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Greg Taylor[*]
Recently, the High Court of Australia has again concerned itself with the need for the common law to conform to the Constitution and with the manner in which, and extent to which, such conformity is ensured. In the 1990s, the Court considered the effect of the Constitution's guarantee of freedom of speech on defamation law and reached at length, in Lange v Australian Broadcasting Corporation,[1] a common position on the influence of the Constitution on the common law which enjoys the support of the whole Court.[2] The consensus thus reached has now been applied in John Pfeiffer v Rogerson[3] to the area of choice-of-law in tort.
Choice of law is another area in which, during the Court's fin de siécle period in the late 1980s and 1990s, there was considerable disagreement among members of the Court. The well-known succession of cases started with Breavington v Godleman[4] in 1988. Some members of the Court held that the applicable choice-of-law doctrine in intra-national cases was mandated by the terms of the Constitution and to be found by applying a command allegedly inherent in s 118 (possibly with the aid of other constitutional provisions).[5] Other judges, however, refused to accept that suggestion. The latter group of judges became a clear majority as the 1990s wore on and the emotional and rhetorical strength of the appeal to s 118 and the spirit of the Constitution waned,[6] but some of the minority judges refused to bow to stare decisis and concede defeat.[7]
The recent decision in John Pfeiffer v Rogerson[8] answers many questions about the intra-national choice-of-law doctrine applicable to torts in Australia. In particular, it indicates that, as a rule, the lex loci delicti will be the controlling law in intra-national torts cases. This article, however, deals not with the detail of choice-of-law doctrine, but with the constitutional aspects of the decision in Pfeiffer, and, in particular, with the extent to which the Constitution directs the outcome reached in that case. As we shall see, there is still some room for uncertainty as to the precise content of the law in this area as laid down by the Court.
It is clear, however, that a variety of constitutional factors influenced the Court's conclusion that the lex loci delicti should be the controlling law. Thus, there was for the first time a clear majority of the Court for the view that the Constitution has some effect on choice-of-law questions in tort. The majority judgment in Pfeiffer did not limit the relevant constitutional factors to s 118,[9] although clearly that section was one important factor in its conclusion.
As a result of the constitutional influence now conceded, concern has been expressed that the decision in Pfeiffer might mean that large tracts of choice-of-law doctrine are constitutionally dictated and thus beyond the reach of legislatures if found wanting in some respects.[10] I certainly agree that it would be undesirable, in the words of Mason CJ, for the Court to 'spell out a rigid and inflexible approach from the language of s 118'[11] (or any other set of constitutional provisions). This is because, in the words of Professor Pryles, the 'elegance and simplicity of this approach [may be] deceptive in so far as it suggests a solution to all the problems of interstate conflict of laws.'[12] It is certainly possible to think of circumstances, even in torts, in which the lex loci actus is not appropriate.[13] One commentator even goes so far as to deny its appropriateness entirely, seeing it as creating the danger of importing sub-standard rules from other jurisdictions and imposing them on people with little or no relationship with those jurisdictions.[14] Even those with a more moderate view of the matter are prepared to accept that exceptions can be justified, however rarely.[15] Furthermore, the law of torts will continue to evolve in the future, which would make an inflexible approach to choice-of-law under as-yet-unknown tort law unwise.[16]
It would therefore be most unfortunate if, as feared, a rigid uniform solution were constitutionally mandated in this area of the law and were not susceptible of alteration in cases in which a better approach is possible,[17] or further definition might be required to cope with uncertainty relating to matters such as what counts as a tort and where a tort is committed.[18] The rule must even be open to complete revision if, after the time for consideration and in the light of the experience that were not available to the Court in announcing a change in the law, that is the option which commends itself to the legislature.
Despite the concern that has been expressed about over-constitutionalisation,[19] it is submitted that a detailed reading of Pfeiffer reveals that the Court has merely continued to accept—although without, apparently, knowing it—the same approach to the effect of the Constitution on the private law as Courts take in countries as diverse as Germany,[20] Canada and South Africa. This approach was adopted in Lange, and has now also been applied to choice-of-law in torts. In a nutshell, it conceives of constitutional values as pushing along the development of the common law, but without wholly constitutionalising it and thus rendering it beyond the reach of legislatures. This is a very sophisticated and well-thought-through approach that permits constitutional doctrine to influence the common law, without however forcing the common law to withdraw from areas it has traditionally regulated in favour of constitutionally dictated outcomes. The continued use of this approach by the Court in Pfeiffer is therefore to be welcomed, and shows that fears of an over-constitutionalisation of the private law are unfounded.
Elsewhere, I have described, in some detail, the German doctrine on the effect of constitutional rules on private law and compared it to the principles accepted by the High Court of Australia in Lange.[21] It is not necessary to repeat that discussion here, especially as this article is dedicated to one aspect only of that issue, namely, the extent to which the Constitution influences or dictates the outcome of common law disputes. Nor is it possible to consider here, in any detail, the German law of conflicts in intra-national cases, based as it is on an entirely different system of private international law.[22] A summary of the German doctrine on the effect of constitutional rules on private law is, however, in order.
The German doctrine, in summary, states that the numerous general clauses in the various Codes in operation in that country must receive a meaning that is influenced by constitutional values. Thus, for example, if a statute states that defamation is not committed by a person who is acting in the 'exercise of legitimate interests' (as does s 193 of the German Criminal Code, which also applies in civil cases of defamation), then, in determining what counts as 'legitimate interests', the Constitution's emphasis on the importance of freedom of speech in political and other public matters must be taken into account. This produces the result that the protected 'legitimate interests' include the citizen's legitimate interest in commenting on public affairs. Similarly, in deciding what is contra bonos mores and therefore illegal or unenforceable under various provisions of the codes, the relevant boni mores include those to be found in the Constitution, such as respect for human dignity and for the right of people to express their views.[23] The fact that a substantial part of the codes consists of generally worded clauses such as these rather than more precise provisions means that it is possible, in this way, to ensure that constitutional values are respected in the private law.
This does not mean, however, that a dispute under the civil (non-constitutional) law suddenly becomes a constitutional dispute, or that the outcomes of private law disputes are determined, to an undue extent, by constitutional provisions. As the Federal Constitutional Court emphasised in the leading case of Lüth, and has reinforced innumerable times since:
A dispute between private persons about rights and duties arising from constitutionally influenced norms of conduct of the civil law remains, substantively and procedurally, a civil-law dispute. It is the civil law which is interpreted and applied, even if its interpretation has to follow that of the public law and the Constitution.[24]
This is so even though—as the Court puts it slightly earlier in its reasons in terms which have a striking similarity to those used by the High Court in Lange[25]—'no civil-law norm can contradict it [the constitutional system of values]'.[26] All that happens is that interpretative discretions are used in order to ensure that effect is given to constitutional values. The exercise of the discretion, however, remains—although informed by constitutional values—a matter of civil (non-constitutional) law. This is an important conclusion in a system in which distinctions between the various departments of the law are more rigorously observed than in common law countries. The undoubted consequence of all this is that the German civil law could be amended by the legislature within the broad framework of constitutional validity—a conclusion which, as we shall see below, is again very similar to that reached in Lange. Thus, a theory has been found which permits the Constitution to influence the private law without determining it.
South Africa adopted the German jurisprudence under its interim Constitution of 1993. The majority judgments in du Plessis v de Klerk[27] marshal such a diverse range of reasons for deliberately following the German approach that they cannot possibly be summarised here. Some of them are clearly inapplicable in Australia, such as the text of the South African Constitution and the fact that both Germany and South Africa have specialist constitutional courts without general jurisdiction in private law. Nevertheless, the majority judges point to the need not to over-constitutionalise the private law by permitting too much of it to be determined by the Constitution, a point that certainly is also relevant in this country and to the question considered here.
The leading judgment of Kentridge AJ, for example, points out that '[t]he radical amelioration of the common law has hitherto been a function of Parliament' and that there was 'no reason to believe that Parliament will not continue to exercise that function'.[28] It was also thought to be important to permit the common law Courts to play their part in the development of the common law.[29] This surely applies a fortiori to the elected Parliament, as Ackermann J recognises:
Should Parliament wish to alter the law resulting from a direct application of the [constitutionally guaranteed] rights by this Court, it will have to amend the Constitution. I consider this to be a most undesirable consequence, needlessly inhibiting the normal piecemeal statutory modification of the common law.[30]
Ackermann J, too, concludes that constitutionally guaranteed rights should therefore be applied only indirectly to private law disputes, in the German manner, and points out at the same time that neither the Bill of Rights nor the broader Constitution was written with the adjustment of private rights in mind. Accordingly, there are no means to be found there of resolving the innumerable questions of private law that would be thrown up if it were assumed that the Constitution has a direct effect on the private law.
In South Africa, however, the adoption of the permanent post-apartheid Constitution in 1996 altered the text of the Bill of Rights considered in du Plessis, which returned South African law to the state of uncertainty that had existed before du Plessis.[31] In addition, an intra-national choice-of-law case in the area of torts has not yet emerged in South Africa.[32] The precise complications caused by the very ambiguous text[33] of the South African Constitution of 1996 are too great to permit a comprehensive treatment of them here. At the time of writing, however, the Constitutional Court of South Africa appeared to have re-confirmed its adherence to the German doctrine quite unambiguously, and as if the matter were no longer to be the subject of debate.[34] Moreover, it is worth noting that two writers have put in a strong plea for the Courts to avoid over-constitutionalising the private law by holding that the Constitution directly determines the outcome of a wide range of civil-law disputes. Noting that
there is pungent irony in the fact that those who claim to be personally committed to a progressive social and economic agenda, at the very moment when the legislature is for the very first time firmly in the hands of the majority of South Africans, would so energetically advocate a massive enlargement of judicial power,[35]
they point out that Parliament 'is more democratically legitimate than the judiciary'[36] and should therefore be the primary body entrusted with the amendment of the private law. Constitutionalising a wide variety of private law doctrines by declaring them to be mandated by the Constitution would, however, put them out of the reach of Parliament.
If this argument can be made in South Africa, it can be made in countries with a long,[37] proud and unbroken tradition of majority control of legislatures, such as Australia, with even greater force.
Canada, too, has applied a similar doctrine. It is assumed in Canada that the principal purpose of a bill of rights is to control the government, not private citizens. The Canadian Charter of Rights and Freedoms thus applies directly to the common law only when it is the government[38] that seeks to claim under the common law.[39] In relation to all other common law cases, the Supreme Court of Canada held in Hill v Church of Scientology of Toronto[40] that 'it is appropriate for the Courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter.'[41] The Court has emphasised that the Charter does not apply directly to the common law in disputes involving private litigants:
The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values.[42]
Thus, 'Charter values, framed in general terms, ... provide the guidelines for any modification to the common law which the Court feels is necessary.'[43] In accordance with this, the Court has indicated where the principal responsibility for the amendment of the private law lies by stating that '[f]ar-reaching changes to the common law must be left to the legislature.'[44] Canada, too, therefore, follows the same doctrine as in Germany and South Africa by permitting constitutional values to influence the development of the common law rather than allowing constitutional rights to determine (or disfigure) the content of the common law.
Canada, incidentally, has adopted a choice-of-law rule in intra-national disputes that is similar to that adopted in Pfeiffer, but the judgment of the Supreme Court of Canada in the leading case of Tolofson v Jensen[45] contains only the briefest consideration of constitutional law. Although Canada's Constitution contains no equivalent to s 118, it is still interesting to note that the lex loci delicti approach was adopted—as a general rule, subject to possible exceptions[46]—without the courts even needing to decide what the Constitution actually required in this area.[47] Intriguingly, Tolofson does not even appear in the case indexes of two recent leading Canadian works on constitutional law.[48] This is perhaps the best indication of the extent to which the issue of choice-of-law is seen in Canada as constitutionally determined.
In short, then, there is a consensus of opinion from vastly different courts, speaking a myriad of languages, subject to a variety of legal systems,[49] and on three different continents, that the private law must not be held to be directly controlled by constitutional rules. Rather, the constitution can be only an indirect influence on the development of the private law by the judges with responsibility for that task, and by Parliament. One important reason for this view, which is directly applicable in Australia, is that otherwise the democratically elected legislature will find more and more subjects closed to it because they will have been held to be determined by constitutional provisions which cannot be changed by the legislature, but only by the procedure adopted for constitutional amendments. Of all countries, Australia, with its time-consuming and—perhaps rightly—cumbersome procedure for constitutional amendments, is a country in which this consideration must have especial weight.
There are, however, two very important countries missing from the review which has just been conducted. One is the United Kingdom. It is missing simply because the courts of that country have not yet decided their approach to this issue. As the Human Rights Act 1998 came into force in England only in October 2000, the occasion for doing so has not yet arisen. It is probably fair to say, however, that the preponderance of academic opinion and such judicial dicta as exist favour the adoption of the German approach.[50]
Missing, too, is the United States of America, which adopts a mixture of approaches to this question, the common theme of which is, perhaps, that certain constitutional rights do have a direct effect on the private law. However, there is, as the High Court of Australia pointed out in Lange[51] and I have explained elsewhere,[52] one important difference between the United States and Australia: the inability of the Supreme Court of the United States to determine a uniform common law for the whole of the United States. The Supreme Court of the United States, having virtually no role in the development of the common law, cannot use the common law as a tool to ensure that constitutional values are respected in private law cases. It has to impose a constitutionally mandated rule if it finds aspects of the common law unsatisfactory. In this, the Supreme Court of the United States is faced with an obstacle which the High Court of Australia and the Supreme Court of Canada do not face at all, and which the constitutional courts of Germany[53] and South Africa face to a lesser extent only. Accordingly, the different set of doctrines adopted in the United States of America cannot be seen as relevant in Australia.
Even in the United States, however, where the Supreme Court is, for the reasons just explained, sometimes compelled to constitutionalise the private law in order to be able to change it, it has not done so in relation to the area of choice of law.[54] To be more precise: its original attempt at doing so was abandoned, as it could not do justice to the variety of complex factual situations that are possible in this area.[55] The only relevant constitutional requirement nowadays is
that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.[56]
Although presented as a rule about choice of law, this very minimal requirement is in truth nothing more than the functional equivalent of a rule about the extraterritorial legislative power of states—the equivalent, in other words, of the law laid down for Australia in Port MacDonnell Professional Fishermen's Association v South Australia,[57] not of Breavington and its successor cases on choice-of-law in tort.[58] There is therefore in the United States no constitutional requirement to apply the lex loci delicti if the criterion of sufficient connection is satisfied.[59] As the Supreme Court has noted:
[T]o apply blindly the traditional, but now largely abandoned, [lex loci delicti] doctrine ... would fail to distinguish between the relative importance of various legal issues involved in a lawsuit as well as the relationship of other jurisdictions to the parties and the occurrence or transaction.[60]
As a result of this, the picture presented by the American states is one of a variety of approaches to conflicts of law. There is no one uniform, constitutionally mandated rule for the whole of the United States (and the trend appears to be away from a simple lex loci delicti approach with no exceptions).[61]
The Supreme Court has also held that there is no constitutional reason why a state should not continue to designate statutes of limitations as procedural for conflicts of law purposes, noting that the Court will not 'embark upon the enterprise of constitutionalizing choice-of-law rules, with no compass to guide us beyond our own perceptions of what seems desirable.'[62]
There is, then, unanimous opinion in comparable jurisdictions that, in the interests of maintaining the capacity of the democratically elected legislature at an appropriate level, the common law rules on choice-of-law must be seen to be—at most—only indirectly influenced, and not directly controlled, by constitutional doctrines. It might be hoped, therefore, that the High Court of Australia's jurisprudence on this topic might be amenable to a similar interpretation. It might also be hoped that the High Court will avoid the failed American experiment of entirely constitutionalising the area. The next two sections of this article will suggest that, in fact, such an interpretation is not only permissible, but also required by the High Court's recent cases.
Lange indicates very clearly that the High Court of Australia conceives of the Constitution's effect on the common law to be primarily indirect. In other words, to use the terminology employed above, the common law's content is only influenced by constitutional values, and not directly determined by constitutional rights.
A contrast with the decision of the United States Supreme Court in New York Times v Sullivan[63] makes this point clear. In that case, the Court held that:
[C]onstitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.[64]
In other words, the United States Constitution reached down directly into the private law of defamation and imposed a new rule derived directly from the constitutional guarantee on the private law. As such, this rule was not susceptible of alteration by the legislature. This, as has been shown, is the usual approach of the Supreme Court of the United States to determining the effect of the Constitution on the common law. (In conflict-of-laws cases, it has simply determined that there is no, or very little, such direct influence.)
On the other hand, the High Court held in Lange that 'the Constitution itself confers no private right of defence'.[65] Rather, it held, the principal effect on defamation law of the constitutional guarantee of free communication on governmental and political matters is to influence the content of the common law's test for qualified privilege. This test is derived from an English case of 1834[66]—well before the implied freedom of communication in the Australian Constitution had been identified—and asks what is necessary for the 'common convenience and welfare of society'. In a manner similar to the influence of German constitutional values on the content of the phrase 'the exercise of legitimate interests' appearing in s 193 of the Criminal Code, a decision on what is for the 'common convenience and welfare of society' must be taken in accordance with the value of free speech which, the Court has held, may be impliedly discerned in the text and structure of the Constitution. Accordingly, the Court held in Lange, continuing to adopt the common law test, that:
The common convenience and welfare of Australian society are advanced by discussion—the giving and receiving of information—about government and political matters.[67]
We shall see shortly that the constitutional guarantee may prevent legislation from changing the conditions attaching to the defence of qualified privilege so that a sufficient level of free communication about governmental and political matters is no longer possible. However, there are several conclusive indications in the judgment that the common law nevertheless remains largely autonomous of the constitutional guarantee, and that accordingly there is still ample room for the legislature to adjust the law even in an area as important for democracy as free speech.
First, it is stated in the judgment that the development of the common law may 'go beyond what is required for the common law to be compatible with the freedom of communication required by the Constitution'[68] and also protect discussions about the affairs of other countries or even the United Nations. However, this will attract the common law's notice only and not that of the constitutional guarantee, because the constitutional guarantee is concerned only with Australian government and politics. What must therefore be happening here is that the common law defence of qualified privilege is moving, in relation to the affairs of other countries and the United Nations, towards a greater degree of protection for free speech under the influence of constitutional values, which nevertheless do not directly apply in such cases and therefore could not invalidate legislation restricting the right of free speech to an extent that, in relation to Australian government and politics, would fall foul of the constitutional guarantee.
Secondly, the same test for common law qualified privilege in governmental and political matters was applied by the Court in Lange to discussions at state, territory and local government level, whether or not federal interests were involved and the protection of the federal Constitution could therefore be sought in a particular case.[69] Thus, the extent of the influence of constitutional values on the common law defence of qualified privilege can be determined even though it has not yet been established whether there is a constitutional rule protecting a constitutional right to freedom of speech in 'purely' state matters (that is, those without any federal implications at all).[70] This is possible because, as the Canadian case law shows, the degree of influence of constitutional values on the common law is a different question from the extent of constitutional rules protecting rights.
Thirdly, and finally, the Court makes it plain that there continues to be a distinction between the common law, as influenced by constitutional values, and constitutional rights, which may be used to invalidate legislation. The Court states:
In any particular case, the question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question has a different significance from the answer to the constitutional law question. The answer to the common law question prima facie defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of those Territories whose residents are entitled to exercise the federal franchise. That is because the requirement of freedom of communication operates as a restriction on legislative power. Statutory regimes cannot trespass upon the constitutionally required freedom.
However, a statute which diminishes the rights or remedies of persons defamed and correspondingly enlarges the freedom to discuss government and political matters is not contrary to the constitutional implication. The common law rights of persons defamed may be diminished by statute but they cannot be enlarged so as to restrict the freedom required by the Constitution.[71]
Later on in its judgment, however, the Court appears to modify this slightly by stating that a statutory provision requiring the defendant to prove, over and above the common law requirements, that it did not know of the falsity of its statements and acted without recklessness may not infringe the freedom of communication which the Constitution requires.[72]
There is, therefore, a considerable leeway within which statute is permitted to deviate from the common law, even though the content of the common law is influenced by constitutional considerations. This, therefore, also shows that those constitutional considerations do not determine the content of the common law, but merely guide it in a particular direction. Constitutional rules will be directly applicable not to the common law, but only to statutes which purport to restrict the possibility of free speech in governmental and political matters to an extent which is not compatible with the constitutional principle.
Clearly, therefore, any alteration of the common law by statute would be permissible if it increased the types of speech that cannot be the subject of an action for defamation and thus made the defendant's task easier, that is to say, enlarged the possibilities for successfully defending a defamation action—either by creating entirely new defences or removing restrictions from existing ones. It must also be within the legislature's range of options to abolish liability in defamation entirely.[73] There is also a limited possibility, as shown by the Court's remarks on a possible requirement of proof of ignorance of falsity and lack of recklessness, that statute may intervene to make the defendant's task harder by requiring it to prove things additional to the requirements of the common law defence. Finally, it is no doubt possible for the legislature to regulate procedural and evidential matters relating to defamation within broad limits.
Given the constant need for re-adjustment and improvement in the law of defamation, this is just as well. Although one author has recently advocated that the Australian Courts should adopt a position much closer to those of the American Courts,[74] the chief disadvantage of doing so would be the 'freezing' of constitutionalised common law doctrine in its current form, even though it may well be capable of further improvement and refinement. In this respect, the American experiment does not give grounds for trust that judges are likely to succeed where others have failed and come up with a perfect defamation law which can then be constitutionally protected from amendment.[75]
However, there is no need for alarm, which would be the proper reaction to any proposed adoption of the much-criticised American doctrine in Australia.[76] This is because the common law of defamation, as developed in Lange, now does not conflict with the Constitution. There is therefore no further occasion for importing constitutional standards into it at all. The question is not so much whether the common law, as an abstract entity, is governmental in nature, but whether any further adjustments are required to any particular part of the common law by reason of particular constitutional provisions. No further such adjustments being necessary, the impact of the Constitution on the common law of defamation will not need to be determined again.
Furthermore, no one constitutional provision directly requires any alteration of the common law of defamation; it is more a question of the sense of the document as a whole, and the implications of it and of the type of society and polity it creates, for the further development of the common law as such. If the Constitution did intend to alter the common law directly, we might expect that it would say so with reasonable plainness. The United States Constitution expressly states that it protects free speech.
Even at the theoretical level, however, objections can be raised to considering not the state's enforcement of the common law in the strict sense (which clearly is governmental; when the Sheriff seizes property and sells it to satisfy a judgment debt, that is a governmental action), but the rights created between citizens by the common law as the product of governmental action. It may be questioned whether it would be correct to conceive of common law rights, such as the right to exclude strangers from one's property or to talk about politics, as established, rather than merely recognised, by the government. Surely such a right did not change in nature or source when the Australian Constitution came into effect, or when new courts were established for its enforcement.
At all events, this question, for the reason given, is unlikely to arise again in relation to defamation law. In the area of choice of law, the arguments for permitting only an indirect influence of the Constitution on the common law are even stronger, given that freedom of speech is much more essential to the maintenance of the system of the government established by the Constitution than is choice-of-law doctrine, and that therefore the protection given to the latter by the Constitution is most unlikely to be greater than that given to the former.
There is clearly, under the Lange doctrine, very considerable room for legislatures to adjust the law of defamation to meet changing circumstances and the different requirements of different Australian jurisdictions. (Defining with precision the outer boundaries of this is a task for another day.) On examination, it is equally clear that Pfeiffer yields the same result. Indeed, the area of law considered in Pfeiffer is an even better case for continued legislative competence, because—while very important—choice-of-law doctrine does not play such a crucial role in the maintenance of democracy as does freedom of speech. Therefore, the restrictions on the legislature's making the law less protective of free speech under the Lange doctrine are likely to correspond to much weaker restrictions on the legislature's power in the area of choice of law under Pfeiffer.
It is apparent that the joint judgment in Pfeiffer—that of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ—is a compromise. This is not a criticism. Rather, the justices should be praised for being able to come up with a judgment in this case—not to mention other recent cases—which commands such a wide level of support and thus contributes both to reducing the reading required of academics and practitioners and, even more importantly, to the certainty of the law.[77] This is especially so after the confusion that was caused chiefly by the first of the Court's recent essays into the area of choice of law in Breavington[78] but also by subsequent cases in the 1990s.[79]
Nevertheless, the judgment in Pfeiffer does, on a formal level, leave some issues open, one of which is the precise extent to which the outcome in choice-of-law cases is dictated by s 118 and other constitutional values, provisions and outcomes. It is suggested, however, that a close reading of the judgment reveals that the view that s 118 might directly determine the choice-of-law rule within Australia, which the majority of the Court seemed to reject unambiguously in McKain v R.W. Miller & Co. (S.A.)[80] and Stevens v Head,[81] has not experienced a miraculous recovery. Rather, the direct role of the constitutional provision is limited; its main role is as a guide-post in the evolution of the common law. There is therefore no reason to fear an over-constitutionalisation of choice of law in tort. The Lange doctrine has been maintained.
There are some broad hints that may be found in Pfeiffer that this is the case. As early as the third paragraph of the joint judgment, their Honours state that 'the common law of Australia includes the rules for choice of law, ... subject to statutory modification.'[82] It is not the Constitution, their Honours say, that contains the rules; it is the common law. Nor could the doctrines of choice of law be modified by statute if they were dictated by the Constitution. Later on in the judgment, their Honours, after repeating the Lange doctrine relating to the need for the common law to conform to the Constitution which was analysed above, state that the question is 'whether the common law with respect to the choice-of-law rule for Australian torts involving an interstate element should now be modified.'[83] The statement that it is the common law that is being modified—as distinct from having a constitutional rule imposed on it—appears in at least four other places in the judgment.[84]
Having again repeated that the 'relevant rules are rules of the common law',[85] the judgment turns to the question of the precise role of s 118. The Court notes that s 118 does not
state a rule which would dictate what common law choice of law rule should be adopted. It may well be, however, that s 118 (and in some cases s 117, or even s 92 in its protection of individual intercourse) deals with questions of competition between public policy choices reflected in the legislation of different States—at least by denying resort to the contention that one State's courts may deny the application of the rules embodied in the statute law of another State on public policy grounds.
In Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd, Rich and Dixon JJ and Evatt J suggested that s 118 precludes the courts of one State from concluding (as the primary judge had in that case) that the application of the statute of another State 'would at the stage and in the circumstances in which it was invoked work manifest injustice to or, in effect, a fraud on one of the parties'. And in Breavington, six members of the Court appear to have accepted that s 118 may preclude the refusal of one State to apply the law of another on the grounds of public policy where the law of that other State is otherwise applicable. However, it may also be that s 118 suggests that the constitutional balance which should be struck in cases of intra-national tort claims is one which is focused more on the need for each State to acknowledge the predominantly territorial interest of each in what occurs within its territory than it is on a plaintiff's desire to achieve maximum compensation for an alleged wrong.[86]
Before considering the matters expressly left open by this passage, the first thing to notice about it is that it very clearly endorses the Lange conception of the common law and the Constitution as two independent spheres of law which have different functions and different contents. This passage indicates clearly that the extent to which constitutional values push the common law will not necessarily coincide with the protection granted to the common law by the Constitution against alteration by the legislature. The direction of movement will be the same in both cases, but the extent of the movement may well not be.
It is of no importance, therefore, that, owing to its wording, s 118 certainly cannot apply, as a constitutional rule, to cases which do not involve the laws of different states at all (such as those involving competition between the laws of two Territories).[87] Nor is it necessary to decide whether it is directly applicable to cases involving competition between the laws of a state and the laws of a territory (as was the case in Pfeiffer). The new choice-of-law rule can be stated to operate generally in all 'intra-national tort claims' because the extent of the influence of constitutional values can be greater than the extent of the 'directly applicable' constitutional rules to which they correspond.[88] Thus, common law qualified privilege can be expanded to include statements about non-Australian politics, and the choice-of-law rule can be expanded beyond the precise area of coverage of the rule contained in s 118 and thus include the facts dealt with in Pfeiffer.[89]
Later on in the joint judgment, their Honours state:
The matters we have mentioned as arising from the constitutional text and structure may amount collectively to a particular constitutional imperative which dictates the common law choice of law rule which we favour. It may be that those matters operate constitutionally to entrench that rule, or aspects of it concerning such matters as a “public policy exception”. If so, the result would be to restrict legislative power to abrogate or vary that common law rule. However, we leave these questions open, not the least because there were no developed submissions upon them.[90]
Formally, then, the question whether (and, if so, to what extent) the new choice-of-law rule is constitutionally required, as distinct from constitutionally suggested, is left open by this passage, as indeed it was by the passage quoted earlier. Nevertheless, it is hard to read these extracts without coming to the conclusion that the Court is much more enthusiastic about ruling out the 'public policy exception' referred to in the first extract by means of the direct application of s 118 than it is about permitting s 118 to dictate a complete choice-of-law regime for Australia. In several places, the Court states unambiguously that it is the common law that it is developing and applying. It makes specific reference to Lange, in which, as we have seen, the common law and the Constitution were confined to their respective spheres of influence. Even in contemplating a role for s 118 beyond the 'public policy exception', the Court states, at one point, that s 118 might merely 'suggest' a particular solution. And it makes no suggestions about what precisely that additional role might be.
In the passage just quoted, their Honours mention the 'matters we have referred to'. This is a reference to a list of matters in the joint judgment which suggest the choice-of-law rule finally adopted. The list, summarising, includes the integrated structure of Courts created by the Constitution, with one final appellate Court, ss 117 and 118, the territorial basis of sub-national legislatures and 'more generally, the nature of the federal compact'.[91] These matters are not precise enough to justify a hard-and-fast rule. They do, however, justify an approach to moving the common law in one direction rather than another.
Slightly less straightforward than this is the Court's brief consideration of what the position in federal jurisdiction would be if s 80 of the Judiciary Act 1903 (Cth) had not been enacted and thus did not pick up the common law choice-of-law rules. The Court speculates that, in such a case, '[a] question would have arisen as to whether the common law choice-of-law rules, as later formulated in these reasons, nevertheless apply in federal jurisdiction as part of the ultimate constitutional foundation.'[92]
This is a somewhat cryptic statement, which leaves the precise source of such rules uncertain. It is hard to imagine, however, that the last words of the extract quoted were written in ignorance of the title of the well-known essay by Dixon CJ entitled 'The Common Law as an Ultimate Constitutional Foundation'.[93] It is, of course, not possible to do justice here to the richness of Dixon CJ's essay and of the commentaries which have been written on it. The important point for the investigation conducted here is that the Court appears to be saying nothing much more than that, in a legislative vacuum, the common law will take over. The common law is, as Dixon CJ pointed out in his essay, a system of law which is anterior to the Constitution and into which, so to speak, the Constitution was born. Therefore, the common law, being in existence before the Constitution, would be taken to have contained a rule that is capable of adaptation for the solution of choice-of-law problems in federal jurisdiction even in the absence of a statute expressly applying the common law. This dictum too, therefore, does not suggest that the Constitution directly provides a choice-of-law rule in intra-national disputes.
Having thus analysed the text of the joint judgment so far as relevant to the issue considered here, it is now proposed to 'de-construct' the joint judgment, before turning to the other judgments and then drawing conclusions from the analysis. By going behind the solid wall of five justices in agreement, their individual views on the question now under consideration—namely, whether s 118 directly determines the rule in intra-national conflicts cases, or whether it merely influences the direction in which the common law is moving—will be sought.
There are only two judges in Pfeiffer who were also on the bench during some or all of the earlier series of three cases dealing with the effect of the Constitution on choice-of-law rules. One of them is McHugh J.[94] In the 1990s, his Honour was very clearly of the opinion that the Constitution did not determine choice-of-law doctrine, but that it was, rather, a common law matter. He was one of the coalition of Brennan, Dawson, Toohey and McHugh JJ, which provided a joint judgment to that effect in both McKain[95] and Stevens v Head, for example.[96] The fact that the content of the choice-of-law rules was altered in Pfeiffer does not suggest in any way that his Honour has altered his opinion on the more basic question of the source of those choice-of-law rules—the common law rather than the Constitution.
The other survivor is Gaudron J. During the 1990s, her Honour was certainly of the view that choice-of-law questions were constitutionally determined.[97] She even went so far as to hold that the contrary view was 'wrong and fundamentally so'[98] and thus not deserving of being followed even once endorsed by a majority of the Court.[99] However, one has the impression that it was not the refusal to admit that there was a constitutionally imposed choice-of-law rule, but the conclusion that the rules of private international law applied in intra-national disputes which was most offensive to her Honour and her conception of the unity of the Australian legal system[100]—which is, of itself, surely a constitutional value in the Canadian sense rather than a constitutional rule.
In Stevens v Head, her Honour, while still preferring the constitutional path, proffered an alternative method of reasoning to the conclusion that the lex loci delicti governed—via the common law rather than the Constitution.[101] The suggested alternative path, strongly contrasted with the then-preferred constitutional path, is phrased in a manner that clearly suggests the solution adopted in Pfeiffer. And in Commonwealth v Mewett,[102] her Honour again stated her disagreement with the then-current doctrine applying private international law doctrines in Australia and added:
In particular, it is incongruous that, by operation of the choice-of-law rules developed by the common law of England, "the one set of facts occurring in Australia may give rise to different legal consequences depending on the location ... of the court in which the action is brought''.[103]
All this suggests that La Forest J in the Supreme Court of Canada was right to consider that the High Court in Breavington was more concerned with underlying issues of policy than with technical issues about the source of conflict-of-law norms.[104] It is the result and the conception of the nature of the Australian legal system of the majority in McKain and Stevens which Gaudron J found particularly offensive rather than the precise source of the applicable norm.
That result and that conception have now been rejected by Pfeiffer, and the concept of a unified legal system as a factor in intra-national choice-of-law has been unequivocally endorsed by the Court in that case. It may well be thought, then, that her Honour's views have further[105] developed so that it is no longer necessary to employ a direct constitutional command, supposedly discernible in the words of s 118 or other constitutional norms, in order to reach the result that her Honour favours and to endorse her conception of unity.
As far as the other judges in the joint judgment are concerned, there appears to be no statement of their views on the question considered here in their capacity as members of the High Court. But it is still possible to glean the views of Gleeson CJ and Gummow J from other sources.[106] Gleeson CJ's judgment as Chief Justice of New South Wales in Brownlie v State Pollution Control Commission[107] does not appear to indicate any dissatisfaction with the proposition that s 118 does not provide a directly applicable choice-of-law rule.[108] Nor does the judgment of Gummow J in the Federal Court in David Syme & Co v Grey.[109] Although both these judges were bound by stare decisis to follow McKain and Stevens v Head, they could nevertheless have expressed any dissatisfaction with the operation or reasoning of the judgments in those cases, as indeed Kirby P did in Thompson v Hill,[110] a case to which reference will be made again later. But they chose not to do so; the only qualification of note is that Gummow J stated in Syme that s 118 might directly prevent the 'public policy exception' from being applied within Australia.
This is somewhat similar to what was said in the joint judgment in Pfeiffer, and indeed there are other reasons, beyond his Honour's undoubted expertise in the area, to suspect that its chief author might be Gummow J. Passages in Pfeiffer adopt very similar arguments to those in a learned article published by his Honour in 1995, just as he was being promoted from the Federal Court to the High Court of Australia, in the South Carolina Law Review.[111] Thus, for example, both Pfeiffer and the article include the somewhat pedantic expression of preference for 'choice of law' over 'conflict of law' as the name of the area of law;[112] both state that the term 'conflict', in a federation, describes inconsistency such as arises under s 109 of the Constitution;[113] and in each case the language and arguments employed appear to be quite similar. Leaving this matter aside, however, it also seems plain that Gummow J, speaking in the article in which he had no reason to take account of anyone's views but his own, endorses the view that s 118 is not directly determinative of a choice-of-law rule.
It is again not possible here to summarise the article or to attempt to do justice to the degree of learning and thought displayed in it. The theme that s 118 merely influences the common law rather than directly supersedes it can nevertheless be said clearly to run throughout the article. At the start of his consideration of Australian law, Gummow J states that it is possible to treat s 118
as a constitutional imperative directly applying that which the common-law choice-of-law principles of private international law (as understood from time to time) identify as the lex causae. That ...in my view is not a conclusion indicated by the constitutional text, at least in Australia.[114]
Nevertheless, as his Honour goes on to point out almost immediately after the passage just quoted, confusion will be caused by treating intra-national choice-of-law questions in the same way as those involving other countries.[115] In Pfeiffer, too, a distinction is drawn early on in the judgment between these two types of cases.[116]
Gummow J could hardly be in favour of 'freezing' the common law by constitutionalising it, for as he says, it 'has required (and still requires) qualification or abrogation by statute to render it acceptable'.[117] Thus, the apparent sympathy his Honour has for Deane J's views in Breavington is qualified by the recognition that they 'do not depend upon, and indeed may be independent of, any perceived operation of s 118'.[118] Later on again, Gummow J asks rhetorically, '[g]iven the unitary nature of the common law in Australia, what would be the point of mandating by s 118 the [choice-of-law rules of the common law]?',[119] and adds that he does not wish to 'deny the force' of Mason CJ's suggestion in Breavington that s 51 (xxv) might support federal legislation on the topic.[120] In case this might be misunderstood, his Honour states further that 's 118 assumes the existence of constitutional conflict rules without specifying their content'[121] and that s 118 is 'indicative of a constitutional choice-of-law rule', 'revis[ing] common-law choice-of-law rules to reflect a national federal legal structure'.[122] All this sounds very much like the conclusion reached above about the indirect effect of constitutional provisions on the common law affirmed by Pfeiffer. This doctrine, as was stated, had its origin in Lange, a judgment in which Gummow J also joined.
All the judges in the joint judgment, therefore (with the exception of Hayne J, who does not appear to have considered the issue in print before now), have expressed themselves individually in a manner which, at the very least, does not indicate dissatisfaction with the 'indirect effects' doctrine, and, in some cases, definitely appears to favour it. What then of the other two judges in Pfeiffer? Callinan J quite clearly does not favour any determination of choice-of-law doctrine by constitutional values, holding, as he does, the view that the old law should be maintained and that s 118 has nothing to do with the question. His Honour would deny to that section even its role of preventing the 'public policy exception' from applying within a federation,[123] following US precedents which, perhaps, are appropriate in a country as diverse as the United States, which has over fifty separate jurisdictions instead of fewer than a dozen, and which is much more heavily populated.
Kirby J is an interesting case study, for it is clear that his Honour has followed, in the development of his views on this matter, a path not dissimilar to that postulated for Gaudron J earlier. As recently as 1995, the President of the Court of Appeal for New South Wales issued, in Thompson v Hill,[124] a strong denunciation of the majority's approach in McKain and Stevens v Head as 'increasingly odd and even sometimes offensive on its face' as well as 'highly inconvenient, often disputed and also criticised',[125] even while holding that he was bound to follow that reasoning. His Honour expressed his 'respectful preference for the minority opinions in the High Court of Australia concerning s 118 of the Constitution'.[126]
In Pfeiffer, however, we discover that it was, all along, not the precise place of s 118 that mattered so much to his Honour. Rather it was the result, together with the symbolism of reaching that result in a manner which respected the fundamental unity of the Australian legal system. Thus, Kirby J, now a much mellower character, unequivocally endorses the Pfeiffer 'indirect effects' doctrine, as presented above, almost at the start of his reasons, stating that:
Neither the provisions of the Constitution nor the implications necessarily derived from its language and structure yield a solution. Instead, the common law should be re-expressed to take into account the terms of the Constitution, the federal system of government it establishes and the Judicature for which it provides.[127]
It would be hard to find a better statement of the 'indirect effects' doctrine. His Honour is, further, anxious not to permit the Constitution directly to dictate a choice-of-law rule, as such a rule would be 'insusceptible to ready legislative amendment or variation'.[128] Thus, his Honour, in effect, agrees with the majority that, to permit the development of the Australian common law in accordance with constitutional values, 'it is neither necessary nor appropriate in this appeal to resolve the outer limits of [s 118's] specific obligations.'[129]
There is, therefore, an overwhelming consensus among the justices of the High Court of Australia that, whatever the role of s 118 might be, it does not dictate a choice-of-law rule in tort (or elsewhere). Thus, the fears of an over-constitutionalisation of the private law that have been expressed elsewhere are simply groundless. As we have seen, the Court does not rely on a hard-and-fast rule allegedly derived from s 118, but on the 'values' approach exemplified by a list of constitutional values merely influencing the common law.
That does not mean that s 118 does not provide any black-letter rules for us, but merely an approach. As well as its important evidentiary role,[130] there is, as we have seen, considerable support in obiter dicta[131] of both present and past judges of the High Court for the view that it would prevent one state from refusing to apply the laws of another on public policy grounds. This view, which it has not yet been necessary to test in this country in a case whose result might depend on its correctness, does not deserve the same condemnation that a sweeping choice-of-law rule constitutionally imposed by s 118 would deserve.
This is for at least two reasons: first, it would be a rule about public policy and thus about the exercise of public power, a topic with which the Constitution is concerned. It would not be a rule solely about the private law, a topic with which the Constitution is not concerned. Secondly, the rule against applying the 'public policy exception' would be a rule with a relatively confined area of application. Rather than ranging all over the private law and immunising vast tracts of it from legislative change, it would merely prevent one particular plea from being heard. Such a rule, therefore, would not completely prevent the adjustment and refinement of the common law by legislation in the difficult area of choice of law.
That is not to say that the 'public policy exception' will always be easy to apply, even if it does arguably reflect the nature of the Australian federation and give effect to the respect due by one part of that federation to the decisions of other parts. It is easy to imagine situations in which its application might cause considerable difficulty, and, indeed, in which one state is asked to enforce a civil debt for conduct 'which may even amount to an offence against the law of that State'.[132] If, for example, one state decriminalises prostitution and another, in a fit of moral indignation, toughens the law against it, could a person sue in that second state for a debt incurred to a prostitute in the first? That might be offensive to a great number of people in the second state. So might a suit in the second state, for example, in the tort of inducing (a prostitute's) breach of contract in the first state. But at least the question would be one involving aspects of public law—the extent to which the public policy of a state must be applied—and not merely a question of private rights. Whatever the answer might be, it would therefore be appropriate to consider constitutional rules as supplying some or all of the answer.
There are other tasks which s 118 can legitimately perform without occupying the whole field of choice of law. It has been suggested on occasion, for example, that it may also be used to overcome the reluctance of the Courts of one state to apply the revenue and penal laws of the others.[133] For the reasons just given, this, too, seems to be a task which s 118 can legitimately be said to perform, although it is not within the scope of this article to attempt to lay down the desirable shape of choice-of-law doctrine in Australia, but merely to argue that it is not constitutionally determined.
Equally, the question whether the federal legislature could, under s 51(xxv) of the Constitution, enact choice-of-law principles for the whole of Australia, even in cases that fall outside federal jurisdiction, is not a matter considered here.[134] Although, as was mentioned above,[135] Mason CJ seems to have indulged in the judicial luxury of suggesting—without finally deciding—that that is the case, there is no position on this that commands the support of all. If the Commonwealth cannot change the choice-of-law rules for tort set out in Pfeiffer by legislation under s 51(xxv), it is certainly the case that the states can.[136] And there is also the possibility of uniform legislation, as the Australian Law Reform Commission recommended in 1992, although unfortunately the issue of choice-of-law rules does not generally feature highly in the public concerns to which politicians respond. Finally, if the Commonwealth cannot legislate over the whole field of choice-of-law under s 51(xxv), then it can clearly do so to the extent that its other powers permit, and (as we have already seen) in federal jurisdiction.
The real question arising from Pfeiffer is not the extent of legislative power under s 51(xxv)—the case rightly says virtually nothing about this irrelevant issue—but whether the doctrine as expounded in that case places any limits on the changes that competent legislatures could make to the private law. It will be recalled that Lange states that the legislature could not, in relation at least to 'federal' defamation cases, shift the balance too far in favour of the plaintiff (the defamed party) without the necessary legislation falling foul of the implied freedom to communicate on governmental and political matters. The analysis above suggests, however, that any similar restrictions flowing from s 118 would have to quite minimal. In conclusion, it is proposed to reinforce that analysis by an appeal to what is not said in Pfeiffer and to factors external to the judgment in that case.
First, however, it must be recalled that, on a formal level, the joint judgment leaves open the question of the extent to which legislatures might be restricted by s 118. However, it was suggested above that a broad hint is contained in their Honours' statement that s 118 may operate to prevent legislatures from changing only 'aspects of [the Pfeiffer choice-of-law rule] concerning such matters as a "public policy exception"'.[137]
Secondly, as we have seen, there is much to suggest that the justices do not now consider s 118 to be a source of direct constitutional influence on the private law to any degree at all. There is certainly little sign that they consider it to be some sort of great constitutional guarantee that the lex loci delicti will be applied in all intra-national torts cases. Indeed, it might be thought absurd even to consider s 118 the source of a personal right had not Deane J in Street v Queensland Bar Association[138] quite clearly done so.[139] However, as Professor Tribe points out in relation to the equivalent clause in the United States Constitution, 'a non-waivable federalism-based restriction on state power need not involve anything like an individual "right''.'[140] Thus, even if s 118 does prohibit the application of the 'public policy exception', there is no reason to treat it as a thorough-going 'right' to the lex loci delicti.
Certainly, the language of s 118 does not suggest that it is intended to create a personal right: even in Breavington, Wilson and Gaudron JJ were unable to point to any language in the Constitution suggesting that it expressly dealt with the matter.[141] The Convention Debates are silent on this matter as well,[142] and thus give no indication that s 118 was thought of as an important provision of the Constitution containing in itself a great constitutional guarantee. It is noticeable that Deane J's dictum in Street is not even mentioned in Pfeiffer. Nor is there any sign of an implied right to the lex loci delicti based on the 'text and structure of the Constitution'[143]: as we have seen, Kirby J, not normally reluctant about drawing implications, states expressly that 'neither the provisions of the Constitution nor the implications necessarily derived from its language and structure yield a solution',[144] and the joint judgment does not give any cause to suspect that this is a lone view.
There is, therefore, a contrast with the constitutional right considered in Lange: that right protects one of the most essential features of our system of government—free communication on governmental and political affairs—without which democracy is impossible. Therefore, it is appropriate to have a strict rule preventing the legislator from trespassing on the constitutionally protected freedom to an undue extent and thus 'running counter to constitutional imperatives'.[145] The constitutional value considered in Pfeiffer, on the other hand, is clearly an important feature of the Australian system, but it is not at the heart of the system of government required for democracy to survive, as is shown by the lack of a unified common law and choice-of-law rule in the United States, one of the earliest modern democracies and the first modern federation. There is therefore no constitutional right to the lex loci delicti in Australian law.
Not only is there no such constitutional right; it is also the case that the conclusion that s 118 imposes relatively few limits on the legislature should cause no surprise. This, again, is simply because s 118 is not as essential to the existence of the Australian federal democracy as the value of free political discussion embodied in the constitutional provisions from which the Lange implication is derived. Canada, as was pointed out above, does not even have an equivalent to s 118, but it is a federal democracy nevertheless. Accordingly, if we come to the conclusion that s 118 indicates an approach to bigger issues rather than lays down a rule about them, that is merely a conclusion that accords with its place in the scheme of the Constitution.
Thirdly, it is true that the judgment in Pfeiffer emphasises the need for 'certainty and uniformity of outcome no matter where in the Australian federation a matter is litigated, and whether it is litigated in federal or non-federal jurisdiction.'[146] This, of course, refers in the first instance to the choice made by the choice-of-law rules. But, to the extent that it might be read as suggesting that those rules themselves must be uniform across Australia, even if created by state legislation, it is important to appreciate that—as their Honours point out shortly after the passage quoted—uniformity is a feature of the common law choice-of-law rules as established in Pfeiffer. Nothing is said here about the restrictions on legislatures. The common law is always uniform within Australia, as is very well known. There is therefore no reason to think that the desire for uniformity springs from a feature special to s 118: it is merely the result of the fact that the rules are part of the common law.
This is not to say that uniform legislation is not desirable. But it is not required by the Constitution. One state can validly alter choice-of-law rules under Pfeiffer.
Needless to say, problems could arise if two states adopted different rules and each of the states, in a particular situation, required disputes to be determined under the other state's laws. This renvoi-like situation, however, is most unlikely to arise in Australia. If it does arise, it can be remedied by existing rules of law[147] and by inter-governmental discussions leading to legislation. But it is not only probable that any legislative adjustments to Pfeiffer will not reverse the basic lex loci delicti approach; it is also the case that the number of jurisdictions in Australia is reasonably small, so that co-operation between them to avoid such farcical situations—perhaps even uniform legislation to adjust Pfeiffer, if such adjustments become necessary[148]—can be expected. Certainly, denying to legislatures the ability to change the common law laid down by Pfeiffer would not only be inconsistent with the fact that, as was said in the Engineers' Case,[149] 'possible abuse of powers is no reason in British law for limiting the natural force of the language creating them'. It would also be a wild over-reaction to the mere possibility of some error being made by the legislature.
Fourthly, it is, as was pointed out above, quite clear that the constitutional command embodied in s 118 is applicable only to cases involving at least one state, and not to cases involving the territories. It would therefore create an undesirable asymmetry if the powers of legislatures in territories differed markedly from those in the states. This would be all the more surprising given that the Constitution generally permits the states greater legislative competence than it permits to the territories.
For these reasons, then, it is suggested that Whitelaw's view that s 118 sets only very broad outer limits to the exercise of choice-of-law legislative power is likely to be correct.[150] Section 118, as she suggests, may well prohibit one jurisdiction from taking the completely egocentric approach involved in decreeing that the lex fori is to govern all disputes before the Courts of the jurisdiction concerned. This could hardly be said to be giving 'full faith and credit' to the existence of other legal systems in a federation; it is a flat denial of them. Similarly, it is possible—although, perhaps, slightly less easy to justify on the text of s 118—that that provision might impose 'at least some limitation on what may be classified as procedural'.[151]
These limitations are, however, extremely unlikely ever to be applied, as no Australian legislature is likely to be silly enough to desire to enact legislation that might transgress them. At all events, Pfeiffer, interpreted correctly, appears to confirm that legislatures can adjust the choice-of-law rule declared to be part of the common law in that case within broad limits. And, as has been shown in this article, that is as it should be.
[*] The author wishes to thank Emeritus Professor Leslie Zines and the anonymous reviewer for their comments on the draft of this article. Needless to say, any remaining errors or infelicities are the author's alone. Some final updating of footnotes was carried out while the author was studying in Germany under the University of Adelaide’s Small Research Grants Scheme, the support of which is gratefully acknowledged.
[1] [1997] HCA 25; (1997) 189 CLR 520.
[2] Except, it would now seem, Callinan J: see Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1. It is suggested, however, that his Honour's reservations expressed in that case chiefly relate to whether the implication identified in Lange exists at all, and not with the precise manner of its effect (if it exists) on the common law. Kirby J, for his part, defends the Lange implication in his reasons (eg at 57), but again it would be unwise to read anything into the brief references by his Honour to the issue considered here, which was not dealt with directly.
[3] [2000] HCA 36; (2000) 203 CLR 503.
[4] [1988] HCA 40; (1988) 169 CLR 41. The other cases were McKain v RW Miller and Co. (SA) [1991] HCA 56; (1991) 174 CLR 1 and Stevens v Head [1993] HCA 19; (1993) 176 CLR 433.
[5] See Stevens v Head [1993] HCA 19; (1993) 176 CLR 433, 464; Georgina Whitelaw, 'Interstate Conflicts of Laws and Section 118' (1994) 5 Public Law Review 238, 245. For the sake of simplicity, reference is usually made below only to the most frequently cited provision, s 118.
[6] Janey Greene, 'Choice of Law in Tort—the Song that Never Ends' (1998) 26 Federal Law Review 349, 358. For a sample of the criticisms levelled at the doctrine here discussed, see Edward Sykes and Michael Pryles, Australian Private International Law (3rd ed, 1991) 326-8.
[7] Stevens[1993] HCA 19; , (1993) 176 CLR 433, 461f (Deane J), 464f (Gaudron J).
[8] [2000] HCA 36; (2000) 203 CLR 503.
[9] See the list at [2000] HCA 36; (2000) 203 CLR 503, 535 to which reference will be made again below.
[10] Adrienne Stone, 'Choice of Law Rules, the Constitution and the Common Law' (2001) 12 Public Law Review 9, 11.
[11] Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 83.
[12] Michael Pryles, 'The Law Applicable to Interstate Torts: Farewell to Phillips v Eyre' (1989) 63 Australian Law Journal 158, 172. See also Breavington[1988] HCA 40; , (1988) 169 CLR 41, 151; Elizabeth James, 'Case Note: John Pfeiffer Pty Ltd v Rogerson: The Certainty of 'Federal' Choice of Law Rules for International Torts: Limitations, Implications and a Few Complications' [2001] SydLawRw 6; (2001) 23 Sydney Law Review 145, 145.
[13] Australian Law Reform Commission, Choice of Law, Report No 58 (1992) 59-62; Pryles, above n 12, 175; Sykes and Pryles, above n 6, 569f.
[14] Friedrich Juenger, 'Tort Choice of Law in a Federal System' [1997] SydLawRw 27; (1997) 19 Sydney Law Review 529, 538-41.
[15] See the analysis of La Forest J in Tolofson v Jensen [1994] 3 SCR 1022, 1050-63 for an excellent example, and cf Greene, above n 6, 367-9.
[16] Ibid 355.
[17] James, above n 12, 163.
[18] Australian Law Reform Commission, above n 13, 50-9, 63-6; Sykes and Pryles, above n 6, 579-81.
[19] This somewhat inelegant word, and the associated verb 'constitutionalise', are used in this article to mean the determination of choice-of-law questions by constitutional rules. There is no necessary implication that that would mean any elevation of such questions into federal jurisdiction—although, if a choice-of-law rule were constitutionally determined, that could not be ruled out.
[20] For a description of the German approach in relation to defamation law, see the author's 'Public Law, Private Rights: A Comparative View of the Theory Behind Recent Changes in Defamation Law to Make It Reflect Constitutional Values' (2000) 11 Public Law Review 274.
[22] There is no codification of the law of sub-national conflicts in Germany. However, the Federal Supreme Court has stated (e.g. in BGHZ 40, 32, 34f; BGHZ 85, 16, 22-6) that the (codified) principles of private international law are generally to be applied analogously in intra-German conflict-of-law cases. As the German Civil Code applies throughout Germany and the states (to the extent that they have any power at all) often pass uniform, or near-uniform legislation anyway, there is not much need for intra-national conflicts law in Germany. It was, however, also of use in cases involving the post-War zones of occupation, the former 'German Democratic Republic' (East Germany, which was never recognised as a foreign country in West Germany, but at most as a separate German state), and similar historical cases. For a commentary, see Otto Palandt and Andreas Heldrich, Bürgerliches Gesetzbuch (61st ed, 2002) 2342-3, 2358, 2543-5. For a broader consideration of conflicts of law by a German scholar in English, see Gerhard Kegel, 'The Crisis of Conflict of Laws' [1964] 2 Hague Recueil 95, especially at 198. (I am grateful to Professor Elsabe Schoeman—see below, n 32—for drawing my attention to this source.)
[23] This, in summary, was the legal principle behind the decision of the Federal Constitutional Court in the seminal Lüth case (BVerfGE 7, 198), which may be found in English translation : see the references in Taylor, above n 20, 283 n 78. The provision of the codes involved was s 826 of the Civil Code, which gives a right to damages for the intentional infliction of harm contra bonos mores.
[24] BVerfGE 7, 198, 205f. (All translations from German in this article are the author's.)
[25] [1997] HCA 25; (1997) 189 CLR 520, 566.
[26] BVerfGE 7, 198, 205 : 'keine bürgerlich-rechtliche Vorschrift darf in Widerspruch zu ihm stehen.'
[27] [1996] 3 SA 850.
[28] [1996] 3 SA 850, 881.
[29] [1996] 3 SA 850, 884, 897f (Mahomed DP). This is indeed what happened in South Africa, the Supreme Court of Appeal of which has now adopted Lange's development of defamation law to include a criterion of reasonableness: National Media v Bogoshi [1998] ZASCA 94; [1998] 4 SA 1196.
[30] [1993] 3 SA 850, 906.
[31] For discussion of South African law in this period, see Amod v Multilateral Motor Vehicle Accidents Fund [1998] 4 SA 753, 765; McCarthy v Constantia Property Owners' Association [1999] 4 SA 847, 855; Pharmaceutical Manufacturers' Association of South Africa; Re Ex Parte President of the Republic of South Africa [2000] ZACC 1; [2000] 2 SA 674, 696-8; JD van der Vyver, 'The Private Sphere in Constitutional Litigation' (1994) 57 Tydskrif vir hedendaagse Romeins-hollandse Reg 378; Halton Cheadle and Dennis Davis, 'The Application of the 1996 Constitution in the Private Sphere' (1997) 13 South African Journal of Human Rights 44; Chris Sprigman and Michael Osborne, 'Du Plessis is Not Dead : South Africa's 1996 Constitution and the Application of the Bill of Rights to Private Disputes' (1999) 15 South African Journal of Human Rights 25.
[32] Professor Elsabe Schoeman of the University of South Africa has kindly confirmed this point. The only case involving intra-national choice of law was the matrimonial case of Friedmann v Friedmann's Executors [1922] Natal Provincial Division 259, in which the Court followed the law of the place of the marriage (which was also the domicile of one party) in preference to the law of the other party's domicile, which would have rendered the marriage void. I am very grateful to Professor Schoeman for confirming this point for me, and for her comments on other points relating to South African law.
Now that the South African provinces have more powers than they did under the old dispensation (see Schedules 4 and 5 of the 1996 Constitution), it may be that a case of intra-national choice of law in torts will arise there one day. But that has not occurred yet.
[33] Section 8 of the 1996 Constitution provides:
Application
8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).
(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person.
On the drafting of this section, see van der Vyver, above n 31. Section 8 is an extraordinarily ambiguous section (cf Amod v Multilateral Motor Vehicle Accidents Fund [1998] 4 SA 753, 765; McCarthy v Constantia Property Owners' Association [1999] 4 SA 847, 855), which could be interpreted in a number of ways. Adding to the uncertainty is s 39 (2), which provides :
(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
[34] Carmichele v Minister of Safety and Security [2001] ZACC 22; [2001] 4 SA 938, 961-3. Note also the statement, at [36], that the Court's duty under South African law 'is different in degree to that which the Canadian Charter of Rights cast upon Canadian judges' (emphasis added)—nothing is said about its being different in nature.
[35] Sprigman and Osborne, above n 31, 51. See further Dennis Davis, 'Has Any Author been Subjected to a 'Ruderer' Review? or, Cry the Beloved Academic Halls of Learning' (2001) 118 South African law Journal 250, 254.
[36] Sprigman and Osborne, above n 31, 50.
[37] As well as the one-hundredth anniversary of Federation, which we have just celebrated, most state Parliaments will shortly celebrate their 150th anniversaries.
[38] It is clearly necessary here to draw a line between the 'government' and other actors. The Court divided, for example, on the question whether Universities were part of the 'government' in McKinney v University of Guelph [1993] 3 SCR 229. The majority's conclusion was that they were not. For further cases, see Patrick Macklem et al, Canadian Constitutional Law (2nd ed, 1997) 1133-6, and the references there cited; note also the apparent status of the applicant in National Ballet of Canada v Glasco (2000) 49 OR (3rd) 230, 249f.
[39] Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery [1986] 2 SCR 573, 592-9.
[41] Ibid 1169.
[42] Ibid 1170. Emphases as in original (underlining replaced by italics).
[43] Ibid 1171.
[44] Ibid 1171.
[46] An exception is clearly established in international cases: see Hanlan v Sernesky (1998) 38 OR (3rd) 479; Wong v Lee (2000) 50 OR (3rd) 419. An exception may be emerging in intra-national cases as well: see Buchan v Non-Marine Underwriters, Members of Lloyd's London, England (1999) 44 OR (3rd) 685, 690-4; Wong, (2000) 50 OR (3rd) 419, 422; Lau v Li (2001) 53 OR (3rd) 727 (with references to the relevant passages in Tolofson and other cases).
[47] [1994] 3 SCR 1022, 1065f.
[48] Peter Hogg, Constitutional Law of Canada (4th ed, 1997); Macklem et al, above n 38.
[49] South Africa's common law is essentially the old Roman-Dutch law; Canada is divided between common law provinces and Quebec, with its (recently revised) Civil Code in the French tradition; Germany's Civil Code dates from 1896 and combines a variety of influences (Roman and Germanic). (On the sources of South African law, see Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001), 128–51).
[50] See the sources listed in Taylor, above n 23, 275 n 4, to which must now be added Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967, 990-2, 1001-3, 1011-12; Venables v News Group Newspapers [2001] 1 All ER 908, 913, 917f, 932, 943; Nicholas Bamforth, 'The True 'Horizontal Effect' of the Human Rights Act 1998' (2001) 117 Law Quarterly Review 34.
[51] [1997] HCA 25; (1997) 189 CLR 520, 563f.
[52] Taylor, above n 23, 281-3.
[53] Ibid 289 for further references.
[54] For a summary of US law, see Gummow J, (1995) 46 South Carolina Law Review 979, 1021-3.
[55] Juenger, above n 14, 535-7.
[56] Allstate Insurance v Hague [1981] USSC 37; (1981) 449 US 302, 312f.
[57] [1989] HCA 49; (1989) 168 CLR 340.
[59] Allstate Insurance[1981] USSC 37; , (1981) 449 US 302, 314f. For a case in which it was not satisfied, see Phillips Petroleum v Shutts [1985] USSC 176; (1985) 472 US 797. See also Ferens v John Deere [1990] USSC 29; (1990) 494 US 516, 532.
[60] Allstate Insurance[1981] USSC 37; , (1981) 449 US 302, 316 n 22.
[61] See Symeon Symeonides, 'Choice of Law in the American Courts in 2000: As the Century Turns' (2001) 49 American Journal of Comparative Law 1, 3-15.
[62] Sun Oil v Wortman [1988] USSC 119; (1988) 486 US 717, 727f. See also Mistretta v United States [1989] USSC 9; (1989) 488 US 361, 392; Baker (by Thomas) v General Motors [1998] USSC 1; (1998) 522 US 222, 249.
[63] [1964] USSC 40; (1964) 376 US 254.
[64] Ibid 279f, 706.
[65] [1997] HCA 25; (1997) 189 CLR 520, 575.
[66] Toogood v Spyring [1834] EngR 363; (1834) 1 CM & R 181, 193; [1834] EngR 363; 149 ER 1044, 1050.
[67] [1997] HCA 25; (1997) 189 CLR 520, 571. See also ibid 565.
[68] Ibid 571.
[69] Ibid 571f.
[70] See Muldowney v South Australia (1996) 186 CLR 352, 367, 370f, 373f, 376-8, 387f; Michael Chesterman, 'Privileges and Freedoms for Defamatory Political Speech' [1997] AdelLawRw 8; (1997) 19 Adelaide Law Review 155, 162; Michael Chesterman, 'Clarity and Loose Ends' (1997) 44 Gazette of Law & Journalism 5, 5; Sally Walker, 'It's a Miracle! High Court Unanimity on Free Speech' (1997) 22 Alternative Law Journal 179, 181; Sally Walker, 'Lange v ABC: The High Court Rethinks the 'Constitutionalisation' of Defamation Law' (1998) 6 Torts Law Journal 9, 14f; George Williams, 'Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform' [1996] MelbULawRw 6; (1996) 20 Melbourne University Law Review 848, 866f.
[71] [1997] HCA 25; (1997) 189 CLR 520, 566.
[72] Ibid 573.
[73] This is, in effect, what Deane J proposed in governmental and political matters in Theophanous[1994] HCA 46; , (1994) 182 CLR 104, 185. Although clearly a very extreme position, as it would leave political office-holders vulnerable to even the most absurd and concocted rumours, it has been supported by others. For a survey of American proposals for the reform of defamation law, see Michael Chesterman, 'The Money or the Truth: Defamation Reform in Australia and the USA' [1995] UNSWLawJl 16; (1995) 18 University of New South Wales Law Journal 300. For US judicial opinions to this effect, see New York Times[1964] USSC 40; , (1964) 376 US 254, 293-305; Garrison v Louisiana [1964] USSC 217; (1964) 379 US 64, 79f.
[74] Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' (2001) 25 Melbourne University Law Review 375, 400-17.
[75] Chesterman, above n 73, 302-8.
[76] Taylor, above n 20, 282.
[77] For a description of the mechanism involved, see Murray Gleeson, 'The State of the Judicature' (2000) 74 Australian Law Journal 147, 157f.
[78] Peter Nygh, 'The Miraculous Raising of Lazarus: McKain v RW Miller & Co (South Australia)' (1992) 22 University of Western Australia Law Review 286, 386f (see especially n 3); Pryles, above n 12, 158, 181; Sykes and Pryles, above n 6, 561f, 565.
[79] Juenger, above n 14, 534.
[80] [1991] HCA 56; (1991) 174 CLR 1.
[81] [1993] HCA 19; (1993) 176 CLR 433.
[82] [2000] HCA 36; (2000) 203 CLR 503, 515. A very similar turn of phrase is used in Australian Securities and Investments Commission v Edensor (2001) 75 ALJR 363, 375f.
[83] Ibid 528. Emphases added.
[84] Ibid 534, 540, 544 (twice).
[85] Ibid 531.
[86] Ibid 533-4.
[87] As could happen if, for example, cars driven by two residents of the Northern Territory collided in the Australian Capital Territory and the drivers wished to sue in the Northern Territory.
[88] For a passage in Breavington presaging this approach, see [1988] HCA 40; (1988) 169 CLR 41, 95.
[89] In Pfeiffer, the Court left open the question of the extent to which international choice-of-law rules should be altered: [2000] HCA 36; (2000) 203 CLR 503, 514. Of course, as overseas jurisdictions are, by definition, outside Australia, the case for applying constitutional values based on our unified system of law to them is much weaker than the case for applying them to the territories. At the time of writing, argument had occurred (on 8-9 August 2001) in the High Court in the case of Regie National Des Usines Renault SA v Zhang (S9/2001), and judgment had been reserved. Special leave to appeal had been granted on 15 December 2000 by Gaudron and Kirby JJ (S192/2000). The transcript of the special leave hearing records the following protest by Kirby J against the Latin language used in the field of conflict of laws:
KIRBY J: You will have to start using English words. I do not understand this foreign language any more.
WALKER SC : Your Honour, we have had this passage before. I think, by majority, I am commanded to use Latin. However, may I, and with some relief venture this English.
KIRBY J: After the 70s, nobody learned Latin any more, so the law ultimately has to catch up.
WALKER SC : Unless age limits on judges are reversed in some way –
KIRBY J: Justice Gaudron tells me her son is majoring in it, but he is a real exception, like his mother.
[90] [2000] HCA 36; (2000) 203 CLR 503, 535.
[91] Ibid.
[92] Ibid 531. See also Edensor (2001) 75 ALJR 363, 402 n 221.
[93] (1957) 31 Australian Law Journal 240.
[94] It is interesting to note that McHugh J's judgments in Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211 and in Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104, 205-7 appear to contain the seeds of the Lange doctrine on the effect of the Constitution on the private law.
[95] See, eg, McKain[1991] HCA 56; , (1991) 174 CLR 1, 34-6, where the judgment also talks about the need not to deny an important legislative power to the states by over-constitutionalising.
[96] For a judgment in this area by McHugh J sitting as a single judge, see Re Stubberfield (1996) 70 ALJR 646.
[97] Although one learned commentator doubts even this (Peter Nygh, 'Full Faith and Credit: A Constitutional Rule for Conflict Resolution' [1991] SydLawRw 27; (1991) 13 Sydney Law Review 415, 424f), he cites a passage in which her Honour (with Wilson J) states that s 118 produces an 'inflexible rule.' The true position appears to be as stated in Breavington[1988] HCA 40; , (1988) 169 CLR 41, 98: her Honour thought that s 118 did not state a rule, but that effect could be given to its command only by applying the 'inflexible rule' in favour of the lex loci delicti. This is correctly stated by Greene (above n 6, 358) to be an 'indirect' form of constitutional determination. At any rate, Nygh J's view only increases the strength of the case presented below that her Honour is now not in favour of over-constitutionalisation of choice-of-law rules.
[98] Stevens[1993] HCA 19; , (1993) 176 CLR 433, 464.
[99] It is, however, certainly arguable that the majority's endorsement in McKain was obiter: Michael Pryles, 'Of Limitations and Torts and the Logic of Courts' [1992] MelbULawRw 8; (1992) 18 Melbourne University Law Review 676, 676, 682; Nygh, above n 78, 393f.
[100] This conception appears to have been adopted by the present High Court, although there are arguments against it: see, eg, Whitelaw, above n 5, 245f. Certainly Brennan CJ would not have endorsed this conception: Breavington[1988] HCA 40; , (1988) 169 CLR 41, 111.
[101] [1993] HCA 19; (1993) 176 CLR 433, 466.
[102] (1997) 191 CLR 471.
[103] Ibid, 524, quoting Breavington[1988] HCA 40; , (1988) 169 CLR 41, 88.
[104] Tolofson v Jensen [1994] 3 SCR 1022, 1063.
[105] Whitelaw, above n 5, 247.
[106] Despite research, the present author has been unable to locate any judicial expression of opinion by Hayne J on the matters considered here before Pfeiffer.
[107] (1992) 27 NSWLR 78, 86f.
[108] See especially at 86f.
[109] [1992] FCA 479; (1992) 38 FCR 303, 314.
[110] (1995) 38 NSWLR 714, 717f.
[111] W M C Gummow 'Full Faith and Credit in Three Federations' (1995) 46 South Carolina Law Review 979.
[112] Pfeiffer[2000] HCA 36; , (2000) 203 CLR 503, 527; Gummow, above n 111, 984.
[113] Pfeiffer[2000] HCA 36; , (2000) 203 CLR 503, 527; Gummow above n 111, 985f.
[114] Gummow above n 111, 1000.
[115] Ibid 1000.
[116] [2000] HCA 36; (2000) 203 CLR 503, 514.
[117] Gummow above n 111, 1005.
[118] Ibid 1008.
[119] Ibid 1010.
[120] [1988] HCA 40; (1988) 169 CLR 41, 83.
[121] Gummow above n 111, 1019.
[122] Ibid 1024.
[123] Pfeiffer[2000] HCA 36; , (2000) 203 CLR 503, 576.
[125] Ibid 717.
[126] Ibid 718.
[127] [2000] HCA 36; (2000) 203 CLR 503, 546.
[128] Ibid 557.
[129] Ibid.
[130] Some but not all of which is duplicated by Commonwealth legislation: see Pryles, above n 12, 170.
[131] Nygh, above n 97, 421; Whitelaw, above n 5, 239; but cf Sykes and Pryles, above n 6, 316.
[132] Breavington[1988] HCA 40; , (1988) 169 CLR 41, 116.
[133] Australian Law Reform Commision, above n 13, 17, 20, 37 (includes other suggestions); Nygh, above n 97, 426; Sykes and Pryles, above n 6, 318, 337f; Whitelaw, above n 5, 241f (all with further references). For references to US cases, see Sykes and Pryles, above n 6, 317.
[134] See, however, Australian Law Reform Commission, above n 13, 25; Nygh above n 97; Whitelaw, above n 5, 250f.
[136] This possible defect in Commonwealth power is what Michael Detmold fails to consider ('Australian Law Areas: The Status of Laws and Jurisdictions' (2001) 12 Public Law Review 185, 198). Although this article is not principally concerned with whether the Commonwealth or the states have power to alter the decision in Pfeiffer, it should be stated that the power of the states cannot be annulled simply by stating that it would be 'better' if they did not possess it. Diversity and difference in statute law are part of the essence of a federation—otherwise there would be no need for a choice-of-law rule at all!
[138] [1989] HCA 53; (1989) 168 CLR 461, 521f.
[139] See also the very perceptive remarks in Greene, above n 6, 359 n 41 on the nature of choice-of-law rules. Treating them as conferring a right on the citizen, of course, goes one step even beyond treating them as a directive to the citizen.
[140] Laurence Tribe, American Constitutional Law (3rd ed, 2000) vol 1, 1247.
[141] [1988] HCA 40; (1988) 169 CLR 41, 98.
[142] Cf Greene, above n 6, 359.
[143] Lange[1997] HCA 25; , (1997) 189 CLR 520, 567.
[145] [1997] HCA 25; (1997) 189 CLR 520, 566.
[146] [2000] HCA 36; (2000) 203 CLR 503, 528.
[147] Australian Law Reform Commission, above n 13, 30.
[148] Thus, similar (if not uniform) legislation has been enacted to convert limitation periods into substantive law: for a selection, see Limitation Act 1969 (NSW.) s 78; Accident Compensation Act 1995 (Vic.) s 138A; Choice of Law (Limitation Periods) Act 1996 (Qld); Limitation of Actions Act 1974 (Qld) s 43A; Choice of Law (Limitation Periods) Act 1994 (WA); Limitation of Actions Act 1936 (SA) s 38A; Limitation Act 1974 (Tas) s 32C; Choice of Law (Limitation Periods) Act 1994 (NT); Limitation Act 1985 (ACT) s 56.
[149] [1920] HCA 54; (1920) 28 CLR 129, 151.
[150] Whitelaw, above n 5, 248f.
[151] Ibid 249.
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