The Government’s Proposed 'Review of Australian Contract Law': A Preliminary Positive Response

21 Pages Posted: 18 Jul 2012 Last revised: 30 Mar 2018

See all articles by Luke R. Nottage

Luke R. Nottage

The University of Sydney - Faculty of Law; The University of Sydney - Australian Network for Japanese Law; University of Wollongong

Date Written: July 16, 2012


This paper responds to eight sets of questions posed in a thought-provoking “Discussion Paper to Explore the Scope for Reforming Australian Contract Law” (DP). The DP was released on 22 March 2012 by the Attorney-General’s Department (AGD), as part of its project aimed at “Improving Australia’s Law and Justice Framework”, and it is likely to generate considerable controversy among those more comfortable with existing domestic law. This paper mainly: (a) highlights additional problem areas and hence “drivers for reform” (including consumers and some parts of the legal profession); (b) the direct and opportunity costs incurred by complex domestic contract law, and their disproportionate impact on certain groups; (c) the growing disparities with the contract law regimes found in Australia’s major trading partners nowadays (especially now that some are engaging in comprehensive contract law reforms of their own) or at the international level; (d) how best to conceptualise and address challenges involved even in a “Restatement” approach to reforming Australian contract law.

One tentative conclusion is that reform initiatives may indeed promise fewer directly-measurable benefits than in the EU (with significant divergences in contract law rules and broader legal culture across member states) and even the USA (because its highest court does not bind state courts on contract law issues). Yet contract law initiatives in Australia can also be carried out at lower cost, learning from the harmonisation processes as well as the results or legal norms generated by comprehensive national and international reform projects, particularly over the last decade. Another conclusion is that possible reform of Australian contract law highlights major distributional questions, not just issues of aggregate economic efficiency.

An Appendix lists Submissions (including this paper) in response to the DP, listed on the AGD's website.

A longer version of this paper, updated especially in light of other public Submissions to the government’s Review, is published in Mary Keyes and Therese Wilson, eds, Codifying Contract Law (Ashgate, 2014).

Keywords: contract law, law reform, comparative law, Asian law, commonwealth Law, private international law, consumer law, arbitration law

JEL Classification: K10, K12, K13, K30, K33

Suggested Citation

Nottage, Luke R., The Government’s Proposed 'Review of Australian Contract Law': A Preliminary Positive Response (July 16, 2012). Sydney Law School Research Paper No. 12/49, Available at SSRN:

Luke R. Nottage (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006

University of Wollongong ( email )

Northfields Avenue
Wollongong, New South Wales 2522

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics