AN INSTITUTIONAL JUSTIFICATION FOR THE PRINCIPLE OF LEGALITY.

• Date: 01 April 2022
• Author: Crawford, Lisa Burton

Contents I Introduction II The Inadequacy of the Intentionalist Justification III The Inadequacies of the Democracy-Enhancing Account IV An Alternative Account A The Institutional Setting in Which Statutory Interpretation Occurs B Statute, Common Law and the Judicial Power C Context, Coherence, and the Common Law Method D A Variable Presumption V Conclusion I Introduction

In Australia, as elsewhere, many principles of statutory interpretation are creatures of the common law. (1) The courts' power to create interpretive principles is subject to at least two constraints. First, all judicially constructed principles of statutory interpretation must be justified in a way that coheres with the nature of legislation and the respective constitutional roles of Parliament and the courts. (2) Secondly, the principles must be applied in a way that aligns with their justifications. (3)

One of the most significant principles of statutory interpretation applied by Australian courts is that known as the principle of legality--broadly speaking, a presumption that Parliament does not intend to abrogate fundamental common law rights. (4) Versions of this principle are applied in other common law jurisdictions. In some, the principle has attracted relatively little scholarly attention. (5) That is not the case in Australia, where it has been the subject of relatively extensive debate. (6) Yet, both the justification for and proper application of the principle of legality in Australian law remain unclear.

Historically, the principle was justified as a heuristic for ascertaining Parliament's intent. (7) But in more recent years, it has been justified on other, more explicitly normative, bases. The most prominent of these is the 'democracy-enhancing' account. This account abandons the pretence that Parliament does not actually intend to abrogate fundamental rights. Instead, it asserts that Parliament must 'squarely confront' the question of whether or not to do so, and pay the attendant political cost. (8) So understood, the principle of legality purports to enhance democratic scrutiny of legislation by ensuring that its effect on rights is spelled out in clear words for all to see. (9) While this democracy-enhancing account emerged as a supposedly superior justification for the principle of legality, it suffers from considerable flaws. It also caused the principle to be applied in a more robust way, akin to the 'clear-statement rules' that operate in the United States ('US'). (10) Some commentators and judges expressed discomfort with this approach. (11) And some judges have shifted away from this account in recent case law and advocated for a more 'nuanced' approach to the principle of legality, which will sometimes operate only weakly. (12)

In light of this ongoing uncertainty, this article revisits the justification for, and proper operation of, the principle of legality. I argue that the democracy-enhancing justification for the principle of legality is inadequate, as was the intentionalist justification before it, and propose an alternative account. In outline, I argue that courts are permitted to treat existing common law rights and principles as weights on the interpretive scale, which influence the constructional choices they make. If a statute can be interpreted in a way that leaves the common law intact, then, all things being equal, this is the interpretation that the court should prefer. This is not because it is improbable that Parliament would intend to abrogate the common law, nor because it would enhance the democratic process. Rather, this approach reflects the institutional setting in which statutory interpretation takes place, and the dual constitutional role of the courts as both law-interpreters and lawmakers.

While this justifies a version of the principle of legality, it is a far less robust presumption than that which has sometimes been applied by Australian courts--if indeed, it may be called a presumption at all. Rather, it simply forms part and parcel of the modern approach to statutory interpretation, which emphasises that statutory texts must always be read in their context, necessarily including the common law. One consequence of this approach is that the strength of the principle of legality will vary depending upon the part of the law engaged, as some judges have said that it ought. (13)

Parts II and III of this article focus on the inadequacies of existing justifications for the principle of legality, in order to demonstrate the need for a new account. Part II focuses on the intentionalist justification, and Part III the democracy-enhancing account. As the deficiencies of the intentionalist justification are relatively well traversed in the literature, Part II is comparatively brief. The democracy-enhancing account has also been criticised on various bases. Part III weaves these criticisms into a wholesale rejection of the democracy-enhancing account that draws upon theoretical and empirical research into the nature of contemporary legislation. Part IV then explains the alternative justification for the principle of legality introduced above.

Part IV includes analysis of more recent case law in which some judges have endorsed a more nuanced and variable approach to the principle of legality--particularly the judgments of Edelman J and Gageler J in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd ('Probuild'). (14) These judges do not endorse all of the ideas that I present here. But the approach they take can be justified in the way that I explain, and provides some insight into how a variable principle of legality could be applied in accordance with standard common law method and without engaging in the kind of abstract philosophising (that many consider to be) unbefitting of a judge. Nonetheless, the idea of a variable canon of construction is a challenging one. This article aims to lay the foundations for further discussion of how exactly courts could determine the strength of the principle of legality in any given case.

II The Inadequacy of the Intentionalist Justification

Like most interpretive principles, the principle of legality was traditionally conceptualised as a heuristic for ascertaining parliamentary intention. (15) 'It is in the last degree improbable, O'Connor J famously said in Potter v Minahan, 'that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law' without making its intention to do so plain. (16)

Thus, courts construed legislation so as to preserve those rights unless there was an indication in the statute to the contrary. But many scholars and judges now doubt this explanation: either because it seems quite probable that Parliament intends to abrogate the common law, (17) or because they reject the premise that Parliament intends anything meaningful at all.

As Brendan Lim has explained, this scepticism prompted two reactions. (18) The first was to narrow the ambit of the principle so as to retreat onto apparently safer ground. (19) Thus it was said that, while Parliament often intends to abrogate the common law, it is unlikely to intend to abrogate fundamental common law rights and principles, and hence statutes will not be interpreted as doing so without clear words. (20) The principle of legality was thus distinguished from the broader, but far weaker, presumption that Parliament does not intend to abrogate non-fundamental parts of the common law. (21)

However, this move was never entirely persuasive for two reasons. First, it was difficult to rank and categorise different parts of the common law in the way that this required, distinguishing between those which are fundamental and those which are not. (22) Secondly, the justification so refined was still premised on an authentic conception of parliamentary intent, and some judges and scholars were sceptical of that broader concept altogether. (23)

The second reaction was to justify the principle of legality on other grounds. (24) Thus, it became more common for courts to assert that the principle of legality aims not to give effect to Parliament's intent, but to enhance the democratic process. (25) This democracy-enhancing account was famously put forward by Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms ('Ex parte Simms'), who stated:

Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. ... The constraints upon [this power] are ultimately political, not legal. But 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. (26) So stated, the principle of legality purports to enhance the democratic process in two ways. First, it ensures that the potential abrogation of common law rights and principles is brought to the attention of Parliament, so that it can be properly scrutinised and debated. As the Court put it in Coco v The Queen ('Coco'):

[C]urial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights. (27) Secondly, the requirement of clear words enhances 'electoral accountability', (28) by ensuring that the abrogation of common law rights and freedoms is brought to the attention of the people, so that they can exact the appropriate political cost. As Paul Scott has explained it, the principle 'leverages the legal constitution in service of its political counterpart'. (29)

The democracy-enhancing account has been endorsed by many members of the High Court. (30) It is true...