The Common Law in Australia: Its Nature and Constitutional Significance
| DOI | 10.22145/flr.32.3.1 |
| Published date | 01 September 2004 |
| Author | Leslie Zines |
| Date | 01 September 2004 |
| Subject Matter | Article |
THE COMMON LAW IN AUSTRALIA: ITS NATURE AND
CONSTITUTIONAL SIGNIFICANCE
Leslie Zines AO*
This article originally was published as a Law and Policy Paper. The Law and Policy Papers
series was established in 1994 by the Centre for International and Public Law in the Faculty
of Law, the Australian National University. The series publishes papers contributing to
understanding and discussion on matters relating to law and public policy, especially those
that are the subject of contemporary debate. In 1999 the papers were published jointly by the
Centre for International and Public Law and The Federation Press. This article is reproduced
in the Federal Law Review with the permission of the original publishers.
The common law has been described by judges and legal writers in Australia in
different, and sometimes inconsistent, ways. Some, like Inglis Clark, Justice Priestley
and Anstey Wynes, have maintained that it is, by and large, State law.1 Some who
accept that view believe there is, in addition, a smaller area that can be described as
federal or Commonwealth common law.2 Often, however, in recent years it is referred
to as the common law of Australia or the national common law.3 On many occasions in
the past it was referred to as the law of England, a view which had great consequences
for Australian judicial behaviour. At other times judges speak simply of 'the common
law'.
These differences in description, and perhaps in connotation, of judge-made law in
Australia are reflected in statutes. Section 80 of the Judiciary Act 1903 (Cth) required
courts, in certain circumstances, to apply 'the common law of England ', until it was
amended in 1988 to refer to 'the common law in Australia'. Section 12 of the Native Title
Act 1993 (Cth) attempted to give part of 'the common law of Australia' the force of a law
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* Emeritus Professor Leslie Zines is a Visiting Fellow based in the Law Program, Research
School of Social Sciences, the Australian National University.
1 Andrew Inglis Clark, Studies in Australian Constitutional Law (first published 1901, 1997 ed)
ch 10; William Anstey Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed,
1976) 58–60; LJ Priestley, 'A Federal Common Law in Australia?' (1995) 6 Public Law Review
221.
2 R v Kidman (1915) 20 CLR 425 (Griffith CJ); In re Usines de Melle's Patent (1954) 91 CLR 42
(Fullagar J); R v Sharkey (1949) 79 CLR 121, 163 (Webb J).
3 Sir Owen Dixon, 'Sources of Legal Authority' (1943) 17 Australian Law Journal 138; Sir Owen
Dixon, 'The Common Law as an Ultimate Constitutional Foundation' (1957) 31 Australian
Law Journal 240; Mabo v Queensland (No 2) (1992) 175 CLR 1, 15; Commonwealth v Mewett
(1997) 191 CLR 471, 521–2; Kable v DPP (NSW) (1997) 189 CLR 51, 112–3, 137–9; Lipohar v
The Queen (1999) 200 CLR 485.
338 Federal Law Review Volume 32
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of the Commonwealth.4 Section 51AA of the Trade Practices Act 1974 (Cth), on the other
hand, makes unlawful conduct that is unconscionable under 'the unwritten law of the
States and Territories'.
Justice LJ Priestley has argued against the view that there is a unitary body of
common law in Australia and has concluded that there is a common law of each State
and Territory notwithstanding the role of the High Court as a final court of appeal.5 He
accepts that there is also an area that might be called Commonwealth common law, but
that is limited to those rules that are necessary to enable the rights and powers of the
Commonwealth to be enforced, and are implied in the Constitution.
Justice McHugh and Justice Gummow have strongly denied that the common law
is primarily that of each State, as in the United States.6 Their Honours have said that
s 73(ii) of the Constitution, giving the High Court appellate jurisdiction in respect of
judgments, etc, of the Supreme Courts of the States, implies a constitutional object of
creating and maintaining a national common law.
From a practical point of view, this dispute might be seen as quite unimportant.
Justice Priestley, for example, concluded that the differences in the several States are
few, do not matter very much and that the High Court is likely to unify any of those
differences. In other respects, however, the differences of view could have profound
consequences. For example, from the constitutional purpose they find in s 73, McHugh
and Gummow JJ deduce that there are restrictions on a State's legislative power in
respect of its judicial system. The issue could also be relevant to constitutional
interpretation and suits between governments.7
It is the conclusion of this paper that there is much to be said for the proposition
that there is a national system of common law available to be used for many different
purposes. That proposition is, in my view, supported by historical, constitutional and
social considerations. The system of common law operating in an Australian colony
before federation or in a State after federation was not usually perceived (subject to
some exceptions) as a separate system of principles and rules and constituting an
independent source of further evolution and growth.
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4 The provision was held invalid in Western Australia v Commonwealth (1995) 183 CLR 373.
5 Priestley, above n 1.
6 Kable v DPP (NSW) (1997) 189 CLR 51.
7 The difference of view was also important in relation to whether the reasoning of the Full
Federal Court in Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 418 should be adopted.
The Court held that a common law rule should be altered because of irrational and
impractical consequences that would otherwise ensue as a result of provisions of the
Evidence Act 1995 (Cth). The holding was, therefore, confined to 'Evidence Act
jurisdictions'. New South Wales had similar provisions. That case was disapproved by the
majority of a five-judge Federal Court in Esso Australia Resources Ltd v Federal Commissioner
of Taxation (1998) 159 ALR 664, which held that, because there was one common law in
Australia, it was impossible to hold that the statutory provisions had modified the common
law in some jurisdictions while leaving it unmodified in others. On appeal the High Court
agreed with that view, although the decision was reversed on other grounds: Esso Australia
Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
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