Federal Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Federal Law Review |
|
Graeme Hill[*]
It is clear that s 80 of the Judiciary Act 1903 (Cth) ('the Judiciary Act') operates on the common law in cases in federal jurisdiction, but its precise effect is somewhat obscure. Section 80 provides:
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
Until recently, the High Court tended to concentrate on s 79 of the Judiciary Act (which applies the laws of the State and Territory where a court is exercising federal jurisdiction), and to consider s 80 only as an afterthought.[1] However, s 80 has become the focus of attention following the High Court's decision in Blunden v Commonwealth,[2] which held that a court exercising federal jurisdiction should properly exhaust the operation of s 80 before going on to consider s 79.[3]
The difficulties in interpreting s 80 of the Judiciary Act include its relationship with s 79 of that Act (particularly whether s 80 applies statutory modifications of the common law, as well as the common law),[4] and the meaning, if any, of the requirement that the provisions of a Commonwealth Act be 'insufficient to carry them into effect, or to provide adequate remedies or punishment'.[5]
However, I do not propose to consider these difficulties in any detail. Instead, I will focus on what seems to be the central function of s 80 — to apply the common law in cases in federal jurisdiction (except where the common law is inconsistent with the Constitution or applicable statutory law). Although that function is easily described, it is not at all self-evident how that function is performed. What exactly is the effect of s 80 when it provides that 'the common law in Australia … shall … govern all Courts exercising federal jurisdiction'? After explaining the issues raised by this question, I seek to provide an answer. Briefly, I suggest that although s 80 in terms seems to apply an independently existing 'common law', it could more accurately be described as a conferral of judicial power to apply and develop the common law.
Despite the notorious ambiguity in the meaning of the 'common law', it seems safe to say that s 80 of the Judiciary Act applies the body of unwritten law which is created and defined by the courts.[6] It also seems safe to say that s 80 applies the common law as decided from time to time, rather than the common law as at 1903.[7]
The ability of a Commonwealth statute to apply the common law (as just defined) raises two issues, which are considered in turn:
(1) whether the application of the common law by s 80 interferes with the separation of legislative and judicial power ('the separation of judicial power issue'), and
(2) whether the Commonwealth has legislative power to deal with the subject-matter of the common law principles applied by s 80 ('the subject-matter issue').
The first issue is whether the application of the common law by s 80 of the Judiciary Act interferes with the separation of legislative and judicial power. This sort of issue has arisen for decision in two cases — Western Australia v Commonwealth,[8] and Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2).[9]
In the Native Title Act Case, the High Court held that s 12 of the Native Title Act 1993 (Cth) ('the Native Title Act') was invalid. Section 12 provided relevantly that 'the common law of Australia in respect of native title has, after 30 June 1993, the force of a law of the Commonwealth'.
The joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ held that there were several constitutional difficulties with s 12 of the Native Title Act.
• First, s 12 could not validly invest the common law with the force of a law of the Commonwealth. That would be either an invalid conferral of legislative power on the courts, or an invalid exercise of judicial power by the Commonwealth Parliament.[10]
A 'further objection to validity'[11] arose if (as seems likely) s 12 was interpreted as applying the common law of native title, as developed from time to time. The joint judgment stated that 'the Parliament cannot delegate to the Courts the power to make law involving, as that power does, a discretion or, at least, a choice as to what that law should be'.[12]
Finally, s 12 purported to diminish the legislative power of the States confirmed by s 107 of the Constitution. The apparent reason for giving the common law of native title the force of a law of the Commonwealth was to engage s 109 of the Constitution, so that the common law would prevail over any inconsistent State legislation. However, the joint judgment held, a Commonwealth Act cannot withdraw the States' power to override the common law.[13]
Although the first two points are given as separate objections, they may in fact be different aspects of the same difficulty. In other words, it may be that the question of whether a Commonwealth Act purports to confer legislative power on the courts (or to exercise judicial power by legislation) only arises when the Act gives legislative effect to the common law as in force from time to time.[14]
Significantly, however, the Native Title Act Case indicated that the Commonwealth could sometimes legislate by reference to the common law. Specifically, the joint judgment stated that the invalidity of s 12 of the Native Title Act did not cast doubt on the validity of s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ('the Commonwealth Places Act'). Section 4(1) provides that '[t]he provisions of the laws of a State [defined in s 3(1) to include the "unwritten" law] as in force at a time … apply … in accordance with their tenor' in relation to a Commonwealth place in that State. According to the joint judgment, the reason that s 4(1) is valid, but s 12 of the Native Title Act is not, is because s 4(1) refers to the State provisions
as a dictionary for reference in ascertaining the rights and duties under Commonwealth law within Commonwealth places at the particular time. Section 4(1) does not enact either the State statute law or the common law as a law of the Commonwealth.[15]
It will be necessary to return to these reasons for distinguishing s 4(1) of the Commonwealth Places Act from s 12 of the Native Title Act.[16]
In Berbatis, French J considered whether s 51AA of the Trade Practices Act 1974 (Cth) ('the Trade Practices Act') had the same problem as s 12 of the Native Title Act. Section 51AA(1) provides that '[a] corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories'. French J held that s 51AA was valid. Briefly, his Honour reasoned as follows.
• First, French J observed that there were several longstanding Commonwealth provisions that incorporate by reference elements of the common law, including s 80 of the Judiciary Act.[17] Although these provisions were not of course determinative of constitutional validity, their long standing 'require[d] close attention' to whether there were any relevant points of distinction between s 51AA of the Trade Practices Act and s 12 of the Native Title Act.[18]
Secondly, French J held that there was a significant difference of degree between s 51AA(1) of the Trade Practices Act and s 12 of the Native Title Act. Unlike s 12, s 51AA 'does not purport to adopt the unwritten law … and give it the force of statute'; instead, s 51AA uses the unwritten law to determine what conduct is 'unconscionable' and prohibits that conduct.[19] On the other hand, s 12 of the Native Title Act transmuted judicial decisions directly into Commonwealth law, and therefore 'was significantly closer as a matter of degree to authorising judicial legislation than s 51AA'.[20]
Finally, other provisions of the Trade Practices Act refer to 'unconscionability', but without explicitly tying its content to the unwritten law; in particular, s 51AB (prohibiting unconscionable conduct in relation to the supply of goods or services) and s 51AC (prohibiting unconscionable conduct in business transactions). French J stated that it could safely be assumed that these provisions were constitutionally valid.[21] Crucially, the process of decision-making under s 51AA was 'qualitatively so close' to those under s 51AB and s 51AC that it followed that s 51AA did not offend the separation of powers principle either.[22]
Although Berbatis was ultimately appealed to the High Court, the conclusion upholding the validity of s 51AA of the Trade Practices Act was not challenged.[23] Two points may be noted.
First, French J stated that there is no 'express line of logic'[24] separating the valid provisions from the invalid; instead, validity turns on questions of degree. Significantly, his Honour upheld the validity of s 51AA of the Trade Practices Act, even though his Honour considered that it would be 'too simplistic' to describe s 51AA as using the common law as a dictionary to give content to that provision.[25] Therefore, it seems that the explanation given in the Native Title Act Case for why s 4(1) of the Commonwealth Places Act is valid — because it uses the common law 'as a dictionary' for determining rights under Commonwealth law[26]
— is not the only way that a Commonwealth Act may validly legislate by reference to the common law.
Secondly, French J did not see any constitutional difficulty with the possibility that the common law meaning of 'unconscionability' might develop over time. His Honour stated:
The possibility that those classes [of unconscionable conduct] may expand incrementally or by some sudden rationalisation of the concept of unconscionability at the level of the High Court does not put the judge in any more difficult a position than the judge applying unconscionability assessments of s 51AB or 51AC in the light of the common law or otherwise in accordance with established approaches to statutory construction. [27]
This statement is significant, because it seems that the fact that a Commonwealth Act operates on the common law as in force from time to time is what gives rise to the argument that the Act purports (invalidly) to confer legislative power on the courts, or to exercise judicial power by legislation.[28]
The second point in Berbatis (that s 51AA of the Trade Practices Act could validly operate on the unwritten law of 'unconscionability' as determined from time to time) might seem at first to run counter to the Native Title Act Case. As noted earlier, one difficulty with s 12 of the Native Title Act was that the Parliament could not confer on the courts a discretion or choice as to what the content of a Commonwealth law should be.[29]
In my view, however, there is no inconsistency between Berbatis and the Native Title Act Case.
Two considerations support the conclusion of French J that there is no necessary difficulty with the content of a Commonwealth provision altering with alterations in the common law.
First, it is unlikely that the joint judgment in the Native Title Act Case meant to lay down an absolute rule that the content of a Commonwealth provision could never depend on judicial development of the common law.[30]
That sort of absolute rule could not be reconciled with the joint judgment's statements that s 4(1) of the Commonwealth Places Act was valid.
Secondly, it may be noted, by analogy, that the former national corporations scheme involved each of the States applying the Corporations Law enacted by the Commonwealth 'as in force for the time being'.[31] The High Court held in several cases that the States had not abdicated their legislative power.[32] Admittedly, the joint judgment in the Native Title Act Case stated that different considerations arise when a Commonwealth provision operates by reference to judicial decisions, rather than a text enacted by another Parliament.[33]
However, there does not seem to be any relevant difference in the breadth of any discretion given to a body other than the Commonwealth Parliament to vary, indirectly, the content of Commonwealth law. Of course, it could be argued that the implication drawn in the Native Title Act Case does not just enforce the responsibilities of the Commonwealth Parliament, but also protects the independence and integrity of the judiciary.[34] However, the Constitution guarantees the independence of the States from the Commonwealth,[35] as well as the independence of the Commonwealth judiciary from the Commonwealth legislature and executive.
Instead, I would suggest, the relevant limit here is that a Commonwealth Act cannot be so open-ended that it no longer determines 'the content of a law as a rule of conduct or a declaration as to power, right or duty'.[36] Although this test requires drawing an analogy with the delegation of legislative power on the executive, the joint judgment in the Native Title Act Case itself draws that analogy.[37] The need for legislation to be reasonably certain may explain why the joint judgment accepted that a Commonwealth Act can validly adopt 'a text which emanates from a source other than the Parliament', and why it was a problem that the common law is not contained in a 'text'.[38] Again, however, these passages in the Native Title Act Case need to be read with the joint judgment's support for the validity of s 4(1) of the Commonwealth Places Act.
Applying that analysis to Berbatis, the unwritten law of unconscionability was significantly more settled than the common law of native title, at least at the time that the relevant provisions were enacted. The likelihood and extent of any change to the content of s 51AA of the Trade Practices Act was a matter of incremental expansion or rationalisation,[39]
rather than a new examination of basic legal principles (as was the case with s 12 of the Native Title Act).[40] This difference meant that s 51AA was not 'unacceptably uncertain'.[41]
What are the implications of the Native Title Act Case and Berbatis for s 80 of the Judiciary Act? At a general level, s 80 of the Judiciary Act seems to be more like s 4(1) of the Commonwealth Places Act than it is like s 12 of the Native Title Act. Unlike s 12, s 80 does not purport to withdraw the usual priority that State legislation has over the common law.[42]
s 80 of the Judiciary Act uses the common law to fill in the gaps in Commonwealth legislation (and in the State or Territory legislation picked up by s 79 of that Act). That rather suggests that s 80 should not be contrary to the separation of federal legislative and judicial power.[44]
However, there are, with respect, some difficulties with the particular reasons given in the Native Title Act Case for distinguishing s 4(1) of the Commonwealth Places Act from s 12 of the Native Title Act. Consider for the moment the operation of s 4(1) of the Commonwealth Places Act on State legislation, rather than the common law. Contrary to the reasoning of the joint judgment, s 4(1) does not seem to use State legislation 'as a dictionary' for determining the rights and duties under Commonwealth law — s 4(1) simply provides that all State legislation applies 'according to its tenor' (subject to inconsistency with the Constitution or other Commonwealth legislation). In Pinkstone v The Queen,[45] McHugh and Gummow JJ stated that State legislation applying in a Commonwealth place 'operates as a surrogate federal law'. This reference to a 'surrogate federal law' strongly suggests that s 4(1) of the Commonwealth Places Act applies State legislation as Commonwealth law, despite statements directly to the contrary in the Native Title Act Case.[46]
That in turn casts doubt on the particular reasoning used in the Native Title Act Case to explain why s 4(1) did not purport (invalidly) to apply the common law as a law of the Commonwealth.[47]
Moreover, although s 80 of the Judiciary Act is unlike s 12 of the Native Title Act (which was invalid), s 80 is also unlike s 51AA of the Trade Practices Act (which is valid). Section 51AA attaches a statutory prohibition to conduct that is determined by reference to a particular branch of judge-made law. Section 80 of the Judiciary Act, on the other hand, simply provides that, subject to inconsistency with the Constitution or with statutory law, the entire common law 'shall govern'. Could it be said that s 80 is so open-ended that it no longer determines 'the content of a law as a rule of conduct or a declaration as to power, right or duty'?[48]
I will return to this question in the second part of this article, which advances an alternative explanation of why s 80 of the Judiciary Act is valid.
Apart from the separation of judicial power issue, there is also an issue whether the Commonwealth Parliament has legislative power to deal with the subject-matter of the common law principles applied by s 80 of the Judiciary Act. Section 80 applies to all cases in federal jurisdiction, and (at least on its face) operates on all common law principles that are applicable and consistent with the Constitution and statutory law. Those common law principles will sometimes cover subject-matter that is outside the scope of the Commonwealth's legislative power. Imagine, for example, a common law negligence action between residents of different States, heard in a State Supreme Court. Although the case is in federal jurisdiction, it is doubtful whether that fact alone would give the Commonwealth power to alter the substantive rights of the parties.[49] But s 80 of the Judiciary Act seems to supply the applicable law — that is, the Australian common law of negligence. If that is valid, does it follow that the Commonwealth could choose a different common law (say, the common law of New York[50]
)? And if the Commonwealth can choose any common law, does it have power also to modify the common law, perhaps by enacting a special code of negligence applicable to cases in diversity jurisdiction?
A similar issue arises with s 79 of the Judiciary Act, which seems to apply all State and Territory statutory law to courts exercising federal jurisdiction.[51] I have suggested elsewhere with Andrew Beech that there are two ways of explaining the apparent breadth of s 79, particularly in its application to State and Territory legislation that creates substantive rights and liabilities ('substantive' legislation).[52]
• First, it might be that s 79 of the Judiciary Act operates on 'substantive' State and Territory legislation in the manner of a choice of law rule. On this analysis, the power to apply State and Territory substantive legislation to cases in federal jurisdiction would not include the power to amend that legislation. Rather, the Commonwealth would be limited to directing the application of an independently existing system of law (that is, the legislation of the State or Territory where the court is sitting).
• Alternatively, if s 79 operates as a 'legislative shorthand',[53] then s 79 might not operate on 'substantive' State and Territory legislation at all. Instead, on this analysis, s 79 would only pick up State and Territory legislation that regulates the exercise of jurisdiction. Substantive legislation would apply of its own force, subject to inconsistency with the Constitution or with Commonwealth legislation.
As I will explain, however, neither of these analyses of s 79 of the Judiciary Act seems to explain how the common law of Australia is applied by s 80 of that Act.
The second analysis of s 79 of the Judiciary Act can be quickly discarded in this context. If this analysis were applied to s 80 of the Judiciary Act, s 80 would only apply common law principles that regulated the exercise of jurisdiction, and would not apply principles of common law that deal with substantive rights and liabilities. However, most regulation of the exercise of jurisdiction is contained in legislation, such as rules of court and so on.[54] Even the so-called 'inherent' powers of courts may in Australia derive by implication from the legislation establishing the court.[55] Accordingly, if s 80 were confined to common law principles that regulated the exercise of jurisdiction, then the scope of s 80 would be narrow indeed.[56]
(By contrast, even if s 79 were confined to State or Territory legislation that regulates the exercise of jurisdiction, then it would still have a significant role to play.) Therefore, as a practical matter, the alternative analysis of s 79 — that it does not operate on 'substantive' legislation — seems unhelpful in explaining the operation of s 80.
More fundamentally, s 79 of the Judiciary Act applies State and Territory legislation 'as federal law'.[57] This creates the possibility that s 79 operates as a 'legislative shorthand', which in turn would make it necessary to confine its operation to State and Territory legislation regulating the exercise of jurisdiction. (As noted, it is doubtful whether the mere existence of federal jurisdiction would give the Commonwealth power to affect the substantive rights of the parties.[58]
) But the Native Title Act Case suggests that s 80 could not operate as a 'legislative shorthand' on common law principles, even if s 80 were limited to principles that regulate the exercise of jurisdiction.[59]
Accordingly, the possible reason for excluding 'substantive' legislation from the scope of s 79 of the Judiciary Act does not apply to s 80.
A more promising argument is that s 80 of the Judiciary Act applies the common law in the manner of a choice of law rule.[60] This analysis would explain how the Commonwealth can direct the application of a rule that the Commonwealth could not have enacted itself. It is strongly arguable that the Commonwealth has power to select which (independently existing) law is applicable to a dispute in federal jurisdiction.[61]
However, there is a significant difference between the operation of a choice of law rule and s 80 of the Judiciary Act. A choice of law rule performs two roles: (1) it selects the law applicable to a dispute, and (2) if the applicable law is that of another law area, the choice of law rule applies the content of the relevant rules of that law area as a rule of the forum.[62] It may be accepted that s 80 performs role (1) — it, together with s 79, 'direct where this Court shall go for the substantive law'.[63] However, it must be doubtful, in the light of the Native Title Act Case, whether s 80 of the Judiciary Act could validly apply the content of all applicable common law principles as a law of the Commonwealth (role (2)). (By contrast, s 79 of that Act does apply the content of applicable State and Territory legislation 'as federal law'.[64]
)
Indeed, there seems to be a deeper difference between the application of non-forum law by a choice of law rule and the application of the common law by s 80. When a choice of law rule applies the content of rules of another law area, the court applying the non-forum rules is not part of the legal system that created those rules. Imagine, for example, that an Australian court has jurisdiction over a common law negligence claim arising out of events that occurred in New York. The Australian court would apply the substantive law applicable in New York[65] (on this example, the common law of negligence). The conclusions of an Australian court on the content of the common law of New York are a matter of evidence,[66] so the court in this sense is applying an independently existing system of law. By contrast, an Australian court applying the common law of Australia is part of the system that creates those rules, and therefore has authority to develop the common law (within the usual parameters).[67]
Accordingly, s 80 of the Judiciary Act does not involve the application of an 'independently existing' system of law in the same way as a choice of law rule does.
Of course, in practice the two situations might not be quite so different as this overview suggests. An Australian court may be confronted with ambiguities in determining the content of the New York common law (although the court's conclusions would be findings of evidence, not of law). Conversely, an Australian court would be constrained by precedent in developing the Australian common law. Even so, there is an important qualitative difference between these situations. An Australian court applying the common law of Australia has a legitimate role in developing the law, but that role does not exist when a court is applying the rules of another law area through a choice of law rule.[68]
To summarise, the preceding discussion raises two unresolved issues about s 80 of the Judiciary Act. The first issue is how s 80 can provide that the common law 'shall govern' courts exercising federal jurisdiction without applying the entire common law as a law of the Commonwealth (which would seem to be invalid). The Native Title Act Case states that s 4(1) of the Commonwealth Places Act is valid in its application to the common law, because s 4(1) uses the common law 'as a dictionary' for determining the content of the rights under Commonwealth law. However, I have suggested that, with respect, it is difficult to ascribe that effect to s 4(1) of the Commonwealth Places Act (and by extension s 80 of the Judiciary Act).
The second unresolved issue is how s 80 can validly apply common law principles when those principles cover subject-matter that goes beyond the scope of Commonwealth legislative power. A possible analogy between s 80 and a choice of law rule seems to break down in describing how s 80 applies the content of the common law. When a choice of law rule selects a non-forum law, it applies an independently existing system of law. However, the Australian common law is not 'independently existing' of an Australian court applying it, because the court has a legitimate role in developing the common law. Accordingly, a different analysis is required.
The next part addresses these unresolved issues.
So far, I have described s 80 of the Judiciary Act as 'applying' the common law. That description gives rise to the apparent difficulties with s 80 just identified. If s 80 applies the common law, is the common law applied as a law of the Commonwealth? And how can the Commonwealth Parliament apply common law principles that it could not enact itself? In this part of the article, I suggest that s 80 does not actually apply a body of independently existing 'common law', but rather confers power on courts to resolve disputes in a particular way (by applying and developing the body of unwritten law). The following discussion explains that analysis of s 80, and then demonstrates why that analysis removes the apparent difficulties identified in the first part of the article.
Clearly, the nature of the common law is a large and complex topic, and a full discussion is beyond the scope of this article.[69] However, my argument is quite limited — the statement in s 80 of the Judiciary Act that 'the common law shall govern' can be understood as a conferral of power to apply and develop the common law, rather than as an application of the content of common law decisions. Although this argument does not take a position on many of the contested issues concerning the common law,[70] it does assume that applying the common law is an exercise of government power. I should briefly defend that assumption.
The argument that s 80 of the Judiciary Act confers power to develop the common law presupposes that this power can be conferred by Parliament. That presupposition reflects the now widely-held view that the common law is an exercise of government power, and not some 'brooding omnipresence in the sky'.[71]
However, there is an alternative (and by now largely discredited) view that judges merely 'declare' an independently existing body of common law, and do not 'make' it.[72] Some vestiges of this declaratory theory remain in the following passage from the Native Title Act Case:[73]
But the common law is not found in a text; its content is evidenced by judicial reasons for decision. Isaacs J explained in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [(1913) [1913] HCA 41; 17 CLR 261, 275-6] that it is the declaratory nature of a judgment that allows for the evolution of the common law:
'A prior decision does not constitute the law, but is only a judicial declaration as to what the law is. The declaration, unless that of a superior tribunal, may be wrong, in the opinion of those whose present function is to interpret and enforce the law.'
However, the declaratory theory of the common law sits uneasily with other parts of the joint judgment in the Native Title Act Case. The joint judgment states further that the courts 'create and define' the common law, and that the content of the common law will 'change from time to time according to the changing perceptions of the courts'.[74] Those statements seem to acknowledge frankly that the common law does not exist independently of judicial decisions. Indeed, if the content of the common law did have some sort of independent existence, then it is difficult to see how s 12 of the Native Title Act could have conferred legislative power on the courts (or involved an exercise of judicial power by the Parliament), as held by the joint judgment.
This apparent rejection of the declaratory theory of the common law is not limited to the Native Title Act Case. For example, statements that the common law must conform to the Constitution[75] seem to depend on the proposition that applying and developing the common law is an exercise of government power. The Constitution only limits the exercise of governmental powers, so there would be no need for the common law to conform to constitutional requirements if it were not 'governmental'.[76]
Two points should be clarified here. First, the rejection of the declaratory theory of the common law does not undermine my argument that s 80 of the Judiciary Act is actually a conferral of power to apply and develop the common law. An argument that the method of making common law decisions is separate from the decisions themselves is entirely consistent with the point that the content of the common law does not exist separately from judicial decisions. Secondly, to say that applying and developing the common law involves an exercise of government power does not in any way impinge on the independence or integrity of the courts.[77] Even if courts are 'making' law when they apply or develop the common law, this function is exercised without interference from the legislative or executive branches of government.
Having cleared away that preliminary point, the operation of s 80 of the Judiciary Act can be illuminated by considering the links between the common law and other aspects of the exercise of judicial power, particularly the doctrine of precedent and the jurisdiction of courts. Those links were recently considered (albeit in a case in State jurisdiction) by Gaudron, Gummow and Hayne JJ in Lipohar v The Queen.[78]
The appellants in Lipohar challenged their convictions in the Supreme Court of South Australia ('the SA Supreme Court') of the common law offence of conspiracy, arguing that their conduct (which took place outside South Australia) could not validly be punished under the law of South Australia. The High Court upheld the validity of the convictions, with Kirby J dissenting.
All members of the Court accepted that a South Australian court could not punish conduct that occurred outside South Australia unless that conduct had a sufficient connection with the State. (The point of disagreement between the majority and Kirby J was therefore whether the necessary connection existed.) Within the majority, there were three different views on the point at which this territorial limit on South Australian law took effect.
• Callinan J held that each State has a separate common law[79] (which is a minority view), so that a common law offence is an offence against the law of a particular State.[80] On this approach, the territorial limit applied to the offence itself.[81]
Gleeson CJ was prepared to accept that there is a single common law of Australia,[82] but noted that the penalty for that offence was contained in a South Australian statute.[83]
On this approach, the territorial limit applied to the penalty for the offence.[84]
Gaudron, Gummow and Hayne JJ held that there is a single common law of Australia,[85] which meant that a common law offence is an offence against the law of Australia.[86] On this approach, the territorial limit applied to the jurisdiction of the SA Supreme Court, which was only given jurisdiction 'in and for the State'.[87]
Gaudron, Gummow and Hayne JJ based their conclusion that Australia has a single common law on the fact that the High Court is the final court of appeal in all matters, combined with the doctrine of precedent. This second feature draws particular attention to the way that common law decisions are made. Their Honours stated:[88]
The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.
In the 1960s, some members of the High Court adopted a similar distinction between the content of the common law and its method to explain why the Court was not bound by decisions of the House of Lords. In Skelton v Collins,[89]
for example, Windeyer J stated that Australia did not just inherit the specific rules laid down by English courts, but also 'its methods and its spirit', which took account of 'the creative element in the work of courts'. On my argument, Australia and England shared 'the common law' (in the sense of a method of making decisions), even if the content of that common law was not always identical. (It should be remembered that, until 1988, s 80 of the Judiciary Act required Australian courts to apply 'the common law of England'.[90]
) However this result was justified, the Privy Council accepted in Australian Consolidated Press Ltd v Uren[91] that the High Court could legitimately depart from decisions of the House of Lords. In Lipohar, however, Gaudron, Gummow and Hayne JJ held that there was no scope for a similar divergence in the content of the common law between different parts of Australia.[92]
The implications of this analysis for s 80 of the Judiciary Act are as follows. If precedent has a 'central place' in understanding the common law and explaining its basis,[93]
then the common law can sensibly be understood as a method, even though certain features of the method (including precedent) encourage the common law to be identified with the content of the decisions themselves. Accordingly, a provision such as s 80 could confer power on courts exercising federal jurisdiction to resolve disputes using that method.
A second aspect of judicial power relevant to s 80 of the Judiciary Act is the connection between the common law and a court's jurisdiction. In Lipohar, Gaudron, Gummow and Hayne JJ reiterated that 'jurisdiction' had 3 possible meanings: (1) the subject matter over which the court has authority to decide, (2) the court's jurisdiction over the person, or (3) the geographical extent of the law area.[94] In a court of general jurisdiction, the various meanings of 'jurisdiction' were closely connected at common law.[95]
• In civil cases, the court's authority to decide (meaning (1)) would in personal actions depend on whether the defendant was amenable to the court's process (meaning (2)),[96] which in turn would traditionally depend on whether the defendant was within the law area (meaning (3)).[97]
In criminal cases, the court's authority to decide (meaning (1)) would at common law depend on whether the act was committed within the law area (meaning (3)).[98] And the court's authority over the person in criminal cases (meaning (2)) also depended on the person being present in the law area (meaning (3)).[99]
By contrast, the approach of Gaudron, Gummow and Hayne JJ in Lipohar meant that the law area of the applicable law (Australia) did not coincide with the extent of the SA Supreme Court's authority to decide (matters in and for South Australia).[100] In other words, the 'settled jurisdictional rules' and the division of Australia 'into geographical and political units' was given effect through limits on the subject-matter jurisdiction of the court, rather than through limits on the reach of the applicable law.[101] (It may also be noted that the connection between authority over the defendant and presence in the law area is now affected by the Service and Execution of Process Act 1992 (Cth) ('SEPA 1992'), for both civil and criminal cases.[102])
What does this mean for s 80 of the Judiciary Act? Section 80 applies only to cases in federal jurisdiction, where there is also a disconformity between the extent of the authority to decide and the extent of the law area. The disconformity arises because federal jurisdiction in Australia is a national jurisdiction (even for State courts exercising federal jurisdiction),[103] but of course is also limited to the types of matters listed in s 75 and s 76 of the Constitution. The analysis in Lipohar indicates that, although the common law of Australia is a national law, a court's power with respect to common law rights and liabilities is tied to the limits of the court's subject-matter jurisdiction. Consequently, the Commonwealth can confer power to apply and develop this national common law consistently with the terms in which federal jurisdiction is conferred on State courts,[104] and without circumventing the subject-matter limits on the jurisdiction of federal courts.
These two points drawn from Lipohar lead to my argument of how s 80 of the Judiciary Act operates.
The argument relies on the general principle that the grant of (subject-matter) jurisdiction carries with it the authority essential to resolve the justiciable controversy between the parties.[105]
That principle emerges clearly from cases discussing the accrued jurisdiction of federal courts. As is well known, a federal court's jurisdiction over a federal claim gives the court authority to determine non-federal claims that form part of the same justiciable controversy, including common law claims.[106] Although that result is often explained by reference to the concept of a 'matter', I have suggested elsewhere that these cases turn on policy considerations such as avoiding duplicity of proceedings, and encouraging finality in litigation.[107]
The principle that the conferral of jurisdiction carries with it authority to resolve the dispute is even more important when federal jurisdiction is defined by reference to the identity of the parties, rather than the subject-matter. When the Commonwealth is a party, or when the parties are residents of different States, the substantive law governing the dispute may have no connection with Commonwealth law at all.[108]
Accordingly, if the conferral of federal jurisdiction did not carry with it authority to apply non-federal law — including the common law — then the exercise of jurisdiction deriving from s 75(iii) or s 75(iv) of the Constitution could be stultified.[109]
This general principle suggests that the Commonwealth could confer authority on courts exercising federal jurisdiction to apply the common law whenever that was necessary to resolve disputes over which the courts have jurisdiction. That authority would only be necessary when the dispute could not be resolved by applying the Constitution or statutory law (either Commonwealth, State or Territory). And this is what s 80 of the Judiciary Act does — it provides that the common law 'shall govern', except to the extent that the common law is inconsistent with the Constitution or with Commonwealth legislation, or with the statute law in force in the relevant State or Territory.
What is the source of power to enact such a Commonwealth law? Strictly speaking, the Constitution does not give the Commonwealth Parliament power to confer judicial power as such.[110] Rather, the Constitution gives the Commonwealth Parliament power to 'confer' original jurisdiction on the High Court (s 76), power to 'define' the jurisdiction of federal courts other than the High Court (s 77(i)), and power to 'invest' federal jurisdiction in State courts (s 77(iii)). In addition, the Commonwealth Parliament has power to legislate with respect to 'matters incidental to the execution of any power vested by this Constitution … in the Federal Judicature' (s 51(xxxix)), and power to legislate '[w]ith respect to' defining and investing jurisdiction under s 77.
These constitutional provisions suggest two alternative analyses of s 80 of the Judiciary Act, depending on whether applying and developing the common law is seen as an aspect of subject-matter jurisdiction, or a power that is exercised once the court has jurisdiction.[111]
• On the jurisdiction analysis, s 80 of the Judiciary Act confers an additional jurisdiction to apply and develop the common law when a court otherwise has jurisdiction over a federal matter. Section 80 is on this analysis supported by s 76 and s 77 of the Constitution. Of course, the High Court's jurisdiction over s 75 matters derives from the Constitution itself, not Commonwealth legislation. As the High Court is the highest authority on common law issues in Australia, the conferral of original jurisdiction by s 75 of the Constitution would seem to include implied authority to develop the common law. Accordingly, with these matters, s 80 of the Judiciary Act would merely declare the position under the Constitution.[112]
On the power analysis, by contrast, s 80 confers power on courts to apply and develop the common law when the court is resolving a federal matter within its jurisdiction. Section 80 is on this alternative analysis supported by s 51(xxxix) of the Constitution, and applies to all federal jurisdiction including the High Court's original jurisdiction under s 75.
As little turns on the difference between these two analyses, for convenience I will continue to refer to s 80 conferring 'judicial power'.
This suggested analysis of s 80 of the Judiciary Act removes the apparent difficulties identified in the first part of the article, although it might be thought to create further difficulties of its own.
The apparent difficulties with s 80 of the Judiciary Act arose if s 80 'applied' the body of decisions known as the common law — the Native Title Act Case raised a question whether a Commonwealth law that applied the entire common law would be unacceptably uncertain, and it was not clear how the Commonwealth could apply principles which it did not have power to enact. However, on my analysis, s 80 does not itself 'apply' the common law; rather, it confers power on courts exercising federal jurisdiction to apply and develop the common law. Therefore, the common law is not used to determine the content of a law of the Commonwealth. Moreover, there is no difficulty with the courts applying common law principles that go beyond the scope of the Commonwealth Parliament's legislative powers. That result merely reflects the fact that the Commonwealth Parliament can only confer judicial power on courts (in the sense just described), and cannot exercise it.[113]
It may be noted, however, that this analysis of s 80 of the Judiciary Act cannot be applied to s 4(1) of the Commonwealth Places Act, because s 4(1) does not 'have effect so as to confer any judicial power' (s 4(5)(b)). On my analysis, therefore, the reference to the unwritten law of the State in the definition of 'the laws of a State' in s 3(1) of the Commonwealth Places Act would not include the common law.[114]
(This definition distinguishes between the unwritten law of a State and the unwritten law of the Commonwealth, which in itself suggests that 'the laws of a State' does not include the single common law of Australia.) However, all matters arising under State laws applied by s 4(1) of the Commonwealth Places Act involve the exercise of federal jurisdiction, conferred by s 7(1) of that Act. In those cases, the necessary power to apply and develop the common law would derive from s 80 of the Judiciary Act.
It should also be noted that, although my analysis of s 80 of the Judiciary Act avoids the apparent constitutional difficulties outlined in the first part of the article, it raises two further issues — one statutory and one constitutional.
The first, statutory issue is whether my analysis of s 80 of the Judiciary Act can be reconciled with the language of s 80. Consider, in particular, the references in s 80 to the common law 'as modified by the Constitution and by the statute law in force in the [relevant] State or Territory', which is said to govern courts 'so far as it is applicable', and so far as it is 'not inconsistent with the Constitution and the laws of the Commonwealth'. Surely, it might be said, it is common law principles (and not the common law method) that are modified by, or inconsistent with, the Constitution and statutory law, and common law principles that are 'applicable'?
There are two responses. The first is that s 80 of the Judiciary Act was drafted at a time when the declaratory theory of the common law was still accepted. In 1903, the common law was considered to be an independently existing system of law, although that theory is not accepted today. The second response is that the courts will prefer an interpretation that is valid over an interpretation that is invalid.[115] It seems from the first part of this article that there is a real question whether s 80 of the Judiciary Act could validly apply the entire common law as a law of the Commonwealth. Accordingly, I would suggest, the relevant question is whether this language in s 80 can be given some sensible operation if s 80 is regarded as a provision that confers power to apply and develop the common law.
Much of the language in s 80 could be explained as confirming the parameters of the power to apply and develop the common law. To begin with, this power is not engaged until the courts have exhausted the operation of the Constitution and any relevant statutory law. And when courts apply or develop the common law, the courts must ensure that this power is exercised consistently with constitutional and statutory requirements. Admittedly, this explanation runs counter to statements in Blunden that s 80 itself applies statutory modifications of the common law.[116]
However, the result in Blunden can be explained as the forum's limitation statute being applied as a 'second tier' common law choice of law rule (that is, apply the forum's statute if there is no applicable statutory law in the place of the wrong).[117]
It is more difficult to give some operation to the statutory requirement that the common law must be 'applicable'. As a historical matter, this requirement may have been included in 1903 (when s 80 referred to the common law of England) to take account of the possibility that not all of the English common law would be appropriate for Australia.[118]
That possibility is now redundant, given that s 80 refers to the common law in Australia. Even so, the reference to the common law being 'applicable' might confirm that the courts' power to develop the common law should take account of Australian conditions and circumstances.
The second, constitutional issue raised by my analysis of s 80 of the Judiciary Act is whether the Commonwealth Parliament can validly confer power to develop (rather than merely apply) the common law. Although there is no clear division between 'applying' and 'developing' the common law,[119]
that sort of distinction is used in the US to define the common law powers of federal courts.
The current US position derives from the 1938 decision of Erie Railroad Co v Tompkins.[120]
As is well known, the US Supreme Court held in Erie that federal courts do not have power to develop the common law, to the extent that the common law covers subjects beyond the legislative competence of Congress. Instead, when a case in federal jurisdiction requires a ruling on a matter of 'general' common law (that is, non-federal common law), federal courts are limited to applying or 'predicting' the common law.[121]
According to the Court, Congress could not give authority to federal courts to develop or modify common law principles unless Congress could have enacted those common law principles itself.[122] Thus Erie sees no necessary correlation between a federal court having authority to decide an issue of common law, and having authority to develop the common law.[123]
Clearly, some aspects of Erie are not relevant to Australia — particularly its division between State and federal common law.[124] It might still be argued that the single Australian common law is State law, and that the Commonwealth cannot confer power to alter a State law.[125] The difficulty with this argument is in its premise, which seems to assume that the common law must be 'State law' simply because it is not 'Commonwealth law'. As Professor Zines notes, however, the common law is neither. Just as the High Court is a national institution, the common law which that Court oversees is also national.[126]
However, there is another variation on Erie that is not so easily dismissed. The argument would accept that the Commonwealth can confer authority on courts exercising federal jurisdiction to determine issues of common law when those issues form part of the relevant 'matter'. (To this extent, the exercise of federal jurisdiction would not be stultified.[127]
) However, on this argument, the Commonwealth could not confer authority on courts to develop or modify the common law unless the relevant common law principles came within the scope of Commonwealth legislative power.
As noted, there would be a practical difficulty in distinguishing between an 'application' and a 'development' of the common law. More fundamentally, any attempt to apply this Erie-type argument to Australia would run up against three significant differences between the US and the Australian judicial systems.
• Most obviously, the High Court supervises the decisions on common law issues from all courts in Australia. Therefore, one reason for the holding in Erie — that the US Constitution did not give the federal judiciary any authority to supervise the judicial action of the States — does not apply.[128]
In addition, the Australian Constitution gives the Commonwealth power to confer federal jurisdiction on State courts (s 77(iii)). Consequently, the authority of a State court to determine an issue of common law may in some cases depend on Commonwealth, rather than State, law.[129] Therefore, if the Erie-type argument were correct, this limitation would apply to a State court exercising federal jurisdiction, as well as federal courts. Thus a State court exercising federal jurisdiction could not develop the common law, but the same court exercising State jurisdiction could. And if a federal issue were raised for the first time on appeal, it would mean that the appellate State court did not have power to develop the common law, although the trial judge did. Neither seems to be a desirable result.[130]
Finally, it should be remembered that the highest Australian authority on all common law issues (the High Court) also has original jurisdiction.[131] As noted earlier, the original jurisdiction conferred by s 75(iii) and s 75(iv) of the Constitution may well raise issues of common law. It can hardly be supposed that the highest authority on common law issues could not develop the common law when exercising its original jurisdiction conferred by s 75. And if the jurisdiction conferred by s 75(iii) and s 75(iv) includes power to develop the common law, surely the Commonwealth could also confer that power on the High Court when it is exercising the types of federal jurisdiction contained in s 76 of the Constitution (which require Commonwealth legislation to confer).[132]
And if the Commonwealth can validly confer power to develop the common law when conferring jurisdiction on the High Court, would it make sense if s 77 of the Constitution prohibited the Commonwealth, impliedly, from conferring this power when conferring the same federal jurisdiction on other courts?
I would suggest that these three differences, in combination, mean this Erie-type argument should not be applied to Australia.
This article has examined the effect of s 80 of the Judiciary Act when it provides that 'the common law in Australia … shall … govern all Courts exercising federal jurisdiction'. Although it might be thought that s 80 applies an independently existing body of law, that analysis seems to lead to constitutional difficulties. Instead, I have suggested that s 80 confers power on courts exercising federal jurisdiction to resolve disputes by applying and developing the common law, when the dispute cannot be resolved by applying the Constitution or statutory law. Although that analysis does not perhaps sit easily with the language of s 80, it ensures that s 80 is constitutionally valid. There is a possible argument, based on the US decision of Erie, that Commonwealth legislation could only confer power to apply the common law, but not to develop it. However, that argument should not be accepted, because of the differences between the US and Australian judicial systems.
It might then be objected that this proposed analysis of s 80 of the Judiciary Act reduces the provision to a statement of the blindingly obvious.[133]
A sceptic might say that of course the grant of jurisdiction carries with it the necessary powers to resolve the dispute, so there could never be any question that courts exercising federal jurisdiction in Australia can apply and develop the common law when appropriate. One response is that it is preferable to give s 80 of the Judiciary Act an operation that is valid, but obvious, rather an alternative operation of at least contestable validity. There are several further responses.
• First, although there was no lack of legislation in colonial Australia, many important areas of law were governed largely or entirely by the common law in 1903 (such as contract and tort).[134] Certain classes of federal jurisdiction were therefore likely to involve determining issues of common law, particularly matters involving the Commonwealth, and matters between residents of different States. For these matters, the power to apply and develop the common law was too central to be left to implication.
Secondly, Abebe v Commonwealth[135] establishes that, although the Commonwealth can confer authority on federal courts to resolve an entire justiciable controversy, it does not have to. It is therefore theoretically possible (but unlikely as a matter of policy) that the Commonwealth could confer federal jurisdiction without including the authority to apply or develop the common law.[136]
Thirdly, s 80 of the Judiciary Act confirms that the creation of a federal judicial system did not require a division between 'federal' and 'State' common law. That is important, because s 79 of that Act applies the laws of the State or Territory in which the court is sitting.[137] Without s 80, there might have been a question whether the reference in s 79 to the 'laws of each State or Territory' included a common law peculiar to that State or Territory.[138]
Moreover, my analysis may bear upon other questions raised by s 80 of the Judiciary Act. Returning to the examples given at the beginning of the article, this analysis suggests that s 80 does not itself apply statutory modifications of the common law.[139]
That in turn suggests that s 79 of the Judiciary Act should be applied before s 80, because it would be most surprising if the Commonwealth Parliament intended common law doctrines to have priority over State or Territory legislation.[140]
Similarly, on this analysis, the requirement that the provisions of a Commonwealth Act be 'insufficient to carry them into effect, or to provide adequate remedies or punishment' simply describes the parameters of the power to apply and develop the common law, and mirrors the proviso that the common law is not applied if it is inconsistent with Commonwealth legislation.[141]
Moving beyond those examples, the Australian Law Reform Commission has recommended that s 79 and s 80 be combined into a single provision.[142]
If s 80 is a conferral of judicial power (as I suggest), then it operates quite differently from s 79, which applies State and Territory statutory law as a law of the Commonwealth. That difference would be usefully kept in mind when drafting any amendments. Accordingly, the issue examined in this article is not just the product of a mind that is unhappy unless it can find a problem for every solution, but is rather an issue of practical importance.
[*] Senior Lawyer, Australian Government Solicitor. The views expressed here are mine and not those of the Commonwealth. Thanks to Dr Wheeler and the anonymous referee for their helpful comments.
[1] See, eg, Peter Nygh, 'Choice of Law in Federal and Cross-vested Jurisdiction' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 335, 338–46, especially 339. However, s 80 was relied on in R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323, 330–331 (Webb J) and In re Forrest [1912] ArgusLawRp 130; [1912] VLR 466, 469–70 (Cussen J). And in Musgrave v Commonwealth [1936] HCA 80; (1937) 57 CLR 514, 547, Dixon J stated that s 80 would produce 'much the same effect' as s 79 in applying the NSW rules for the recognition and enforcement of extraterritorial rights arising from a civil wrong:.
[2] (2003) 218 CLR 330 ('Blunden').
[3] Ibid 339 [18] (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing). See also Justice W M C Gummow, 'The Constitution: Ultimate Foundation of Australian law?' (2005) 79 Australian Law Journal 167, 174. It appears that s 80 can have this central role, even when the only issue is whether to apply legislation of the State where the court is exercising federal jurisdiction: see Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625 ('Sweedman'), [33] (Gleeson CJ, Gummow, Kirby and Hayne JJ). I would argue that the real question in Sweedman was whether the local legislation (s 104 of the Transport Accident Act 1986 (Vic)) was picked up by s 79 of the Judiciary Act, which would have required consideration of whether that Act was 'applicable' and whether the Constitution 'otherwise provided'.
[4] Blunden (2003) 218 CLR 330, 339 [18], 347 [45] indicates that s 80 does apply statutory modifications of the common law (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing). See further Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report 92 (2001) ('ALRC Report No 92') 603–6 [34.40]–[34.52].
[5] ALRC Report No 92, above n 4, 603 [34.39].
[6] See the different meanings of 'common law' listed in Justice L J Priestley, 'A Federal Common Law in Australia?' (1995) 6 Public Law Review 221, 221–2, which includes 'the law that is not the result of legislation, that is, the law created by the custom of the people and the decisions of the judges' (meaning (2)).
[7] This interpretation is suggested by Adams v ETA Foods Ltd [1987] FCA 402; (1987) 19 FCR 93 ('ETA Foods'), which considered s 80 when it still applied 'the common law of England'. Gummow J observed that by 1987 the English common law had diverged from the common law in Australia, and would therefore need to be proved as foreign law: at 95; but see below n 90. Section 80 was amended in 1988 to refer to 'the common law in Australia'. An 'ambulatory' interpretation of s 80 is also consistent with the operation of s 79 of the Judiciary Act, which picks up State and Territory legislation as in force from time to time: see British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 54 [46] (McHugh, Gummow and Hayne JJ, with Callinan J agreeing).
[8] [1995] HCA 47; (1995) 183 CLR 373 ('the Native Title Act Case).
[9] [2000] FCA 2; (2000) 96 FCR 491 ('Berbatis').
[10] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 484–5.
[11] Ibid 486.
[12] Ibid. This feature of s 12 of the Native Title Act also meant that there was a lack of connection with s 51(xxvi) of the Constitution (the special races power), because Parliament would not have considered whether the law, as amended, was necessary for the people of that race: ibid.
[13] Ibid 487–8. Professor Lindell argues that this conclusion confuses the States' ability to enact legislation (which is protected by s 107 of the Constitution) with the States' power to enact operative legislation (which is not): see Geoffrey Lindell, 'Grappling with Inconsistency between Commonwealth and State Legislation and the Link with Statutory Interpretation' (2005) 8 Constitutional Law and Policy Review 25, 38–9.
[14] Writing extra-judicially, Justice Gummow states that '[t]his reference [in s 12 of the Native Title Act] to the content of the common law as developing from time to time brought about invalidity': above n 3, 173. Moreover, in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 ('Torney'), McHugh J held that s 35 of the Family Law Act 1975 (Cth) could not pick up the common law contempt powers of an English court as developed from time to time, but could validly pick up those powers as at a particular date (in that case, 1903): at 402 [43].
[15] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 487.
[16] See below, paragraph containing nn 45–7.
[17] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 508–9 [38]–[40]. The reference in s 51AA to the 'unwritten law of the States and Territories' could only mean the single common law of Australia: at 502 [22]; see also ACCC v C G Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 ('Berbatis (HC)'), 71 [38] (Gummow and Hayne JJ).
[18] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 509 [40].
[19] Ibid 504 [28].
[20] Ibid 510 [43].
[21] Ibid 509 [43].
[22] Ibid. Despite this similarity, French J noted that 'unconscionability' might have a narrower meaning in s 51AA (where it is tied explicitly to the unwritten law) than in s 51AB and s 51AC (where it is not): at 503–504 [24]–[26]; see further Joachim Dietrich, 'The Meaning Of Unconscionable Conduct Under the Trade Practices Act 1974' (2001) 9 Trade Practices Law Journal 141.
[23] See Berbatis (HC) [2003] HCA 18; (2003) 214 CLR 51, 80 [68] (point (1)) (Kirby J).
[24] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 510 [43].
[25] Ibid 509 [41].
[26] See the quote accompanying above n 15.27 Berbatis [2000] FCA 2; (2000) 96 FCR 491, 510 [43].
[27] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 510 [43].
[28] See above, text accompanying n 14.
[29] See the quote accompanying above n 12.
[30] Although McHugh J does take that view: see above n 14
(discussing Torney). Different issues may arise when a Commonwealth Act operates by reference to the common law of another country: see below, text accompanying n 68.
[31] See, eg, s 7 of the Corporations (New South Wales) Act 1990 (NSW).
[32] See, eg, Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1, 11 [4] (Gaudron, McHugh, Gummow and Callinan JJ); R v Hughes (2000) 202 CLR 535, 551 [26] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). The Commonwealth has sometimes legislated to similar effect: see, eg, ss 6–8 of the Australian Energy Market Act 2004 (Cth).
[33] See below, text accompanying n 38.
[34] The doctrine that federal courts can only exercise judicial powers (and non-judicial powers that are incidental to judicial power) depends on 'matters of policy related to the exercise of judicial power': Leslie Zines, The High Court and the Constitution (4th ed 1997) 169; see also 214–8 (discussing R v Kirby; Ex parte Boilermakers' Society of Australia (The Boilermakers’ Case ) [1956] HCA 10; (1956) 94 CLR 254).
[35] Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31.
[36] See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), quoting Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 ('Grunseit'), 82 (Latham CJ). See generally Denise Meyerson, 'Rethinking the Constitutionality of Delegated Legislation' (2003) 11 Australian Journal of Administrative Law 45; see also John Basten, 'Constitutional Elements of Judicial Review' (2004) 15 Public Law Review 187, 193–4.
[37] The joint judgment cited two cases concerning delegation on the executive for the proposition that a Commonwealth Act cannot give the judiciary a discretion to determine what the law should be: Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 486 (n 379), citing Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73, 93 (Dixon J), and Grunseit [1943] HCA 47; (1943) 67 CLR 58, 66 (Williams J), 82–3 (Latham CJ).
[38] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 484–5. The content of the common law is said to be only evidenced by, and not contained in, judicial reasons for decision: at 485.
[39] See the quote accompanying above n 27.
[40] See Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 486, referring to Mabo v Queensland (No 2) (1992) 175 CLR 1 ('Mabo (No 2)'). In Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422, 468 [131], McHugh J stated that s 12, although invalid, 'made it clear that the content of native title under that Act was to be determined in accordance with the developing common law'
[41] To adopt Kirby J's description of a possible argument against the validity of s 51AA: Berbatis (HC) [2003] HCA 18; (2003) 214 CLR 51, 80 [68] (point (1)). In other cases, Kirby J has noted the possibility that Ch III of the Constitution may contain an implication to similar effect as United States ('US') due process doctrines of 'overbreadth' or 'vagueness': R v Hughes (2000) 202 CLR 535, 575–6 [95]–[97].
[42] Cf above, text accompanying n 13.
[43] Although my analysis of s 80 of the Judiciary Act suggests that s 4(1) does not in fact operate on the common law: see below, text accompanying n 114.
[44] Similarly, Professor Zines argues that the reasoning in the Native Title Act Case does not prevent a Commonwealth law from continuing or applying the law of a particular jurisdiction (including the common law) in a Territory: see Leslie Zines, Cowen and Zines' Federal Jurisdiction in Australia (3rd ed 2002) 183–5.
[45] [2004] HCA 23; (2004) 219 CLR 444, 457 [34]. Accordingly, the trial of an indictable offence needed to comply with s 80 of the Constitution: at 458 [38].
[46] Indeed, some cases have expressly drawn an analogy between s 4(1) of the Commonwealth Places Act and s 79 of the Judiciary Act in their operation on State legislation: R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384, 388 [11] (Spigelman CJ, with Barr and Hoeben JJ agreeing). It is well settled that s 79 applies State legislation 'as federal law': see below n 57.
[47] In any event, it is not clear that there was any difference between s 4(1) of the Commonwealth Places Act and s 12 of the Native Title Act in this respect – Professor Lindell argues that s 12 could also be regarded as using the common law 'as a dictionary' in ascertaining the rights and duties under Commonwealth law: see Lindell, above n 13, 38.
[48] See above n 36. Admittedly, an approach that concentrated on the scope of common law principles picked up by a Commonwealth provision might simply lead to the enactment of different provisions operating by reference to different branches of the common law: cf Geoffrey Sawer, 'The Separation of Powers in Australian Federalism' (1961) 35 Australian Law Journal 177, 186: restrictions on delegation of legislative power to the executive could be 'evaded by numerous detailed delegations.'
[49] See, eg, Justice Bradley Selway, 'The Australian "Single Law Area"' [2003] MonashULawRw 3; (2003) 29 Monash University Law Review 30, 36–7. The case would be a matter 'between residents of different States', and thus within s 75(iv) of the Constitution.
[50] Cf P D Phillips, 'Choice of Law in Federal Jurisdiction' [1961] MelbULawRw 21; (1961) 3 Melbourne University Law Review 170, 189. Writing extra-judicially, Justice Gummow states that intuition suggests that s 80 could not have validly selected the common law of another country: above n 3, 174.
[51] Section 79 applies '[t]he laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses' (emphasis added).
[52] See Graeme Hill and Andrew Beech, '"Picking Up" State and Territory Laws under s 79 of the Judiciary Act – Three Questions' (2005) 27 Australian Bar Review 25, 31–5.
[53] That is, s 79 would incorporate the content of State and Territory legislation merely as a drafting device, and the Commonwealth would have power to modify any of the legislation picked up.
[54] See, eg, Huddart Parker Ltd v The Ship Mill Hill [1950] HCA 43; (1950) 81 CLR 502, 507 (Dixon J): the power to stay proceedings on the ground that there is an agreement to refer the dispute to arbitration 'is not a power that can arise otherwise than from statute'.
[55] See, eg, DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226, 240–1 [25]–[27] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, 240–1 (the Court).
[56] At least in its application to the common law. As noted, there are statements that s 80 also applies statutory modifications of the common law: see above n 4.
[57] Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 165 (Kitto J). See also Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119, 134 [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ): 'It is well settled … that State laws upon which s 79 operates do not thereby apply of their own force in the exercise of federal jurisdiction.'
[58] See above, text accompanying n 49.
[59] Because s 80 would still be too open-ended: see above, text accompanying n 48
(comparing s 80 and s 51AA of the Trade Practices Act).
[60] This argument is suggested by statements that s 80 'directs the application of' the common law: see, eg, Commonwealth v Mewett (1997) 191 CLR 471 ('Mewett'), 525 (Gaudron J); cf 510 (Dawson J): 'ss 79 and 80 of the Judiciary Act pick up the law in force in New South Wales and apply it to [claims in federal jurisdiction]'.
[61] See, eg, Michael Pryles and Peter Hanks, Federal Conflict of Laws (1974) 174–6; Bernard O'Brien, 'The Law Applicable in Federal Jurisdiction' [1976] UNSWLawJl 8; (1976) 1 University of New South Wales Law Journal 327, 337–44. This sort of law would seem to be incidental to the conferral and exercise of federal jurisdiction within s 51(xxxix) and s 77 of the Constitution, and might even be supported by s 51(xxv) ('the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States').
[62] At least on the 'local law' theory of choice of law, which takes as a given that (subject to the Constitution) courts can only apply the law of the polity which established them: see generally P E Nygh and Martin Davies, Conflict of Laws in Australia (7th ed 2002) 25–7 [3.5]–[3.6]. In the intra-national context, the only significance of choice of law rules is in selecting the applicable State or Territory legislation – Commonwealth legislation applies nationally, and there is a single Australian common law: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 ('Pfeiffer'), 517–8 [15] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[63] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 ('Edensor Nominees'), 587 [57] (Gleeson CJ, Gaudron and Gummow JJ, with Hayne and Callinan JJ agreeing), quoting South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130, 140 (Dixon CJ).
[65] Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.
[66] See, eg, Neilson v Overseas Project Corporation of Victoria Ltd [2005] HCA 54; (2005) 79 ALJR 1736, 1757 [115] (Gummow and Hayne JJ); see also 1741 [15] (Gleeson CJ), 1744 [34]–[35] (McHugh J, dissenting), 1770 [185] (Kirby J, dissenting), 1782 [249] (Callinan J), 1785 [267] (Heydon J). On the methods of proving foreign law, see, eg, Pt 4.6, Div 3 of the Evidence Act 1995 (Cth). Note that any question of foreign law is decided by the judge alone (s 176).
[67] On the assumption that courts do not simply 'declare' the content of a pre-existing common law: see below, text accompanying nn 71–6.
[68] There is some difficulty in characterising the High Court's role under the Nauru (High Court Appeals) Act 1976 (Cth) ('the Nauru Appeals Act'). Although called an 'appeal', proceedings under the Nauru Appeals Act are an exercise of original jurisdiction under s 76(ii) of the Constitution: Ruhani v Director of Police [2005] HCA 42; (2005) 219 ALR 199 ('Ruhani'), 201 [6], 202–3 [10] (Gleeson CJ), 212–3 [52] (McHugh J), 225 [103]–[106] (Gummow and Hayne JJ); contra 240 [172] (Kirby J), 265 [288] (Callinan and Heydon JJ, dissenting). Even so, the Nauru Appeals Act requires the High Court to determine the preferable outcome by reference to the law of Nauru (including presumably the common law): see at 202 [8] (Gleeson CJ), 214 [58], 215 [64], 219 [77] (McHugh J), 226–7 [113] (Gummow and Hayne JJ); see also 249 [216] (Kirby J), 264–5 [287] (Callinan and Heydon JJ, dissenting); see further Ruhani v Director of Police [No 2] (2005) 219 ALR 270 at 287 [80], 289 [88] (Kirby J, dissenting). The approach of Gleeson CJ, McHugh, Gummow and Hayne JJ might suggest that the Nauru Appeals Act operates as a choice of law rule in picking up the law of Nauru (including its common law), although that issue did not arise in Ruhani. If correct, that analysis would seem to mean that the High Court could only apply, and not develop, the common law of Nauru, even though the High Court is effectively acting as Nauru's highest court of appeal.
[69] For an introduction, see, eg, Frederick Schauer, 'Is the Common Law Law?' (1989) 77 California Law Review 455.
[70] Such as the place, if any, of morality in determining the content of the common law, given that judges are unelected: see, eg, Wojciech Sadurski, 'Conventional Morality and Judicial Standards' (1987) 73 Virginia Law Review 339.
[71] To adopt the famous phrase of Justice Holmes in Southern Pacific Co v Jensen, 224 US 205, 222 (1917). See also Justice Gummow, above n 3, 176 (point 6).
[72] For an overview of the debate, see, eg, Justice Michael McHugh, 'The Law-making Function of the Judicial Process – Part I' (1988) 62 Australian Law Journal 15, 15–24. In a famous rebuttal of the declaratory theory, Lord Reid derided it as a "'fairy tale'" which supposed that there was some Aladdin's cave where "'there is hidden the common law in all its splendour'": at 19.
[73] [1995] HCA 47; (1995) 183 CLR 373, 485 (footnotes omitted). The joint judgment also refers to Giannarelli v Wraith (1988) 165 CLR 543, 584 (Brennan J).
[74] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 485, 486. Accordingly, the statement that the Commonwealth Parliament cannot delegate to the courts 'the power to make law' (at 486) must mean the power to make a law of the Commonwealth.
[75] See, eg, Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 ('Lange'), 566 (the Court).
[76] This point is forcefully made in Adrienne Stone, 'The Common Law and The Constitution: A Reply' [2002] MelbULawRw 33; (2002) 26 Melbourne University Law Review 646, and those arguments are summarised in Graeme Hill and Adrienne Stone, 'The Constitutionalisation of the Common Law' [2004] AdelLawRw 5; (2004) 25 Adelaide Law Review 67, 82–7.
[77] Cf Retail, Wholesale and Department Store Union Local 580 v Dolphin Delivery Ltd [1986] 2 SCR 573, 600 (McIntyre J): '… I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. … It is [the courts'] duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute.' However, in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, Gleeson CJ, Gummow, Hayne and Heydon JJ noted that, although the judiciary is separated from the legislative and executive branches of government at the federal level, the judiciary remains an arm of government: at 99–100 [33]. The question of whether courts exercise governmental power is a separate question from whether the implied freedom of political communication applies to discussion of courts and judges (as to which, see Zoe Guest, 'The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges' (2006) 17 Public Law Review 5).
[78] (1999) 200 CLR 485 ('Lipohar'). For a more comprehensive analysis of Lipohar, see Jeremy Kirk, 'Conflicts and Choice of Law within the Australian Constitutional Context' (2003) 31 Federal Law Review 247, 253–6.
[79] Lipohar (1999) 200 CLR 485, 574–84 [230]–[261].
[80] Ibid 575–6 [235]–[237].
[81] Ibid 585 [262], assessing whether an offence had been committed against the common law 'in and of' South Australia.
[82] Ibid 500 [24], citing Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[83] See s 270(2) of the Criminal Law Consolidation Act 1935 (SA). In this respect, s 270(2) is similar to s 51AA of the Trade Practices Act, by imposing a prohibition on conduct that is defined by the common law (here, the offence of conspiracy): see above, text accompanying n 19.
[84] Lipohar (1999) 200 CLR 485, 501 [26].
[85] Ibid 505–10 [43]–[57]. The fact that the English common law was received at different times in different colonies did not affect this conclusion: ibid 508–9 [54].
[86] Ibid 513 [67], 517 [80].
[87] Ibid 534 [121], referring to s 17(2)(a) of the Supreme Court Act 1935 (SA); see also 527 [106]–[107].
[88] Ibid 505 [44] (footnote omitted, emphasis added).
[89] [1966] HCA 14; (1966) 115 CLR 94, 134, 135. See also Justice Gummow, above n 3, 170: the fact that the English common law was received at various dates in Australia 'did not mean that the English common law was regarded as received in a form frozen from further judicial development'.
[90] See above n 7 (discussing ETA Foods). On the other hand, the Full Court of the Family Court suggested that s 80 in its previous form applied 'the common law of England … as understood and applied, subject to any other statutory provisions, in the Australian States and Territories': In Marriage of Sheehan (1991) 104 FLR 57, 69 (the Court).
[91] [1969] 1 AC 590, 644. In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1967) 117 CLR 118, the High Court had declined to follow Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. Uren was then applied by the High Court in Australian Consolidated Press v Uren [1966] HCA 37; (1967) 117 CLR 185, which was appealed to the Privy Council. See generally J W Harris, 'The Privy Council and the Common Law' (1990) 106 Law Quarterly Review 574.
[92] Lipohar (1999) 200 CLR 485, 507 [50]. For one thing, appeals from decisions of the Australian High Court were not heard by the House of Lords; moreover, the approach of the Privy Council in cases such as Uren recognised (belatedly) the development of Australia's political and international sovereignty: Leslie Zines, 'The Common Law in Australia: Its Nature and Constitutional Significance' [2004] FedLawRw 16; (2004) 32 Federal Law Review 337, 344. Neither of these considerations applies to appeals from State or Territory courts to the High Court.
[93] See above n 88. Note, however, that '[t]he principle that superior courts are bound by their own previous decisions is of comparatively recent origin' (that is, between the middle and the end of the nineteenth century): Justice Lockhart, 'The Doctrine of Precedent – Today and Tomorrow' (1987) 3 Australian Bar Review 1, 1; see generally 1–3.
[94] (1999) 200 CLR 485, 517 [79]; see also Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 598 (Mason ACJ, Wilson and Dawson JJ).
[95] So it has been stated that in England '[j]urisdiction and law flow together in a mixed stream': Stewart Jay, 'Origins of Federal Common Law: Part Two' (1985) 133 University of Pennsylvania Law Review 1231, 1282, quoting Peter Du Ponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (1824) 6–7.
[96] Lipohar (1999) 199 CLR 485, 527 [105] (Gaudron, Gummow and Hayne JJ); Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1, 23 [11] (Gleeson CJ), 35 [53] (Gaudron, Gummow and Hayne JJ); cf 49 [100] (Kirby J).
[97] See Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 322–3 (the Court).
[98] See generally Julian D M Lew, 'The Extra-territorial Criminal Jurisdiction of English Courts' (1978) 27 International and Comparative Law Quarterly 168, 168–9. This is because in criminal cases courts can only apply the law of the forum: Lipohar (1999) 200 CLR 485, 527 [106]–[107] (Gaudron, Gummow and Hayne JJ).
[99] Prior to the enactment of Commonwealth service and execution of process legislation in 1901, the only way of bringing a person from one Australian law area to another to face criminal charges was pursuant to an extradition order under the Fugitive Offenders Act 1881 (UK): see Australian Law Reform Commission, Service and Execution of Process (Report No 40, 1987) 105 [215].
[100] See (1999) 200 CLR 485, 517 [80], 522 [92].
[101] See ibid 515 [72].
[102] Under Pt 2 of SEPA 1992, a State or Territory court may issue its process anywhere in Australia, in both civil cases (s 15) and criminal cases (s 24). Part 5 of that Act also provides for the inter-state execution of warrants, so that a person named in a warrant issued in one State may be apprehended in another State (s 82(1)).
[103] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 530 [53] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[104] Section 39(2) of the Judiciary Act confers federal jurisdiction on State courts 'within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise'. Section 39(2) picks up the limits as imposed by State law from time to time: Commonwealth v District Court of the Metropolitan District [1954] HCA 13; (1954) 90 CLR 13.
[105] See, eg, W M C Gummow, 'Pendent Jurisdiction in Australia – Section 32 of the Federal Court of Australia Act 1976' (1979) 10 Federal Law Review 211, 234, and the authorities cited. At least, the conferral of jurisdiction can carry that authority – a Commonwealth law conferring jurisdiction on a lower federal court might only confer authority to determine part of the justiciable controversy: see below, text accompanying n 135.
[106] See, eg, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570.
[107] Graeme Hill, 'Will the High Court “Wakim” Chapter II of the Constitution?' (2003) 31 Federal Law Review 445, 468–9.
[108] Justice Gummow writes that 's 75(iv) must encompass matters between residents of different States where the disputed rights and liabilities arise under some general body of non-statute law': above n 3, 174. It should be noted that, when federal jurisdiction is defined by reference to the identity of the parties, all the claims are 'federal', no matter what their source: Edensor Nominees (2001) 204 CLR 559, 590 [65] (Gleeson CJ, Gaudron and Gummow JJ, with Hayne and Callinan JJ agreeing).
[109] To adapt the language of Edensor Nominees: (2001) 204 CLR 559, 591 [68]. Of course, the common law is also relevant to s 75(v) of the Constitution, in determining both the meaning of 'mandamus', 'prohibition' and 'injunction', and also the grounds on which those remedies will be granted: see generally Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. However, even if there were no single common law in Australia, the common law questions raised by s 75(v) would clearly be 'federal' common law issues, and thus within the power of the federal judiciary to develop.
[110] I am grateful to Professor Zines for this point.
[111] It is not always easy to separate issues of jurisdiction and issues of power. For example, the High Court's undoubted ability to award certiorari once its s 75(v) jurisdiction is attracted could be analysed either as an exercise of accrued jurisdiction or as an exercise of an ancillary power: see, eg, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 37–8.
[112] By analogy, the High Court's power to punish contempt contained in s 24 of the Judiciary Act is 'declaratory of an attribute of the judicial power of the Commonwealth which is vested in [the Court] by s 71 of the Constitution': Torney [1999] HCA 57; (1999) 200 CLR 386, 395 [16] (Gleeson CJ and Gummow J), 429 [113] (Hayne J); contra 404 [50] (McHugh J), 416–7 [80]–[81] (Kirby J).
[113] There is still an issue whether the Commonwealth can confer power to develop or modify the common law, which is discussed below.
[114] Of course, this analysis of s 4(1) of the Commonwealth Places Act runs counter to the joint judgment in the Native Title Act Case, which assumed that s 4(1) applied to the common law, as well as State statutory law: see above, text accompanying n 15.
[115] Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629, 644 [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[117] The joint judgment observes that the expression 'foreign tort' identifies a 'foreign system of law in force at the locus delicti', and continues: 'where … the relevant events giving rise to a “maritime tort” occurred on the high seas, one asks what body of law other than that in force in the forum has any better claim to be regarded by the forum as the body of law dispositive of the action litigated in the forum?': (2003) 218 CLR 330, 340 [22]–[23] (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing) (emphasis added). It is true that, in rejecting an argument that applying the ACT limitation statute would extend the reach of that Act, the joint judgment stated that the Act 'plainly applies to actions instituted in the [ACT] Supreme Court': at 339 [19]. However, that statement should not be read literally, because otherwise the ACT limitation statute would also apply (contrary to Pfeiffer) to a tort action instituted in the ACT Supreme Court in respect of an accident that occurred in New South Wales: James Stellios, 'Choice of Law and the Australian Constitution: Locating the Debate' [2005] FedLawRw 2; (2005) 33 Federal Law Review 7, 35–6.
[118] See Lipohar (1999) 200 CLR 485, 509 [55] (Gaudron, Gummow and Hayne JJ). The Australian Courts Act 1828 (Imp) provided in s 24 that the laws and statutes in force in England on 25 July 1828 should apply to New South Wales and Van Diemen's Land so far as they could be applied: see, eg, Zines, above n 92, 339–41.
[119] Australian courts already make a distinction of this sort when they apply the common law of another country through a choice of law rule: see above, text accompanying nn 65–68. And there does seem to be a difference of degree between decisions such as State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617 (applying the rule in Searle v Wallbank [1947] AC 341 that the owner of livestock does not owe a duty of care to users of a public highway) and Mabo (No 2) (1992) 175 CLR 1 (developing the common law of native title).
[120] [1938] USSC 94; 304 US 64 (1938) ('Erie'). Erie overturned Swift v Tyson [1817] USSC 12; 41 US 1 (1842), which had held that federal courts could develop the 'general' common law. It has been suggested that the US provision on which s 80 was based – § 3 of the Civil Rights Act 1866 (US) – 'could possibly be read as moderating the position established by Swift v Tyson': Priestley J, above n 6, 225.
[121] Significantly, Erie did not cast doubt on the validity of s 34 of the Federal Judiciary Act of 1789 (which was the basis of s 79 of the Commonwealth Judiciary Act): [1938] USSC 94; 304 US 64, 79–80. In Australia, however, the common law is not a 'law of a State', and therefore is not picked up by s 79 of the Judiciary Act: see below, n 138. Professor Ely argues that Erie is only concerned with constitutional limits on the power of federal courts to depart from State law (including the common law), which needs to be distinguished from statutory limits on the power of federal courts to depart from State law, and also from the power of federal courts to develop rules of procedure: John Hart Ely, 'The Irrepressible Myth of Erie' (1974) 87 Harvard Law Review 693.
[122] Erie [1938] USSC 94; 304 US 64, 78: 'Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or "general", be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.' (emphasis added) However, federal courts in the United States can develop 'federal' common law: see generally Henry J Friendly, 'In Praise of Erie – and of the New Federal Common Law' (1964) 39 New York University Law Review 383.
[123] The US position is succinctly stated in Jay, above n 95, 1311: 'Central to the Court's overall philosophy of federal common-law jurisdiction is the proposition that the mere grant of jurisdiction to a federal court does not amount to an authorisation to "formulate" common law.'
[124] See Lipohar (1999) 200 CLR 485, 507–508 [51] (Gaudron, Gummow and Hayne JJ).
[125] By analogy, in the context of s 109 of the Constitution, the Commonwealth does not 'have power directly to control the content of a State law': Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 464 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); see also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 120–1 (Brennan J).
[126] See Zines, above n 92, 347–8.
[127] Cf above, text accompanying n 109.
[128] Zines, above n 92, 347. The High Court, although a national institution, is established in accordance with Commonwealth legislation (the High Court of Australia Act 1979 (Cth)) and is federal in that sense.
[129] Indeed, s 39 of the Judiciary Act has the effect that, when a case comes within any of the categories of federal jurisdiction, the only authority State courts have to determine the case derives from Commonwealth law: see Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 373 (Barwick CJ), 411–413 (Walsh J); see also 393 (Windeyer J); Edensor Nominees (2000) 204 CLR 559, 571 [7] (Gleeson CJ, Gaudron and Gummow JJ, with Hayne and Callinan JJ agreeing); APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 219 ALR 403, 460 [232] (Gummow J). By contrast, in the US, State courts determine cases raising federal subject-matter pursuant to authority granted by State law, not federal law: see generally Richard H Fallon Jr, Daniel J Meltzer and David L Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (4th ed 1996) 450–5.
[130] Particularly given that there have been times when State courts have not appreciated that they were exercising federal jurisdiction: see, eg, British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 41 [3] (Gleeson CJ), 50 [35] (McHugh, Gummow and Hayne JJ, with Callinan J agreeing).
[131] The US Supreme Court also has original jurisdiction but, unlike the High Court, it is not a court of general appellate jurisdiction. Accordingly, since Erie, even the US Supreme Court may only predict or apply State common law in cases coming within the Court's original jurisdiction.
[132] Imagine, for example, that Pfeiffer had been commenced in the High Court's original jurisdiction. Although the case raised constitutional objections to the former 'double actionability' rule (and thus involved the interpretation of the Constitution within s 76(i)), the Court could have responded by merely changing the common law. (And indeed Pfeiffer did only alter the common law: see Justice Gummow, above n 3, 180.)
[133] The joint judgment in Pfeiffer notes an issue whether, in the absence of s 80, choice of law rules would 'nevertheless apply in federal jurisdiction as part of the ultimate constitutional foundation': [2000] HCA 36; (2000) 203 CLR 503, 531 [56] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Similarly, Pryles and Hanks suggest that s 79 and s 80 of the Judiciary Act 'may only be declaratory of the situation that would exist in their absence': above n 61, 179 [5.2.3].
[134] For example, Professor Finn (as he then was) stated that 'we were born to statutes', although he also noted that there was a proliferation of statute law in the 1970s: Paul Finn, 'Statutes and the Common Law' (1992) 22 University of Western Australia Law Review 7, 8, 11.
[135] [1999] HCA 14; (1999) 197 CLR 510. The High Court (by majority) upheld the validity of Commonwealth provisions that gave the Federal Court power to review migration decisions on some grounds, but not others.
[136] Compare the observation by French J that it would be possible expressly to exclude a federal court's accrued jurisdiction by statute: Robert French, 'Federal Courts Created by Parliament' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 123, 143.
[137] Section 79 relevantly provides: 'The laws of each State or Territory … shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory …' (emphasis added).
[138] Some earlier cases stated that common law choice of law rules were picked up by s 79, although it was not suggested that the common law varied between different parts of Australia: see Deputy Commissioner of Taxation for the State of New South Wales v Brown [1958] HCA 2; (1958) 100 CLR 32, 39 (Dixon J); Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 169–70 (Windeyer J). More recent authorities, however, indicate that the common law is not picked up by s 79, because it is not a law 'of' a State or Territory: see, eg, Mewett (1997) 191 CLR 471, 526 (Gaudron J); see also Blunden (2003) 218 CLR 330, 339 [18] (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing).
[139] Cf above, text accompanying n 4; see also above, text accompanying nn 116–117 (reconciling this analysis with the result in Blunden).
[140] Cf above, text accompanying n 3. See further Hill and Beech, above n 52, 39-42.
[141] Cf above, text accompanying n 5. Perhaps these words also contemplate that judge-made law could fill in the details in a sparely-expressed Commonwealth statutory scheme; what Judge Friendly termed 'the implication of rights and the filling of interstices': see Friendly, above n 122, 416; see generally 412–9.
[142] ALRC Report No 92, above n 4, 611 (Recommendation 34–1).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FedLawRw/2006/3.html