The Constitution and the Common Law Again

15 Pages Posted: 16 Jul 2020

See all articles by Greg Taylor

Greg Taylor

University of Adelaide - School of Law; University of Marburg; RMIT University - Graduate School of Business and Law

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Date Written: July 7, 2020

Abstract

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

Taylor, Greg, The Constitution and the Common Law Again (July 7, 2020). Adelaide Law Review, Vol. 40, No. 2, 2019, U. of Adelaide Law Research Paper No. 2020-101, Available at SSRN: https://ssrn.com/abstract=3644741

Greg Taylor (Contact Author)

University of Adelaide - School of Law ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

University of Marburg ( email )

Universitätsstrasse 24
Marburg, D-35032
Germany

RMIT University - Graduate School of Business and Law ( email )

Melbourne
Australia

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