Introduction
- Common law principles are applied by Australian courts in protection of the rights of citizens including safeguarding the democratic rights of each Australian from the encroachment by the government
- Parliament in carrying out its role, may occasionally encroach into the democratic space of the citizen thus the court will be depended upon to protect citizens from such encroachment. The court is supposed to give life to the bill of rights. This is done by applying the principle of legality in decision making by courts. Courts have interpreted the principle of legality in Australia in the case of Electrolux home products pty ltd v Australia workers’ union. [1]
- The High court of Australia has endeavored to apply the principle of legality in most of its decisions in the recent past to favor protection of fundamental human rights against encroachment by the state.
Argument 1: statutory interpretation
2.1. The high court has undertaken most of its interpretation of the statutes by the application of the purposive approach in determination of the intention of the parliament.
2.12 There are cases where the literal interpretation leads to absurdity. Through purposive approach in interpreting and applying statutes some common law principles remain. Among them is the principle of legality.[2]
2.13 the principle of legality has played a great role in cases involving rights to private property, the right to personal liberty, freedom of movement, the principle of natural justice, freedom of expression and access to the courts.[3]
Argument 2: approach in common law
2.21. In Australia, there is a general presumption that the parliament will not interfere with the fundamental common law rights, freedoms and liberties of its citizens.
2.22. The high court has been able to apply the principle of legality in n favor of a narrow vision of classical economic liberalism and against freedom of the state to carry out whatever it pleases.
Conclusion
- The role of legality in contemporary jurisprudence has been amplified through the application in statutory interpretation tools and also the application of the principles of common law by the high court.
- Parliament cannot make laws to abrogate the fundamental rights and freedoms of Australians.
- Statutes are interpreted to find the intention of parliament rather than just putting meaning to words used.
- Extrinsic evidence can be brought in to determine the intention of parliament in cases where it can be seen that parliament is curtailing fundamental common law principles.
