Interpreting Pandemic Powers: Qualifications to the Principle of Legality

Abstract

In this paper I argue against using the so-called 'principle of legality' to read down statutory powers to avoid infringing on liberty, in circumstances where the limit on liberty does not amount to an established common law wrong and is justified as a proportionate means for achieving a legitimate objective. I consider the arguments for and against following this approach in relation to emergency powers, and suggest that the strengths of the arguments for and against need to be balanced in the particular circumstances.

Keywords: administrative law, statutory interpretation, fundamental rights, torts, common law