Choice of Law and the Australian Constitution: Locating the Debate
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| DOI | 10.22145/flr.33.1.2 |
| Subject Matter | Article |
LOCATING THE DEBATE
James Stellios*
INTRODUCTION
There has been renewed interest in the constitutional dimensions of choice of law.1
This interest was reignited by the High Court's decision in John Pfeiffer Pty Ltd v
Rogerson,2 where the Court appealed to 'constitutional factors' as guiding the selection
of the lex loci delicti as a common law choice of law rule in intra-national tort cases.
While the central importance of the overarching constitutional framework to intra-
national choice of law questions may be accepted, the High Court struggled to identify
with precision the relevance of constitutional provisions and implications for the
choice of law inquiry. In particular, it failed to respond adequately to concerns
expressed in earlier majority judgments about the continued capacity of State
legislatures to direct their courts as to the legal standards to be applied in a case
involving out-of-state elements. Because of the fact pattern that arose in Pfeiffer, the
High Court was able to avoid the more difficult questions that arise in intra-national
choice of law cases, particularly the question of which legal standards apply when
there is an 'inconsistency' between two or more State legislative provisions. In response
to Pfeiffer, there have been, from an Australian constitutional and choice of law
perspective, radical suggestions about how choice of law disputes should be resolved
in Australia. Although unique in Australian discourse, these suggestions are not new
to the resolution of choice of law.
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*
Lecturer, Faculty of Law, Australian National University. I would like to thank Jim Davis,
Leslie Zines, Robert Burrell, Graeme Hill, Marita Rendina, Heather Roberts, Amelia
Simpson and the anonymous referees for their very helpful comments. Many of the ideas
for this paper were developed during my time at the Cornell Law School. I would like to
thank the Cornell Law School for the Fellowship opportunity provided to me, and thank
the Honourable Justice Michael Kirby AC CMG, Peter Bayne, Jim Davis and David Hambly
for their support.
1 See Stephen Gageler, 'Private Intra-national Law: Choice or Conflict, Common Law or
Constitution?' (2003) 23 Australian Bar Review 184; Graeme Hill, 'Resolving a True Conflict
Between State Laws: A Minimalist Approach' (2005) 29 Melbourne University Law Review
(forthcoming); Graeme Hill and Adrienne Stone, 'The Constitutionalisation of the Common
Law' (2004) 25 Adelaide Law Review 67; Jeremy Kirk, 'Conflicts and Choice of Law within the
Australian Constitutional Context' (2003) 31 Federal Law Review 247; Justice Bradley Selway,
'The Australian "Single Law Area"' (2003) 29 Monash University Law Review 30.
2
(2000) 203 CLR 503 ('Pfeiffer').
8
Federal Law Review Volume
33
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Part I of this paper considers the main intra-national choice of law High Court
cases. The analysis will illustrate the disagreement in the case law from one majority to
the next about the type of federal legal system created by the Constitution. Prior to
Pfeiffer, Justices of the Court were polarised in their views of the federal legal system as
either a unitary legal system or a collection of legally independent entities. This
polarisation gave rise to the familiar choice of law tension between the pursuit of
uniform outcomes across State courts, and the preservation of the capacity of States to
prescribe the legal standards to be applied in State courts. The Court in Pfeiffer
appeared to resolve the uncertainty by pointing to 'constitutional factors' that favour
the unitary legal system view that privileges uniformity of outcome and which yield
the lex loci delicti as the choice of law rule to be applied in intra-national tort cases.
Part II presses further those 'constitutional factors'. The section will show that the
High Court's case for unity requiring uniformity is not compelling, and that the Court
has relied upon suspect 'constitutional' ideas to yield the lex loci delicti. Part III will
contend that the Pfeiffer methodology for determining choice of law is unsustainable.
The approach favoured by the Court is based upon an assumed territorial demarcation
of State legislative powers that finds no firm support in the Constitution, and responds
in a limited way to choice of law patterns that do not conform to the assumptions
underlying that approach.
Part IV of this paper contends that a stronger constitutional case could be made for
a federal legal system based on equality of treatment in choice of law, rather than a
broader conception of uniformity of outcome. Part V turns to consider the alternative
method for the resolution of choice of law cases recently proposed by constitutional
law commentators. It is an approach that seeks to choose the applicable law by looking
to the reach and content of the State laws, and their underlying policies, rather than
connecting legal disputes to law areas. It will be seen that the central premise of these
contentions is that the common law has no role to play in choice of law in the
Australian intra-national context. Although these claims are overstated, the
methodology advocated by those commentators is one that is more sustainable in the
Australian context and, in Part VI, I will outline how this suggested methodology,
when combined with a federal legal system based upon equality of treatment, may be
applied to choice of law questions in the Australian intra-national context.
PART I — CHOICE OF LAW FOR AUSTRALIAN INTRA-NATIONAL
TORTS
The Australian experience with intra-national torts has been an uneasy one. The High
Court has struggled to identify the dimensions to the inquiry and, consequently, it has
had difficulty identifying principles and explaining the basis for their adoption.
Justices have relied upon a range of ideas to guide their development of principles, but
the relevance of those ideas has not always been clear. The choice of law inquiry has
been further complicated by perceived competing visions of our federal legal system,
and the relevance of those competing federal visions for the selection of choice of law
rules. Furthermore, the inquiry has been burdened by the varying degrees to which
constitutional provisions have been viewed as relevant to choice of law.
This section of the paper deconstructs the most important High Court judgments on
choice of law in an Australian intra-national context, with the aim of understanding
2005
Choice of Law and the Australian Constitution 9
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why particular choices were made by Justices, and the assumptions that informed
those choices.
1
Cases prior to Pfeiffer
Prior to Pfeiffer, High Court Justices seemed to identify with one of two schools of
thought: first, that the States are part of a unitary legal system or, secondly, that the
States are mutually independent legal entities.
(i)
The unitary legal system view
The unitary legal system view was put forward most clearly by Deane J. In Breavington
v Godleman,3 Deane J explained that 'a unitary system of law' is a 'comprehensive legal
system in which the substantive law applicable to govern particular facts or
circumstances is objectively ascertainable or predictable and internally consistent or
reconcilable.' His Honour continued:
What is essential is that the substantive rule or rules applicable to determine the
lawfulness and the legal consequences or attributes of conduct, property or status at a
particular time in a particular part of the national territory will be the same regardless of
whereabouts in that territory questions concerning those matters or their legal
consequences may arise. In a federation such as Australia where there are a number of
legislatures and a number of distinct court systems, such unity cannot exist unless the
legal principles for determining legislative competence and for resolving conflicts
between different laws in a particular case will operate with identical results in any of the
different court systems.4
Justice Deane concluded that the 'comprehensive system of law which the
Constitution established was intended to be a unitary one in the above sense.'5
Horizontal unity is achieved, according to his Honour, by a demarcation of laws along
territorial lines. His Honour explained that State laws remain 'essentially territorial in
the sense that they apply to regulate (or to define the consequences or attributes of)
conduct, property or status within, or having a sufficient relevant nexus with, that part
of the nation which constitutes the territory of the particular State.'6 In Deane J's view,
the fact that State legislative power may extend extra-territorially is no obstacle to that
demarcation along territorial lines. Any competition or inconsistency that might arise
between purported laws of different States would be resolved by confining the laws to
a territorial operation, or by determining the 'predominant territorial nexus'.7 His
Honour recognised that there may be difficulties in identifying the applicable law in
some cases arising from circumstances in or connected with the...
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