Australia's common law near abroad - Dilanchian Lawyers & Consultants

Twelve months ago I asked a friend, a visiting barrister from London, a question. I asked: “Do the courts in England sometimes quote Australian judgements?” He replied: “England has judges whose legal minds can be extraordinary; and there are so many of them. Why should they refer to the court decisions in Australia!”

I had no quarrel with his reply. I was just curious as to the practices of judges in England.

So what countries are citing the judgements of Australian judges if not judges in England? This question did not occur to me again, until today.

In between there was however a “shock of the new” moment for me in August 2007 when I ran a workshop on contract drafting for lawyers in Kuala Lumpur and Singapore. Being a specialist in intellectual property law I used IP cases to provide a context for workshop discussions regarding contract law and contract drafting.

In KL the class of 20 lawyers included people from various backgrounds. Some were one generation removed from the villages their parents and grandparents were born in. Many were ethnic Malay, some of them lawyers at a local Islamic university. Some others in the class had Indian or Chinese backgrounds, in their dress and manner they appeared to be people with urban backgrounds. There were also two lawyers from China and another three from Phuket in Thailand. Over in Singapore the workshop lawyers included those from Indonesia and Brunei.

My shock was that all of these lawyers had challenging and intelligent conversations with me about contract law. I was amazed as to our level of common understanding. We could speak two common languages, ordinary English and legal English. Admittedly lawyers from non-common law backgrounds were more challenged by common law legal principles.

My sudden realisation was that the English common law system had in the last 200 years truly created a fabric of common understanding in common law jurisdictions in South-East Asia. To an extent this understanding extended to lawyers from nearby non-common law jurisdictions such as Thailand, China, Brunei and Indonesia.

So in the two workshops in KL and Singapore, when it came to discussing fine principles of contract law, copyright law and trade mark law – everyone from a common law background was on the same page.

I’ve repeatedly shared these observations with many in Sydney since the workshop. I’ve been invited back to KL and Singapore in June 2008 to re-run the gig. This time I’ll drill down further and cite what I learned today. It adds depth to the story about the links between common law jurisdictions, their lawyers and their law.

Here’s what I learned today. I was reading the Law Society Journal today. It is published by my professional body, the Law Society of NSW. In the March 2007 issue is an article by The Hon. J.J. Spigelman, Chief Justice of New South Wales.

The title of the article does not indicate why I think it is of note, “The Rule of Law and Challenges to it.” But Justice Spigelman’s following two paragraphs were on point for me for today’s post:

“Every year two or more judges of the Supreme Court have lectured at the National Judges’ College in Bejing. … Recently we received delegations from Bangladesh and Nepal.

In discussions I have had with judges from Singapore, Malaysia and Hong Kong, it has been made clear to me that those jurisdictions increasingly refer to Australian authority [ie judgements in court decisions] in preference to English authority, which they believe is now influenced by European law to an extent which makes it inapplicable to their common law traditions.”

The change noted by Justice Spigelman is perhaps of interest to only a small percentage of Lightbulb readers. I regard it as a significant historical shift as South-East Asian common law jurisdictions increasingly reference case decisions made in courts in Australia.

In noting this, I acknowledge that common law countries have long referred to decisions in other common law jurisdictions; they haven’t just referenced the decisions of the metropole, London.

Apparently now there is increasing reference to Australian authority and the change is because a continental drift is taking place at the metropole.

I’d welcome comments. Are you are aware of additional evidence of this shift, as Australia’s legal near abroad refers to Australian court decisions more and more?