Codifying Contract Law in Australia: Issues and Obstacles

Abstract

In March 2012, the Commonwealth Attorney-General’s Department issued a brief but wide-ranging discussion paper which explored the possibility of codifying or otherwise significantly reforming Australian contract law. Though the 2012 Discussion Paper attracted 58 insightful and closely-argued submissions along with a number of thoughtful papers, there nonetheless remains a clear disjunct between the significance and scope of the questions raised by the discussion paper and the response which it attracted. Indeed, though the notion of codifying Australian contract law has been mooted several times in the past fifty years, the merit of such a reform has rarely been the subject of sustained and detailed analysis. This thesis seeks to go some way towards filling this gap. It grapples with a wide range of important issues thrown up by the question of whether the Australian law of contract ought to be codified, with the aim of arriving at a concluded view as to whether that significant step ought to be taken. It shows that there are strong reasons to conclude that the Australian law of contract ought not to be codified. It shows that many of the traditional arguments proffered in favour of the codification of Australian contract law – including the notion that such a reform would promote ‘certainty’ in the law and amount to an ideal mechanism for substantive law reform – begin to break down upon sustained scrutiny. It further shows that there are a number of serious cultural, practical, and theoretical hurdles which would have to be overcome if codification were to be successful. These hurdles are all the more imposing for having been paid too little attention by the proponents of reform. The result is that, in addition to the serious difficulties which attend the positive case for codification, there is also a strong negative case which has received too little serious attention.