The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that, at its most critical moments, was (and continues to be) informed by U.S. constitutional law design and statutory interpretation principles. On one level, that is no surprise when “it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.” But, what is extraordinary is that the decision of the framers of the Australian Constitution to consciously reject U.S. notions of formal rights guarantees has not, ultimately, been decisive in this regard. The Australian High Court has transformed an old interpretive canon (with U.S. roots) into a strong Australian species of clear statement rule for fundamental rights called the “principle of legality.” It has done so to fill the lacuna in formal rights protection in Australia and to temper (if not outright resist) increasingly common legislative attempts to eradicate fundamental rights. The court has used the application of the principle of legality to construct (and robustly protect from legislative encroachment) a quasiconstitutional common law bill of rights. In order to normatively justify these developments, the Australian High Court has turned toward the inherently contested principles of the Australian Constitution to anchor the principle of legality and the interpretive process more generally. This has, controversially, occurred as part of a foundational shift in judicial doctrine and practice that considers legislative intention to be the product not the lodestar of statutory interpretation. Yet the quasiconstitutional strength of fundamental rights protection in Australia that judges now provide—without a constitutional Bill of Rights—is an achievement as striking as it is problematic from a normative, doctrinal, and constitutional perspective. It has shaken the very foundations of—and the principles that attend to—the proper judicial role in the construction and application of statutes in a constitutional system of separated powers