The Constitutional Principle of Legality

Abstract

The principle of legality is thought to have begun in Australia as a democratic principle. It did not. It began here as a liberal, constitutional principle. The implications for the Constitution are significant. In 19^th century Britain, and in the High Court of Australia in the decades after Australia’s Federation, the principle was conceived as an incident of the common law’s protection of the ‘liberty of the subject’. The ‘liberty of the subject’ was a constitutional concept. It denoted the frontiers of individual freedom past which state action — including democratically enacted legislation — would offend British constitutional principles of justice. To remember this is to remember what the principle of legality is. It is, most plausibly, an expression of constitutional principles of justice.