The Common Law Principle of Legality and Secondary Legislation

39 Pages Posted: 10 Aug 2016 Last revised: 6 Dec 2016

Date Written: August 4, 2016

Abstract

The principle of legality is a common law interpretive rule that requires legislation is not interpreted as removing or restricting fundamental rights unless unmistakably clear words are used to demonstrate that intention. In many cases where the principle of legality has been deployed have involved secondary legislation, variously described as subordinate legislation, regulations or delegated legislation. Secondary legislation is made under statutory power and thus engages the principle of legality in a more subtle manner than cases where only legislation is involved. Where secondary legislation may infringe fundamental rights, the key question is not whether it is expressed in suitably clear terms but instead whether the statutory power under which it was made was expressed in terms sufficiently clear to authorise the making of secondary legislation that removes or restricts basic rights. This article examines how those issues should be applied to secondary legislation and argues that the principle of legality makes the possibility of secondary legislation removing or restricting basic rights an unlikely one.

Keywords: principle of legality, secondary legislation, fundamental rights

Suggested Citation

Meagher, Dan R. and Groves, Matthew, The Common Law Principle of Legality and Secondary Legislation (August 4, 2016). University of New South Wales Law Journal, Vol. 39, No. 2, 2016, Deakin Law School Research Paper No. 16-30, Available at SSRN: https://ssrn.com/abstract=2818850

Dan R. Meagher (Contact Author)

Deakin Law School ( email )

Geelong, Victoria 3228
Australia

HOME PAGE: http://https://www.deakin.edu.au/about-deakin/people/dan-meagher

Matthew Groves

La Trobe Law School ( email )

La Trobe University
Bundoora, VIC 3083 3142
Australia

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