Academic journal article Melbourne University Law Review

The Common Law and the Constitution: A Reply

Academic journal article Melbourne University Law Review

The Common Law and the Constitution: A Reply

Article excerpt

[In this article, Adrienne Stone replies to Greg Taylor's criticism of her analysis of the relationship between the common law and the Constitution. Stone argues, first, that the descriptive part of Taylor's argument is inaccurate, failing to reflect the High Court's current doctrine. Second, Stone argues that Taylor's normative argument (that the Constitution should not apply to the common law) is based on an unacknowledged but controversial premise--a non-realist and non-positivist understanding of the common law. Thus, Stone argues, Taylor's critique cannot stand without a defence of this understanding of common law, a formidable task that Taylor does not attempt. Stone concludes by replying to the argument that her analysis produces undesirable consequences. She argues that Taylor's theory brings its own set of troubling consequences, that he exaggerates the effect of her analysis and, finally, that the difficult problem that remains (the task of limiting the scope of constitutional doctrine) is an unavoidable consequence of the decision in Lange.]

I    Introduction
II   The Relationship between the Common Law and the Constitution--The
     High Court's Doctrine
       A  What Does Lange Say?
       B  Taylor's Descriptive Claim: The Indirect
          Relationship between the Common Law and
          the Constitution
       C  The `Mandatory' but `Partial' Effect of the
          Constitution on the Common Law
III  Explaining the High Court's Doctrine--The Concept of State Action
       A  The Nature of the Common Law
       B  Other Arguments
          1  The Nature of the Constitution
          2  The Nature of Judicial Power
          3  The Applicability of United States Case Law
          4  Consequences: Fundamental Rights, Private
             Autonomy and State Action
IV   Conclusion

I INTRODUCTION

In a comment on part of an earlier article of mine, (1) Dr Greg Taylor purports to show that my understanding of the relationship between the common law and the Constitution is misconceived. (2) In this reply, I explain and defend my position. (3)

Dr Taylor makes two claims. First, he makes a descriptive claim that casts the influence of the Constitution on the common law as `indirect' rather than `direct'. By this, he seems to mean that the Constitution merely suggests a direction for the common law, which can subsequently be overridden by legislation.

Second, Taylor makes a normative claim. He argues that the relationship between the common law and the Constitution should not be understood by reference to the idea that the judicial enforcement of the common law is `state action'. To do this, he says, would be to `revert' to the position adopted by the High Court in Theophanous v Herald & Weekly Times (4) and abandoned in Lange v Australian Broadcasting Corporation. (5) Furthermore, Taylor maintains that such an analysis of the relationship between the common law and the Constitution rests on `fundamental misconceptions' and leads to undesirable consequences. (6)

In Part II, I address Taylor's descriptive claim. I argue, first, that he mischaracterises my argument. In suggesting the concept of `state action' as an explanation for the High Court's current doctrine, I am not suggesting that the Court should abandon the doctrine it adopted in Lange and `revert to the doctrine of direct effect which was adopted in Theophanous'. (7) Rather, my view is that, on close examination, the reasoning in the two cases is very similar. The approach I advanced in my earlier article and will revisit here explains both cases.

Second, I address Taylor's analysis of the relationship between the common law and the Constitution. I will show that his account is inconsistent with the best reading of existing authority. The High Court has, in effect, subjected the common law to the requirements of the Constitution, something that his `indirect' account does not allow. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.