Chapter 5: Sources of Law | avesisland.info
An efficient and effective constitution allows government tofunction to protect the lives If the law of the state runs counter to natural law, it is held to be unjust. . the development and growth of new forms of association to meet human needs. This is why all sorts of federal laws and regulations will contain language This Constitution, and the laws of the United States which shall be. III Explaining The High Court'S Doctrine — The Concept Of State Action . upon, the relationship between the Constitution and common law choice of law rules.
I will show that his account is inconsistent with the best reading of existing authority. On this score, our differences are so fundamental that a full response would require me to revisit many years of well-worn jurisprudential debate. My argument focuses on our differing understandings of the common law. That is, his argument implicitly relies on the notion that common law rights have some existence independent of the judicial decisions in which they are recognised. These are, of course, controversial positions.
Moreover, as I will show, his more specific points about the nature of the Constitution and of judicial power are also dependent on this contentious conception of the common law and are thus subject to the doubts I raise about it. Finally, I turn to the question of consequences. In any event, they are certainly not mitigated by an account that is descriptively inaccurate and based on unarticulated but controversial premises. Under this conception, the Constitution requires that the common law change in certain ways.
Under this conception, the Constitution is a guide to the direction of the common law but does not require change. Accordingly, where a change is made to the common law in response to some aspect of the Constitutionthe Parliament remains free to change the new doctrine even where it has been developed to conform to the Constitution.Federal vs State Laws HD
A What Does Lange Say? Which of these two models does Lange adopt? In Lange, the High Court extended the common law defence of qualified privilege so that it would conform to the requirements of the freedom of political communication.
This conclusion is based on the judgment itself. The development of the common law in Australia cannot run counter to constitutional imperatives. The Court said that the common law is required to conform to the Constitutionnot that the Constitution merely guides developments in the common law from which the Parliament is free to depart. Following shortly thereafter, another passage leads to the same conclusion: The common law may be developed to confer a head or heads of privilege in terms broader than those which conform to the constitutionally required freedom, but those terms cannot be any narrower.
Laws made by Commonwealth or State Parliaments or the legislatures of self-governing territories which are otherwise within power may therefore extend a head of privilege, but they cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution.
Further authority for this conclusion can be found in the majority judgment in John Pfeiffer Pty Ltd v Rogerson,  where the Court considered, but did not decide upon, the relationship between the Constitution and common law choice of law rules.
In that case, the majority observed as follows: In Lange, the common law rule which was propounded with respect to qualified privilege was developed so as to satisfy what the Court identified as the constitutional imperative respecting freedom of communication.
Indeed, although the majority in Pfeiffer declined to say that the particular developments of the common law undertaken in that case would subsequently be immune from legislative interference, those judges certainly envisaged that it could happen.
Having developed common law choice of law rules with some reference to aspects of the Constitutionthe majority said: The matters we have mentioned as arising from the constitutional text and structure may amount collectively to a particular constitutional imperative which dictates the common law choice of law rule which we favour.
If so, the result would be to restrict legislative power to abrogate or vary that common law rule. First, there has yet to be a case in which legislation has been impugned for failure to comply with some aspect of the common law developed by reference to constitutional imperatives, such as the new rule stated in Lange. I contend, however, that my analysis is the better reading of Lange. Second, recognising that Lange envisages this kind of relationship between the common law and the Constitution the first of the two models suggested above does not preclude some instances where the Constitution has the weaker effect envisaged by the second model.
Accepting that the Constitution will override an inconsistent common law doctrine does not rule out the possibility that the other kind of relationship will sometimes exist. Bradley Selway QC puts it the following way: So, within Australia, the common law must conform to the Constitution. Where there is repugnancy between the common law and the Constitution then, as would be the case with a repugnancy to a statute, the common law is abrogated so as to avoid the repugnancy.
However, the Constitution has a broader effect upon the common law than merely to abrogate it in cases of inconsistency. In addition the common law can and should be developed by the courts by reference to constitutional principles even where there is no repugnancy. The important point because Taylor appears to deny it is that the first occurs at least some of the time and that it is the kind of relationship between the Constitution and the common law envisaged in Lange.
Finally, as I stated in my earlier article,  Lange contains some inconsistent statements on this matter. At one point, the Court appears to find that the Constitution does not apply to the common law. The freedom which flows from the implied limitation of power Although the Constitution prevails over the common law where there is inconsistency, there is no express inconsistency between the Constitution and those rules of the common law which govern the rights and liabilities of individuals inter se.
That is because the Constitution deals not with the rights and liabilities of individuals inter se but with the structure and powers of organs of government That area of the common law and the area covered by the Constitution do not overlap. On the other hand, the Court effectively retracts that statement by stating that the common law must nonetheless conform to the Constitution and by precluding legislative revision of some aspects of the common law.
My view is that this apparent inconsistency should be resolved by recognising that the Constitution does control the common law albeit, as I will explain shortly, in a partial manner.
That is, on my reading of the cases, we should prefer the latter statement that the common law must conform to the Constitution to the earlier statements that the Constitution is a limit only on legislative and executive action.
Certainly, the statements requiring the common law to conform to the Constitution are made quite emphatically in Lange and have been confirmed in later cases. By contrast, the apparent exclusion of the common law from subjection to the Constitution is not emphasised to the same degree in Lange and finds full explanation only in the earlier judgment of Brennan J in Theophanous.
Of course, the inconsistency could also be resolved if the Court abandoned its claim that the common law should conform to the Constitution. However, the Court has not taken that path. Taylor, of course, claims that there is no inconsistency between these two positions. I turn now to that suggestion. By this he seems to mean two things. In part, he is referring to the source of the rule — to the resources on which a court relies when it formulates a new rule.
Under the Lange approach, Taylor stresses, courts turn to the common law. In Theopha- nous, the High Court felt able to discern a rule which was said to be of constitutional status and directly required by and contained in the Constitutionand which was thus superior to the common law.
But in Lange, the Court abandoned that approach and held that the common law itself should be developed rather than have a constitutional rule imposed on it from above so as to take account of the value of free speech. He argues that this indirect application of the Constitution brings with it an important practical effect: Under this model, the Constitution only influences or guides the direction of the common law with the consequence that the Parliament retains control over the common law. Parliament cannot change a rule which is said to be directly contained in the Constitution ; it is as much part of the Constitution as any express provision, and can therefore be changed only by constitutional amendment.
But Parliament can change a rule of the common law, including one influenced by constitutional values.
Chapter 5: Sources of Law
Lange shows how this works: I have no quarrel with the claim that, under the approach adopted in Lange, the new rule is informed by the existing common law. Constitutional interpretation by reference to common law concepts is not uncommon  and that approach may have been open in a case like Theophanous as well.
It cannot be right to say that the Parliament may interfere with common law rules, where those common law rules have been developed to conform to the Constitution.
As I have explained above, that is inconsistent with the best interpretation of Lange. In addition, I think Taylor misunderstands the effect of my account of the relationship between the common law and the Constitution.
To pursue that claim further, I now turn to the precise nature of my account. That is, under the Lange approach, the Constitution may entrench some parts of the common law while leaving closely related parts untouched. Indeed, the decision in Lange illustrates this point. It would seem, therefore, that these extensions could be altered by legislatures.
Accepting this analysis, there is little practical difference between the approaches taken to the relationship between the common law and the Constitution in Theophanous on the one hand and in Lange on the other. There may be a difference in the source of the new rule in each case. The rule in Lange seems to have been more closely informed by the pre-existing common law than the rule in Theophanous.
In this respect the two approaches are the same. In both cases, a new rule has been developed that is immune from legislative change but otherwise the common law remains unchanged.
As Professor Zines explains: It is sometimes suggested that the approaches in Theophanous and Lange are, in this respect, very different. The argument is that Lange denied that the constitutional implication operated directly to alter the private rights of individuals inter se and that Theophanous was therefore, in effect, overruled. As, however, it was held that the common law must conform to constitutional requirements there is no difference in result. In each case it can sensibly be said that the defendant was guaranteed a defence by virtue of the Constitution.
However, that statement is sometimes qualified. I turn now to that issue. Having established this relationship between the two bodies of law, the question becomes: The most natural explanation is that common law adjudication is considered to be like legislative and executive action and is therefore subject to constitutional requirements in much the same way. In my earlier article, I advanced an argument along these lines, drawing upon the insights of American state action doctrine.
The Court is applying the Constitution to the common law.
Constitutional law - Wikipedia
If Taylor is as deeply opposed to that process as seems apparent on a reading of his text, his response should be to argue that the Court should alter its doctrine, rather than to advance a descriptive theory that fails to explain what the Court is actually doing.
In addition, my explanation and the American doctrine on which it draws accords more readily with the fact that citizens are bound just as much by common law rules as they are by legislative or executive rules. Therein lies the heart of my argument: The Constitutionthe federal, State and territorial laws, and the common law in Australia together constitute the law of this country and form "one system of jurisprudence".
Covering cl[ause] 5 of the Constitution renders the Constitution "binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State". Within that single system of jurisprudence, the basic law of the Constitution provides the authority for the enactment of valid statute law and may have effect on the content of the common law.
Indeed, the Constitution's role within the Australian legal system was emphasised by Kirby J in Pfeiffer v Stevens,  who stated: In enunciating the central principle, the Court in Lange also stated: Justice Kirby reiterated this view in Lipohar: In Lange, this Court emphasised that the common law in Australia may not contradict constitutional imperatives.
If the provisions of a supposed common law rule are inconsistent with the Constitutionthey must yield to the constitutional norm. Accordingly, unless a constitutional requirement is identified, and inconsistency exists between the common law and that requirement, the common law is not required or mandated to develop in any particular way. D Lange's approach to developing the common law to conform to the Constitution The judicial method Lange employed in developing the common law to conform to the Constitution has two characteristics.
First, in determining the scope and operation of the constitutional requirement, the Court focused upon the Constitution's text and structure. Secondly, the Court gave particular attention to the identification of inconsistency between the common law and the requirements of the Constitution. Obviously, casting the constitutional requirement in broad terms would increase the likelihood and extent of inconsistency between the common law of defamation and the Constitution.
The Court held that the freedom of political communication was to be articulated by strict reference to the Constitution's terms and structure. Under the Constitutionthe relevant question is not, 'What is required by representative and responsible government? This was achieved by the Court's acceptance that ascertaining the implied freedom's content involved examining 'changing circumstances'.
As discussed, development of the common law to conform to constitutional requirements carries the possibility of entrenchment of the common law and undermining of the democratic process. Therefore, in this context it would be appropriate for the Court to adopt an extremely cautious approach to constitutional interpretation. An approach to constitutional interpretation focused upon the 'text and structure' of the Constitution restricts the scope for recognition of constitutional requirements and the 'reach' of such requirements.
In turn, this reduces the potential for inconsistency between common law rules and constitutional requirements. As a result, the likelihood of common law entrenchment is also reduced. The need for a strict approach when dealing with constitutionally entrenched common law was recognised by Gummow J in Kruger v Commonwealth. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?
Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the [system of government prescribed by the Constitution ]?
That is, the common law of defamation did not have to correspond precisely to the requirements of the constitutional implied freedom.
Quite apart from the mandatory conformity of the common law to the Constitutionthe Constitution may be used to guide common law development. A The Constitution may influence the common law in the absence of constitutional requirements As discussed, Lange stated that the common law could be developed more broadly than required by the Constitution.
Importantly, Lange did not indicate whether the Constitution was relevant to common law development beyond that required by the Constitution or in the absence of constitutional requirements. The appellant employer was registered in the ACT. Justice Kirby delivered a separate judgment, as did Callinan J, who dissented on the question of whether a new choice of law rule should be developed. Pfeiffer also suggests that 'constitutional principles may be used to develop the common law beyond that which is required' by the Constitution or in the absence of constitutional requirements.
For example, the joint judgment stated 'the [constitutional] matters we have referred to require that a somewhat different approach be adopted with respect to Australian torts which involve an interstate element. The matters we have mentioned as arising from the constitutional text and structure may amount collectively to a particular constitutional imperative which dictates the common law choice of law rule which we favour.
It may be that those matters operate constitutionally to entrench that rule, or aspects of it If so, the result would be to restrict legislative power to abrogate or vary that common law rule. However, we leave these questions open. What is important is that the joint judgment considered the Constitution relevant to the development of the choice of law rule without holding that the Constitution required a particular rule.
In other words, although the joint judgment expressly left open the question of whether a constitutional imperative existed, it was still considered possible for the Constitution to guide the development of the choice of law rule. In contrast, Dr Adrienne Stone initially appeared to reject the possibility that common law development might be guided, but not required, by the Constitution.
- Federal Law Review
- Melbourne University Law Review
I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. Charter values, framed in general terms, should be weighed against the principles which underlie the common law.
The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary. Although the joint judgment stated that the choice of law rule should be developed to 'take into account' various constitutional matters,  their Honours failed to clearly explain how each of these matters actually influenced the development of the choice of law rule.
Even so, the joint judgment evidently considered the constitutional factors to be important. For example, the joint judgment considered the notion of 'sovereignty', viewed by European theorists as providing the foundation for the choice of the lex loci delicti, to be of little assistance in a federal system where 'sovereignty' is shared between the federal, state and territory 'law areas'.
In addition the common law can and should be developed by the courts by reference to constitutional principles even where there is no repugnancy. This issue, among others arising from Pfeiffer, is considered below.
B How does the Constitution 'guide' the common law? It is contended that, absent a constitutional requirement, the Constitution's influence on the common law does not differ from that of an 'ordinary' statute. Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course.
Neither legal principle nor social utility requires or warrants the obliteration of that boundary. Sections and of the Evidence Act Cth provided for a statutory test different from the accepted common law test in Australia. A majority of the Court emphasised that, unless there was a consistent pattern of legislative policy, to develop the common law by reference to local statutes would result in the 'fragmentation' of the common law throughout Australia's law areas.
There is nothing 'requiring' courts to develop the common law to accord with legislative policy. Analogical use of a statute is simply one of several tools a judge may utilise in judicial decision-making. In contrast, Lange established that the common law and the requirements of the Constitution 'cannot be at odds'. But it is not a mere balancing factor in a discretionary judgment as to the preferred outcome in a particular case, to be given such weight as to a court seems fit.
Three principal reasons are advanced in support of this proposition. First, in both cases, the judge exercises judicial choice as to whether to take into account, and how much weight to give to, a particular factor in the development of the common law. It makes no difference that in one case the factor will be a constitutional 'matter' or 'value', whereas in the other case the factor will be 'the view of successive Parliaments' reflected in that statute or statutory provision.
Second, in both cases, the resulting common law remains 'common law'. When developing the common law consistently with the Constitutionthe resulting common law is only 'constitutionalised' if the common law development is required by a constitutional imperative. Third, the basis of the interaction in both cases is similarly directed to the 'intention' behind the legislative instrument. In the case of analogical use of statutes in common law development, the common law responds to the legislative intention.
Indeed, the joint judgment in Esso v FCT refused to apply the 'doctrine of analogy' on the basis that '[w]hat has occurred in Australia in relation to the legislation here in question cannot be said to reflect a consistent legislative view of what the public interest demands in relation to the law of legal professional privilege.
It is a long established principle of Australian constitutional interpretation that the meaning of a constitutional term is the original meaning it had when enacted in If a judge takes into account, for example, 'federalism' as a constitutional matter in developing the common law, he or she would be responding to the framers' intention, as reflected in the Constitutionthat the Commonwealth of Australia exist as a federation. For example, there is disagreement about the extent that the common law rule developed in Lange is protected from legislative change.
As recognised by Kirk, 'it may well be that what appears to be flexible common law is closely shaped by hard constitutional requirements'. Lange's strict approach to constitutional interpretation was not evident in Pfeiffer.
In contrast to Lange, the Pfeiffer joint judgment focused upon broader concepts underlying the Constitution rather than being tied down to particular provisions. On the one hand, the text and structure approach is justified by the particularity of the rule created. On the other hand, the aim of deriving a constitutional objective is not to create a firm rule, but to supply a policy consideration for judicial evaluation.
Pfeiffer is not an isolated example of the Court's departure from Lange's textual approach. For example, in Sue v Hill,  the majority interpreted the Constitution in light of matters such as constitutional changes in the United Kingdom and changes in the relationship between the United Kingdom and Australia. Indeed, in discussing the Pfeiffer joint judgment's use of 'constitutional matters', Dr Greg Taylor states '[t]hese matters are not precise enough to justify a hard-and-fast [choice of law] rule.
They do, however, justify an approach to moving the common law in one direction rather than another.