Development of the Common Law by Analogy to Statute
Ross Parsons Centre Law and Business seminar: Development of the common law by analogy to statute
In recent decades the importance of statute within Australian law has increased enormously. Legislation has proliferated in size, number and scope; and many of these statutes contain underlying policies, values and ideas which the common law is capable of taking cognisance of. This gives rise to the question addressed by Adam Waldman and Michael Gvozdenovic in this face-to-face presentation: can the common law develop by analogy to statute?
Part I of the presentation will consider how attitudes across the common law world have shifted towards recognising a stronger interrelationship between statute and the common law. This has paved the way for the recognition of analogical reasoning to statute in Australia.
Part II will examine the High Court’s jurisprudence on this form of judicial reasoning. It will closely examine the authorities that have explicitly discussed it, which appear to have left the legitimacy of such reasoning open. It will then identify numerous High Court cases which have developed the common law by analogy to statute, albeit often without explicitly recognising that they are doing so. Considered together, these cases demonstrate that such reasoning must be legitimate in Australia.
Part III will then compare this Australian jurisprudence to that of the United States, which is the jurisdiction in which such reasoning was first pioneered. It will consider whether the American jurisprudence supports the legitimacy of this reasoning, and what lessons might be drawn from it.
Adam Waldman, Colin Phegan Associate Lecturer, Sydney Law School
Michael Gvozdenovic, Herbert Smith Freehills and Adjunct Senior Lecturer, Sydney Law School
Hon Justice Mark Leeming, New South Wales Court of Appeal, Challis Lecturer in Equity, Sydney Law School
Dr Jason Harris, Professor of Corporate Law, Sydney Law School
Monday 6 March, 2023
Venue: The University of Sydney, Level 1, Law Lounge, New Law Building (F10), Eastern Avenue, Camperdown
CPD Points: 1
This event is being held in-person at Sydney Law School.
This event is proudly presented by the Ross Parsons Centre at Sydney Law School.