1.19 Subject to the Constitution, the Commonwealth Parliament—sovereign in Australia—generally has the power to make laws that encroach on common law rights, freedoms and privileges. Constraints on Parliament may be largely political, not legal.
1.20 Some argue that legislative powers should be limited, for example by enshrining in the Australian Constitution a bill of rights. Others will argue that it is more democratic for elected parliaments to determine the right balance between competing rights and freedoms. Nevertheless, some legal protection from statutory encroachment is given to rights and freedoms by (1) the Australian Constitution, (2) the ‘principle of legality’, and (3) international law.
1.21 The Australian Constitution expressly protects a handful of rights and has been found to contain an implied right to political communication. The rights expressly protected by the Constitution are:
- the right to just terms if the Commonwealth compulsorily acquires property—s 51(xxxi);
- the right to trial by jury on indictment for an offence against any law of the Commonwealth—s 80;
- freedom of trade, commerce and intercourse within the Commonwealth—s 92;
- freedom of religion—s 116; and
- the right not to be subject to discrimination on the basis of the state in which one lives—s 117.
1.22 Further, the High Court found that freedom of political communication was implied in the Constitution. This limits the legislative power of the Commonwealth to make laws that interfere with political communication, but does not protect speech more broadly.
1.23 However, these are only a small number of rights and freedoms. The Australian Constitution does not expressly or impliedly protect most of the rights, freedoms and privileges listed in the ALRC’s Terms of Reference. One reason the Constitution does not expressly protect most civil rights, Professor Helen Irving suggests in her book, To Constitute a Nation, was the ‘general reserve about directly including policy in the Constitution, instead of powers subsequently to enact policy’.
Specifically, the British legal tradition (in which in fact the ideas of freedom and ‘fair play’, far from being overlooked, were thought central) largely relied on the common law, rather than statute or constitutional provision to define and protect individual rights and liberties. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage (as it is now perceived) of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes.
The principle of legality
1.24 The principle of legality is a rule of statutory interpretation that gives some protection to certain traditional rights and freedoms. James Spigelman has said that the ‘protection which the common law affords to the preservation of fundamental rights is, to a very substantial degree, secreted within the law of statutory interpretation’.
1.25 There are a few formulations of the principle of legality, with relatively minor variations. In Re Bolton; Ex parte Beane (1987), Brennan J set out the principle in these terms:
Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.
1.26 In Attorney-General (SA) v Corporation of the City of Adelaide, Heydon J said:
The ‘principle of legality’ holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle there are many authorities, ancient and modern, Australian and non-Australian.
1.27 In Lee v New South Wales Crime Commission (2013), Gageler and Keane JJ said that the application of the principle is
not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values.
1.28 Perhaps the primary rationale for this principle of statutory construction was provided by Lord Hoffmann:
the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
1.29 The principle of legality is not new, and perhaps goes back ‘at least as far as Blackstone and Bentham’. Early Australian authority for the principle may be found in the 1908 High Court case, Potter v Minahan.
1.30 This Issues Paper highlights how the principle of legality has been used to protect, to some extent, the principles listed in the Terms of Reference. But there are many other rights and principles that the principle of legality has been found to protect. Close to 40 of these are listed in Chapter 19 of this paper.
1.31 However, it should be stressed that the principle provides only limited protection from statutory encroachment. It will be applied only where the parliamentary intention to encroach on a right is not clear. If the intention to encroach on the right is clear and unambiguous, then the statute will be interpreted to have its desired effect. Subject to the Constitution, Parliament can modify or extinguish common law rights. In Lee v New South Wales Crime Commission (2013), Gageler and Keane JJ said:
The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that ‘[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve’.
1.32 Chief Justice Robert French made a similar point in a 2012 speech:
The common law principle of legality has a significant role to play in the protection of rights and freedoms in contemporary society while operating consistently with the principle of parliamentary supremacy. It does not, however, authorise the courts to rewrite statutes in order to accord with fundamental human rights and freedoms.
1.33 Each chapter also sets out examples of international instruments that protect the relevant right or freedom. Most commonly cited is the ICCPR, to which Australia is a party. Such instruments provide some protection to rights and freedoms from statutory encroachment, but, like the principle of legality, generally only when a statute is unclear or ambiguous.
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.
1.34 However, even international instruments to which Australia is a party do not create binding domestic law in Australia. Nor do they abrogate the power of the Commonwealth Parliament to make laws that are inconsistent with the rights and freedoms set out in these instruments. In Dietrich v The Queen (1992), Mason CJ and McHugh J said:
Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.
1.35 In Minister for Immigration v B (2004), Kirby J said that the High Court ‘cannot invoke international law to override clear and valid provisions of Australian national law’.
Bills of rights
1.36 In many other countries, rights and freedoms are afforded some protection from statutory encroachment by bills of rights and human rights statutes. Each chapter of this Issues Paper cites relevant provisions from human rights statutes in the United Kingdom, Canada and New Zealand and from the Bill of Rights in the US Constitution.
1.37 The degree of protection offered by these statutes varies. The protection offered by a constitutionally entrenched bill of rights, such as that found in the US Constitution, is considerable, allowing the judiciary to declare laws invalid on the grounds that they are inconsistent with the bill of rights.
1.38 This may be contrasted with non-constitutional bills of rights, such as the Human Rights Act 1998 (UK), which do not give courts the power to strike down legislation. The powers conferred on UK courts by this statute are nevertheless considerable, and have been given a broad interpretation. Section 3(1) states: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. Section 4(2) also gives the courts a power to make a ‘declaration of incompatibility’.
‘Parliament can, if it chooses, legislate contrary to fundamental principles of human rights … The constraints upon its exercise by Parliament are ultimately political, not legal’: R v Secretary of State for the Home Department; Ex parte Simms  2 AC 115, 131 (Lord Hoffmann).
Australian Capital Television v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; Unions NSW v State of New South Wales (2013) 88 ALJR 227.
Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge University Press, 1999) 162.
However, the phrase ‘principle of legality’ is also used to refer to ‘a wider set of constitutional precepts requiring any government action to be undertaken only under positive authorisation’: Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melb. U. L. Rev. 372, 373. In this Issues Paper, the phrase is used to refer to the narrower point of statutory interpretation. Recent papers on the principle also include Dan Meagher, ‘The Common Law Principle of Legality in the Age of Human Rights’ (2011) 35 Melbourne University Law Review 449; James Spigelman, ‘The Common Law Bill of Rights’ (2008) 3 Statutory Interpretation and Human Rights: Mcpherson Lecture Series.
Spigelman, above n 16, 9.
Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. This was quoted with approval in Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, 66  (Heydon J).
Lee v New South Wales Crime Commission (2013) 302 ALR 363.
R v Secretary of State for the Home Department; Ex parte Simms  2 AC 115, 131.
James Spigelman, ‘The Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769, 775. Although the continuity of the principle is questioned in Lim, above n 16, 380.
Potter v Minahan (1908) 7 CLR 277.
Lee v New South Wales Crime Commission (2013) 302 ALR 363,  quoting Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321, 340 .
Robert French, The Courts and the Parliament (Brisbane, 4 August 2012).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). There is a ‘common law principle that statutes should be interpreted and applied, so far as their language permits, so as not to be inconsistent with international law or conventions to which Australia is a party’: Momcilovic v The Queen (2011) 245 CLR 1, 37  (French CJ). Commonly cited authority for this proposition includes O’Connor J’s statement that every statute is ‘to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with established rules of international law’:Jumbunna Coal Mine NL v Victorian Coal Miners’Association (1908) 6 CLR 309, 353.
Dietrich v The Queen (1992) 177 CLR 292, 305.
Minister for Immigration v B (2004) 219 CLR 365, 425  (Kirby J).
Statements from Lord Nicholls, Lord Steyn and Lord Rodger in Ghaidan v Godin Mendoza  UKHL 30,  2 AC 557 gave ‘a very broad meaning’ to what was ‘possible’: ‘as long as an interpretation was not contrary to the scheme or essential principles of the legislation, words could be read in or read out, or their meaning elaborated, so as both to be consistent with the convention rights and “go with the grain” of the legislation, even though it was not what was meant at the time’: Lady Hale, What’s the Point of Human Rights? Warwick Law Lecture (28 November 2013).