Similar issues arise in the case of crimes that cross State borders, such as persons in State A who suffer pollution or other damage caused by State B, if the legislature of State B permits harassment. In the United States, there are a number of such cases in which the Supreme Court has applied what is known as «interstate common law». In this case, of course, State B (or its attorney general) is not suing for government violation, but as parens patria. [68] The Supreme Court applies its own law, taking into account the concept of equality of states, and has created a right created by judges. This proposal, if followed, would subject all the powers of the Commonwealth (and perhaps the state) to the fundamental rights of the common law in the absence of clear evidence to the contrary. That would amount to an implied bill of rights, as Justice Toohey said, the content of which would emerge over time. As Justice Toohey put it, «the courts would, over time, articulate the content of the power constraints that flow from the fundamental freedoms of the common law.» [83] The admission rules have indeed also been interpreted as covering developments made after the date of receipt from the common law England. Gibbs J.`s position was as follows: [8] For detailed reports on the reception of the common law, see William Loutit Morison, The System of Law and Courts Governing New South Wales (2nd ed., 1984), c. 7; Alex C Castles, An Australian Legal History (1982) ch 17; Alex C Castles, «The Reception and Status of English Law in Australia» [1963] AdelLawRw 1; (1963) 2 Adelaide Law Review 1. Like the common law principle, section 9 contains a principle of legality by requiring that all restrictions be expressly provided for by law. Australia differs from common law countries in that it does not have a constitutional charter or bill of rights. A constitution is a set of rules that determine how an organization or country is run (governed), how the organization or country decides who will have power, how that power can be exercised. The constitution of a country establishes the system of government of that country.
The full title of the Australian Constitution is the Commonwealth of Australia Constitution Act 1900. The presumption is not merely a reasonable guide to what a parliament in a liberal democracy is likely to have intended; This is a working hypothesis, the existence of which is known to both Parliament and the courts, and on the basis of which the language of the law is interpreted. Assumption is one aspect of the rule of law. However, it is clear that the common law was relevant to certain Commonwealth matters, such as the scope of executive power and the application of the prerogatives of the Commonwealth of the Crown. Clark treated these questions as determining the meaning of the Constitution with reference to external things or events. In that sense, the rules of the common law were implicit in the Constitution. «But in such a case, only the Constitution prescribes the law, and the whole law is contained in the language in which it is prescribed.» [25] However, common law courts have the power to protect human rights principles, including the rule of law, to a large extent, unless the law expressly overrides that power. For state courts, however, the High Court`s instructions to follow the House of Lords were as binding as any precedent rule. As noted above, this is also how many perceived Lord Dunedin`s statement in Robins. The idea of separate common laws did not correspond to social or legal reality and never corresponded to reality. To invoke the exception to the inapplicability of the reception of English common law as the dominant factor in the characterization of the common law in Australia is to focus on an insignificant (and perhaps non-existent) area of law at the expense of decades of judicial practice and doctrinal exposition. Contrary to popular maxim, it treats local exceptions (if any) as destroying the rule.
The common law must necessarily conform to the Constitution. The development of common law in Australia cannot run counter to constitutional imperatives. The common law and the requirements of the Constitution must not conflict with each other. [98] In an extracurious paper, Toohey J. suggested that the rule of interpretation of law to protect common law rights could be extended to the interpretation of constitutional powers as a whole. As already mentioned, the applicable law will often be the law that applies to individuals, such as the law of contract, the place of the immovable property or the place where the tort was committed, or whatever the corresponding common law conflict-of-laws rule. However, Harrison Moore raised the issue of the state legislature whose law would otherwise be enforceable by passing a law repealing the contract or authorizing the tort. Would the High Court, in its original jurisdiction, be required to find that the enactment by the legislature of the respondent State was decisive in the matter, either on the basis of general principles or under Articles 79 or 80? In the case of agreements (i.e. justiciable and not «political»), this seems to be an unfair result, especially if the agreement has been approved and approved by both parliaments.
Harrison Moore said:[52] Priestley, above No. 1, 232.