The Principle of Legality: Protecting Statutory Rights from Statutory Infringement?

Abstract

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.