The Common Law and Federal Jurisdiction — What Exactly Does Section 80 of the Judiciary Act DO?
| Date | 01 March 2006 |
| Author | Graeme Hill |
| Published date | 01 March 2006 |
| DOI | 10.22145/FLR.34.1.3 |
| Subject Matter | Article |
THE COMMON LAW AND FEDERAL JURISDICTION — WHAT
EXACTLY DOES SECTION 80 OF THE JUDICIARY ACT DO?
Graeme Hill*
INTRODUCTION
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
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* 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) 97 CLR
323, 330–331 (Webb J) and In re Forrest [1912] VLR 466, 469–70 (Cussen J). And in Musgrave
v Commonwealth (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) 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
76 Federal Law Review Volume 34
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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.
I. CAN A COMMONWEALTH STATUTE APPLY 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:
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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) 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) 217 CLR 30, 54 [46] (McHugh, Gummow
and Hayne JJ, with Callinan J agreeing).
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