Why the Common Law Should Be Only Indirectly Affected by Constitutional Guarantees: A Comment on Stone

By Taylor, Greg | Melbourne University Law Review, December 2002 | Go to article overview

Why the Common Law Should Be Only Indirectly Affected by Constitutional Guarantees: A Comment on Stone


Taylor, Greg, Melbourne University Law Review


[Recently, Dr Adrienne Stone has advocated the adoption of the American `state action' doctrine in Australia (with some minor amendments) as the correct view of the interaction of the Constitution and the common law. This response to Dr Stone argues that doing so would be a mistake, as the `state action' doctrine is both theoretically flawed and not in accordance with other basic assumptions of Australian constitutional law. Accordingly, it produces odd results. The conception of the relationship between the Constitution and the common law expounded by the High Court in Lange is also explained and defended from claims of inconsistency.]

I    Introduction
II   Does Lange Make Sense?
III  Defining the Question: `Common Law' or `Private Individuals'?
IV   The Nature of the Constitution
V    The Nature of Judicial Power
VI   The Nature of the Common Law
VII  Private Autonomy and the `State Action' Theory
VIII The Results of the `State Action' Theory
IX   Conclusion

I INTRODUCTION

Recently, Dr Adrienne Stone has advocated in this journal, (1) in an interesting and otherwise well-argued discussion, that the relationship between the Australian Constitution and the common law was misconceived by the High Court of Australia in Lange v Australian Broadcasting Corporation (2) and that it should revert to the doctrine of direct effect which was adopted in Theophanous v Herald & Weekly Times Ltd (3) and abandoned in Lange. Dr Stone argues that the common law should be considered `state action' (4) but that Lange decided that it is not `state action' but `private' (5) and thus not directly subject to constitutional guarantees which deal with public law. Under the `state action' doctrine of the Supreme Court of the United States which Dr Stone favours (with, as we shall see, some finetuning), the courts are conceived of as part of the state from which the Bill of Rights provides protection. (6) Therefore, any rules--including those of the common law--which the courts apply are subject to review for compliance with constitutional guarantees of rights in the same way as any other governmental action. Dr Stone considers Lange's description of the common law as `private' to be nothing more than `theoretical confusion' because it fails to take account of the fact that determining the common law is itself a governmental and public function. (7) The purpose of this article is to argue that theoretical confusion would exist in Australian jurisprudence only if the American `state action' doctrine advocated by Dr Stone were adopted here and the High Court returned to a direct constitutional rule based on the Theophanous model.

With the indulgence of the Editor of the Federal Law Review, the present author has already indicated briefly that he does not agree with the state action theory which Dr Stone has put forward in this journal. (8) The present article is an attempt to give reasons for the author's intuitive feeling that the High Court got it right in Lange; that the statement that the common law is `governmental action' is wrong, or at best only a very partial truth; and that the doctrine expounded in Lange, far from being an example of `theoretical confusion', can be defended by a theory which is distinctly preferable to that advanced by Dr Stone and which does not suffer from fundamental misconceptions. This will be done by considering the nature of the Constitution, the nature of judicial power, the nature of the common law, the inadequate conception of the place of personal autonomy in the law to which the `state action' doctrine is committed, and finally, the results produced by adherence to Dr Stone's theory.

II DOES LANGE MAKE SENSE?

This article will accordingly concentrate on the deficiencies of the `state action' doctrine. First, however, the Lange doctrine needs to be defended from Dr Stone's claims of inconsistency. In a previous article, (9) I attempted to describe in greater detail, and with references to the Lange case (and its successor, John Pfeiffer Pty Ltd v Rogerson (10)), the High Court's conception of the manner in which the Constitution affects the common law.

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