Promising options, dead ends and the reform of Australian contract law

Abstract

The Australian government has launched a consultation on the possible reform of domestic contract law. The Attorney-General's Department is currently seeking stakeholder views on the need to reduce inconsistencies and/or remove outdated rules, and on ways to improve legal certainty generally both for businesses and consumers alike. Its current discussion paper, though open-ended as regards next steps, appears to be talking the language of simplification and coherence that has resonated particularly in the EU for well over a decade. Yet, the ongoing, high-profile project aimed at delivering a more coherent and uniform contract law for Europe's internal market has to date proved controversial, and recent concrete initiatives have generated much adverse commentary, particularly from law-and-economics scholars. The European experience therefore offers a series of signposts but equally a number of hazard markers for the Attorney-General's Department. Indeed, many of the broad assumptions underlying developments in the EU rest on weak foundations. The European institutions have further followed a number of dead ends in the pursuit of ‘coherence’ that ought reasonably to be avoided. This paper explores potential risks underlying the current Australian reform process and offers a number of suggestions on a possible way forward.