The Australian Constitution's Influence on the Common Law

AuthorKathleen Foley
Published date01 March 2003
Date01 March 2003
Subject MatterArticle
Kathleen Foley
What is the influence of the Australian Constitution ('Constitution') on the common law
of Australia?1 In Lange v Australian Broadcasting Co rporation,2 a unanimous High Court
Of necessity, the common law must confor m with the Constitution. The developmen t of
the common law in Australia canno t run counter to constitutiona l imperatives. The
common law and the requireme nts of the Constitution cannot be at odds.3
Applying this principle,4 Lange developed the common law of d efamation consistently
with the implied freedom of political communication. Subsequently, in John Pfeiffer Pty
Ltd v Rogerson,5 the High Court held that the comm on law of choice of law in tort
'should be developed to take into account various matters a rising from the Australian
constitutional text and structure.'6
Lange and Pfeiffer raise a number of interesting questions about the relationship
between the Constitution and the common law. In particular, it is unclear whether there
LLB (Hons), BA (UWA). I would like to thank Jim Thomson for his advice, observations
and assistance. Thanks are also due to Robert Meadows QC, Joshua Thomson, Rossana
Panetta, Jamie Edelman, Gran t Donaldson and the referee fo r their helpful comments and
1In this article 'common law' refers to judge-made law and includes equitable principles. In
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 208 CLR 199 ('ABC v
Lenah Game Meats'), Kirby J considered equitable principles must conform to the
Constitution: ibid 280 [192]. Other members of the Court found it unnecessary to consider
this issue.
2(1997) 189 CLR 520 ('Lange').
3Ibid 566 (footnote omitted).
4The phrase 'the Lange principle' will be used to refer to the holding in Lange that the
common law must conform to the Constitution. Although Lange stated that the common law
must conform 'with' the Constitution, the use of 'to' is grammatically correct and does not
alter the legal effect of the phrase. See, eg, ABC v Lenah Game Meats (2002) 208 CLR 199, 219
[20] (Gleeson CJ).
5(2000) 203 CLR 503 ('Pfeiffer').
6Ibid 534 [67] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
132 Federal Law Review Volume 31
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are different modes of constitutional influence on the common law.7 This article will
argue that Lange and Pfeiffer reveal the existence of two different modes of in teraction
between the Constitution and the common law.
Part I examines the first mode of interaction, which finds expression in Lange's
principle that the common law must conform to the Constitution. This mode of
interaction occurs where the Constitution requires or mandates common law
development in a particular way.8 Part II submits that there exists a second mode of
interaction, which occurs where the Constitution influences or guides common law
development but does not mandate change.9 Finally, Part III applies the preceding,
perhaps theoretical, analysis to a more practical legal question: how would the
Constitution assist the development of a common law rule governing conf licts between
state statutes?
Lange's holding that the common law must conform to the Constitution was a
significant step in Australian constitutional and common law jurisprudence. It
represented a change in the Court's conception of the Australian legal system and the
Constitution's role within that system. However, the Lange principle is subject to an
important limitation, only requiring common law devel opment to conform to the
Constitution where there is conflict between the common law and constitutional
A Is there a common law of Australia?
In the course of holding that the common la w must conform to the Constitution, Lange
resolved an important question regarding the meaning of 'common law' in Australian
jurisprudence: is there one common law in Australia? Prior to Lange, this issue was not
settled.10 It was unclear whether the common law was largely state law, whether there
7See generally Adrienne Stone, 'The Common Law and the Constitution: A Reply' (2002) 26
Melbourne University Law Review 646; Greg Taylor, 'Why the Common Law Should be only
Indirectly Affected by Constitutional Guarantees: A Comment on Stone' (2002) 26
Melbourne University Law Review 623; Bradley Selway, 'The Principle Behind Common Law
Judicial Review of Administrative Action—The Search Continues' (2002) 30 Federal Law
Review 217, 232; Michael Sexton, 'Constitutional Intersections: The Common Law and the
Constitution' (Paper delivered at the Annual Public Law Weekend, ANU, 2 November
2001) (copy on file with the author) 13, 19–23.
8Stone, above n 7, 648. Stone describes this mode as the 'mandatory effect' model.
9Ibid 648. Stone describes this mode as the 'guidance' or 'mere influence' model.
10 But see Jeremy Kirk, 'Confli cts and Choice of Law Within the Australian Constituti onal
Context' (Paper delivered at the Annual Public Law Weekend, ANU, 2 November 2001)
(copy on file with the autho r) 53. Kirk emphasises the significance of Lipohar v The Queen
(1999) 200 CLR 485 ('Lipohar')—rather than Lange—in establishing the existence of one
common law of Australia. Kirk's contention is made on the basis that it was not until
Lipohar that the concept of a unified common law of Austr alia had 'a direct, materia l
application in a High Court decision': ibid 56–7. However, in Esso Australia Resources Ltd v
Federal Commissioner of Taxation (1999) 201 CLR 49 ('Esso v FCT'), Lange rather than Lipohar is
cited as authority for the proposition that there exists an Australian common law: ibid 61–2
2003 The Constitution's Influence on the Common Law 133
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was a separate and distinct 'federal' common law, or whether there was a single
common law of Australia.11 However, during the 1990s members of the High Court
increasingly expressed the view that there was a single common law of Austra lia.12
Professor Zines indicates two developments that contributed to a growing
acceptance of the existence of a single 'Australian' common law.13 First, the Hig h
Court's decision in Parker v The Queen14 that it would not f ollow the House of Lords if
the latter's decision was fundamentally wrong. Secondly, after the 1975 abolition of
appeals from the High Court to the Privy Council,15 the High Court held that it was no
longer bound by Privy Council decisions.16 These developments formed part of a
(Gleeson CJ, Gaudron and Gummow JJ). See also Mobil Oil Australia Pty Ltd v Victoria
(2002) 189 ALR 161, 200 n 196 (Kirby J) ('Mobil Oil v Victoria').
11 Division on this question is evident in R v Kidman (1915) 20 CLR 425, 435–6 (Griffith CJ),
444–6 (Isaacs J), 454 (Higgins J). See also R v Snow (1915) 20 CLR 315, 325 (Griffith CJ); R v
Sharkey (1949) 79 CLR 121, 163 (Webb J); Skelton v Collins (1966) 115 CLR 94, 134–5
(Windeyer J); Felton v Mulligan (1971) 124 CLR 367, 370 (Walsh J during argument). See also
the discussion in Lipohar (1999) 200 CLR 485, 507–8 (Gaudron, Gummow and Hayne JJ),
where it is emphasised that the common law of Australia is different from the notion of a
federal common law. See generally Leslie Zines, The Common Law in Australia: Its Nature and
Constitutional Significance (Law and Policy Paper No 13, Centre for International and Public
Law, ANU, 1999); Justice L J Priestley, 'A Federal Common Law in Australia?' (1995) 6
Public Law Review 221; P H Lane, The Australian Federal System (2nd ed, 1979) 511–12, 586
n 21, 866 n 4; W Anstey Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed,
1976) 58–60; A Inglis Clark, Studies in Australian Constitutional Law (1901, reprinted 1997)
192; John Quick and Robert Garran, The Annotated Constitution of the Australian
Commonwealth (1901, reprinted 1995) 785.
12 See, eg, Mabo v Queensland (No 2) (1992) 175 CLR 1, 15 (Mason CJ and McHugh J); Dietrich v
The Queen (1992) 177 CLR 292, 297–8 (Mason CJ and McHugh J); Environment Protection
Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 556 (McHugh J); Burnie Port
Authority v General Jones Pty Ltd (1994) 179 CLR 520, 556–7 (Mason CJ, Deane, Dawson,
Toohey and Gaudron JJ); Wik Peoples v Queensland (1996) 187 CLR 1, 176 (Gummow J); Kable
v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 112 (McHugh J), 138 (Gummow J)
13 Zines, above n 11, 8–10.
14 (1963) 111 CLR 610.
15 The Privy Council (Appeals from the High Court) Act 1975 (Cth) removed the right to a ppeal
from the High Court to the Privy Counci l on non-constitutional matters, such as matters of
common law or concerning state laws. Its validity was upheld by the High Court in
Attorney-General (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161. The 1975 Act was
preceded by the Privy Council (Limitation of Appeals) Act 1968 (Cth), which removed the
right to appeal from the High Court to the Privy Council i n matters involving the
Constitution or federal laws. Its validity was upheld by the Privy Council in Kitano v
Commonwealth (1975) 132 CLR 231. See generally Anne Twomey, 'Sue v Hill—the Evolution
of Australian Independence' in Adrienne Stone and George Williams (eds), The High Court
at the Crossroads—Essays in Constitutional Law (2000) 77, 105–7.
16 Viro v The Queen (1978) 141 CLR 88. There remains the theoretical possibility of the High
Court granting a certificate under s 74 of the Constitution. However, in Kirmani v Captain
Cook Cruises Pty Ltd (No 2) (1985) 159 CLR 461 the High Cour t stated that the jurisdiction to
grant a s 74 certificate was 'obsolete': ibid 465 (the Court). Appeals from state Supreme
Courts to the Privy Council on non -federal matters were abolis hed by s 11 of the Au stralia
Act 1986 (UK) c 2 and s 11 of the Australia Ac t 1986 (Cth).

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