Why Does the Common Law Conform to the Constitution?
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | 10.1177/0067205X211039889 |
| Author | Joshua Sheppard |
| Subject Matter | Articles |
Article
Federal Law Review
2021, Vol. 49(4) 569–593
© The Author(s) 2021
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DOI: 10.1177/0067205X211039889
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Why Does the Common Law
Conform to the Constitution?
Joshua Sheppard*
Abstract
The High Court has often said that the common law must conform to the Constitution. The High
Court has not completely explained why this is so. This requirement is not explicitly mentioned
anywhere in the Constitution itself. A number of scholars have suggested possible answers. One is
that the Constitution is the supreme law and binding on everyone. Another suggestion has been tha t
the common law must conform because the Constitution constrains ‘state action’: something more
than just an exercise of constitutionally conferred power. This latter explanation appears to deviate
from the High Court’s exposition of the common law’s relationship with the Constitution in Lange v
Australian Broadcasting Commission. This article suggests that the Constitution has a broader ap-
plication to the common law, in that it constrains all uses of judicial power, not just those that are
considered to be ‘state action’. It contends that it is implicit in s 71 of the Constitution that the
power to develop the common law yields to constitutional imperatives. This theory is more
descriptively consistent with the High Court’s practice and observations about the relationship
between the common law and the Constitution.
Received 2 August 2020
I Introducion
The High Court has, on numerous occasions, stated that the common law must conform to the
Constitution. However, the Constitution does not mention the common law at all, much less that it
must conform. So, why does the common law conform to the Constitution? A number of answers
have been suggested. One is that the Constitution is binding and supreme. Another, in the context of
the implied freedom of political communication, is that exercises of power, including the judicial
power to develop the common law, are limited by the implied freedom when they can properly be
seen as acts of government.
I contend that both of these answers fail to explain the High Court’s doctrine. In this article, I will
attempt to develop a theory that better accords with the current description of the relationship
between the Constitution and the common law. This article proceeds in five parts. First, I will set out
some instances where the common law has conformed to the Constitution. Secondly, I will outline
the suggestion that the common law conforms to the Constitution because of the latter’s supreme
*BCom/LLB (Hons). I thank Dr Lisa Burton Crawford, Dr Patrick Emerton and Mr Roger Wu for their guidance and helpful
comments. All errors remain my own. The author may be contacted at jrpsheppard@gmail.com.
status, and how this analysis to date has assumed the truth that it seeks to prove. Thirdly, I will
outline Adrienne Stone’s state action doctrine and articulate why I think that she falls into error.
Fourthly, I will examine whether the Constitution’s relationship with legislative and executive
power can provide any insight into the question of why the common law conforms. Finally, I will
contend that it is implicit in the conferral of federal judicial power that the common law must
conform to the Constitution.
II When Has the Common Law Had to Conform to the Constitution?
The High Court has developed the common law so that it is consistent with constitutional im-
peratives, including the implied freedom of political communication. In cases concerned with the
implied freedom, some judges have described that constitutional imperative as informing the
common law of Australia,
1
or requiring that the common law be consistent with the Constitution.
2
What does this actually involve, however?
The most expansive description given by the High Court of how and why the common law is
affected by the Constitution was that stated in Lange v Australian Broadcasting Corporation
(‘Lange’).
3
That case was concerned with a defamation action brought by plaintiff David Lange, a
former Prime Minister of New Zealand, against the defendant, the Australian Broadcasting Cor-
poration. The defendant relied on a constitutional defence that it said arose from two previous cases,
Theophanous v Herald & Weekly Times Ltd (‘Theophanous’)
4
and Stephens v West Australian
Newspapers Ltd (‘Stephens’).
5
That defence was said to protect the publication of material dis-
cussing government and political matters, including the performance of, and the suitability of
persons to be, members of Parliament, if the publisher was unaware of the falsity of the material
published, did not publish the material recklessly, and the publication was reasonable in the cir-
cumstances.
6
As phrased in Theophanous, this defence appeared to be found in the Constitution
itself and nullified the operation of the common law. The plaintiff alleged that the defence was bad in
law. The High Court did not conclusively determine the dispute between the parties, remitting the
final determination of the matter to the Supreme Court of New South Wales. It did, however, revisit
‘some of the expressions and reasoning in the various judgments in Theophanous and Stephens …
in order to settle both constitutional doctrine and the contemporary common law of Australia’.
7
In Lange, the Court stated that those who are defamed might find a remedy in the common law.
However, they unequivocally stated that the common law ‘must conform with the Constitution. The
development of the common law in Australia cannot run counter to constitutional imperatives’.
8
They identified that:
Freedom of communication on matters of government and politics is an indispensable incident of that
system of representative government which the Constitution creates by directing that the members of the
House of Representatives and the Senate shall be ‘directly chosen by the people’of the Commonwealth
and the States, respectively.
1. Tajjour v New South Wales (2014) 254 CLR 508, 547–8 [32] (French CJ).
2. Ibid 558 [59] (Hayne J).
6. Theophanous (n 4) 208.
7. Lange (n 3) 556.
8. Ibid 566 (citations omitted).
570 Federal Law Review 49(4)
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