Common Law in Statute

The parliamentary choice to incorporate a common law or general law concept in statute has important interpretive consequences. This article considers some of those consequences. It does so in light of a recent trio of High Court cases which examined the ‘employment relationship’ at common law in the context of the Fair Work Act 2009 (Cth). Of particular interest is why the relevant statutory context (including its scope and purpose) has no impact on the meaning and development of the relevant concept. I call this interpretive proposition the orthodox judicial position. In terms of the three recent cases, it is suggested that there was a clear statutory interpretation justification for the orthodox judicial position. But the core argument made is that there is also a constitutional justification for it and this now quite common but complex interaction between common law and statute.