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Tuesday, 14 October 1975
Page: 2036

Mr JACOBI (HAWKER, SOUTH AUSTRALIA) - My question to the AttorneyGeneral deals with insurance law. In a comment on a recent English case on insurance law the Modern Law Review stated:

If the law relating to Consumer Credit can be rationalised, it is difficult to see why the law of insurance should continue to rest mainly on a jumble of unjust precedents.

The Minister will further appreciate that there is widespread recognition in legal circles that standard form contracts of insurance and other features of the law in this area are badly in need of overhaul. He will further note that there is a hotch-potch of legislation in Australia and uniformity and updating are badly needed. Therefore, with this in mind, will the Attorney-General be prepared to give a reference to the Law Reform Commission, either in the form of a broad reference to report on desirable changes to the law of insurance, or, alternatively, to report on the reform of the law on the contract of insurance?

Mr ENDERBY - It is true, as the honourable member said, that the state of the insurance law is unsatisfactory. It is true that the Modern Law Review made the statement that he quoted dealing with consumer credit being rationalised in the United Kingdom. I wish that the same could be said of consumer credit law in Australia, where it is not being rationalised and where the States still seem to be proudly going their own proud but different, irrational ways. The honourable gentleman also referred to the growing incidence of standard form contracts. That has been a feature not only of insurance law but also of many other branches of the law for many years. There are advantages in the standard form of contract. The principal comment I would care to make about it is that the standard form of contract detracts from the notion of contract itself. The dominant position of the insurance company that imposes or lays down these conditions is in effect legislating for the relationship between insured and insurer in much the same way as this Parliament might seek to legislate for a certain relationship. That is a growing tendency in the law where under the name contract relationships are governed but where the relationship increasingly has little to do with contracts.

The honourable gentleman also asked me whether I would consider giving a reference to the Law Reform Commission on the subject of insurance law. The Law Reform Commission is still engaged in preparing its second report, which will deal with criminal procedures as they relate to the jurisdiction or the work of the Australia Police. That report has not yet been received. It is expected shortly, and a decision will have to be made on the second reference. One of the subjects under consideration is defamation law. Australia badly needs uniformity in this area as it does in other areas. I will be happy to keep the honourable member's suggestions in mind.

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