The principle of legality

Per Heydon J in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3

145. At common law, citizens are free to behave as they like unless there is a prohibition created by common law rules or by legislation. That freedom need not depend on any express rule. Putting aside the positive grant of rights by the law, the common law recognises a "negative theory of rights". In the words of Glanville Williams, under that theory, rights are marked out by "gaps in the criminal law"[211]. Similarly, Lord Goff of Chieveley said that under the English common law "everybody is free to do anything, subject only to the provisions of the law"[212]. In this sense, there are many common law rights of free speech.

146. The third respondent correctly submitted that the challenged clauses created an impact on many common law rights of free speech apart from the common law right to make political communications. He correctly submitted that the rights on which this impact took place were rights to engage in "a very large portion of normal everyday written and oral communication." And he correctly submitted that the proscriptions in the challenged clauses were applicable to the whole of the Adelaide central business district; were not directed to any particular level of noise, time or place; and were not limited to offensive communications.

147. The appellant identified various classes of speech to which the challenged clauses allegedly did not apply – roadside interviews, impromptu press conferences, and communication through the internet, newspapers and signs. But even if that is correct, the third respondent's points remain sound. And they totally contradict a Commonwealth submission that the challenged clauses apply only to "very, very precise and limited forms of communication".

148. The "principle of legality" holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle there are many authorities, ancient and modern, Australian and non-Australian. The principle exists for good reason. As Lord Hoffmann said[213]:

"the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process."

149. It may be prudent for a litigant relying on the principle of legality to select a meaning of legislation sufficiently narrow to suit that litigant's interests and defend it. But it is not necessary for that litigant to do so. Rather, it is for the party contending that the legislative language has curtailed fundamental rights or freedoms to show that the language is clear enough to achieve that effect.

150. The principle of legality can apply both to parliamentary legislation creating a power to make delegated legislation, and to the delegated legislation itself. The consequence of applying the principle of legality to a power in parliamentary legislation to make delegated legislation will tend to be a relatively narrow construction of that power. And the consequence of applying the principle of legality to delegated legislation made under that power will tend to be a relatively narrow construction of that delegated legislation. Here, the crucial issue is the impact of the principle of legality on the width of the s 667(1) 9 XVI and s 667(1) 4 I powers to make delegated legislation. That is because though the words of the challenged clauses are wide, and though they create criminal offences, they are on the whole clear enough, at least in their application to the second and third respondents, to prevent the principle of legality from causing difficulty in relation to them.

151. The common law right of free speech is a fundamental right or freedom falling within the principle of legality[214]. That must be so if there is any shadow of truth in Cardozo J's claim that freedom of speech is "the matrix, the indispensable condition, of nearly every other form of freedom."[215]�It must be so if Lord Steyn's account of the importance of freedom of expression is convincing. He said[216]:

"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market'[217]. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country".

And it must also be so if Kommers was correct to say[218]:

"The basic right to freedom of opinion is the most immediate expression of the human personality ... in society and, as such, one of the noblest of human rights ... It is absolutely basic to a liberal-democratic constitutional order because it alone makes possible the constant intellectual exchange and the contest among opinions that form the lifeblood of such an order".

152. Of course, Cardozo J was dealing with the First and Fourteenth Amendments to the United StatesConstitution. And Kommers was dealing with Art 5,�Section 1, in the German�Constitution [219]:

"Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship."

Constitutional rights of those kinds are different from a common law right capable of modification by statute. But the considerations underlying a constitutional right of free speech, where it exists, are equally strong indications that the right of free speech at common law is sufficiently important to attract the principle of legality. The common law right of free speech which the principle of legality protects is significantly wider, incidentally, than the constitutional limitation on the power to enact laws burdening communications on government and political matters.

Footnote:

This decision upheld a by-law that prohibited preaching (speaking) on roads in Adelaide without a permit. All members of the court save for Heydon J upheld the by-law. Apart from Heydon J, only French CJ made reference to the principle of legality. Hayne, Crennan, Kiefel and Bell JJ did not mentioned it.