BY BRUCE CHEN
The principle of legality and s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) are both directed at the interpretation of legislation with, broadly speaking, similar objectives directed at the protection of rights. The former is a common law interpretative principle, whereas the latter is found in a statutory bill of human rights. Neither can lead to the invalidation of primary legislation. But are the two actually equivalent? What is the significance of the differences between them?
The principle of legality has been described as a ‘common law bill of rights’, providing ‘a systematic protection of human rights’. In recent cases, s 32(1) of the Charter has been predominantly interpreted as a codification of the common law principle of legality, but with ‘a wider field of application’.
The principle of legality and s 32(1) are being described as close to like for like. However, there are nuances between the two that should not be overlooked, that emphasise the significance of and need for the Charter. While the strength and methodology of s 32(1) are currently subject to likely amendment by the Victorian Government, following a review after eight years of operation of the Charter, this post considers the similarities and differences in the nature, conception and scope between these two interpretative mechanisms.
The principle of legality is a ‘unifying concept’ in Australia, said to encompass a broad range of common law principles of statutory interpretation. The rationale of the principle is that it is ‘in the last degree improbable’ that Parliament would overthrow fundamental common law rights, freedoms and immunities without expressing its intention in clear and unambiguous language. This rationale is being increasingly scrutinised. The principle of legality also extends to fundamental common law principles and departures from ‘the general system of law’. This post will refer to such matters collectively as ‘common law protections’. The implication for statutory interpretation is that legislation will not be interpreted as abrogating or curtailing fundamental common law protections unless it is done in clear and unambiguous language.
The Charter was enacted in 2006, with its main purpose being to protect and promote human rights. Victoria is one of only two jurisdictions in Australia with a comprehensive statutory bill of human rights – the other being the Australian Capital Territory. Section 32(1) is one of the Charter’s key mechanisms. It states:
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
The leading High Court decision on s 32(1) is Momcilovic v The Queen (2011) 245 CLR 1 (‘Momcilovic’).
The principle of legality is directed at ascertaining Parliament’s actual legislative intention. The question is whether Parliament actually intended to infringe a fundamental common law protection. The principle of legality requires Parliament to have ‘not only directed its attention to the question of abrogation or curtailment’, but ‘also determined upon’ it: Coco v The Queen (1994) 179 CLR 427. However, this does not sit well with how it is applied by the courts in practice. Courts interpret legislation having regard to fundamental common law protections recognised at the time of interpretation. It does not matter what Parliament’s actual state of knowledge was at the time of enactment. This is not consistent with the principle’s stated rationale.
On another view, legislative intention under the High Court’s current approach is not something that pre-exists, but merely the outcome of applying principles of statutory interpretation: Lacey v Attorney-General (Qld) (2011) 242 CLR 573. Yet, as Richard Ekins and Jeffrey Goldsworthy have said, ‘[i]f legislative intention is a product of applying the principles of statutory interpretation, but those principles direct the courts to infer the legislature’s intention, then the dog is chasing its own tail’. The foundation of the principle of legality is undermined by this approach to legislative intention.
As to s 32(1), it applies to all Victorian statutory provisions, regardless of whether they were enacted before or after the Charter. For post-Charter legislation, Parliament can be attributed with the knowledge that the courts will interpret the legislation in accordance with s 32(1). Charter rights considerations formed part of Parliament’s actual intention when enacting the statute.
What of pre-Charter legislation? Parliament at the time could not have known that the legislation would be interpreted compatibly with human rights. Post-Momcilovic cases have said that s 32(1) does not allow legislation to be interpreted to ‘depart from … the intention of Parliament in enacting the provision’, or in a way which ‘overrides the intention of Parliament’, or ‘contrary to the intention of the Parliament when it enacted the legislation’.
But the above should not be taken to mean that s 32(1) cannot require a different interpretation to that previously reached by the courts. Pre-Charter legislation may legitimately ‘yield different, human rights compatible, meanings in consequence of s 32(1)’. On one view, Parliament – in enacting the Charter and s 32(1) – could be taken by the courts to have impliedly amended prior legislation, where not compatible with human rights. However, there are limits. It cannot have this effect where there is no doubt as to the meaning of the statutory provision, or where the human rights compatible meaning is inconsistent with the purpose of the statutory provision.
Despite the above, if one takes the High Court’s current approach to legislative intention, rather than actual legislative intention, then s 32(1) is entirely consistent with it. Parliament’s intention is simply the outcome of applying principles of statutory interpretation, both common law and statutory – including s 32(1). This poses no problems for either pre-Charter or post-Charter legislation.
Common law yet constitutional (?) v Statutory
Although a rebuttable common law principle, the principle of legality has nevertheless been described as ‘constitutional’ in character even if the rights and freedoms it protects are not. This is on the basis that the principle’s ‘application to the interpretation of statutes helps to define the boundaries between the judicial and legislative functions’. However, this characterisation is a relatively recent development. It appears linked to the increasing willingness of some High Court judges to apply the principle of legality powerfully. Section 32(1) of the Charter has not been described in the same weighty terms by the High Court. Nevertheless, others have said that s 32(1), as a statutory command of Parliament, is or may be stronger than the common law principle.
Residual nature of rights?
The common law is said to start ‘from a foundation of liberty’. That is, ‘everybody is free to do anything, subject only to the provisions of the law’. Common law protections are often criticised as ‘residual’, since they are not entrenched and vulnerable to statutory encroachment.
However, Chief Justice French considers that this term is ‘too weak’ having regard to the operation of the principle of legality. Fundamental common law protections possess weight. They may be utilised by courts to interpret legislation so as not to interfere with fundamental common law protections.
Similarly, Charter rights can be overridden by statute and the rights themselves are potentially subject to legislative change. In this respect, the distinction between residual common law protections and Charter rights is less pronounced than with a constitutional bill of human rights, where legislation can be invalidated for incompatibility and human rights are constitutionally entrenched.
Nevertheless, fundamental common law protections are still potentially more vulnerable to erosion. Charter rights are at least enshrined in statute. On the other hand, the principle of legality will ‘necessarily be undermined’ and ‘may well disappear’ with respect to a particular common law protection when that protection ceases to be regarded as fundamental: Bropho v Western Australia (1990) 171 CLR 1. ‘[T]imes change’, such that what ‘is fundamental in one age or place may not be regarded as fundamental in another age or place’: Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 (McHugh J).
This is particularly significant given that we now live in a statute-oriented society. Can it really be said that common law protections are fundamental, and Parliament is so unlikely to abrogate or curtail them, when it does so frequently? Such questions go directly to the foundations of the principle of legality.
Positive v Negative
Common law protections are also generally thought of as ‘negative’. Government is restrained from interfering with such protections in the absence of lawful authority. Fundamental common law protections have been summed up simply as ‘the right to be left alone’.
Human rights are broader in their content. All human rights under international law, from which the Charter is drawn, encompass both positive and negative aspects. Human rights can require government to take positive action to protect rights, including preventing other private actors (for example, individuals or corporations) from breaching a person’s human rights. The existence of positive obligations under a bill of human rights could have implications for interpreting statutes compatibly with human rights: see, for example, R (Middleton) v West Somerset Coroner  2 AC 182.
The express terms of some Charter rights clearly do have positive aspects and require the government to take positive action. The right of protection of families ‘by society and State’ is one example. Another is the right to equality and non-discrimination which provides, amongst other things, that every person has the right ‘to equal and effective protection against discrimination’.
Recent Charter case law has cast doubts on the extent to which international and comparative human rights law may be relied upon to find a positive obligation implicit in a Charter right. Drawing on certain comments in Momcilovic, the Victorian Court of Appeal has found that the right to protection from cruel, inhuman or degrading treatment under the Charter did not impose an implied positive duty on the State to conduct an independent investigation of complaints of treatment by police: Bare v IBAC (2015) 326 ALR 198. This was despite such an obligation being recognised in international and comparative jurisprudence, which the Court went to great lengths to distinguish.
In any event, fundamental common law protections should not be overgeneralised as negative only. To characterise all fundamental common law protections in this way is unlikely to be accurate. For instance, common law procedural fairness and the right of access to the courts undoubtedly call for court resources, which must be positively provided for by government.
Scope of protection
As was recognised by Chief Justice French in Momcilovic, the Charter has a ‘wider field of application’ than the principle of legality. While fundamental common law protections are seemingly wide-ranging and comprehensive, there are notable omissions. There is no general common law right to privacy in Australia, unlike the Charter right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.
Moreover, while the common law recognises what is described as ‘freedom of assembly’, its content may not be as broad as the Charter. The High Court has only gone so far as to recognise that the principle of legality protects the ‘liberty of individuals to use the highways’. The High Court differentiated this from a right of assembly, for which there is ‘no authority whatever in favour of it’. This is evidently far narrower than the Charter right of peaceful assembly.
The common law also does not protect against discrimination. Victoria, as with other States and Territories, has enacted legislation which prohibits discrimination, but the Charter right to equality and non-discrimination extends anti-discrimination to the realm of statutory interpretation: see Ingram v QBE Insurance (Australia) Ltd  VCAT 1936; Collins v Smith  VCAT 1992; Kuyken v Lay  VCAT 1972 (appealed, but not on this point).
Certainty in scope
The human rights protected by the Charter have been chosen by the Victorian Parliament as those rights which it ‘specifically seeks to protect and promote’. By ‘writing down in one place the basic rights we all hold and expect government to observe’,[i] the Charter provides greater clarity about what rights it protects. On the other hand, the principle of legality ‘amounts to an attribution by the courts of a standing commitment to Parliament, and whether the attribution is accurate may be questionable’. There is uncertainty about what is protected by the principle.
Despite attempts to catalogue fundamental common law protections, no two lists are identical. There cannot be an authoritative statement because recognising fundamental common law protections is ‘ultimately a matter of judicial choice’. It may sometimes be contestable or controversial. Two examples are the ‘privilege’ of spousal incrimination and the ‘general principle’ that an administrative body does not determine whether conduct constitutes the commission of an offence – both of which had their recognition overturned on appeal to the High Court. Even freedom of expression, often championed as if it were the essence of liberty itself, has had its common law heritage disputed by commentators here and overseas.
That there is no authoritative statement also draws attention to the question of how courts decide what common law protections are ‘fundamental’ or no longer ‘fundamental’. The guidance offered by courts to date has not been particularly insightful. The lack of certainty qualifies the principle of legality’s characterisation as a common law ‘bill’ of rights.
Expansion of scope
Although described as starting from a foundation of liberty, the common law’s version of liberty was historically one of ‘economic liberty’. The common law was ‘developed to meet “the needs of a commercial society”, to “permit the development of a world in which men of property could do what they would with their own”.’[ii] Perhaps unsurprisingly, the common law has previously been found wanting from a human rights perspective. Some hold up the common law’s poor treatment of women as a prime example.
In the 19th and 20th century, the principle of legality was strong on tax and property. But the principle of legality is evolving. It is being extended, or tentatively extended, to human rights more broadly. This raises a number of questions. Would it have occurred in the absence of a heightened sense of rights awareness – with bills of human rights being enacted overseas, in Victoria and the ACT, and debates about enacting a federal bill of human rights? Does this expansion to some extent undermine the significance of a bill of human rights? Does it subjugate human rights by treating them primarily as matters of common law? Does it leave open for criticism that this is a ‘backdoor means’ of introducing a bill of human rights without a democratic mandate?
There is an argument that bills of human rights improperly ‘transfer’ power to ‘unelected’ judges. But there is a glaring inconsistency, in that it is the courts that have always had the final say on how the principle of legality is applied. So ‘[i]f the common law provides adequate safeguards then that is the result of the activity of judges exercising their power to state and develop the common law, not the activity of elected parliamentarians’.[iii] By contrast, Parliament’s enactment of the Charter represents an exercise of parliamentary sovereignty. Charter rights have a greater degree of democratic legitimacy when compared with fundamental common law protections.
Justification and proportionality
Neither fundamental common law protections nor Charter rights are absolute. There is an issue as to whether justification and proportionality has any role to play under the principle of legality or s 32(1). The concept of justification and proportionality ‘may generally be said to require that any statutory limitation or restriction upon a right or freedom having a particular status be proportionate to the object or purpose which it seeks to achieve’: Momcilovic (Crennan and Kiefel JJ).
The principle of legality does not expressly direct Parliament and the courts to justification and proportionality considerations. There is a general reluctance amongst the Australian judiciary to engage in such matters in the exercise of statutory interpretation. However, it is arguable that the principle of legality could or inherently does involve justification and proportionality considerations.
Nevertheless, the predominant view is that such considerations have no role to play, unlike in the United Kingdom. The principle of legality ‘does not require one to look at whether the intended end justifies the proposed means’: WBM v Chief Commissioner of Police (Vic) (2012) 230 A Crim R 322 (Warren CJ). By contrast, s 7(2) of the Charter provides a classic exercise of justification and proportionality.
Problematically, the High Court’s decision in Momcilovic did not leave a binding majority on the issue of whether s 7(2) applies to interpretation compatibly with human rights under s 32(1). In any event, the recent eight-year review of the Charter recommended that s 32(1) be amended to make clear that s 7(2) applies to the assessment of compatibility with human rights. The Victorian Government agreed that the role of s 7(2) should be clarified.
Once this is made clear beyond doubt, it will provide another point of contrast. The principle of legality has been described as ‘distinctly fuzzy’ in its application, ‘with the true reasoning being inherent in the conclusion but not explained’. Whereas, the Victorian Equal Opportunity and Human Rights Commission has said, s 7(2) ‘provides a clear and effective framework for considering the limits that may be placed on human rights, having regard to competing public interests and policy objectives.’
A more comprehensive framework
Finally, although this post is focused on the principle of legality and s 32(1), it must be acknowledged that the Charter generally provides a more comprehensive framework for rights protection. The Charter possesses additional features, namely, declarations of inconsistent interpretation, statements of compatibility, and substantive and procedural obligations imposed on public authorities to act compatibly with human rights and give proper consideration to relevant human rights.
Such features draw attention to human rights considerations, both in the absence of litigation and subsequent to litigation. They are common to other statutory bills of human rights, particularly in the ACT and United Kingdom. They have no counterpart under the common law.[iv] This should be borne in mind when commentators say that the principle of legality provides a ‘common law bill of rights’.
The principle of legality undoubtedly provides significant rights protection. It is similar to s 32(1) in that both fundamental common law protections and Charter rights may be overridden by statute. Nonetheless, there are differences of import arising from the nature, conception and scope of these two interpretative mechanisms. There are greater challenges involved in the development and application of the principle of legality to protect human rights. If the principle of legality is a ‘common law bill of rights’, it is one with significant caveats. It is no replacement for a bill of human rights.
[i] Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 6.
[ii] Keith D Ewing, ‘The Charter and Labour: The Limits of Constitutional Rights’ in Gavin W Anderson (ed), Rights and Democracy: Essays in UK-Canadian Constitutionalism (1999) 90, citing C Hill, Intellectual Origins of the English Revolution (Clarendon Press, 1972) 256.
[iii] Murray Gleeson, ‘Legal Interpretation: The Bounds of Legitimacy’ (Speech delivered at Sydney University Law School, Sydney, 16 September 2009) 17-8
[iv] But see the Legislative Standards Act 1992 (Qld), ss 4, 22, 23(1)(f) and 24(1)(i) in relation to fundamental common law protections and the tabling of explanatory notes in Queensland.
Bruce Chen is a PhD Candidate at Monash University. Bruce was formerly a Senior Legal Adviser at the Victorian Equal Opportunity and Human Rights Commission. The comments in this post are the personal opinions of the author.
Suggested citation: Bruce Chen ‘The Principle of Legality and Section 32(1) of the Charter: Same Same or Different?’ on AUSPUBLAW (26 October 2016) <https://auspublaw.org/2016/10/same-same-or-different/>