In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that unless Parliament makes unmistakably clear its intention to curtail or abrogate a common law right, freedom or principle, the courts will not construe a statute as having that operation. As Lord Hoffmann famously observed, this “means that Parliament must squarely confront what it is doing and accept the political cost”.
The principle of legality is now central to the operation of Australian and New Zealand public law. Yet its content, methodology and scope remain elusive and has never been examined in detail. This book fills that gap by drawing together leading judges, practitioners and scholars to explore a range of interesting issues and challenges for the application of the principle of legality and its future trajectory: How does the principle operate? Which rights and freedoms fall within its scope and why? What is its relationship to the (so-called) common law bill of rights? Has proportionality a role to play in its application? How, if at all, does it differ from the presumption with international law? And in the construction of statutes does the principle serve to fulfil or frustrate the will of Parliament?
Foreword by Robert French AC
Acknowledgments
About the Contributors
Table of Cases
Table of Statutes
PART I – DOCTRINE AND THEORY
1. The Rationales for the Principle of Legality – Brendan Lim
2. The Principle of Legality and “The General System of Law” – Stephen McLeish and Olaf Ciolek
3. The Principle of Legality: Constitutional Innovation – Philip A Joseph
4. The Principle of Legality and Legislative Intention – Jeffrey Goldsworthy
PART II – ISSUES AND CONTROVERSIES
5. The Principle of Legality – An Unhelpful Label? – John Basten
6. Rights-Promoting Statutory Interpretive Obligations and the “Principle” of Legality – Kris Gledhill
7. The Principle of Legality and Proportionality in Australian Law – Dan Meagher
8. Common Law Rights have Justified Limits: Refining the “Principle of Legality” – Hanna Wilberg
PART III – SUBSTANTIVE LAW
9. The Principle of Legality and Administrative Discretion: A New Name for an Old Approach? – Matthew Groves
10. Legality and Lenity – Jeremy Gans
11. The Treaty and Human Rights in New Zealand Law : Will the Common Law Presumptions Help or Hinder? – Kirsty Gover
12. Confluence or Divergence? The Principle of Legality and the Presumption of Consistency with International Law – Wendy Lacey
PART IV – FINAL OBSERVATIONS
13. The Principle of Legality in Australian and New Zealand Law – Final Observations – Matthew Groves and Dan Meagher
Index
Ian Freckelton QC, InPrint, Law Institute Journal Victoria, November 2017This collection is the product of a 2015 Melbourne conference on “The Principle of Legality in Australia and New Zealand”. Conventionally, arising from the 1908 decision of the High Court in Potter v Minehan it is regarded as “improbable” that the legislature has intended to “overthrow fundamental principles, infringe rights or depart from the general system of law” if it has not expressed such an intention unambiguously. However, many issues radiate out from such a sentiment including how courts should approach the apparent expression of statutory intention.
Another issue is whether the principle is confined in its application to legislation which may affect rights. Arguably the principle now extends to statutory alteration to the common law generally without the need to confine its ambit to an impact on fundamental or specific rights, freedoms or particular principles. However, in the 2015 High Court decision of ICAC v Cunneen, Gageler J took a different view, denouncing “unfocused invocation” of the principle and raising the concern that such usage “can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy”.
Such division of approach sets the scene for this collection of essays which grapples with these dilemmas of statutory interpretation.
This well edited collection is of uniformly high quality and flushes out the relevant issues of contemporary dilemmas in respect of the status and scope of the principle of legality. It is a fine contribution to Australian and New Zealand jurisprudence on this fundamental topic.
