By Siddarth Sethi
In April 2010, the Australian government released its Human Rights Framework, a formal response to the recommendations proposed by the National Human Rights Consultation chaired by Father Frank Brennan AO. The Framework adopted many of the recommendations put forth by the Brennan Committee’s Report, including increasing efforts to educate Australians about their rights, and about the nature of rights protection in Australia generally. However, the Australian government rejected the Committee’s primary recommendation to adopt a statutory bill of rights, or Human Rights Act, modeled on existing state and territory legislation already operating in the Australian Capital Territory and Victoria. Due to the lack of federal legislation, the judicial statutory interpretation principles, particularly the principle of legality, remain the primary mechanisms of rights protection in Australia. [1]
Recent High Court decisions including that of Plaintiff S10/2011 v Minister for Immigration and Citizenship (‘Plaintiff S10’) suggest that the power of these mechanisms to prevent the government from rescinding fundamental common law rights has waned. [2][1]Additionally, the changes to section 18C of the Racial Discrimination Act 1975 proposed by the Abbott government have highlighted concerns surrounding the balance of federal rights protection mechanisms and the maintenance of satisfactory checks on legislative power. Given the current political climate, whether the current principle of legality provides adequate rights protection or whether something more, such as the statutory bill of rights suggested by the Brennan Committee, is needed has become increasingly more important.
In April 2010, the Australian government released its Human Rights Framework, a formal response to the recommendations proposed by the National Human Rights Consultation chaired by Father Frank Brennan AO. The Framework adopted many of the recommendations put forth by the Brennan Committee’s Report, including increasing efforts to educate Australians about their rights, and about the nature of rights protection in Australia generally. However, the Australian government rejected the Committee’s primary recommendation to adopt a statutory bill of rights, or Human Rights Act, modeled on existing state and territory legislation already operating in the Australian Capital Territory and Victoria. Due to the lack of federal legislation, the judicial statutory interpretation principles, particularly the principle of legality, remain the primary mechanisms of rights protection in Australia. [1]
Recent High Court decisions including that of Plaintiff S10/2011 v Minister for Immigration and Citizenship (‘Plaintiff S10’) suggest that the power of these mechanisms to prevent the government from rescinding fundamental common law rights has waned. [2][1]Additionally, the changes to section 18C of the Racial Discrimination Act 1975 proposed by the Abbott government have highlighted concerns surrounding the balance of federal rights protection mechanisms and the maintenance of satisfactory checks on legislative power. Given the current political climate, whether the current principle of legality provides adequate rights protection or whether something more, such as the statutory bill of rights suggested by the Brennan Committee, is needed has become increasingly more important.
The judicial principle of legality refers to the presumption that the courts will approach legislation in a manner consistent with fundamental, or common law, rights unless parliament explicitly states otherwise. [3] This principle has a long history in Australian
public law, dating back to the seminal High Court case of Potter v Minahan. [4] Mr. Minahan, was born in Australia but left Australia with his Chinese father at the age of five. Upon his return twenty‐six years later, the Court was faced with determining whether, under the Immigration Restriction Act 1901 (Cth), he was an immigrant. The Court ruled that the right of an Australian‐born person to enter Australia was fundamental, and could only be revoked if the contrary were explicitly stated in a piece of legislation. Due to the absence of
such statements in the relevant Act, Mr. Minahan was not considered an immigrant. Justice O’Connor captures the essence of this principle in Australian public law in his opinion, stating that the Court does not recognize implicit restrictions on rights:
‘It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.’ [5]
The principle of legality strives to protect implicit rights by giving the courts the power to scrutinize legislation, and to determine whether it is consistent with fundamental, or common law, rights. Therefore, such protections depend greatly upon the discretion of the courts. Recent High Court decisions suggest that court sentiments have shifted, placing a greater emphasis on deriving the legislation’s purpose from the text. This has altered the judiciary’s approach to the question of whether a certain right is to be abrogated or protected by legislation. Where previously the courts identified the affected right first and then determined whether the legislation intended to rescind it, the courts now determine the legislation’s purpose first, and then determine whether the protection of the relevant right falls within its scope. [6]
This change in approach is significant for two main reasons. First, it restricts the courts’ ability to scrutinize legislation and ensure its consistency with common law rights. The new methodology shifts the balance of rights protection towards the legislative branch, weakening the judiciary’s power to hold the legislature accountable. Second, and somewhat related, the shift in approach means that the government may not need to explicitly state an intention to abrogate the relevant rights; instead, the abrogation may be inferred from extrinsic material, allowing for more exceptions to the principle of legality.
Comparing the defining issues in Plaintiff S10 and Saeed v Minister for Immigration and Citizenship (‘Saeed’) emphasizes these concerns. [7] Both cases relate to the Migration Act 1958 (Cth) and whether the Minister for Immigration and Citizenship was required to afford the plaintiffs natural justice or procedural fairness when exercising his powers under various sections of the Act.
In Saeed, the Court ruled that the right to natural justice was a fundamental right, and in order to exclude it an express statement demonstrating the legislature’s intention to do so was required. Due to the lack of such a statement, the plaintiff was afforded the rights initially denied to him. [8]
Conversely, in Plaintiff S10 the High Court ruled that the Minister was not required to afford the plaintiffs natural justice or procedural fairness when determining whether to grant them visas. This judgment was made despite the lack of express words to that effect in the relevant section of the Act. Instead, the intention of the legislation was derived from extrinsic material‐‐ such as the structure of the Act‐‐ a direct contrast to the court’s view in Saeed. [9]
Although Plaintiff S10 seemingly signals a shift in the High Court’s approach to questions regarding rights protection, we have yet to see whether the High Court will continue the approach taken in this case. Although this case may not signal a weakening of the principle of legality, it does pose serious concerns regarding the power of the principle. Whether this principle will continue to provide adequate protection for Australians, or whether more explicit legislation is needed, only time can tell.
[1] George Williams and Lisa Burton, Australia’s Exclusive Parliamentary Model of Rights Protection, 34 Statute Law Review 58, 61 (2009).
[2] Will Sharpe and Michael Palfrey, Australia: Cracks in the Principle of Legality in Statutory Interpretation, Sparkle Helmore Lawyers Blog (Mondaq July 9, 2014) online at http://www.mondaq.com/australia/x/326154/trials+appeals+compensation/Cracks+in+the+principle+of+legality+in+statutory+interpretation (visited November 1, 2014).
[3] Momcilovic v The Queen (2011) 245 CLR 1, [43].
[4] Potter v Minahan (1908) 7 CLR 277, 304.
[5] Id.
[6] Will Sharpe and Michael Palfrey, Australia: Cracks in the Principle of Legality in Statutory Interpretation (cited in note 2).
[7] Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010).
[8] Id at [59].
[9] Plaintiff S10‐2011 v Minister for Immigration and Citizenship [2012] HCA 31 (7 September 2012), [119].
Photo Credit: Flickr User Michael McDonough
public law, dating back to the seminal High Court case of Potter v Minahan. [4] Mr. Minahan, was born in Australia but left Australia with his Chinese father at the age of five. Upon his return twenty‐six years later, the Court was faced with determining whether, under the Immigration Restriction Act 1901 (Cth), he was an immigrant. The Court ruled that the right of an Australian‐born person to enter Australia was fundamental, and could only be revoked if the contrary were explicitly stated in a piece of legislation. Due to the absence of
such statements in the relevant Act, Mr. Minahan was not considered an immigrant. Justice O’Connor captures the essence of this principle in Australian public law in his opinion, stating that the Court does not recognize implicit restrictions on rights:
‘It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.’ [5]
The principle of legality strives to protect implicit rights by giving the courts the power to scrutinize legislation, and to determine whether it is consistent with fundamental, or common law, rights. Therefore, such protections depend greatly upon the discretion of the courts. Recent High Court decisions suggest that court sentiments have shifted, placing a greater emphasis on deriving the legislation’s purpose from the text. This has altered the judiciary’s approach to the question of whether a certain right is to be abrogated or protected by legislation. Where previously the courts identified the affected right first and then determined whether the legislation intended to rescind it, the courts now determine the legislation’s purpose first, and then determine whether the protection of the relevant right falls within its scope. [6]
This change in approach is significant for two main reasons. First, it restricts the courts’ ability to scrutinize legislation and ensure its consistency with common law rights. The new methodology shifts the balance of rights protection towards the legislative branch, weakening the judiciary’s power to hold the legislature accountable. Second, and somewhat related, the shift in approach means that the government may not need to explicitly state an intention to abrogate the relevant rights; instead, the abrogation may be inferred from extrinsic material, allowing for more exceptions to the principle of legality.
Comparing the defining issues in Plaintiff S10 and Saeed v Minister for Immigration and Citizenship (‘Saeed’) emphasizes these concerns. [7] Both cases relate to the Migration Act 1958 (Cth) and whether the Minister for Immigration and Citizenship was required to afford the plaintiffs natural justice or procedural fairness when exercising his powers under various sections of the Act.
In Saeed, the Court ruled that the right to natural justice was a fundamental right, and in order to exclude it an express statement demonstrating the legislature’s intention to do so was required. Due to the lack of such a statement, the plaintiff was afforded the rights initially denied to him. [8]
Conversely, in Plaintiff S10 the High Court ruled that the Minister was not required to afford the plaintiffs natural justice or procedural fairness when determining whether to grant them visas. This judgment was made despite the lack of express words to that effect in the relevant section of the Act. Instead, the intention of the legislation was derived from extrinsic material‐‐ such as the structure of the Act‐‐ a direct contrast to the court’s view in Saeed. [9]
Although Plaintiff S10 seemingly signals a shift in the High Court’s approach to questions regarding rights protection, we have yet to see whether the High Court will continue the approach taken in this case. Although this case may not signal a weakening of the principle of legality, it does pose serious concerns regarding the power of the principle. Whether this principle will continue to provide adequate protection for Australians, or whether more explicit legislation is needed, only time can tell.
[1] George Williams and Lisa Burton, Australia’s Exclusive Parliamentary Model of Rights Protection, 34 Statute Law Review 58, 61 (2009).
[2] Will Sharpe and Michael Palfrey, Australia: Cracks in the Principle of Legality in Statutory Interpretation, Sparkle Helmore Lawyers Blog (Mondaq July 9, 2014) online at http://www.mondaq.com/australia/x/326154/trials+appeals+compensation/Cracks+in+the+principle+of+legality+in+statutory+interpretation (visited November 1, 2014).
[3] Momcilovic v The Queen (2011) 245 CLR 1, [43].
[4] Potter v Minahan (1908) 7 CLR 277, 304.
[5] Id.
[6] Will Sharpe and Michael Palfrey, Australia: Cracks in the Principle of Legality in Statutory Interpretation (cited in note 2).
[7] Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010).
[8] Id at [59].
[9] Plaintiff S10‐2011 v Minister for Immigration and Citizenship [2012] HCA 31 (7 September 2012), [119].
Photo Credit: Flickr User Michael McDonough
