The Principle of Legality is an important legal doctrine in Australian public law.
It is an interpretive presumption by the judiciary that Australia's various parliaments do not intend to curtail or abrogate fundamental rights and freedoms when enacting legislation. Due to this, parliaments are effectively required to enact legislation using express and unambiguous language if they wish to enact legislation negatively affecting any rights, liberties, or freedoms that the courts regard as being fundamental.
In recent decades the rule has grown in importance to Australian legal practice. It is has been said that the doctrine as it is understood and articulated in its modern form 'has transformed a loose collection of rebuttable interpretive presumptions into a quasi-constitutional common law bill of rights'.
Other jurisdictions, including the UK and New Zealand, also apply the principle of legality doctrine; albeit with its application and reasoning differing according to their respective jurisprudence. The United States has a similar doctrine named the Clear statement rule.
Background
The doctrine owes its origins in part to the common law tradition that Australia inherited from the United Kingdom. Over centuries, jurisprudence emerged as a means to reconcile the principles of parliamentary sovereignty, and those of established common law rights. Decisions such as Entick v Carrington established a tradition whereby rights (usually relating to property) would be protected from interference by the executive except as according to law.
Throughout the 20th century and beyond, the Australian High Court articulated these principles when interpreting statutes, including notably in the decisions Coco v The Queen, and Electrolux v AWU. In Coco, the majority stated:The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.
The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights
- Mason CJ, Brennan, Gaudron and McHugh JJ, at paragraph 10Chief Justice Gleeson's statement of the doctrine in Electrolux has been repeatedly endorsed by the courts. He said:'(the principle is) not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law'Academics have described the rule as having 'hardened into a strong clear statement rule that is applied when legislation engages common law rights and freedoms'. This may be contrasted with its past articulations, like that found in Potter v Minahan (1908), which instead tended to rely on judicial incredulousness at parliament's intentions; as the normative justification for reading down statutes. The shift in justification for the rule 'over the course of the 20th century' has been noted by legal commentators.
Application
When interpreting legislation that appears to infringe upon fundamental rights or liberties, Australian courts rely on the principle of legality to guide their interpretation. It operates as a presumption that Parliament did not intend to restrict or abrogate these rights unless there is clear and unambiguous evidence to the contrary. Courts will construe ambiguous provisions narrowly if that interpretation is better aligned with the fundamental rights.
The established fundamental rights relevant to the principle of legality include:
Freedom of speech
Right to silence
Privilege against self-incrimination (aka. the 'companion rule') Right to access the courts Right to legal representation Right to procedural fairness Freedom from arbitrary detention