Meagher, Dan --- "The Common Law Principle of Legality in the Age of Rights" [2011] MelbULawRw 16; (2011) 35(2) Melbourne University Law Review 449 (2024)

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Meagher, Dan --- "The Common Law Principle of Legality in the Age of Rights" [2011] MelbULawRw 16; (2011) 35(2) Melbourne University Law Review 449

THE COMMON LAW PRINCIPLE OF LEGALITY IN THE AGE OF RIGHTS

I INTRODUCTION
II THE COMMON LAW PRINCIPLE OF LEGALITY: A BRIEF HISTORY
III THE CONTENT AND SCOPE OF THE PRINCIPLE OF LEGALITY

A What Rights Are Fundamental at Common Law andHow Do They Become So?
B The Current Scope of the Principle of Legality
C Provisional Conclusion

IV METHODOLOGICAL ISSUES FOR THE PRINCIPLE OF LEGALITY IN THE AGE OF RIGHTS

A Using International Human Rights Norms as the Rights Touchstone for the Principle of Legality
B What Is the Relationship between the Principle of Legality and the Presumption of Consistency in the Age of Rights?
C The Role of Proportionality

V THE PRINCIPLE OF LEGALITY AND PROPORTIONALITY APPLIED

A The Common Law Right to Freedom of Speech
B Non-Discrimination as a Common Law Right

VI CONCLUSION

DAN MEAGHER^[*]

[In April 2010 the Australiangovernment released its Human Rights Framework(‘HRF’). The HRF was itsformal response to the report ofthe National Human Rights ConsultationCommittee, chaired by Father FrankBrennan AO. Importantly, the HRFrejected the key recommendation of theBrennan Report: that the AustralianParliament ought to enact a statutorybill of rights. So at least inthe federal sphere the key toolto facilitate the judicial protectionof rights remains what has becomeknown as the principle of legality.Notwithstanding its contemporary significance,however, it remains a principle forwhich there is little meaningfuljudicial exegesis. Its content andapplication remain unclear. For example,what rights are fundamental at commonlaw and how do they become so?Should the courts use internationalrights norms as the rights touchstonefor the principle? And should theapplication of the principle oflegality ever involve the kind ofbalancing that is central to theproportionality analysis under a billof rights? These are the keyissues that will be explored inthis article.]

I INTRODUCTION

In April 2010, the Commonwealth government released Australia’sHuman Rights Framework(‘HRF’).^[1]The HRF was the government’s formal response to the report of theNational Human Rights Consultation Committee (‘BrennanReport’), chaired by Father Frank BrennanAO.^[2] TheHRF contains a number of important human rights initiatives. Theseinclude the establishment of a Joint Parliamentary Committee on HumanRights— modelled on the United Kingdom (‘UK’) Parliament’srespected and influential Joint Committee onHumanRights^[3] — to scrutiniseall Commonwealth ‘Bills and legislative instruments for consistency withthe seven core United Nationshuman rights treaties to which Australia is aparty.’^[4] Further, there willbe a legal requirement that each new Bill introduced into the AustralianParliament must be accompanied by astatement of its compatibility (orotherwise) with these seven human rightstreaties.^[5] These developmentsprovide for what Janet Hiebert calls ‘political rightsreview’^[6] and theirsignificance in terms of improving the rights sensitivity of legislation oughtnot to be underestimated.^[7]

However, as has been welldocumented,^[8] the HRF did notaccept the key recommendation of the Brennan Report: that theAustralian Parliament enact a statutory bill or charter of rights of the kindoperating in the Australian Capital Territory(‘ACT’), New Zealand,the UK and Victoria.^[9] In doing sothe Australian government has, at least for the time being, rejected theincreased judicial role in the protection ofrights that inevitably attends theapplication of a bill of rights.^[10]The HRF did, however, note that ‘Australian courts interpret andapply legislation every day using well established common law andstatutoryrules of interpretation.’^[11]It noted further that

[i]n the event of ambiguity, the courts construe legislation consistently withfundamental rights unless Parliament has expresslyindicated a contraryintention. Similarly the courts construe ambiguous legislation on the basis thatit is presumed that Parliamentdoes not intend to breach Australia’s humanrightsobligations.^[12]

Consequently,in the absence of a bill of rights interpretation provision, these two commonlaw statutory presumptions remain thekey interpretive tools to facilitate thejudicial protection of human rights in the federal sphere inAustralia.^[13] The primary concernof this article is with the first of the presumptions noted above — thatlegislation is construed consistentlywith fundamental rights — whichcourts and commentators now increasingly refer to as the principle oflegality.^[14]In particular, I wish to explore the curious fact that notwithstanding itscontemporary significance in the construction of statutesat common law, itremains a principle for which there is little meaningful judicial exegesis.However, in order to do so, it is alsonecessary to consider the relationshipbetween the principle of legality and the presumption of international lawconsistency forthe common law protection of human rights in Australia.

In most instances where the principle of legality is applied there is littlebeyond the now ritual — though clearly important— incantations that‘[f]undamental rights cannot be overridden by general or ambiguouswords’^[15] or that ‘[i]tis in the last degree improbable that the legislature would overthrowfundamental principles, infringe rights,or depart from the general system oflaw, without expressing its intention with irresistibleclearness’.^[16] Thesestatements give a sense of what (fundamental rights) the principle oflegality seeks to protect and how (strong interpretive presumption) itseeks to do so. Yet its content and scope remains unclear. If we are to betterunderstand the(constitutionally appropriate) role of the principle of legalityin the age of rights these important theoretical and methodologicalissues needto be addressed.

In order to do so, this article will proceed as follows. A brief history ofthe principle of legality — including an accountof its contemporaryjudicial re-assertion — is provided in Part II. An examination of relevantAustralian cases is undertakenin Part III in order to ascertain the content ofthe principle of legality and how Australian courts currently apply it. Thisanalysisraises important methodological issues for the principle in the age ofrights: should the courts increasingly use international humanrights norms asthe rights touchstone for the principle? If so, what role (if any) does thecommon law presumption of internationallaw consistency have in the human rightscontext? And in the age of (international human) rights, should the applicationof the principleinvolve a balancing or proportionality analysis? If so, doAustralian judges have the expertise, experience and democratic mandatetoundertake such an inquiry? These issues are considered in Part IV. Finally, inPart V, the likely impact on the principle of legalityif proportionality isincorporated into its methodology is considered.

II THE COMMON LAWPRINCIPLE OF LEGALITY: A BRIEF HISTORY

There is nothing particularly new about judges construing statutes anddeploying their interpretive powers more broadly to protectrights and interestsconsidered fundamental at common law. Indeed, it may even be possible to tracethe origins of such an approachback to Lord Mansfield’s judgment inSomerset v Stewart (‘Somerset’sCase’), the famous King’s Bench decision of 1772 regardingthe law of slavery.^[17] In thetranscript of his judgment, Lord Mansfield held that English common law did notauthorise slavery:

The state of slavery is of such a nature, that it is incapable of now beingintroduced by Courts of Justice upon mere reasoning orinferences from anyprinciples, natural or political; it must take its rise from positivelaw.^[18]

Thisconclusion followed Lord Mansfield’s revolutionary adoption of the‘principle that English common law provided certainminimum levels ofsubstantive protection to anyone who came toEngland’.^[19] George Van Cleveconsiders that

[t]his represented the emergence of a new English concept of legal freedom thatdivorced fundamental legal rights from race, birth,or free/servile status andbased them instead on an individual’s status as politicalsubject.^[20]

In doingso Lord Mansfield, arguably, laid the normative foundations for the common lawto protect fundamental rights so far as interpretivelypossible, subject only tostatute law clearly to the contrary.

Similarly in Australia, the principle of legality has a significant commonlaw lineage.^[21] As early as 1908,the High Court recognised and applied the principle to protect the right of anyAustralian-born member of the Australiancommunity to re-enter the country aftera period of absence.^[22] However,for a good part of the 20^th century the common law courts onlyapplied the principle of legality to protect a narrow set of rights. In thisregard, Lord Browne-Wilkinson,in a seminal 1992 article, highlighted thetraditional rights concerns of the courts before, importantly, describing thefundamentalsocietal and legislative changes effected by the emergence of themodern welfare state and the increased regulatory role of government:

Until comparatively recently, government was seldom concerned in mattersaffecting freedom of the individual outside the realms ofcriminal law, taxationand, to a lesser extent, property rights. In those fields where governmentintervention was common, the courtsconsistently stood as defenders of theindividual against the state. Penal and tax statutes were strictly construed;there was apresumption against a statute interfering with property rights.…But the world has changed. The growing complexity of life has necessarily ledgovernments, of all political shades, to intervenein many aspects of our dailylives. Legislation now authorises direct executive intervention in oureducation, our food, our transport,our health, our use of our property, what isshown on television or broadcast and a host of other areas. The pressure ofparliamentarybusiness means that Parliament has not got time to ensure thatinvasions of personal freedom are kept to the essentialminimum.^[23]

Incontemporary parlance, the common law principle of legality was applied byjudges ‘in favour of a narrow vision of classicaleconomic liberalism andagainst incursions from a modern, collectiviststate.’^[24] As a consequence,the rights considered fundamental — and therefore protected — by thecourts became increasingly atodds with those favoured by the political arms ofgovernment and the general public who stood to benefit from the sociallyprogressiveand economically redistributivelegislation.^[25]As Lord Browne-Wilkinson observed, ‘the courts, when construing statutorypowers to interfere with personal freedoms, havenot invariably applied the samestrict criteria applied to penal or taxingstatutes.’^[26]

The catalyst for the contemporary renaissance of the principle of legalitycan be traced to ‘[t]he rise and rise of human rights’— inshocked response to the horrors of World War II — as a core concern of theinternational legal order.^[27] As aconsequence:

During the second half of the 20^th century, the international humanrights movement and its various regional and domestic offshoots have providedcommon law judgeswith an updated set of values to protect and with an enhancedconstitutional expectation that they will act in a guardianship rolewithrespect to them. This development provides the context for the judicialreassertion during the 1990s of a common law ‘principleof legality’that fundamental rights cannot be overridden by general or ambiguouswords.^[28]

In anyevent, and some time before the Westminster Parliament incorporated theEuropean Convention on Human Rights(‘ECHR’)^[29] intoEnglish domestic law,^[30] LordBrowne-Wilkinson argued that courts already had the capacity — if not theduty — to robustly deploy their interpretivepowers to protect fundamentalrights:

Even though the ECHR forms no part of our law, it contains a statement offundamental human rights (accepted by this country) much wider than the freedomsof the person and of property which have, of late, become the only rightsafforded special treatment by our courts. We must cometo treat these widerfreedoms on the same basis and afford to freedom of speech, for example, thesame importance as we have affordedto freedom of theperson.^[31]

Interestingly,the judicial reassertion of the principle of legality was already well underwayin Australia. It underpinned the 1987decision of the High Court in ReBolton; Ex parte Beane (‘ReBolton’),^[32] where thefundamental right at common law to personal liberty (and the corollary remedy toseek a writ of habeus corpus) was notdisplaced by a statute that failed to

express that intention with unmistakable clarity … Unless the Parliamentmakes unmistakably clear its intention to abrogateor suspend a fundamentalfreedom, the courts will not construe a statute as having thatoperation.^[33]

TheCourt then confirmed the centrality of the principle of legality to theconstruction of statutes in its important 1990 decisionin Brophov WesternAustralia,^[34] and once againin 1992 in Coco v TheQueen^[35] where it noted theconsistency of its interpretive approach with that advocated by LordBrowne-Wilkinson:

In England, Lord Browne-Wilkinson has expressed the view that the presence ofgeneral words in a statute is insufficient to authorizeinterference with thebasic immunities which are the foundation of our freedom; to constitute suchauthorization express words arerequired. That approach is consistent withstatements of principle made by this Court…^[36]

In theyears to follow, judges throughout the common law world began to routinely applythe principle of legality incases^[37] and promoted itsconstitutional significance in extra-curialpapers.^[38] Its most famouscontemporary judicial exposition probably comes from the judgment of LordHoffmann in R v Secretary of State forthe Home Department; Ex parteSimms.^[39] In a passage thathas become the quintessential statement of the principle, Lord Hoffmannwrote:

Parliamentary sovereignty means that Parliament can, if it chooses, legislatecontrary to fundamental principles of human rights… The constraints uponits exercise by Parliament are ultimately political, not legal. But theprinciple of legality meansthat Parliament must squarely confront what it isdoing and accept the political cost. Fundamental rights cannot be overridden bygeneral or ambiguous words. This is because there is too great a risk that thefull implications of their unqualified meaning mayhave passed unnoticed in thedemocratic process. In the absence of express language or necessary implicationto the contrary, thecourts therefore presume that even the most general wordswere intended to be subject to the basic rights of theindividual.^[40]

Importantly,in Australia Gleeson CJ also emphasised the constitutional significance of theprinciple of legality for the maintenanceof the rule of law:

The presumption is not merely a common sense guide to what a Parliament in aliberal democracy is likely to have intended; it isa working hypothesis, theexistence of which is known both to Parliament and the courts, upon whichstatutory language will be interpreted.The hypothesis is an aspect of the ruleof law.^[41]

These areringing statements of principle, and their widespread acceptance clearlydemonstrates that judges throughout the commonlaw world now recognise theircapacity (if not constitutional responsibility) to protect rights wheneverinterpretively possible.

It may, however, be the case that questions as to the content and scope ofthe principle of legality are no longer so pressing inthose jurisdictions wherestatutory bills of rights now operate and the judicial protection of rights isundertaken primarily bythe application of interpretive provisions which requirestatutes to be construed conformably with the protectedrights.^[42] But in New Zealand andthe UK at least, one only applies the rights interpretation provision afterordinary — that is, commonlaw — interpretive principles have beenapplied.^[43]And significantly, at least two members of the New Zealand Supreme Court inR v Hansen considered their bill of rights interpretationprovision to embody the common law principle oflegality.^[44] In a similar vein,Chief Justice French of the High Court of Australia made the followingobservation in Momcilovic v The Queen:

The human rights and freedoms set out in the Charter in significantmeasure incorporate or enhance rights and freedoms at common law. Section 32(1)applies to the interpretation of statutesin the same way as the principle oflegality but with a wider field ofapplication.^[45]

Thissuggests that the content and scope of the principle remains a live issue evenin those jurisdictions with interpretation provisionsin statutory bills ofrights.

III THE CONTENT AND SCOPEOF THE PRINCIPLE OF LEGALITY

A WhatRights Are Fundamental at Common Lawand
How Do They Become So?

Australian courts have applied the principle of legality to protect a varietyof fundamental rights at commonlaw.^[46]They include the rights to privateproperty,^[47] personalliberty,^[48] freedom ofexpression,^[49] freedom ofmovement,^[50] naturaljustice^[51] and access to thecourts.^[52] Moreover, in his 2008McPherson Lectures on statutory interpretation and human rights, Chief JusticeSpigelman identified from Australiancase law a catalogue of rebuttableinterpretive presumptions that taken together constitute a ‘common lawbill of rights’.^[53] These arethe common law rights and freedoms that Australian courts have the capacity toprotect through the application of the principleof legality. However, theprocess by which the courts came to recognise these rights as fundamental isnever really explained byhis Honour, save for the observation that‘[w]hat is to be regarded as a “fundamental right, freedom orimmunity”is informed by the history of the commonlaw.’^[54] Relevantly, BrennanJ began his judgment in Re Bolton as follows:

Many of our fundamental freedoms are guaranteed by ancient principles of thecommon law or by ancient statutes which are so muchpart of the acceptedconstitutional framework that their terms, if not their very existence, may beoverlooked until a case ariseswhich evokes their contemporary and undiminishedforce.^[55]

Thisimportant observation would suggest that statutes can be the source offundamental common law rights.^[56]For example, the common law of habeas corpus and the Habeas CorpusAct 1679^[57] were inthis category according to BrennanJ.^[58] In this way, the origins ofthe common law rights to liberty, habeas corpus, property, a fair trial and dueprocess might be tracedto MagnaCarta^[59] and the laterPetition of Right1628.^[60]This process — where the common law adopts as fundamental those rights andfreedoms enshrined in landmark and enduring statutes — is perfectlylegitimate and consistent with the essentially reactive nature of common lawreasoning and methodology.^[61]

The notion that common law rights are derived from long-established andcontinuing (often statutory) legal sources is supported, forexample, by therecent litigation in the Federal Court and High Court regarding curial spousalprivilege. In Stoddart vBoulton,^[62] the Full Courtof the Federal Court held that there is a common law right not to incriminateone’s spouse that ‘is separateand distinct from the privilegeagainst self-incrimination and of greater antiquity inorigin.’^[63] It did so bytracing the origins of the spousal privilege to 19^th century UKcommon law and statutory sources that, presumably, formed part of the common lawreceived into Australia.^[64] Onappeal, however, the High Court took a differentview.^[65] Importantly, and in orderto do so, the Court had to determine ‘whether … recognition [ofspousal privilege was] evidentfrom the historicalrecord.’^[66] That is, theCourt had to undertake its own historical inquiry into the common law andstatutory sources said by the Federal Courtto form the basis of the common lawright to spousal privilege.^[67] Inthe result, a majority of the High Court concluded ‘that the cases andhistorical materials do not provide a sufficientbasis for a conclusion that theclaimed privilegeexists.’^[68]

In any event, maybe the longevity and durability of a legal right or freedomapplied by the courts (whatever its original or continuinglegal source) is whatis decisive at common law. This proposition is certainly consistent with theobservations of Chief JusticeSpigelman and Brennan J and the judicial approachin the above cases. But even if so, what ultimately determines the fundamentalstatus of a right at common law is still never really made clear by thecourts.^[69]

However, in a recent extra-curial paper Sir Philip Sales of the UK High Courtof Justice offered this persuasive account of when andwhy rights ought to berecognised as fundamental at common law:

it is submitted that the principle of legality operates within narrowparameters, for powerful constitutional reasons. Since theeffect of theapplication of the principle is to change what appears to be the natural meaningof a legislative provision, it isonly when there is an established,well-recognised and fundamental principle or right which can be clearlyidentified as being applicableat the time the legislation is passed, that itcan be said that Parliament cannot be taken to have intended to infringe thatprincipleor right by the use of general language in a statutory provision… But if Parliament cannot be taken to have been squarelyon notice of theexistence of such a principle or right, then the process of ‘readingdown’ or modifying the naturalmeaning of the words used would underminerather than promote Parliament’s intention as expressed in thelegislation.^[70]

Thisaccount reminds us that the principal (often statutory) interpretive rule, evenin those jurisdictions where bills of rightsoperate, is that judges mustprefer a construction that furthers the intention, purpose or object ofParliament’slegislation.^[71] At any rate, SirPhilip Sales tells us when the recognition of fundamental rights maylegitimately occur and why, as a consequence, the principle of legalitymust operate ‘within narrowparameters’.^[72] But hisaccount still leaves at issue precisely how judges do this. It is notsufficient to simply cite ‘the history of the commonlaw’^[73] or ‘ancientstatutes which are so much part of the accepted constitutionalframework’^[74] as though theyprovide a clear account of judicial methodology in this regard. For while theseare perfectly legitimate sources ofcommon law rights, such assertions saynothing as to how judges ultimately determine which rights are to be recognisedas fundamental and therefore protected by the application of theprinciple. In other words, what guides judges in determining when ‘rightsor principles are so well-established that Parliament must be taken to havelegislated with them inmind’?^[75]

It is clear enough that there is considerably more going on with theprinciple of legality than the courts simply giving their judicialimprimatur toa series of rights and freedoms that the Parliament has already stamped sometime earlier as fundamental. As DavidDyzenhaus, Murray Hunt and Michael Taggarthave noted, the principle of legality ‘is controversial, at least in sofar as itrequires judges to construct common law values, and in respect of thematerial they can legitimately use in this buildingexercise’.^[76]

In this regard, then, what rights and freedoms are recognised as fundamentalat common law is ultimately a matter of judicial choice.In one respect this isunremarkable, for the judicial development of the common law can only ever occurwhen judges choose to expand (or indeed tighten) the content and scope oflegal principle.^[77] But the reasonwhy these particular choices are controversial is that the assumption made bythe courts — that certain rightsand freedoms are so deep-lying in ourlegal order that ‘[i]t is in the last degree improbable that thelegislature would overthrow[them] … without expressing its intention withirresistible clearness’^[78]— is so interpretively significant: for the application of the principleof legality, based on this assumption, may limit theotherwise clear meaning andscope of parliamentarylegislation.^[79] There is after allno requirement of legislative ambiguity before the principle can come intoplay.^[80]

B TheCurrent Scope of the Principle ofLegality

In order to ascertain the current scope of the principle of legality inAustralian law we must consider how the courts are applying it. In otherwords, what is the principle’s interpretive methodology? Relevantly,Jacobson J of theFederal Court provided in S v Boulton thefollowing instructive account of how the principle currently operates:

First, a statute is not to be construed as abrogating important common lawrights and privileges except by clear words or necessaryimplication …Second, an intention to exclude a common law privilege may be gleaned from astatute even though express words of exclusion are notused …Third, the question of whether the statute impliedly abrogates a privilege is tobe determined upon the proper construction of thestatute, considered as awhole, and from its character and purpose …Fourth, important common law privileges are not to be lightly abrogated and theoft cited phrase ‘necessary implication’requires that there be ahigh degree of certainty as to the intention of the legislature; the intentionmust be manifested by unmistakableand unambiguous language …Fifth, what is required is that there be a manifestation or indication that thelegislature has directed its intention to the questionof abrogation and hasconsciously determined that the privilege is to be excluded …Sixth, general words will not be sufficient to disclose the requisite intentionunless it appears from the character and purposeof the provision that theobligation was not intended to be subject to any qualification …Seventh, the presumption that the legislature does not intend to abrogateentrenched common law rights may be displaced by implicationif it is necessaryto prevent the statute from being rendered inoperative or meaningless or fromfrustrating the evident statutorypurpose…^[81]

On thisaccount, the judicial application of the principle involves identifying, as thecritical threshold issue, whether or not therelevant legislation may abrogate acommon law right. And importantly, this methodology suggests that theprinciple’s applicationis an all-or-nothing proposition in terms ofprotecting common law rights: if the principle can be applied then the fullcontentof the right (ie what it requires or protects in the relevant context)is enjoyed by its holder; if not, the right is abrogated.

In S v Boulton, as noted, the Court identified theprivilege against spousal incrimination as the common law right in play, havingrejected an argumentthat this right also extended to de factospouses.^[82] However, it was heldthat the relevant provisions expressly abrogated the privilege againstself-incrimination and, due to the ‘character and purpose of thelegislation’, did likewise forthe spousal privilege, as ‘theobligation to answer was not subject to anyqualification.’^[83] In otherwords, once it was determined that the principle of legality could not beapplied (as Parliament’s legislative intent was unmistakable) the Courtheld that the common law right was completely excluded.

The binary (all-or-nothing) nature of the principle of legality was evidentalso in R & R Fazzolari vParramatta CityCouncil.^[84] However, in thiscase, French CJ was able to apply the principle to the relevant legislationand provide the appellant with the full enjoyment of theirrelevant common law right, a vested property interest in land:

Private property rights, although subject to compulsory acquisition by statute,have long been hedged about by the common law withprotections. Theseprotections are not absolute but take the form of interpretive approaches wherestatutes are said to affect suchrights. …The attribution by Blackstone, of caution to the legislature in exercising itspower over private property, is reflected in whathas been called a presumption,in the interpretation of statutes, against an intention to interfere with vestedproperty rights.…The terminology of ‘presumption’ is linked to that of‘legislative intention’. As a practical matter it meansthat, wherea statute is capable of more than one construction, that construction will bechosen which interferes least with privateproperty rights. That approachresembles and may even be seen as an aspect of the general principle thatstatutes are construed,where constructional choices are open, so that they donot encroach upon fundamental rights and freedoms at commonlaw.^[85]

It is,however, the High Court’s recent decision in Saeed vMinister for Immigration and Citizenship(‘Saeed’)^[86]that maybe best illustrates both the strength of the principle of legality andits binary (all-or-nothing) nature. The common lawright in issue was thenatural justice hearing rule.^[87]The relevant provisions in the Migration Act 1958 (Cth)were ‘an exhaustive statement of the requirements of the natural justicehearing rule in relation to the matters theydealwith’^[88] (which the Courtsaid were onshore visa applicants). The common law right was abrogated for thesevisa applicants as the Ministerfor Immigration was not expressly required togive them an opportunity to deal with relevant adverse information, though hecould,in his discretion, invite them to doso.^[89]

The appellant, however, was an offshore visa applicant. And though there wasample extrinsic material to suggest that the provisionswere intended tocover all visa applicants, French CJ, Gummow, Hayne, Crennan and Kiefel JJ madeclear that these materials were not determinativeof legislative meaning:

Statements as to legislative intention made in explanatory memoranda or byMinisters, however clear or emphatic, cannot overcomethe need to carefullyconsider the words of the statute to ascertain itsmeaning.^[90]

Consequently,they interpreted the relevant provisions as follows:

Assuming, for present purposes, that s 51A as it applies to s 57, is valid andeffective to exclude the natural justice hearing rule, it is excluded only sofar as concerns onshore visa applicants.… The position of offshore visasis not addressed … The provision of particulars of information to them forcomment isnot a ‘matter’ ‘dealt with’ by s 57 or thesubdivision. …It follows that [upon the application of the principle of legality] theimplication of the natural justice hearing rule with respectto offshore visaapplicants was maintained. The Minister was obliged to provide the appellantwith an opportunity to answer adversematerial.^[91]

Onceagain, upon the identification of the relevant common law right — and inthe absence of clear parliamentary intent to thecontrary — theapplication of the principle ensured that the content (and so full benefit) ofthe natural justice hearing rulewas enjoyed by the appellant. However, asnoted, once the Court realised that the principle could not be applied to thelegislationin relation to onshore visa applicants, the natural justice hearingrule was, necessarily, abrogated in this context.

These recent cases, where the principle of legality has been considered and(sometimes) applied, disclose the following methodologicalpoints. The rightsconsidered fundamental at common law provide the backdrop for the judicialinterpretation of legislation. Andthose rights will be protected unlessParliament makes crystal clear its intention to abrogate them. In this way theprinciple operatesto insulate, and so protect in full, the common law rightfrom the operation of the relevant legislation. The upshot is that it providesto the right holder the full enjoyment of the freedom or claim in the relevantcontext.

Significantly, then, the cases suggest that the principle of legality isapplied in the form of a legal rule without any balancingor weighing of otherrights and interests in the relevant legislative context. This interpretiveapproach is sound if the contentof a common law right (ie what it requires inthe relevant factual and legislative context) can be non-controversiallydeterminedand applied by the courts. The common law right not to incriminateone’s self is, arguably, of this kind. But isn’t thecontent andscope of most common law rights (eg natural justice, freedom of speech, propertyand even liberty) highly contextualand also subject to reasonabledisagreement?^[92] Interestingly inthis regard, the High Court made the following point in the course of construingthe relevant migration provisionsin Saeed:

Section 57(1) and (2) invite comparison with what might ordinarily be requiredby the hearing rule. It is necessary to bear in mind, in that regard,that whatis required to provide procedural fairness according to the rule will vary.Natural justice is flexible and adaptable tothe circ*mstances of the particularcase.^[93]

So thecontextual nature of this common law right was expressly acknowledged. But whatit required in that context could and wouldbe determined by the court. Thatinterpretive proposition — upon which the application of the principle oflegality effectivelyturns — is not without controversy, especially withregard to the more aspirational, contested and essentially indeterminaterightssuch as freedom ofspeech.^[94]As noted, however, the content and scope of even the more well-establishedcommon law rights (such as to property and personal liberty)can also be highlycontextual and contested. For example, do natural resource managementrestrictions infringe common law rightsto property or simply regulate themanner in which they areexercised?^[95] Moreover, it is thecase that in a range of circ*mstances legislative restrictions and limitationson (common law) rights are reasonableandnecessary.^[96]

However, as the above cases demonstrate, the principle of legality is appliedin the form of a legal rule that does not balance orweigh other rights andinterests in the relevant legislative context. It operatesto insulate (and so protect infull) the judicial conception of thecommon law right from the operationof the relevant legislation. So in the context ofthe principle’s methodology, the important issues just noted either arepresumptively determined by thecourts (ie what the common law right requires ina particular context) or simply do not arise (ie whether legislation places areasonablelimitation on a common law right). This explains and underlines thebinary nature of the principle of legality and why common lawrights are eitherprotected in full (if applied) or abrogated (if clear parliamentary intentprecludes the principle of legality’sapplication).

This methodology and, as a consequence, the proper scope of the principle oflegality is, again, not often made clear in the cases.In this regard, PaulRishworth provides the following interesting account as to why, traditionally,the scope of common law rightsdoes not often require detailedspecification:

It was not uncommon to have recourse to rights in legal argument, but theyfunctioned more as broad aspirations. A case in which,say, freedom ofexpression was advanced in order to influence a statutory meaning would probablynot ascend to the level of sophistication(assessment of objective, rationality,proportionality, and so on) as is common in North American constitutionaladjudication. Commonlaw rights were conceptions of generally desirableoutcomes, not a tool for defining a baseline of acceptable law and conduct forgovernment.^[97]

C ProvisionalConclusion

In this Part, I have considered recent Australian cases where the principleof legality has been considered and its importance reasserted.This was done inorder to ascertain how the courts apply the principle of legality and thereforeits current scope in Australianlaw. The analysis undertaken demonstrates that,whilst the extant catalogue of common law rights protected by the principle oflegalityis reasonably clear, there are important methodological issues forwhich there is little meaningful judicial exegesis.

Relevantly, the cases are not clear as to how and when a right or freedombecomes fundamental at common law and thereby subject toprotection by theprinciple’s application. And whilst the binary nature of the principle interms of protecting common lawrights can be deduced from the cases, the courtsdo not explain or justify why the principle is applied in the form of a rulewithoutbalancing or weighing competing rights and interests in the relevantlegislative context.

However, with the judicial reassertion of the principle of legality in theage of rights, the time has now come for this methodologicalopacity to beaddressed. This is especially important and urgent if international human rightsnorms increasingly become the rightstouchstone for the principle. As will beexplored below, some judges and commentators suggest this is both likely anddesirable.^[98] If so, theappropriateness and legitimacy of the current rule-like/no-balancing methodologyof the principle of legality must bereassessed.

IV METHODOLOGICAL ISSUESFOR THE PRINCIPLE OF LEGALITY IN THE AGE OF RIGHTS

AUsing International Human Rights Normsas the Rights Touchstone for thePrinciple of Legality

Dyzenhaus, Hunt and Taggart have made a strong argument that it is legitimateand consistent with the common law’s own methodologyfor it to draw oninternational human rights norms to update the ‘set of values’ thatit protects by applying the principleoflegality.^[99]They argue that

[i]nternational norms are a good steer as to what those values are. In the sameway that reference to history and tradition assistsin combating eclecticism orsubjectivity in the identification of fundamental rights, human rights treatiesare an ‘ostensiblyobjective source’, expressing the opinions,formed often over a considerable period of time, of manycountries.^[100]

Thereis considerable merit in this approach in terms of promoting transparency andclarity in judicial method. It would also provideParliaments with clear noticeof those rights which the courts consider ‘are so well-established that[Parliaments] must betaken to have legislated with them inmind’.^[101] And importantly,the methodological issue that arose from the analysis undertaken inPart III(A) — how and when rights become fundamental at common law— is then explained and resolved.

On this approach the application of most international human rightsnorms — and so, then, the principle of legality —would involvea process of balancing undertaken through the lens ofproportionality.^[102] In thecontext of the common law of judicial review, Dyzenhaus, Hunt and Taggart favourthis approach, as it would promote ‘aprocess of public, legallystructuredjustification’^[103] whengovernment infringes rights and ‘point towards adoption of a“constitutional rights”methodology’^[104] that (inCanada, New Zealand and the UK) may unify constitutional and administrative law‘in name and approach under the bannerof publiclaw.’^[105]

The adoption of international human rights norms as the rights touchstone forthe principle of legality has not to date been endorsedby the High Court, orany other senior appellate court in Australia. But it is an approach with someimportant judicial supporters.Chief Justice Spigelman has noted extra-curiallythe considerable overlap between the ‘common law bill of rights’ andthe list of human rights specified in international human rights instrumentsgiven legislative force in some jurisdictions:

That development will have an influence upon the degree of emphasis to be givento these presumptions. It will also influence thearticulation of newpresumptions. For example, the legislative proscription of discrimination on theinternationally-recognised listof grounds — gender, race, religion, etc— could well lead to a presumption that Parliament did not intend tolegislatewith such aneffect.^[106]

Andalong similar lines, Chief Justice French made the following observation in a2009 extra-curial paper:

It does not take a great stretch of the imagination to visualise intersectionsbetween these fundamental rights and freedoms, longrecognised by the commonlaw, and the fundamental rights and freedoms which are the subject of theUniversal Declaration of Human Rights andsubsequent international Conventions to which Australia is aparty.^[107]

However,if Australian courts choose to adopt international human rights norms as therights touchstone for the principle of legality,then they must, necessarily,consider whether to also incorporate these norms’ concomitantmethodology — proportionality— into its interpretiveframework. But as the analysis undertaken in Part III(B) demonstrated, theapplication of the principle of legality does not presently involve any form ofbalancing process or proportionality-styleanalysis. This methodological issuewill be considered shortly. Before doing so, however, the adoption ofinternational human rightsnorms in this way also raises the related issue ofwhat role (if any) the common law presumption of consistency would play in theAustralian human rights context. It is to that important issue that I nowbriefly turn.

B What Isthe Relationship between the Principleof Legality and the Presumption ofConsistency in the Age of Rights?

The presumption that legislation should be read consistently with theestablished rules of international law is a well-establishedpart of the commonlaw of Australia.^[108] That beingso, hasn’t the common law already adopted international humanrights norms as the rights touchstone, but for the presumption of consistencyrather than the principleof legality? If so, then it would seem logical andgood sense for Australian courts to do the same for the principle of legalityasDyzenhaus, Hunt and Taggart and Chief Justices French and Spigelman haveproposed.^[109] Significantly, thiswould represent a convergence of approach between the principle of legality andpresumption of consistency, atleast insofar as the judicial protection of humanrights is concerned.

This convergence of approach has already occurred in New Zealand. InZaoui v Attorney-General [No 2](‘Zaoui’), the New Zealand Supreme Court applied thepresumption of consistency to an open-ended discretionary power ofdeportation.^[110] The New Zealandgovernment sought the deportation of the appellant on national security grounds.In the result, the Court held thatthe deportation power could not be lawfullyexercised in this context, as there was a real risk that the appellant would betorturedor arbitrarily deprived of his life if returned to his homeland:

As directed by s 6 of the Bill of Rights, s 72 [(thedeportation power)] is to be given a meaning, if it can be, consistent with therights and freedoms contained in it, includingthe right not to be arbitrarilydeprived of life and not to be subjected to torture. Those rightsin turn are to be interpretedand the powers conferred by s72 are to be exercised, if thewording will permit, so as tobe in accordance with internationallaw, both customary and treaty-based.…Because the power can be so interpreted and applied, those provisions, asa matter of law, prevent removal if their terms aresatisfied even if the threat to national security is made out in terms of s 72…^[111]

Importantly,the Court did not consider ambiguity on the face of the statute to be anecessary precondition for the principle’sapplication.^[112] Indeed, ClaudiaGeiringer says the interpretive approach in Zaoui ‘invites theconclusion that … if the underlying international obligation issufficiently compelling, nothing less tha[n]express statutory language maysuffice to overcomeit.’^[113] If the applicationof the presumption requires no ambiguity on the face of the relevant statutethen this represents a convergenceof approach with the principle oflegality.^[114]

In Australia, there has been some important — though notwidespread — judicial support for the proposition that theapplicationof the presumption of consistency does not require ambiguity in astatute.^[115] However, theorthodox position is that ambiguity is a necessary precondition for theprinciple’sapplication.^[116] Moreover, and incontrast to New Zealand, it remains the case that in Australia there has not yetbeen a strengthening of the importanceof the presumption of consistency thatparallels the strengthening of the principle of legality. Indeed, one recentmember of theHigh Court, McHugh J, questioned the relevance and legitimacy ofthe presumption in contemporary Australianlaw.^[117] And even such a strongsupporter of the principle of legality as Gleeson CJ did not view the role andstatus of the presumption ofconsistency in Australian law in equivalentterms.^[118] Maybe the mostinteresting comments in this regard were made (extra-curially) by Chief JusticeFrench:

One area which awaits further exploration is the interface between human rightsnorms in Conventions to which Australia is a partyor in customary internationallaw and the presumption against statutory displacement of fundamental rights andfreedoms of the commonlaw. If the former can inform the latter throughdevelopmental processes of the kind mentioned in Mabo then the content ofthe so-called principle of legality may bedeepened.^[119]

Thismakes clear that, at least so far as Chief Justice French is concerned, there iscertainly no aversion per se to the applicationof international law norms todomestic Australian law through statutory interpretation. On the contrary, hepositively invites thepossibility (and maybe the inevitability) that the commonlaw will be developed further in thisregard.^[120]But the interpretive vehicle to be used in the application of these norms toAustralian law is the principle of legality not the presumption ofconsistency.

The suggested approach of Chief Justice French may well reflect a consciousdecision to use and develop the principle of legalityas the exclusiveinterpretive means by which the judicial protection of rights will befacilitated. Or it may be impliedly suggestingthat, at least so far as humanrights are concerned, a convergence of approach between the principle oflegality and presumptionof consistency is inevitable in Australian law. In anyevent, what it does highlight is that as Australian courts continue to reassertthe importance and strength of the principle of legality, they need to clarifythe nature and role (if any) the presumption of consistencyis to play in theage of rights.

I now turn to consider the other important issue that arises if Australiancourts choose to adopt international human rights normsas the rights touchstonefor the principle: the likely impact of incorporating its concomitantmethodology — proportionality— into the framework of theprinciple of legality.

C The Roleof Proportionality

The first point worth noting is that if Australian judges develop theprinciple of legality in the manner which Dyzenhaus, Hunt andTaggartsuggest^[121] they would becreating a common law bill of rights that, at least in terms of the interpretiverole of the courts, is largely indistinguishablefrom the kind of statutory billof rights recommended by the Brennan Report and rejected by theAustralian government.^[122] Thesame catalogue of rights would be protected and the principle of legality wouldperform the same interpretive work as an interpretationand limitationprovisions in a bill of rights.

There would, however, still be important distinctions between this sort ofcommon law model and a statutory bill of rights. The powerto issue declarationsthat statutory provisions are incompatible with rights is an important part ofthe judicial function underthe latter but not necessarily theformer.^[123] It is also unlawful,under some statutory bills of rights, for a public authority to act in a waythat is incompatible with a humanright or fails to give proper consideration toa relevant human right.^[124]Courts, then, have the important role of constraining and remedying (ifnecessary and possible) these forms of public authorityillegality.^[125] And whilst itwould certainly be understandable if judges were to apply a statutoryinterpretive principle more vigorously than acommon law presumption, this maynot necessarily occur, if the recent bill of rights jurisprudence in New Zealandand the ACT isanything to goby.^[126]

In any event, for reasons of democratic legitimacy Australian courts maydecline to develop the principle of legality in this wayif to do so would ineffect secure a reform which the Australian elected branches of government haveso recently rejected. Indeed,it is worth noting that the Dyzenhaus, Hunt andTaggart argument is made in relation to jurisdictions (Canada, the UK and NewZealand)where courts already routinely undertake proportionality analysis inorder to discharge their judicial role under a bill ofrights.^[127] In this regard, thequantum leap in judicial method — which the incorporation ofproportionality clearlyis^[128] —has already been made, but at the instigation of Parliament, not by the courtsthemselves.^[129] This might alsoexplain why the Australian High Court has chosen not to follow the lead of itsBritish, Canadian and (to a lesserextent) New Zealand counterparts and adoptproportionality as a new ground for the judicial review of administrativeaction.^[130]

The second, arguably more important, point is that incorporatingproportionality into the principle of legality framework would requirejudges toanswer questions that are more political and philosophical than legal. As ChiefJustice Gleeson has noted:

Whether the question is characterised in terms of standard of scrutiny, orproportionality, or a judgment about what is, or couldbe considered to be,appropriate and adapted, (all expressions that carry their own baggage and needto be applied with discrimination),in the end it comes down to one about therelations between the legislative and judicial arms of government. In a liberaldemocracy,such a question is fundamentallypolitical.^[131]

Thedifficulty with proportionality is that judges must not only determine whetherlegislation infringes rights but also assess whetherthat infringement isjustified in light of its other legitimate policy aims. The essence of thelatter inquiry is an assessment asto whether the rights infringement is no morethan is necessary to achieve the policy aim(s) of thelegislation.^[132] In other words,if a court considers that there are ‘alternative practicable meansavailable to achieve the same end whichare less restrictive of the protectedinterest’^[133]then the law disproportionately and unjustifiably infringes rights. In this waythe core proportionality inquiry requires courtsto review (indeed,second-guess) the difficult balance that must be struck in legislation betweenthe full range of competing rightsand interests that inevitably arise incomplex issues of social policy. However, courts will often lack theinstitutional resourcesand expertise to properly undertake this sort ofpolycentric decision-making. They have neither the procedures for meaningfulcollectivedeliberation available to Parliaments nor the capacity of Parliaments(both in terms of time and resources) to conduct inquirieson rights issues andproduce accompanyingreports.^[134]

The third point is that the application of the proportionality test is verymuch in the eye of the judicial beholder. Whilst it certainly‘provides anefficient framework for judging restrictions and specifyingobjections’,^[135] the‘test itself does not give any guidance as to, and consequently does notplace any restriction on, how judges assign weightto the competinginterests.’^[136] As TomPoole has recently noted, the upshot is that ‘proportionality is plasticand can in principle be applied almost infinitelyforcefully or infinitelycautiously, producing an area of discretionary judgement that can be massivelybroad or incredibly narrow— and anything else inbetween.’^[137]

So for at least three reasons Australian courts should carefully consider thesignificant methodological issues that would necessarilyattend theincorporation of proportionality into the framework of the principle oflegality. The final Part of the article will explorethese issues further in thecontext of the rights to freedom of speech and non-discrimination. The former isnow recognised as afundamental right at common law, and Chief Justice Spigelmanrecently mooted for the latter to be similarly recognised.

V THE PRINCIPLE OFLEGALITY AND PROPORTIONALITY APPLIED

A TheCommon Law Right to Freedom ofSpeech

The analysis undertaken in Part III(B) demonstrated that the principle oflegality is presently applied in the form of a legal rulewithout the balancingof competing rights and interests. It operates to insulate (and so protect infull) the judicial conceptionof the relevant common law right from theoperation of the legislation. And even though the contextual nature of commonlaw rightsis judicially acknowledged, the cases make clear that what isrequired in that context will be determined by thecourt.^[138] As noted, thisinterpretive proposition is controversial for all common law rights butespecially those with an essentially indeterminatecontent such as freedom ofspeech.^[139]

In any event, this methodology requires the prior determination of thecontent of the relevant common law right (ie what it requiresin a particularcontext) in order for the principle to be applied. In this regard it maybe that it is suitable and legitimate for the content of some common law rights(eg those relating to property, liberty and fairtrial) to be determined byjudges due to their professional expertise and institutional experience. Butthis interpretive proposition— even regarding long-establishedcommon law rights — assumes that judges can make such determinationswithout controversy:that is, that judges can determine their content withoutrecourse to contested political or moral conceptions of what these rightsentail. So it is important that if the courts continue to apply the principle oflegality in the form of a legal rule, they shouldclearly articulate (andjustify) the content of the common law rights that they are insulating from theordinary operation of legislation.

However, the common law right to freedom of speech is of a different kind. Itarises more in the nature of a claim in political ormoralphilosophy.^[140]For example, in the context of the ECHR, Adam Tomkins characterisesfreedom of expression — rightly in my view — as a qualifiedpolitical claim that has beenelevated to the status of a substantive right:

The problem is that, politically, most of us do not want to claim that everyonehas the right to say whatever they want. Politically,we are nervous about someforms of speech, about certain subject matters, and about the consequences ofactually quite a lot of speech.Where and how to draw the lines betweenacceptable and unacceptable expression is quintessentially a political question,which, undera political constitution, ought to be addressed and resolvedpolitically.^[141]

Thepoint is not to deny the essential nature of the right to a tolerant and vibrantdemocracy. On the contrary, it is hard to denythe importance and virtue of thevalues that underpin the right to freedom of speech and the ideals andaspirations which itembodies.^[142] But the content ofthe right is hotly contested and largelyindeterminate.^[143]In this regard, the right to free speech does not have a core content thatjudges can reasonably and non-controversially determineand so protect throughthe application of the principle of legality. It does not function well as alegal rule, since, as noted,it is essentially a political or moral claim thatmust be mediated through a process of internal qualification before the‘right’to be protected in any given circ*mstance can be identified.And proportionality is, increasingly, the method used by judges to undertakethat process in the age of rights. But as noted in Part IV(C), this approach orinquiry raises political questions for which courtswill often lack theinstitutional resources and expertise to answer properly.

B Non-Discrimination as a Common LawRight

The final point I wish to make concerns the observation of Chief JusticeSpigelman that the common law may soon recognise a presumptionthat Parliamentdoes not intend to legislate in a manner that discriminates with respect togender, race, religion and other internationally-recognisedgrounds.^[162] Before taking such astep, the courts need to carefully consider the methodological consequences forthe principle of legality.

On the one hand, Australian courts have for some time appliednon-discrimination rules in a variety of statutory and constitutionalsettings.^[163]And though determining what non-discrimination rules require in any givencontext is a notoriously complextask,^[164] judges do possessconsiderable methodological experience in thisregard.^[165] In the statutorycontext, those rules are expressed in some detail and try to ‘stipulatewith reasonabl[e] clarity the circ*mstancesin which it is impermissible for anattribute possessed by a person, such as his or her race or sex, to influence adecision whichis made about thatperson.’^[166] According toNeil Rees, Katherine Lindsay and Simon Rice, that aim has only been met with‘limitedsuccess’.^[167] Indeed, theyare critical of the following general conception of discrimination, articulatedin the constitutional context by theHighCourt^[168] but used also in theapplication of statutory non-discrimination rules that lack particularity anddetail and so require judicialexegesis:

The essence of the notion of discrimination is said to lie in the unequaltreatment of equals or the equal treatment of those whoare not equals, wherethe differential treatment and unequal outcome is not the product of adistinction which is appropriate and adaptedto the attainment of a properobjective.^[169]

Inthe view of Rees, Lindsay and Rice this conception of impermissiblediscrimination ‘could never provide the degree of certaintywhich isnecessary if a general anti-discrimination statute is to operate with areasonable level ofsuccess.’^[170] Indeed, thisprinciple — which Amelia Simpson has called the‘“universal” conception ofdiscrimination’^[171]— appears to ‘regard a certain kind of indeterminacy as an inherentfeature of non-discriminationrules.’^[172] As the HighCourt has stated:

Discrimination is a concept that arises for consideration in a variety ofconstitutional and legislative contexts. It involves acomparison, and, where acertain kind of differential treatment is put forward as the basis of a claim ofdiscrimination, it mayrequire an examination of the relevance, appropriateness,or permissibility of some distinction by reference to which such treatmentoccurs, or by reference to which it is sought to be explained or justified. Inthe selection of comparable cases, and in forminga view as to the relevance,appropriateness, or permissibility of a distinction, a judgment may beinfluenced strongly by the particularcontext in which the issue arises.Questions of degree may beinvolved.^[173]

Indeed,when it is understood that the ‘appropriate and adapted’ test— which the High Court considers a synonymforproportionality^[174] — isthe mechanism used to apply this non-discrimination rule, then the test’sindeterminacy becomes manifest. Not surprising,then, is Simpson’scritical observation of the High Court’s universal conception ofnon-discrimination:

Having accepted the essential indeterminacy of these rules, and thus the needfor assessments of reasonableness and value judgments,the Court has createdprinciples that cannot be self-executing. Instead, the universal conception ofdiscrimination invites —indeed requires — the exercise ofsignificant judicial discretion on sensitive and controversial issues. Yet theCourt’spractice over recent years, when invoking the universalconception, has been to avoid a full and candid airing of reasons for preferringone position over other alternatives. Countervailing pressures — likelythe standard concerns about judicial legitimacy andinstitutional competence— appear to have wonout.^[175]

In anyevent, the important point is that if the right to non-discrimination isrecognised as fundamental at common law then the courtswill likely (maybeinevitably) turn to the universal conception to provide its content. The upshotis that, again, the courts willneed to undertake a proportionality inquiry,with its attendant methodological challenges, to identify the‘right’ tobe protected through the application of the principle oflegality. But as noted, Australian courts already use proportionality toapply avariety of constitutional and statutory non-discrimination rules. To do so inthe context of a common law non-discriminationrule would not, then, involve anew form of judicialreasoning.^[176] It would, however,require the courts to recognise that the existing methodology of the principleof legality is no longer appropriateor legitimate, as that methodology fails totake account of the competing rights and interests that inevitably arise in mostnon-discriminationcases.

Indeed, if non-discrimination were recognised as a common law right thismethodological reformation of the principle may be inevitable— for it isdifficult to see how the principle could be applied meaningfully in its currentform as a legal rule (ie withoutbalancing) when the content of the right tonon-discrimination is entirely contextual andindeterminate.^[177]

VI CONCLUSION

Chief Justice French recently stated that the common law principle oflegality ‘has a significant role to play in the protectionof rights andfreedoms in contemporary society, while operating in a way that is entirelyconsistent with the principle of parliamentarysupremacy.’^[178] Indeed, hisHonour went so far as to say that ‘the interpretive rule can be regardedas “constitutional” in charactereven if the rights and freedomswhich it protects arenot.’^[179] Butnotwithstanding its contemporary (and constitutional) significance to statutoryconstruction and rights protection at both commonlaw and under bills of rights,it remains a principle for which there is little meaningful judicial exegesis.This article has soughtto fill at least part of the resulting analyticalgap.

It did so by first providing a brief history of the principle of legality,including its contemporary reassertion by Australian courtsas the chiefinterpretive tool to facilitate rights protection. Then an analysis ofAustralian case law was undertaken in order toascertain the content of theprinciple and how the courts currently apply it. This revealed theprinciple’s current methodologybut also raised a number of importantissues which the courts are yet to address. These methodological issues wereoutlined thenconsidered in the context of the rights to freedom of speech andnon-discrimination. This analysis suggested that a reassessmentof its currentmethodology may be required if the principle of legality is to be applied anddeveloped in the age of rights in aconstitutionally appropriate manner.

^[*]BEc, LLB, LLM (Monash), PhD(UNSW); Associate Professor, School of Law, Deakin University. My thanks are dueto the anonymous refereesfor their helpful comments and suggestions, and to JimAllan for inviting me to present an earlier version of this paper at a researchseminar at the University of Queensland in October 2010.

^[1]Attorney-General’sDepartment (Cth), Australia’s Human RightsFramework (2010)<http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_Australias

HumanRightsFramework_AustraliasHumanRightsFramework>.

^[2]National Human RightsConsultation Committee, National Human RightsConsultation — Report (2009)<http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_

NationalHumanRightsConsultationReportDownloads>.

^[3]On the UK’s JointParliamentary Committee on Human Rights, see generally UK Parliament,Joint Select Committee — HumanRights <http://www.parliament.uk/business/committees/

committees-archive/joint-committee-on-human-rights/>.

^[4]HRF, above n 1, 8.

^[5]Ibid. The seven human rightstreaties are the International Covenant on Civiland Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); InternationalCovenant on Economic, Social andCultural Rights, opened for signature 16 December 1966, 999 UNTS 3(entered into force 3 January 1976); International Conventionon the Elimination of All Formsof Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969); Conventionon the Elimination of All Formsof Discrimination against Women, opened forsignature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981);Convention against Torture and OtherCruel, Inhuman or Degrading Treatmentor Punishment, opened for signature 10 December 1984, 1465 UNTS 85(entered into force 26 June 1987); Convention on theRights of the Child, opened for signature 20November 1989, 1577 UNTS 3 (entered into force 2 September 1990);Convention on the Rights of Personswith Disabilities, opened for signature 13 December 2006, 2515UNTS 3 (entered into force 3 May 2008).

^[6]Janet L Hiebert,‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69Modern Law Review 7, 9.

^[7]For a generally positiveassessment of the impact of political rights review under the HumanRights Act 1998 (UK) c 42 on the development of law andpolicy, see Department for Constitutional Affairs (UK), Review ofthe Implementation of the Human RightsAct (2006)<http://www.justice.gov.uk/guidance/docs/full_review.pdf>.

^[8]See, eg, Sean Lau,‘Editorial: The Future of Human Rights in Australia’ [2010] UNSWLawJl 2; (2010) 33University of New South Wales LawJournal 5. See further a collection of eight articles in [2010] UNSWLawJl 3; (2010) 33University of New South Wales LawJournal 8–238, a special issue on the future of human rights inAustralia following the release of the HRF.

^[9]HRF, above n 1, 1.

^[10]See Sir Gerard Brennan,‘The Constitution, Good Government and Human Rights’ (2008) 16Australian Law Librarian 83, 94.

^[11]HRF, above n 1, 10.

^[12]Ibid.

^[13]See Wendy Lacey,Implementing Human Rights Norms: JudicialDiscretion and Use of UnincorporatedConventions (Presidian Legal Publications, 2008) 94–109.

^[14]See, eg, R vSecretary of State for the HomeDepartment; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 130(Lord Steyn) (‘Simms’); Claudia Geiringer, ‘ThePrinciple of Legality and the Bill of Rights Act: ACritical Examination of R v Hansen’ (2008) 6New Zealand Journal of Public andInternational Law 59, 62–3; Sir Philip Sales, ‘AComparison of the Principle of Legality and Section 3 of the HumanRights Act 1998’ (2009) 125 LawQuarterly Review 598, 611.

^[15]Simms [1999] UKHL 33; [2000] 2 AC115, 131 (Lord Hoffmann).

^[16]Potterv Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O’Connor J), quoting SirPeter Benson Maxwell, On the Interpretation ofStatutes (Sweet & Maxwell, 4^th ed, 1905) 122.

^[17][1772] EngR 57; (1772) Lofft1; 98 ER 499.

^[18]‘The Substance ofLord Mansfield’s Speech on the Case between Mr Stuart and Somerset theBlack, which was Determinedon Monday the 21^st June’ (1772) 41The London Magazine or Gentleman’sMonthly Intelligencer 267, 268.

^[19]George Van Cleve,‘Somerset’s Case and Its Antecedents in ImperialPerspective’ (2006) 24 Law and History Review601, 636.

^[20]Ibid.

^[21]See Chief JusticeJ J Spigelman, ‘Principle of Legality and the Clear StatementPrinciple’ (2005) 79 Australian Law Journal 769,774–5, 780–1.

^[22]Potterv Minahan [1908] HCA 63; (1908) 7 CLR 277, 288–9 (Griffith CJ), 299 (BartonJ), 306–7 (O’Connor J).

^[23]Lord Browne-Wilkinson,‘The Infiltration of a Bill of Rights’ [1992] PublicLaw 397, 397.

^[24]Geiringer, ‘ThePrinciple of Legality’, above n 14,88.

^[25]See Murray Gleeson,‘The Meaning of Legislation: Context, Purpose and Respect for FundamentalRights’ (2009) 20 Public Law Review 26,33–4.

^[26]Lord Browne-Wilkinson,above n 23, 398.

^[27]Conor Gearty, CanHuman Rights Survive? (Cambridge University Press, 2006)25–8.

^[28]Geiringer, ‘ThePrinciple of Legality’, above n 14,89.

^[29]Conventionfor the Protection of Human Rightsand Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

^[30]The ECHR wasincorporated into English domestic law by the Human RightsAct 1998 (UK) c 42.

^[31]Lord Browne-Wilkinson,above n 23, 409.

^[32][1987] HCA 12; (1987) 162 CLR 514.

^[33]Ibid 523 (Brennan J). Seealso at 518 (Mason CJ, Wilson and Dawson JJ).

^[34][1990] HCA 24; (1990) 171 CLR 1,17–18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

^[35][1994] HCA 15; (1994) 179 CLR 427.

^[36]Ibid 436 (Mason CJ,Brennan, Gaudron and McHugh JJ) (citations omitted).

^[37]See, eg, in Australia,Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR476, 492 (Gleeson CJ); in New Zealand, R v Pora [2000] NZCA 403; [2001]2 NZLR 37, 50 [53] (Elias CJ); and in the UK, R vSecretary of State for the HomeDepartment; Ex parte Pierson [1997] UKHL 37; [1998] AC 539,573–5

(Lord Browne-Wilkinson).

^[38]See, eg, in the Australiancontext, Gleeson, above n 25; and in the UKcontext, Lord Steyn, ‘Dynamic Interpretation amidst an Orgy ofStatutes’ (2004) 3 European Human Rights LawReview 245.

^[39][1999] UKHL 33; [2000] 2 AC 115,131–2.

^[40]Ibid 131.

^[41]ElectroluxHome Products Pty Ltd v AustralianWorkers’ Union [2004] HCA 40; (2004) 221 CLR 309, 329.

^[42]See Sales, above n 14, 611.

^[43]In the NewZealand context, see R v Hansen [2007] 3 NZLR 1, 45–6(Tipping J), 62 (McGrath J), 89 (Anderson J); Geiringer, ‘ThePrinciple of Legality’, above n 14,68, 83–6. In the UK context, see Ghaidan vGodin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; Aileen Kavanagh, ConstitutionalReview under the UK Human RightsAct (Cambridge University Press, 2009) 51–2.

^[44]See Rv Hansen [2007] 3 NZLR 1, 12 (Elias CJ), 80 (McGrath J).Interestingly, in the New Zealand context, Claudia Geiringer argues that toequate the s 6 interpretationprovision of the Human RightsAct 1993 (NZ) with the principle of legality makes the formerredundant ‘as the common law principle of legality ought to have beenfactored into the initial “ordinary meaning” inquiry’:Geiringer, ‘The Principle of Legality’, aboven 14, 83–6.

^[45] (2011) 280 ALR 221,245.

^[46]See generally Chief JusticeJames Spigelman, Statutory Interpretation and HumanRights (University of Queensland Press, 2008) vol 3, 27–9.

^[47]R &R Fazzolari Pty Ltd v ParramattaCity Council [2009] HCA 12; (2009) 237 CLR 603, 619 (French CJ).

^[48]Re Bolton[1987] HCA 12; (1987) 162 CLR 514, 523 (Brennan J).

^[49]Evans vNew South Wales [2008] FCAFC 130; (2008) 168 FCR 576, 595–6 (French,Branson and Stone JJ).

^[50]MelbourneCorporation v Barry [1922] HCA 56; (1922) 31 CLR 174, 199–201(Isaacs J).

^[51]Saeed vMinister for Immigration and Citizenship[2010] HCA 23; (2010) 241 CLR 252, 271 (French CJ, Gummow, Hayne, Crennan and KiefelJJ).

^[52]See PlaintiffS157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476.

^[53]Spigelman, StatutoryInterpretation and Human Rights, above n 46, 29.

^[54]Ibid 26. In the Americanbill of rights context, see David Crump, ‘How Do the Courts ReallyDiscover Unenumerated Fundamental Rights? Cataloguing the Methods of JudicialAlchemy’ (1996) 19 Harvard Journal of Lawand Public Policy 795.

^[55][1987] HCA 12; (1987) 162 CLR 514,520–1.

^[56]See also Watkinsv Secretary of State for theHome Department [2006] 2 AC 395, 418–19(Lord Rodger).

^[57] 31 Car 2, c 2.

^[58]ReBolton [1987] HCA 12; (1987) 162 CLR 514, 521.

^[59]See generallyJ C Holt, Magna Carta (Cambridge University Press,2^nd ed, 1992).

^[60]See Tom Bingham, TheRule of Law (Allen Lane, 2010) 17–20. The authornotes that ‘[r]emarkably, although only in form a petition, thisinstrument wastreated and printed as a statute’: at 20.

^[61]See Sir Owen Dixon,‘Concerning Judicial Method’ in Severin Woinarski (ed),Jesting Pilate: And Other Papers andAddresses (William S Hein & Co, 1965) 152; Justice Michael McHugh,‘The Law-Making Function of the Judicial Process — PartI’ (1988) 62 Australian Law Journal 15; Justice MichaelMcHugh, ‘The Law-Making Function of the Judicial Process —Part II’ (1988) 62 Australian Law Journal116.

^[62][2010] FCAFC 89; (2010) 185 FCR 409.

^[63]Ibid 444–5 (Logan J),citing David Lusty, ‘Is There a Common Law Privilege againstSpouse-Incrimination?’ [2004] UNSWLawJl 1; (2004) 27 University of NewSouth Wales Law Journal 1.

^[64]Stoddart vBoulton [2010] FCAFC 89; (2010) 185 FCR 409, 412 (Spender J), 434–7 (Greenwood J),444–5 (Logan J). See also S v Boulton [2006] FCAFC 99; (2006) 151FCR 364, 378–81 (Jacobson J), 389 (Greenwood J).

^[65]AustralianCrime Commission v Stoddart [2011] HCA 47 (30November 2011).

^[66]Ibid [183] (Crennan, Kiefeland Bell JJ). See also at [29]–[41] (French CJ and Gummow J).

^[67]Ibid [19]–[41](French CJ and Gummow J), [69]–[152] (Heydon J dissenting),[178]–[191] (Crennan, Kiefel and BellJJ).

^[68]Ibid [191] (Crennan, Kiefeland Bell JJ). See also at [41] (French CJ and Gummow JJ).

^[69]Indeed, Heydon J in dissentmade the following cryptic observation (ibid [166]):

The appellant denied that spousal privilege was a fundamental right. Itsubmitted that whether it was fundamental depended on whetherit had‘entrenched and consistent recognition in the decided cases as afundamental right’ (emphasis in original). But a right does not becomefundamental merely because cases call it that. Anda right does not cease to befundamental merely because cases do not call it that.

^[70]Sales, above n 14, 605.

^[71]See, eg, LegislationAct 2001 (ACT) s 139; Interpretation ofLegislation Act 1984 (Vic) s 35(a);Interpretation Act 1999 (NZ) s 5.

^[72]Sales, above n 14, 605.

^[73]Spigelman, StatutoryInterpretation and Human Rights, above n 46, 26.

^[74]ReBolton [1987] HCA 12; (1987) 162 CLR 514, 520 (Brennan J).

^[75]Sales, above n 14, 606.

^[76]David Dyzenhaus, MurrayHunt and Michael Taggart, ‘The Principle of Legality in AdministrativeLaw: Internationalisation asConstitutionalisation’ (2001) 1 OxfordUniversity Commonwealth Law Journal 5, 6.

^[77]See Julius Stone,Legal System and Lawyers’ Reasonings(Maitland Publications, 1964) 209–11, 235–41.

^[78]Potterv Minahan [1908] HCA 63; (1908) 7 CLR 277, 304 (O’Connor J), quoting SirPeter Benson Maxwell, On the Interpretation ofStatutes (Sweet & Maxwell, 4^th ed, 1905) 122.

^[79]See Sales, above n 14, 605.

^[80]See, eg,Daniels Corporation International Pty Ltdv Australian Competition and ConsumerCommission [2002] HCA 49; (2002) 213 CLR 543, 552–3 (Gleeson CJ, Gaudron, Gummowand Hayne JJ). See also Dennis Rose, ‘The High Court Decisions inAl-Kateb and Al Khafaji — A DifferentPerspective’ (2005) 8 Constitutional Law andPolicy Review 58, 59–60.

^[81][2006] FCAFC 99; (2006) 151 FCR 364,383–4 (citations omitted).

^[82]Ibid 375 (Black CJ), 383(Jacobson J), 390 (Greenwood J).

^[83]Ibid 388 (Jacobson J,Greenwood J agreeing on this point). See also at 375–6 (Black CJ).

^[84][2009] HCA 12; (2009) 237 CLR 603.

^[85]Ibid 618–19(citations omitted).

^[86][2010] HCA 23; (2010) 241 CLR 252.

^[87]Specifically, ‘that,in the ordinary case, an opportunity should be given to a person affected by adecision to deal with anyadverse information that is “credible, relevantand significant”’: ibid 261 (French CJ, Gummow, Hayne, CrennanandKiefel JJ), citing Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629(Brennan J).

^[88]MigrationAct 1958 (Cth) s 51A(1).

^[89]Ibid s56.

^[90]Saeed [2010] HCA 23; (2010) 241 CLR252, 264–5.

^[91]Ibid 271.

^[92]My thanks are due to bothreferees for this point.

^[93][2010] HCA 23; (2010) 241 CLR 252, 260(French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (citations omitted).

^[94]See below Part V(A).

^[95]This issue was raised in aconstitutional (and statutory) context in Spencer vCommonwealth [2010] HCA 28; (2010) 241 CLR 118 where the plaintiff argued that acollection of intergovernmental agreements between the Commonwealth and NewSouth Wales resultedin him being prevented by legislation from clearingvegetation on his property without consent. The High Court held that the FederalCourt wrongly dismissed his action on the grounds that it had no reasonableprospect of success but did not consider whether therestrictions amounted to acompulsory acquisition of property by the Commonwealth on other than just terms:at 134–5 (FrenchCJ and Gummow J), 138 (Hayne, Crennan, Kiefel andBell JJ). See further Stephen Lloyd, ‘Compulsory Acquisition and InformalAgreements: Spencer v Commonwealth’ [2011] SydLawRw 6; (2011) 33Sydney Law Review 137.

^[96]For example, the common lawright to liberty is (reasonably and necessarily) limited by legislation thatprovides for the denialof bail when a person is accused of a very serious crimeand/or poses a serious flight risk: see Bail Act 1977 (Vic)s 4(2).

^[97]Paul Rishworth,‘Common Law Rights and Navigation Lights: Judicial Review and the NewZealand Bill of Rights’ (2004) 15 PublicLaw Review 103, 106.

^[98]See below nn 99–107 and accompanying text.

^[99]Dyzenhaus, Hunt andTaggart, above n 76, 32–3.

^[100]Ibid 33 (citationsomitted).

^[101]Sales, above n 14, 606.

^[102]See Dyzenhaus, Hunt andTaggart, above n 76, 30.

^[103]Ibid.

^[104]Ibid 31.

^[105]Ibid.

^[106]Spigelman,Statutory Interpretation and Human Rights,above n 46, 29.

^[107]Chief JusticeR S French, ‘Oil and Water? International Law and Domestic Lawin Australia’ (Speech delivered at the BrennanLecture, Bond University,26 June 2009) 21 <http://www.hcourt.

gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26June09.pdf>.

^[108]It was first noted inJumbunna Coal Mine NL v VictorianCoal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309, 363(O’Connor J). See also Polites v Commonwealth [1945] HCA 3; (1945)70 CLR 60, 68 (Latham CJ), 74 (Rich J), 77 (Dixon J), 79 (McTiernan J),80–1 (Williams J); Kartinyeri v Commonwealth[1998] HCA 22; (1998) 195 CLR 337, 386 (Gummow and Hayne JJ).

^[109]See above PartIV(A).

^[110] [2006] 1 NZLR 289.

^[111]Ibid 321 [91], 321 [93](Keith J for Elias CJ, Gault, Keith, Blanchard and Eichelbaum JJ) (emphasisadded).

^[112]Ibid 321[91]–[93].

^[113]Claudia Geiringer,‘International Law through the Lens of Zaoui: Where Is New Zealandat?’ (2006) 17 Public Law Review 300, 317.

^[114]Ibid 317–18. Seealso Philip Joseph and Thomas Joseph, ‘Human Rights in the New ZealandCourts’ (2011) 18 Australian Journal ofAdministrative Law 80, 98.

^[115]See, eg, Ministerfor Immigration and Ethnic Affairs vTeoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J); RoyalWomen’s Hospital v MedicalPractitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22, 39(Maxwell P).

^[116]See Kartinyeriv Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 386 (Gummow and Hayne JJ);Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR476, 492 (Gleeson CJ).

^[117]Al-Katebv Godwin [2004] HCA 37; (2004) 219 CLR 562, 590–1.

^[118]See Colemanv Power [2004] HCA 39; (2004) 220 CLR 1, 27, where Gleeson CJ stated that‘the formulation of a general principle of statutory interpretation byreference to internationalobligations requires some care.’

^[119]French, ‘Oil andWater?’, above n 107, 20.

^[120]Ibid 21. See furtherChief Justice Robert French, ‘Protecting Human Rights without a Bill ofRights’ (Speech deliveredat the John Marshall Law School, Chicago, 26January 2010)

25–36<http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj

26jan10.pdf>.

^[121]Dyzenhaus, Hunt andTaggart, above n 76, 30–3.

^[122]See above nn 2–12and accompanying text.

^[123]For an argument that thecommon law ought to develop this power, see David Jenkins, ‘Common LawDeclarations of Unconstitutionality’ (2009) 7 InternationalJournal of Constitutional Law 183. And though theNew Zealand Bill of Rights Act1990 (NZ) has no formal declaration power, there is some judicial andacademic support for the proposition that the courts, nevertheless,have animplied jurisdiction to do so: Moonen v Film andLiterature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, 17 [20](Tipping J for Elias CJ, Richardson P, Keith, Blanchard and Tipping JJ).See also Andrew S Butler, ‘Judicial Indicationsof Inconsistency — ANew Weapon in the Bill of Rights Armoury?’ [2000] NewZealand Law Review 43. For a convincing argument that theNew Zealand courts are unlikely to develop a formal declaratory jurisdiction,see Claudia Geiringer,‘On a Road to Nowhere: Implied Declarations ofInconsistency and the New Zealand Bill ofRights Act’ (2009) 40 Victoria UniversityWellington Law Review 613.

^[124]See, eg, HumanRights Act 2004 (ACT) s 40B; Charter ofHuman Rights and Responsibilities Act2006 (Vic) s 38.

^[125]See, eg, HumanRights Act 2004 (ACT) s 40C; Charter ofHuman Rights and Responsibilities Act2006 (Vic) s 39. See generally Carolyn Evans and Simon Evans,Australian Bills of Rights: The Lawof the Victorian Charter and ACTHuman Rights Act (LexisNexis Butterworths, 2008)ch 4.

^[126]See, eg, Rv Hansen [2007] 3 NZLR 1; R v Fearnside[2009] ACTCA 3; (2009) 165 ACTR 22.

^[127]See R vOakes [1986] 1 SCR 103; R v A [No 2] [2002] 1 AC 45; R v Hansen [2007] 3 NZLR 1.

^[128]See Thomas Poole,‘The Reformation of English Administrative Law’ (2009) 68Cambridge Law Journal 142; Michael Taggart,‘Proportionality, Deference, Wednesbury’ [2008] NewZealand Law Review 423.

^[129]See Lord Justice Sedley‘The Last 10 Years’ Development of English Public Law’ (2004)12 Australian Journal of Administrative Law9, 15–17.

^[130]See Mark Aronson, BruceDyer and Matthew Groves, Judicial Review ofAdministrative Action (Lawbook, 4^th ed, 2009)379–82.

^[131]Gleeson, above n 25, 36.

^[132]See Kavanagh, above n 43, 233–7.

^[133]Jeremy Kirk,‘Constitutional Guarantees, Characterisation and the Concept ofProportionality’ [1997] MelbULawRw 1; (1997) 21 Melbourne University LawReview 1, 7.

^[134]See Tom Campbell,‘Human Rights Strategies: An Australian Alternative’ in TomCampbell, Jeffrey Goldsworthy and AdrienneStone (eds), ProtectingRights without a Bill of Rights(Ashgate, 2006) 319; Janet L Hiebert, ‘Parliament and Rights’ in TomCampbell, Jeffrey Goldsworthy and Adrienne Stone(eds), ProtectingHuman Rights: Instruments and Institutions(Oxford University Press, 2003) 231; Jeremy Waldron, ‘Legislating withIntegrity’ (2003) 72 Fordham Law Review 373.

^[135]Kirk, above n 133, 63.

^[136]Adrienne Stone,‘The Limits of Constitutional Text and Structure: Standards of Review andthe Freedom of Political Communication’[1999] MelbULawRw 26; (1999) 23 MelbourneUniversity Law Review 668, 686.

^[137]Poole, above n 128, 146.

^[138]See, eg, Sv Boulton [2006] FCAFC 99; (2006) 151 FCR 364; R & RFazzolari v Parramatta City Council [2009] HCA 12; (2009)237 CLR 603; Saeed [2010] HCA 23; (2010) 241 CLR 252.

^[139]See above n 94 and accompanying text.

^[140]See Adam Tomkins,‘The Role of the Courts in the Political Constitution’ (2010) 60University of Toronto Law Journal 1,4–7.

^[141]Ibid 5.

^[142]For an excellent accountof the values that underpin and justify the right to freedom of speech see EricBarendt, Freedom of Speech (Oxford University Press,2^nd ed, 2007) 6–38.

^[143]Tom Campbell,‘Human Rights: A Culture of Controversy’ (1999) 26 Journalof Law and Society 6, 13–18; Tom Campbell,‘Incorporation through Interpretation’ in Tom Campbell,K D Ewing and Adam Tomkins (eds),Sceptical Essayson Human Rights (Oxford University Press, 2001) 79, 88.

^[144][2010] HCA 23; (2010) 241 CLR 252, 271(French CJ, Gummow, Hayne, Crennan and Kiefel JJ). See above nn 86–91and accompanying text.

^[145]InternationalFinance Trust Company Ltd v NewSouth Wales Crime Commission (2009) 240 CLR 319,354.

^[146]Michael Chesterman,Freedom of Speech in Australian Law:A Delicate Plant (Ashgate, 2000) vii (citations omitted).See also Bingham, above n 60,78–9.

^[147]Simms [1999] UKHL 33; [2000] 2 AC115, 125–6 (Lord Steyn).

^[148][2008] FCAFC 130; (2008) 168 FCR 576, 594(French, Branson and Stone JJ).

^[149]Ibid 592–7.

^[150]Ibid 578–9.

^[151]Ibid 596.

^[152]WorldYouth Day Regulation 2008 (NSW) reg 7(1)(b).

^[153]I note here thatproportionality has been used to test whether delegated legislation is ultravires with respect to the regulation-makingpower in the primary legislation.See Shrestha v Minister for Immigrationand Multicultural Affairs [2001] FCA 359; (2001) 64 ALD 669, 675 (MadgwickJ); House v Forestry Tasmania [1995] TASSC 95; (1995) 5 Tas R169, 176 (Green CJ), 180–1 (Crawford J). This approach (which assesseswhether a regulation is ‘reasonably proportional’to fulfilling thepurpose(s) of the empowering provision) is consistent with theconstitutional characterisation of purposive legislative powers: Leaskv Commonwealth [1996] HCA 29; (1996) 187 CLR 579, 605–6 (Dawson J). InEvans, the Federal Court made clear that it was the principle of legalitythat was applied to invalidate the regulation, not proportionalityin this(delegated legislation) characterisation context: [2008] FCAFC 130; (2008) 168 FCR 576,592–7 (French, Branson and Stone JJ).

^[154]Evans [2008] FCAFC 130; (2008) 168FCR 576, 597 (French, Branson and Stone JJ).

^[155]Ibid 579.

^[156][2004] HCA 39; (2004) 220 CLR 1.

^[157]Ibid 75, 77 (Gummow andHayne JJ), 97–8 (Kirby J).

^[158]Ibid 78 (Gummow andHayne JJ), 99–100 (Kirby J).

^[159]Ibid 32 (Gleeson CJ),113–14 (Callinan J), 124–6 (Heydon J).

^[160]Ibid 32 (emphasisadded).

^[161]Ibid 31–2.

^[162]Spigelman,Statutory Interpretation and Human Rights,above n 46, 29.

^[163]See Neil Rees, KatherineLindsay and Simon Rice, Australian Anti-Discrimination Law:Text, Cases and Materials (Federation Press, 2008)ch 4.

^[164]See generallyQuilter v A-G [1997] NZCA 207; [1998] 1 NZLR 523, 556 (Keith J). My thanksare due to one of the referees for drawing this judgment to my attention.

^[165]For example, Australianjudges interpret and apply non-discrimination rules in the following statutorycontexts: Racial Discrimination Act 1975 (Cth) s 9;Sex Discrimination Act 1984 (Cth)ss 5–7D; Disability Discrimination Act1992 (Cth) ss 5–6.

^[166]Rees, Lindsay and Rice,above n 163, 73.

^[167]Ibid.

^[168]Ibid.

^[169]Austin vCommonwealth (2003) 215 CLR 185, 247 (Gaudron, Gummow and Hayne JJ)(emphasis added).

^[170]Rees, Lindsay and Rice,above n 163, 73.

^[171]Amelia Simpson,‘The High Court’s Conception of Discrimination: Origins,Applications, and Implications’ [2007] SydLawRw 10; (2007) 29 Sydney LawReview 263, 264.

^[172]Ibid 277.

^[173]BaysideCity Council v Telstra Corporation Ltd[2004] HCA 19; (2004) 216 CLR 595, 629–30 (Gleeson CJ, Gummow, Kirby, Hayne andHeydon JJ), quoted in Simpson, above n 171,272 (citations omitted).

^[174]Lange vAustralian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520, 562,567 n 272 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and KirbyJJ); Mulholland v Australian ElectoralCommission [2004] HCA 41; (2004) 220 CLR 181, 197 (Gleeson CJ), 266–7 (KirbyJ).

^[175]Simpson, above n 171, 288 (citations omitted).

^[176]My thanks are due to oneof the referees for this point.

^[177]See generally PeterWesten, ‘The Empty Idea of Equality’ (1982) 95 HarvardLaw Review 537.

^[178]French,‘Protecting Human Rights without a Bill of Rights’, above n 120, 34.

^[179]Ibid 30.

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