Conceptualising the Principle(s) of Legality

Abstract

The principle of legality is a principle of statutory interpretation that is of increasing importance in common law jurisdictions in cases where statute affects basic rights or other common law norms. This article unpacks elements of the principle of legality, some of which are not apparent at the surface level of doctrine, and in so doing teases out key controversies raised by the principle. The article examines the triggers that enliven the principle of legality, and possible rationales for the principle. The article’s core claim is that there is not one principle of legality, but rather several different variants are evident in the case law. The article identifies and distinguishes three different conceptions: the classic principle of legality, the augmented principle of legality and the proactive principle of legality. The article’s focus is English and Australian law.

Keywords: principle of legality, statutory interpretation, statutory construction, human rights, administrative law, judicial review, England, Australia

JEL Classification: K1, K23, K42