The principle of legality is a rule of legal interpretation: if Parliament intends to interfere with fundamental rights or principles or to depart from the general legal order, it must express that intention in clear and unambiguous language. In 1908, in Potter v. Minahan, Justice O`Connor called this principle a constant prediction of parliamentary intent: the courts will approach the interpretation taking into account certain common law assumptions, expecting that some tenants of our legal system will be sued by the Legislative Assembly. The reasoning is that the established court system and related common law rules operate in the interests of our society. First of all, the principle puts its face against retrospectivity. Parliament must use clear and unambiguous language to enact legislation „that retroactively distorts existing legislation under which people have ordered their affairs, exercised their rights, and entered into responsibilities and commitments.“ The rule of law requires that laws be forward-looking because it is radically unfair to hold a person accountable for violating a law that did not exist at the time of his or her action. The principle of legality ensures that no defendant may be punished arbitrarily or retroactively by the State. This means that a person cannot be convicted of a crime that has never been publicly disclosed, either by a law that is not sufficiently vague, or by a criminal law that is passed retroactively to criminalize an act that was not criminal at the time it occurred. It requires judges to always speak in favour of the accused in interpreting the laws and prohibits the pronunciation of guilt without clear and reasonable justification for that judgment. The predominance of the targeted approach and the impact of section 15AA outweigh both common law approaches to legal interpretation.
However, some common law principles remain in place and do not interfere with the legal approach. Australian courts have applied the principle of legality to protect various fundamental rights at common law. These include the right to private property, personal freedom, freedom of expression, freedom of movement, natural justice and access to justice. The common law plays an important role in protecting the democratic rights and freedoms of citizens. In Australia, subject to the Constitution, the Commonwealth Parliament generally has the power to enact laws that interfere with common law rights and freedoms. The role of the courts involves an important application of the rule of law in the interpretation of laws that could infringe rights or impose an undue burden on citizens. It is the efforts of the courts that actually provide for a common law Bill of Rights and the protection of civil liberties against an invasion of the state. Second, the principle jealously protects access to justice. In Case S157/2002 v. Commonwealth, the High Court applied the principle of legality to interpret a privative clause restrictively: a provision of law aimed at preventing the courts from reviewing the legality of the acts and decisions of the executive. Gleeson C.J.
explained this approach with a quote from Lord Denning: 74 In this context, note Lord Sales` call for „prudence,“ „stability,“ and „slow waves of constitutional principles“ (P. Sales, „Legalism in Constitutional Law: Judging in a Democracy“ [2018] P.L. 687, 698). The French Chief Justice recently stated that the principle of legality of the common law“. is not limited to the protection of rights, freedoms or immunities that are hardened, long-standing or recognized and enforceable, or otherwise protected by the common law. The principle also extends to the protection of fundamental principles and systemic values. Twelve years ago today, the High Court rendered its decision in Electrolux Home Products Pty Ltd v Australian Workers` Union, which is remembered today for Chief Justice Gleeson`s historic discussion of the principle of legality. „plays an important role in protecting rights and freedoms in today`s society, while working in a manner that is fully compatible with the principle of parliamentary supremacy.“ In Lee v New South Wales Crime Commission [2013] HCA 39, Gageler and Keane JJ. stated that the application of the principle is as follows: This chapter deals with the principle of legality. The version of legality defended here as an integral part of the Convention system is one that requires that official action in a democratic State be positively authorized by law.
It argues that the version of legality contained in the European Convention on Human Rights and the Human Rights Act is part of the democracy-oriented model set out in that chapter. The first section deals with legality and the „rule of law“. The second section deals with representative democracy, the European Convention and the principle of legality. The third section deals with the importance of legality in the defence of rights.