The Qualification to the Birthright Doctrine and Beyond: the Judicial Attitude to Adapting the Common Law to Australian Conditions

Abstract

This article examines the judicial willingness to consider local conditions in developing the common law of Australia. While there were a few notable exceptions, neither colonial judges nor the Privy Council were inclined to adapt English common law rules to Australian conditions despite having scope to do so pursuant to the so-called “colonial birthright” doctrine. It is highlighted that resistance to examining local conditions in a common law setting persisted for most of the 20th century, as reflected in High Court decisions of the 1970s. However, it is shown that the High Court has been willing to consider Australian-specific factors after the complete abolition of Privy Council appeals. In overturning particular English rules (assumed to be part of the received law), the court has variously reasoned that they were not appropriate to the condition of the Australian colonies or cannot be justified in light of subsequent developments in Australia. Show more