Conflicts and Choice of Law within the Australian Constitutional Context

Published date01 June 2003
Date01 June 2003
Subject MatterArticle
Jeremy Kirk*
According to the orthodox principles of private international law, as applied within
Australia during the twentieth century, the different States are essentially to be
regarded as foreign entities. At common law, the courts of one State will generally
apply the statutory laws of another State to resolve a civil law dispute if directed to do
so by the common law choice of law rules, but not otherwise. Yet federation was a
eustatic event in the evolution of the Australian legal system, albeit that the sea change
has taken some time to flow through to ma ny areas.
Australian States are not foreign nations but sub-entities within one nation
established and maintained by the Australian Constitution. The law to be applied when
there is some competition between Australian legal rules cannot appropriately be
dictated just by the common law. That raises constitutional questions by its very
nature. Further, s 118 of the Constitution appears to have something to say on the issue,
directing that:
Full faith and credit shall be given, throughout the Commonwealth to the laws, the
public Acts and records, and the judicial proceedings of every State.
The view that 'choice' of law was a matter of constitutional law was taken by Wilson,
Deane and Gaudron JJ in Breavington v Godleman1 in 1988, but was rejected by a
majority of the High Court at the time. The issue has now been reopened by the
reasoning and the implications of the High Court's decisions in Lipohar v The Queen2
and John Pfeiffer Pty Ltd v Rogerson.3 In particular, although the judgments in those
cases did not attempt an exposition of the meaning and effect of s 118, they did
challenge a number of aspects of the orthodox principles, they accepted that the
Constitution spoke to the area, and gave some hint of the applicable constitutional
At least until the judgments in Breavington, constitutional mechanisms had 'seldom
been explored' as methods of resolving choice of law problems within Australia.4 Any
*BA LLB (hons) (ANU), BCL DPhil (Oxon); barrister, Sydney. Thanks are due to Geoffrey
Lindell, and to participants at the Public Law Weekend on 3 November 2001 at the
Australian National University, for comments on an earlier draft of this paper.
1(1988) 169 CLR 41('Breavington').
2(1999) 200 CLR 485 ('Lipohar').
3(2000) 203 CLR 503 ('Pfeiffer').
4Brian Opeskin, 'Constitutional Dimensions of Choice of Law in Australia' (1992) 3 Public
Law Review 152, 153.
248 Federal Law Review Volume 31
resolution to the issue, any construction of s 118, has significant advantages and
disadvantages. Thus Sykes and Pryles examine a variety of possible interpretations of
s 118, settling on one with weak enthusiasm whilst noting that it does not provide 'a
very ideal solution'.5 Kirby J supported a vigorous approach to the provision whilst on
the NSW Court of Appeal,6 but appears to have had his faith shaken.7 More broadly,
any particular choice of law rule will have some costs and some circumstances in
which its operation is less than desirable.8 Yet answers must be provided in the search
for the most appropriate, principled and justifiable approach within the Australian
constitutional context.
The aim of this paper is to explore three possible interpretations of s 118. The
traditional, narrow view is that the section has little substantive operation and does not
alter or overthrow the common law choice of law rules. This approach avoids some
difficulties that arise with other constructions, but suffers from at least four major
faults. It facilitates non-uniform results, depending on where in Australia proceedings
are instituted. It is based on a false premise, namely that the Australian States are
foreign entities one to another. It leads judges, acting pursuant to common law
principles, to ignore the dictates of valid, applicable, democratically-mandated
statutes. And it gives little effect to s 118.
The alternative approach suggested by Deane J, and also Wilson and Gaudron JJ,
sought to achieve uniformity of outcome by linking one body of law to a dispute with
interstate elements, especially by reference to the territoriality of where relevant
conduct took place. This view avoids the faults of the first construction but suffers
from other disadvantages, including an undermining of the legitimate interests of the
States in passing laws with some extra-territorial operation, an absence of clear criteria
where a dispute is connected to two jurisdictions, and it may be difficult to apply in
areas of law other than tort.
A third construction — the main focus of this paper — is one which has been
derided,9 but which reflects the natural meaning of the words, gives the provision
substantive effect, recognises the unified nature of the Australian nation, and allows
for legitimate extra-territorial application of State laws. It, too, has disadvantages but
these may not be as substantial as has been suggested. That construction is to regard
s 118 as requiring that full effect be given to all the statutes — civil and criminal — of
all States. In the event of an inconsistency between them then the law with the closer
connection to the particular issue should be applied. A similar result can also be
argued to flow for statutes of the Territories. This approach is similar to that proposed
by Deane J, and for similar reasons, but with an important difference relating to the
significance attributed to 'legal silences' and the common law.
The analysis in this paper is undertaken in the following manner. First, the paper
sketches the general background to the issues. It provides illustrations of the problems
that arise when statutes create divergences in the law applicable to disputes arising
5Edward Sykes and Michael Pryles, Australian Private International Law (3rd ed, 1991) 333, see
generally at 329–34.
6Thompson v Hill (1995) 38 NSWLR 714, 716–18.
7Pfeiffer (2000) 203 CLR 503, 556–8 [138]–[143]; Mobil Oil Australia Pty Ltd v Victoria (2002) 76
ALJR 926 ('Mobil Oil'), 941 [80].
8Note Pfeiffer (2000) 203 CLR 503, 539 [82].
9Sykes and Pryles, above n 5, 319.
2003 Conflicts and Choice of Law 249
within Australia, and examines the ability of the States to make laws with operation
beyond their own boundaries, which ability increases the likelihood of a court having
to 'choose' between the application of one law or another. The second and third parts
of the paper discuss the nature and significance of the High Court's recent decisions in
Lipohar and Pfeiffer respectively. Having set out the context for proper analysis, the
paper moves in Part 4 to provide an overview of the three approaches to s 118 just
mentioned, and Part 5 analyses the arguments for and against these approaches. Part 6
of the paper fills in some of the detail of what such an approach would entail,
including in relation to the difficult area of criminal law. Part 7 summarises the
propositions which emerge from this excur sis.
1.1 Choice of law rules
A competition of law (or 'conflict' on the traditional usage) arises when there are two
or more systems of law which have some plausible claim to govern the resolution of a
non-criminal legal dispute. If X has a car accident in Tasmania with a careless
Tasmanian, and X sues in her home State of Victoria, then the Victorian court is faced
with two sets of laws which could plausibly apply, namely, those of Tasmania and
The original common law principles in this area were developed by courts in
England (with further development in the United States). The principles developed
from cases which, in the main, involved some foreign (overseas) element. It is not
insignificant that the legal rules in this area are referred to as rules of 'private
international law'. In essence, the traditional approach within Australia has been to
apply these common law choice of law rules to intra-Australian competitions of law.
The Australian States were each to be regarded as 'a distinct and separate country'.10
The traditional common law rule in relation to choice of law for tort issues was
derived from the 1870 decision of Phillips v Eyre.11 It involves double actionability; that
is, and ignoring some of the agonising complications, a plaintiff would recover for a
claim in tort only to the extent that liability of that kind could be established both
under the law of the forum if the act or omission had occurred there (the lex fori) and
the law of the place where the tort occurred (the lex loci delicti).12 In the car accident
example, if there was any difference in the law applying in Tasmania or Victoria the n X
would only be able to claim to the extent of the lowest common denominator. Yet if X
sued in Tasmania, where the accident occurred, then only Tasmanian law would be
applied, and any limitations in Victorian law would be ignored. Thus X might get a
different result depending on where she chose to sue.
There was one major rebellion against this orthodoxy prior to Pfeiffer. In
Breavington, in 1988, four judges of the High Court rejected the double actionability
10 Laurie v Carroll (1958) 98 CLR 310, 331 (Dixon CJ, Williams and Webb JJ). Also, eg, Pedersen
v Young (1964) 110 CLR 162, 170 (Windeyer J), approved McKain v Miller (1991) 174 CLR 1
('McKain'), 36 (Brennan, Dawson, Toohey and McHugh JJ).
12 See, eg, Koop v Bebb (1951) 84 CLR 629, 642; Anderson v Eric Anderson Radio & TV Pty Ltd
(1965) 114 CLR 20 ('Anderson'); McKain (1991) 174 CLR 1, 39 (Brennan, Dawson, Toohey and
McHugh JJ).

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