion on proposalsfor law reform. The Commissions already maintain a "clearing house"of information on law reform activities in Australia and throughoutthe world, and the Australian Commission, which performs this function,regularly publishes a bulletin, Reform, and a digest of law reformactivities. It may not be so necessary to separate the functions of lawreform and unification of law in Australia as it is elsewhere, if the finaldecision-making body on such questions is a body comprised of LawMinisters.

The solution might be to establish, preferably within the AustralianLaw Reform Commission, a small section to operate as a secretariat tothe Standing C'ommittee. The Standing Committee has already estab-lished the precedent of the use of expert advisers on certain matters,and this practice should be encouraged. This might result in a verysatisfactory machinery for the co-ordination of unification activitieswith a minimum of effort and expense, without duplication, and in away which would serve both reform and unification of the law.

The international movement for the unification of laws shows thatthere is a recognition that in the "global village" which is today's world,there is no reason to tolerate the inconvenience and expense arisingfrom the conflict of laws system, especially in activities which crossnational boundaries. Though there are considerable difficulties inachieving a uniform law to govern a certain class of transaction, thebenefits of uniform law are well recognised. In Australia, there is lessdiversity, and a greater degree of contact across State boundaries; theneed for unification is greater, and the obstacles are smaller and fewer.

If uniformity were to be achieved within Australia, the uniformityin principles of interpretation applied by the various courts would meanthat there would be less likelihood of the uniformity of substantive lawbeing destroyed by judicial interpretation.

41 N. 39 supra p. 297.


The reason for lack of uniformity of laws in Australia is political.The States are reluctant to enact uniform laws for fear of sacrificingtheir political sovereignty. Provided that unification of laws is confinedto those areas where there is a need for uniformity, as Sir Owen Dixonpointed out,48 there is little reason why laws should not be the samethroughout Australia. The independence of the States guarantees boththat uniformity cannot be used as an excuse to overcome the politicalvalues of anyone or more of the Governments of the States, and that,should any State decide that the political values expre'ssed by a uniformlaw are not sufficiently progressive, it may enact more advancedlegislation. Politically controversial areas are only rarely areas whereunification of laws is attempted, so uniformity of laws may proceedwithout any significant detraction from the political sovereignty of theStates.

48 N. 23 supra p. 319.

unification and harmonisation of the … and harmonisation of rules ... there is a definite movement...

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