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What is the influence of the Australian Constitution ('Constitution') on the common law of Australia?[1] In Lange v Australian Broadcasting Corporation,[2] a unanimous High Court stated:
Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives. The common law and the requirements of the Constitution cannot be at odds.[3]
Applying this principle,[4] Lange developed the common law of defamation consistently with the implied freedom of political communication. Subsequently, in John Pfeiffer Pty Ltd v Rogerson,[5] the High Court held that the common law of choice of law in tort 'should be developed to take into account various matters arising from the Australian constitutional text and structure.'[6]
Lange and Pfeiffer raise a number of interesting questions about the relationship between the Constitution and the common law. In particular, it is unclear whether there are different modes of constitutional influence on the common law.[7] This article will argue that Lange and Pfeiffer reveal the existence of two different modes of interaction between the Constitution and the common law.
Part I examines the first mode of interaction, which finds expression in Lange's principle that the common law must conform to the Constitution. This mode of interaction occurs where the Constitution requires or mandates common law development in a particular way.[8] Part II submits that there exists a second mode of interaction, which occurs where the Constitution influences or guides common law development but does not mandate change.[9] Finally, Part III applies the preceding, perhaps theoretical, analysis to a more practical legal question: how would the Constitution assist the development of a common law rule governing conflicts between state statutes?
Lange's holding that the common law must conform to the Constitution was a significant step in Australian constitutional and common law jurisprudence. It represented a change in the Court's conception of the Australian legal system and the Constitution's role within that system. However, the Lange principle is subject to an important limitation, only requiring common law development to conform to the Constitution where there is conflict between the common law and constitutional requirements.
In the course of holding that the common law must conform to the Constitution, Lange resolved an important question regarding the meaning of 'common law' in Australian jurisprudence: is there one common law in Australia? Prior to Lange, this issue was not settled.[10] It was unclear whether the common law was largely state law, whether there was a separate and distinct 'federal' common law, or whether there was a single common law of Australia.[11] However, during the 1990s members of the High Court increasingly expressed the view that there was a single common law of Australia.[12]
Professor Zines indicates two developments that contributed to a growing acceptance of the existence of a single 'Australian' common law.[13] First, the High Court's decision in Parker v The Queen[14] that it would not follow the House of Lords if the latter's decision was fundamentally wrong. Secondly, after the 1975 abolition of appeals from the High Court to the Privy Council,[15] the High Court held that it was no longer bound by Privy Council decisions.[16] These developments formed part of a growing recognition that the common law, applied by Australian courts, could develop differently from English common law.[17]
Kable[18] also provided an historical account of the emergence of an Australian common law. In separate judgments, McHugh and Gummow JJ placed significance upon the 1986 removal of the right of appeal from state supreme courts to the Privy Council,[19] indicating that from that time on, the High Court was the apex of Australia's judicial system.[20]
Lange put the question beyond doubt: '[t]here is but one common law in Australia which is declared by this Court as the final court of appeal.'[21] Subsequent decisions have confirmed the existence of one 'Australian' common law.[22] However, the basis for its existence remains unclear. Apart from a reference to the High Court's position as the final court of appeal, Lange did not consider in any depth the formation of the common law of Australia.[23] The question was given some attention by McHugh and Gummow JJ in Kable[24] and by Gaudron, Gummow and Hayne JJ in a joint judgment in Lipohar.[25] These judgments reveal a broadly similar approach focusing upon s 73 of the Constitution, which places the High Court 'at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, state and territorial.'[26] For example, in Kable McHugh J stated:
Without the continued existence of a right of appeal from the Supreme Court of each State to the High Court, it would be difficult, indeed probably impossible, to have the unified system of common law that the Constitution intended should govern the people of Australia.[27]
Lipohar's joint judgment explained the importance of s 73 of the Constitution in the context of an understanding of the doctrine of precedent's 'central place' within the common law in Australia.[28] Interestingly, there are also indications in Kable that a common law of Australia could have existed before 1986. However, a different factor was emphasised, namely, the importance of the integrated system of state and federal courts envisaged by the Constitution.[29]
To understand the significance of Lange's principle requires consideration of two prior High Court decisions: Theophanous v Herald & Weekly Times Ltd[30] and Stephens v West Australian Newspapers Ltd.[31] In both cases, the plaintiffs were parliamentarians who commenced defamation proceedings in respect of publications that concerned their conduct in public office. Thus, Theophanous and Stephens presented the Court with an opportunity to consider a question raised by the Court's earlier recognition of the constitutional freedom of political communication:[32] could an action for defamation be sustained in view of this freedom?
A four to three majority decided each case.[33] In Theophanous, the joint judgment held that '[i]f the Constitution ... is at variance with a doctrine of the common law, the latter must yield to the former.'[34] Viewing the common law of qualified privilege 'in the light' of the constitutional implied freedom of communication,[35] their Honours found that the law of defamation would not apply to impose liability in respect of a publication protected by the implied freedom. Therefore, scholars view the joint judgment as formulating a 'constitutional defence' to defamation actions.[36] The defence operated where the defamatory matter constituted communication within the scope of the freedom, the defendant was unaware of its falsity and the publication was not reckless or unreasonable.[37]
Justice Deane joined in the orders made by the joint judgment to form a majority. However, his reasoning regarding the relationship between the implied freedom and common law differed from that of the joint judgment.[38] The latter considered that the common law must be taken to have adapted to the implied freedom in 1901.[39] In contrast, Deane J argued that any assessment of inconsistency between the common law of defamation and the Constitution must take into account 'contemporary social and political circumstances and perceptions'.[40] Further, unlike the joint judgment, Deane J viewed the implied freedom's protection as absolute, in the sense that he would not have qualified the constitutional defence by making it subject to, for example, a 'reasonableness' requirement.[41]
The Theophanous dissentients found it unnecessary to decide the questions concerning the Constitution's relationship with the common law.[42] However, Brennan J expressed the view that:
Although the Constitution prevails over the common law where there is inconsistency, there is no express inconsistency between the Constitution and those rules of the common law which govern the rights and liabilities of individuals inter se. That is because the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government, including powers to make laws which deal with those rights and liabilities.[43]
Stephens further complicated the position. In Stephens, the defendant pleaded alternative defences based on the constitutional freedom of political communication and on an expanded common law defence of qualified privilege.[44] Chief Justice Mason, Toohey and Gaudron JJ maintained the position adopted in Theophanous, namely, that the implied freedom would afford a defence in certain circumstances.[45] However, it was held that the defence had not been properly pleaded in this case.[46] The joint judgment also held that the second defence was good in law.[47] Therefore, in principle at least, their Honours approved of both creating a constitutional defence and expanding the common law defence of qualified privilege.[48] For the purposes of Stephens, Deane J concurred with the joint judgment's answers to the questions posed by the case stated.[49] The minority judges held that both defences were bad in law.[50] However, it appears the minority left open the possibility that, with different factual circumstances, the common law defence of qualified privilege might be expanded.[51]
Thus, immediately prior to Lange, there was considerable uncertainty about the relationship between the Constitution and the common law, or, indeed, if such a relationship existed.
Lange concerned a defamation action commenced by the plaintiff, a former Prime Minister of New Zealand, in respect of a television broadcast by the defendant. The plaintiff alleged that the broadcast conveyed imputations including that he was guilty of abuse of public office and was unfit to hold public office. The defence reflected the uncertainty created by Theophanous and Stephens. For example, in addition to relying on a Theophanous constitutional defence, the defendant pleaded common law qualified privilege.[52] In this regard, the defendant contended that the implied freedom limited judicial power to create and define the common law.[53]
Lange held that Theophanous and Stephens should be accepted as deciding that the implied freedom 'precluded an unqualified application in Australia of the English common law of defamation in so far as it continued to provide no defence for the mistaken publication of defamatory matter concerning government and political matters to a wide audience.'[54] Thus, Lange affirmed the existence of a relationship between the common law and the Constitution and accepted that the Constitution's requirements and the common law could not be inconsistent.[55]
The holding that the common law cannot be inconsistent with the Constitution is not a controversial aspect of Lange. As recognised by Sexton, '[i]t has always been understood that the Constitution prevailed over the common law to the extent of inconsistency.'[56] Thus, as explained in Lipohar's joint judgment, the common law rule that forum courts 'do not assume or exercise jurisdiction to enforce the revenue laws of a foreign country does not apply within Australia.'[57] The rationale for the rule—notions of comity and territorial sovereignty—is inconsistent with Australia's federal structure.[58] The critical question arising from Theophanous was whether the Constitution directly intervened in the operation of the common law (for example, through the creation of a constitutional defence), or whether the inconsistency was to be resolved some other way.
Lange re-examined the question of how such inconsistency should be resolved. Approaching this question 'as a matter of principle and not of authority',[59] Lange took a different approach to the Theophanous majority.[60] Lange decided not to create a constitutional defence,[61] holding instead that the common law should be developed so that it did not 'run counter' to constitutional imperatives.[62]
Interestingly, the Court did not expressly acknowledge its rejection of the Theophanous majority's approach.[63] Rather, the Court distinguished the Australian position from that of the United States,[64] where the freedom of speech guarantee in the First Amendment to the United States Constitution was held to create a 'constitutional privilege' against liability for defamation in certain circumstances.[65] Significantly, Lange's primary reason for adopting a different approach was the existence of an Australian common law:
In contrast to the position in the United States, the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations.[66]
The relevance of this distinction has been criticised.[67] Even so, the High Court was correct to give it weight.[68] The United States Supreme Court has no general power to develop the common law.[69] Thus, the United States Supreme Court could not develop the common law of defamation to conform to the constitutional guarantee of free speech.[70]
Implicit in Lange's rejection of the constitutional defence and its departure from the Theophanous approach is that the Constitution's application to the common law differs from its application to the exercise of Commonwealth and state legislative and executive power.[71] Whereas an exercise of legislative or executive power will be invalid and have no application to the extent that it is inconsistent with the Constitution, the common law will develop so that it conforms to the Constitution.[72] For this reason, some scholars view Lange as denying the Constitution 'direct' application to the common law.[73] Lange does not expressly explain why the Constitution's application to the common law differs from its application to statute law or executive action.[74] Judicial decisions subsequent to Lange have not considered the basis for this distinction and scholars are sharply divided on the issue.[75]
What was the Court's basis for holding that the common law must conform to the Constitution? In understanding the foundation of the Lange principle, the following judicial reasoning is critical:
The Constitution, the federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form "one system of jurisprudence". Covering cl[ause] 5 of the Constitution renders the Constitution "binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State". Within that single system of jurisprudence, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.[76]
The concept of a unitary Australian legal system, with the Constitution forming the 'basic law', is essential to the Court's reasoning.[77] Within this system, it seems obvious that the common law (like statute law) cannot be inconsistent with the Constitution. Indeed, the Constitution's role within the Australian legal system was emphasised by Kirby J in Pfeiffer v Stevens,[78] who stated: '[i]n Australia, the legitimacy and authority of all law must ultimately be traced to, or be consistent with, the federal Constitution.'[79]
Implicit in the Court's reasoning is a rejection of the view expressed by Brennan J in Theophanous that 'there is no express inconsistency between the Constitution and those rules of the common law governing the rights and liabilities of individuals inter se.'[80] On this view, the Constitution is directed to the 'structure and powers of organs of government' and 'does not purport to affect' the common law rights and liabilities of individuals.[81] However, Lange made clear that the Constitution 'may have effect' on the content of the common law,[82] including the common law rules governing the rights and liabilities of individuals inter se.
Lange's principle—that the common law must conform to the Constitution—is subject to an important limitation. In enunciating the central principle, the Court in Lange also stated: 'the common law in Australia cannot run counter to constitutional imperatives' and 'the common law and the requirements of the Constitution cannot be at odds.'[83] This suggests that the application of Lange's principle is limited to resolving inconsistencies between the common law and constitutional requirements. Justice Kirby reiterated this view in Lipohar:
In Lange, this Court emphasised that the common law in Australia may not contradict constitutional imperatives. If the provisions of a supposed common law rule are inconsistent with the Constitution, they must yield to the constitutional norm.[84]
In Roberts v Bass, Gaudron, McHugh and Gummow JJ (in a joint judgment) stated that, if inconsistency existed between a common law rule and the Constitution, the common law rule 'would have to be developed to accord with the Constitution's requirements.'[85]
Thus, the Lange principle has no application in the absence of inconsistency between the common law and constitutional 'principles' or 'matters'. Accordingly, unless a constitutional requirement is identified, and inconsistency exists between the common law and that requirement, the common law is not required (or mandated) to develop in any particular way.[86]
Constitutional requirements are particularly important because a common law rule required by the Constitution is entrenched.[87] In Pfeiffer, the joint judgment explained that the result of constitutional entrenchment of a common law rule 'would be to restrict legislative power to abrogate or vary that common law rule.'[88] Thus, judicial entrenchment of the common law risks undermining the democratic process and should be approached with the utmost caution.[89] Accordingly, it is necessary to examine Lange's approach to identifying inconsistency between the common law of defamation and the constitutional requirement of freedom of political communication.
The judicial method Lange employed in developing the common law to conform to the Constitution has two characteristics. First, in determining the scope and operation of the constitutional requirement, the Court focused upon the Constitution's text and structure. Secondly, the Court gave particular attention to the identification of inconsistency between the common law and the requirements of the Constitution.
It is important to consider Lange's approach to the scope and operation of the constitutional requirement of freedom of political communication. Obviously, casting the constitutional requirement in broad terms would increase the likelihood (and extent) of inconsistency between the common law of defamation and the Constitution.
The Court held that the freedom of political communication was to be articulated by strict reference to the Constitution's terms and structure.[90] Expressly approving of the majority's approach in McGinty v Western Australia,[91] the Court in Lange said:
Under the Constitution, the relevant question is not, 'What is required by representative and responsible government?' It is, 'What do the terms and structure of the Constitution prohibit, authorise or require?'[92]
Thus, the Court held that the implied freedom could not validly extend beyond what was necessary to give effect to the constitutional provisions that formed the basis of the implication.[93] However, some flexibility was given to the implied freedom. This was achieved by the Court's acceptance that ascertaining the implied freedom's content involved examining 'changing circumstances'.[94]
Lange was an attempt to confirm the correctness of the 'text and structure' approach to constitutional interpretation in light of a more flexible approach previously adopted by several justices in Nationwide News,[95] ACTV[96] and Theophanous.[97] Generally, this flexible approach focused upon the overall constitutional structure and viewed the relevant provisions of the Constitution as predicating and being predicated upon underlying principles such as 'representative parliamentary democracy'.[98]
Despite the emphasis in Lange on constitutional text and structure, scholars such as Zines contend that Lange's legalistic focus was more a matter of tone than substance.[99] For example, Lange stated that 'the Constitution gives effect to the institution of "representative government" only to the extent that the text and structure of the Constitution establish it'.[100] However, as pointed out by Zines, the relevant constitutional provisions (ss 7, 24, 64 and 128) reveal little about the scope of 'representative government'.[101] It is not surprising, therefore, that the Court found it necessary to rely upon the work of a British scholar in its elaboration upon the content of the concept of representative government.[102]
Notwithstanding criticism that Lange advocated a strict interpretive approach but actually adopted a less stringent method, it is contended that, in the context of developing the common law to conform to the Constitution, a strict approach to constitutional interpretation (such as the text and structure approach) is preferable.
As discussed, development of the common law to conform to constitutional requirements carries the possibility of entrenchment of the common law and undermining of the democratic process. Therefore, in this context it would be appropriate for the Court to adopt an extremely cautious approach to constitutional interpretation. An approach to constitutional interpretation focused upon the 'text and structure' of the Constitution restricts the scope for recognition of constitutional requirements and the 'reach' of such requirements. In turn, this reduces the potential for inconsistency between common law rules and constitutional requirements. As a result, the likelihood of common law entrenchment is also reduced. The need for a strict approach when dealing with constitutionally entrenched common law was recognised by Gummow J in Kruger v Commonwealth.[103] Referring to arguments that the Constitution adopted a general doctrine of legal equality, Gummow J stated:
[C]ontemporary development of the common law in Australia must conform to the Constitution ... [b]ut in the absence of an anchor in the constitutional text it is a large step to extract from the whole corpus of the common law a 'general doctrine of legal equality' and treat it as constitutionally entrenched.[104]
Thus, a strict approach to constitutional interpretation in the context of the Lange principle will limit the extent of common law entrenchment and prevent undue incursion by the judiciary into the legislative domain.
A further critical aspect of Lange's approach to developing the common law to conform to the Constitution was the identification of inconsistency or incompatibility between the common law of defamation and the constitutionally required freedom of political communication.[105] In order to determine whether the common law of defamation infringed the constitutional requirement of freedom of political communication, Lange applied the following test:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the [system of government prescribed by the Constitution]?[106]
Lange answered the first question in the affirmative.[107] In relation to the second question, Lange concluded that, without the statutory defence of qualified privilege,[108] the common law would impose an undue burden on the implied freedom because it 'arguably provides no appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience.'[109] Thus, Lange held that there should be an extended category of common law qualified privilege protecting a communication made to the public on a government or political matter.[110] The Court held that reasonableness of conduct was an element of this extended category of qualified privilege.[111] Moreover, the extended defence of qualified privilege would be defeated 'if the person defamed proves that the publication was actuated by common law malice to the extent that the elements of malice are not covered under the rubric of reasonableness.'[112]
Importantly, Lange accepted the possibility that the extended common law defence of qualified privilege might '[go] beyond what is required for the common law of defamation to be compatible with the freedom of communication required by the Constitution.'[113] Earlier in the judgment, the Court stated that the common law 'may' be developed 'in terms broader than those which conform to the constitutionally required freedom' but 'those terms cannot be any narrower.'[114] Thus, Lange appeared to suggest that the Constitution prescribes a minimum or base requirement for the common law of defamation. That is, the common law of defamation did not have to correspond precisely to the requirements of the constitutional implied freedom.[115]
It should be noted that Lange's extension of common law qualified privilege differentiates Australian common law defamation from the rules of common law qualified privilege recognised elsewhere.[116] For example, in Reynolds v Times Newspapers Ltd,[117] the House of Lords held that the common law of England should not recognise a new category of qualified privilege whereby the publication of political information would attract qualified privilege, whatever the circumstances.[118] In contrast, in Lange v Atkinson,[119] the New Zealand Court of Appeal extended qualified privilege to protect statements made concerning the actions and qualities of those currently or formerly elected to Parliament and those seeking election, 'so far as those actions and qualities directly affect or affected their capacity ... to meet their public responsibilities.'[120] However, unlike the High Court of Australia, the New Zealand Court of Appeal held that the defence was not subject to a 'reasonableness' requirement.[121]
The Constitution's influence on common law development is not limited to resolving inconsistency between the common law and constitutional requirements. Quite apart from the mandatory conformity of the common law to the Constitution, the Constitution may be used to guide common law development.[122] It is contended that, where the Constitution is used as a guide, its influence on the common law does not differ from that of an ordinary statute.
As discussed, Lange stated that the common law could be developed more broadly than required by the Constitution. Importantly, Lange did not indicate whether the Constitution was relevant to common law development beyond that required by the Constitution or in the absence of constitutional requirements.[123] The answer to this question was to be found outside the context of the implied freedom of political communication in a case—Pfeiffer—concerning the common law choice of law rule for tort.[124]
Briefly put, Pfeiffer concerned a workplace injury suffered in New South Wales by the respondent employee, a resident of the Australian Capital Territory. The appellant employer was registered in the ACT. The respondent sued his employer in the ACT Supreme Court. The issue was whether the applicable law for the assessment of damages was the law of NSW or the ACT.[125]
The High Court unanimously held that NSW law must be applied.[126] In doing so, the Court created a new common law choice of law rule for Australian torts. Overruling its decision in McKain v R W Miller & Co (SA) Pty Ltd,[127] the Court held that the law governing all questions of substance in Australian torts involving an interstate element was the lex loci delicti (the law of the place where the alleged tort occurred).[128] The discussion below focuses upon the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Justice Kirby delivered a separate judgment, as did Callinan J, who dissented on the question of whether a new choice of law rule should be developed.[129]
Pfeiffer demonstrated that the Constitution's role is not limited to resolving inconsistencies between common law and constitutional requirements. Pfeiffer also suggests that 'constitutional principles may be used to develop the common law beyond that which is required' by the Constitution or in the absence of constitutional requirements.[130] The joint judgment held that the common law choice of law rule for tort 'should be developed to take into account various matters arising from the Australian constitutional text and structure.'[131] The joint judgment set out five of the 'constitutional matters' considered relevant to the development of the common law choice of law rule. These were:
Some of the language used in the joint judgment suggested that, in their Honours' view, the Constitution might mandate a particular choice of law rule. For example, the joint judgment stated 'the [constitutional] matters we have referred to require that a somewhat different approach be adopted with respect to Australian torts which involve an interstate element.'[133] However, their Honours went on to 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 ... If so, the result would be to restrict legislative power to abrogate or vary that common law rule. However, we leave these questions open.[134]
For present purposes, it does not matter whether the High Court ultimately holds that the choice of law rule developed in Pfeiffer (or parts of it) is constitutionally entrenched. What is important is that the joint judgment considered the Constitution relevant to the development of the choice of law rule without holding that the Constitution required a particular rule. In other words, although the joint judgment expressly left open the question of whether a constitutional imperative existed, it was still considered possible for the Constitution to guide the development of the choice of law rule.
In contrast, Dr Adrienne Stone initially appeared to reject the possibility that common law development might be guided, but not required, by the Constitution.[135] Stone contended: 'once it is accepted that constitutional matters influence the common law, development of the common law in line with those constitutional matters reflects constitutional requirements.'[136] However, Stone subsequently appears to have qualified her position, stating that the 'mandatory effect' relationship between the Constitution and the common law evident in Lange does not exclude the possibility that there will be some occasions where the Constitution 'has a weaker effect' on the common law.[137]
The second mode of constitutional influence bears some similarity to the approach of the Canadian Supreme Court in Hill v Church of Scientology of Toronto,[138] where it was held that the common law must be developed consistently with values enunciated in the Canadian Charter of Rights and Freedoms.[139] Similarly to Pfeiffer, the Canadian approach demonstrates the existence of a level of interaction between the Charter and the common law that is different to the question of whether a common law rule infringes a Charter right.[140] In RWDSU v Dolphin Delivery Ltd,[141] the Canadian Supreme Court held that the Charter only applied directly to the common law where the common law formed the basis of governmental action alleged to have infringed a right or freedom guaranteed under the Charter.[142] However, McIntyre J (on behalf of the court) expressed the view that:
I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative.[143]
In Hill v Church of Scientology of Toronto, the Court described the influence of Charter values on the development of the common law in the following terms:
Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.[144]
Unlike the Canadian Supreme Court in Hill v Church of Scientology of Toronto, Pfeiffer contains no clear explanation regarding the process by which constitutional matters guide common law development. Although the joint judgment stated that the choice of law rule should be developed to 'take into account' various constitutional matters,[145] their Honours failed to clearly explain how each of these matters actually influenced the development of the choice of law rule.
Even so, the joint judgment evidently considered the constitutional factors to be important.[146] Their Honours primarily used the Constitution in the process of balancing the competing theoretical considerations in relation to each of the possible choice of law rules considered.[147] Thus, a theoretical consideration was stronger if it was consistent with the Constitution, or excluded if inconsistent. For example, the joint judgment considered the notion of 'sovereignty', viewed by European theorists as providing the foundation for the choice of the lex loci delicti, to be of little assistance in a federal system where 'sovereignty' is shared between the federal, state and territory 'law areas'.[148] Rather, federal considerations favoured a choice of law rule that proceeded from the premise that the predominant concern of state and territory legislatures is territorial.[149] Similarly, the joint judgment considered that, within a federal context, a court of one law area could not refuse to apply the law of another law area on the basis of public policy concerns—a principal consideration in favour of applying the lex fori (the law of the forum).[150]
Accordingly, the joint judgment, although failing to clearly explain the role played by the relevant constitutional matters, was clearly focused upon ascertaining whether the Constitution favoured the adoption of a particular choice of law rule, rather than whether the Constitution required a particular result.[151] By leaving open the question of whether the relevant constitutional matters amounted to a constitutional imperative,[152] Pfeiffer demonstrated that the Constitution's influence on the common law was not limited to resolving inconsistency between the common law and constitutional requirements.[153] Thus, Bradley Selway QC (now Justice Selway) stated:
[T]he Constitution has a broader effect upon the common law than merely to abrogate it in cases of inconsistency. In addition the common law can and should be developed by the courts by reference to constitutional principles even where there is no repugnancy.[154]
Selway's statement that the common law 'can and should' be developed by reference to constitutional principles in the absence of repugnancy raises an interesting question: is this mode of constitutional influence on the common law mandatory or discretionary? This issue, among others arising from Pfeiffer, is considered below.
It is contended that, absent a constitutional requirement, the Constitution's influence on the common law does not differ from that of an 'ordinary' statute.[155] Although scholars have identified a number of different ways in which the common law and statute interact,[156] the little attention given to this question by the High Court has focused upon the analogical use of statutes in the development of the common law.[157] Thus, the discussion below focuses upon this aspect of the interaction between common law and statute.[158]
Simply described, the analogical use of a statute involves a court drawing 'from [a statute] some principle to be applied by way of analogy in fashioning the common law.'[159] The use of statutes by analogy in common law development has a long history in England and the United States.[160] In England, Lord Diplock enunciated the following principle in Erven Warnink Besloten Vennootschap v J Townend & Sons (Hull) Ltd:
Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course.[161]
Although the High Court appeared to reject the application of Lord Diplock's principle in Lamb v Cotogno[162] and Public Service Board of New South Wales v Osmond,[163] dicta in several cases expressed support for the analogical use of legislation in the development of the common law.[164] For example, Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2][165] rejected the creation of a general action for 'unfair competition' or 'unfair trading'. Justice Deane stated:
[T]he existence of such an action is inconsistent with the established limits of the traditional and statutory causes of action ... Those limits ... increasingly reflect what the responsible Parliament or Parliaments have determined to be the appropriate balance between competing claims and policies. Neither legal principle nor social utility requires or warrants the obliteration of that boundary.[166]
Subsequently, the question was raised in Esso v FCT.[167] Esso v FCT considered the interaction between common law and statute in the context of the applicable test for determining whether legal professional privilege applies in relation to discovery and inspection of confidential written communications between lawyer and client. Sections 118 and 119 of the Evidence Act 1995 (Cth) provided for a statutory test different from the accepted common law test in Australia.[168] The appellant contended that the common law, by analogy or derivation, should be treated as modified to accord with the statutory test 'at least in the jurisdictions where the [Evidence Act] applies'.[169] The appellant's contention was rejected on the facts. A majority of the Court emphasised that, unless there was a consistent pattern of legislative policy, to develop the common law by reference to local statutes would result in the 'fragmentation' of the common law throughout Australia's law areas.[170] Thus, although the joint judgment did not expressly state its acceptance of the 'doctrine of analogy', it seems clear that a majority considered the doctrine could only be applied in the context of a consistent pattern of legislative policy.[171]
Obviously, in contrast to common law development to conform to constitutional requirements, modification of the common law to reflect a consistent pattern of legislative policy is a matter of judicial choice. There is nothing 'requiring' courts to develop the common law to accord with legislative policy. Analogical use of a statute is simply one of several tools a judge may utilise in judicial decision-making. In contrast, Lange established that the common law and the requirements of the Constitution 'cannot be at odds'.[172] If a judge finds that inconsistency exists between the common law and a constitutional requirement, the common law must yield. In this context, the words of Gleeson CJ in ABC v Lenah Game Meats are germane:
[B]ecause the common law of Australia conforms to the Constitution, it has an important role in the formulation of common law principle. But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case, to be given such weight as to a court seems fit.[173]
This leaves a crucial issue unresolved: what is the position in relation to the Constitution's influence on the common law in the absence of constitutional requirements?
It is contended that, absent constitutional requirements, the Constitution's influence on the common law does not differ from that of an ordinary statute. Three principal reasons are advanced in support of this proposition.
First, in both cases, the judge exercises judicial choice as to whether to take into account, and how much weight to give to, a particular factor in the development of the common law. It makes no difference that in one case the factor will be a constitutional 'matter' or 'value', whereas in the other case the factor will be 'the view of successive Parliaments' reflected in that statute or statutory provision.
Second, in both cases, the resulting common law remains 'common law'. When developing the common law consistently with the Constitution, the resulting common law is only 'constitutionalised' if the common law development is required by a constitutional imperative.[174] Absent a constitutional requirement, the resulting common law remains 'ordinary' common law, in the same way as common law developed through considering general policy imperatives or by reference to common statutes does not change its 'common law' character.
Third, the basis of the interaction in both cases is similarly directed to the 'intention' behind the legislative instrument. In the case of analogical use of statutes in common law development, the common law responds to the legislative intention. Indeed, the joint judgment in Esso v FCT refused to apply the 'doctrine of analogy' on the basis that '[w]hat has occurred in Australia in relation to the legislation here in question cannot be said to reflect a consistent legislative view of what the public interest demands in relation to the law of legal professional privilege.'[175]
Similarly, common law development in accordance with constitutional 'matters' or 'values' can be viewed as a response to the intention of the Constitution's framers. It is a long established principle of Australian constitutional interpretation that the meaning of a constitutional term is the original meaning it had when enacted in 1900.[176] This principle is subject to exceptions.[177] For example, contemporary values can be, and are, taken into account in the interpretation of the Constitution.[178] However, although capable of responding to changing circumstances, the Constitution is read as reflecting its framers' intentions. If a judge takes into account, for example, 'federalism' as a constitutional matter in developing the common law, he or she would be responding to the framers' intention, as reflected in the Constitution, that the Commonwealth of Australia exist as a federation.[179]
One of the most pressing issues arising out of Lange and Pfeiffer is how to distinguish a constitutional 'matter' or 'principle' from a constitutional 'requirement'. For example, there is disagreement about the extent that the common law rule developed in Lange is protected from legislative change.[180] However, Pfeiffer demonstrates more clearly the difficulties in drawing a line between constitutionally mandated common law development and common law development that is 'guided' by the Constitution. As recognised by Kirk, 'it may well be that what appears to be flexible common law is closely shaped by hard constitutional requirements'.[181] Of course, drawing the distinction is important because constitutionally required common law development will be entrenched, whereas common law development that has been 'influenced' by the Constitution will be amenable to legislative change.[182] In this regard, Pfeiffer may be justifiably criticised for leaving open the question of whether the choice of law rule developed in Pfeiffer was entrenched, thus creating considerable uncertainty as to whether Commonwealth or state legislatures are free to legislate to alter that rule.[183]
Moreover, are constitutional 'matters' or 'principles' to be determined by a more flexible approach to constitutional interpretation? Lange's strict approach to constitutional interpretation was not evident in Pfeiffer. In contrast to Lange, the Pfeiffer joint judgment focused upon broader concepts underlying the Constitution rather than being tied down to particular provisions.[184] Indeed, the joint judgment is marked by the absence of any real attempt to demonstrate the constitutional basis for the matters said to arise from the 'Australian constitutional text and structure' and deemed relevant to the development of the common law.[185] In principle, this is consistent with the differences in judicial technique between applying constitutional requirements and deriving constitutional norms. On the one hand, the text and structure approach is justified by the particularity of the rule created. On the other hand, the aim of deriving a constitutional objective is not to create a firm rule, but to supply a policy consideration for judicial evaluation.
Pfeiffer is not an isolated example of the Court's departure from Lange's textual approach. For example, in Sue v Hill,[186] the majority interpreted the Constitution in light of matters such as constitutional changes in the United Kingdom and changes in the relationship between the United Kingdom and Australia.[187] On a purely textual approach, it is unlikely that the majority could have reached its decision that the United Kingdom was a 'foreign power'.[188] However, the Pfeiffer joint judgment's approach to constitutional interpretation does raise the question whether a more flexible approach is warranted where the Constitution guides common law development rather than mandating it. Indeed, in discussing the Pfeiffer joint judgment's use of 'constitutional matters', Dr Greg Taylor states '[t]hese matters are not precise enough to justify a hard-and-fast [choice of law] rule. They do, however, justify an approach to moving the common law in one direction rather than another.'[189]
In this context, an issue of concern is that drawing conclusions from broader concepts underlying the Constitution is a process that affords courts a considerable degree of latitude. This increases the scope for the development of constitutional law to be influenced by judges' subjective values. Accordingly, guiding principles are necessary to ensure that judicial legitimacy is not compromised.[190] Additionally, a more fluid judicial approach could result in the same constitutional 'matter' being used to draw very different conclusions. For example, Stone has correctly observed that the concept of federalism, certainly a fundamental constitutional matter, points 'both to the unity of the Australian polity and to the independence of its constituent parts.'[191] A judge could draw upon either (or both) aspects of federalism in constructing a constitutional basis for an aspect of the common law.[192]
Further, there may be 'false' references to constitutional objectives. Subsequent to Pfeiffer, the High Court in Regie National des Usines Renault SA v Zhang[193] considered the common law choice of law rule in the context of international torts—a question not examined in Pfeiffer. Zhang held that the choice of law rule developed in Pfeiffer, although developed in the intranational context, should be extended to cases where the locus delicti is a foreign law area.[194] In light of Zhang, it seems that Pfeiffer's result could have been achieved without the constitutional reasoning.[195] Arguably, therefore, the references to the Constitution in Pfeiffer were irrelevant and unnecessary. This is concerning, particularly given that the joint judgment left open the question of whether the choice of law rule developed in Pfeiffer was entrenched.
Accordingly, it would be useful if the High Court enunciated principles to assist courts in using the Constitution to guide the development of the common law. In this regard, a question of particular importance is the appropriate method of determining constitutional 'matters' or 'values'. Although the second mode of constitutional influence on the common law does not carry with it the possibility of constitutional entrenchment, the court's interpretive process should not stray too far beyond the text and structure of the Constitution itself. As stated by Kirby J in Kartinyeri v Commonwealth,[196] 'judicial interpretation of the Constitution risks the loss of legitimacy if it shifts its ultimate focus of attention away from the text and structure of the document.'[197]
Not all areas of the common law will be affected by the Constitution and some areas of the common law are more likely to be influenced by the Constitution than other areas.
In the context of private law, Taylor suggests the Constitution's influence will be 'heightened' in common law areas that are of particular constitutional importance or when 'concentrations of private power approach the power of the state.'[198] For example, those areas of the common law that may burden the implied freedom of political communication, such as defamation law or common law contempt.[199] In the public law context, areas that are likely to be influenced by the Constitution include administrative law (particularly the common law governing judicial review of administrative action[200] and natural justice),[201] the common law governing the liability of the Crown,[202] and the common law concerning the powers of and the relationship between the state and federal Parliaments.[203]
This Part considers the possible use of the Constitution to resolve a particular problem concerning the relationship between state Parliaments—the resolution of conflicts between state statutes.
State legislatures have constitutional power to make laws that operate extraterritorially.[204] Section 2(1) of the Australia Act 1986 (UK) c 2 and of the Australia Act 1986 (Cth) grants to state Parliaments 'full power to make laws for the peace, order and good government of that state that have extra-territorial operation.'[205] In determining the validity of extraterritorial state legislation, Union Steamship v King adopted the test enunciated by Gibbs J in Pearce v Florenca:[206]
[L]egislation should be held valid if there is any real connection—even a remote or general connexion—between the subject matter of the legislation and the state.
This broad nexus test increases the potential for conflict between the statutes of two (or more) states.[207] Such conflict arises in two ways. First, 'by reason of the direct operation of the law of one State in the territory of another'.[208] Second, where the laws of two or more states, 'by their terms or in their operation, affect the same persons, transactions or relationships.'[209] Yet despite the potential for such conflicts, its resolution remains unclear.[210] Conflicts between Commonwealth and state laws are resolved by s 109 of the Constitution.[211] However, there is no equivalent provision in relation to conflicts between state laws.[212] There has been no attempt to resolve the problem through legislation, whether by Commonwealth legislation or a Commonwealth-state joint scheme.[213]
At common law, legislation is presumed not to have extraterritorial effect.[214] However, the presumption is rebuttable[215] and there exists no established common law rule to resolve any resulting conflict between state statutes. Although it has been suggested that the rules of private international law apply to resolve interstate statutory conflicts,[216] the question has been given little judicial attention. This inattention is understandable given that it was previously thought that interstate statutory conflict could be resolved by 'confining each State to its own constitutional remit in terms of the territory committed to its law-making power'.[217]
For these reasons, there is scope for development of a common law rule resolving conflicts between state legislation. It is contended that the Constitution favours, but does not require, the adoption of a 'predominant territorial nexus' common law rule to resolve interstate statutory conflicts.[218] Applying such a rule to conflict between two (or more) state statutes, the statute with the greatest territorial connection to the person, things or events upon which the legislation operated would be applicable. To the extent of inconsistency, the other statute(s) would be inapplicable.
In Breavington,[219] Deane J concluded that the Constitution itself resolved interstate statutory conflict:
[T]he constitutional solution of competition and inconsistency between purported laws of different States as part of the national law must, where the necessary nexus for prima facie validity exists, be found either in the territorial confinement of their application or, in the case of multi-State circumstances, in the determination of the predominant territorial nexus. That would have been the position under the provisions of the Constitution (in particular, ss.106, 107 and 108) even if those provisions had not included s.118. The presence of s.118 serves to make that position plain.[220]
Thus, Deane J considered that there was a constitutional solution to interstate statutory conflict. Justice Deane's contention was primarily based upon ss 106 and 107 of the Constitution, which provide that, subject to the Constitution, the state Constitutions and the powers of the state Parliaments shall 'continue as at the establishment of the Commonwealth.'[221] At Federation, the legislative powers of the former colonies were understood as being 'fundamentally territorial in their content and operation.'[222] Thus, according to Deane J, state legislative powers, although continued within 'the new national system', were viewed as remaining fundamentally territorial.[223] His Honour also pointed to the fact that s 108 of the Constitution provides that 'every law in force in a Colony' shall 'continue in force in the State'.[224]
Justice Deane accepted that, subsequent to Federation, the High Court recognised the extraterritorial competence of state legislatures.[225] However, his Honour emphasised that this recognition could not alter the 'historical fact' that, at the time of the Constitution's framing, state legislative powers were understood to be strictly territorial.[226] For Deane J, the resolution of interstate statutory conflicts through the determination of the predominant territorial nexus was a result of understanding the background against which ss 106, 107 and 108 of the Constitution were framed. In Deane J's view, s 118 of the Constitution 'serves to make [the] position plain.'[227]
More recently, the judgments of Kirby and Callinan JJ in Mobil Oil v Victoria,[228] dealt to a limited extent with the question of whether the Constitution itself resolves interstate statutory conflict. Mobil Oil v Victoria involved a challenge to the validity of Victorian legislation providing for the conduct of group proceedings.[229] The facts of Mobil Oil v Victoria did not involve conflict between state statutes.[230] However, the plaintiff contended, inter alia, that the Victorian legislation exceeded an implied constitutional limitation on state extraterritorial legislative power.
The plaintiff's submission that the Constitution imposes a territorial limitation on state Parliaments was rejected by Gleeson CJ[231] and the joint judgment of Gaudron, Gummow and Hayne JJ.[232] However, Kirby J accepted, in principle, the existence of implied territorial limitations on state legislative power.[233] For example, Kirby J stated:
A point will indeed be reached in the legislation of one state having extraterritorial effect upon persons, events or things in another state, that will contradict the implied limitations on state legislative power inherent in the federal Constitution.[234]
Similarly, Kirby J indicated that the Constitution itself would resolve conflicts between state statutes.[235] However, his Honour considered that the plaintiff had failed to demonstrate either that the Victorian Act operated extraterritorially in an impermissible manner, or that any conflict existed between state laws.[236] Accordingly, the judgment does not articulate the nature or scope of the suggested implied constitutional limitation on extraterritorial state legislative power or attempt to formulate a constitutional rule resolving interstate statutory conflict. Justice Callinan also emphasised the importance of the Constitution, particularly s 118,[237] in answering whether 'the arms of one state should, in a federation, be permitted to reach into and pick the pockets of the jurisdiction of another.'[238] However, like Kirby J, Callinan J expressed no view as to how the question would be answered by the Constitution.
This article takes an opposing position to that of Deane J in Breavington and Kirby J (and possibly Callinan J) in Mobil Oil v Victoria. It is contended that the Constitution does not require that interstate statutory conflicts be resolved through the application of any particular rule—including the determination of the predominant territorial nexus.
As stated above,[239] in the context of identifying constitutional requirements, it is appropriate to adopt a strict method of constitutional interpretation. Adopting such an approach, the Constitution's text is the principal focus. Moreover, implications from the structure of the Constitution may only be drawn when they are 'logically or practically necessary' for the integrity of the Constitution's structure.[240] Looking first to the express terms of the Constitution, as discussed, there is an absence of any provision directed to resolving interstate statutory conflict.
Nor can it be said that the Constitution necessarily implies the resolution of interstate statutory conflict in a particular way. In Breavington, Deane J suggested it was necessary to view the Constitution as imposing a territorial limit on state legislative powers in order to make sense of the fact that the Constitution continued the legislative powers and laws of the former colonies 'without express provision being made for the resolution of competition or inconsistency between them.'[241] However, it is entirely possible that the Constitution's framers intended that the High Court resolve such conflict[242] without the assistance of an express constitutional provision—particularly in view of the inclusion of an express constitutional provision dealing with conflict between Commonwealth and state laws.[243]
In considering whether the Constitution resolves interstate statutory conflict, particular consideration must be given to s 118 of the Constitution. Section 118 directs that '[f]ull faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.' Can a rule resolving interstate statutory conflict be implied from s 118 of the Constitution?
The proper construction of s 118 has been the subject of considerable judicial and scholarly disagreement.[244] Section 118 was considered in Pfeiffer.[245] However, apart from stating that 'the terms of s 118 indicate that, as between themselves, the States are not foreign powers', the joint judgment considered it unnecessary to resolve other questions arising from s 118.[246] Thus, whether s 118 is relevant in the interstate conflict of law context remains unresolved.[247]
It may well be correct to say that s 118 requires:
[T]hat the laws and "public Acts" of every State be given full faith and credit, in the sense of full effect, throughout the Commonwealth. In other words, all Australian courts are required to give full effect to all valid and applicable Australian laws.[248]
On this construction, s 118 may entrench certain aspects of the common law. For example, as suggested by the joint judgment in Lipohar, s 118 of the Constitution might give a 'constitutional footing' to the common law doctrines of autrefois acquit and autrefois convict.[249] However, s 118 does not mandate a particular rule resolving interstate statutory conflicts. Although s 118 requires that 'effect be given to valid and applicable laws', it contains no mechanism to resolve inconsistencies between such laws.[250]
Accordingly, it is contended that the Constitution does not require that conflict between state statutes be resolved in a particular way. The Constitution contains no express provision resolving interstate statutory conflict and the structure of the Constitution does not give rise, as a matter of logical or practical necessity,[251] to an implied rule.
The preceding analysis has considered conflict between state statutes. What is the position where the conflict is between a state law and a territory law? One suggestion is that s 109 resolves such conflicts. In Lamshed v Lake,[252] a majority held that a law made by the Commonwealth Parliament, in the exercise of its legislative power conferred by s 122 (the territories power), was a 'law of the Commonwealth' to which s 109 applied.[253] However, it is arguable whether s 109 applies where the relevant law is passed by a territory legislature, not the Commonwealth Parliament.
Both the Northern Territory and the Australian Capital Territory are now self-governing.[254] Commonwealth legislation has empowered their respective Legislative Assemblies to make laws for the peace, order and good government of the territory. The purpose of self-government was to enable the territories to be in the same position as the states—without granting statehood—by granting them legislative, executive and judicial authority in respect of the territory.[255] Accordingly, it would appear constitutionally odd if laws passed by a territory legislature were given paramountcy over inconsistent state laws by s 109 of the Constitution.[256] However, it is arguable that s 109 is properly applied because a law made by a legislature of a self-governing territory is made by virtue of power conferred by Commonwealth legislation under s 122, and is, therefore, a 'law of the Commonwealth' for s 109 purposes.[257]
This issue was considered, but not resolved, in Breavington.[258] While Dawson J would have treated a statute of the Northern Territory legislature as a 'law of the Commonwealth',[259] Deane J considered that s 109 would not apply to resolve conflict between a state law and a law made by the Northern Territory Legislative Assembly.[260]
In principle, such conflicts should be treated in the same manner as interstate conflicts, so that the state or territory statute having the predominant territorial nexus would prevail.[261] This view is consistent with the High Court's statement in Capital Duplicators Pty Ltd v Australian Capital Territory that s 122 should be interpreted in a manner 'which will treat the Constitution as one coherent instrument for the government of the federation'.[262]
It has been contended that the terms and structure of the Constitution do not reveal a particular rule resolving interstate statutory conflict. However, a solution must be found. The Constitution was framed on the assumption of the rule of law.[263] The rule of law requires that a person cannot be subject to valid inconsistent laws.[264] In Breavington, Deane J stated:
[T]here lies at the heart of the legal system embodied in the Constitution acceptance of the principle that an individual should not be exposed to the injustice of being subjected to the requirements of contemporaneously valid but inconsistent laws.[265]
Where such incompatibility arises, a court must find one of those laws to be inapplicable or invalid to the extent of the inconsistency. As stated by Kirby J in Lipohar, '[t]he integrated character of the Australian federation suggests that a ready means should exist for the resolution of questions about the law applicable within any constituent part of the Commonwealth.'[266] It is contended that the answer is to be found in the common law, using the guidance of the Constitution to develop a common law rule that is consistent with the Constitution, but not constitutionally mandated. However, an important difference should be noted. In contrast to an implied constitutional rule resolving interstate conflict, a common law rule guided by the Constitution will be amenable to Commonwealth or state legislative change.
Two constitutional matters are relevant to interstate statutory conflict: first, the predominantly territorial focus of state legislative power; and second, the nature of the Australian federation.
Under the Constitution, the focus of state legislative power is predominantly territorial.[267] As recognised by Deane J in Breavington, it is significant that ss 106 and 107 of the Constitution continue the state Constitutions and powers of the state Parliaments 'as at the establishment of the Commonwealth'.[268] At the time the Constitution was framed, the legislative powers of the former colonies were considered to be fundamentally territorial.[269] Notwithstanding the subsequent recognition that state legislatures have power to legislate extraterritorially, it is still true to say that s 107 'clearly refers to the power of the parliament of the state with respect to that state as a geographical portion of the entire Commonwealth.'[270] Thus, in Pfeiffer, the joint judgment stated:
[I]n a federal system, a choice of law rule which proceeds on the footing that the predominant concern of State and Territory legislatures is with acts, matters and things in their respective law areas strikes a balance between the interests of those several legislatures whose laws may be involved in a particular dispute.[271]
Adapting this reasoning to the context of conflict between state statutes, it is contended that the predominant territorial nexus rule would strike an appropriate balance between the interests of the state legislatures involved.
Moreover, the predominant territorial nexus rule is consistent with the nature of the Australian federation. A central feature of the Constitution is its federal character.[272] The predominant territorial nexus approach recognises the independence of the federation's constituent parts without compromising the federation's unity.[273] This was recognised by Deane J in McKain v Miller, who stated that the predominant territorial nexus rule:
[D]oes not undermine or destroy the essential unity of the Australian legal system since the reference point—i.e. predominant territorial nexus—will be the same regardless of the place within the Commonwealth in which the proceedings are brought.[274]
In Pfeiffer, Kirby J emphasised that, within a federation, there is a legitimate expectation that the operation of the law 'ultimately yields a single, certain and predictable legal outcome to any legal dispute.'[275] Specifically in the context of the resolution of interstate statutory conflict, Kirby J had previously emphasised the need for a simple rule in order to avoid confusion and uncertainty.[276] The predominant territorial nexus test has the advantage of simplicity, particularly when compared to the difficulties associated with other suggested solutions.
For example, Kirk argues that interstate statutory conflict should be resolved through the application of the 'more closely connected' law.[277] This approach compares the 'legitimate government interests' of each legislature in regulating the matter in question and does not focus purely on territoriality.[278] However, the determination of 'legitimate government interests' is a matter of considerable complexity, involving the balancing of a number of different factors, including political considerations. Indeed, involvement by the courts in such a process would arguably be inappropriate. The adoption of Kirk's 'closer connection' test would serve to create uncertainty—a problem minimised by the suggested predominant territorial nexus rule.[279]
Accordingly, the choice of the predominant territorial nexus as the common law rule governing interstate statutory conflict would appear to be consistent with constitutional values. Applying this rule, the statute with the greatest territorial connection to the person, things or events upon which the legislation operated would be applicable. To the extent of inconsistency, the other statute(s) would be inapplicable.
Lange's rejection of the creation of a constitutional defence cast the interaction between the Constitution and the common law in more complex terms than those envisaged by the Theophanous majority. The Lange principle established that the Constitution, as the 'basic law' of the Australian system of jurisprudence, may have effect on the development of the common law of Australia. The Lange principle operates where there is inconsistency between the common law and constitutional requirements. Although common law development does not have to correspond precisely to the requirements of the Constitution, the Lange principle ensures that the common law and constitutional requirements are not 'at odds'.
Subsequently, Pfeiffer established that the Constitution's influence is not limited to resolving inconsistencies between the common law and constitutional requirements. Pfeiffer demonstrates that constitutional 'matters', not amounting to constitutional requirements, also have a role to play in common law development. Although there is uncertainty regarding the Constitution's influence on the common law in the absence of constitutional requirements, this article has demonstrated the utility of comparing the Constitution's influence on the common law in this way to that of 'ordinary' statutes. Drawing upon this comparison, it has been contended that common law development by reference to constitutional 'matters' or 'values' is characterised by the fact that such matters may be taken into account in the exercise of judicial choice. More importantly, the resulting common law is not entrenched.
Certainly, Lange and Pfeiffer have broadened the potential scope for constitutional influence on the common law. However, these decisions also highlight a much broader vision, namely, Lange's conception of the Constitution as the 'basic law' underlying Australia's unitary system of jurisprudence. The High Court's vision may see an expansion of the Constitution's role within the Australian legal system in the second century of federated Australia. The relationship between the Constitution and the common law will surely play an integral part in such an expansion.
[*] LLB (Hons), BA (UWA). I would like to thank Jim Thomson for his advice, observations and assistance. Thanks are also due to Robert Meadows QC, Joshua Thomson, Rossana Panetta, Jamie Edelman, Grant Donaldson and the referee for their helpful comments and suggestions.
[1] In this article 'common law' refers to judge-made law and includes equitable principles. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199 ('ABC v Lenah Game Meats'), Kirby J considered equitable principles must conform to the Constitution: ibid 280 [192]. Other members of the Court found it unnecessary to consider this issue.
[2] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').
[3] Ibid 566 (footnote omitted).
[4] The phrase 'the Lange principle' will be used to refer to the holding in Lange that the common law must conform to the Constitution. Although Lange stated that the common law must conform 'with' the Constitution, the use of 'to' is grammatically correct and does not alter the legal effect of the phrase. See, eg, ABC v Lenah Game Meats (2002) 208 CLR 199, 219 [20] (Gleeson CJ).
[5] [2000] HCA 36; (2000) 203 CLR 503 ('Pfeiffer').
[6] Ibid 534 [67] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[7] See generally Adrienne Stone, 'The Common Law and the Constitution: A Reply' [2002] MelbULawRw 33; (2002) 26 Melbourne University Law Review 646; Greg Taylor, 'Why the Common Law Should be only Indirectly Affected by Constitutional Guarantees: A Comment on Stone' [2002] MelbULawRw 32; (2002) 26 Melbourne University Law Review 623; Bradley Selway, 'The Principle Behind Common Law Judicial Review of Administrative Action—The Search Continues' (2002) 30 Federal Law Review 217, 232; Michael Sexton, 'Constitutional Intersections: The Common Law and the Constitution' (Paper delivered at the Annual Public Law Weekend, ANU, 2 November 2001) (copy on file with the author) 13, 19–23.
[8] Stone, above n 7, 648. Stone describes this mode as the 'mandatory effect' model.
[9] Ibid 648. Stone describes this mode as the 'guidance' or 'mere influence' model.
[10] But see Jeremy Kirk, 'Conflicts and Choice of Law Within the Australian Constitutional Context' (Paper delivered at the Annual Public Law Weekend, ANU, 2 November 2001) (copy on file with the author) 53. Kirk emphasises the significance of Lipohar v The Queen (1999) 200 CLR 485 ('Lipohar')—rather than Lange—in establishing the existence of one common law of Australia. Kirk's contention is made on the basis that it was not until Lipohar that the concept of a unified common law of Australia had 'a direct, material application in a High Court decision': ibid 56–7. However, in Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 ('Esso v FCT'), Lange rather than Lipohar is cited as authority for the proposition that there exists an Australian common law: ibid 61–2 (Gleeson CJ, Gaudron and Gummow JJ). See also Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 189 ALR 161, 200 n 196 (Kirby J) ('Mobil Oil v Victoria').
[11] Division on this question is evident in R v Kidman [1915] HCA 58; (1915) 20 CLR 425, 435–6 (Griffith CJ), 444–6 (Isaacs J), 454 (Higgins J). See also R v Snow [1915] HCA 90; (1915) 20 CLR 315, 325 (Griffith CJ); R v Sharkey [1949] HCA 46; (1949) 79 CLR 121, 163 (Webb J); Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, 134–5 (Windeyer J); Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 370 (Walsh J during argument). See also the discussion in Lipohar (1999) 200 CLR 485, 507–8 (Gaudron, Gummow and Hayne JJ), where it is emphasised that the common law of Australia is different from the notion of a federal common law. See generally Leslie Zines, The Common Law in Australia: Its Nature and Constitutional Significance (Law and Policy Paper No 13, Centre for International and Public Law, ANU, 1999); Justice L J Priestley, 'A Federal Common Law in Australia?' (1995) 6 Public Law Review 221; P H Lane, The Australian Federal System (2nd ed, 1979) 511–12, 586 n 21, 866 n 4; W Anstey Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed, 1976) 58–60; A Inglis Clark, Studies in Australian Constitutional Law (1901, reprinted 1997) 192; John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901, reprinted 1995) 785.
[12] See, eg, Mabo v Queensland (No 2) (1992) 175 CLR 1, 15 (Mason CJ and McHugh J); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 297–8 (Mason CJ and McHugh J); Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, 556 (McHugh J); Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520, 556–7 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); Wik Peoples v Queensland (1996) 187 CLR 1, 176 (Gummow J); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 112 (McHugh J), 138 (Gummow J) ('Kable').
[13] Zines, above n 11, 8–10.
[14] [1963] HCA 14; (1963) 111 CLR 610.
[15] The Privy Council (Appeals from the High Court) Act 1975 (Cth) removed the right to appeal from the High Court to the Privy Council on non-constitutional matters, such as matters of common law or concerning state laws. Its validity was upheld by the High Court in Attorney-General (Cth) v T & G Mutual Life Society Ltd [1978] HCA 24; (1978) 144 CLR 161. The 1975 Act was preceded by the Privy Council (Limitation of Appeals) Act 1968 (Cth), which removed the right to appeal from the High Court to the Privy Council in matters involving the Constitution or federal laws. Its validity was upheld by the Privy Council in Kitano v Commonwealth [1975] UKPCHCA 2; (1975) 132 CLR 231. See generally Anne Twomey, 'Sue v Hill—the Evolution of Australian Independence' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads—Essays in Constitutional Law (2000) 77, 105–7.
[16] Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88. There remains the theoretical possibility of the High Court granting a certificate under s 74 of the Constitution. However, in Kirmani v Captain Cook Cruises Pty Ltd (No 2) [1985] HCA 27; (1985) 159 CLR 461 the High Court stated that the jurisdiction to grant a s 74 certificate was 'obsolete': ibid 465 (the Court). Appeals from state Supreme Courts to the Privy Council on non-federal matters were abolished by s 11 of the Australia Act 1986 (UK) c 2 and s 11 of the Australia Act 1986 (Cth).
[17] This was accepted by the Privy Council in Australian Consolidated Press Ltd v Uren [1967] UKPCHCA 2; (1967) 117 CLR 221 and Geelong Harbour Trust Commissioners v Gibbs Bright and Co [1974] UKPCHCA 1; (1974) 129 CLR 576.
[18] [1996] HCA 24; (1996) 189 CLR 51.
[19] Through the enactment of the Australia Act 1986 (UK) c 2 and the Australia Act 1986 (Cth).
[20] [1996] HCA 24; (1996) 189 CLR 51, 113 (McHugh J), 138 (Gummow J).
[21] [1997] HCA 25; (1997) 189 CLR 520, 563.
[22] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 514 [2], 518 [15] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Commonwealth v Mewett (1997) 191 CLR 471, 492–3 (Brennan CJ), 523–6 (Gaudron JJ); Re Wakim; Ex parte McNally (1999) 198 CLR 511, 574 [110] (Gummow and Hayne JJ); Lipohar (1999) 200 CLR 485, 505, 509 (Gaudron, Gummow and Hayne JJ), 551–2 (Kirby J); Esso v FCT [1999] HCA 67; (1999) 201 CLR 49, 61–2 [23] (Gleeson CJ, Gaudron and Gummow JJ). It should be noted that in Lipohar Callinan J maintained that there exists a distinct common law of each state: ibid 574–6. However, in Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, Callinan J accepted 'it is now settled that there is only one common law for the whole of Australia': ibid 212 [187].
[23] [1997] HCA 25; (1997) 189 CLR 520, 563.
[24] [1996] HCA 24; (1996) 189 CLR 51, 114 (McHugh J), 138 (Gummow J).
[25] (1999) 200 CLR 485, 505–6 (Gaudron, Gummow and Hayne JJ).
[26] Ibid 505 [45] (Gaudron, Gummow and Hayne JJ). See also Re Wakim; Ex parte McNally (1999) 198 CLR 511, 574 [110] (Gummow and Hayne JJ).
[27] [1996] HCA 24; (1996) 189 CLR 51, 114 (McHugh J).
[28] (1999) 200 CLR 485, 505–6 (Gaudron, Gummow and Hayne JJ).
[29] [1996] HCA 24; (1996) 189 CLR 51, 113–4 (McHugh J), 137–9 (Gummow J). This approach is consistent with the reasoning of members of the Court who advocated the existence of an Australian common law prior to Lange. See, eg, Mabo v Queensland (No 2) (1992) 175 CLR 1, 29 (Brennan J) (Mason CJ and McHugh J agreeing).
[30] [1994] HCA 46; (1994) 182 CLR 104 ('Theophanous').
[31] [1994] HCA 45; (1994) 182 CLR 211 ('Stephens').
[32] Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 ('Nationwide News'); Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 ('ACTV').
[33] In both cases the majority consisted of a joint judgment by Mason CJ, Toohey and Gaudron JJ and a separate judgment from Deane J. In both cases the minority judges were Brennan, Dawson and McHugh JJ.
[34] [1994] HCA 46; (1994) 182 CLR 104, 126 (Mason CJ, Toohey and Gaudron JJ).
[35] Ibid 140 (Mason CJ, Toohey and Gaudron JJ).
[36] See, eg, Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374, 405; Zines, above n 11, 23; Geoffrey Kennett, 'The Freedom Ride: Where to Now?' (1998) 9 Public Law Review 111, 112. It should be noted, however, that the judgment is unclear in establishing the way in which the defence operated: see Tony Blackshield and George Williams, Australian Constitutional Law & Theory—Commentary and Materials (3rd ed, 2002) 1205.
[37] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 140–1 (Mason CJ, Toohey and Gaudron JJ).
[38] Thereby making it difficult to identify a ratio in Theophanous.
[39] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 126 (Mason CJ, Toohey and Gaudron JJ).
[40] Ibid 173–4 (Deane J). See also Blackshield and Williams, above n 36, 1206.
[41] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 185 (Deane J). See also Michael Tilbury, 'Uniformity, The Constitution and Australian Defamation Law at the Turn of the Century' in Nicholas J Mullany and Allen M Linden (eds), Torts Tomorrow: A Tribute to John Fleming (1998) 259–60 n 121.
[42] [1994] HCA 46; (1994) 182 CLR 104, 163 (Brennan J), 194 (Dawson J), 207 (McHugh J).
[43] Ibid 153 (Brennan J).
[44] [1994] HCA 45; (1994) 182 CLR 211, 229–31 (Mason CJ, Toohey and Gaudron JJ). The freedom of political communication relied upon by the defendant was said to arise under both the Australian Constitution and the Constitution Act 1889 (WA).
[45] Stephens [1994] HCA 45; (1994) 182 CLR 211, 234 (Mason CJ, Toohey and Gaudron JJ). The circumstances were: if the defendant was unaware of the falsity of the material published and did not publish the material recklessly; and if the publications were reasonable in the circumstances.
[46] Ibid.
[47] Ibid.
[48] Blackshield and Williams, above n 36, 1212–15. See also Greg Taylor, '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, 278.
[49] [1994] HCA 45; (1994) 182 CLR 211, 257.
[50] Ibid 236, 256 (Brennan J), 258 (Dawson J), 259, 270 (McHugh J).
[51] Ibid 255–6 (Brennan J), 258 (Dawson J), 265–7 (McHugh J). See also Blackshield and Williams, above n 36, 1214.
[52] Lange [1997] HCA 25; (1997) 189 CLR 520, 550–1.
[53] Ibid 539 (summary of argument).
[54] Ibid 556.
[55] Kennett, above n 36, 113.
[56] Sexton, above n 7, 16. See also Theophanous [1994] HCA 46; (1994) 182 CLR 104, 126 (Mason CJ, Toohey and Gaudron JJ).
[57] Lipohar (1999) 200 CLR 485, 526 [103] (Gaudron, Gummow and Hayne JJ). See also R v White (Chief Collector of Taxes of the Territory of Papua New Guinea); Ex parte T A Field Pty Ltd (1975) 133 CLR 113, 117 (Barwick CJ) (Gibbs and Jacobs JJ agreeing).
[58] Lipohar (1999) 200 CLR 485, 526 [103] (Gaudron, Gummow and Hayne JJ).
[59] Lange [1997] HCA 25; (1997) 189 CLR 520, 556.
[60] Contra Zines, above n 11, 24.
[61] [1997] HCA 25; (1997) 189 CLR 520, 563–4. See also Stone, above n 36, 404–5; Sexton, above n 7, 18; Kennett, above n 36, 115.
[62] [1997] HCA 25; (1997) 189 CLR 520, 566.
[63] As pointed out by Kennett, this can be attributed partly to the fact that the Court considered it arguable that Theophanous did not contain a binding statement of constitutional principle: above n 36, 112.
[64] Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[65] New York Times Co v Sullivan [1964] USSC 40; 376 US 254 (1964); Gertz v Robert Welch Inc [1974] USSC 144; 418 US 323 (1974). The United States Constitution's First Amendment free speech clause applies to the states via the 14th Amendment's due process clause: Gilbert v Minnesota [1920] USSC 185; 254 US 325 (1920); Gitlow v New York [1925] USSC 174; 268 US 652 (1925); Fiske v Kansas [1927] USSC 114; 274 US 380 (1927). Although the United States Supreme Court rejected full incorporation of the Bill of Rights, most of the Bill of Rights provisions have been held to be applicable to the states: see Alpheus T Mason and Donald G Stephenson Jr, American Constitutional Law: Introductory Essays and Selected Cases (12th ed, 1999) 443; Malcolm Feeley and Samuel Krislov, Constitutional Law (2nd ed, 1990) 375–7.
[66] [1997] HCA 25; (1997) 189 CLR 520, 563 (footnote omitted). For a discussion of the United States position, see Adrienne Stone, 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219, 221–3.
[67] Sexton, above n 7, 18; Stone, above n 36, 411–2.
[68] Lange refers to the distinction as 'important for the present case': [1997] HCA 25; (1997) 189 CLR 520, 563. In Lipohar a majority stated that the distinction was 'essential' to the rejection of a constitutional defence: (1999) 200 CLR 485, 509–10 [57] (Gaudron, Gummow and Hayne JJ).
[69] Erie Railway Co v Tompkins [1938] USSC 94; 304 US 64 (1938). See also Stone, above n 66, 222.
[70] See, eg, Blackshield and Williams, above n 36, 1230.
[71] See, eg, Stone, above n 36, 404; Sexton, above n 7, 18.
[72] Lange [1997] HCA 25; (1997) 189 CLR 520, 560-71. See also ABC v Lenah Game Meats (2002) 208 CLR 199, 219 [20] (Gleeson CJ).
[73] Greg Taylor, 'The Effect of the Constitution on the Common Law as Revealed by John Pfeiffer v Rogerson' [2002] FedLawRw 3; (2002) 30 Federal Law Review 69, 79; Sexton, above n 7, 18; Kennett, above n 36, 115; Tilbury, above n 41, 263–4. But see Leslie Zines, 'Judicial Activism and the Rule of Law in Australia' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 391, 401; Zines above n 11.
[74] On why the distinction is important, see Taylor, above n 7, 625-6; Tilbury, above n 41, 264–7.
[75] Adrienne Stone and Greg Taylor take opposing positions on this issue. See, eg, Stone, above n 36, 406–17; Stone, above n 7; Taylor, above n 7.
[76] [1997] HCA 25; (1997) 189 CLR 520, 564 (footnotes omitted). See also Commonwealth v Mewett (1997) 191 CLR 471, 546 (Gummow and Kirby JJ).
[77] For an earlier view of the Australian legal system as unitary, see Sir Owen Dixon, 'Sources of Legal Authority' reprinted in Jesting Pilate and Other Papers and Addresses (1965) 198.
[79] Ibid 207 [113].
[80] [1994] HCA 46; (1994) 182 CLR 104, 153 (Brennan J).
[81] Ibid. See also James v Commonwealth [1939] HCA 9; (1939) 62 CLR 339, 362 (Dixon J); Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171, 208 (Dawson J); Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 46 (Brennan CJ), 61 (Dawson J); Taylor, above n 48, 278–9.
[82] [1997] HCA 25; (1997) 189 CLR 520, 564.
[83] Ibid 566.
[84] (1999) 200 CLR 485, 557 [180] (footnotes omitted).
[85] [2002] HCA 57; (2003) 194 ALR 161, [102], see also [65] (Gaudron, McHugh and Gummow JJ), [144], [160] (Kirby J).
[86] See, eg, Lipohar (1999) 200 CLR 485, 509 [57] (Gaudron, Gummow and Hayne JJ). See also ABC v Lenah Game Meats (2002) 208 CLR 199, 280 [194] (Kirby J).
[87] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 535 [70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[88] Ibid. See also Adrienne Stone, 'Choice of Law Rules, the Constitution and the Common Law' (2001) 12 Public Law Review 9, 10.
[89] See, eg, Chief Justice Murray Gleeson, 'Judicial Legitimacy' (2001) 20 Australian Bar Review 4, 9.
[90] Lange [1997] HCA 25; (1997) 189 CLR 520, 566–7.
[91] [1996] HCA 48; (1996) 186 CLR 140, 168 (Brennan CJ), 182–3 (Dawson J), 231 (McHugh J), 284–5 (Gummow J) ('McGinty').
[92] [1997] HCA 25; (1997) 189 CLR 520, 567. See also Kennett, above n 36, 114.
[93] Particularly ss 7, 24, 64 and 128 of the Constitution: Lange [1997] HCA 25; (1997) 189 CLR 520, 567.
[94] Lange [1997] HCA 25; (1997) 189 CLR 520, 565. See also Kennett, above n 36, 115.
[95] [1992] HCA 46; (1992) 177 CLR 1, 42–5 (Brennan J), 69–73 (Deane and Toohey JJ).
[96] [1992] HCA 45; (1992) 177 CLR 106, 168–9 (Deane and Toohey JJ), 208–15 (Gaudron J).
[97] [1994] HCA 46; (1994) 182 CLR 104, 121, 130 (Mason CJ, Toohey and Gaudron JJ).
[98] See, eg, ACTV [1992] HCA 45; (1992) 177 CLR 106, 210–11 (Gaudron J). See also Catherine Penhallurick, 'Commonwealth Immunity as a Constitutional Implication' (2001) 29 Federal Law Review 151, 161–2; Kennett, above n 36, 113.
[99] Leslie Zines, 'The Present State of Constitutional Interpretation' in Stone and Williams, above n 15, 227.
[100] [1997] HCA 25; (1997) 189 CLR 520, 566–7 (footnote omitted).
[101] Zines, above n 99, 227–8. See also Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 698–9.
[102] Zines, above n 99, 228. See Lange [1997] HCA 25; (1997) 189 CLR 520, 559–60. The scholar was A H Birch, Representative and Responsible Government: an essay on the British Constitution (1964).
[103] [1997] HCA 27; (1997) 190 CLR 1.
[104] Ibid 154 (footnote omitted). It should be noted that the 'legal equality' argument referred to by Gummow J concerned the question of whether the Constitution itself assumes certain common law doctrines (such as legal equality). Sometimes referred to as 'the common law of the Constitution', this question is different from the question of whether the Constitution influences the development of the common law.
[105] See generally Lange [1997] HCA 25; (1997) 189 CLR 520, 566–75.
[106] Ibid 567 (footnotes omitted). The Court made clear that the test applied to both statute law and common law: ibid 567. It should be noted that in Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 a number of the judgments appeared to qualify the Lange test: ibid 619 (Gaudron J), 645 (Kirby J), 614 (Toohey and Gummow JJ). However, in Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, the formulation of the test expressed in Lange was applied by those judges who found it necessary to address the issue: ibid [66]–[70] (Gaudron, McHugh and Gummow JJ), [162]–[163] (Kirby J).
[107] [1997] HCA 25; (1997) 189 CLR 520, 568.
[108] Argument in Lange was conducted on the basis that the plaintiff's action was to be determined by reference to the defamation law of NSW. Thus, a statutory defence of qualified privilege was open to the defendant under s 22 of the Defamation Act 1974 (NSW): ibid 569.
[109] [1997] HCA 25; (1997) 189 CLR 520, 569–70 (footnotes omitted).
[110] Ibid 571–2.
[111] Ibid 573. The Court in Lange emphasised that 'reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience.' at 573. See also Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161 [68] (Gaudron, McHugh and Gummow JJ), [161] (Kirby J), [222] (Hayne J).
[112] Lange [1997] HCA 25; (1997) 189 CLR 520, 574. In the context of the implied freedom, this meant a publication not made for the purpose of communicating governmental or political matters, but for an improper purpose. Although Lange did not explain the meaning of 'improper', the Court did state that the motive of causing political damage to a plaintiff or his or her political party could not be considered improper in this context. See also Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, in which the High Court further considered the kind of malice that defeats a defence of qualified privilege at common law, and the relationship between the common law defence of qualified privilege and the extended Lange defence.
[113] [1997] HCA 25; (1997) 189 CLR 520, 571. The Court gave the example of discussion of matters concerning the United Nations or other countries.
[114] Ibid 566.
[115] But see Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 203 [160] (Kirby J). In discussing the requirement that common law rules adapt to the Constitution, Kirby J stated that 'any narrower, or other, common law rule cannot survive' (emphasis added).
[116] Keeping in mind Gaudron, McHugh and Gummow JJ's observation in Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161, 179 [73], that '[i]t would be a serious mistake to think that Lange exhaustively defined the constitutional freedom's impact on the law of defamation'.
[117] [2001] 2 AC 127 ('Reynolds').
[118] Ibid 204 (Lord Nicholls), 210–11 (Lord Steyn), 218–19 (Lord Cooke), 235 (Lord Hope), 239 (Lord Hobhouse).
[120] Ibid 468 (Richardson P, Henry, Keith and Blanchard JJ), 475 (Tipping J).
[121] Ibid 469–70 (Richardson P, Henry, Keith and Blanchard JJ), 477 (Tipping J). It should be noted that Tipping J considered that reasonableness could be relevant to whether the defendant has taken improper advantage of the occasion of publication: ibid 477. Lange v Atkinson was delivered just six weeks prior to Reynolds. On appeal, the Privy Council held that the New Zealand Court of Appeal should have the opportunity of considering Reynolds when formulating the common law of New Zealand and remitted the appeal to the Court of Appeal for rehearing: Lange v Atkinson [2000] 1 NZLR 257, 263–4 (Lord Nicholls gave the judgment of the Board). Upon rehearing, the Court of Appeal confirmed the approach taken in its earlier decision: Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 399–400 (Richardson P, Henry, Keith, Blanchard and Tipping JJ).
[122] The concept of 'Constitution' used in this context appears to extend beyond the orthodox view that 'Constitution' means the text of the Constitution or necessary implications arising from it. In this context, 'Constitution' may include broader concepts such as constitutional 'values', 'principles' or 'matters'. This issue is discussed in more detail in Part II(C).
[123] Sexton, above n 7, 19–20.
[124] [2000] HCA 36; (2000) 203 CLR 503. Choice of law was a somewhat unusual context for the question of the common law's interaction with the Constitution to be raised. In other countries, the question of constitutional influence on the common law more commonly arises in the context of constitutional 'rights': Stone, above n 88, 9. It should be noted that the use of the phrase 'constitutional rights' is not favoured in Australian constitutional jurisprudence. The High Court prefers expressions such as 'freedoms' or 'limitations on legislative and executive power', rather than 'rights': Blackshield and Williams, above n 36, 1092–3. See, eg, Lange [1997] HCA 25; (1997) 189 CLR 520, 560.
[125] Part 5 of the Workers Compensation Act 1987 (NSW) limited the amount of damages that could be awarded for non-economic loss. No such limit was imposed under ACT law.
[126] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 544 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 564 [164] (Kirby J), 575–6 [200] (Callinan J).
[127] [1991] HCA 56; (1991) 174 CLR 1 ('McKain v Miller').
[128] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 540 [87] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 562–3 [157] (Kirby J).
[129] Ibid 575–6 (Callinan J).
[130] Sexton, above n 7, 22.
[131] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 534 [67] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[132] Ibid 535 [67] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[133] Ibid 535 [68] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (emphasis added).
[134] Ibid 535 [70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[135] Stone, above n 88, 11.
[136] Ibid. Arguably, Stone could draw support from ABC v Lenah Game Meats (2002) 208 CLR 199, 219 [20] (Gleeson CJ). But see Taylor, above n 73, 70–1.
[137] Stone, above n 7, 650.
[139] Ibid 1169. The Canadian Charter of Rights and Freedoms ('the Charter') is Part 1 of the Constitution Act 1982.
[140] See also Taylor, above n 73, 75–6. For an overview of the Canadian position, see Peter W Hogg, Constitutional Law of Canada (4th ed, 1997), 853–8.
[142] Ibid 598–9.
[143] Ibid 603. See also R v Salituro [1991] 3 SCR 654; Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835.
[144] [1995] 2 SCR 1130, 1171 [97] (Cory J, on behalf of La Forest, Gonthier, McLachlin, Iacobucci and Major JJ).
[145] [2000] HCA 36; (2000) 203 CLR 503, 534 [67] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[146] Sexton, above n 7, 21–2.
[147] The majority considered three possibilities - lex fori, lex loci delicti and proper law of the tort. The Court also had to decide whether the resulting rule would be subject to a flexible exception: Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 535 [72] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[148] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 536 [74] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[149] Ibid 536–7 [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[150] Ibid 541 [91] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), see also 551 [123] (Kirby J).
[151] See, eg, Taylor, above n 73, 83.
[152] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 535 [70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[153] See, eg, Taylor, above n 73, 83.
[154] Selway, above n 7, 232 (footnotes omitted). See also Sexton, above n 7, 22.
[155] The Constitution is no longer considered 'merely' a statute: see, eg, Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, 274 (Brennan, Deane and Toohey JJ); ACTV [1992] HCA 45; (1992) 177 CLR 106, 137–8 (Mason CJ). See also Justice William Gummow, Change and Continuity: Statute, Equity and Federalism (1999), 74–5; Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' [1996] FedLawRw 5; (1996) 24 Federal Law Review 133, 144–6.
[156] See, eg, Gummow, above n 155, 1–37; Jack Beatson, 'Has the Common Law a Future?' (1997) 56 Cambridge Law Journal 291; Justice Robert French, 'Statutory Modelling of Torts' in Nicholas Mullany (ed) Torts in the Nineties (1997), 211; Paul Finn, 'Statutes and the Common Law' (1992) 22 University of Western Australia Law Review 7; PS Atiyah, 'Common Law and Statute Law' (1985) 48 Modern Law Review 1; John Burrows, 'Common Law and Statute' [1980] New Zealand Law Journal 98.
[157] Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91, 99–100 (Dixon J); Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [1984] HCA 73; (1984) 156 CLR 414, 445 (Deane J) (Gibbs CJ, Mason, Wilson and Dawson JJ agreeing); Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 669 (Gibbs CJ) (Wilson, Brennan, Deane and Dawson JJ agreeing); Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 11 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); R v L [1991] HCA 48; (1992) 174 CLR 379, 389-390 (Mason CJ, Deane and Toohey JJ); Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 247 (Gummow J); Esso v FCT [1999] HCA 67; (1999) 201 CLR 49, 61–3 [23]–[25] (Gleeson CJ, Gaudron and Gummow JJ), 83 [91] (Kirby J).
[158] The possible utility of comparing the Constitution's influence on the common law to that of an ordinary statute is recognised by Sexton: above n 7, 23–4 n 60. Although not considered here, it may also prove useful to draw a comparison with the High Court's use of international treaties as an influence on the common law. See generally Kristen Walker, 'Treaties and the Internationalisation of Australian Law' in Cheryl Saunders (ed) Courts of Final Jurisdiction: The Mason Court in Australia (1996) 212–8.
[159] Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, 11 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
[160] French, above n 156, 215–6.
[161] [1979] AC 731, 743. The English Court of Appeal applied Lord Diplock's principle in Attorney-General v Blake [1998] Ch 439, 463 (Lord Woolf MR, for the Court).
[162] [1987] HCA 47; (1987) 164 CLR 1, 11 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
[163] (1986) 159 CLR 656, 669 (Gibbs CJ) (Wilson, Brennan and Dawson JJ agreeing) ('Osmond'). However, French notes that it is unclear whether Osmond rejected the use of analogical reasoning or the use of analogical reasoning from statutes in one jurisdiction to another: above n 156, 225. See also David St Leger Kelly, 'The Osmond Case: Common Law and Statute Law' (1986) 60 Australian Law Journal 513.
[164] Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91, 99–100 (Dixon J); Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] [1984] HCA 73; (1984) 156 CLR 414, 445 (Deane J) (Gibbs CJ, Mason, Wilson and Dawson JJ agreeing); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 309 (Mason, Wilson and Dawson JJ); R v L [1991] HCA 48; (1992) 174 CLR 379, 390 (Mason CJ, Deane and Toohey JJ); Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 247 (Gummow J).
[165] [1984] HCA 73; (1984) 156 CLR 414.
[166] Ibid 445 (Deane J) (Gibbs CJ, Mason, Wilson and Dawson JJ agreeing).
[167] [1999] HCA 67; (1999) 201 CLR 49.
[168] The Evidence Act 1995 (Cth) test was whether the communication was made, or the document was prepared, for the dominant purpose of the lawyer providing legal advice or legal services. The common law test, since Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, was that privilege would only attach to a confidential communication made for the sole purpose of obtaining or giving legal advice or assistance or of use in legal proceedings: ibid 54 [2] (Gleeson CJ, Gaudron and Gummow JJ).
[169] [1999] HCA 67; (1999) 201 CLR 49, 58 [13] (Gleeson CJ, Gaudron and Gummow JJ). The appellant made three alternative contentions, of which the second was that the common law should be treated as modified to accord with the statutory test.
[170] Ibid 61–2 [23] (Gleeson CJ, Gaudron and Gummow JJ), 83 [91] (Kirby J).
[171] Ibid 61–3 [23]–[28] (Gleeson CJ, Gaudron and Gummow JJ). Justice Kirby accepted that statute can and does influence the common law, although he did not expressly refer to the doctrine of analogy: ibid 83 [91]. Justice Callinan disagreed on this issue, stating that the United States 'modification' theory had not yet received any acceptance in the High Court: ibid 99 [144]. Justice McHugh did not explain his reasons for rejecting the appellant's contention in this regard. See generally Michael Legg, 'Legal Professional Privilege After Esso—Applying a Dominant Purpose Test' (2000) 20 Australian Bar Review 40, 43.
[172] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.
[173] (2002) 208 CLR 199, 219 [20] (Gleeson CJ).
[174] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 535 [70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Zines, above n 11, 24 n 91.
[175] Esso v FCT [1999] HCA 67; (1999) 201 CLR 49, 62 [25] (Gleeson CJ, Gaudron and Gummow JJ).
[176] See the authorities cited in Jeremy Kirk, 'Constitutional Interpretation and a Theory of Evolutionary Originalism' (1999) 27 Federal Law Review 323, 325; Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' [1997] FedLawRw 1; (1997) 25 Federal Law Review 1, 12–15. See also Leslie Zines, The High Court and the Constitution (4th ed, 1997), 17–22.
[177] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 41 [132] (McHugh J). See also Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 400 [132] (Kirby J).
[178] See, eg, Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 400 [132] (Kirby J). See also Goldsworthy, above n 176, 28–35.
[179] In Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, Brennan CJ described federation as the 'leading object' of the Constitution: ibid 42.
[180] See, eg, Taylor above n 73, 79. Taylor contends that Lange leaves the common law 'largely autonomous of the constitutional guarantee'. In contrast, Stone suggests that the common law rule developed in Lange is constitutionally entrenched: above n 7, 648–9.
[181] Kirk, above n 10, 64. See also Stone, above n 88, 11.
[182] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 535 [70] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Stone, above n 7, 648.
[183] Compare the position taken by Michael J Detmold, 'Australian Law Areas: the Status of Laws and Jurisdictions' (2001) 12 Public Law Review 185, 198 with that taken by Taylor, above n 73, 82–95.
[184] Stone, above n 88, 11.
[185] [2000] HCA 36; (2000) 203 CLR 503, 534-5 [67] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[186] [1999] HCA 30; (1999) 199 CLR 462.
[187] Ibid 488–90 [53]-[58] (Gleeson CJ, Gummow and Hayne JJ), 526–8 [168]-[173] (Gaudron J). See also Zines, above n 99, 229.
[188] Zines, above n 99, 229.
[189] Taylor, above n 73, 86.
[190] See, eg, Gleeson, above n 89, 9–10.
[191] Stone, above n 88, 10.
[192] For example, compare the different conclusions said to result from the nature of federation in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 121 (Deane J) ('Breavington') with McKain v Miller [1991] HCA 56; (1991) 174 CLR 1, 36 (Brennan, Dawson, Toohey and McHugh JJ)
[193] [2002] HCA 10; (2002) 76 ALJR 551 ('Zhang').
[194] Ibid 565 [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 574–5 [123] (Kirby J).
[195] See, eg, Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13 Public Law Review 205, 225 n 168.
[196] [1998] HCA 22; (1998) 195 CLR 337.
[197] Ibid 400.
[198] Greg Taylor, 'The Horizontal Effect of Human Rights Provisions, the German Model and its Applicability to Common-Law Jurisdictions' (2002) 13 King's College Law Journal 187, 214. Taylor draws a distinction between common law rules which regulate private relationships, and common law rules of a public law nature or involving the criminal law, above n 7, 627.
[199] In relation to common law contempt, Sexton refers to John Fairfax Publications Pty Ltd v AG (NSW) [2000] NSWCA 198; (2000) 181 ALR 694, although this case involved the validity of legislation: above n 7, 26. See also ABC v Lenah Game Meats (2002) 208 CLR 199, which raised two questions of relevant interest: first, the impact of the implied freedom on the granting of equitable remedies which constitute a burden on the implied freedom; and second, how an action to protect privacy, if recognised, would give effect to the implied freedom. See generally Sexton, above n 7, 26–7.
[200] See generally Selway, above n 7; Stephen Gageler, 'The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?' (2000) 28 Federal Law Review 303.
[201] See generally Patrick Keyzer, 'Pfeiffer, Lange, the Common Law of the Constitution and the Constitutional Right to Natural Justice' (2000) 20 Australian Bar Review 87.
[202] Commonwealth v Mewett (1997) 191 CLR 471, 550–52 (Gummow and Kirby JJ) (Brennan CJ agreeing). See, eg, Bradley Selway, 'The Source and Nature of the Liability in Tort of Australian Governments' (2002) 10 Tort Law Review 14.
[203] See, eg, Egan v Willis [1998] HCA 71; (1998) 195 CLR 424. See also Hon Duncan Kerr MP, 'Mr Egan and the Legislative Council: Federal Implications' (1999) 19 Australian Bar Review 67.
[204] Croft v Dunphy [1933] AC 156; Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177, 189 (Barwick CJ), 224–5 (Windeyer J); R v Bull [1974] HCA 23; (1974) 131 CLR 203, 263 (Gibbs J), 270–1 (Stephen J), 280–2 (Mason J); New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 468–9 (Mason J), 494–5 (Jacobs J); Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507, 514–20 (Gibbs J), 522 (Stephen J); Union Steamship Co of Australia Pty Ld v King [1988] HCA 55; (1988) 166 CLR 1, 12 ('Union Steamship').
[205] In Union Steamship, the Court observed that s 2(1) of the Australia Act 1986 (UK) c2 and s 2(1) of the Australia Act 1986 (Cth) 'may do no more than recognise what has already been achieved in the course of judicial decisions': [1988] HCA 55; (1988) 166 CLR 1, 14.
[206] [1976] HCA 26; (1976) 135 CLR 507, 518; cited in Union Steamship [1988] HCA 55; (1988) 166 CLR 1, 14. See also Lipohar (1999) 200 CLR 485, 524 [97] (Gaudron, Gummow and Hayne JJ); Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, 165 [9] (Gleeson CJ), 174–5 [48] (Gaudron, Gummow and Hayne JJ), 195 [123] (Kirby J).
[207] State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 235, 286 (McHugh and Gummow JJ) ('SASB'). See also Australian Law Reform Commission, Choice of Law, Report No 58 (1992) 17 [3.6]; Kirk, above n 10, 67. However, it is useful to note Kirby J's observation in Mobil Oil v Victoria that, despite the logical possibility of conflict, in practice such conflicts are rare: [2002] HCA 27; (2002) 189 ALR 161, 189 [108].
[208] Justice William Gummow, 'Full Faith and Credit in Three Federations' (1995) 46 South Carolina Law Review 979, 986. See also Port MacDonnell Professional Fisherman's Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340, 374 ('Port MacDonnell').
[209] Port MacDonnell [1989] HCA 49; (1989) 168 CLR 340, 374. See also SASB (1996) 189 CLR 235, 285 n 126 (McHugh and Gummow JJ); Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 527 [43] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). For a discussion of the concept of statutory inconsistency, see University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447, 463–4 (Mason J). In the context of inconsistency between a federal and state law (resolved by s 109 of the Constitution), two types of inconsistency are recognised: 'direct' and 'covering the field' inconsistency. However, there are important differences between Commonwealth-state conflicts and state-state conflicts that must be taken into account in applying s 109 case law to the interstate context. See generally Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, 197–8 (Kirby J). See also Kirk, above n 10, 85–6.
[210] Kirk, above n 10, 67.
[211] Conflicts between Commonwealth laws and laws of a self-governing territory are resolved through the application of a rule analogous to s 109: University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447, 464 (Mason J); Northern Territory v GPAO (1999) 196 CLR 553, 630 (Kirby J); Lipohar (1999) 200 CLR 485, 553 (Kirby J).
[212] In relation to the absence of a s 109 equivalent dealing with interstate statutory conflict, see Breavington [1988] HCA 40; (1988) 169 CLR 41, 128 (Deane J); Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, 189 [108] (Kirby J).
[213] See, eg, Mark Leeming 'Resolving Conflicts Between State Criminal Laws' (1994) 12 Australian Bar Review 107, 117.
[214] See, eg, Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309, 363 (O'Connor J); R v Foster; Ex parte Eastern and Australian Steamship Co Ltd [1959] HCA 10; (1959) 103 CLR 256, 275 (Dixon CJ). It should be noted that the application of this presumption in the federal context has been called into question: Dempster v National Companies and Securities Commission (1993) 10 ACSR 297, 320–21 (Malcolm CJ). See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (5th ed, 2001) 133.
[215] See the discussion in Pearce and Geddes, above n 214, 133–5.
[216] Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 558 (Dawson J). But see Breavington [1988] HCA 40; (1988) 169 CLR 41, 124–8 (Deane J) and McKain v Miller [1991] HCA 56; (1991) 174 CLR 1, 53 (Deane J).
[217] Lipohar (1999) 200 CLR 485, 553 (Kirby J).
[218] But see, Kirk, above n 10, 85-97 who advocates a 'closer connection' test to resolve inconsistencies between state statutes. Kirk's test is briefly considered below, text accompanying n 277-9.
[219] [1988] HCA 40; (1988) 169 CLR 41.
[220] Ibid 129. See also Thompson v The Queen [1989] HCA 30; (1989) 169 CLR 1, 35 (Deane J).
[221] Section 106 provides:
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission of the State, as the case may be, until altered in accordance with the Constitution of the State.
Section 107 provides:
Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
[222] Breavington [1988] HCA 40; (1988) 169 CLR 41, 128.
[223] Ibid.
[224] Ibid. Emphasis added. Section 108 provides:
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.
[225] Breavington [1988] HCA 40; (1988) 169 CLR 41, 129.
[226] Ibid.
[227] Ibid.
[228] [2002] HCA 27; (2002) 189 ALR 161.
[229] Section 13 of the Courts and Tribunals (Miscellaneous Amendments) Act 2000 (Vic), which inserted Part 4A into the Supreme Court Act 1986 (Vic).
[230] [2002] HCA 27; (2002) 189 ALR 161, 185 [94] (Kirby J).
[231] Ibid 168 [16]. Chief Justice Gleeson's discussion was directed to an implication prohibiting extraterritorial state legislation that would affect the relationship between another State and its residents or would determine the legal consequences of actions in another State. By expressing the view that such a proposition was 'far too broad', Gleeson CJ left open the possibility that the Constitution might impose a less restrictive territorial limit on State legislative power.
[232] [2002] HCA 27; (2002) 189 ALR 161, 174–5 [47]–[48].
[233] Ibid 199–200 [140]–[142].
[234] Ibid 200 [141].
[235] Ibid 197 [133].
[236] Ibid 197 [130].
[237] Ibid 210–11 [184], 214 [191].
[238] Ibid 210 [181]. See also Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 433 [79] (Callinan J).
[239] See above Part I (D)(1).
[240] McGinty [1996] HCA 48; (1996) 186 CLR 140, 231 (McHugh J), see also 168–9 (Brennan CJ), 188 (Dawson J), 291 (Gummow J); Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 152 (Gummow J); Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 410 [14] (Gaudron, McHugh, Gummow and Hayne JJ).
[241] Breavington [1988] HCA 40; (1988) 169 CLR 41, 128.
[242] Section 74 of the Constitution indicates the Constitution's framers were aware of the possibility of conflict between state statutes: Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, 190 [109] (Kirby J).
[243] Section 109 of the Constitution.
[244] See, eg, Breavington [1988] HCA 40; (1988) 169 CLR 41, 81–3 (Mason CJ), 93–8 (Wilson and Gaudron JJ), 116-117 (Brennan J), 133–4 (Deane J), 150 (Dawson) 164 (Toohey J); McKain v Miller [1991] HCA 56; (1991) 174 CLR 1, 36–7 (Brennan, Dawson, Toohey and McHugh JJ), 45–6 (Deane J), 55 (Gaudron J). See also Gummow, above n 208; Georgina Whitelaw, 'Interstate Conflicts of Laws and Section 118' (1994) 5 Public Law Review 238; Peter Nygh, 'Full Faith and Credit: A Constitutional Rule for Conflict Resolution' [1991] SydLawRw 27; (1991) 13 Sydney Law Review 415; David St Leger Kelly, Localising Rules in the Conflict of Laws (1974) 100–24.
[245] [2000] HCA 36; (2000) 203 CLR 503, 533–4, 541 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 556–8 (Kirby J), 576 (Callinan J).
[246] Ibid 534 [65].
[247] Indeed, Davis suggests that Pfeiffer has exacerbated uncertainty about s 118's operation: Gary Davis, 'John Pfeiffer Pty Ltd v Rogerson: Choice of Law in Tort at the Dawning of the 21st Century' [2000] MelbULawRw 38; (2000) 24 Melbourne University Law Review 982, 993.
[248] Kirk, above n 10, 72.
[249] Lipohar (1999) 200 CLR 485, 534 [120] (Gaudron, Gummow and Hayne JJ). Their Honours also referred to the possibility of covering cl 5 and s 109 of the Constitution providing a constitutional basis for the doctrines. Applying these doctrines to the Australian context means that 'a person already acquitted or convicted of an offence in one part of Australia cannot be retried for that offence in another': Kirk, above n 10, 61.
[250] Kirk, above n 10, 86. See also Gummow, above n 208, 1019.
[251] McGinty [1996] HCA 48; (1996) 186 CLR 140, 168–9 (Brennan CJ), 188 (Dawson J), 230–2 (McHugh J), 291 (Gummow J); Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 410 [14] (Gaudron, McHugh, Gummow and Hayne JJ).
[252] [1958] HCA 14; (1958) 99 CLR 132.
[253] Ibid 148 (Dixon CJ). Lamshed v Lake has been described as a 'watershed' on the basis that it was the first time the Court 'approached the Territories power as one which was integrated with the rest of the Constitution, rather than as a disparate, non-federal power': Tom Pauling, 'The Constitutional Differences Between Territories and States' (2000) 20 Australian Bar Review 187, 187–8.
[254] Northern Territory (Self-Government) Act 1978 (Cth); Australian Capital Territory (Self-Government) Act 1988 (Cth). Norfolk Island has been granted a more limited form of self-government: Norfolk Island Act 1979 (Cth).
[255] Brian Opeskin, 'Constitutional Dimensions of Choice of Law in Australia' (1992) 3 Public Law Review 152, 169.
[256] See, eg, ibid 170; Michael Tilbury, Gary Davis and Brian Opeskin, Conflict of Laws in Australia (2002) 525–6; Kirk, above n 10, 88–9.
[257] Opeskin, above n 255, 169–70. See also Kirk, above n 10, 88.
[258] Breavington [1988] HCA 40; (1988) 169 CLR 41.
[259] Ibid 149.
[260] Ibid 138.
[261] Ibid 137–8 (Deane J).
[262] [1992] HCA 51; (1992) 177 CLR 248, 272 (Brennan, Deane and Toohey JJ), citing Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 154.
[263] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 193 (Dixon J); Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 560 [137] (Gummow and Hayne JJ); Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 4 February 2003) [31] (Gleeson CJ), [103]-[104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). See also Selway, above n 7, 230.
[264] Kirk, above n 10, 86–7.
[265] [1988] HCA 40; (1988) 169 CLR 41, 123. See also University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447, 467 (Murphy J); Commonwealth v Mewett (1997) 191 CLR 471, 527 (Gaudron J).
[266] (1999) 200 CLR 485, 553 [171].
[267] Pfeiffer (2000) [2000] HCA 36; (2000) 203 CLR 503, 536–7 [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), 551 [124] (Kirby J).
[268] Breavington [1988] HCA 40; (1988) 169 CLR 41, 128–9.
[269] Ibid. See also Macleod v Attorney-General (NSW) [1891] AC 455.
[270] Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, 188 [103] (Kirby J).
[271] [2000] HCA 36; (2000) 203 CLR 503, 536–7 [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[272] Mobil Oil v Victoria [2002] HCA 27; (2002) 189 ALR 161, 187 [102] (Kirby J).
[273] To borrow the terminology used by Stone, above n 88, 10.
[274] McKain v Miller [1991] HCA 56; (1991) 174 CLR 1, 53 (Deane J). Arguably, the High Court indicated it would view favourably a predominant territorial nexus test in Port MacDonnell [1989] HCA 49; (1989) 168 CLR 340, 374 (the Court).
[275] [2000] HCA 36; (2000) 203 CLR 503, 551 [123] (Kirby J).
[276] Lipohar (1999) 200 CLR 485, 554 [171].
[277] Kirk, above n 10, 72, 85-8.
[278] Ibid 72, 86–7.
[279] This is not to say that there are no difficulties associated with the predominant territorial nexus test. For example, how is the predominant territorial nexus to be determined? See, eg, Opeskin, above n 255, 164. In Breavington, Deane J observed that the analogical use of private international law rules might prove to be of assistance, although the possibility was not explored in any detail: [1988] HCA 40; (1988) 169 CLR 41, 137. See also McKain v Miller [1991] HCA 56; (1991) 174 CLR 1, 53 (Deane J).
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