Choice of law

ALRC Report 58, released in May 1992, examined existing rules governing choice of law and procedure in federal and territory courts and considered whether reform was necessary to make these rules adequate and appropriate to modern circumstances. ALRC Report 58 outlined constitutional restraints, cross vesting rules, inappropriateness of forum law rules, uncertainty issues and the difficulty in applying choice of law rules to statutory schemes. The report also highlighted that there was a question as to whether choice of law rules needed to be the same within Australia as in the international situation. The report identified the policy issues involved as being that any reform to the law should ensure that the laws should lead to a uniformity of result, they should provide a reasonable degree of certainty and that choice of law rules should be uniform throughout Australia.

Key recommendations

• A complementary set of federal, state and territory laws should be enacted to deal with choice of law in Australia.
• A principal rule in tort claims should be the law of the place where the injury was inflicted or the event took place should govern the matter.

Implementation

Complementary legislation was enacted in New South Wales, Victoria, Western Australia and the Northern Territory as part of an initiative by the Standing Committee of Attorneys-General to clarify that limitation periods should be treated as matters of substance rather than merely as procedural matters.

The majority of recommendations in ALRC Report 58 have not been implemented.

Continuing issues

The lex situs choice of law rule for succession matters is being considered by the Uniform Succession Law Project Committee of state and territory law reform commissions (coordinated by the Queensland Law Reform Commission) as part of its ongoing uniform succession laws project.

Choice of law rules were re-examined by the ALRC in its 2001 report Review of the Judiciary Act 1903 and Related Legislation (ALRC Report 92).