The Principle of Legality and a Common Law Bill of Rights - Clear Statement Rules Head Down Under

Abstract

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that at its most critical moments was (and continues to be) informed by American constitutional law design and statutory interpretation principles. On one level that is no surprise when ‘it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.’ But what is extraordinary is that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, been decisive in this regard. As Sir Anthony Mason - one of the leading figures central to the new judicial rights consciousness in Australia - noted, portentously, in 1995 ‘[j]ust as the courts can protect common law rights by applying presumptive rules of construction, so they can protect fundamental rights, even in the absence of constitutional entrenchment and statutory backing.’ And so it has proven to be. The Australian High Court has transformed an old interpretive canon (with American roots) into a strong Australian species of clear statement rule for fundamental rights called the principle of legality. It has done so to fill the lacuna in formal rights protection in Australia and to temper (if not outright resist) increasingly common legislative attempts to eradicate fundamental rights. The Court has used the application of the principle of legality to construct (and robustly protect from legislative encroachment) a quasi-constitutional common law bill of rights. In order to normatively justify these developments the High Court has turned towards the inherently contested principles of the Australian Constitution to anchor the principle of legality and the interpretive process more generally. This has, controversially, occurred as part of a foundational shift in judicial doctrine and practice that considers legislative intention to be the product not the lodestar of statutory interpretation.