Twelve years ago today, the High Court handed down its decision in Electrolux Home Products Pty Ltd v Australian Workers’ Union, now remembered for Chief Justice Gleeson’s seminal discussion of the principle of legality.

The principle of legality is a rule of statutory interpretation: if Parliament intends to interfere with fundamental rights or principles, or to depart from the general system of law, then it must express that intention by clear and unambiguous language. In 1908, in Potter v Minahan, Justice O’Connor characterised this principle as a standing prediction of parliamentary intent:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.

In Electrolux, however, Chief Justice Gleeson stated that the principle of legality is ‘not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.’ Chief Justice Gleeson’s statement has since been endorsed by the High Court on numerous occasions. But what does it mean to describe the principle of legality as an aspect of the rule of law?

Chief Justice Gleeson’s statement has two elements. The first element is that the principle of legality ensures that courts are slow to cut down rights and doctrines that are essential in a society governed by the rule of the law.

First, the principle sets its face against retrospectivity. Parliament must use clear and unambiguous language to enact a statute ‘which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations.’ The rule of law requires laws to be prospective because it is radically unfair to hold a person responsible for violating a law that did not exist at the time he or she acted.

Second, the principle jealously protects access to the courts. In Plaintiff S157/2002 v Commonwealth, the High Court applied the principle of legality to narrowly interpret a privative clause: a statutory provision which attempted to prevent the courts from reviewing the lawfulness of the Executive’s acts and decisions. Chief Justice Gleeson explained this approach with a quote from Lord Denning:

If tribunals were to be at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end.

Third, the principle protects against departures from equality before the law. According to A V Dicey, it is part of the rule of law that ‘every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’ In Puntoriero v Water Administration Ministerial Corporation, the plaintiff sued a statutory authority for negligently releasing polluted water into an irrigation scheme, which caused damage to farmers. The authority attempted to rely on a sweeping statutory immunity from civil liability. Relying on the principle of legality, the High Court construed the immunity strictly. The general terms of the immunity were not sufficient to shield the authority from liability for its conduct. It was held legally responsible just like any other person.

Fourth, the principle of legality protects the core elements of a fair hearing. Parliament must speak with irresistible clearness to dispense with the rules of natural justice, the presumption of innocence and the privilege against self-incrimination, the criminal standard of proof, and the principle that courts sit in public.

The principle of legality protects these fundamental rights and principles because it requires courts to adopt a conservative approach to statutory interpretation, which errs on the side of their preservation. In the words of Chief Justice French, if a court is faced with “constructional choices” about the meaning of a statute, then it must adopt the meaning which minimises the statute’s interference with those rights and principles.

The second element of Chief Justice Gleeson’s claim is that, where Parliament does interfere with these rights and principles, that interference must be unambiguous. This reflects a core element of the rule of law: the law must be clear and accessible. If people are to order their affairs by or face penalties because of the law, then they must be able to find out what it requires. As Lord Diplock noted in Black-Clawson Ltd v Papierwerke AG:

The rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says.

The principle of legality cannot overcome dense or labyrinthine legislation. But it does ensure that fundamental rights and principles are not abrogated by general or ambiguous words. Lord Hoffmann noted in R v Secretary of State for the Home Department; Ex parte Simms that there is ‘too great a risk’ that the full implications of general or ambiguous words may be unclear on the face of the statute, and thereby pass ‘unnoticed in the democratic process.’ The principle of legality means that Parliament cannot lurk in the dark corners of a broad, vague power. It must bring any departure from the general system of law into the light of ‘irresistible clearness’, so that people may look at the statute and know what legal consequences flow from it.

There is a tension between these two elements of Chief Justice Gleeson’s statement in Electrolux. In steadfastly protecting fundamental rights from legislative intrusion, courts may be tempted to depart from the principle that a statute should mean what it says.

This tension was clear in the House of Lords’ decision in R v Secretary of State for the Home Department; Ex parte AnufrijevaMs Anufrijeva was an asylum seeker. A government official refused her claim for asylum in November 1999. Her welfare payments were cancelled as a result, but Ms Anufrijeva was not notified of this decision until April 2000.  Ms Anufrijeva challenged the government’s cancellation of her payments during that time. The relevant regulation stated that, ‘in the case of a claim for asylum which…is recorded by the Secretary of State as having been determined’, the person ceases to be entitled to payments ‘on the date on which it is so recorded.’

The majority held that the government had to give notice to the person concerned before a decision constituted a ‘determination’ with legal effect. Lord Steyn stated that:

The rule of law requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on the door in the early hours. That is not our system.

Notice was essential for a person to challenge an adverse administrative decision in the courts if he or she chose to do so. The general words of the regulation were not sufficient to displace this fundamental principle. The government’s failure to make the payments was unlawful.

Lord Bingham dissented. In his view, the regulation was clear. It specifically referred to the recording of the asylum claim as having been determined, rather than the notification of the claimant. Parliament had expressly provided for notification of decisions elsewhere in the statute. Lord Bingham recognised the importance of the principle of legality to the rule of law, but countered that it was ‘a cardinal principle’ of the rule of law that ‘effect should be given to a clear and unambiguous legislative provision.’ The court’s ‘distaste’ at the government’s treatment of the applicant could not lead it to give the regulation ‘anything other than its clear and obvious meaning.’

As Chief Justice Gleeson noted twelve years ago, the principle of legality is an important aspect of the rule of law in Australia, particularly given that few fundamental rights and principles are constitutionally protected against legislative interference. But the decision in Anufrijeva illustrates the internal tension in this claim, between the protection of those rights and principles and the notion that the law should bear its ordinary and natural meaning.

— Jack Maxwell

Jack Maxwell has degrees in law
and philosophy from
the University of Melbourne.
He blogs occasionally
at
Four Sciences.
All views are his own.