Hill, Graeme --- "The Common Law and Federal Jurisdiction - What Exactly Does Section 80 of the Judiciary Act Do?" [2006] FedLawRw 3; (2006) 34(1) Federal Law Review 75
[*] Senior Lawyer, Australian Government Solicitor. The views expressed here are mine and not those of the Commonwealth. Thanks to Dr Wheeler and the anonymous referee for their helpful comments.
[1] See, eg, Peter Nygh, 'Choice of Law in Federal and Cross-vested Jurisdiction' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 335, 338–46, especially 339. However, s 80 was relied on in R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323, 330–331 (Webb J) and In re Forrest [1912] ArgusLawRp 130; [1912] VLR 466, 469–70 (Cussen J). And in Musgrave v Commonwealth [1936] HCA 80; (1937) 57 CLR 514, 547, Dixon J stated that s 80 would produce 'much the same effect' as s 79 in applying the NSW rules for the recognition and enforcement of extraterritorial rights arising from a civil wrong:.
[2] (2003) 218 CLR 330 ('Blunden').
[3] Ibid 339 [18] (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing). See also Justice W M C Gummow, 'The Constitution: Ultimate Foundation of Australian law?' (2005) 79 Australian Law Journal 167, 174. It appears that s 80 can have this central role, even when the only issue is whether to apply legislation of the State where the court is exercising federal jurisdiction: see Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625 ('Sweedman'), [33] (Gleeson CJ, Gummow, Kirby and Hayne JJ). I would argue that the real question in Sweedman was whether the local legislation (s 104 of the Transport Accident Act 1986 (Vic)) was picked up by s 79 of the Judiciary Act, which would have required consideration of whether that Act was 'applicable' and whether the Constitution 'otherwise provided'.
[4] Blunden (2003) 218 CLR 330, 339 [18], 347 [45] indicates that s 80 does apply statutory modifications of the common law (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing). See further Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report 92 (2001) ('ALRC Report No 92') 603–6 [34.40]–[34.52].
[5] ALRC Report No 92, above n 4, 603 [34.39].
[6] See the different meanings of 'common law' listed in Justice L J Priestley, 'A Federal Common Law in Australia?' (1995) 6 Public Law Review 221, 221–2, which includes 'the law that is not the result of legislation, that is, the law created by the custom of the people and the decisions of the judges' (meaning (2)).
[7] This interpretation is suggested by Adams v ETA Foods Ltd [1987] FCA 402; (1987) 19 FCR 93 ('ETA Foods'), which considered s 80 when it still applied 'the common law of England'. Gummow J observed that by 1987 the English common law had diverged from the common law in Australia, and would therefore need to be proved as foreign law: at 95; but see below n 90. Section 80 was amended in 1988 to refer to 'the common law in Australia'. An 'ambulatory' interpretation of s 80 is also consistent with the operation of s 79 of the Judiciary Act, which picks up State and Territory legislation as in force from time to time: see British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 54 [46] (McHugh, Gummow and Hayne JJ, with Callinan J agreeing).
[8] [1995] HCA 47; (1995) 183 CLR 373 ('the Native Title Act Case).
[9] [2000] FCA 2; (2000) 96 FCR 491 ('Berbatis').
[10] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 484–5.
[11] Ibid 486.
[12] Ibid. This feature of s 12 of the Native Title Act also meant that there was a lack of connection with s 51(xxvi) of the Constitution (the special races power), because Parliament would not have considered whether the law, as amended, was necessary for the people of that race: ibid.
[13] Ibid 487–8. Professor Lindell argues that this conclusion confuses the States' ability to enact legislation (which is protected by s 107 of the Constitution) with the States' power to enact operative legislation (which is not): see Geoffrey Lindell, 'Grappling with Inconsistency between Commonwealth and State Legislation and the Link with Statutory Interpretation' (2005) 8 Constitutional Law and Policy Review 25, 38–9.
[14] Writing extra-judicially, Justice Gummow states that '[t]his reference [in s 12 of the Native Title Act] to the content of the common law as developing from time to time brought about invalidity': above n 3, 173. Moreover, in Re Colina; Ex parte Torney [1999] HCA 57; (1999) 200 CLR 386 ('Torney'), McHugh J held that s 35 of the Family Law Act 1975 (Cth) could not pick up the common law contempt powers of an English court as developed from time to time, but could validly pick up those powers as at a particular date (in that case, 1903): at 402 [43].
[15] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 487.
[16] See below, paragraph containing nn 45–7.
[17] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 508–9 [38]–[40]. The reference in s 51AA to the 'unwritten law of the States and Territories' could only mean the single common law of Australia: at 502 [22]; see also ACCC v C G Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 ('Berbatis (HC)'), 71 [38] (Gummow and Hayne JJ).
[18] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 509 [40].
[19] Ibid 504 [28].
[20] Ibid 510 [43].
[21] Ibid 509 [43].
[22] Ibid. Despite this similarity, French J noted that 'unconscionability' might have a narrower meaning in s 51AA (where it is tied explicitly to the unwritten law) than in s 51AB and s 51AC (where it is not): at 503–504 [24]–[26]; see further Joachim Dietrich, 'The Meaning Of Unconscionable Conduct Under the Trade Practices Act 1974' (2001) 9 Trade Practices Law Journal 141.
[23] See Berbatis (HC) [2003] HCA 18; (2003) 214 CLR 51, 80 [68] (point (1)) (Kirby J).
[24] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 510 [43].
[25] Ibid 509 [41].
[26] See the quote accompanying above n 15.27 Berbatis [2000] FCA 2; (2000) 96 FCR 491, 510 [43].
[27] Berbatis [2000] FCA 2; (2000) 96 FCR 491, 510 [43].
[28] See above, text accompanying n 14.
[29] See the quote accompanying above n 12.
[30] Although McHugh J does take that view: see above n 14
(discussing Torney). Different issues may arise when a Commonwealth Act operates by reference to the common law of another country: see below, text accompanying n 68.
[31] See, eg, s 7 of the Corporations (New South Wales) Act 1990 (NSW).
[32] See, eg, Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1, 11 [4] (Gaudron, McHugh, Gummow and Callinan JJ); R v Hughes (2000) 202 CLR 535, 551 [26] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). The Commonwealth has sometimes legislated to similar effect: see, eg, ss 6–8 of the Australian Energy Market Act 2004 (Cth).
[33] See below, text accompanying n 38.
[34] The doctrine that federal courts can only exercise judicial powers (and non-judicial powers that are incidental to judicial power) depends on 'matters of policy related to the exercise of judicial power': Leslie Zines, The High Court and the Constitution (4th ed 1997) 169; see also 214–8 (discussing R v Kirby; Ex parte Boilermakers' Society of Australia (The Boilermakers’ Case ) [1956] HCA 10; (1956) 94 CLR 254).
[35] Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31.
[36] See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), quoting Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 ('Grunseit'), 82 (Latham CJ). See generally Denise Meyerson, 'Rethinking the Constitutionality of Delegated Legislation' (2003) 11 Australian Journal of Administrative Law 45; see also John Basten, 'Constitutional Elements of Judicial Review' (2004) 15 Public Law Review 187, 193–4.
[37] The joint judgment cited two cases concerning delegation on the executive for the proposition that a Commonwealth Act cannot give the judiciary a discretion to determine what the law should be: Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 486 (n 379), citing Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73, 93 (Dixon J), and Grunseit [1943] HCA 47; (1943) 67 CLR 58, 66 (Williams J), 82–3 (Latham CJ).
[38] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 484–5. The content of the common law is said to be only evidenced by, and not contained in, judicial reasons for decision: at 485.
[39] See the quote accompanying above n 27.
[40] See Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 486, referring to Mabo v Queensland (No 2) (1992) 175 CLR 1 ('Mabo (No 2)'). In Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422, 468 [131], McHugh J stated that s 12, although invalid, 'made it clear that the content of native title under that Act was to be determined in accordance with the developing common law'
[41] To adopt Kirby J's description of a possible argument against the validity of s 51AA: Berbatis (HC) [2003] HCA 18; (2003) 214 CLR 51, 80 [68] (point (1)). In other cases, Kirby J has noted the possibility that Ch III of the Constitution may contain an implication to similar effect as United States ('US') due process doctrines of 'overbreadth' or 'vagueness': R v Hughes (2000) 202 CLR 535, 575–6 [95]–[97].
[42] Cf above, text accompanying n 13.
[43] Although my analysis of s 80 of the Judiciary Act suggests that s 4(1) does not in fact operate on the common law: see below, text accompanying n 114.
[44] Similarly, Professor Zines argues that the reasoning in the Native Title Act Case does not prevent a Commonwealth law from continuing or applying the law of a particular jurisdiction (including the common law) in a Territory: see Leslie Zines, Cowen and Zines' Federal Jurisdiction in Australia (3rd ed 2002) 183–5.
[45] [2004] HCA 23; (2004) 219 CLR 444, 457 [34]. Accordingly, the trial of an indictable offence needed to comply with s 80 of the Constitution: at 458 [38].
[46] Indeed, some cases have expressly drawn an analogy between s 4(1) of the Commonwealth Places Act and s 79 of the Judiciary Act in their operation on State legislation: R v Porter [2004] NSWCCA 353; (2004) 61 NSWLR 384, 388 [11] (Spigelman CJ, with Barr and Hoeben JJ agreeing). It is well settled that s 79 applies State legislation 'as federal law': see below n 57.
[47] In any event, it is not clear that there was any difference between s 4(1) of the Commonwealth Places Act and s 12 of the Native Title Act in this respect – Professor Lindell argues that s 12 could also be regarded as using the common law 'as a dictionary' in ascertaining the rights and duties under Commonwealth law: see Lindell, above n 13, 38.
[48] See above n 36. Admittedly, an approach that concentrated on the scope of common law principles picked up by a Commonwealth provision might simply lead to the enactment of different provisions operating by reference to different branches of the common law: cf Geoffrey Sawer, 'The Separation of Powers in Australian Federalism' (1961) 35 Australian Law Journal 177, 186: restrictions on delegation of legislative power to the executive could be 'evaded by numerous detailed delegations.'
[49] See, eg, Justice Bradley Selway, 'The Australian "Single Law Area"' [2003] MonashULawRw 3; (2003) 29 Monash University Law Review 30, 36–7. The case would be a matter 'between residents of different States', and thus within s 75(iv) of the Constitution.
[50] Cf P D Phillips, 'Choice of Law in Federal Jurisdiction' [1961] MelbULawRw 21; (1961) 3 Melbourne University Law Review 170, 189. Writing extra-judicially, Justice Gummow states that intuition suggests that s 80 could not have validly selected the common law of another country: above n 3, 174.
[51] Section 79 applies '[t]he laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses' (emphasis added).
[52] See Graeme Hill and Andrew Beech, '"Picking Up" State and Territory Laws under s 79 of the Judiciary Act – Three Questions' (2005) 27 Australian Bar Review 25, 31–5.
[53] That is, s 79 would incorporate the content of State and Territory legislation merely as a drafting device, and the Commonwealth would have power to modify any of the legislation picked up.
[54] See, eg, Huddart Parker Ltd v The Ship Mill Hill [1950] HCA 43; (1950) 81 CLR 502, 507 (Dixon J): the power to stay proceedings on the ground that there is an agreement to refer the dispute to arbitration 'is not a power that can arise otherwise than from statute'.
[55] See, eg, DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226, 240–1 [25]–[27] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235, 240–1 (the Court).
[56] At least in its application to the common law. As noted, there are statements that s 80 also applies statutory modifications of the common law: see above n 4.
[57] Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 165 (Kitto J). See also Solomons v District Court (NSW) [2002] HCA 47; (2002) 211 CLR 119, 134 [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ): 'It is well settled … that State laws upon which s 79 operates do not thereby apply of their own force in the exercise of federal jurisdiction.'
[58] See above, text accompanying n 49.
[59] Because s 80 would still be too open-ended: see above, text accompanying n 48
(comparing s 80 and s 51AA of the Trade Practices Act).
[60] This argument is suggested by statements that s 80 'directs the application of' the common law: see, eg, Commonwealth v Mewett (1997) 191 CLR 471 ('Mewett'), 525 (Gaudron J); cf 510 (Dawson J): 'ss 79 and 80 of the Judiciary Act pick up the law in force in New South Wales and apply it to [claims in federal jurisdiction]'.
[61] See, eg, Michael Pryles and Peter Hanks, Federal Conflict of Laws (1974) 174–6; Bernard O'Brien, 'The Law Applicable in Federal Jurisdiction' [1976] UNSWLawJl 8; (1976) 1 University of New South Wales Law Journal 327, 337–44. This sort of law would seem to be incidental to the conferral and exercise of federal jurisdiction within s 51(xxxix) and s 77 of the Constitution, and might even be supported by s 51(xxv) ('the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States').
[62] At least on the 'local law' theory of choice of law, which takes as a given that (subject to the Constitution) courts can only apply the law of the polity which established them: see generally P E Nygh and Martin Davies, Conflict of Laws in Australia (7th ed 2002) 25–7 [3.5]–[3.6]. In the intra-national context, the only significance of choice of law rules is in selecting the applicable State or Territory legislation – Commonwealth legislation applies nationally, and there is a single Australian common law: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 ('Pfeiffer'), 517–8 [15] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[63] Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 ('Edensor Nominees'), 587 [57] (Gleeson CJ, Gaudron and Gummow JJ, with Hayne and Callinan JJ agreeing), quoting South Australia v Commonwealth [1962] HCA 10; (1962) 108 CLR 130, 140 (Dixon CJ).
[65] Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.
[66] See, eg, Neilson v Overseas Project Corporation of Victoria Ltd [2005] HCA 54; (2005) 79 ALJR 1736, 1757 [115] (Gummow and Hayne JJ); see also 1741 [15] (Gleeson CJ), 1744 [34]–[35] (McHugh J, dissenting), 1770 [185] (Kirby J, dissenting), 1782 [249] (Callinan J), 1785 [267] (Heydon J). On the methods of proving foreign law, see, eg, Pt 4.6, Div 3 of the Evidence Act 1995 (Cth). Note that any question of foreign law is decided by the judge alone (s 176).
[67] On the assumption that courts do not simply 'declare' the content of a pre-existing common law: see below, text accompanying nn 71–6.
[68] There is some difficulty in characterising the High Court's role under the Nauru (High Court Appeals) Act 1976 (Cth) ('the Nauru Appeals Act'). Although called an 'appeal', proceedings under the Nauru Appeals Act are an exercise of original jurisdiction under s 76(ii) of the Constitution: Ruhani v Director of Police [2005] HCA 42; (2005) 219 ALR 199 ('Ruhani'), 201 [6], 202–3 [10] (Gleeson CJ), 212–3 [52] (McHugh J), 225 [103]–[106] (Gummow and Hayne JJ); contra 240 [172] (Kirby J), 265 [288] (Callinan and Heydon JJ, dissenting). Even so, the Nauru Appeals Act requires the High Court to determine the preferable outcome by reference to the law of Nauru (including presumably the common law): see at 202 [8] (Gleeson CJ), 214 [58], 215 [64], 219 [77] (McHugh J), 226–7 [113] (Gummow and Hayne JJ); see also 249 [216] (Kirby J), 264–5 [287] (Callinan and Heydon JJ, dissenting); see further Ruhani v Director of Police [No 2] (2005) 219 ALR 270 at 287 [80], 289 [88] (Kirby J, dissenting). The approach of Gleeson CJ, McHugh, Gummow and Hayne JJ might suggest that the Nauru Appeals Act operates as a choice of law rule in picking up the law of Nauru (including its common law), although that issue did not arise in Ruhani. If correct, that analysis would seem to mean that the High Court could only apply, and not develop, the common law of Nauru, even though the High Court is effectively acting as Nauru's highest court of appeal.
[69] For an introduction, see, eg, Frederick Schauer, 'Is the Common Law Law?' (1989) 77 California Law Review 455.
[70] Such as the place, if any, of morality in determining the content of the common law, given that judges are unelected: see, eg, Wojciech Sadurski, 'Conventional Morality and Judicial Standards' (1987) 73 Virginia Law Review 339.
[71] To adopt the famous phrase of Justice Holmes in Southern Pacific Co v Jensen, 224 US 205, 222 (1917). See also Justice Gummow, above n 3, 176 (point 6).
[72] For an overview of the debate, see, eg, Justice Michael McHugh, 'The Law-making Function of the Judicial Process – Part I' (1988) 62 Australian Law Journal 15, 15–24. In a famous rebuttal of the declaratory theory, Lord Reid derided it as a "'fairy tale'" which supposed that there was some Aladdin's cave where "'there is hidden the common law in all its splendour'": at 19.
[73] [1995] HCA 47; (1995) 183 CLR 373, 485 (footnotes omitted). The joint judgment also refers to Giannarelli v Wraith (1988) 165 CLR 543, 584 (Brennan J).
[74] Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 485, 486. Accordingly, the statement that the Commonwealth Parliament cannot delegate to the courts 'the power to make law' (at 486) must mean the power to make a law of the Commonwealth.
[75] See, eg, Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 ('Lange'), 566 (the Court).
[76] This point is forcefully made in Adrienne Stone, 'The Common Law and The Constitution: A Reply' [2002] MelbULawRw 33; (2002) 26 Melbourne University Law Review 646, and those arguments are summarised in Graeme Hill and Adrienne Stone, 'The Constitutionalisation of the Common Law' [2004] AdelLawRw 5; (2004) 25 Adelaide Law Review 67, 82–7.
[77] Cf Retail, Wholesale and Department Store Union Local 580 v Dolphin Delivery Ltd [1986] 2 SCR 573, 600 (McIntyre J): '… I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. … It is [the courts'] duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute.' However, in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 214 ALR 92, Gleeson CJ, Gummow, Hayne and Heydon JJ noted that, although the judiciary is separated from the legislative and executive branches of government at the federal level, the judiciary remains an arm of government: at 99–100 [33]. The question of whether courts exercise governmental power is a separate question from whether the implied freedom of political communication applies to discussion of courts and judges (as to which, see Zoe Guest, 'The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges' (2006) 17 Public Law Review 5).
[78] (1999) 200 CLR 485 ('Lipohar'). For a more comprehensive analysis of Lipohar, see Jeremy Kirk, 'Conflicts and Choice of Law within the Australian Constitutional Context' (2003) 31 Federal Law Review 247, 253–6.
[79] Lipohar (1999) 200 CLR 485, 574–84 [230]–[261].
[80] Ibid 575–6 [235]–[237].
[81] Ibid 585 [262], assessing whether an offence had been committed against the common law 'in and of' South Australia.
[82] Ibid 500 [24], citing Lange [1997] HCA 25; (1997) 189 CLR 520, 563.
[83] See s 270(2) of the Criminal Law Consolidation Act 1935 (SA). In this respect, s 270(2) is similar to s 51AA of the Trade Practices Act, by imposing a prohibition on conduct that is defined by the common law (here, the offence of conspiracy): see above, text accompanying n 19.
[84] Lipohar (1999) 200 CLR 485, 501 [26].
[85] Ibid 505–10 [43]–[57]. The fact that the English common law was received at different times in different colonies did not affect this conclusion: ibid 508–9 [54].
[86] Ibid 513 [67], 517 [80].
[87] Ibid 534 [121], referring to s 17(2)(a) of the Supreme Court Act 1935 (SA); see also 527 [106]–[107].
[88] Ibid 505 [44] (footnote omitted, emphasis added).
[89] [1966] HCA 14; (1966) 115 CLR 94, 134, 135. See also Justice Gummow, above n 3, 170: the fact that the English common law was received at various dates in Australia 'did not mean that the English common law was regarded as received in a form frozen from further judicial development'.
[90] See above n 7 (discussing ETA Foods). On the other hand, the Full Court of the Family Court suggested that s 80 in its previous form applied 'the common law of England … as understood and applied, subject to any other statutory provisions, in the Australian States and Territories': In Marriage of Sheehan (1991) 104 FLR 57, 69 (the Court).
[91] [1969] 1 AC 590, 644. In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1967) 117 CLR 118, the High Court had declined to follow Rookes v Barnard [1964] UKHL 1; [1964] AC 1129. Uren was then applied by the High Court in Australian Consolidated Press v Uren [1966] HCA 37; (1967) 117 CLR 185, which was appealed to the Privy Council. See generally J W Harris, 'The Privy Council and the Common Law' (1990) 106 Law Quarterly Review 574.
[92] Lipohar (1999) 200 CLR 485, 507 [50]. For one thing, appeals from decisions of the Australian High Court were not heard by the House of Lords; moreover, the approach of the Privy Council in cases such as Uren recognised (belatedly) the development of Australia's political and international sovereignty: Leslie Zines, 'The Common Law in Australia: Its Nature and Constitutional Significance' [2004] FedLawRw 16; (2004) 32 Federal Law Review 337, 344. Neither of these considerations applies to appeals from State or Territory courts to the High Court.
[93] See above n 88. Note, however, that '[t]he principle that superior courts are bound by their own previous decisions is of comparatively recent origin' (that is, between the middle and the end of the nineteenth century): Justice Lockhart, 'The Doctrine of Precedent – Today and Tomorrow' (1987) 3 Australian Bar Review 1, 1; see generally 1–3.
[94] (1999) 200 CLR 485, 517 [79]; see also Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574, 598 (Mason ACJ, Wilson and Dawson JJ).
[95] So it has been stated that in England '[j]urisdiction and law flow together in a mixed stream': Stewart Jay, 'Origins of Federal Common Law: Part Two' (1985) 133 University of Pennsylvania Law Review 1231, 1282, quoting Peter Du Ponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (1824) 6–7.
[96] Lipohar (1999) 199 CLR 485, 527 [105] (Gaudron, Gummow and Hayne JJ); Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1, 23 [11] (Gleeson CJ), 35 [53] (Gaudron, Gummow and Hayne JJ); cf 49 [100] (Kirby J).
[97] See Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 322–3 (the Court).
[98] See generally Julian D M Lew, 'The Extra-territorial Criminal Jurisdiction of English Courts' (1978) 27 International and Comparative Law Quarterly 168, 168–9. This is because in criminal cases courts can only apply the law of the forum: Lipohar (1999) 200 CLR 485, 527 [106]–[107] (Gaudron, Gummow and Hayne JJ).
[99] Prior to the enactment of Commonwealth service and execution of process legislation in 1901, the only way of bringing a person from one Australian law area to another to face criminal charges was pursuant to an extradition order under the Fugitive Offenders Act 1881 (UK): see Australian Law Reform Commission, Service and Execution of Process (Report No 40, 1987) 105 [215].
[100] See (1999) 200 CLR 485, 517 [80], 522 [92].
[101] See ibid 515 [72].
[102] Under Pt 2 of SEPA 1992, a State or Territory court may issue its process anywhere in Australia, in both civil cases (s 15) and criminal cases (s 24). Part 5 of that Act also provides for the inter-state execution of warrants, so that a person named in a warrant issued in one State may be apprehended in another State (s 82(1)).
[103] Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 530 [53] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[104] Section 39(2) of the Judiciary Act confers federal jurisdiction on State courts 'within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter or otherwise'. Section 39(2) picks up the limits as imposed by State law from time to time: Commonwealth v District Court of the Metropolitan District [1954] HCA 13; (1954) 90 CLR 13.
[105] See, eg, W M C Gummow, 'Pendent Jurisdiction in Australia – Section 32 of the Federal Court of Australia Act 1976' (1979) 10 Federal Law Review 211, 234, and the authorities cited. At least, the conferral of jurisdiction can carry that authority – a Commonwealth law conferring jurisdiction on a lower federal court might only confer authority to determine part of the justiciable controversy: see below, text accompanying n 135.
[106] See, eg, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570.
[107] Graeme Hill, 'Will the High Court “Wakim” Chapter II of the Constitution?' (2003) 31 Federal Law Review 445, 468–9.
[108] Justice Gummow writes that 's 75(iv) must encompass matters between residents of different States where the disputed rights and liabilities arise under some general body of non-statute law': above n 3, 174. It should be noted that, when federal jurisdiction is defined by reference to the identity of the parties, all the claims are 'federal', no matter what their source: Edensor Nominees (2001) 204 CLR 559, 590 [65] (Gleeson CJ, Gaudron and Gummow JJ, with Hayne and Callinan JJ agreeing).
[109] To adapt the language of Edensor Nominees: (2001) 204 CLR 559, 591 [68]. Of course, the common law is also relevant to s 75(v) of the Constitution, in determining both the meaning of 'mandamus', 'prohibition' and 'injunction', and also the grounds on which those remedies will be granted: see generally Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. However, even if there were no single common law in Australia, the common law questions raised by s 75(v) would clearly be 'federal' common law issues, and thus within the power of the federal judiciary to develop.
[110] I am grateful to Professor Zines for this point.
[111] It is not always easy to separate issues of jurisdiction and issues of power. For example, the High Court's undoubted ability to award certiorari once its s 75(v) jurisdiction is attracted could be analysed either as an exercise of accrued jurisdiction or as an exercise of an ancillary power: see, eg, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 37–8.
[112] By analogy, the High Court's power to punish contempt contained in s 24 of the Judiciary Act is 'declaratory of an attribute of the judicial power of the Commonwealth which is vested in [the Court] by s 71 of the Constitution': Torney [1999] HCA 57; (1999) 200 CLR 386, 395 [16] (Gleeson CJ and Gummow J), 429 [113] (Hayne J); contra 404 [50] (McHugh J), 416–7 [80]–[81] (Kirby J).
[113] There is still an issue whether the Commonwealth can confer power to develop or modify the common law, which is discussed below.
[114] Of course, this analysis of s 4(1) of the Commonwealth Places Act runs counter to the joint judgment in the Native Title Act Case, which assumed that s 4(1) applied to the common law, as well as State statutory law: see above, text accompanying n 15.
[115] Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629, 644 [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[117] The joint judgment observes that the expression 'foreign tort' identifies a 'foreign system of law in force at the locus delicti', and continues: 'where … the relevant events giving rise to a “maritime tort” occurred on the high seas, one asks what body of law other than that in force in the forum has any better claim to be regarded by the forum as the body of law dispositive of the action litigated in the forum?': (2003) 218 CLR 330, 340 [22]–[23] (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing) (emphasis added). It is true that, in rejecting an argument that applying the ACT limitation statute would extend the reach of that Act, the joint judgment stated that the Act 'plainly applies to actions instituted in the [ACT] Supreme Court': at 339 [19]. However, that statement should not be read literally, because otherwise the ACT limitation statute would also apply (contrary to Pfeiffer) to a tort action instituted in the ACT Supreme Court in respect of an accident that occurred in New South Wales: James Stellios, 'Choice of Law and the Australian Constitution: Locating the Debate' [2005] FedLawRw 2; (2005) 33 Federal Law Review 7, 35–6.
[118] See Lipohar (1999) 200 CLR 485, 509 [55] (Gaudron, Gummow and Hayne JJ). The Australian Courts Act 1828 (Imp) provided in s 24 that the laws and statutes in force in England on 25 July 1828 should apply to New South Wales and Van Diemen's Land so far as they could be applied: see, eg, Zines, above n 92, 339–41.
[119] Australian courts already make a distinction of this sort when they apply the common law of another country through a choice of law rule: see above, text accompanying nn 65–68. And there does seem to be a difference of degree between decisions such as State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617 (applying the rule in Searle v Wallbank [1947] AC 341 that the owner of livestock does not owe a duty of care to users of a public highway) and Mabo (No 2) (1992) 175 CLR 1 (developing the common law of native title).
[120] [1938] USSC 94; 304 US 64 (1938) ('Erie'). Erie overturned Swift v Tyson [1817] USSC 12; 41 US 1 (1842), which had held that federal courts could develop the 'general' common law. It has been suggested that the US provision on which s 80 was based – § 3 of the Civil Rights Act 1866 (US) – 'could possibly be read as moderating the position established by Swift v Tyson': Priestley J, above n 6, 225.
[121] Significantly, Erie did not cast doubt on the validity of s 34 of the Federal Judiciary Act of 1789 (which was the basis of s 79 of the Commonwealth Judiciary Act): [1938] USSC 94; 304 US 64, 79–80. In Australia, however, the common law is not a 'law of a State', and therefore is not picked up by s 79 of the Judiciary Act: see below, n 138. Professor Ely argues that Erie is only concerned with constitutional limits on the power of federal courts to depart from State law (including the common law), which needs to be distinguished from statutory limits on the power of federal courts to depart from State law, and also from the power of federal courts to develop rules of procedure: John Hart Ely, 'The Irrepressible Myth of Erie' (1974) 87 Harvard Law Review 693.
[122] Erie [1938] USSC 94; 304 US 64, 78: 'Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or "general", be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.' (emphasis added) However, federal courts in the United States can develop 'federal' common law: see generally Henry J Friendly, 'In Praise of Erie – and of the New Federal Common Law' (1964) 39 New York University Law Review 383.
[123] The US position is succinctly stated in Jay, above n 95, 1311: 'Central to the Court's overall philosophy of federal common-law jurisdiction is the proposition that the mere grant of jurisdiction to a federal court does not amount to an authorisation to "formulate" common law.'
[124] See Lipohar (1999) 200 CLR 485, 507–508 [51] (Gaudron, Gummow and Hayne JJ).
[125] By analogy, in the context of s 109 of the Constitution, the Commonwealth does not 'have power directly to control the content of a State law': Native Title Act Case [1995] HCA 47; (1995) 183 CLR 373, 464 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); see also Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 120–1 (Brennan J).
[126] See Zines, above n 92, 347–8.
[127] Cf above, text accompanying n 109.
[128] Zines, above n 92, 347. The High Court, although a national institution, is established in accordance with Commonwealth legislation (the High Court of Australia Act 1979 (Cth)) and is federal in that sense.
[129] Indeed, s 39 of the Judiciary Act has the effect that, when a case comes within any of the categories of federal jurisdiction, the only authority State courts have to determine the case derives from Commonwealth law: see Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 373 (Barwick CJ), 411–413 (Walsh J); see also 393 (Windeyer J); Edensor Nominees (2000) 204 CLR 559, 571 [7] (Gleeson CJ, Gaudron and Gummow JJ, with Hayne and Callinan JJ agreeing); APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 219 ALR 403, 460 [232] (Gummow J). By contrast, in the US, State courts determine cases raising federal subject-matter pursuant to authority granted by State law, not federal law: see generally Richard H Fallon Jr, Daniel J Meltzer and David L Shapiro, Hart and Wechsler's The Federal Courts and the Federal System (4th ed 1996) 450–5.
[130] Particularly given that there have been times when State courts have not appreciated that they were exercising federal jurisdiction: see, eg, British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30, 41 [3] (Gleeson CJ), 50 [35] (McHugh, Gummow and Hayne JJ, with Callinan J agreeing).
[131] The US Supreme Court also has original jurisdiction but, unlike the High Court, it is not a court of general appellate jurisdiction. Accordingly, since Erie, even the US Supreme Court may only predict or apply State common law in cases coming within the Court's original jurisdiction.
[132] Imagine, for example, that Pfeiffer had been commenced in the High Court's original jurisdiction. Although the case raised constitutional objections to the former 'double actionability' rule (and thus involved the interpretation of the Constitution within s 76(i)), the Court could have responded by merely changing the common law. (And indeed Pfeiffer did only alter the common law: see Justice Gummow, above n 3, 180.)
[133] The joint judgment in Pfeiffer notes an issue whether, in the absence of s 80, choice of law rules would 'nevertheless apply in federal jurisdiction as part of the ultimate constitutional foundation': [2000] HCA 36; (2000) 203 CLR 503, 531 [56] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Similarly, Pryles and Hanks suggest that s 79 and s 80 of the Judiciary Act 'may only be declaratory of the situation that would exist in their absence': above n 61, 179 [5.2.3].
[134] For example, Professor Finn (as he then was) stated that 'we were born to statutes', although he also noted that there was a proliferation of statute law in the 1970s: Paul Finn, 'Statutes and the Common Law' (1992) 22 University of Western Australia Law Review 7, 8, 11.
[135] [1999] HCA 14; (1999) 197 CLR 510. The High Court (by majority) upheld the validity of Commonwealth provisions that gave the Federal Court power to review migration decisions on some grounds, but not others.
[136] Compare the observation by French J that it would be possible expressly to exclude a federal court's accrued jurisdiction by statute: Robert French, 'Federal Courts Created by Parliament' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System (2000) 123, 143.
[137] Section 79 relevantly provides: 'The laws of each State or Territory … shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory …' (emphasis added).
[138] Some earlier cases stated that common law choice of law rules were picked up by s 79, although it was not suggested that the common law varied between different parts of Australia: see Deputy Commissioner of Taxation for the State of New South Wales v Brown [1958] HCA 2; (1958) 100 CLR 32, 39 (Dixon J); Pedersen v Young [1964] HCA 28; (1964) 110 CLR 162, 169–70 (Windeyer J). More recent authorities, however, indicate that the common law is not picked up by s 79, because it is not a law 'of' a State or Territory: see, eg, Mewett (1997) 191 CLR 471, 526 (Gaudron J); see also Blunden (2003) 218 CLR 330, 339 [18] (Gleeson CJ, Gummow, Hayne and Heydon JJ, with Callinan J agreeing).
[139] Cf above, text accompanying n 4; see also above, text accompanying nn 116–117 (reconciling this analysis with the result in Blunden).
[140] Cf above, text accompanying n 3. See further Hill and Beech, above n 52, 39-42.
[141] Cf above, text accompanying n 5. Perhaps these words also contemplate that judge-made law could fill in the details in a sparely-expressed Commonwealth statutory scheme; what Judge Friendly termed 'the implication of rights and the filling of interstices': see Friendly, above n 122, 416; see generally 412–9.
[142] ALRC Report No 92, above n 4, 611 (Recommendation 34–1).