The Principle of Legality: Protecting Statutory Rights from Statutory Infringement?
(2019) 41(1) Sydney Law Review 73
32 Pages Posted: 24 May 2019
Date Written: August 13, 2018
The principle of legality has been described as a presumption that Parliament does not intend to abrogate or curtail fundamental common law rights, freedoms, immunities and principles (collectively ‘fundamental common law protections’), and depart from the general system of law, except by clear and unambiguous language. It is a common law interpretive principle that protects fundamental common law protections from infringing statutes. Nevertheless, a question arises as to whether the principle can and should be extended beyond the realms of the common law, to protect certain statutory rights in Australia. This is yet to be considered at length in academic commentary and is presently unresolved. Such a development would exponentially increase the principle’s potential scope of application. This article seeks to examine comprehensively the issue by reference to the principle of legality’s origins and rationale, the concept of parliamentary sovereignty and doctrine of implied repeal, and analogous instances where statutory rights are protected through interpretation. This article argues that, on balance, the principle of legality should not be utilised to protect statutory rights from statutory infringement.
Keywords: Principle of legality, interpretive principle, common law, applicability to statutory rights, legislative intention, rationale, parliamentary sovereignty, doctrine of implied repeal, constitutional statutes, Charter of Human Rights and Responsibilities Act 2006 (Vic), related presumptions
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