Overview
In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that unless Parliament makes unmistakably clear its intention to curtail or abrogate a common law right, freedom or principle, the courts will not construe a statute as having that operation. As Lord Hoffmann famously observed, this “means that Parliament must squarely confront what it is doing and accept the political cost”. \nThe principle of legality is now central to the operation of Australian and New Zealand public law. Yet its content, methodology and scope remain elusive and has never been examined in detail. This book fills that gap by drawing together leading judges, practitioners and scholars to explore a range of interesting issues and challenges for the application of the principle of legality and its future trajectory: How does the principle operate? Which rights and freedoms fall within its scope and why? What is its relationship to the (so-called) common law bill of rights? Has proportionality a role to play in its application? How, if at all, does it differ from the presumption with international law? And in the construction of statutes does the principle serve to fulfil or frustrate the will of Parliament?
Full Product Details
Author: Dan Meagher ,
Matthew Groves
Publisher: Federation Press
Imprint: Federation Press
Weight: 0.654kg
ISBN: 9781760021252
ISBN 10: 1760021253
Pages: 304
Publication Date: 20 March 2017
Audience:
College/higher education
,
Professional and scholarly
,
Postgraduate, Research & Scholarly
,
Undergraduate
Format: Hardback
Publisher's Status: Active
Availability: Available To Order
We have confirmation that this item is in stock with the supplier. It will be ordered in for you and dispatched immediately.
Reviews
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
Author Information
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.
