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Copyright (c) 1995 University of South Carolina
South Carolina Law Review

ARTICLE: A Federal Common Law in Australia?

Summer, 1995

46 S.C. L. Rev. 1043


The Hon. Mr. Justice L.J. Priestley *


The title of this essay asks the question I set out to investigate, but a funny thing happened on the way to the conclusion -- I came to realize there was less involved in the question than in its United States' counterpart. I kept coming across related but different questions, touching on other aspects of common law in Australia. As these seemed to be relevant to the theme of the conference for which the essay was being written, I decided to give them a little space also. A clumsier but more accurate title for the paper would now be "Aspects of the Common Law of and in Australia and the States of Australia."

Before moving into these topics, some words about the common law generally.

The common law has many mansions

One of the first texts I used in law school was Glanville Williams' Learning the Law. 1 Early on, this very useful work described the common law in words simple and elementary, but of a significance I have really only begun to understand in later years. Of the common law Glanville Williams said:

(1) Originally this meant the law that was not local law, that is, the law that was common to the whole of England. This may still be its meaning in a particular context, but it is not the usual meaning. More usually the phrase will signify (2) the law that is not the result of legislation, that is, the law created by the custom of the ...
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