Paper presented by Mr Brendan Lim (Visiting Fellow, UNSW Law School, Wentworth Chambers)
In accordance with the "principle of legality" or "clear statement principle", courts will not construe statutes to abrogate certain common law rights unless very clear words require them to do so. Why? Is it because of fidelity to legislative intention? Is it because substantive legal values recommend the course regardless of legislative intention? The answer matters because the principle of legality should not be extended beyond its rationale. The rationale for the principle of legality will tell us which rights engage the principle, and it will tell us what kind of legislative clarity is needed to displace the principle. On one view, rights are called 'fundamental' because they are rights that the parliament does not in fact intend to abrogate. On another view, rights are 'fundamental' in a more objective sense, because they are recognised to be 'important', or perhaps because they are 'vulnerable' in the sense that the ordinary political process is inherently inapt to protect them. The paper will explore these themes in the context of recent cases, building on the author's work in "The Normativity of the Principle of Legality" (2013) 37 Melbourne University Law Review 372.
Commentators:
The Hon Justice Nye Perram (Federal Court of Australia)
Associate Professor Dan Meagher (Deakin University)
Chair: The Hon Murray Gleeson AC QC
Federal Court, Queens Square, Sydney, Court 18B, 5:30 pm