Sir Anthony Mason has been credited with the development of “a body of common law and equitable principle that was distinctly Australia” during the late 1980s to early 1990s. There are important public and private law judgements that are referred to during this time, which can be said to have ‘altered the common law in Australia’ during this period. Yet, corporations law seems to have bucked this trend. What gives? Major developments in Australian corporations law (as it is called in Australia) have come from statute rather than from courts. Further, Sir Anthony Mason’s much quoted 1992 statement about this area of law captures the big problem in Australian corporations law: “Oscar Wilde would have regarded our modern Corporations Law not only as uneatable, but also indigestible and incomprehensible.” In late 2022, we are still grappling with this problem. Not only have various scholars expressed concerned on this issue, but the ALRC has also set out to remedy this.
But is complexity the only thing that sets Australian corporate law (or corporations law as it is called here) apart? Rather than looking to develop uniquely Australian principles in this area, the statutory amendments have sometimes borrowed from outside. For example, the introduction of the business judgment rule in 2000 took inspiration from the corporate law in the American State of Delaware.
Even where courts have advanced (or could have advanced) the law in this area, it has not paid any particular attention to the development of UK common law. For instance, Australian courts have been more reluctant to pierce the corporate veil than UK courts.
Even in the absence of common law or statutory convergence however, corporate law, unlike other areas of law, offers another avenue for convergence in law – corporate governance codes. Not only this, market forces like institutional investor demands across jurisdictions can also bring convergence in terms of corporate governance best practices. I’m not trying to imply that Australian corporate law is not distinct in substance from other common law countries. Rather, my point is that Australian corporate law is also unique within Australia when we think of how its journey has been quite different from other areas of law.