Australia: still a nation of Chalmers?

Merkin, R. (2011) Australia: still a nation of Chalmers? University of Queensland Law Journal, 30 (2). pp. 189-224.

Abstract/Summary

The UK’s Marine Insurance Act 1906 was passed following a 12-year gestation period during which Sir Mackenzie Chalmers, the great codifier of the common law, analysed and extracted from 150 years of judicial authority a set of principles which was designed to reflect the law as it stood in 1906. The measure is now enshrined, in largely unamended form, in the law of most common law jurisdictions, with Australia following suit by the Marine Insurance Act 1909 (Cth). The 1906 Act was in part redundant by the time it was passed, and much of the remainder of it has been overtaken by many hundreds of judicial decisions, market practice and standard terms of contracting. Many of the solutions to modern issues are despite the measure and not because of it. Australia has had two opportunities to put the 1909 Act out if its misery but has passed on both. First, marine insurance was omitted from the terms of reference which led to the Australian Law Reform Committee’s Report No 20 (1982), and the Insurance Contracts Act 1984 (Cth) duly excluded maritime contracts. Secondly, the Australian Law Reform Committee had a further look at insurance in 2001, this time specifically at marine insurance, but its Report No 91 was somewhat tame in its recommendations: only minor changes to the 1909 Act were recommended and few of them were actually effected. This paper suggests that it is time to administer the coup de grace (dictionary definition – ‘to end the suffering of a wounded creature’) and to repeal the marine legislation. After 100 or so years, even the best of Chalmers show their age.