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TEXT 9. TRADE AND COMMERCIAL LAW IN AUSTRALIA AFTER THE EIGHTEENTH CENTURY



 

For the purpose of studying international commercial law, we only examine the history of Australia after 1788, when the first English settlers arrived at Sydney. English law applied to the colonial states of Australia directly before 1901, when the Commonwealth of Australia was established. After Federation, Australia's independent legislative power was still restrained by the Colonial Laws Validity Act 1865 (UK), which provided that Australian law must not be repugnant to British statutes or regulations which were directly or expressly applicable to Australia. English law maintained a dominant position in Australia until 1942, when the Statute of Westminster 1931 (UK) was adopted in Australia through the Statute of Westminster Adoption Act 1942. This statute released Australia from the obligation to be bound by British law which was directly or expressly applicable to Australia by the will of the British Parliament. Australian law began to achieve its own identity after 1942. The Australia Act 1986 ultimately terminated the power of the British Parliament to legislate for Australia, and clarified the doubts and uncertainties regarding the legislative sovereignty of Australia after the passing of the Statute of Westminster Adoption Act 1942. The history of commercial law and international commercial law in Australia bears the distinctive marks of English law. For example, in Hume v Palmer (1926) 38 CLR 441 the High Court of Australia held that the British Merchant Shipping Act 1894 restricted the Federal Parliament's power to legislate under ss 51 (i) and 98 of the Australian Constitution. Much of what we have said about law merchant and maritime law in English history may thus apply to Australian law too.

Australia was predominantly an agricultural society in the nineteenth century. It exported mainly primary products, such as fruits, sugar and coal, to English markets. The exported goods were shipped overseas mainly by English registered vessels. For example, in 1881 a contract for the first direct oceanic mail service between Queensland and England was granted to an English company. The dominance of the foreign shipping industry in Australian exports meant that foreign carriers were able to impose exclusion clauses or exclusion of jurisdiction clauses in bills of lading for carrying exported goods from Australia. If an Australian merchant was forced to accept a bill of lading which provided that the dispute arising from the bill should be submitted to an English court, he or she would have to travel a long way to England for any legal action against the carrier under the bill. This was one of the major concerns of the Australian legislature in passing the Sea-Carriage of Goods Act 1904. As a result, s 6 of the Sea-Carriage of Goods Act 1904 provided that contracts for carrying goods from Australia to a foreign country were governed by Australian law and subject to the exclusive jurisdiction of Australian courts. The same provision was incorporated into s 9 of the Sea-Carriage of Goods Act 1924, and continued in s 11 of the Carriage of Goods by Sea Act 1991. Australia is still predominantly a shipper's (cargo-owner's) country. Protection of Australian shippers' interest is still one of the major concerns of Australia's domestic law dealing with international commerce, and of the international conventions to which Australia is a member.

The development of international commercial law in Australia entered a new era after the Second World War. The World Food and Agriculture Organizationwas set up under the Constitution of the Food and Agriculture Organization in 1945. Australia accepted the constitution in the same year, and was one of the FAO's original members. In 1946, Australia became a member of the International Monetary Fund (IMF),and the International Bank for Reconstruction and Development (IBRD).Both organizations were based on the Bretton Woods Agreement of 1944. In 1947, Australia was one of the original members of the General Agreement on Tariffs and Trade (GATT)which came into operation provisionally in 1947. In 1948, Australia signed the Havana Charter, which was intended to establish an International Trade Organization (ITO). The charter failed because the US Congress refused to approve it on the ground that the US President had no power to enter into a treaty which was intended to establish an international trade organization. Australia was a member of the International Commodity Agreements,such as the Wheat Agreement, the Tin Agreementthe Coffee Agreementand the Sugar Agreement. These agreements had a limited life and expired at the end of the fixed terms unless the parties to the agreements agreed to renew or modify them. Since 1945, Australia has made many bilateral treaties with its trading partners to deal with various issues of trade and commerce between them. Australia is also a signatory to a number of international conventions or organizations dealing with international trade and commerce.







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