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Stone, Adrienne --- "The Common Law and the Constitution: A Reply" [2002] UMelbLRS 1

Last Updated: 17 August 2010



[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.]



In a comment on part of an earlier article of mine,F[1]F Dr Greg Taylor purports to show that my understanding of the relationship between the common law and the Constitution is misconceived.F[2]F In this reply, I explain and defend my position.F[3]F
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 TimesF[4]F and abandoned in Lange v Australian Broadcasting Corporation.F[5]F 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.F[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.’F[7]F 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. Thus, Taylor’s analysis fails at the first hurdle: it does not adequately describe the Court’s actual doctrine.
In Part III, I address Taylor’s normative claim. On this score, our differences are so fundamental that a full response would require me to revisit many years of well-worn jurisprudential debate. For these purposes, my aim is simply to demonstrate the controversial nature of Taylor’s premises, so that any further debate can at least be conducted with more careful attention to these matters. It is important to do so because Taylor’s premises are not clearly articulated in his article, nor does he acknowledge how controversial they are.
My argument focuses on our differing understandings of the common law. Despite his protestations to the contrary, Taylor’s conception seems to have some ‘non-realist’ basis. 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. Further, his account appears to be ‘non-positivist’ in that he seems to rely on some concept of ‘natural’ rights rather than on the idea that law is the product of a recognised law-making process. 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. Taylor argues that the consequence of ‘state action’ doctrine is to obliterate the distinction between public and private and allow too great an interference with private autonomy. In response, I show that Taylor’s theory brings its own set of troubling consequences, and that although ‘state action’ doctrine poses difficult problems, these are unavoidable. In any event, they are certainly not mitigated by an account that is descriptively inaccurate and based on unarticulated but controversial premises.


At the outset, let me describe two possible ways of understanding the relationship between the common law and the Constitution.

  1. The ‘Mandatory Effect’ Model: Under this conception, the Constitution requires that the common law change in certain ways. As a result, where a change is made to the common law in response to some aspect of the Constitution, those changes are ‘constitutionalised’ and immune from subsequent legislative restriction.F[8]F
  2. The ‘Guidance’ or ‘Mere Influence’ Model: 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 Constitution, the Parliament remains free to change the new doctrine even where it has been developed to conform to the Constitution.

A 5BWhat 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.F[9]F In my view, the changes to the common law that were driven by the need to conform to the Constitution have been, in effect, constitutionalised and are now immune from legislative alteration. Thus, Lange adopts the ‘Mandatory Effect’ model.
This conclusion is based on the judgment itself. In Lange, the Court stated unanimously that, ‘[o]f necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives.’F[10]F That language is mandatory. The Court said that the common law is required to conform to the Constitution, not 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.F[11]

Thus, common law qualified privilege may be extended more broadly than the Constitution requires, but it cannot be narrowed, and legislative attempts to do so will be invalid.
Further authority for this conclusion can be found in the majority judgment in John Pfeiffer Pty Ltd v Rogerson,F[12]F 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. This imperative ‘operates as a restriction on legislative power’ so that ‘[s]tatutory regimes cannot trespass upon the constitutionally required freedom.’F[13]

As the common law rule in Lange was developed to satisfy a constitutional ‘imperative’ and this ‘imperative’ restricts legislative power, it follows that statutory regimes cannot now trespass on the new rule. 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 Constitution), the 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. It may be that those matters operate constitutionally to entrench that rule, or aspects of it concerning such matters as a ‘public policy exception’. If so, the result would be to restrict legislative power to abrogate or vary that common law rule.F[14]

Accordingly, I conclude that the influence of the Constitution on the common law is mandatory.F[15]F
I should immediately add three further comments. 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. Thus, the correctness of my analysis (and of any proposed alternative, including Taylor’s), has yet to be directly tested in the courts. 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.F[16]F

It follows then that the two approaches outlined above are not mutually exclusive. 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,F[17]F 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. For example, the sections of the Constitution that establish the freedom of political communication ‘preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’F[18]F By failing to mention ‘the common law’, the Court seems to adopt the position that the freedom of political communication does not apply to the common law.F[19]
This passage suggests that the Court in Lange adopted the analysis of the relationship between the common law and the Constitution advanced by Brennan J in Theophanous.F[20]F In that case his Honour held:

The freedom which flows from the implied limitation of power ... [i]s not a sanctuary with defined borders from which the operation of the general law is excluded. ... [T]he implication limits legislative and executive power.F[21]

At another point in that same judgment, Brennan J wrote:

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 ... The Constitution ... does not purport to affect the common law rights and liabilities of individuals inter se. That area of the common law and the area covered by the Constitution do not overlap.F[22]F

The inconsistency arises because, on the one hand, the Court seems to deny that the Constitution has any application to rules of the common law (as it relates to private relations), since that is simply an area in which the two 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.

B 6BTaylor’s Descriptive Claim: The Indirect Relationship between the Common Law and the Constitution

Taylor describes the relationship between the common law and the Constitution as ‘indirect’. 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. Taylor states that the difference between the ‘indirect’ and ‘direct’ accounts of the relationship between the common law and the Constitution is

well illustrated by a comparison between Theophanous and Lange. In Theophanous, 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 Constitution, and 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.F[23]F

Critically, Taylor makes a second point. He argues that this indirect application of the Constitution brings with it an important practical effect:

the indirect theory has the important merit of preserving, within broad limits, Parliament’s authority to alter and refine the common law as affected by the Constitution ... the direct theory does not permit this, as it sources the new rule directly in the Constitution itself and thus virtually excludes any possibility of legislative amendment.F[24]F

Taylor’s view seems to be that Lange adopts the ‘Guidance’ or ‘Mere Influence’ model of the relationship between the Constitution and the common law. 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.F[25]F That view emerges clearly from the following passage:

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. Lange shows how this works: the common law rule, as further developed in that case, applies in the absence of valid legislation.F[26]

The flaw in Taylor’s argument lies in the second of these two points. 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 uncommonF[27]F and that approach may have been open in a case like Theophanous as well.F[28]F Indeed, I can see that this method may even be desirable.F[29]F However, Taylor is wrong, I think, when he describes the effect of the indirect method. 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.
Thus, Taylor’s account does not accurately describe the Court’s position. 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.

C 7BThe ‘Mandatory’ but ‘Partial’ Effect of the Constitution on the Common Law

The argument I have made in the preceeding section is that the Constitution’s effect on the common law is mandatory. Further, I also believe that the Constitution’s effect on the common law, though mandatory, is partial. 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. To recall, the Court held that the constitutional protection of the freedom of political communication required that common law qualified privilege be extended so that it was generally available with respect to the dissemination of ‘information, opinions and arguments concerning government and political matters that affect the people of Australia’.F[30]F In addition, the Court extended the defence even further, to protect comment on some matters that are not themselves covered by the constitutional freedom of political communication. The common law rule was extended to cover ‘matters concerning the United Nations or other countries’ and ‘discussion of government or politics at State or Territory level and even at local government level ... whether or not it bears on matters at the federal level.’F[31]F These latter extensions of the common law were not driven by constitutional imperatives per se, but rather by a concern with a more general freedom of speech that the Constitution does not address. It would seem, therefore, that these extensions could be altered by legislatures.
The partial effect of the Constitution on the common law removes much of the force of Taylor’s objections. Taylor argues that the ‘mandatory’ approach unwisely entrenches the common law and thus removes the power of Parliament to revise it.F[32]F The chief disadvantage of this approach is ‘the “freezing” of the constitutionalised common law doctrine in its current form, even though it may well be capable of further improvement and refinement.’F[33]F
However, where the effect of the Constitution on the common law is only partial, the results are not so dramatic.F[34]F After Lange, the Parliament cannot alter some aspects of the law of qualified privilege as it relates to the discussion of Australian federal politics, but it still has considerable scope to legislate with respect to discussion of the politics of New Zealand, the United Nations, or State, Territory or local government, provided there is no connection to matters of federal politics.F[35]F Parliament’s freedom arises because these are matters with which the Constitution is not concerned — not because, as a general matter, the Constitution does not control the common law.
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.F[36]F However, the more important question for this debate is the status of the rule and, in particular, whether the new rule precludes legislative involvement. 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.F[37]

Indeed, occasionally even Taylor strays toward this position. For the most part he seems to advance the view that the Constitution does not control the content of the common law, it merely ‘influences’ it. However, that statement is sometimes qualified. Notably, Taylor states in his discussion of Lange that ‘some aspects of the common law rule ... were protected from legislative change which would infringe the right of free speech in governmental and political matters’.F[38]F If that is so, then he must also explain why the common law, even in these limited respects, is subject to constitutional requirements, not merely influenced by them. I turn now to that issue.


My argument, so far, is that the Constitution’s effect on the common law is ‘mandatory’ in the sense that, where it is applied to modify the common law, the Constitution precludes any legislative interference, but ‘partial’ in the sense that, where there is no inconsistency, the common law need not change. Having established this relationship between the two bodies of law, the question becomes: ‘What is the best principled justification for it?’ or ‘Why would the Constitution seek to control the common law (even in this partial manner)?’ My concern is to find a satisfactory theoretical basis on which to explain the Court’s doctrine.
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.F[39]F As my reasons are set out fully in that article I will revisit them here only briefly before responding to some of the points made by Taylor.
My first argument is that my account best explains the Court’s actual doctrine. The Court is applying the Constitution to the common law. 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.F[40]F The common law governs in much the same way as legislative or executive action.
Therein lies the heart of my argument: the common law is best conceived of as the product of governmental action, much like statutory and executive action. In making this argument I do not purport to offer a complete theory of the common law or to say that the common law resembles statutes and executive action in all respects. My argument is only that common law adjudication is sufficiently similar to legislative and executive action that the relationship between it and the Constitution should be perceived in the same way.
The heart of Taylor’s disagreement lies in his opposing conception of the common law. I will show that this conception, though not readily apparent on the surface of his argument, depends upon a non-realist and non-positivist conception of the common law.

A 8BThe Nature of the Common Law

Taylor’s understanding of the common law is revealed in this passage:

the rights which the common law protects are — for want of a better word — inherent. It would seem odd to say (and I think that both lawyers and non-lawyers would not say) that a property owner has a right to restrict entry to property because of state action permitting that course. ... Rather it is a right inherent in the nature of property ownership (an institution which even ‘advanced’ communist states have been unable to abolish), and in a certain sense is not dependent on the state for its existence ... but is inherent in the nature of property ownership.F[41]F

On the contrary, it is not hard to find a lawyer (or at least a legal theorist) who will say that ‘a property owner has a right to restrict entry to property because of state action permitting that course’ or who will assert that property is dependent on the state for its existence. For one, the legal positivist Jeremy Bentham wrote that ‘[p]roperty and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases.’F[42]F Indeed, the view that legal property rights are socially-defined rights rather than pre-political rights that exist independently of the state is widely shared.F[43]F More recently, Stephen Holmes and Cass Sunstein have written:

Property is a legally constructed social relation, a cluster of legislatively and judicially created and judicially enforceable rules of access and exclusion. Without government, capable of laying down and enforcing compliance with such rules, there would be no right to use, enjoy, destroy, or dispose of the things we own.F[44]

Taylor relies on the fact that property rights seem to be a feature of most, if not all, legal systems. However, this point does nothing for his argument. It may be that human nature requires some minimal property rights, but it does not follow from that proposition that property rights exist independently of the state.F[45]F That all legal systems find the need to respond to a shared problem (such as scarcity of resources) does not make the response (the recognition of legal property rights) a pre-political fact. The ubiquity of property law might simply mean that the protection of property is a common, perhaps even unavoidable form of state action.F[46]F
That is not to say that Taylor cannot maintain the opposite view of property rights. There are, for example, libertarian philosophers of law who agree with him.F[47]F But the position requires more than assertion.
However, even if Taylor were to make the case with respect to property, he would need to do more to establish his more general proposition. Much of the literature treats property as a special case, whereas Taylor, following the passage quoted above, goes on to say that a ‘right to discuss things cannot possibly be said to be a right created by the common law or the state. At most, freedom of speech is a right recognised by the state (within certain limits) because of the absence of any legislation (state action) prohibiting such discussion.’F[48]F Insofar as this argument relies on the idea that only legislation (and not the common law) amounts to ‘state action’, it begs the question. Whether or not the common law qualifies as ‘state action’ is the point we are debating.
Further, the reliance on a distinction between action and omission — free speech rights exist, not because of state action, but because the state has failed to act — is also subject to doubt. First, the common law is replete with affirmative doctrines that protect freedom of speech (the common law defences to defamation being cases in point). In developing these doctrines, judges have acted to protect freedom of speech. Second, a more fundamental objection is suggested by an alternative analysis of freedom of speech: one way to conceive of freedom of speech is as a right to prevent others from interfering with the act of expression. In that light, freedom of speech requires the intervention of a court. It is dependent on the state (in the guise of judges) acting to protect it. Thus, freedom of speech (and indeed other common law rights) are the product of action, not pre-political facts to which judges merely respond.
Therefore, to oppose my analysis, Taylor must show that common law rights exist independently of the courts which develop and apply them. He must oppose the fundamental insight of the legal realist movement expressed vividly in Oliver Wendell Holmes’ famous proposition that ‘[t]he common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.’F[49]
It may be possible to contradict Holmes on this score, though the contrary position, that the common law is not the product of judicial development, is formidable.F[50]F One possibility would be to deny the positivist theory of the nature of law on which realism implicitly relies.F[51]F If Taylor were to subscribe to a ‘natural law’ theory of the common law he could argue that the common law is not the product of the exercise of sovereign power, but something that pre-exists the state.F[52]F Some aspects of his argument, particularly his description of property rights as ‘inherent’, strongly suggest such leanings. However, these ideas about the common law are far more contested and difficult than Taylor admits.F[53]
In any event, even if Taylor were to make such a claim, he would have to revise other parts of his argument and squarely face the non-realist and non-positivist nature of his understanding of the common law. At the moment, he attempts to have it both ways: to advance a theory that relies on a particular and contested understanding of the common law and simultaneously deny that reliance. Thus he denies challenging the realist analysis of the common law. On his analysis,

Lange is by no means committed ... to ‘a pre-realist understanding of the common law’. Lange is merely committed to the idea that judicial development of the law takes place by using existing common law precedents and re-stating them rather than making up entirely new rules, and this, surely, is not objectionable.F[54]

And later:

Although, in theory, native title has always existed in Australia, the present author would have no quarrel with the proposition that native title rights were really created in 1992 [with the decision in Mabo v Queensland [No 2]F[55]F]. ... [M]oreover, we are dealing here with overwhelmingly typical characteristics to explain a general approach, not with the odd exception.F[56]F

These passages, however, cannot conceal Taylor’s non-realist leanings. The idea that common law adjudication consists of ‘using existing commonlaw precedents’, or at most ‘restating’ existing rules, sounds suspiciously like a declaratory theory of law, a suspicion strengthened by his description of the judicial role as ‘declaring the rules of the common law’.F[57]F
Further, when Taylor makes certain concessions to the insights of legal realism (accepting that judicial law-making occurs at least interstitially, as ‘the odd exception’, when there are no clear rules)F[58]F he undermines the rest of his argument. If it is accepted that judicial law-making occurs occasionally, then the entire body of the common law, including those aspects now regarded as settled, can ultimately be traced to the exercise of judicial power. The fact that judicial rulings can ‘solidify’ over time into rules of predictable application does not give them the ‘inherent’ or ‘pre-political’ status on which Taylor relies.F[59]F As one theorist put it, some areas of law may be ‘brought under control by the accumulation of past judicial choices’;F[60]F but, consistently with this position, they remain rules formulated by the exercise of judicial choice. If rules are the product of judicial choice, then judges can be seen as the ‘sovereign’ from whom the rules of the common law derive. That, of course, is the foundation for a ‘state action’ argument.

B 9BOther Arguments

Taylor’s critique rests on an unarticulated and controversial theory of the common law. His specific points depend, in turn, upon the acceptance of this theory. In this section, I address some of the problems that consequently arise.

1 10BThe Nature of the Constitution

The first point in Taylor’s argument relies on a certain understanding of the nature of the Constitution. He writes:

Those who argue that the common law, being state action, is subject directly to the Constitution, which provides a replacement rule for a previously operating rule of the common law ... must be prepared to answer the question: where in the Constitution does it say how the Constitution changes the private law?F[61]

This argument attracts a number of obvious answers. First, as the reader may recall, I do not need to argue that ‘the Constitution ... provides a replacement rule for a previously operating rule of the common law’.F[62]F I am quite happy with the explanation that common law rules are developed to conform to the Constitution, provided it is understood that the ‘constitutionally driven’ modification is immune from legislative interference.
But the most important point is that Taylor assumes the truth of his conclusions; that is, it is only if you take the position that the common law is relevantly different from legislative and executive action that you would need to find a special constitutional principle justifying it. If, on the other hand, you regard the common law as relevantly similar to legislative and executive action, then general principles of constitutional law would allow for its review. Just as judicial review of legislation is an unstated premise of the Constitution,F[63]F so it should be for other kinds of government action.

2 11BThe Nature of Judicial Power

Taylor’s analysis of judicial power also depends on his analysis of the common law. He suggests that I have overlooked a basic difference between judicial and legislative power: ‘Courts are said to declare the existing rights of parties, whereas legislation (the odd retrospective statute aside) creates new rights for an undetermined class of people for the future.’F[64]
The influence of Taylor’s conception of the common law on this argument is obvious. It is confirmed by his assertion that ‘the court simply declares the parties’ rights as they have always existed’.F[65]F It is only by rejecting the insights of realism that he can argue that, when parties go to court, there is no change in their rights.
Moreover, Taylor’s analysis is not an accurate assessment of the state of Australian constitutional law. If it really were the case that ‘judicial power’ was understood as he suggests, I would simply argue that the Constitution was theoretically impoverished on that score. Thus I disagree with Taylor that ‘we should avoid adopting one theory — the state action doctrine — which is clearly at odds with the nature of judicial power as Australian courts have conceived it for almost a century.’F[66]F On the contrary, we should adopt the best explanation of the nature of judicial power. In light of the wide acceptance of the basic tenets of legal realism, that explanation is not the one Taylor suggests. In any event, I do not agree that judicial power has been consistently conceived in the manner he describes. Rather, most modern analyses of the nature of judicial power and its difference from legislative power are more complex and subtle.
Although statements can be found in the case law that judicial power involves the determination of ‘existing’ rights,F[67]F on examination such cases do not support Taylor’s point. The concern with ‘existing rights’ refers back to statements made before judges had the benefit of the insights provided by the legal realists. For example, in 1918, Powers J held that ‘[c]ourts of judicature ... settle existing rights between parties’ and drew a comparison with ‘[c]ourts of compulsory arbitration with legislative power to fix new rates of wages and new conditions to be observed by employers for a fixed term, and not to settle existing rights.’F[68]
In the modern context, however, the making of judicial decisions by reference to ‘existing rights’ points instead to the making of decisions based on legal standards. For example, in Precision Data Holdings Ltd v Wills (‘Precision Data Holdings’),F[69]F the High Court unanimously held that the Corporations and Securities Panel did not exercise judicial power because it made declarations as to the future rights of parties. A feature of the Panel’s power that concerned the Court was the fact that it did not refer to legal standards in the making of its determinations.F[70]F There may have been a time when it was assumed that by referring to legal standards a court would always be referring to pre-existing standards. But modern understandings of the indeterminacy of legal rules and standards allow that sometimes a court may make determinations as to new rights.
In any event, it is difficult to take any single formulation of the nature of judicial power as definitive. The case law is replete with warnings that no such definitive statement is possible, and that no single characteristic can be said to be determinative one way or the other.F[71]F Indeed, in Precision Data Holdings, the unanimous Court explicitly acknowledged that

in some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power.F[72]

As constitutional commentators have recognised, the notion of judicial power must take account of the fact that courts will make law and create rights. Zines concludes that ‘[i]t is simply not the case that the creation of new rights and duties is necessarily outside the concept of judicial power’.F[73]F Similarly, Saunders acknowledges that the apparently ‘rigid distinctions between courts and other institutions and between judicial and other power’ found in the Boilermakers’ CaseF[74]F (the leading authority on the separation of judicial power) are in fact more flexible.F[75]F She further notes that an account of the nature of judicial power must recognise that ‘[c]ourts themselves make new law in deciding cases.’F[76]F
Thus, the declaration of parties’ rights ‘as they have always existed’ is not widely regarded as an essential aspect of judicial power in Australian constitutional law. Further, even to the extent that it is an indicator of judicial power, it refers to the making of decisions by reference to legal standards. It does not preclude the kind of law-making entailed by common law adjudication. This conclusion, in turn, lends support to my argument. The fact that common law adjudication involves law-making, and that the exercise of judicial power can create rights, favours my analysis of the common law as an instance of governmental action.

3 12BThe Applicability of United States Case Law

In addition to these claims, Taylor also argues that I have overlooked the High Court’s explanation in Lange as to why United States case law in not applicable in Australia. I address that point in my article, arguing that the High Court has misunderstood the significance of American case law for these purposes.F[77]F Since Taylor has raised the point again in a slightly different form, I will briefly revisit it before concluding. His point is put as follows:

the Supreme Court of the United States has no general common law jurisdiction. Therefore, that Court could not have adopted the Lange approach even if it had wanted to, for it cannot develop the common law as such because it has virtually no jurisdiction to do so. ... The High Court of Australia does not face the same limitation because, unlike its equivalent in the United States, it is a general court of appeal on common law as well as constitutional and other federal matters. The two situations are therefore not comparable.F[78]F

Taylor is right to point out that the United States Supreme Court has little common law jurisdiction and that this affected the way it dealt with New York Times Co v Sullivan,F[79]F the iconic American case that influenced the High Court in both Theophanous and Lange. The High Court’s power to develop the common law gives it an important option that the United States Supreme Court lacks.F[80]F Namely, the High Court need not have decided a case like Lange (or, indeed, Theophanous) according to the constitutional requirements of the freedom of political communication. It could simply have developed the common law without reference to the Constitution’s requirements. A decision on the constitutional requirements could then have been postponed until some later point. To do so may even have been prudent in the light of well-known principles of judicial restraint that counsel the Court not to decide matters of constitutional law when there is another basis of decision available.F[81]F
The High Court’s common law jurisdiction simply provides an additional way to decide the issue. It does not prevent the Court from making a constitutional decision if it so chooses. In Theophanous and Lange, the High Court did not avail itself of the option of making a purely common law decision but developed the common law to conform to the Constitution. Once the High Court chose to constitutionalise part of the common law, American cases became an appropriate source of insight. The fact that the High Court could have, but did not, take another course of action does not really establish anything.

4 13BConsequences: Fundamental Rights, Private Autonomy and State Action

I come, then, to the question of consequences. Taylor has made much of the problems raised by ‘state action’ doctrine. I will come to these in a moment. First, I would like to consider briefly the consequences of what Taylor is suggesting. He notes that

courts are set up and designed to give protection to the citizen from the state. ... [This] is especially so in basic rights cases. One goes to court seeking not governmental action, but protection from governmental action, and the court represents not the government ... but a neutral arbiter between the state and the citizen. Equating the judicial function with governmental action in this area ... thus exhibits a deep misunderstanding both of the role of the courts and of the function of human rights guarantees. ... The ‘state action’ theory obscures rather than highlights this extremely important role of the courts.F[82]

Taylor is right to say that courts are commonly regarded as the institutions best suited to protecting rights. The argument is that their independence from majoritarian processes better equips them to protect minorities and correct deficiencies in those same majoritarian processes.F[83]F However, while the relative insulation of the judiciary from the electoral process may be a good reason to prefer judges to other institutions when it comes to questions of rights, it does not establish that they are ‘neutral arbiters’ in the sense that Taylor relies upon. Indeed, it is difficult to see how this could be the case. It is trite to say it, but judges have no choice but to make some decisions by reference to something other than purely legal standards. Courts are creators of law. They impose liabilities, they create rights. They pick winners and losers in disputes between citizens and between citizens and the state. In these circumstances, they are part of the state and of the governing process.
In that light, I simply reject Taylor’s claim that to regard courts as governmental actors jeopardises their capacity to protect the individual from the state. Indeed, there is an argument that points in precisely the opposite direction: given that courts create law and determine the nature of rights, they must be recognised as governmental and subject to the Constitution or there is a risk of under-protecting rights. According to this argument, the protection of constitutional rights requires that courts, no less than any other institution of government — and the development of the common law, no less than any other kind of judicial action — should be subject to constitutional requirements. Subjecting the courts, in their common law role, to the requirements of the Constitution may therefore give stronger, not weaker, protection to constitutional rights.
No doubt Taylor would protest that rights are adequately protected under his model. First, he might say that under the indirect model the common law is developed with reference to common law values, and thus that the common law will comply with important constitutional rights. However, the important difference between Taylor’s analysis and mine is that, on Taylor’s view, these rules do not have constitutional status. If that is so, then constitutional values reflected in the common law are vulnerable to legislative override.
Perhaps Taylor would then protest that such legislation, like all legislation, would be subject to constitutional scrutiny and may be ruled invalid. But if he makes that move then his indirect account merges with my account of the mandatory influence of the Constitution on the common law. For common law rules, in so far as they reflect constitutional requirements, would be immune from legislative restriction. At that point Taylor’s argument collapses. The common law is subject to the Constitution and he must find a way to explain that.


This argument brings me to my final theme. Unless the idea that the Constitution is a limit on government action is abandoned altogether (and it is accepted outright that private action is subjected to the Constitution), a theory of ‘state action’ is unavoidable. Taylor claims that accepting my analysis would obliterate the distinction between public and private, elevating ‘private actors to the level of the state by attributing their actions to the state as soon as the courts pass judgment on them.’F[84]F He is right that state action doctrine poses difficult problems, given that some ‘state action’ can plausibly be found in almost any human interaction. The problem, however, is even more complicated than he allows.
As the American theorists Louis Michael Seidman and Mark Tushnet have noted, these questions are ‘authentically hard’.F[85]F There exists, in fact, a choice between two troubling positions. To leave some action untouched by constitutional requirements seems to endanger constitutional values, allowing disregard of the Constitution under the spurious claim that certain action does not involve the state. On the other hand, as Seidman and Tushnet acknowledge, to extend the reach of constitutional requirements too far endangers private autonomy.F[86]F
Now that the High Court has taken the step of subjecting the common law to the Constitution, Australian constitutional lawyers have much work to do on this problem. The problem of delimiting the operation of the Constitution has, however, been presented to us by the freedom of political communication and its application to the common law. Avoiding the problem with an inaccurate description of High Court doctrine and theoretically controversial account of the common law does not advance this important inquiry.

[*] BA, LLB (NSW), JSD (Columbia); Fellow, Law Program, Research School of Social Sciences, Australian National University. Thanks are due to Simon Evans, Graeme Hill, Christos Mantziaris, Leighton McDonald, James Stellios and Leslie Zines for their comments on earlier drafts of this article. The views expressed here are mine alone.

[1] Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374.

[2] Greg Taylor, ‘Why Should the Common Law Be Only Indirectly Affected by Constitutional Guarantees?’ (2002) 26 Melbourne University Law Review ___.

[3] I should note that Dr Taylor and I are discussing only a specific aspect of the relationship between the Constitution and the common law: the application of the Constitution to the common law as it regulates relations between private individuals. We leave aside the doctrines of the common law that control institutions of government, such as those regulating the exercise of the prerogative. For the remainder of this article, when I refer to ‘the common law’, I am referring to this aspect. I do not draw a distinction, for these purposes, between common law and equitable doctrine.

[4] [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’).

[5] [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’).

[6] Taylor, ‘Constitutional Guarantees’, above n 2, 2.

[7] Ibid (emphasis added).

[8] This leaves open the possibility that the legislature could confer more generous protection of rights than the Constitution requires. It simply cannot act in a way that derogates from the minimum constitutional requirement.

[9] Lange [1997] HCA 25; (1997) 189 CLR 520, 566.

[10] Ibid (emphasis added).

[11] Ibid (emphasis added).

[12] [2000] HCA 36; (2000) 203 CLR 503 (‘Pfeiffer’).

[13] Ibid 535 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) (citations omitted).

[14] Ibid (emphasis added).

[15] For further academic commentary to this effect, see Leslie Zines, ‘The Common Law in Australia: Its Nature and Constitutional Significance’ (Law and Policy Paper No 13, Centre for International and Public Law, The Australian National University, 1999). See also Selway, below n 16.

[16] Bradley Selway, ‘The Principle behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217, 232 (forthcoming) (citations omitted) (emphasis added).

[17] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 404–5.

[18] Lange [1997] HCA 25; (1997) 189 CLR 520, 560 (emphasis added).

[19] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 404.

[20] Clearly, though, Lange does not adopt the result reached by his Honour. In Theophanous, Brennan J concluded that ‘the common law of defamation is not inconsistent with any implication drawn from the text or structure of the Constitution’: [1994] HCA 46; (1994) 182 CLR 104, 155.

[21] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 149.

[22] Ibid 153.

[23] Taylor, ‘Constitutional Guarantees’, above n 2, 4 (emphasis added) (citations omitted).

[24] Ibid 5.

[25] See above n 9 and accompanying text.

[26] Taylor, ‘Constitutional Guarantees’, above n 2, 17–18 (citations omitted) (emphasis added). Though immediately following this passage, Taylor states that ‘[l]egislation will be invalid only if it trespasses unduly on freedom of speech. Otherwise, Parliament has a free hand’: at 18. This suggests that limited aspects of the common law are ‘entrenched’. See also Taylor, ‘Constitutional Guarantees’, above n 2, 4. If that statement, rather than the statement I have italicised, represents Taylor’s view, it seems that our descriptive claims do not differ: see below n 39 and accompanying text. However, since Taylor has made much of the differences between our views, I will assume that he holds a view different from mine.

[27] For example, see the interpretation of ‘jury’ in s 80 of the Constitution in Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541. As Michael Sexton SC has pointed out, the relationship between the common law and the Constitution runs both ways — the common law affects the interpretation of the Constitution and the Constitution affects the interpretation of the common law: Michael Sexton, ‘Constitutional Intersections: The Common Law and the Constitution’ (Paper presented at The Australian National University Annual Public Law Weekend, Canberra, 2 November 2001).

[28] Taylor characterises Theophanous as a case in which a constitutional rule is ‘imposed on it from above’: Taylor, ‘Constitutional Guarantees’, above n 2, 4. Accepting this analysis of Theophanous, it does not seem to me to preclude the new rule being informed by existing common law rules. There is no reason why the Court could not turn to the common law as a source for the new constitutional rule.

[29] As I argued in Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.

[30] Lange [1997] HCA 25; (1997) 189 CLR 520, 571.

[31] Ibid.

[32] Taylor, ‘Constitutional Guarantees’, above n 2, 21.

[33] Greg Taylor, ‘The Effect of the Constitution on the Common Law as Revealed by John Pfeiffer v Rogerson[2002] FedLawRw 3; (2002) 30 Federal Law Review 69, 81.

[34] Though the fact that some constitutionalisation occurs is cause for caution on the part of judges and careful consideration of the basis of their decisions, as I argued in Adrienne Stone, ‘Choice of Law Rules, the Constitution and the Common Law’ (2001) Public Law Review 9, 12.

[35] Lange [1997] HCA 25; (1997) 189 CLR 520, 571.

[36] See Taylor, ‘Constitutional Guarantees’, above n 2, 4.

[37] Zines, ‘The Common Law in Australia’, above n 15, 24.

[38] Taylor, ‘Constitutional Guarantees’, above n 2, 4 (emphasis added).

[39] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 408–11.

[40] Ibid.

[41] Taylor, ‘Constitutional Guarantees’, above n 2, 14.

[42] Jeremy Bentham, The Theory of Legislation (Richard Hildreth trans; first published 1802, 1975 ed) 69 [trans of: Traités de legislation civile et pénale]. This statement has some support in the Australian judiciary: see Wily v St George Partnership Banking Ltd [1999] FCA 33; (1999) 84 FCR 423, 426 (Sackville J).

[43] See, eg, Morris R Cohen, ‘Property and Sovereignty’ (1927) 13 Cornell Law Quarterly 8, 11–12; Felix S Cohen, ‘Dialogue on Private Property’ (1954) 9 Rutgers Law Review 357, 371–3. For more recent accounts, see Stephen Holmes and Cass R Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999) 59–61; Kevin Gray, ‘Property in Thin Air’ (1991) 50 Cambridge Law Journal 252, 303–6.

[44] Holmes and Sunstein, above n 43, 59.

[45] I am grateful to Leighton McDonald for this point.

[46] It is not surprising then that while Hart accepted the inevitability of property law (H L A Hart, The Concept of Law (2nd ed, 1994) 196) he did not, consistent with his positivism, regard property rights as pre-existing the state. A central tenet of legal positivism is that the validity of a law depends upon its source (its institutional pedigree or its compliance with some set of rules or accepted social facts about law-making) rather than its content. The dominant modern account is Hart’s own. According to his theory, a (municipal) legal system is founded on a ‘rule of recognition’ which ‘will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’: at 94. Property laws, then, like all laws, are determined to be law because of their compliance with a rule or rules of recognition, not because of their congruence with some idea of the ‘inherent’ rights of the person.

[47] See Richard A Epstein, Takings: Private Property and the Power of Eminent Domain (1985) 3–6, 12–14. For another example, see Douglas W Kmiec, ‘Private Property and the Future of Government Regulation: Inserting the Last Remaining Pieces into the Takings Puzzle’ (1997) 38 William and Mary Law Review 995, 997–1001. For critiques, see the Symposium on Richard Epstein’s book Takings: Private Property and the Power of Eminent Domain (1985) in (1986) 41 University of Miami Law Review, especially Larry Alexander, ‘Takings of Property and Constitutional Serendipity’ (1986) 41 University of Miami Law Review 223, 228 and Cass R Sunstein, ‘Two Faces of Liberalism’ (1986) 41 University of Miami Law Review 245.

[48] Taylor, ‘Constitutional Guarantees’, above n 2, 14.

[49] Southern Pacific Co v Jensen, [1916] USSC 71; 244 US 205, 222 (1916).

[50] Among a vast literature, see Benjamin Cardozo, The Nature of the Judicial Process (1921) 112–41; Julius Stone, Precedent and Law: Dynamics of Common Law Growth (1985). See also Hart, above n 46, 136: ‘In every legal system a large and important field is left open for the exercise of discretion by courts and other officials.’

[51] On positivism, see above n 46. My claim here is that like positivists, legal realists understand law to be the result of some accepted social process of law-making rather than the recognition of a natural right. So, for example, realist theorists of property regard property as a socially-defined right. See further Morris Cohen, above n 43, 11–12; Felix Cohen, above n 43, 371–3.

[52] There are certain theorists who regard some aspects of the common law, especially principles of equal treatment before the law and proportionality, as ‘fundamental’ and necessary attributes of any system committed to the rule of law. See, eg, T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001); David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (1998) 159–60. However, these arguments may not lead in the direction that Taylor would like. In particular, Allan’s argument seeks to establish that certain common law rights are so fundamental that they cannot be overridden by legislation, whereas Taylor resists the ‘constitutionalisation’ of the common law.

[53] In his conclusion, Taylor raises some doubts about realism as a theory of the common law. He says, first, that ‘it cannot convincingly explain, for example, why [judges] often follow precedents regardless of their own views’: Taylor, ‘Constitutional Guarantees’, above n 2, 23. That statement is not correct. The belief that the common law is judge-made says nothing about how judges should exercise their power. There are many reasons, compatible with realism, why judges may prefer to follow precedent rather than impose their own views. Certainty and predictability in law are important values (associated with the rule of law) and respect for them, over one’s own personal views, is entirely consistent with realism. Second, Taylor argues (referring to statements of High Court judges refusing to overrule prospectively) that realism is not the ‘official’ theory of the common law: at 23. I am not convinced that the majority of the High Court is truly committed to a non-realist common law theory. See, eg, Justice Michael McHugh, ‘The Judicial Method’ (Paper presented at The Australian Bar Association Conference, London, 5 July 1998): ‘Today, the law-making function of the court is accepted by the overwhelming majority of lawyers.’ In any event, even if that was true, it would have little effect on my argument. The correctness (or otherwise) of legal realism is not dependent on how judges ascertain the nature of their role. If non-realism pervaded the judiciary, that would provide all the more reason to challenge that view rather than a basis on which to further the confusion and perpetuate error.

[54] Taylor, ‘Constitutional Guarantees’, above n 2, 9.

[55] (1992) 175 CLR 1.

[56] Taylor, ‘Constitutional Guarantees’, above n 2, 14 (citations omitted).

[57] Ibid 11.

[58] Though some realists deny that there is ever very much determinacy. See Julius Stone, above n 50, chs 2–4; William W Fisher III, Morton J Horwitz and Thomas A Reed (eds), American Legal Realism (1993) 164–5.

[59] Incidentally, it is no answer to say that even if judicial law-making occurs, ‘that is not the law’s theory’: Taylor, ‘Constitutional Guarantees’, above n 2, 14. The ‘law’s theory’ is precisely what is in dispute.

[60] Julius Stone, above n 50, 14. (I am not, for these purposes, drawing a distinction between ‘realist’ and ‘sociological’ jurisprudence. On this score, they share fundamental insights.)

[61] Taylor, ‘Constitutional Guarantees’, above n 2, 7.

[62] Ibid (emphasis added).

[63] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 262 (Fullagar J): ‘in our system the principle of Marbury v Madison is accepted as axiomatic’; Sir Owen Dixon, Jesting Pilate (1965) 174 (citations omitted): ‘To the framers of the Commonwealth Constitution the thesis of Marbury v Madison was obvious.’

[64] Taylor, ‘Constitutional Guarantees’, above n 2, 10 (citations omitted).

[65] Ibid 11 (emphasis added).

[66] Ibid.

[67] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 374 (Kitto J). See also Leslie Zines, The High Court and the Constitution (4th ed, 1997) 171); Precision Data Holdings v Wills (1991) 173 CLR 167, 189 (‘Precision Data Holdings’).

[68] Waterside Workers’ Federation of Australia v JW Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 483.

[69] (1991) 173 CLR 167.

[70] Ibid 190 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[71] R v Davison [1954] HCA 46; (1954) 90 CLR 353, 366 (Dixon CJ and McTiernan J); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1969) 123 CLR 361, 394 (Windeyer J); Precision Data Holdings (1991) 173 CLR 167, 188–9.

[72] Precision Data Holdings (1991) 173 CLR 167, 190–1.

[73] Zines, The High Court and the Constitution, above n 67, 197.

[74] A-G (Cth) v The Queen [1957] HCA 12; (1957) 95 CLR 529; [1957] AC 288 (Privy Council).

[75] Cheryl Saunders, ‘The Separation of Powers’ in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 3, 13.

[76] Ibid 14.

[77] Stone, ‘Rights, Personal Rights and Freedoms’, above n 1, 411–14.

[78] Taylor, ‘Constitutional Guarantees’, above n 2, 21–2 (citations omitted).

[79] 367 US 254 (1964).

[80] The United States Supreme Court could not develop the common law of defamation. Unless it wished to avoid deciding the substance of the matter on some narrow formulation of the issues (for example, by reference to the sufficiency of evidence connecting the plaintiff to the statements in question) it was forced to turn to the constitutional law of freedom of speech. See Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’, above n 29, 246.

[81] As I argued in ibid 248–9.

[82] Taylor, ‘Constitutional Guarantees’, above n 2, 12.

[83] For a famous form of the argument, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) 101–4.

[84] Taylor, ‘Constitutional Guarantees’, above n 2, 17.

[85] Louis Michael Seidman and Mark Tushnet, Remnants of Belief: Contemporary Constitutional Issues (1996) 70.

[86] Ibid.

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