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Published online by Cambridge University Press: 24 January 2025
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.
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 SirOwen, Dixon, 'Sources of Legal Authority' (1943) 17 Australian Law Journal 138Google Scholar; SirOwen, Dixon, 'The Common Law as an Ultimate Constitutional Foundation' (1957) 31 Australian Law Journal 240Google Scholar; 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 vThe Queen (1999) 200 CLR 485.
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 FullFederal 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.
8 For detailed accounts of the reception of common law, see William Loutit Morison, The System of Law and Courts Governing New South Wales (2nd ed, 1984) ch 7; Alex C Castles, An Australian Legal History (1982) ch 17; Alex C Castles, 'The Reception and Status of English Law in Australia' (1963) 2 Adelaide Law Review 1.
9 Quan Yick v Hinds (1905) 2 CLR 345.
10 Cooper v Stuart (1889) 14 App Cas 286, 292 3;Delohery v Permanent Trustee Co of NSW (1904)CLR 283, 289, 291.
11 State Government Insurance Commission v Trigwell (1979) 142 CLR 617, 625 (footnotes omitted).
12 [1927] AC 515, 519.
13 Eg, Piro v Foster (1943) 68 CLR 313, 320, 326, 335 6
14 Ibid 342.
15 Lord Dunedin's statement was criticised by Lord Wright in (1943) 8 Cambridge Law Journal118, 135 on the ground that it was only the Privy Council and not the House of Lords that was the final court of appeal for the colonies. Justice Williams in Piro v Foster said that that was 'technically correct' but Lord Dunedin's view was 'eminently practical': (1943) 68 CLR 313.
16 Kelly v Sweeney [1975] 2 NSWLR 720, 724. Chief Justice Bray seemed to be of the same viewin Bagshaw v Taylor (1978) 18 SASR 564, 578.
17 [1947] AC 341.
18 Trigwell (1979) 142 CLR 617, 635.
19 The early cases are examined in Castles' and Morison's works, above n 8.
20 See Morison, above n 8, ch 8.
21 41 US 1 (1842).
22 Black and White Taxicab Co v Brown and Yellow Taxicab Co 276 US 518 (1928).
23 304 US 64 (1938).
24 Clark, above n 1. See also Wynes, above n 1.
25 Clark, above n 1, 201.
26 R v Kidman (1915) 20 CLR 425.
27 (1949) 79 CLR 121, 163.
28 (1954) 91 CLR 42.
29 See cases set out in Priestley, above n 1, 230.
30 Dixon, 'Sources of Legal Authority', above n 3, 138; 'The Common Law as an Ultimate Constitutional Foundation', above n 3, 31; Sir Owen Dixon, Jesting Pilate (1965) 198, 203.
31 Dixon, Jesting Pilate, above n 30, 199.
32 Ibid
33 Waghorn v Waghorn (1942) 65 CLR 289. It should be noted, however, that the High Courtrefused to follow the Court of Appeal in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 606, where the errors in the English judgments were described as 'fundamental'. Chief Justice Latham emphasised that the decision had been often criticised and never considered by the House of Lords or the Privy Council.
34 Piro v Foster (1943) 68 CLR 313.
35 (1963) 111 CLR 610.
36 Skelton v Collins (1966) 115 CLR 94.
37 Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221; Geelong Harbour Trust Commissioners v Gibbs, Bright and Co (1974) 129 CLR 576.
38 Despite these developments Barwick CJ in Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336, 341 said that, on matters of general principle, the Supreme Courts at first instance should follow the English Court of Appeal in the absence of High Court authority and that 'the Supreme Court on appeal would be well advised as a general rule to do likewise'. Justice Gibbs (at 349) said much the same thing. Justice Murphy strongly attacked this approach in Day and Dent Constructions Pty Ltd v North Asian Properties Pty Ltd (1982) 150 CLR 85, 109.
39 Viro v The Queen (1978) 141 CLR 88.
40 (1992) 175 CLR 1, 15.
41 For example, Commonwealth v Mewett (1997) 191 CLR 471, 523 6; Breavington v Godleman (1988) 169 CLR 41, 123.
42 (1997) 189 CLR 520, 563. See also Re Wakim (1999) 163 ALR 270, 303.
43 Lipohar v The Queen (1999) 200 CLR 485; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.
44 Dixon, above n 30, 204.
45 (1996) 189 CLR 51.
46 Ibid 112.
47 Ibid 138.
48 Gaudron J interpreted the phrase 'common law in Australia' in s 80 of the Judiciary Act 1903 (Cth) as meaning a unified body of Australian common law rather than the common law of a particular State: Commonwealth v Mewett (1997) 191 CLR 471, 523 4.
49 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 139.
50 Ibid 114.
51 Ibid.
52 Priestley, above n 1, 232. See also LJ Priestley, 'A federal common law in Australia?' (1995)46 South Carolina Law Review 1043, 1065-7.
53 304 US 64 (1938).
54 (1946) 71 CLR 29.
55 Ibid 81.
56 Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290, 330.
57 (1940) 63 CLR 278.
58 Sir Harrison Moore, 'The Federations and Suits Between Governments' (1935) 17 Journal ofComparative Legislation 163, 199.
59 (1997) 191 CLR 471.
60 Commonwealth v New South Wales (1923) 32 CLR 200, 204.
61 Commonwealth v Mewett (1997) 191 CLR 471, 546.
62 Ibid 547, citing South Australia v Victoria (1911) 12 CLR 667; Commonwealth v New South Wales (1923) 32 CLR 200; South Australia v Commonwealth (1962) 108 CLR 130, 139, 148.
63 There is some dispute as to whether s 80 should be first applied before considering s 79.This is on the basis that s 80 is a law of the Commonwealth and, therefore, comes within the phrase 'except as otherwise provided by . . . the laws of the Commonwealth' in s 79: Commonwealth v Mewett (1997) 191 CLR 471, 523 6 (Gaudron J), 554 (Gummow and Kirby JJ), 492 (Brennan CJ), 506 (Dawson J). The thesis of this paper is in agreement with Gaudron J in so far as she states that 'the common law in Australia' must refer to the one and only common law operating throughout Australia.
64 Enid Campbell, 'Suits Between Governments of a Federation' (1971) 6 Sydney Law Review309. See also Geoffrey Lindell, Justiciability of Political Questions Under the Australian and United States Constitutions (LLM Thesis, University of Adelaide, 1972) 697 9, 701.
65 See Moore, above n 58, 163.
66 South Australia v Victoria (1911) 12 CLR 667, 715 (Isaacs J).
67 See Moore, above n 58, 186.
68 Ibid 188 90.
69 Ibid 164. See also at 202.
70 (1935) 52 CLR 157.
71 Ibid 188. Quoted by Moore, above n 58, 185. For judicial references to the 'Commonwealth' as a body politic and community, see Patrick Harding Lane, Lanes Commentary on the Australian Constitution (2nd ed, 1997) 862.
72 Skelton v Collins (1966) 115 CLR 94, 135.
73 (1994) 179 CLR 427.
74 Ibid 435.
75 Ibid 436.
76 (1991) 171 CLR 635.
77 (1992) 177 CLR 1.
78 Ibid 31.
79 Ibid 101 4.
80 Subject to the Commonwealth 'covering the field' so that s 109 applies.
81 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; Alexandra Private Geriatric HospitalPty Ltd v Commonwealth (1987) 162 CLR 271.
82 Justice John Toohey, 'A Government of Laws and Not of Men' (1993) 4 Public Law Review158, 170.
83 Ibid. In AMS v AIF (1999) 199 CLR 160, 180, Gleeson CJ, McHugh and Gummow JJ distinguished between the rule of construction that a statute is to be interpreted, so far as its language permits, as consistent with international law, and the interpretation of the Constitution which is not subject to that rule. Kirby J has argued on a number of occasions that, when the Constitution is ambiguous, regard should be had to international law, particularly in respect of human rights see, eg, Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657; Kartinyeri v Commonwealth (1998) 195 CLR 337, 417 8. No other judge has adopted that approach.
84 (1992) 174 CLR 455.
85 They acknowledged, however, that to conclude that equality was a common law right it was necessary to put 'to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women': ibid 486. The implication of equality was rejected by most of the Court in Kruger v Commonwealth (1997) 190 CLR 1.
86 (1992) 177 CLR 1.
87 Ibid 69.
88 [1932] AC 562.
89 John, Doyle, ';Common Law Rights and Democratic Rights' in Paul Finn (ed), Essays on Lawand Government (1995) 144, 155 6Google Scholar
90 Jeffrey, Goldsworthy, 'Implications in Language, Law and the Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 174 8Google Scholar
91 (1994) 182 CLR 104 (Mason CJ, Deane, Toohey and Gaudron JJ; Brennan, Dawson and McHugh JJ dissenting).
92 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
93 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 126.
94 McGinty v Western Australia (1996) 186 CLR 140, 291.
95 (1997) 189 CLR 520. Events once again illustrated the interaction of the Constitution and the common law of Australia.
96 Ibid 560.
97 Ibid 563.
98 Ibid 566.
99 The Court in fact expanded the defence of qualified privilege so as to take it beyond that required by the Constitution. To that extent it was vulnerable to statutory alteration.
100 Adrienne Stone, 'Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication' (2001) 25 Melbourne University Law Review 374, 404–17; Adrienne Stone, 'The Common Law and the Constitution: A Reply' (2002) 26 Melbourne University Law Review 646.