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Taylor, Greg --- "Why should the common law be only indirectly affected by constitutional guarantees?]" [2002] MelbULawRw 32; (2002) 26(3) Melbourne University Law Review 623

Why The Common Law Should Be Only Indirectly Affected By Constitutional Guarantees: A Comment On Stone


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



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

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


This article will accordingly concentrate on the deficiencies of the ‘state action’ doctrine. First, however, the Lange doctrine needs to be defended from Dr Stone’s claims of inconsistency. In a previous article,[9] I attempted to describe in greater detail, and with references to the Lange case (and its successor, John Pfeiffer Pty Ltd v Rogerson[10]), the High Court’s conception of the manner in which the Constitution affects the common law. That discussion need not be repeated here. However, it should be noted that Dr Stone draws attention to the statement in Lange that ‘the common law must conform with the Constitution[11] and states that this dictum is inconsistent with the Lange theory that the Constitution only indirectly influences the common law.[12] This point is superficially attractive: how can a ‘strong’ word like ‘conform’ be reconciled with a ‘weak’ sounding concept such as ‘indirect effect’?

The solution lies in recognising that the two statements are not at odds. The common law conforms to the Constitution precisely because of the indirect influence the Constitution has on it. Indirect influence is not no influence. Once the Constitution has exerted its indirect influence on the common law, the common law conforms to the Constitution. This is what happened in Lange. This becomes obvious if one considers the result in Lange: political discussion was recognised as falling under the common law heading of ‘the common convenience and welfare of society’.[13] Thus, the common law was brought into conformity with the Constitution by means of a development of the common law spurred on by the indirect influence of constitutional values.

It is worth noting that the Federal Constitutional Court of Germany, in adopting an approach very similar to that of Lange in 1958, made an analogous statement about the need for the private law to conform to the German Constitution (Grundgesetz).[14] That court, therefore, also sees no contradiction between the two statements. Kirby J, too, clearly sees no inconsistency between the Lange principles and the idea that the courts are under a duty, in considering whether to make discretionary orders, to ‘conform to the constitutional setting’.[15] McLachlin CJ of the Canadian Supreme Court has recently made extra-curial remarks which indicate that she also sees no contradiction between the indirect application of basic rights to the common law and the statement that the common law must conform to the Canadian Constitution.[16]

It might, however, be asked: if the common law conforms to the Constitution by indirect means, how does this differ from conformity under the direct theory? Why does it matter; what difference does it make? Indeed, how could the indirect theory be distinguished from the direct theory if both produce the same result — namely, conformity? But the difference between the two approaches is, in fact, marked. As a very similar distinction recently made in the English case law shows,[17] the difference lies in the source of the rule which is applied after the common law has been influenced by the Constitution. This 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.[18] 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.[19] There was no new rule; rather, there occurred a further development of the existing common law rule as opposed to something completely new coming into the common law from outside. The Constitution’s influence was accordingly no longer direct, but mediated through the existing common law rule. While some aspects of the common law rule thus developed were protected from legislative change which would infringe the right of free speech in governmental and political matters, under Lange it is the common law’s test for qualified privilege — whether a statement is ‘for the common convenience and welfare of society’[20] — which is applied in defamation suits rather than a rule allegedly found in the Constitution itself.[21] This rule, as part of the common law rather than something imposed on it from above, was further developed so as to permit sufficient freedom for statements about politics and government. The Constitution, on this indirect influence approach, provides another of the many stimuli that drive the development of the common law, and, developing in accordance with this stimulus, the common law conforms to the Constitution.

As will be further considered below,[22] this demonstrates that the difference between the manner in which the direct and indirect theories ensure the conformity of the Constitution and the common law is not a mere matter of words. It is true that both theories require the courts to change the common law and that, from the point of view of a judge who is not at the apex of an appellate hierarchy, the difference may seem unimportant: the judge is bound to apply the law as laid down by the courts above her or him, and may not be overly concerned about whether that law is said to be the result of the direct or indirect influence of the Constitution. But, in addition to the theoretical difference already described, 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. As we shall see, 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.[23] Accordingly, the theory presented in Lange is not self-contradictory, but quite coherent, and is also clearly distinguishable from the theory proffered by Dr Stone.


Before moving to a consideration of the Lange theory, however, it is necessary to consider briefly a terminological difficulty which is sometimes present in this area.[24] When it is considered whether the Constitution has a direct or indirect effect on relationships between citizens — that is, on relationships not involving the state (except judicially) — the question is sometimes framed as whether the Constitution applies in private relationships.[25] Perhaps more often, however, it is asked whether it applies to the common law[26] (which in these sorts of discussions is always taken to include equity).[27]

Which is the correct question? The two are not the same, of course. Although there are relatively few such rules remaining, the common law also regulates certain aspects of public law. The most obvious examples are the Royal prerogatives and associated Royal privileges and immunities, such as the rule that statutes do not bind the Crown. Indeed, the succession to the throne itself is regulated by common law rules of descent, subject of course to any interference by a competent legislature[28] such as last occurred pursuant to His Majesty’s Declaration of Abdication Act 1936, 1 Edw 8 & 1 Geo 6, c 3. Then there are the rules of the common law setting out, in some States, large tracts of the criminal law.[29]

So it is one thing to say that a constitutional guarantee does not apply to the common law; it is another, slightly different thing to say that it does not apply to private relationships. It may well be that it is the latter category which provides the ‘deeper’, more fundamental reason why it was held in Lange that the Constitution applies only indirectly to the common law. As we shall see, it is the private autonomy of the individual which is the most important legal value in the area under discussion here. The common law provides for this by permitting everything it does not expressly prohibit, while constitutional guarantees, or at least their express text, are not generally directed at private relationships but at the state. The state is an institution which is more powerful (and thus more threatening) and is required to be more neutral, less capricious and fairer in its dealings with private individuals than are private individuals in their dealings with each other.[30] To take an obvious example: the Commonwealth, under s 116 of the Constitution, is not permitted to select one religion for particular favour by establishing it, whereas private individuals, of course, are not constitutionally required to be neutral among religions. This is an example of the principle that private relationships simply cannot be regulated in the same way as the state’s relationships with its citizens because, when the state is absent, the expectations we have concerning neutrality and fairness are also absent. This, of course — together with the fact that the state is created by the Constitution, whereas private individuals are not — is why constitutional guarantees are generally drawn up only with the state–citizen relationship in mind, a fact which is reflected in their text.

On the other hand, it will not suffice to say that constitutional rights do not apply in the private sphere at all.[31] If the state steps in and regulates private relationships by legislation, then clearly that legislation is also to be tested against constitutional guarantees without any need to consider the Lange doctrine of indirect effect. Lange says as much: legislation restricting freedom of speech in political matters is to be tested directly against the constitutional guarantee. Of course, under this hypothesis we have abandoned our scenario of a private relationship unregulated by the state (except through the common law), but we have not abandoned its private nature because the duties imposed by the legislation concerned — say, workers’ compensation or apportionment of damages legislation — are still owed by the parties to each other, not to the state.

I propose, therefore, to consider the subset of common law rules which regulate private relationships rather than all common law rules, including those which are of a public law nature or involve the criminal law (where the state is present as a prosecutor). As this subset contains by far the greater portion of common law rules that remain in force, this procedure is by no means artificial or strained. Further, it was this subset that the Court dealt with in Lange. Common law rules of a public law nature raise special questions precisely because of their comparative rarity and the corresponding need for special consideration of each individual rule focusing on its precise content and significance and the precise nature of the constitutional provisions involved. Similar considerations apply to cases in which the government makes use of the private common law to advance its own interests as a plaintiff or defendant.[32] The criminal law, of course, is a special case owing to the state’s appearance as a prosecutor and the severity of the sanctions at its disposal.[33]

In what follows, therefore, references to the common law should be taken to be references to the common law (including equity) so far as it regulates private relationships and does not concern the criminal law.


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 (as held in Theophanous and in the parallel American case of New York Times Co v Sullivan[34]), must be prepared to answer the question: where in the Constitution does it say how the Constitution changes the private law?

Of course, the Constitution makes no express claim whatsoever to regulate private relationships. Its text is concerned — I do not think this is putting it too highly — exclusively with the relationship between the state and the citizen. It says nothing at all about private relationships. The reasons for this have just been pointed out: the relationship between the state and its citizens is different in nature from the relationship among citizens. Thus, it was held in Brown v The Queen[35] that the guarantee of trial by jury contained in s 80 was inserted principally in the public interest, not in the interest of the individual accused, who therefore could not waive it. If even this apparently personal right turns out to have a public character, then it will be difficult indeed to argue that the Constitution directly regulates private law matters such as defamation, about which it is entirely silent. All other implications so far discerned in the Constitution which have survived the test of time — those protecting the existence of the States and their capacity to function, and those relating to the separation of powers — deal with matters of public law only. As Dr Stone states, the implication relating to freedom of speech which has been recognised is based on ‘institutional rather than personal’[36] — or, to put it another way, on public rather than on private — foundations: its aim is to protect democracy. Furthermore, the thesis that s 92 protects a personal right has long since been rejected.[37]

Where, then, is a directly applicable rule of defamation law to be found in the Constitution and what is its content? It is, of course, possible to derive anything at all from the Constitution if one adopts an extreme non-textualist position, but there is little support for that in Australia today (if, indeed, there ever was).[38] Attempts to justify a private law rule as part of the (implied) text of the Constitution, which — with the egregious exception of s 92 — is marked by its precision and concern with detail rather than broad, sweeping principles similar to the Bill of Rights in the United States, are generally unconvincing; and none was more so[39] than the rule said to be directly derived from the Constitution in Theophanous, according to which the Constitution contains a rule of law to the following effect:

If a defendant publishes false and defamatory matter about a plaintiff, the defendant should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly (ie, not caring whether the matter was true or false), and that the publication was reasonable in the sense described.[40]

‘Reasonable in the sense described’ referred to the need to take steps to check the accuracy of information received or to show reasons why this could not be done.[41]

As well as its practical defects, to which reference will be made again below, this new rule was so unconvincingly grounded in the text of the Constitution (indeed, no attempt to do so was made) and so obviously inferred by judges on the run rather than a requirement of the Constitution itself — which nowhere mentions the law of defamation, let alone the refinements of awareness of falsity, recklessness and reasonableness which the Court invented — that it was almost inevitable that this part of the Theophanous judgment would be overruled.

In contrast, the Lange approach looks not for rules of defamation law in the text of the Constitution, which any honest reader of the document will be unable to find, but for the values inherent in the Constitution.[42] It looks at the overall spirit of the document and derives from that impulses and guidelines[43] for the common law rather than rules per se. This is a much easier and more justifiable task, as one need only point to the values inherent in the document rather than search for a rule together with its refinements and exceptions. For example, no-one could doubt that the Constitution expects the country to be run democratically. If this requires freedom of speech, as seems logical, then this is a value which, according to Lange, must be taken into account by the judges in their development of the law. No rule is made up and then declared, unconvincingly, to be part of the Constitution; rather, the common law continues to develop in the usual way, but in response to constitutional stimuli which form part of the whole array of societal values which inform the development of the common law by the judges. Moreover, Lange’s emphasis on judicial development of the law shows that Lange is by no means committed, pace Dr Stone, to ‘a pre-realist understanding of the common law’.[44] 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.

It should be recalled, nevertheless, that the Constitution was itself enacted at a pre-realist time, that is, at a time when, generally speaking,[45] it was thought that the common law was discovered, rather than developed, judicially. There is therefore all the more reason why we should expect the Constitution to say so expressly if it meant to change the common law directly. After all, under the pre-realist view, legislation (and not judicial decisions) was the only way of changing the common law. However, now that we have reached the post-realist era, all but the strictest originalists will concede that we are entitled to look for values in the Constitution to help in the development of the common law, even if it does not directly ordain any changes.

It should be recalled, finally, that private individuals, unlike the state, are not creatures of the Constitution. It should not surprise us, therefore, if the Constitution is directly concerned only with relationships in which one of its creatures is present.[46]

In short, both the text of the Constitution and its nature as a public law document combine to suggest that the Constitution is not in the business of directly altering common law rules. But it is right to say that the values endorsed by the Constitution may sometimes be of significance in the further development of the common law. This does not mean, as Dr Stone acknowledges, that the Constitution ‘has no application to the common law’.[47] Rather, its application to the common law is indirect and is exercised through the medium of the common law itself, thus reflecting the Constitution’s principal — direct — concern with the exercise of public power, as well as its failure expressly to mention the common law as such.


We shall see below that Dr Stone’s equation of the common law with legislation ignores the fact that these two institutions begin from radically different bases. This corresponds with a difference in the nature of judicial power and legislative power which prohibits an undifferentiated description of both as ‘state action’. 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.[48]

Given this fundamental conceptual difference, it is only natural that the Constitution should apply in a different manner to the two sorts of powers. It is not possible to lump them both in together as ‘governmental action’. Of course, no-one denies nowadays that the courts do in fact make new law by their decisions. That being admitted, it must equally be recognised that the doctrine of precedent and the general limitation of the courts to incremental change produce a very different kind of law-making from that in which the legislature engages. For example, ‘[t]he Courts could never have created the Welfare State.’[49] The two activities simply cannot be equated. Whatever ‘real world’ truth there might be in the statement that courts may sometimes create new rights, the fact remains that the Australian system of government is predicated on a strict division between powers exercised by the courts and powers exercised by the legislature. Dr Stone’s analysis does not do justice to this constitutional chasm.[50]

Furthermore, the ‘state action’ theory is inconsistent with the Australian conception of judicial power in another, related respect. This is because it is committed to postulating that the parties’ rights change as soon as they go to court and thus involve the state.[51] This is in itself a peculiar conception of what happens when parties go to court. Furthermore, under our Australian conception of judicial power, going to court should make no difference to the parties’ rights, as the court simply declares the parties’ rights as they have always existed. Nothing the court does (at least in theory) can create new rights, which is a function outside judicial power. Describing what the courts do as simply just another form of ‘state action’ and as relevantly identical to legislation fails to do justice to this important feature of judicial power. It equates the judicial function of declaring existing rights to the legislative function of creating new rights.

There is, of course, no point in becoming bogged down in a dispute about labels. It is possible to call the common law ‘governmental’, and if a court tells someone to do something it is likely to matter little to that person whether it is the common law or a statute which provides the applicable rule. It is thus possible to see what Dr Stone means by calling the common law governmental action, although ‘action’, when applied to declaring the rules of the common law, is a description that some may find slightly odd and thus reject. (This point will be mentioned again below.) But this too is a mere label. At the very least, the exercise of judicial power is a very different kind of governmental action from the exercise of legislative or executive power. And that makes it at least unsurprising that Lange states that both are subject to the Constitution in a slightly different way. Equally, the statement that the courts do not create new rights is something of a simplification, and not precise enough to be of much help in deciding whether a particular power is judicial or not. But 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.

Dr Stone dismisses the relevance of the statement by the Supreme Court of Canada (which, as she says, has adopted a Lange-like doctrine) that courts are neutral arbiters[52] on the grounds that it says ‘nothing about the kind of power they are exercising’.[53] As we have just seen, the nature of judicial power is very different from that of legislative power, a point which Dr Stone does not sufficiently recognise. And there is a deeper truth in the Canadian statement which she also fails to appreciate: courts are set up and designed to give protection to the citizen from the state. While this is not their only function (sometimes citizens need protection from each other), it 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 (for otherwise there would be no point in litigating) but a neutral arbiter between the state and the citizen. Equating the judicial function with governmental action in this area (except in the stage of enforcement of a judgment, when, as we shall see below, judicial power has ceased anyway) thus exhibits a deep misunderstanding both of the role of the courts and of the function of human rights guarantees. This is not just a matter of labels, but a matter of recognising that the courts must stand apart from — one is almost tempted to say against — the state when basic rights are concerned. And while courts do not always fulfil this function as well as they might, it is their function. The ‘state action’ theory obscures rather than highlights this extremely important role of the courts.

‘Rights’ litigation proceeds from the assumption that the legislature or executive has acted and that the courts will provide the necessary protection to the citizen from this action. The courts, in other words, are not actors in the dispute as the legislature or the executive are. Moreover, viewing them as actors in a dispute is inconsistent with the Australian conception of judicial review. Not being actors in the dispute, the courts are not subject directly to basic obligations which bind actors in a dispute, although of course they may — indeed, must — take the values of the Constitution into account in determining what the law is.


Dr Stone’s principal plea seems to be that the Lange doctrine ‘neglects the governmental nature of the common law’s enforcement’.[54] It will be argued below that she is right to consider the enforcement of the common law — by means such as seizing property from judgment debtors — to be a non-judicial activity to which basic rights directly apply. But of course this is merely auxiliary to the substantive rules of the common law. Dr Stone’s argument, taken as a whole, is clearly that the substantive rules of the common law are also subject directly to constitutional guarantees, rather than indirectly as was held to be the case in Lange, because they are governmental action. What is it about the common law that makes it different from legislation and justifies the approach taken in Lange?

Perhaps the major difference is in the starting point of the common law, as contrasted with legislation. The common law, as is well known and as was pointed out in Lange,[55] operates on the assumption that only those things which it expressly prohibits are forbidden. Thus, it starts from an assumption of freedom and personal autonomy — a concept which will play an important role later in this discussion. Legislation is not like that. Of course, some legislation, as H L A Hart argued,[56] provides facilities rather than imposes prohibitions; but legislation providing facilities is not likely to infringe constitutional guarantees — or at least, the guarantee identified in Lange and its predecessors[57] — and can thus be virtually disregarded for these purposes.

We are thus dealing, on the one hand, with an institution designed to restrict the citizen’s freedom and, on the other hand, with an institution which takes the citizen’s freedom as its starting point and most basic assumption. Moreover, judicial development of the law is a very different process from legislation. Thus, it is logical to provide a different type of constitutional review for these different institutions.

Legislation is enacted at a precise moment in time, unlike the common law, which, as a rule, develops in steps — some more and some less far-reaching than others, but incremental nevertheless. The common law evolves and develops over time and is not comparable to a deliberate legislative decision to limit a citizen’s freedom, backed by the whole decision-making apparatus of the state. Rights (such as rights to sue in defamation) are not created or restricted by the common law as they might be by legislation. Rather, rights, together with defences and remedies, are recognised by the common law over a gradual evolutionary period. This is no doubt the reason why it seems strange to say that the rules of the common law are governmental or state action.

The point becomes clearer by adopting one of Dr Stone’s examples.[58] The common law permits the owner of private property such as a house to exclude others from it even if they are proposing to discuss federal politics. The common law has never expressly decided to permit this to happen, as would be the case if legislation were passed on a particular day as a result of a decision to do so. The common law has never created a right to exclude others from one’s property in this sense. It has merely recognised it.

This leads us to the conclusion that many of the rights which the common law protects are — for want of a better word — inherent.[59] 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. What action has the state taken to allow this? 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 (as distinct, perhaps, from its enforcement), but is inherent in the nature of property ownership. Although one may perhaps speculate about whether the state or the institution of private property was first in time — Rousseau, for example, stated that ‘the general administration is established merely to secure individual property, which is antecedent to it’[60] — the 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. It is part of the individual’s freedom to do anything against which the state has failed to act by enacting legislation, and is thus an expression of the common law’s assumption of freedom, which in turn gives effect to the important legal value of private autonomy — the freedom to act outside the state’s control rather than because of state action. Accordingly, defamation law should not be conceived of as a permission by the state to discuss things, minus some exceptions, so that things which defamation law allows to be said are seen as said pursuant to the state’s permission to do so. Such things are said because people are free to say them, as the state has not acted to limit their inherent freedom to do so.

Of course, matters are not always as simple as the preceding paragraphs suggest. 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.[61] But that is not the law’s theory[62] and, moreover, we are dealing here with overwhelmingly typical characteristics to explain a general approach, not with the odd exception. Given, then, that the common law both starts from a different assumption from that of legislation and has a different method of generating rights and obligations, it is not surprising if the Constitution should apply to both in a different way.

Dr Stone also points out that jurisdiction to enforce the common law is conferred by statute.[63] This is, of course, true. It could hardly be otherwise in this country in which there were no common law courts as there were in England. It is probably also true — although not for the reason that Dr Stone gives — that enforcing the common law is an area in which constitutional rights directly apply. Thus, if the sheriff decided not to seize goods or to distrain in favour of people who had written letters to the editor favouring a particular political party, this would be invalid and, one would hope, also a breach of the implied freedom of communication.[64] The enforcement of the common law, in this strict sense of ‘enforcement’, goes beyond the realm of private relationships, even if it happens under the common law (here the distinction drawn in Part III may be important). This is because it involves the state stepping in, not as a neutral arbiter as the courts are, but as a partisan (even if a court-authorised one) in favour of one party and against another. This creates a further relationship, of a public nature, between the sheriff and the party or parties concerned. It is also a function which might accurately be described as executive rather than judicial: the sheriff does not independently determine the law and the facts, but takes action to the disadvantage of a party on the basis of judicial determinations.

Be that as it may, Dr Stone’s principal argument based on the statutory foundation of jurisdiction to enforce the common law fails simply because there is no statute stating that the rules of the common law apply in Australia, as distinct from statutes giving courts authority to declare and enforce them.[65] But even if there were such a statute, it would not change the nature of the common law as it has been explained above. Further, as we shall now see, Dr Stone’s theory is — perhaps most importantly of all — inconsistent with the value of private autonomy in the law.


The argument for the ‘state action’ doctrine put forward by Dr Stone is committed to the idea that the state is complicit in all actions not prohibited by the common law (and is also complicit in the common law’s prohibitions). This is because, under that theory, the granting (and the refusal) of relief is undertaken by courts representing the state, and the courts’ decisions to grant (or to refuse) relief are therefore decisions of the state to authorise (or to prohibit) a particular cause of action, and are therefore reviewable in the same way as any other decisions of the state. Thus, for example, in Shelley v Kramer[66] the state action consisted of enforcing a restrictive covenant which prevented non-Caucasians from living in a particular area and which the sub-constitutional law permitted to be made. (And presumably the decision of the Supreme Court of the United States refusing to allow the covenant to be enforced was also state action — after all, it is a court like the sub-constitutional ones.)

In the end, this turns the permission by the state to enter into the covenant into complicity by the state — through the courts — in its provisions. This leads to the absurd consequence that everything not actually prohibited by the common law — everything against which the courts would not act — becomes positive permission by the state through the agency of the courts and their refusal of relief, or, as in Shelley, the granting of relief by the sub-constitutional courts based on a refusal to prohibit the use of a legal facility in a particular manner.

How deeply this sort of analysis misunderstands the law’s conception of personal autonomy — a value which is clearly also important to Dr Stone[67] — may be illustrated by a somewhat out-of-the-way example which is nevertheless a good test of the theory (it is certainly a better test than Shelley, where it is hard to disagree with the result, even if one rejects the Court’s reasoning, because of the outrageous nature of the covenant concerned). Let us imagine that one spouse sues another seeking an injunction, and damages in the alternative, to stop the latter’s adultery. Of course, the injunction would have to be refused and damages denied.[68] Is this state action? Is the state authorising the adultery by refusing to act against it, just as the sub-constitutional courts allegedly authorised the racially discriminatory restrictive covenant in Shelley by refusing to act against it? Of course, the state (and the courts) are doing no such thing. They are merely saying — completely in accordance with the (common) law’s assumption of freedom — that this is not an area in which they authorise what is going on, but one in which they do not interfere. It is a matter in which the common law simply has no interest, not because it approves of or authorises adultery but because of the greater and more important value of privacy and private autonomy generally.

Therefore, it is not the case that everything the common law does (or fails to do) amounts to a prohibition or authorisation by the state. It is simply indifference in the interests of freedom. It is the same — to return to one of Dr Stone’s examples — when the common law permits people to refuse to allow others to enter their private houses because they wish to discuss politics or, for that matter, are black, female, disabled or homosexual. The state does not authorise or approve of such discrimination; it merely accepts it as part of the individual’s right to the exercise of private autonomy outside the state’s control.

It is this basic misunderstanding of what the (common) law is doing by granting and withholding permissions that leads to the absurd results which Dr Stone recognises, but believes are avoidable.[69] In the next section, we shall see how successful her attempt is. For the moment, it suffices to note the underlying theoretical problem: the ‘state action’ theory puts the cart before the horse by considering freedom to be dependent on the state (on state action) rather than as freedom from the state, outside its control and proper area of concern.[70] It elevates private actors to the level of the state by attributing their actions to the state as soon as the courts pass judgment on them. As we have seen, we have, for good reason, different expectations of the state’s neutrality from those we have of private individuals; but the theory takes no account of this.

The state action theory accordingly elevates all private choices to public decisions made ultimately through the courts’ enforcement (or non-enforcement) of them, and thus destroys the important legal value of private autonomy and simple indifference in the common law — indifference in the interests of freedom of the individual. It nullifies the law’s recognition that many private choices are not subject to the law and are not within its domain. It converts our assumption of freedom from law into an assumption of state control of all aspects of life exercised through the courts. It treats an individual’s decision about whom to admit to private property, to contract with or to have intimate relationships with, for example, in exactly the same way as legislation (or any other action) by the state, at least once that decision comes before the courts and the courts decide

what the law requires. But the individual, in his or her private relationships, is not subject to the same constraints as the state. Any theory which does not recognise these basic points is simply untenable.[71] This is the basic theoretical flaw of the state action doctrine. In addition, as one might expect, it leads to absurd results.


Dr Stone wonders whether her theory would make any difference in the result.[72] There is a difference and it is an important difference. It was mentioned briefly earlier when it was explained that the difference between the direct and indirect theories lies in the different source of legal rules influenced by the Constitution. It lies in the preservation of Parliament’s authority to change the common law. 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.[73] Lange shows how this works: the common law rule, as developed in that case, applies in the absence of valid legislation. Legislation will be invalid only if it trespasses unduly on freedom of speech. Otherwise, Parliament has a free hand.[74]

This ideal solution both protects freedom of speech and ensures that adjustments to defamation law can be made by Parliament if necessary. Defamation law is so complex, affects so many different competing interests, has been so often altered and operates in such constantly changing environments — one need only think of the Internet[75] — that it is wise to preserve some of Parliament’s authority so that the law can be adjusted as the need arises and as defects in existing rules become apparent through experience.[76] Judicially-imposed, unalterable constitutional rules such as those Dr Stone favours have not been a success in this area in the United States.[77] But legislation there is powerless to alter large tracts of defamation law because of the constitutional rule. Lange contains at least a germ of hope that this will be avoided in Australia.

There are various reasons why judges will not necessarily lay down a rule which is entirely suitable in all possible factual situations and which support the conclusion that any rule they do lay down should be capable of adjustment by the legislature rather than being set in stone for all time. Unlike the legislature, judges not only lack democratic legitimacy, but they also cannot hold public investigations or committee meetings, respond to public pressure, use focus groups or hear all parties affected by a proposed legal change.[78] They deal with one concrete factual situation at a time, and may not be aware of the implications for other scenarios of any rules they may lay down. Legislation can be revised and amended, or even repealed, in the light of experience; no doctrine of stare decisis prohibits this or requires the legislature to announce in advance a change in the law and then stick to it.

Theophanous is an excellent example of the often impractical nature of judicial changes in the law. In that case, Mason CJ, Toohey and Gaudron JJ predicted that, owing to the creation of the new constitutional defence, ‘the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters’.[79] In reality it was the constitutional defence that was of little significance, owing to the qualifications with which their Honours surrounded it; in practice, the common law defence continued to predominate.[80] Although this caused no long-term harmful effects, principally owing to the abnormally low status of Theophanous as a precedent,[81] it shows how judge-made rules, owing to the limitations of the judicial process, can often be out of touch with the needs of the practical world. This is a further reason for not imposing unalterable judicial constitutional rules on the common law. As was mentioned above, a similar approach in the United States has led to far more permanent distortions of defamation law, partly because of unforeseen practical defects in the law laid down by the judges.[82] Even in relation to the most celebrated recent case of new rights being created by judicial decision — the decision in Mabo — one informed commentator has recently drawn attention to the practical deficiencies of that decision by pointing out that ‘[t]he scandalous truth needs to be confronted. Native title, to date, has been of greatest benefit to the legal profession. It has in many places set black against white and black against black.’[83] Certainly the law as laid down in Mabo required adjustment and supplementation by legislation.[84]

Dr Stone recognises[85] the other unacceptable results produced by unadulterated ‘state action’ doctrine: it would prevent, for example, a person seeking to limit discussion of politics on his or her private property from invoking the law of trespass, because any court order would necessarily count as ‘state action’ against the protected value of free speech.[86] The discussion in the last section has indicated the reason why the theory produces such unacceptable results. Dr Stone believes, however, that this problem can be circumvented by invalidating only common law rules in ‘cases in which the content of rules of the common law offend a constitutional limitation’.[87] But this is not convincing. In the first place, it would lead, if generalised, either to a somewhat random result depending on the exact content of common law rules and, in particular, their respective degrees of generality or precision, or — as in the United States — it would cover up the courts’ real reasoning and process of balancing competing interests, which, under Dr Stone’s approach, would occur by means of a complicated and ultimately unconvincing series of tests for determining the precise ‘content’ of a common law rule.[88] It is noteworthy that Dr Stone, in applying her theory, does not go beyond saying that the common law rule considered in Lange ‘simply did not give sufficient protection to political discussion’.[89] However, this is not a rule of the common law, and Dr Stone does not identify the rule of the common law the content of which was offensive. What precisely was the content of the rule of the common law that infringed the constitutional requirement?[90] It is certainly possible to say that the problem was that there was no special rule for political discussions in the common law — so how can any content relating to political discussions be identified? And if the offensive rule was the rule that certain political discussions did not count in determining the meaning of the phrase ‘the common convenience and welfare of society’[91] in the law of qualified privilege, then why not simply change the meaning of this concept under the influence of the constitutional value so that it does?

The chief problem with Dr Stone’s distinction is that it is not only unprincipled, but also collapses under the briefest consideration. Leaving aside what she rightly calls our ‘strong intuition’[92] that the law simply could not impose on owners of private property what would amount to an obligation to permit political discussion on their premises, why can it not be said that the failure of the law of trespass — like the failure of the law of defamation — to give any (or any sufficient) opportunity for political discussion is part of the content of the rule, and thus amenable to review under Dr Stone’s approach? If the rule is that a property owner (statutes aside) is entitled to exclude anyone from the property, why should we hesitate to say that the ‘content’ of this rule includes a permission to exclude those wishing to engage in political discussion? The obvious response is that such a choice by a property owner is private and not state action at all — not even when supported by the courts. That is, of course, an abandonment of the state action doctrine. Any attempt to explain our intuitive choice within the state action doctrine, as a consequence of the distinction Dr Stone attempts to draw, will require the same sort of ‘troublesome’,[93] confusing and unconvincing doctrine that she wishes to avoid. This is because our ‘strong intuition’ that the property owner’s action is private is correct, and the ‘state action’ doctrine is wrong to elevate that action to a choice by the state expressed through the courts.

Two further points should be noted. First, Dr Stone refers to criticism of the Canadian version of Lange on the grounds that it provides for a different application of basic rights depending on whether a particular legal norm originates in statute or common law, and even goes so far as to call this result ‘absurd’ and ‘strange’.[94] As we have seen, this merely reflects the basic difference between the legislature and the judiciary. As Lange itself shows, the Lange theory is flexible enough to enable differences between statute and common law to be reconciled without simultaneously entrenching the common law in a manner which would prevent its adjustment by the legislature if the need arose. After all, Lange involved the adjustment of the common law (in those States in which it was still in force) very much along the lines of a statute of New South Wales. So, far from being ‘absurd’ and ‘strange’, Lange shows how well the theory operates in practice, even when some norms are statutory and others derive from the common law. It operates so well because it recognises the differences between statutes and the common law while subjecting both to the Constitution in appropriately different ways.

Finally, it must be noted that Dr Stone has missed the point made by the Court in Lange about the inapplicability of United States case law.[95] The point is not so much that the common law in the United States is conceived of as state law, but the corollary: that 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.[96] The Supreme Court of the United States cannot state that it has further developed the common law in the area of defamation, for example; it can only impose constitutional rules on the common law. 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. The High Court does not have to adopt the United States doctrine, which was developed in a context in which the Supreme Court had little choice but to adopt the gravely deficient doctrine which it adopted.[97] As we have seen, that doctrine is both theoretically and practically untenable, and we should be grateful that our High Court has not been driven to the same expedients as was the Supreme Court of the United States.


As has been demonstrated, the state action theory is inconsistent with important features of the Constitution, of judicial power as understood under that Constitution, of the common law itself and of the law’s conception of freedom and private autonomy outside the state control. The fundamental causes of this are its basically false premises: it elevates the courts from neutral arbiters to actors in a dispute; it wrongly lumps them together with other institutions of the state which are very different from the courts; and it elevates private choices to governmental ones by attributing them to the court which merely gives effect to them. No theory can make these assumptions and remain consistent with the rest of the constitutional law.

These theoretical deficiencies are the direct cause of the state action theory’s practical defects, namely its inability to distinguish between private choices (such as whom to admit into one’s house) and public ones. This is not to say that the Lange theory will not involve some nice distinctions, such as that between governmental and private parties. But at least these distinctions will proceed from a theoretical basis that is not obviously indefensible. They will thus make sense and be able to be developed in the case law over time in a rational and logical manner (as is happening in Canada),[98] rather than having the appearance, as the United States doctrine does, of a hastily thrown-together jumble of unconvincing rationales, each of which was newly invented for a new situation.

Finally, the state action doctrine, by imposing unalterable rules on the common law, leads to an undesirable diminution in the capacity of the legislature to legislate.

To a great extent, Dr Stone’s state action theory, and her equation of the courts with other branches of government, is supported by legal realism. There is no doubting the fact that legal realism has contributed a great deal to our understanding of the law. There is no going back to a pre-realist age, even if that were possible or desirable, which it is not. But those who, like the current author, believe that legal realism is not a complete account of what judges do — it cannot convincingly explain, for example, why they often follow precedents regardless of their own views — will reject a theory such as the state action doctrine because it seeks to have this incomplete account of the judicial role recognised in Australian constitutional law. Even those who are committed to the full realist gospel will, it is hoped, be able to see that realism is not the ‘official’ theory of Australian constitutional law — which is why, for example, judges do not overrule prospectively only[99] — and that the state action theory would accordingly be inconsistent with other doctrines of Australian constitutional law were it to be adopted. On the view adopted here, it is not surprising that, to the extent that an incomplete theory such as legal realism is the basis of the state action doctrine, it produces a theory of the relationship between the common law and the Constitution which is theoretically unsustainable and leads to odd results.

No alteration of the ‘state action’ theory can remove its defects of principle, which go to the very root of its assumptions.[100] It must be abandoned, except

perhaps in the United States, where the Supreme Court has little choice but to follow it owing to its jurisdictional limitations. Certainly, it should not be followed in Australia and the High Court was right to reject this aspect of Theophanous in Lange.

[*] BA (Hons), LLB (Hons) (Adel), LLM (Marburg), Doktor der Rechte (Marburg), Graduate Certificate in Legal Practice; Barrister and Solicitor of the Supreme Court of South Australia; Lecturer, Law School, University of Adelaide. The author gratefully acknowledges the assistance of The University of Adelaide’s Small Research Grants Scheme in the writing of this article. The author is also grateful for the comments made by Professor Michael Detmold on a draft of this article (although, needless to say, any deficiencies remain the author’s responsibility) and for the assistance of Mr Nicolas Rothwell. Thanks are also due to the anonymous referees for their detailed and very helpful comments and to the editorial staff of the Melbourne University Law Review for all their efforts. The author’s research was greatly assisted while he was in Germany by Frau Wilhelm and her staff at the guesthouse of the Humboldt-Universität zu Berlin, Germany, whom the author warmly and affectionately thanks.

[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, 406–17.

[2] [1997] HCA 25; (1997) 189 CLR 520 (‘Lange’).

[3] [1994] HCA 46; (1994) 182 CLR 104 (‘Theophanous’).

[4] Stone, above n 1, 403.

[5] Ibid 410.

[6] The leading case is Shelley v Kramer[1948] USSC 63; , 334 US 1 (1948), which is discussed in below Part VII. For further references, see Stone, above n 1, 415.

[7] Stone, above n 1, 417.

[8] 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, 78. Since that article was written, the High Court of Australia has handed down its decision in Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 187 ALR 1. This decision makes it absolutely clear that the decision in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 altering the common law of Australia does not depend entirely, or even principally, on directly applicable provisions of the Constitution, as a similar change has now been made in the international choice of law context, in which the Constitution does not even arguably provide any ready-made rule.

[9] Taylor, ‘The Effect of the Constitution on the Common Law’, above n 8.

[10] [2000] HCA 36; (2000) 203 CLR 503.

[11] [1997] HCA 25; (1997) 189 CLR 520, 566.

[12] Stone, above n 1, 413–4.

[13] [1997] HCA 25; (1997) 189 CLR 520, 565.

[14] ‘[K]eine bürgerlich-rechtliche Vorschrift darf in Widerspruch zu ihm stehen’ (‘No civil-law rule can contradict it’, ‘it’ being the value system of the German Constitution): (1958) 7 BVerfGE 198, 205. For a more detailed comparison, see Greg Taylor, ‘Public Law, Private Rights: A Comparative View of the Theory behind Recent Changes in Defamation Law to Make It Reflect Constitutional Values’ (2000) 11 Public Law Review 274, 283–90.

[15] Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1, 60–1.

[16] Chief Justice Beverley McLachlin, ‘Bills of Rights in Common Law Countries’ (2002) 51 International and Comparative Law Quarterly 197, 199–203.

[17] Venables v News Group Newspapers Ltd [2001] Fam 430, 472; see also at 442, 445–7. In Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 200, 203–4 the House of Lords refused to impose a rule of defamation law based on the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952) and decisions of the European Court of Human Rights. Instead, the House of Lords developed the common law in response to these stimuli. The author considers the English debate in more detail in ‘The Horizontal Effect of Human Rights Provisions, the German Model and Its Applicability to Common Law Jurisdictions’ (2002) King’s College Law Journal (forthcoming). See also Taylor, ‘The Effect of the Constitution on the Common Law’, above n 8, 77 fn 50.

[18] [1994] HCA 46; (1994) 182 CLR 104, 140 (Mason CJ, Toohey and Gaudron JJ).

[19] [1997] HCA 25; (1997) 189 CLR 520, 566, 570–2.

[20] This phrase derives from Toogood v Spyring [1834] EngR 363; (1834) 1 Cr M & R 181, 193; [1834] EngR 363; 149 ER 1044, 1050.

[21] This was correctly perceived by Bongiorno J in Popovic v Herald & Weekly Times Ltd [2002] VSC 174 (Unreported, Bongiorno J, 21 May 2002) [11].

[22] See below n 72 and accompanying text.

[23] Amendment via a constitutional referendum (Constitution s 128) is possible, but in practice would be very difficult to achieve, as well as very expensive and time consuming.

[24] Dr Stone shows an appreciation of the distinction made here: above n 1, 409.

[25] See, eg, Lange [1997] HCA 25; (1997) 189 CLR 520, 560; Stone, above n 1, 403.

[26] This is the term more generally used in Lange. See, eg[1997] HCA 25; , (1997) 189 CLR 520, 563.

[27] Cf Australian Broadcasting Corporation v Lenah Game Meats (2001) 185 ALR 1, 56 (Kirby J).

[28] See Leslie Zines, The High Court and the Constitution (4th ed, 1997) 313–17.

[29] This is particularly so in the non-code States of New South Wales, Victoria and South Australia, although of course case law and common law principles may also be relevant in other jurisdictions with criminal codes.

[30] This obligation on the state is well expressed by the Common Benefits Clause in the Constitution of the State of Vermont art 1, as considered in the interesting recent case of Baker v Vermont, 744 A 2d 864 (1999).

[31] This error has been the subject of some discussion in Germany. See, eg, (1986) 73 BVerfGE 261, 269; Claus-Wilhelm Canaris, ‘Grundrechte und Privatrecht’ (1984) 184 Archiv für die civilistische Praxis 184, 201, 211, 222; Claus-Wilhelm Canaris, ‘Grundrechtswirkung und Verhältnismäßigkeitsprinzip in der richterlichen Anwendung und Fortbildung des Privatrechts’ [1989] Juristische Schulung 161; Host Dreier, ‘Subjektiv-rechtliche und objektiv-rechtliche Grundrechtsgehalte’ [1994] Jura 505, 509; Georg Hermes, ‘Grundrechtsschutz durch Privatrecht auf neuer Grundlage?’ (1990) Neue Juristische Wochenschrift 1764, 1767.

[32] Clearly there can be difficulties, as Dr Stone points out, in deciding in borderline cases whether a particular party represents the state or not: Stone, above n 1, 414. For a recent English analysis, see Dawn Oliver, ‘The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act[2000] Public Law 476. However, case law will solve these difficulties over time (as is happening in Canada: see, eg, McKinney v University of Guelph [1990] 3 SCR 229; P Macklem et al, Canadian Constitutional Law (2nd ed, 1997) 1133–6). The ‘state action’ theory, by making everything state action, admittedly does away with the problem, but only at the cost, as we shall see, of creating a much worse problem and elevating all actions to state actions, which is untenable. It is interesting to note that, in Lange, the defendant was a statutory corporation, but the judgments did not suggest anywhere that it was part of the government and nor, to my knowledge, has this been questioned elsewhere. It may be, then, that in the general run of cases, this issue will not cause significant difficulties.

[33] Cf McLachlin, above n 16, 199.

[34] [1964] USSC 40; 376 US 254 (1964) (‘Sullivan’).

[35] [1986] HCA 11; (1986) 160 CLR 171, 201 (Brennan J), 207 (Deane J), 219 (Dawson J). See further Brownlee v The Queen [2001] HCA 36; (2001) 180 ALR 301, 308 (Gleeson CJ and McHugh J), 312 (Gaudron, Gummow and Hayne JJ).

[36] Stone, above n 1, 378.

[37] See Zines, above n 28, chs 6–7, for a summary of the development of the law in this area and the final rejection of the ‘individual right’ theory of s 92.

[38] The primacy of the text has been reasserted by Lange [1997] HCA 25; (1997) 189 CLR 520, 566–8. Even in the early to mid 1990s, the Court could hardly be said to have adopted the full, non-textualist gospel. The current position is well summarised by Stone, above n 1, 395.

[39] Except, perhaps, the even more unconvincing attempts to derive a choice of law rule from s 118 or other provisions of the Constitution: see Taylor, ‘The Effect of the Constitution on the Common Law’, above n 8, 69–70 and the references there cited.

[40] Theophanous [1994] HCA 46; (1994) 182 CLR 104, 137 (Mason CJ, Toohey and Gaudron JJ).

[41] Ibid.

[42] Cf the distinction between rights and values drawn by the Supreme Court of Canada in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130, 1170–1.

[43] This phrase is taken from the German Federal Constitutional Court’s Lüth judgment (‘Richtlinien und Impulse’): (1958) 7 BVerfGE 198, 205. This seems a very apt description of the High Court of Australia’s position adopted almost 40 years later in Lange. See also ibid 1170–1.

[44] Stone, above n 1, 411.

[45] It sometimes appears that the past is seen in a rather one-dimensional manner, in this respect and in others. Thus, in Wason v Walter (1868) LR 4 QB 73, 93, a defamation case, it was stated that:

Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied.

Is this statement, which reads like an anticipatory justification of the alterations to the common law carried out in Lange, an example of pre-realist realism?

[46] Of course, it could be responded that one of the Constitution’s creatures is present when the parties are in court — namely, the court itself. This point will be taken up in the next section.

[47] Stone, above n 1, 407.

[48] Zines, above n 28, 172. Note, however, the qualifications to this statement expressed at 196–9.

[49] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice: A Collection of Addresses by Judges and Jurists to the Holdsworth Club of the University of Birmingham (1978) 263, 279.

[50] For a recent decision illustrating this in the Lange context, see Popovic v Herald & Weekly Times Ltd [2002] VSC 174 (Unreported, Bongiorno J, 21 May 2002) [30]–[33].

[51] This consequence of the state action theory is set out particularly clearly in the dissenting judgment of Kriegler J in du Plessis v de Klerk [1996] 3 SALR 850, 915. On this judgment, see Murray Hunt, ‘The Horizontal Effect of the Human Rights Act[1998] Public Law 423, 435 fn 32, in which the author does not seem to grasp that the logical consequence of what Kriegler J is suggesting is merely a particularly extreme form of the ‘state action’ theory.

[52] Retail, Wholesale & Department Store Union Ltd v Dolphin Delivery [1986] 2 SCR 573, 600.

[53] Stone, above n 1, 410–11.

[54] Stone, above n 1, 410.

[55] [1997] HCA 25; (1997) 189 CLR 520, 564.

[56] H L A Hart, The Concept of Law (2nd ed, 1998) 27–8.

[57] The most obvious facility which the law might provide in this general area is a right of reply (cf Miami Herald Publishing Co v Tornillo[1974] USSC 147; , 418 US 241 (1974); Eric Barendt, ‘Free Speech in Australia: A Comparative Perspective’ [1994] SydLawRw 13; (1994) 16 Sydney Law Review 149, 153–7). However, this raises very different issues from those considered in Lange, and it is not apparent that such legislation would necessarily infringe the doctrine laid down in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, a proposition with which Dr Stone may well agree: see above n 1, 399.

[58] Stone, above n 1, 415.

[59] As Dr Stone appears to recognise: ibid 416.

[60] Jean-Jacques Rousseau, ‘Discourse on Political Economy’ in Donald A Cress (ed), Basic Political Writings of Jean-Jacques Rousseau (Donald A Cress trans, 1988 ed) 111, 112.

[61] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[62] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, 503–4 (Brennan CJ, McHugh, Gummow and Kirby JJ), 515 (Dawson, Toohey and Gaudron JJ); cf Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 104–5 (Callinan J).

[63] Stone, above n 1, 408.

[64] There might be some difficulty in working out an appropriate remedy, but that need not detain us here. If the sheriff’s action is executive rather than judicial, as I think it is, presumably mandamus would lie.

[65] See Stone, above n 1, 408 fn 183.

[66] [1948] USSC 63; 334 US 1 (1948) (‘Shelley’).

[67] Stone, above n 1, 391–400.

[68] For the sake of the argument, the former availability of the action for criminal conversation at common law is ignored here and it is assumed that the common law contains no means of recompensing spouses for adultery. See Family Law Act 1975 (Cth) s 120 (and, for earlier provisions, colonial statutes such as the Matrimonial Causes Act 1899 (NSW) s 92 and Matrimonial Causes Act 1858 (SA) s 38). For an amusing account of the history of the law on this topic in England, see R F V Heuston and R A Buckley (eds), Salmond and Heuston on the Law of Torts (21st ed, 1996) 340–1.

[69] Stone, above n 1, 415–6.

[70] Consequently, the ‘state action’ theory cannot be rescued by grafting a concept of permissible ‘reasonable regulation’ onto it comparable to the concept developed for legislation (see, eg, Lange [1997] HCA 25; (1997) 189 CLR 520, 561–2, 567) — because the basic assumption of the theory is wrong. The theory must be rejected, not amended. See below n 85.

[71] Points such as these are perhaps the chief reason why German scholars almost unanimously reject the equivalent of the ‘state action’ theory put forward in Germany by a small number of academics: see, eg, Robert Alexy, Theorie der Grundrechte (1986) 419; Claus-Wilhelm Canaris, Grundrechte und Privatrecht (1999) 40–1; Canaris, ‘Grundrechte und Privatrecht’, above n 31, 201, 230; Thomas Langner, Die Problematik der Geltung der Grundrechte zwischen Privaten (1998) 78; Jörg Neuner, Privatrecht und Sozialstaat (1999) 150; Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland (1988) vol III/1 1550–2. A more detailed consideration of German law, and many further references, may be found in Taylor, ‘The Horizontal Effect of Human Rights Provisions’, above n 17.

[72] Stone, above n 1, 414.

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

[74] Ibid 566, 573.

[75] See eg, Gutnick v Dow Jones & Co Inc [2001] VSCA 249 (Unreported, Buchanan JA and O’Bryan AJA, 21 September 2001).

[76] For another practical advantage resulting from the non-constitutional status of defamation law after Lange, see Popovic v Herald & Weekly Times Ltd [2002] VSC 174 (Unreported, Bongiorno J, 21 May 2002) [11]–[12]. Bongiorno J found that as the matter under consideration involved the application of common law principles, and was not a matter arising under the Constitution, it was not necessary for notice to be given to Commonwealth and State Attorneys-General under s 78B(1) of the Judiciary Act 1903 (Cth).

[77] This is both because the law as laid down by the Supreme Court of the United States requires no standard of care on the part of the media (Ocala Star-Banner Co v Damron[1971] USSC 33; , 401 US 295 (1971)) and because the media is subject to unduly expensive and time-consuming discovery as the plaintiff is required to prove that the media knew of the falsity of their statements (Herbert v Lando[1979] USSC 71; , 441 US 153 (1979)). See generally Michael Chesterman, ‘The Money or the Truth: Defamation Reform in Australia and the USA’ [1995] UNSWLawJl 16; (1995) 18 University of New South Wales Law Journal 300; Nadine Strossen, ‘A Defence of the Aspirations — But Not the Achievements — of the US Rules Limiting Defamation Actions by Public Officials or Public Figures’ [1986] MelbULawRw 1; (1986) 15 Melbourne University Law Review 419.

[78] Points such as these have, of course, been made by judges themselves: eg, DPP v Withers [1975] AC 842, 863, 872 (Lord Simon); Malone v Metropolitan Police Commissioner [1979] Ch 344, 373 (Megarry V-C); State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617, 633–4 (Mason J); Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 704 (Kirby P),

731–3 (Mahoney J); Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313, 386, 403 (Kirby J).

[79] [1994] HCA 46; (1994) 182 CLR 104, 140.

[80] Bruce Burke and Paul Svilans, ‘Comments on Theophanous and Stephens(1994) 26 Gazette of Law and Journalism 12, 12; Michael Gillooly, The Law of Defamation in Australia and New Zealand (1998) 192; Bill Groves, ‘A Constrained Defence’ (1997) 44 Gazette of Law and Journalism 3, 4; New South Wales Law Reform Commission, Defamation, Report No 75 (1995) 161–2; Jenny Mullaly, ‘Lange v ABC: Defamation Reappraised’ (1997) 134 Communications Update 16, 17; Henric Nicholas, ‘Comments on Theophanous and Stephens(1994) 26 Gazette of Law and Journalism 10, 10; Steven Rares, ‘Free Speech and the Law’ (1995) 13 Australian Bar Review 209, 216–17; Robert Todd, ‘Comments on Theophanous and Stephens(1994) 26 Gazette of Law and Journalism 11, 11–12; Sally Walker, ‘Lange v ABC: The High Court Rethinks the “Constitutionalisation” of Defamation Law’ (1998) 6 Torts Law Journal 9, 12–13.

[81] This was because Deane J in Theophanous agreed with Mason CJ, Toohey and Gaudron JJ so as to make a majority order possible. In fact, he disagreed with the majority on an important point, that is, the scope of the freedom: [1994] HCA 46; (1994) 182 CLR 104, 188. See also Lange [1997] HCA 25; (1997) 189 CLR 520, 554–6.

[82] See above n 77.

[83] Nicolas Rothwell, ‘At the Dawn of a Brand New Day’, The Weekend Australian (Sydney),

5–6 May 2001, 23.

[84] Native Title Act 1993 (Cth). Of course, no judgment is made here on the merits of any legislation adopted to deal with questions of native title. It is sufficient to note that governments of both political persuasions have felt the need to finetune by legislation the common law laid down by the judges.

[85] Stone, above n 1, 415–16. It might be added that Dr Stone’s theory could perhaps be helped by the adoption of some sort of ‘balancing’ test permitting property owners to prevent the compulsory discussion of politics on their property. Following Lange, this measure would have to be

reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ...

Lange [1997] HCA 25; (1997) 189 CLR 520, 567. However, Dr Stone does not make such an argument, preferring, rightly, to concentrate on the unacceptability of the starting point of the ‘state action’ theory to which reference is made in the text and attempting to eliminate that untenable theoretical leap.

[86] See above n 70.

[87] Stone, above n 1, 416 (emphasis in original).

[88] This criticism of the US version of the ‘state action’ doctrine is well expressed by the German scholar Thomas Giegerich in Privatwirkung der Grundrechte in den USA: Die State Action Doctrine des US Supreme Court und die Bürgerrechtsgesetzgebung des Bundes (1992) ch 22.

[89] Stone, above n 1, 416.

[90] See, eg, Lange [1997] HCA 25; (1997) 189 CLR 520, 570 for two possible alternatives. Who is to say which of these is the common law rule?

[91] See above n 20.

[92] Stone, above n 1, 415.

[93] Ibid 416.

[94] Ibid 411.

[95] Ibid 411–12. See Lange [1997] HCA 25; (1997) 189 CLR 520, 563.

[96] Erie Railroad v Tompkins, [1938] USSC 94; 304 US 64 (1937). ‘Virtually’ is added because of exceptions to this point, such as the diversity jurisdiction of the Court, which do not affect in any way the point made in the text. I am, however, grateful to Dr Stone for pointing out, on an earlier occasion, the necessity for this qualification.

[97] There were in fact some other options at least arguably open to the Supreme Court to deal with the factual situation in Sullivan (see, eg, Chesterman, above n 77, 312–16; Richard Epstein, ‘Was New York Times v Sullivan Wrong?’ (1986) 53 University of Chicago Law Review 782, 792–5), but none of them is of relevance for the topic considered here.

[98] See above n 32.

[99] See above n 62.

[100] See above n 85.

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