Civil Wrongs

Since the beginning of white settlement in Australia, the law of civil wrongs has reflected a tension between the constraints imposed by being part of an imperial structure which formally mandated 'one common law' for the empire with the need for the law of civil wrongs to be appropriate to the different social and environmental conditions in Australia. For much of this history, genuine attempts by Australian legislatures and courts to adapt the law of civil wrongs were masked by the self-identification of Australian lawyers as members of the British race, of which the common law was a cultural artefact, and the resultant need to identify local legal development as within that tradition. This chapter attempts to unpack the rhetoric from the reality. It argues that, from the very first, there was a distinct pluralism that operated within the law of civil wrongs in Australia, one that allowed for Australian exceptionalism that remained within the accepted limits of the one common law approach.