Search

Analogy by reference to statute as a tool of legal analysis in the development of the common law is not prohibited. Recent cases confirm not only the existence of the tool but provide evidence of its use and application. However, to state that the judiciary on occasion develops the common law by analogy to statute - a concept that has been labelled the 'doctrine of analogy' - is simply to make a statement of conclusion. And that statement of conclusion invites several further questions. Is analogical reasoning by reference to statute qualitatively different from the usual type of analogical reasoning on which the common law depends? From what authority is this mode of reasoning derived? Put in different terms - what is the judicial function? This paper proposes that viewing the development of the common law through the lens of formal rules and substantive reasoning can assist in identifying the way the judiciary develops the common law by reference to statute, and the basis upon which the judiciary develops the common law by reference to statute. [ABSTRACT FROM AUTHOR]

The principle of legality has been described as a presumption that Parliament does not intend to abrogate or curtail fundamental common law rights, freedoms, immunities and principles (collectively 'fundamental common law protections'), and depart from the general system of law, except by clear and unambiguous language. It is a common law interpretive principle that protects fundamental common law protections from infringing statutes. Nevertheless, a question arises as to whether the principle can and should be extended beyond the realms of the common law, to protect certain statutory rights in Australia. This is yet to be considered at length in academic commentary and is presently unresolved. Such a development would exponentially increase the principle's potential scope of application. This article seeks to examine comprehensively the issue by reference to the principle of legality's origins and rationale, the concept of parliamentary sovereignty and doctrine of implied repeal, and analogous instances where statutory rights are protected through interpretation. This article argues that, on balance, the principle of legality should not be utilised to protect statutory rights from statutory infringement. [ABSTRACT FROM AUTHOR]

Murphy v Electoral Commissioner is the latest decision of the High Court of Australia addressing the constitutional validity of a federal electoral procedure. The Court upheld longstanding provisions of the Commonwealth Electoral Act 1918 (Cth) that temporarily prohibit persons from enrolling to vote or updating their enrolment before a Federal Election. This case note analyses three issues arising from the case. First, it examines the remedial difficulties posed by invalidating electoral legislation while the Parliament is dissolved. Second, it analyses the Court's narrow application of the 'directly chosen by the people' requirement contained in ss 7 and 24 of the Australian Constitution. Finally, it evaluates the majority's decision not to apply a structured proportionality test in light of recent developments in the context of the implied freedom of political communication. [ABSTRACT FROM AUTHOR]

In Australia, the common law principle of legality has hardened into a strong clear statement rule that is applied when legislation engages common law rights and freedoms. It has transformed a loose collection of rebuttable interpretive presumptions into a quasi-constitutional common law bill of rights. However, these developments are not without controversy or issue. The analysis undertaken in this article suggests that the principle of legality as clear statement rule -- as mandated by the High Court in Coco v The Queen -- can only work legitimately if Parliament has clear and prior notice of the rights and freedoms that it operates to protect. But it is problematic if what a common law right, such as freedom of speech, requires or guarantees in any given legislative context is unclear and contested, and so must be judicially divined at the point of application. In these cases, the principle operates to enforce a (post-legislative) judicial approximation of what best protects and promotes an abstract legal value or principle. It amounts to the illegitimate judicial remaking of prior legislative decisions on rights. This undercuts the normative justifications for the principle of legality as it obscures from Parliament the common law (rights) backdrop against which its legislation is enacted and interpreted. [ABSTRACT FROM AUTHOR]