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Dan Meagher,[1]* Patrick Emerton[1]† and Matthew Groves[1]‡
The principle of legality operates to protect fundamental rights by requiring express words or necessary implication if legislation is to remove or restrict fundamental rights. The principle applies to secondary legislation but does so principally through the interpretation of the legislative power to make that secondary legislation, rather than interpretation of the secondary legislation itself. This article examines this mode of application of the principle of legality, with particular reference to courts’ use of proportionality analysis to establish what degree of rights infringement broad and purposive secondary lawmaking powers permit by way of necessary implication. It sets out an approach that is both normatively
attractive and able to explain recent doctrinal developments.
Contents
This article addresses a particular problem in statutory interpretation and the related judicial task of determining the validity of secondary legislation: how is such validity to be determined when a statutory conferral of secondary lawmaking power, that is expressed in broad and purposive terms, has been
exercised so as to make secondary legislation that infringes fundamental rights?
This is a topic of practical importance that also raises a matter of theoretical importance in the law of statutory interpretation. It is not uncommon for secondary legislation to infringe rights to some degree,[1] leading to its validity
being challenged on the ground that it goes beyond what the empowering legislation has authorised. There is not yet a clear judicial account of how such challenges should be adjudicated. The reason for this, we argue, is because of the interplay of two interpretive considerations whose interaction has not yet been fully understood: (i) the principle of legality, and in particular its ‘necessary implication’ component; and (ii) the modern approach to statutory interpretation, which makes context and purpose fundamental. This article explains how these two considerations interact in the particular context of secondary lawmaking with which we are concerned, and on that basis sets out a systematic methodology for adjudicating these sorts of challenges to the validity of secondary legislation. Our account takes seriously the modern approach to statutory interpretation, the rationale (and core concerns) of legality, and the
centrality of secondary legislation to the machinery of modern government.
Our account is extrapolated from judicial discussions of the issue: we consider key Australian cases, as well as cases from the United Kingdom (‘UK’), that have considered the principle of legality, particularly in its application to secondary lawmaking powers. We also address Jason Varuhas’s recent claim to have identified an ‘augmented’ principle of legality being applied by English courts,[2] that ostensibly ‘introduces a proportionality dimension into the [principle], with the effect that it is more difficult to demonstrate legal authorisation for rights-interferences’.[3] We argue that Varuhas has misconstrued the role of proportionality in this context: as we argue, the role of proportionality reasoning is to establish, in the context of adjudication, the degree of rights
infringement by secondary legislation that is permitted when the secondary lawmaking power is expressed in broad and purposive terms.
The article proceeds as follows. Part II details the relevant (and still evolving) principles of legality and necessary implication. Of particular importance is the doctrinal and normative pressure exerted on both principles by the recent
judicial willingness to take seriously the core tenet of the modern approach to statutory interpretation in fundamental rights cases, namely, that a statute should be interpreted consistently with its purpose. Part III sets out the established Australian law for determining the validity of secondary legislation when the principle of legality is not relevant, including the role of proportionality reasoning in this respect. With this legal context established, Part IV sets out our account, including the distinct role played by proportionality reasoning in applying the principle of legality, and how this relates both to the role identified in Part III, and to constitutional proportionality reasoning. Part V concludes.
It is well-established at common law that legislation may only infringe fundamental rights by express words or necessary implication.[4] This interpretive presumption, now known as the principle of legality, ‘is of long standing and has been restated over many years. It can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware.’[5]
The principle of legality applies whether the legislation in question is primary or secondary. This is an often overlooked aspect of R v Secretary of State for the Home Department; Ex parte Simms (‘Simms’), which has not yet been fully
explored: while that case propounded a strict interpretive presumption that is regularly applied by the courts to primary legislation, the factual scenario of Simms was the validity of secondary legislation which affects fundamental rights.[6] As Lord Hoffmann stated in his seminal speech, ‘[w]hat this case
decides is that the principle of legality applies to subordinate legislation as much as to Acts of Parliament’.[7]
However, the mode of application of the principle of legality is different in the case of secondary legislation as it is mediated through the primary legislation that confers the secondary lawmaking power. Such a statutory power does not authorise the infringement of fundamental rights by way of secondary legislation ‘unless the statute conferring the power makes it clear that such was the intention of Parliament’.[8] That is, it must be apparent from the empowering statute that such an exercise of the secondary lawmaking power was authorised.[9] If the empowering statute does not authorise it, then the secondary legislation is either invalid (as ultra vires the empowering statute) or, if possible, will be read down to protect the fundamental right engaged.[10]
At the level of general principle, this relationship between secondary legislation and fundamental rights is clear enough. Yet the difficult issue of method which often arises in this context is how judges are to ascertain whether (or not) a secondary lawmaking power expressed in broad and purposive terms authorises the infringement of fundamental rights. In this context the doctrine of necessary implication plays an important, often decisive, role because, if a secondary lawmaking power is conferred in broad and purposive terms, then by definition any capacity to authorise the infringement of fundamental rights must arise by necessary implication.[11] Yet the manner in which such an implication is established (or rejected) in the relevant case law remains largely obscure.
Furthermore, if such a necessary implication is established, there still arises for judicial determination whether the fundamental rights-infringing secondary legislation falls within the scope of infringement that is authorised. As we consider in Part IV, this is an interpretive issue of some complexity, particularly if the secondary lawmaking power is expressed in broad and purposive terms and hence the question of scope is itself a matter of necessary implication.
The contemporary renaissance of the principle of legality was underpinned by a doctrinal account which left little interpretive scope for the infringement of fundamental rights by necessary implication. In Coco v The Queen (‘Coco’), the High Court stated that ‘courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.’[12] The Court did recognise ‘the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication’.[13] But the relevant test to be applied ‘is a very stringent one’:[14]
[I]n some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.[15]
The interpretive principle established in Coco said judges must construe
legislation compatibly with fundamental rights unless the statute makes clear ‘that the legislature has not only directed its attention to the question of the
abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them’.[16] As Deane and
Dawson JJ reiterated:
Obviously, the most satisfactory means of manifesting a legislative intent to that effect is by express and specific words. There can, however, be circumstances where such a legislative intent is made unambiguously clear notwithstanding the absence of express words. One example of such circumstances is where the
relevant legislative provisions would otherwise be rendered either inoperative
or nonsensical.[17]
In England as well, the courts have set out a strict test in the fundamental rights context, establishing a very high threshold before an implication to infringe fundamental rights is considered ‘necessary’ in the relevant sense.[18] In R v Lord Chancellor; Ex parte Witham (‘Witham’), Laws J suggested that, in the case of secondary lawmaking powers, it may be impossible to establish such a necessary implication.[19] But in cases decided soon after Witham, the House of Lords seemed to recognise that a strict test of necessary implication — that was difficult though possible to satisfy — ought to be applied when fundamental rights are infringed by secondary legislation.[20]
Recent cases, however, suggest that a refinement of this common law doctrine is underway in fundamental rights cases. In Australia, two related developments are of significance. The first concerns interpretive principle in general. The High Court has (re)asserted its commitment to the modern approach to statutory interpretation.[21] That commitment was made in the 2017 decision of SZTAL v Minister for Immigration and Border Protection (‘SZTAL’) where the Court explained the essence of the approach in the following terms:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word ... to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[22]
The second relates to the application of this approach in order to fix the legal meaning of a statute which, on its ordinary meaning, implicates a fundamental right. The modern approach, when taken seriously in fundamental rights cases, has exerted pressure on the strict conception of legality detailed in Coco and its stringent test of necessary implication.[23] As a result, a more constrained and limited conception of legality has gained traction in the High Court. The judgment of Gageler and Keane JJ in Lee v New South Wales Crime Commission (‘Lee’) has proven pivotal in this regard.[24] It offered the following account
of legality:
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed.[25]
Its doctrinal significance is to state that the
requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment
of such basic rights, freedoms or immunities but has also determined upon
abrogation or curtailment of them[26]
may be evidenced by ‘the objects or terms or context of legislation’.[27] That was important in the context of Lee, where the statutory modification to the fundamental right engaged was established by necessary implication.[28] On the minority view, that implication was not available as ‘[i]t will not suffice that a statute’s language and purpose might permit of such a construction, given what was said in Coco’.[29] On the majority view, however, the intention to infringe fundamental rights may arise by necessary implication if it becomes apparent (upon considering a statutory text in its wider context) that to do so is required to secure the statute’s clear purpose(s).[30] Such an implication is, then, established through the ordinary application of the modern approach to statutory interpretation. It need not be ‘necessary’, for instance, ‘to prevent the statutory provisions from becoming inoperative or meaningless’.[31]
A recent trio of cases — Probuild Constructions (Aust) Pty Ltd v Shade
Systems Pty Ltd (‘Probuild’) (2018), Mann v Paterson Constructions Pty Ltd (‘Mann’) (2019) and Roy v O’Neill (‘Roy’) (2020) — suggest that the less stringent test of ‘necessary implication’ outlined in Lee has now gained traction in the High Court.[32] It has, as a consequence, tempered the strictness with which legality is applied to determine the legal meaning of a statute that implicates a fundamental right, at least in certain contexts. Recent decisions in the UK courts have also qualified the strict test of necessary implication, driven similarly by the pressure that the modern approach to statutory interpretation exerts on those interpretive presumptions (like legality) which have relied on a strict test of rebuttal for their strength, including a very strict test to establish that an
implication is ‘necessary’ in the relevant sense.[33]
There is a core characteristic of legality which remains doctrinally important even as the strictness of the test for necessary implication has abated. This characteristic is illustrated clearly and frequently in the cases, and is especially
apparent in the context of secondary legislation said to infringe fundamental rights by necessary implication. We call it the variable intensity of legality.[34] It is an approach which seeks to calibrate the intensity with which legality is
applied to the importance of the fundamental right infringed and the extent to which a statute does so. The core idea is that legality ‘operates flexibly and with greater force the more important the interest at issue and the more directly the legislation to be construed touches upon that interest’.[35] The interpretive upshot is that ‘the greater the intrusion into a person’s rights the more clarity of expression that will be required’.[36] In the English case of R v Secretary of State for the Home Department; Ex parte Leech (‘Leech’), Steyn LJ (for the Court) explained how this approach operates in the secondary legislation context: ‘in relation to rule-making powers alleged to arise by necessary implication, it can fairly be said that the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication’.[37]
Similarly, in the recent case of Kassam v Hazzard (‘Kassam’), the New South Wales Court of Appeal accepted that legality could and should be applied with a variable level of intensity, in the course of upholding unanimously the validity of several ministerial orders made under the Public Health Act 2010 (NSW) to combat the Delta strain of the COVID-19 virus.[38] Justice of Appeal Leeming observed crisply that ‘there are rights and there are rights’.[39] President Bell made clear the consequences of that suggestion when his Honour explained that the ‘the principle of legality’s insistence on clarity in a statute which authorises the curtailing of rights will be correlative to and vary with the strength or fundamental nature of the right(s) involved’[40] and thus required close attention to whether rights were properly described as fundamental, as well as the process for deciding this.[41] The Court found that several of the ‘fundamental rights’ that the appellants claimed were breached by the orders were not in fact recognised at common law to be fundamental.[42]
To vary the intensity with which legality is applied follows logically from the application of the modern approach to determine the legal meaning of a statute which engages a fundamental right. It recognises the highly contextual nature of fundamental rights cases,[43] including both that ‘some rights, freedoms and principles are more “fundamental” than others, and [that] the extent to which statutes “infringe” them will vary widely’.[44] Furthermore it explains, as a doctrinal and normative matter, the following account of legality recently
offered by Edelman J:
A more nuanced approach than one which is all-or-nothing might calibrate the strength of the presumption to the unlikelihood of an intention to impair the particular right based on factors including the importance of the right within the legal system and the extent to which it is embedded in the fabric of the legal system within which Parliament legislates.[45]
Consider, for example, Plaintiff S157/2002 v Commonwealth (‘Plaintiff S157’) where the ordinary or asserted meaning of a statute sought to seriously limit or remove the right to access the courts.[46] A particularly strict application of legality was the judicial response to safeguard, to the extent interpretively possible, this fundamental right.[47] Courts take such an interpretive approach as they consider this right to be of constitutional importance and inherent in the rule of law.[48] In other words, the strict test of rebuttal by necessary implication is still applied when this fundamental right is implicated.
By way of contrast, the variable intensity of legality cuts the other way if the right engaged lacks the same claim to fundamentality in the relevant factual and legal context. This may arise if the right engaged by a statute (eg payment upon quantum meruit)[49] lacks the same historical, functional or institutional importance within the Australian system of constitutional government as, for example, the fundamental rights to fair trial, liberty, natural justice or free speech.[50] It may also arise if the right asserted by a litigant (eg freedom
of speech, movement or religion) is a fundamental one, but it conflicts with
other important (sometimes pressing) rights and interests (eg privacy, civility,
public health and order) which the relevant statute seeks to protect, hence
creating a need for balancing in determining the extent of permissible
rights infringement.[51]
It is, arguably, normatively attractive to apply a less strict test to establish the rebuttal of legality by necessary implication in these contexts.[52] That being so, the less strict test of ‘necessary implication’ which has gained traction on the High Court may offer an appropriate, context-sensitive analytical framework to determine the legal meaning of these kinds of statutes.
However, to vary the intensity of legality in this way in a manner that is compatible with legality’s contemporary rationale requires that Parliament be given some guidance by the courts as to how that intensity will be calibrated.[53] This requires an account of which rights are more fundamental than others (and why), and of how courts determine the extent to which a statute infringes a fundamental right.[54] These are, moreover, doctrinal issues which are particularly apparent and pressing when a secondary lawmaking power said to authorise the infringement of fundamental rights by implication is conferred in broad and purposive terms. We will consider these issues in Part IV, where an account is offered as to how (and why) courts ought to determine the validity of this species of secondary legislation. Before doing so, however, in Part III we briefly set out the well-established test for the validity of secondary legislation in
circumstances where the principle of legality is not enlivened, and thereby
introduce the important topic of proportionality.
In ordinary cases of secondary legislation, in which there is no infringement of fundamental rights and hence the principle of legality is not enlivened, a proportionality test is used to determine validity. As Andrew Edgar has noted, ‘[p]roportionality review of delegated legislation has been accepted in Australia since the 1930s’.[55] The ‘foundation of the modern approach’[56] in this regard is the judgment of Dixon J in Williams v Melbourne Corporation (‘Williams’), where the relevant test was stated in the following terms:
Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of
the power.[57]
This test was endorsed by the High Court in South Australia v Tanner (‘Tanner’) and more recently in Attorney-General (SA) v Adelaide City Corporation
(‘Adelaide City Corporation’).[58] In Tanner, the joint judgment of Wilson,
Dawson, Toohey and Gaudron JJ stated the test as
whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. ... The same test, in relation to a power limited to regulation, was expressed by Dixon J in Williams, as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose.[59]
The Dixonian test, as French CJ noted in Adelaide City Corporation, was offered ‘in the context of a purposive by-law making power’.[60] That too was the relevant context in Tanner and Adelaide City Corporation.[61] In both cases, as a consequence, the Court applied the test to determine whether secondary legislation was lawfully made pursuant to a purposive power conferred in broad and
general terms.[62] As Hayne J observed in Adelaide City Corporation — endorsing an important point made by Brennan J in Tanner — ‘the problem is one of
characterisation’.[63] Justice Brennan, in Tanner, articulated the approach in the
following terms:
In deciding whether an impugned regulation is valid, the court has three steps to take: it construes the terms in which the Parliament has conferred the power to make the regulation, it ascertains the scope and legal effect of the impugned regulation and it determines whether the regulation having that scope and legal effect is within the ambit of the power. This approach is similar to the
approach adopted by a court in deciding whether a law enacted by the Parliament of the Commonwealth is within the legislative powers conferred by
the Constitution ...[64]
In Williams, Tanner and Adelaide City Corporation, the common characterisation issue was whether there existed a sufficient connection between the
impugned secondary legislation and the subject matter of the purposive (lawmaking) power; and the Dixonian test of reasonable proportionality was used to make that determination.[65] It is likewise the case when characterising primary legislation which relies upon a purposive head of Commonwealth legislative power for its validity (such as the defence power): the Court uses a test of
reasonable proportionality to determine whether a sufficient connection exists between the statute and the subject matter of the power.[66]
It is important to note that proportionality is not a singular standard of scrutiny but a spectrum.[67] It provides a framework and criterion to undertake justification analysis. The intensity of a proportionality standard (and whether it should be used at all) will vary depending on the specific (constitutional, legal and factual) context in which it may arise for application.[68] In the characterisation context for secondary legislation, the test of reasonable proportionality sets a ‘high threshold’ for invalidity.[69] In Tanner, for example, Wilson, Dawson, Toohey and Gaudron JJ stated: ‘It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power.’[70] In Adelaide City
Corporation, French CJ accepted that ‘[h]istorically, it can be regarded as a development of the high threshold “unreasonableness” test derived from the nineteenth century English authorities’.[71]
Contrast, by way of example, the implied constitutional freedom of political communication. In this context a majority of the High Court now uses structured proportionality to determine whether a law which effectively burdens the implied freedom is nevertheless constitutionally justified as a reasonably appropriate and adapted measure to achieve another legitimate purpose.[72] Relevantly, this test assesses
whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable — as having a rational connection to the purpose of the provision;
necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.[73]
As Janina Boughey has observed, ‘[s]tructured proportionality involves a significantly higher degree of judicial scrutiny of executive law-making powers than means/ends [ie characterisation] proportionality, in particular due to its “necessity” element’.[74] In Adelaide City Corporation, the impugned by-law was challenged ‘on both proportionality grounds’[75] ie to characterise whether it was within the broad and purposive lawmaking power and then to test its compatibility with the implied freedom.[76] The latter (proportionality) inquiry, as noted, necessarily involves more intensive judicial scrutiny.[77] In Part IV we argue that a stricter form of proportionality analysis is similarly required when the claimed authority to infringe fundamental rights by way of secondary legislation is provided by a broad and purposive lawmaking power by necessary implication, and we explain how this application of proportionality reasoning is found in French CJ’s judgment in Adelaide City Corporation. This is an application of proportionality that is distinct both from the ordinary test of validity of secondary legislation, and from constitutional review, that to date has not been clearly identified or correctly understood.
As noted in the introduction, Jason Varuhas has recently suggested that English courts have developed an ‘augmented’ conception of legality.[78] The cases offered in support of this suggestion are Leech, Simms, R (Daly) v Secretary of State for the Home Department (‘Daly’) and R (UNISON) v Lord Chancellor (‘UNISON’).[79] On this account, the ‘augmented variant introduces a proportionality dimension ... with the effect that it is more difficult to demonstrate legal authorisation for rights-interferences’.[80] As Lord Reed JSC put it in UNISON, ‘[e]ven where a statutory power authorises an intrusion upon the right of access to the courts, it is interpreted as authorising only such a degree of intrusion as is reasonably necessary to fulfil the objective of the provision in question’.[81] That proposition was offered in the context of an order which significantly increased court fees and seriously compromised court access (for some) as a consequence,[82] but as a doctrinal matter — and for purposes of the ‘augmented’ principle — the proposition seems to apply to fundamental rights in general.
The clearest support for the ‘augmented’ principle in our view comes from the judgment of Lord Bingham in Daly. There, in the context of a search policy which implicated the rights of prisoners to access court, legal advice and legal professional privilege,[83] Lord Bingham stated the following: ‘Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.’[84] The italicised words (our emphasis) suggest that, even if fundamental rights infringement is authorised by clear and express words, a proportionality analysis must still be undertaken. It is an added requirement which must be satisfied to secure the validity of the relevant secondary legislation — hence the augmented
conception of the principle.
In a recent decision of the Federal Court of Australia — Brett Cattle Co Pty Ltd v Minister for Agriculture (‘Brett Cattle’)[85] — Rares J applied a similarly ‘augmented’ principle. His Honour rightly noted that the principle of legality applies to secondary as well as primary legislation.[86] As noted above, the proposition which follows is that the secondary legislation may only infringe fundamental rights if the relevant lawmaking power provides that authority expressly or by necessary implication.[87] In Brett Cattle, the secondary legislation burdened the common law right ‘to carry on business in one’s own way within the law’.[88] The lawmaking power expressly authorised the making of regulations that would seriously infringe if not abrogate the fundamental right implicated,[89] and a regulation was made which did precisely that.[90] Nevertheless, Rares J
applied structured proportionality reasoning to determine the validity of the secondary legislation.[91]
We reject the ‘augmented’ principle. Thus, we argue that it was an error for Rares J to use structured proportionality to determine the validity of the
impugned regulation in Brett Cattle. As the authority to infringe fundamental rights was expressly provided by the statute at issue, the demand imposed by the principle of legality was met.[92] The only role for proportionality reasoning was to determine whether the regulation satisfied the ‘high threshold’ Dixonian test of validity.[93] As discussed in the previous section, this is not structured
proportionality reasoning, and has nothing to do with fundamental rights or the principle of legality.
The account we offer in this Part suggests an alternative explanation of, and justification for, the application of proportionality analysis in the English cases on which Varuhas relies, and in like statutory contexts.[94] These cases have a common (maybe defining) characteristic: the validity of secondary legislation was challenged on the basis that a broad and purposive lawmaking power did not authorise the infringement of fundamental rights by way of necessary
implication, at least to the extent that the secondary legislation purported to do. Thus, and contrary to the approach of Rares J and the words of Lord Bingham,[95] in cases where the express words of the statute authorise rights-infringing secondary legislation, proportionality has no role to play beyond the characterisation analysis discussed in Part III; and the incorporation of proportionality into the cases with which we are concerned is not a super-added requirement
applied to make the infringement of fundamental rights more difficult after a court has concluded that the relevant statute authorises that interference by clear and express words. Rather, proportionality is the methodological tool used to determine whether the infringement of the fundamental right implicated by the secondary legislation, and the extent of that infringement, falls within the scope of infringement authorised by the relevant broad and purposive lawmaking power as a matter of necessary implication.[96] This use of proportionality is therefore quite different from the role it has long played in determining the validity of secondary legislation, by way of characterisation analysis as discussed above.
Consider Leech as an illustration. The fundamental right infringed was
‘unimpeded access to the courts’[97] which, as Steyn LJ stated, ‘[e]ven in our unwritten constitution ... must rank as a constitutional right’.[98] The infringement
occurred because the rule permitted prison authorities to open and read all
prisoner correspondence including that which passed between a prisoner and their legal adviser.[99] That being so, Steyn LJ said ‘that at the heart of this case lies the question whether a necessary implication wide enough to validate [that] rule ... can be established’.[100] It was accepted that the lawmaking power
by necessary implication authorises some screening of correspondence passing between a prisoner and solicitor. The authorised intrusion must, however, be the minimum necessary to ensure that the correspondence is in truth bona fide legal correspondence.[101]
The Court held as a consequence that the rule was ‘ultra vires so far as it
purport[ed] to apply to correspondence between prisoners and their
legal advisers’.[102]
Once the Court determined that the broad and purposive lawmaking power authorised by necessary implication some interference with fundamental rights,[103] the proportionality analysis was then applied to establish whether (or not) the extent of the interference occasioned could be justified, that is, to
answer ‘the question whether a necessary implication wide enough to validate [the] rule [could] be established’.[104] Importantly, the Court used proportionality-style analysis, within the doctrinal vehicle of necessary implication, to give a broad and purposive lawmaking power a construction (and therefore scope) which authorised a rule that struck an appropriate balance between the legitimate governance needs of the prison and the fundamental right of prisoners to access court.[105] That is, the implication authorised the infringement of fundamental rights to the extent necessary to facilitate the purpose(s) for which the lawmaking power was conferred.
It was in this regard, as noted above, that Steyn LJ observed that, ‘in relation to rule-making powers alleged to arise by necessary implication, it can fairly be said that the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication’.[106] We explain how such calibration of the intensity of legality fits into the proportionality framework in Part IV(D) below; and in that discussion we also suggest that there may well be a judicial disposition to apply legality more strictly in the context of secondary legislation which is sourced in this kind of empowering statute.[107]
First, however, we explain more fully how and why courts undertake this form of proportionality analysis to establish the scope of a necessary implication to infringe fundamental rights when such authority is conferred by a broad and purposive lawmaking power. After explaining our approach, we provide an Australian example in Part IV(C).
The focus of our analysis, as noted, is secondary legislation that infringes fundamental rights, where the putative authority to do so — consistently with the principle of legality — is conferred by a broad and purposive lawmaking power by way of necessary implication. On our account, the judicial task undertaken in this context involves the following distinct (though related) questions:
1 Interpretation Question: A court must determine the relevant scope of the secondary lawmaking power, ie does it authorise the secondary lawmaker to infringe fundamental rights in some fashion or to some degree? The application of the modern approach to statutory interpretation may establish a necessary implication to this effect even when the lawmaking power is conferred in broad and purposive terms if, considering its subject matter and the relevant governance context in which it was conferred, such a power is necessary in order to facilitate its purpose(s). If upon its proper construction the power does authorise by implication the infringement of fundamental rights to ensure fulfilment of the relevant statutory purpose(s), then legality is not only enlivened but prima facie met.
Importantly, however, the scope of such implied authority is not at large: it only authorises rights infringement to the extent necessary in the specific governance context to fulfil the purpose(s) for which the power was conferred. The difficult issue which thus arises is determining what that extent is. If the answer to the interpretation question has been provided only at a high level of abstraction, ie that there is an implied authorisation to infringe fundamental rights to the extent necessary to give effect to the purpose(s) for which the lawmaking power was conferred, then this cannot be settled at this first stage of the inquiry, by the construction of the terms of the lawmaking power alone. Determining the extent of authorised rights infringement will require, necessarily in our view, an analytical tool to perform a species of justification analysis.
2 Operation Question: Once a court has determined that the lawmaking power impliedly authorises secondary legislation that infringes fundamental rights, it must then ascertain the operation of the impugned secondary legislation; and specifically the extent to which it infringes fundamental rights in order to further the purpose(s) of the power.
3 Characterisation Questions: It then falls to determine whether the impugned secondary legislation having that operation falls within the ambit of the lawmaking power conferred. We suggest that in the present context such an inquiry ought to have two parts, based on the proposition that ‘the problem is one of characterisation’.[108]
3a Suitability Question: First, the court must apply the ‘high threshold’[109] Dixonian test to determine whether the secondary legislation is ‘so lacking in reasonable proportionality as not to be a real exercise of the power’.[110] In Williams, Dixon J said a by-law will be invalid if ‘it could not reasonably have been adopted as a means of attaining the ends of the power’.[111] We note here the doctrinal similarity of that inquiry with the first — suitability — limb of structured proportionality: whether the impugned secondary legislation has ‘a rational connection to the purpose of the provision’.[112]
3b Necessity Question: If the secondary legislation satisfies the Dixonian test,[113] the second and more intensive part of the characterisation inquiry is then undertaken. This requires
determining whether the extent of the infringement occasioned by the operation of the impugned secondary legislation is necessary (and so justified) in that specific governance context in order to facilitate the statutory purpose(s) for which the power was conferred. Only by considering in this way the operation of the impugned secondary legislation can the court ascertain the proper scope and content of the necessary implication (established, but only in the abstract, in response to Question 1), and thus answer the question of whether the extent of the secondary legislation’s fundamental rights infringement falls within the authority of the lawmaking power.
We do not propose that proportionality is the only tool that might be used to undertake this task, but some form of necessity-oriented justification analysis seems to be required in this context. There are two features of proportionality analysis that make it a particularly appropriate tool: (i) proportionality is a
well-developed technique; and (ii) there is a correlation between the
second — necessity — stage of a structured proportionality analysis and the legality analysis that is required to characterise impugned secondary legislation as falling within or outside of the scope of a necessary implication that fundamental rights may be infringed.
On our account, then, the important doctrinal point is that the analysis
undertaken in the second, necessity, part of the characterisation inquiry
involves more intensive judicial scrutiny of the impugned secondary legislation than occurs under the Dixonian test of proportionality. That is appropriate to determine whether secondary legislation which infringes fundamental rights is valid pursuant to a broad and purposive lawmaking power that is said to
authorise the extent of that infringement by necessary implication. As noted, what is necessary, and hence legally justified in this regard, turns on the specific governance context, the relevant statutory purpose(s) and, significantly, the
importance of the fundamental right infringed. We explore in detail the issue of fundamentality and the role it plays in our framework in Part IV(D) below.
In Australian case law, the judgment of French CJ in Adelaide City Corporation is broadly illustrative of our analysis of the use of proportionality reasoning in applying the principle of legality to determine the validity of secondary legislation that infringes fundamental rights.
The impugned by-law in this case concerned the management of roads.[114] It required a council-issued permit before a person could ‘preach, canvass,
harangue’,[115] or ‘give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter’[116] on any road.[117] The case was complex as the by-law was challenged on three distinct but overlapping grounds: (i) as being beyond the power conferred by the primary legislation, when properly construed having regard to the principle of legality; (ii) unreasonableness; and (iii) the implied freedom of political communication.[118]
First, French CJ determined the scope of the broad and purposive lawmaking power. The power conferred by the relevant statute provided that ‘a council may make by-laws ... generally for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants’.[119] Chief Justice French said that ‘[t]he common law freedom of expression ... through the principle of legality ... may affect the scope of discretionary powers which involve the imposition of restrictions upon freedom of speech and expression’,[120] and thus that ‘the construction of [the lawmaking power] is informed by the principle of legality in its application to freedom of speech’.[121] As Heydon J noted in dissent, the relevant lawmaking power did not expressly authorise
the infringement of fundamental rights.[122] The relevant test pursuant to the
principle of legality, therefore, was one of necessary implication.
Chief Justice French noted that the impugned by-law ‘did not purport to proscribe or regulate the content of any communication’ and then said,
the subject matter of [the impugned] By-law No 4 and the discretion which it created to grant permissions to engage in the conduct which it otherwise proscribed, had to fall within the scope of matters of municipal concern or ‘accepted notions of local government’. Control of the expression of religious and political opinions per se is not within that subject matter. According to the circumstances, control sub modo may be within it. By-law No 4, so understood, involved the least interference with freedom of expression that its language could bear. By parity of reasoning, the power conferred by s 667(1)(9)(XVI), construed in
accordance with the principle of legality in its application to the common law freedom of expression, was sufficient to support the impugned by-law.[123]
Chief Justice French must therefore have determined that the very nature of the broad and purposive lawmaking power in this local government context
authorised, by necessary implication, at least some interference with the fundamental right to free speech of persons (like the respondents) on Adelaide roads. Relevantly, the lawmaking power authorised the least interference with freedom of speech necessary to ensure the convenience, comfort and safety of inhabitants to use roads in the local government area. This is the (abstract)
answer to Question 1.[124]
As we have set out above, French CJ commenced the legality reasoning as part of the first (interpretation) question. But in order to determine the extent of the free speech infringement, which the lawmaking power authorised by necessary implication when construed in accordance with the principle of
legality, French CJ went on to identify what was necessary in this local government context to fulfil the purpose(s) for which the power was conferred: his Honour held that the operation of the impugned by-law was within the lawmaking power if used to control only the mode and circumstances of the relevant speech, but not its content.[125] The validity of the by-law as applied required content neutrality: that involved ‘the least interference with freedom of expression that its language could bear’, which ensured the by-law’s operation fell ‘within the scope of matters of municipal concern or “accepted notions of local government”’.[126] This is a form of justification analysis that involves more
intensive judicial scrutiny of the impugned by-law than the ‘high threshold’
Dixonian test.
It highlights also why the proper scope of a broad and purposive lawmaking power in this fundamental rights context cannot be determined by construction of its terms alone, and is appropriately undertaken at the final (necessity) stage of the characterisation inquiry — in French CJ’s case ‘by parity of reasoning’.[127] Ascertaining the power’s scope, and specifically to what extent it authorises the infringement of fundamental rights, requires consideration of the secondary legislations’ operation including the extent to which it infringes fundamental rights (Question 2); this enables answering the ultimate characterisation question, namely whether the impugned secondary legislation having that operation falls within the scope of the lawmaking power which authorises, by implication, infringement of fundamental rights to the extent necessary to fulfil its purpose(s) in the relevant governance context (Question 3b). That said, the precise sequence in which the analysis is done — so long as it is done — should make no difference to the ultimate conclusion regarding the validity of the
impugned secondary legislation.
Having resolved the legality issue, French CJ then turned to the issue of
unreasonableness. This was the inquiry undertaken to answer the first characterisation question; whether the impugned by-law met the proportionality test of not going ‘beyond any restraint which could be reasonably adopted for the prescribed purpose’.[128] Did the two relevant paras of the impugned by-law ‘have a rational connection to the statutory purpose’ of the lawmaking power?[129]
They were not, on their face, capricious or oppressive. Nor did they represent a gratuitous interference with the rights of those affected by them. They provided a mechanism for protecting members of the public from gratuitous interference with their freedom to choose whether and, if so, when and where they would be the subject of proselytising communications. They were directed to modes and places of communication, rather than content.[130]
As a consequence, French CJ concluded that the by-law was ‘not invalid on
account of unreasonableness’.[131] That his Honour did so was unsurprising: a by-law which survives the more intensive justification analysis, which in our view is required by legality (outlined above) will, necessarily, meet the ‘high threshold’ Dixonian test of proportionality.[132]
Finally, French CJ assessed the compatibility of the impugned by-law
with the implied freedom. That too was an inquiry which required the application of a ‘proportionality criterion’.[133] It was done so to determine whether the by-law — which ‘effectively burden[ed] communications about political
matters’[134] — was ‘nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible
government’.[135] His Honour held that for the same reasons that the
by-law met ‘the high threshold proportionality test’, it ‘also satisf[ied] the
proportionality test applicable to laws which burden the implied freedom of
political communication’.[136]
Comparing French CJ’s judgment to our analytical framework, we make two further observations. First, French CJ was cautious about treating a judicial evaluation of whether ‘alternative mode[s] of regulation’[137] might be available as part of the ‘high threshold’ reasonableness analysis.[138] But if a broad and purposive lawmaking power authorises the infringement of fundamental rights by implication, that authority extends only to what is necessary to fulfil its purpose(s) in the relevant governance context. It is therefore difficult to see how that assessment can be made without at least some consideration of whether other regulatory alternatives exist which secure the law’s purpose in a less rights-infringing manner. To be sure, as French CJ observed, such an inquiry may test the limits of judicial reasoning and expertise ‘particularly where they may involve costs and the allocation of resources upon which there may be competing claims’.[139] But note how a High Court majority now frames the similar inquiry when undertaking structured proportionality analysis in the context of the implied freedom: ‘necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom’.[140] As French CJ himself stated in Tajjour v New South Wales (decided nearly two years after Adelaide City Corporation) and noted as part of the plurality judgment in McCloy v New South Wales:
The cautionary qualification that alternative means be ‘obvious and compelling’ ensures that consideration of the alternatives remains a tool of analysis in
applying the required proportionality criterion. Courts must not exceed their constitutional competence by substituting their own legislative judgments for those of parliaments.[141]
We suggest that this level of judicial scrutiny — whilst more intensive than the Dixonian test of proportionality — is an appropriate and context-sensitive analytical tool to determine whether impugned secondary legislation is authorised by a broad and purposive lawmaking power that impliedly authorises
infringing fundamental rights.
Second, our framework is offered to determine the validity of secondary legislation which infringes fundamental common law (not constitutional) rights in the context when the relevant lawmaking power is broad and purposive, and contains no express words authorising such infringement. But Adelaide City Corporation did involve the additional, constitutional ground of challenge. As noted above, a High Court majority now undertakes a structured proportionality analysis to determine this constitutional issue. So in cases where the validity of secondary legislation is challenged on the overlapping grounds of legality and the implied freedom, the analytical framework we offer could be
supplemented with this additional stage of (proportionality) analysis.
We note that the High Court’s use of structured proportionality in the context of the implied freedom remains controversial and contested.[142] So too in England, where the application of a stricter proportionality analysis in the
review of secondary legislation which infringes fundamental rights has been criticised for operating ‘effectively as a surrogate form of invasive substantive review, while freeing the courts of the ordinary constraints that apply to substantive review’.[143] We acknowledge the strength of these criticisms in both contexts.[144] On the other hand, the broad parallel we are suggesting between the review of legislation on constitutional grounds, and the task of determining the validity of secondary legislation in circumstances where it infringes fundamental rights and is said to be authorised to do so on the basis of a necessary
implication, is more than an abstract one. It makes clear that this sort of
proportionality analysis in the review of secondary legislation is not new, at least in Australia.
Ultimately, however, our account in this Part is offered primarily by way of doctrinal explanation: if upon application of the modern approach to interpretation a court determines that a lawmaking power conferred in broad and purposive terms authorises the infringement of fundamental rights by necessary implication, it then requires an analytical tool to assess whether the secondary legislation falls within the scope of that implied authority; and if that
scope extends to what is necessary — but no more — to fulfil the statutory
purpose(s) in the relevant (governance) context, then using a stricter
form of proportionality analysis in this context makes good doctrinal and
practical sense.
This brings us (back) to the factors which, arguably, most inform how courts will calibrate the intensity of legality. That in turn conditions the strictness of the justification analysis which is undertaken to determine the validity of secondary legislation in those cases where a broad and purposive lawmaking power authorises, by implication, fundamental rights infringement to the
extent necessary to fulfil the relevant statutory purpose(s). The necessity stage of characterisation (Question 3b) underpins Steyn LJ’s proposition from Leech that ‘the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication’.[145] The more fundamental the right, and the greater the degree of interference, the more difficult it will be to show that the secondary legislation nevertheless falls within the implied authority to adopt measures that, while infringing fundamental rights, are nevertheless able to be considered necessary to fulfil the purpose(s) for which the power was conferred.
This explains, for example, why in cases like Leech and UNISON a stricter form of proportionality analysis was applied. In both cases, to recall, the relevant lawmaking powers authorised, by necessary implication, some interference with the fundamental right to access the courts.[146] But in neither could the elevated justification threshold be met as the right infringed was of ‘constitutional’ significance.[147] Relevantly, the extent of the infringement went beyond what was necessary (and so impliedly authorised) to fulfil the relevant statutory
purpose(s); and it would, moreover, be an especially rare case according
to Steyn LJ ‘in which it could be held that a statute authorised by
necessary implication the abolition [or] limitation of so fundamental a right by
subordinate legislation’.[148]
As noted above, this approach requires an account of which rights are more fundamental than others and why.[149] But a ‘problem in this area is the difficulty (perhaps impossibility) of devising any coherent or consistent methodology or criteria for ranking rights’.[150] Even so, the courts must provide Parliament with some guidance on the issue of fundamentality if legality is to be applied in a manner which is compatible with its contemporary rationale. To do so is necessary in order for Parliament to ‘squarely confront’ its legislative decisions on fundamental rights and ‘accept the political cost’.[151]
There may be sources within a domestic legal order which provide useful guidance on the issue of fundamentality. In particular, if a right, freedom or principle has a constitutional pedigree or status, then it is, arguably, more ‘fundamental’ than others that do not. If so, this may calibrate to a stricter form of legality — with the concomitant elevated threshold of necessary implication and a stricter proportionality analysis — on the assumption that Parliament intends to legislate in conformity with the constitution. In Australia, for example, there are fundamental rights which have a big-C constitutional dimension. Examples include liberty, court access, due process and freedom of (political) speech and association.[152] Important constitutional values underpin these rights which might provide them with an elevated status amongst the suite of fundamental rights. It might explain, for example, why the High Court has often applied legality strictly — as a technique of ‘reading down’[153] — to secure the constitutional validity of a statute.[154]
Constitutional function and expertise may also play an important role here. In particular, it might be justified to apply a stricter form of legality to those rights, freedoms and principles which fall within the heartland of judicial
expertise and experience, and are essential to the proper exercise of judicial power and to maintain the rule of law. There is, indeed, an established body of common law jurisprudence where a particularly strict application of legality has protected these ‘judicial rights’, such as natural justice,[155] open justice,[156]
criminal due process such as the right to silence and the privilege against
self-incrimination,[157] and the right of access to the courts.[158] A justification based on proper respect for the separation of powers may be offered for such
an approach.
This is not to deny or ignore the element of (contested) judicial choice
involved in such domestic constitutional designations; or that doing so ‘precipitates further issues’.[159] But it is incumbent on the courts to address the issue of fundamentality if the intensity of legality is to be calibrated in a manner which is normatively coherent and transparently justified.[160] To do so by identifying those rights, freedoms and principles within a domestic legal order with an
especial durability and weight (in the constitution, legislation, and enduring common law) is, arguably, a process to which the common law’s piecemeal and historical method is well-suited.[161] Moreover, if courts are willing to vary the level of interpretive protection granted to rights according to the degree to which rights are fundamental, then rather than a variable level of judicial scrutiny, this might be said to indicate a variable level of rights, which may in turn
provide a foundation for incremental expansion of those rights regarded as
fundamental.[162] This is also well-suited to common law judicial techniques.
There may be a normative justification for courts to apply a stricter form of legality whenever secondary legislation infringes fundamental rights and
especially when that authority is provided by necessary implication. The risk which Lord Hoffmann identified in his iconic statement in Simms — of ‘the full
implications’ of general words ‘pass[ing] unnoticed in the democratic
process’[163] — is particularly acute when a lawmaking power conferred in broad and purposive terms is said to authorise fundamental rights infringement by necessary implication, because it arises in a two-fold manner: in the enactment of the power to make secondary legislation; and, in the subsequent making of that secondary legislation.
This proposition is buttressed by the constitutional fact that ‘Parliament is the organ of government in which legislative power is vested and Parliament should not be held to have delegated to another repository more power than is clearly denoted by the words it has used.’[164] This is especially so as the volume of secondary legislation promulgated continues to grow exponentially along with its capacity to infringe fundamental rights.[165] It is a problematic development which has been exacerbated by the rapid (secondary) legislative response to the COVID-19 pandemic.[166]
On the other hand, applying a strict test for necessary implication may compromise those contexts where the exigencies and complexities of modern government require that secondary lawmaking power be conferred in broad and purposive terms. With this in mind, the suggestion of Leeming JA, that a ‘more nuanced’ approach should also take account of ‘the legal and practical operation of the [rights-infringing public health] orders including their exceptions and timeframe’,[167] can be developed in a further direction: we suggest that the various possible requirements of parliamentary involvement, including whether there is a requirement for parliamentary approval or a power of
disallowance, can perform a useful element of that analysis.
However, in such cases, the reasoning of Lord Hoffmann[168] would pose a difficult question for the courts: if Parliament has not directly and clearly confronted the possibility of legislative restriction on a fundamental right (in the form of express words allowing a regulation to that effect), does the possibility of parliamentary disallowance provide a sufficient equivalent? On its face, that reasoning has a focus on the clear grant of power by Parliament, rather than the tacit permission that occurs when Parliament does not disallow secondary legislation. Moreover, it might seem that the constitutional and democratic justification for both legality and secondary legislation works only if Parliament effectively monitors the manner in which that legislative power is exercised through its processes of scrutiny and disallowance. In this context when
fundamental rights are implicated, Parliament can only ‘squarely confront’ and
accept clear political responsibility for what it directly considers and enacts.[169]
It is not the role of the courts, however, to ensure that Parliament carries out its political functions adequately. That is a matter for Parliament itself, and
ultimately for electoral determination. What the courts are able to do is to have regard to the legal framework within which secondary legislation operates,
including whether or not it is exempted from parliamentary disallowance and other forms of scrutiny.[170] This legal framework can, in turn, inform the understanding of what Parliament may be taken to have permitted or intended by way of necessary implication: in particular, the greater the extent to which it has retained control over secondary legislation (for instance, by way of tabling requirements, disallowance processes, regular renewals by responsible ministers, etc) the greater infringement of rights it may be taken to have permitted in the exercise of broad and purposive lawmaking powers. Conversely, when such control is weaker or absent, the courts may consider a stricter form of
legality an appropriate response.
This further demonstrates why the application of a structured form of proportionality analysis in these contexts makes good doctrinal and practical sense. It is an analytical framework which provides a (varying) scrutiny capacity which is appropriately sensitive to the importance (and extent) of the fundamental right infringed, the purpose(s) of the lawmaking power conferred, the relevant context in which the secondary legislation falls to be applied, and the degree of control Parliament retains over the exercise of the power
We have set out an analytical framework that seeks to explain and justify the role of proportionality in determining the validity of secondary legislation, specifically when a broad and purposive lawmaking power is said to authorise the infringement of fundamental rights by necessary implication. Our account is consistent with the direction of recent High Court decisions in which a less stringent approach has been taken to necessary implication;[171] and by integrating the modern approach to statutory interpretation with the principle of legality our account explains the important role played by necessary implication in this context. Our account also explains those cases which have been mistakenly criticised as applying an ‘augmented variant’ of legality:[172] we have shown that what the courts are actually doing in these cases is using a form of structured proportionality analysis to determine whether a challenged piece of secondary legislation falls within the permissible extent of rights infringement that is authorised, by way of necessary implication, by a secondary lawmaking power conferred in broad and general terms.
We have also explained how the use of proportionality analysis in this way can take account of the inherent tensions that often arise in secondary legislation. On the one hand, the very nature of secondary legislation may seem to tend against its use to remove or restrict fundamental rights. On the other hand, parliaments continue to enable the use of secondary legislation for this purpose, and increasingly so. We have therefore argued for a calibrated approach to the intensity of legality, and have shown how our account allows for appropriately tailored judicial scrutiny of secondary legislation that removes or infringes fundamental rights. That possibility was signalled in Kassam, when Leeming JA suggested that greater nuance was required in the interpretation of health orders that imposed significant restrictions on many people.[173] We have argued that this greater nuance need not be limited to the text of the power to make secondary legislation, but could also extend to the legal framework surrounding the making of secondary legislation, and in particular the provision for parliamentary scrutiny and control. Judicial consideration of such matters would expand the range of factors courts consider when determining the validity of secondary legislation, and if that allows courts to more fully consider the nature of secondary legislation that affects fundamental rights, it can only lead to
better calibrated decisions. This, surely, is right.
* Deakin Law School, Deakin University.
† Centre for Law as Protection, Deakin Law School, Deakin University.
‡ Deakin Law School, Deakin University.
[1] As the cases discussed in this article illustrate.
[2] See generally Jason NE Varuhas, ‘The Principle of Legality’ (2020) 79(3) Cambridge Law
Journal 578. Varuhas first suggested the concept in Jason NE Varuhas, ‘Administrative Law and Rights in the UK House of Lords and Supreme Court’ in Paul Daly (ed), Apex Courts and the Common Law (University of Toronto Press, 2019) 225, 252–3; JNE Varuhas, ‘Conceptualising the Principle(s) of Legality’ (2018) 29(3) Public Law Review 196, 199–200. See also Jason NE Varuhas, ‘The Principles of Legality in Aotearoa New Zealand’ (2024) 34(4) Public Law Review 296, 311.
[3] Varuhas, ‘The Principle of Legality’ (n 2) 592. Craig has argued that such concerns overstate what are essentially normal requirements of statutory interpretation which are needed to
determine the scope of the relevant power: Paul Craig, ‘Judicial Review, Methodology and
Reform’ [2022] (January) Public Law 19, 36.
[4] Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ), 446 (Deane and Dawson JJ) (‘Coco’); R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 131 (Lord Hoffmann) (‘Simms’); R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36; [2004] 1 AC 604, 621 [27] (Lord Steyn); Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196, 202–3 [3], 217–18 [28]–[29] (French CJ), 249 [126]
(Crennan J), 264 [171]–[172] (Kiefel J), 309–11 [311]–[314] (Gageler and Keane JJ) (‘Lee’). See also Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 577 [19] (Gleeson CJ).
[5] A-G (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1, 31 [42] (French CJ) (‘Adelaide City Corporation’).
[6] See Simms (n 4) 120–1 (Lord Steyn).
[7] Ibid 132.
[8] R v Secretary of State for the Home Department; Ex parte Pierson [1997] UKHL 37; [1998] AC 539, 575 (Lord Browne-Wilkinson) (‘Pierson’).
[9] Simms (n 4) 130 (Lord Steyn, Lord Browne-Wilkinson agreeing at 119), 132 (Lord Hoffmann), 144 (Lord Hobhouse), 144 (Lord Millett). See also R v Lord Chancellor; Ex parte Witham [1997] EWHC Admin 237; [1998] QB 575, 584–6 (Laws J, Rose LJ agreeing at 586–7) (‘Witham’) where an order prescribing court fees was held unlawful; R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, 539–40 [10], 540–1 [12], 545 [21] (Lord Bingham, Lord Steyn agreeing at 546 [24], Lord Cooke agreeing at 548 [29], Lord Hutton agreeing at 549 [34], Lord Scott agreeing at 549 [36]) (‘Daly’) where a policy excluding prisoners from their cells during searches, including those that might reveal legally privileged correspondence, was held unlawful; R (UNISON) v Lord Chancellor [2020] AC 869, 899–900 [78]–[79], 902 [86]–[87] (Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]) (‘UNISON’) where an order prescribing tribunal fees was held unlawful.
[10] This occurred in Simms (n 4) which involved a standing order that required special permission before journalists could interview a prisoner: at 120–1 (Lord Steyn). The House of Lords held that the policy applied to the standing order, which precluded all interviews, was unlawful but the standing orders were interpreted as not authorising an indiscriminate ban on such interviews: at 130–1 (Lord Steyn, Lord Browne-Wilkinson agreeing at 119), 132 (Lord
Hoffmann), 144 (Lord Hobhouse), 144 (Lord Millett). The standing orders were given a limited (and thus lawful) scope. See also Daly (n 9) which concerned policies governing the searching of prisoners’ cells. The searches were authorised by regulations, which were in turn guided by a policy manual that included instructions enabling prisoners to be removed from their cells during a search: at 536–7 [1]–[2] (Lord Bingham). This instruction enabled legally privileged material to be located and read in the absence of a prisoner. The House of Lords held this possibility contravened the common law right of prisoners to unimpeded access to the courts: at 539–40 [10] (Lord Bingham, Lord Steyn agreeing at 546 [24], Lord Cooke agreeing at
548 [29], Lord Hutton agreeing at 549 [34], Lord Scott agreeing at 549 [36]). Their Lordships held that the relevant parts of the policy manual were invalid, but made no such order against the regulations allowing the search of prisoners’ cells: at 545 [21] (Lord Bingham, Lord Steyn agreeing at 546 [24], Lord Cooke agreeing at 548 [29], Lord Hutton agreeing at 549 [34],
Lord Scott agreeing at 549 [36]).
[11] Lord Hoffmann acknowledged that the presumption his Lordship propounded prevailed ‘[i]n the absence of express language or necessary implication’: Simms (n 4) 131 (emphasis added).
[12] Coco (n 4) 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). The principle stated in Coco (n 4) has been repeatedly endorsed by the High Court: see, eg, Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 492 [30] (Gleeson CJ) (‘Plaintiff S157’); Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; (2004) 221 CLR 309, 329 [20]–[21] (Gleeson CJ),
357 [118] (McHugh J), with Gleeson CJ’s endorsement itself being endorsed in Australian Crime Commission v Stoddart [2011] HCA 47; (2011) 244 CLR 554, 622 [182] (Crennan, Kiefel and Bell JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 271 [58] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (‘Saeed’).
[13] Coco (n 4) 438 (Mason CJ, Brennan, Gaudron and McHugh JJ).
[14] Ibid.
[15] Ibid.
[16] Ibid 437.
[17] Ibid 446.
[18] UK courts have long cautioned that a strict approach must be taken to the rights which merit protection under the principle: see, eg, R v Lord Chancellor; Ex parte Lightfoot [1999] EWCA Civ 3025; [2000] QB 597, 609 (Laws J). Such arguments are developed at greater length in Philip Sales, ‘Rights and
Fundamental Rights in English Law’ (2016) 75(1) Cambridge Law Journal 86, 89–102.
[20] See, eg, Pierson (n 8) 573–5 (Lord Browne-Wilkinson); Simms (n 4) 131 (Lord Hoffmann); R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563,
613–14 [36]–[39] (Lord Hoffmann, Lord Nicholls agreeing at 605 [1], Lord Hope agreeing at 614 [41], Lord Scott agreeing at 617 [49]), 616 [45]–[46] (Lord Hobhouse, Lord Hope agreeing at 614 [41]).
[21] The nature and history of this interpretive approach is explained in Dan Meagher, ‘The
“Modern Approach” to Statutory Interpretation and the Principle of Legality: An Issue of
Coherence?’ (2018) 46(3) Federal Law Review 397.
[22] [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (‘SZTAL’). Justice Gageler made similar remarks: at 375–7 [38]–[43].
[23] See generally Dan Meagher, ‘On the Wane? The Principle of Legality in the High Court of Australia’ (2021) 32(1) Public Law Review 61.
[24] Lee (n 4). It has been argued that ‘[t]he appointments of Gageler and Keane JJ marked a critical juncture for the principle of legality under the French Court’: Bruce Chen, ‘The French Court and the Principle of Legality’ [2018] UNSWLawJl 16; (2018) 41(2) University of New South Wales Law Journal 401, 428.
[26] Coco (n 4) 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
[27] Lee (n 4) 310 [314] (Gageler and Keane JJ).
[28] Ibid 202–4 [3]–[4] (French CJ).
[29] Ibid 265 [173] (Kiefel J).
[30] Ibid 218 [28]–[30] (French CJ), 249–50 [126] (Crennan J), 310 [314] (Gageler and Keane JJ). See also Chief Justice TF Bathurst, ‘Address to NSW Legislative Drafters on the Principle of Legality’ (Speech, Sydney, 30 October 2018) 22–4 [49]–[57] <https://supremecourt.nsw.gov.au/documents/Publications/Speeches/2018-Speeches/Bathurst_20181030.pdf>, archived at <https://perma.cc/5EVZ-PUTY>.
[31] Coco (n 4) 436 (Mason CJ, Brennan, Gaudron and McHugh JJ). Justices Deane and Dawson jointly made similar remarks: at 446.
[32] See Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1,
14–15 [34] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), 40 [98], 41–3 [101]–[104]
(Edelman J) (‘Probuild’); Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560,
622–3 [158]–[159] (Nettle, Gordon and Edelman JJ, Gageler J agreeing at 591 [58]) (‘Mann’); Roy v O’Neill [2020] HCA 45; (2020) 272 CLR 291, 327 [92] (Keane and Edelman JJ) (‘Roy’); Dan Meagher, ‘Fundamental Rights and Necessary Implication’ (2023) 51(1) Federal Law Review 102, 103–4, 114–19. The effect of Probuild (n 32) in this respect is also noted in Lisa Burton Crawford, ‘An Institutional Justification for the Principle of Legality’ [2022] MelbULawRw 4; (2022) 45(2) Melbourne University Law Review 511, 541–8.
[33] See, eg, R (Black) v Secretary of State for Justice [2017] UKSC 81; [2018] AC 215, 231–2 [36]–[37] (Baroness Hale PSC, Lord Mance DPSC, Lords Kerr, Hughes and Lloyd-Jones JJSC agreeing) (‘Black’);
R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605; [2021] 1 WLR 2326,
2340–1 [66]–[71] (Lord Burnett CJ, King and Singh LJJ) (‘Dolan’). Both cases concerned necessary implications: Dolan (n 33) dealt with fundamental rights: at 2329 [1]; while the question in Black (n 33) 222 [1] (Baroness Hale PSC, Lord Mance DPSC, Lords Kerr, Hughes and
Lloyd-Jones JJSC agreeing) was very similar to that in Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 14–16 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). The modern approach to statutory interpretation is not restricted to Australia: see, eg, A-G (Turks and
Caicos Islands) v Misick [2020] UKPC 30, [38] (Lords Hamblen and Stephens, Lady Black,
Lords Lloyd-Jones and Briggs agreeing) (‘Misick’).
[34] This possibility has many counterparts in public law. For example, it has long been accepted that the intensity of judicial review of administrative action is variable: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook, 7th ed, 2022) 144–5 [3.40]. Justice Kenny endorsed that possibility when her Honour explained that ‘[w]hat may be termed the width and depth of the judicial review that the Court can undertake depends on the nature and subject matter of the challenged
exercise of executive power’: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2001) 288 FCR 23, 32 [29].
[35] Sir Philip Sales, ‘A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998’ (2009) 125 (October) Law Quarterly Review 598, 607.
[36] Roy (n 32) 324 [83] (Keane and Edelman JJ). See also R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22; [2020] AC 491 (‘Privacy International’) where Lord Sumption (Lord Reed DSPC agreeing) drew upon the principle of Simms (n 4) and explained that ‘[t]he degree of elaboration called for in a statutory provision designed to achieve a given effect must depend on how anomalous that effect would be’: Privacy International (n 36) 577 [199], citing Simms (n 4) 131 (Lord Sumption).
[37] [1993] EWCA Civ 12; [1994] QB 198, 209 (‘Leech’).
[38] [2021] NSWCA 299; (2021) 106 NSWLR 520, 539–40 [77]–[78] (Bell P, Meagher JA agreeing at 550 [138],
Leeming JA agreeing at 550–1 [139]), 557–8 [175] (Leeming JA, Meagher JA agreeing at
550 [138]) (‘Kassam’).
[39] Ibid 555 [166] (Meagher JA agreeing at 550 [138]) (emphasis added).
[40] Ibid 542 [90] (Meagher JA agreeing at 550 [138], Leeming JA agreeing at 550–1 [139]).
[41] Ibid 542 [91] (Meagher JA agreeing at 550 [138], Leeming JA agreeing at 550–1 [139]).
[42] These were the right to earn a living, the right to privacy and the right not to be discriminated against: ibid 544–5 [104]–[105], [107], 546 [111]–[112] (Bell P, Meagher JA agreeing at
550 [138], Leeming JA agreeing at 550–1 [139]), 555–6 [166] (Leeming JA, Meagher JA agreeing at 550 [138]).
[43] Lord Hodge has acknowledged extra-curially that such an approach is routinely deployed in cases involving fundamental rights: Patrick S Hodge, ‘The Scope of Judicial Law-Making in Constitutional Law and Public Law’ (2021) 26(2) Judicial Review 146, 162 [55]–[56].
[44] Meagher, ‘Fundamental Rights and Necessary Implication’ (n 32) 119. ‘In this context the concept and degree of a right’s fundamentality is judicially assessed and determined’: at 119 n 152. As then Spigelman CJ observed extra-curially: ‘What is to be regarded as a “fundamental right, freedom or immunity” is informed by the history of the common law’: James Spigelman, Statutory Interpretation and Human Rights (University of Queensland Press, 2008) 26. In UNISON (n 9), for example, Lord Reed JSC characterised the right to access the courts in the UK as ‘constitutional’ which, presumably, is the highest level of fundamentality: at 896 [66]
(Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]). See also at 901–2 [84]. See generally Francis Cardell-Oliver, ‘Parliament, the Judiciary and Fundamental Rights: The Strength of the
Principle of Legality’ [2017] MelbULawRw 20; (2017) 41(1) Melbourne University Law Review 30, 55–9.
[45] Federal Commissioner of Taxation v Tomaras [2018] HCA 62; (2018) 265 CLR 434, 467 [101]. Crawford (n 32) argues that explaining this variability of intensity demands new attention to the rationale for the principle of legality: at 512–14. The principal focus of this article is on analysing this aspect of the doctrine and setting out its operation, not its underlying justification.
[46] Plaintiff S157 (n 12) 482 [3]–[4] (Gleeson CJ). It is important to note that the expansive conception of Lord Reed JSC, which referred to the ‘constitutional right of access to justice’,
included access to the courts and tribunals: UNISON (n 9) 896 [65]–[66] (Lord Reed JSC,
Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]).
[47] Plaintiff S157 (n 12) 492–4 [30]–[38] (Gleeson CJ), 505 [72] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), 520 [118] (Callinan J).
[48] This right was explained as an essential quality to the operation of the Australian Constitution and the concepts upon which it was based: Plaintiff S157 (n 2024_9.html#_Ref159858590">12) 491 [31] (Gleeson CJ),
513–14 [103]–[104] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). See also UNISON
(n 9) 896–902 [65]–[85] (Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]). In Privacy International
(n 36) the dissenting decisions of Lord Sumption and Lord Wilson JSC accepted that this requirement of the rule of law was not absolute: at 559–60 [172], 566–7 [182] (Lord Sumption, Lord Reed DPSC agreeing), 589 [237]–[239], 592 [252]–[253] (Lord Wilson JSC).
[49] This was a central feature of the legislation considered in Mann (n 32) 622–3 [158]–[160]
(Nettle, Gordon and Edelman JJ, Gageler J agreeing at 591 [58]), discussing the Domestic Building Contracts Act 1995 (Vic) ss 16, 37–8, 53.
[50] Justices Gageler and Keane have jointly suggested that the principle ‘is not confined to ... rights, freedoms or immunities that are hard-edged, of long standing or recognised and
enforceable or otherwise protected at common law’ but also ‘extends to the protection of fundamental principles and systemic values’: Lee (n 4) 310 [313]. The distinction here is not simply between the certainty of a settled historical list of rights and the uncertainty of further possible principles and values. It is also about whether and how an interpretive approach to the notion of a right being ‘fundamental’ can and should evolve: see below discussion in Part IV(D)(1).
[51] A striking example is R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7; [2021] AC 765. The central issue in that case was whether the appellant could properly participate in an
appeal against a decision to strip her of UK citizenship: at 780 [13] (Lord Reed PSC,
Lord Hodge DPSC, Lords Lloyd-Jones and Sales JJSC and Lady Black agreeing). The Supreme Court of the UK rejected arguments that the appeal should inevitably be allowed because the appellant could not adequately participate in a hearing while she could not enter the UK to instruct her lawyers and attend any court: at 801 [90]. While a hearing in such circumstances would be difficult, arguably even unfair to the appellant, the Court held that the appellant’s right to adequately participate in her appeal had to be balanced with the imperatives of national security which prompted the decision under appeal: at 801–3 [91]–[96].
[52] In making this normative observation, we do not commit to any particular legal rationale for it. For one argument, see generally Crawford (n 32) 526–48.
[53] An argument developed in detail in Meagher, ‘Fundamental Rights and Necessary Implication’ (n 32) 119–27.
[54] The solution of Gageler and Keane JJ is to tether the principle to its ultimate rationale: Lee
(n 4) 310 [313]. The limitation of that approach is that it can simply invite new questions on the scope and force of the principle, depending on how one characterises the rationale.
[55] Andrew Edgar, ‘Judicial Review of Delegated Legislation: Why Favour Substantive Review over Procedural Review?’ in John Bell et al (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 189, 189. See also Peter Bayne, ‘Reasonableness, Proportionality and Delegated Legislation’ (1993) 67(6) Australian Law Journal 448, 448–50. A useful theoretical account is offered in Andrew Edgar and Kevin M Stack, ‘The Authority and Interpretation of Regulations’ (2019) 82(6) Modern Law Review 1009. Those authors argue that the UK, United States and Australian courts take an approach of ‘regulatory authority’ which fosters a purposive interpretation that is guided by the purpose and text of regulations and constrained by wider legal norms: at 1010–11.
[56] South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161, 175 (Brennan J) (‘Tanner’).
[57] [1933] HCA 56; (1933) 49 CLR 142, 155 (‘Williams’).
[58] Tanner (n 56) 165 (Wilson, Dawson, Toohey and Gaudron JJ), 175 (Brennan J); Adelaide City Corporation (n 5) 37–8 [56], 40 [59] (French CJ), 57 [117] (Hayne J, Bell J agreeing at 90 [224]), 83 [199] (Crennan and Kiefel JJ).
[59] Tanner (n 56) 165, discussing Williams (n 57) 156 (Dixon J).
[60] Adelaide City Corporation (n 5) 37–8 [56].
[61] Tanner (n 56) 163–5 (Wilson, Dawson, Toohey and Gaudron JJ); ibid 18–19 [10]–[11].
[62] Tanner (n 56) 164–8 (Wilson, Dawson, Toohey and Gaudron JJ); Adelaide City Corporation
(n 5) 40 [60], 41–3 [64]–[66] (French CJ), 57–9 [117]–[123] (Hayne J).
[63] Adelaide City Corporation (n 5) 59 [122], discussing Tanner (n 56) 178 (Brennan J). Here, Hayne J relevantly noted that ‘Brennan J dissented from the orders made in [Tanner] but his Honour’s statement of applicable principles does not differ in any material respect from those applied by the majority’.
[64] Tanner (n 56) 173 (citations omitted).
[65] Williams (n 57) 155–6 (Dixon J); ibid 164–8 (Wilson, Dawson, Toohey and Gaudron JJ);
Adelaide City Corporation (n 5) 42–3 [64]–[66] (French CJ), 57–9 [117]–[123] (Hayne J, Bell J agreeing at 90 [224]).
[66] See, eg, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 359–60 [135] (Gummow and Crennan JJ, Gleeson CJ agreeing at 324 [6]).
[67] See Adelaide City Corporation (n 5) 37 [55] (French CJ).
[68] See Shipra Chordia, Proportionality in Australian Constitutional Law (Federation Press, 2020) 200–2; Adrienne Stone, ‘Proportionality and Its Alternatives’ (2020) 48(1) Federal Law Review 123, 134–8.
[69] Adelaide City Corporation (n 5) 40 [59] (French CJ).
[71] Adelaide City Corporation (n 5) 39 [58].
[72] See, most recently, Farm Transparency International Ltd v New South Wales [2022] HCA 23; (2022) 403 ALR 1, 9 [29] (Kiefel CJ and Keane J, Steward J agreeing at 64 [269], Gleeson J agreeing at 65 [271]), 59 [250] (Edelman J, Steward J agreeing at 64 [269]).
[73] McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178, 195 [2] (French CJ, Kiefel, Bell and Keane JJ) (emphasis in original) (‘McCloy’).
[74] Janina Boughey, ‘Brett Cattle: New Limits on Delegated Law-Making Powers?’ (2020) 31(4) Public Law Review 347, 352.
[75] Ibid, citing Adelaide City Corporation (n 5) 15–16 [2] (French CJ).
[76] See Adelaide City Corporation (n 5) 37 [55], 42–5 [64]–[68] (French CJ), 57–9 [117]–[123], 61–4 [130]–[141] (Hayne J).
[77] See ibid 44 [68] (French CJ).
[78] See above n 2 and accompanying text.
[79] Varuhas, ‘The Principle of Legality’ (n 2) 593–8, citing Leech (n 37), Simms (n 4), Daly (n 9) and UNISON (n 9). Another case that could have been included was Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591, where Lord Reed JSC formulated an approach in the terms that we have adopted: at 1629–30 [118]–[119].
[80] Varuhas, ‘The Principle of Legality’ (n 2) 592.
[81] UNISON (n 9) 900 [80] (Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]).
[82] Ibid 903–5 [90]–[98] (Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]).
[83] Daly (n 9) 537–8 [5] (Lord Bingham, Lord Steyn agreeing at 546 [24], Lord Cooke agreeing at 548 [29], Lord Hutton agreeing at 549 [34], Lord Scott agreeing at 549 [36]).
[84] Ibid 538 [5] (Lord Bingham, Lord Steyn agreeing at 546 [24], Lord Cooke agreeing at 548 [29], Lord Hutton agreeing at 549 [34], Lord Scott agreeing at 549 [36]) (emphasis added).
[85] [2020] FCA 732; (2020) 274 FCR 337 (‘Brett Cattle’).
[86] Ibid 410 [293].
[87] See above nn 8–9 and accompanying text.
[88] Brett Cattle (n 85) 409 [292] (Rares J).
[89] ‘The regulations may prohibit the export of prescribed goods from Australia’: Export Control Act 1982 (Cth) s 7(1), quoted in ibid 344 [8].
[90] The regulation prohibited the export of livestock to the Republic of Indonesia for a period of six months from the date of the order: Export Control (Export of Live-Stock to the Republic of Indonesia) Order 2011 (Cth) ss 2, 4(1), cited in Brett Cattle (n 85) 389 [204] (Rares J).
[91] Brett Cattle (n 85) 411 [300]. See also at 407–14 [285]–[310], 418–25 [327]–[363].
[92] See Boughey (n 74) 353–4.
[93] See Andrew Edgar, ‘Structured Proportionality, Unreasonableness and Managing the Line
between Executive and Judicial Functions’ (2021) 32(3) Public Law Review 204, 214–20.
[94] See above n 79 and accompanying text.
[95] Daly (n 9) 537–8 [5] (Lord Bingham, Lord Steyn agreeing at 546 [24], Lord Cooke agreeing at 548 [29], Lord Hutton agreeing at 549 [34], Lord Scott agreeing at 549 [36]); Brett Cattle (n 85) 411 [300] (Rares J).
[96] Craig (n 3) has rightly cautioned that such distinctions are vital in order to analyse cases by reference to the doctrine employed within them, as opposed to a simple analysis based upon the result of cases: at 32–5.
[97] Leech (n 37) 214 (Steyn LJ for the Court).
[98] Ibid 210.
[99] Ibid 202.
[100] Ibid 212.
[101] Ibid 217.
[102] Ibid 218.
[103] We discuss in more detail the basis for making this determination in Part IV(B) below.
[104] Leech (n 37) 212 (Steyn LJ for the Court).
[105] Ibid 208–17.
[106] Ibid 209.
[107] Interestingly, Bayne (n 55) noted in 1993 that ‘[w]hat is clear is that where the delegated legislation entrenches on judicially recognised rights and freedoms, the recent cases suggest that the courts may be more willing to find invalidity’: at 452.
[108] Adelaide City Corporation (n 5) 59 [122] (Hayne J), citing Tanner (n 56) 178 (Brennan J).
[109] Adelaide City Corporation (n 5) 37 [56] (French CJ).
[110] Tanner (n 56) 168 (Wilson, Dawson, Toohey and Gaudron JJ).
[112] McCloy (n 73) 195 [2] (French CJ, Kiefel, Bell and Keane JJ).
[113] See above n 57 and accompanying text.
[114] Adelaide City Corporation (n 5) 15–16 [1]–[5] (French CJ), discussing Chief Executive Officer of Adelaide City Council, ‘By-Law Made under the Local Government Act 1999 — By-Law
No 4 — Roads’ in South Australia, The South Australian Government Gazette, No 44,
27 May 2004, 1384–5 (‘By-Law No 4’). By-Law No 4 (n 114) was made under s 246(1)(a) of the Local Government Act 1999 (SA).
[115] By-Law No 4 (n 114) para 2.3.
[116] Ibid para 2.8.
[117] Interestingly, in Foley v Padley [1984] HCA 50; (1984) 154 CLR 349, the High Court held valid a similar City of Adelaide by-law which prohibited the distribution of any material in a public mall without council permission: at 351, 360 (Gibbs CJ), 363 (Wilson J), 383–4 (Dawson J). But the Court did so without considering the principle of legality-style argument that the by-law interfered with the appellant’s common law rights to liberty and freedom of speech: ‘In the end, the question for the courts is simply whether the Council could reasonably have formed the opinion that the activity is likely to affect the use or enjoyment of the Mall’: at 355 (Gibbs CJ, Wilson J agreeing at 363). See also Dan Meagher and Matthew Groves, ‘The Common Law Principle of Legality and Secondary Legislation’ (2016) 39(2) University of New South Wales Law Journal 450, 461–6.
[118] Adelaide City Corporation (n 5) 15–16 [2], 30 [41], 34 [47], 43–4 [67] (French CJ).
[119] Local Government Act 1934 (SA) s 667(1)(9)(XVI), quoted in ibid 18–19 [10]. Note that the Local Government Act 1934 (SA) was repealed by the Local Government (Accountability and
Governance) Amendment Act 2015 (SA) sch 1 pt 2.
[120] Adelaide City Corporation (n 5) 32 [44].
[121] Ibid 31 [43].
[122] Ibid 70 [158]–[159]. See also Meagher and Groves (n 117) 475.
[123] Adelaide City Corporation (n 5) 33 [46].
[124] Justice French — when a member of the Federal Court — applied a similar interpretive
approach to a broad and purposive lawmaking power to determine the validity of secondary legislation which had engaged the applicant’s common law right to freedom of speech in the earlier case of Evans v New South Wales [2008] FCAFC 130; (2008) 168 FCR 576, 591–9 [60]–[88] (French, Branson and Stone JJ). See also Meagher and Groves (n 117) 469–72.
[125] Adelaide City Corporation (n 5) 33 [46].
[126] Ibid.
[127] Ibid.
[128] Ibid 39 [58], quoting Tanner (n 56) 165 (Wilson, Dawson, Toohey and Gaudron JJ).
[129] Adelaide City Corporation (n 5) 37 [53] (French CJ). See above nn 114–16 and accompanying text.
[130] Adelaide City Corporation (n 5) 37 [54] (French CJ).
[131] Ibid.
[132] Chief Justice French makes the converse point that ‘[a] law which fails the high threshold test will necessarily fail the lower threshold test’: ibid 41–2 [62].
[133] Ibid 41 [62].
[134] Ibid 44 [67].
[135] Ibid 43–4 [67].
[136] Ibid 44 [68].
[137] Ibid 42 [65].
[138] Ibid 43 [65]. See also at 58–9 [120]–[121] (Hayne J); Boughey (n 74) 351–2.
[139] Adelaide City Corporation (n 5) 43 [65].
[140] McCloy (n 73) 195 [2] (French CJ, Kiefel, Bell and Keane JJ) (emphasis in original).
[141] Tajjour v New South Wales [2014] HCA 35; (2014) 254 CLR 508, 550 [36] (‘Tajjour’), cited in ibid 211 [58].
[142] See Stone (n 68) 128–31. See generally Gabrielle Appleby and Anne Carter, ‘Parliaments,
Proportionality and Facts’ [2021] SydLawRw 11; (2021) 43(3) Sydney Law Review 259.
[143] Varuhas, ‘The Principle of Legality’ (n 2) 614.
[144] See Stone (n 68) in the context of the implied freedom: at 142–53.
[145] Leech (n 37) 209 (Steyn LJ for the Court).
[146] Ibid 217; UNISON (n 9) 902 [86]–[88] (Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]).
[147] Leech (n 37) 210, 216–17 (Steyn LJ for the Court); UNISON (n 9) 896 [66], 903–5 [90]–[98] (Lord Reed JSC, Lord Neuberger PSC, Lords Mance, Kerr, Wilson and Hughes JJSC agreeing, Baroness Hale DPSC agreeing at 910 [121]). See also Raymond v Honey [1983] 1 AC 1, where a similarly elevated justification threshold was not met with respect to a rule restricting
prisoners’ right of access to the courts: at 10–13 (Lord Wilberforce, Lord Elwyn-Jones agreeing at 14, Lord Russell agreeing at 14, Lord Lowry agreeing at 14, Lord Bridge agreeing at 14).
[149] This issue weighed heavily in Kassam (n 38) where the Court rejected invitations to find that rights to work and to privacy were fundamental common law rights protected by the principle of legality: see above n 42 and accompanying text.
[150] Cardell-Oliver (n 44) 57. This issue is closely related to the more basal question of precisely how courts identify such rights: see generally David Crump, ‘How Do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy’ (1996) 19(3) Harvard Journal of Law and Public Policy 795; Brendan Lim, ‘The Rationales for the Principle of Legality’ in Dan Meagher and Matthew Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017) 2, 9–12.
[151] Simms (n 4) 131 (Lord Hoffmann). We note, but in this article do not address, Crawford’s strong criticism of this rationale: Crawford (n 32) 513, 515–16, 519–26.
[152] A list of the rights recognised as within the scope of the principle of legality is contained in Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 255–60 [5.60].
[153] See generally David Hume, ‘The Rule of Law in Reading Down: Good Law for the “Bad Man”’ [2014] MelbULawRw 3; (2014) 37(3) Melbourne University Law Review 620; Neil Duxbury, ‘Reading Down’ (2017) 20(2) Green Bag 155.
[154] See, eg, Hogan v Hinch (2011) 243 CLR 506, 535–44 [27]–[51] (French CJ), 547–56 [66]–[99] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Hogan’); Monis v The Queen
(2013) 249 CLR 92, 208–12 [327]–[339] (Crennan, Kiefel and Bell JJ); Tajjour (n 141)
600–5 [221]–[241] (Keane J); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569, 581 [11], 587–93 [23]–[38] (French CJ, Kiefel and Bell JJ),
645–52 [212]–[237] (Nettle and Gordon JJ) (‘NAAJA’). But important doubts have been articulated as to the propriety of this approach: see Vella v Commissioner of Police (NSW) (2019) 269 CLR 219, 293–4 [194] (Gordon J); NAAJA (n 154) 604–5 [75]–[80] (Gageler J); Hume
(n 153) 629–44. For further doubts on this approach, see generally Scott Stephenson, ‘Against
Interpretation as an Alternative to Invalidation’ (2020) 48(1) Federal Law Review 46.
[155] See, eg, Saeed (n 12) 258–9 [11]–[15], 271 [56]–[59] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), 283–4 [88]–[92] (Heydon J).
[156] See, eg, Hogan (n 154) 534–9 [27]–[39] (French CJ), 550–1 [75]–[78] (Gummow, Hayne,
Heydon, Crennan, Kiefel and Bell JJ).
[157] See, eg, X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, 131–2 [86]–[87],
136–7 [102]–[105], 140–1 [119], 142–3 [124]–[125], 148–9 [142], 150 [147]–[148] (Hayne and
Bell JJ, Kiefel J agreeing at 154 [162]).
[158] See, eg, Leech (n 37) 210, 212–14, 216–17 (Steyn LJ for the Court); Plaintiff S157 (n 12)
492–4 [30]–[38] (Gleeson CJ), 505–7 [72]–[78], 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), 520 [118], 534–5 [160]–[163] (Callinan J); Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651, 668–72 [45]–[60] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ, Callinan J agreeing at 676 [79]).
[159] Varuhas, ‘The Principle of Legality’ (n 2) 585.
[160] The level of possible coherence may never be absolute, due to the common law method’s
‘opposing directions, to the past and to the future’: Sir Philip Sales, ‘The Common Law: Context and Method’ (2019) 135 (January) Law Quarterly Review 47, 55. Sales identifies the inherent tension in our expectations of the common law, which is expected to provide both certainty and flexibility: at 61–2. Any greater emphasis on one expectation invariably comes at the
expense of the other.
[161] Sales has argued that the same is true when the courts are required to decide that a right is not fundamental: Sales, ‘Rights and Fundamental Rights in English Law’ (n 18) 98–100. For a discussion of the common law’s piecemeal and historical method: see generally Sir Owen Dixon, ‘Concerning Judicial Method’ in Judge Woinarski (ed), Jesting Pilate: And Other Papers and Addresses (William S Hein, 2nd ed, 1997) 152; Justice Michael McHugh, ‘The Law-Making Function of the Judicial Process’ (Pt 1) (1988) 62(1) Australian Law Journal 15; Justice Michael McHugh, ‘The Law-Making Function of the Judicial Process’ (Pt 2) (1988) 62(2) Australian Law Journal 116.
[162] Leeming JA appeared to anticipate that possibility in his Honour’s analysis of the ‘nascent’ right to privacy: Kassam (n 38) 556 [166] (Meagher JA agreeing at 550 [138]).
[164] Tanner (n 56) 174 (Brennan J).
[165] See, eg, Senate Standing Committee for the Scrutiny of Delegated Legislation, Parliament of Australia, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight (Final Report, 16 March 2021) 5 [1.10], 8 [1.28] (‘Exemption from Parliamentary Scrutiny
Inquiry (Final Report)’).
[166] Senate Standing Committee for the Scrutiny of Delegated Legislation, Parliament of Australia, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight (Interim Report, 2 December 2020) 8–9 [1.21]–[1.24]. The use of secondary legislation as part of
governmental responses to COVID-19 was weighed heavily by the Senate Standing Committee for the Scrutiny of Delegated Legislation: at 5–6 [1.14].
[167] Kassam (n 38) 556 [167] (Meagher JA agreeing at 550 [138]).
[169] Ibid.
[170] A recent Senate inquiry found that almost one fifth of federal delegated legislation is exempt from parliamentary oversight: Exemption from Parliamentary Scrutiny Inquiry (Final Report) (n 166) 8–9 [1.29]. The Senate Standing Committee on Regulations and Ordinances cautioned that this practice served to ‘effectively remove Parliament’s control of delegated legislation, leaving it to the executive to determine (albeit within the confines of the enabling legislation and the Constitution) the content of the law’: Senate Standing Committee on Regulations and Ordinances, Parliament of Australia, Parliamentary Scrutiny of Delegated Legislation (Report, 3 June 2019) 122–3 [8.35]. See also Law Council of Australia, Submission No 21 to Senate Standing Committee for the Scrutiny of Delegated Legislation, Parliament of Australia, Inquiry into the Exemption of Delegated Legislation from Parliamentary Oversight (2 July 2020).
[171] Probuild (n 32); Mann (n 32); Roy (n 32). See above n 32 and accompanying text.
[172] That is the approach taken by Varuhas, ‘The Principle of Legality’ (n 2) 592.
[173] Kassam (n 38) 556 [167] (Meagher JA agreeing at 550 [138]).
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