The Constitution and the Common Law Again
15 Pages Posted: 16 Jul 2020
Date Written: July 7, 2020
In what way do rights guarantees in the Australian Constitution, most notably the implied freedom of political communication on governmental matters, effect change in the common law? Recently Jeffrey Goldsworthy has argued that ‘[a] comprehensive theory of the subordination of the common law to the Constitution has yet to be clearly articulated’. I have pointed to a modified version of the method followed in Canada and Germany — the latter being ‘perhaps the jurisdiction with the most sophisticated and developed doctrine of horizontal effect’ of basic rights on the private law — as both most suitable to the Australian context and in tune with what the High Court of Australia has actually held, but Goldsworthy finds this theory ‘difficult to understand’. Unfortunately he did not attempt to enrich his understanding by reference to explanations offered by anyone besides me, for example in other jurisdictions that actually apply the method advocated; there is a large international literature and vigorous debate on this topic. Cheryl Saunders has also declared that the question of how to characterise the relationship between the Constitution and the common law remains unanswered’. A renewed attempt is therefore in order.
Keywords: Australian Constitution,Jeffrey Goldsworthy
JEL Classification: K10
Suggested Citation: Suggested Citation