Why the common law should be only indirectly affected by constitutional guarantees: a comment on Stone

Abstract

Recenty, 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.