The Principle of Legality in Australia and New Zealand

This collection is the product of a 2015 Melbourne conference on “The Principle of Legality in Australia and New Zealand”. Conventionally, arising from the 1908 decision of the High Court in Potter v Minehan it is regarded as “improbable” that the legislature has intended to “overthrow fundamental principles, infringe rights or depart from the general system of law” if it has not expressed such an intention unambiguously. However, many issues radiate out from such a sentiment including how courts should approach the apparent expression of statutory intention. Another issue is whether the principle is confined in its application to legislation which may affect rights. Arguably the principle now extends to statutory alteration to the common law generally without the need to confine its ambit to an impact on fundamental or specific rights, freedoms or particular principles. However, in the 2015 High Court decision of ICAC v Cunneen, Gageler J took a different view, denouncing “unfocused invocation” of the principle and raising the concern that such usage “can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy”. Such division of approach sets the scene for this collection of essays which grapples with these dilemmas of statutory interpretation. This well edited collection is of uniformly high quality and flushes out the relevant issues of contemporary dilemmas in respect of the status and scope of the principle of legality. It is a fine contribution to Australian and New Zealand jurisprudence on this fundamental topic. - Ian Freckelton QC, InPrint, Law Institute Journal Victoria, November 2017

Dr Dan Meagher is an Associate Professor in Law at Deakin University in Australia where he teaches and researches in constitutional law, human rights law and statutory interpretation. He has undergraduate degrees in law and economics and an LLM from Monash University, and was awarded a PhD from the University of New South Wales for his thesis on the intersection between freedom of speech and the regulation of racist speech in Australia. Dan is the comments editor for the Public Law Review.

Dr Matthew Groves is Professor of Public Law in the La Trobe University Law School and has published widely on public law. His best known work is the authoritative Australian judicial review study – Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co., 6th ed, 2017). His other books include Meagher and Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017) and Groves and Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017). Matthew is also editor of the Australian Journal of Administrative Law, a fellow of the Australian Academy of Law and was a member of the Commonwealth Administrative Review Council.