Legality, rights and statutory interpretation
2013 AGS Administrative Law Conference
Canberra, 20-21 June 2013
1. The movie mogul, Samuel Goldwyn is reputed to have said: "A verbal contract is not worth the paper it's written on". Many of the fundamental precepts that we take for granted as our legal rights in Australia's democratic system derive from the common law. They are not enshrined in the Commonwealth Constitution or in any statute. They have the same fragility as Goldwyn's verbal contract.
2. In this paper I want to explore the sources of the legal concepts of legality and rights. Those concepts are given force by the judiciary through its function of statutory interpretation. The rules of statutory interpretation are affected by common law concepts and value-based implications because Australia is a democracy in which government occurs under law. The sheer volume, complexity and ephemeral duration of legislation in any particular form also have consequences for the rule of law and human rights.
The evolution of legality and rights
3. Every society must have laws or rules that regulate its citizens' rights, responsibilities and obligations. Laws also define powers of the society's institutions of government. However, laws do not exist in any community in a vacuum, divorced from the critical context of established the norms. Our nation, and its concept of the rule of law, has evolved from our early European settlers' British foundations and most of the attributes of their legal system.
4. The original convict ancestry of many of our non-indigenous early settlers may explain the lackadaisical attitude Australian's have towards their rights and the institutions of government. Our history is unlike that which produced Bills of Rights following the late 18th century revolutions in the United States of America and in France. Those nations' enthusiasms for protection of inherent rights did not take root in the convict colony established here (although France's enthusiasm initially was more honoured in the breach by the reign of terror).
5. It is significant that there is little national celebration or recognition of our federal Constitution or the basic elements of the separation of powers that it enshrines. This attitude is evident from the media. One notable example was the ignorance displayed by a former long serving Premier of Queensland, Sir Joh Bjelke-Petersen when giving evidence to a Royal Commission. He was unable to explain what the doctrine of separation of powers under the Westminster system involved, finally saying:
"Well, the separation of the doctrine that you refer to, in relation to where the Government stands, and the rest of the community stands, or where the rest of the instruments of Government stand. Is that what–?"
6. Of course, ordinary Australians need not know the precise terminology for that system, but I very much doubt that they are any better informed than Sir Joh. That is a significant deficiency in our education curriculum. School children in the United States know what their country's Constitution is, what it does and why they have it. The Australian public, I think, generally understands that, wherever they live, there is a federal and State or Territory government and parliament, and that there are independent Federal and State or Territory courts. But, there is no qualitative understanding of why there are constitutional dividing lines between those arms of government.
7. More importantly, the Australian public has no real appreciation of the lack of any constitutional protection of their rights or of the subtle but ever increasing erosion of those rights by the profligate explosion of the statute web-page. The Commonwealth no longer prints its statutes for its Courts because it is too expensive and the legislation is too big. Those Acts are not light reading or even light. The ordinary person could not wade through them. I will return to this issue later.
8. Remarkably, Australia is the only western common law democracy without a Bill of Rights. Despite this, one place where the Parliament has expressed some intention to protect or recognise human rights is in the Preamble to the Native Title Act 1993 (Cth). That states:
"The Australian Government has acted to protect the rights of all of its citizens, and in particular its indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms through:
(a) the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination and other standard setting instruments such as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights; and
(b) the acceptance of the Universal Declaration of Human Rights; and
(c) the enactment of legislation such as the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986."
9. Probably the most elegant statement of fundamental human rights is that in the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in 1948. Article 3 states "Everyone has the right to life, liberty and security of person". Article 7 declares that "all are equal before the law", while Art 8 guarantees that everyone has a right to an effective remedy by competent national tribunals for acts that violate his or her legal or constitutional rights. The simplicity and directness of the Universal Declaration, like that of the United States Bill of Rights, is a fundamental necessity for a free society.
10. The rights that the revolutionaries in the United States expounded in the Bill of Rights were inserted into their Constitution on 15 December 1791. This occurred when Australia was first being colonised. Those constitutional rights include to this day:
- the prohibitions in the first amendment on Congress legislating to interfere with religious freedom, freedom of speech, freedom of the press, freedom of assembly or freedom to petition to government for a redress of grievances;
- the infamous "right of the people to keep and bear Arms";
- the right of people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures except on the basis of verified probable cause specified in particular warrants;
- the fifth amendment's entrenchment of the rights to silence, due process of law, just compensation for public acquisition of private property and not to be subjected to double jeopardy on any criminal charges;
- the sixth amendment's guarantee of a right to a speedy trial by an impartial jury, where the accused is informed of the nature and cause of the charge, confronted by the witnesses against him or her, can subpoena witness and can have "the Assistance of Counsel for his defence";
- the prohibition on excessive bail or cruel and unusual punishment.
11. Ordinary people can understand such clearly expressed, pithy provisions. They can even read them quickly. They contrast with the absurdly named "plain English" current Commonwealth Parliamentary drafting style. That never says in one line what can be said in 10 pages.
12. The most fundamental provisions in the Bill of Rights of the United States, being the first to tenth amendments to its Constitution, derived mainly from medieval English statutes beginning in 1215 with Magna Carta and a series of important English cases in the late 18th century.
13. The original Magna Carta provided in cc 39 and 40 a promise by King John to his subjects of what, quintessentially, we regard today as the fundamentals of a democratic society under the rule of law. The 1297 and later versions of the Great Charter consolidated these fundamentals in c 29 as:
"No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."
14. That was a formal statement by the sovereign that his subjects had particular rights and liberties and that these could only be taken away by a court or a law. That promise still resonates today in the values of our society and, in particular, its legal system. It ensured that the only two means by which people can be arrested or imprisoned, lose their liberty or property or be interfered with by the executive government are by a Court decision or a statute. That concept ran through subsequent English history. It was generated and reinforced after disputes between sovereigns and, initially, the aristocracy and later Parliament, by the Due Process Acts of 1351, 1354 and 1368, the Petition of Right in 1627, the Habeus Corpus Acts of 1640 and 1679 of the Imperial Bill of Rights of 1688.
15. In the second half of the 18th century the Courts in England became more confident in asserting the existence of common law rights. This is likely to have stemmed from the relatively recent guarantee in 1688 of security of tenure for judges. A series of seminal cases declared those rights. For example, in 1772, Lord Mansfield CJ giving the judgment of the Court of King's Bench, held on the return of a writ of habeus corpus for a slave on board a ship in the Thames, that:
"The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged."
16. Another area in which the Courts asserted common law rights was in the ongoing conflict between the King and his executive government with its critics in the press. In one of the leading cases resulting in entrenchment of the freedom of the press in England, John Wilkes MP was released by the Court of Common Pleas, again, on a return of a writ of habeus corpus. Wilkes had been arrested in 1763 by the King's messengers who also seized his documents. The messengers acted on a warrant issued by a Secretary of State based on an allegation of libel in the North Briton, which Wilkes published. Pratt LCJ, giving the reasons of the Court, held that a libel was not a breach of the peace, and, as a result of Wilkes' privilege of Parliament, he could not be arrested and did not have to provide bail to be released. Shortly after that decision Wilkes sued the King's messengers, who had executed the general warrant, for trespass. At the conclusion of the trial before Pratt LCJ, after deliberating for half an hour the jury returned a verdict of ₤1,000 damages.
17. That was one of many libel related cases in the second half of the 18th century that led in 1792, at the instance of Lord Camden, to the passage of Fox's Libel Act 1792 (UK). That Act overruled the opinion of many judges and enshrined the principle that the question of libel or no libel was a question of fact for the jury. Criminal libel trials have since fallen into desuetude. The inimitable Lord Denning traced many of these cases in his book Landmarks in the Law.
18. Another seminal case decided by the Court of Common Pleas in 1765 was Entick v Carrington. That held that Secretaries of State had no legal power to issue general warrants that could authorise either arrests of individuals or searches on private property to seize documents. The Court held that no statute gave power to a Secretary of State to issue a warrant authorising the arrest of any person. That was a statutory power given, even then, only to magistrates acting on verified information. The Court also held that:
"… our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he tread upon his neighbour's ground, he must justify it by law."
19. In 1905 Griffith CJ discerned that decision as authority for the proposition that "an act which is an interference with liberty or property is unlawful unless a positive law can be found to authorize it". Soon after, in his seminal judgment in the early immigration case of Potter v Minahan, O'Connor J affirmed that there is a presumption that a statute that affects civil rights will not be construed to overthrow fundamental principles, infringe rights or depart from the general system of law without expressing its intention with irresistible clearness.
20. More recently the High Court applied Entick in Coco v The Queen. It held to be inadmissible, evidence obtained by a listening device that had been placed on private property under a warrant issued pursuant to a State Act which did not itself authorise entry onto private property. Mason CJ, Brennan, Gaudron and McHugh JJ emphasised that:
"Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language."
21. Their Honours endorsed as correct what Brennan J had said in Re Bolton; Ex parte Beane that the Courts will not construe a statute as abrogating or suspending a fundamental freedom unless the Parliament made its intention to do so "unmistakeably clear", in which case the presumption was rebuttable. They then said:
"In Bropho v Western Australia, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:
"'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used'."
At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."
22. In our common law there is a general prophylactic presumption that legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication in respect of "important common law rights", such as :
- the right to personal liberty;
- trial by jury;
- negating the finality of an acquittal;
- taking property without compensation;
- procedural fairness;
- the privileges against self-incrimination, exposure to a penalty or forfeiture and, the more obscure, exposure to ecclesiastical censure;
- legal professional privilege;
- the jurisdiction of superior courts;
- the use of executive power to deprive a citizen of his or her property by compulsory acquisition.
23. In his elegant judgment in Electrolux Home Products Pty Ltd v Australian Workers' Union, Gleeson CJ harmonised the effect of these presumptions into a principle of legality that governs the relations between Parliament, the executive and the Courts. Drawing on observations of Lord Steyn in R v Home Secretary; Ex parte Pierson, Gleeson CJ said:
"The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law."
24. Writing after his retirement, the Hon Murray Gleeson AC cautioned that the judiciary should not forget its own history in which it had imposed its own values as the perceived rights that it discerned not to have been the subject of a Parliamentary intention to affect.
25. In Australia very few rights are enshrined expressly in the Constitution, unlike the position in the United States. We have the religion clause in s 116 and the prohibition against laws in one State disseminating against citizens resident in another State in s 117. The latter was successfully invoked to break down Queensland's residency requirement for admission to practise law in that State in Street v Queensland Bar Association.
26. However, the High Court has also identified implications and assumptions in the Constitution that are sources of legal rights. Some of the most significant of these are the implied constitutional freedom of communication on government and political matter and the constitutional attributes of courts exercising the judicial power of the Commonwealth as a consequence of the High Court's systemisation of the construction of Ch III of the Constitution.
27. The implied constitutional freedom of communication is a de facto limited equivalent of part of the first amendment to the United States Constitution. In a series of cases culminating in Lange v Australian Broadcasting Corporation, as later explained in Coleman v Power, the Court adopted the following tests of constitutional validity for a law that is alleged to infringe the requirement of freedom of communication about government or political matters imposed by ss 7, 24, 64 or 128 of the Constitution. Those provisions provided for elections to the Senate and the House of Representatives, the accountability of Ministers to the Parliament and the holding of referenda to change the Constitution. The test as reformulated is:
"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people."
28. Of course, the enforceability, nature and extent of common law rights are all vulnerable to the reality and degree of independence of the judiciary, the statutory construction it places on the Constitution and legislation and to Parliamentary modification. As history has shown, each of those vulnerabilities is real. The Imperial Bill of Rights established judicial independence in 1688 and largely prevented the sovereign or executive controlling the Courts by removing and appointing judges at pleasure.
29. In Australia, judicial independence is guaranteed by Ch III of the Constitution. In particular, s 72 provides security of tenure for justices of the High Court and of other courts created by the Parliament. Those justices hold office until they turn 70. A Ch III justice cannot be removed from office except by the Governor-General-in-Council (i.e. the executive branch) on an address from both Houses of the Parliament in the same session seeking such removal solely on the ground of either proved misbehaviour or incapacity. And, s 72(iii) ensures that Ch III justices' remuneration cannot be diminished during their continuance in office.
Legality and rights
30. The principal means by which liberty can be eroded today in Australia is by a law enacted by the Parliament or by its delegated legislative power or by a State or Territory law.
31. The Constitution confers specific legislative powers on the Parliament. Many of those powers are found in s 51. The powers mostly fall into groups based, as Dixon J pointed out in Australian Communist Party v The Commonwealth, on a subject of power described by reference to a class of a legal, commercial, economic or social transaction or activity (such as trade and commerce, banking and marriage) or by specifying some class of public service or enterprise (such as postal installations and lighthouses) or an undertaking or operation (such as railway construction with the consent of a State) or by naming a recognised category of legislation (such as taxation or bankruptcy).
32. The Parliament has a plenary power to make a law operating upon or effecting one of those subject matters or fulfilling one of those descriptions. Dixon J said that the government of the Commonwealth was carried on under the Constitution adding:
"… that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption."
33. That raises the questions of what is the content of the constitutional assumption of the rule of law and what role, if any, does it have in limiting or defining the powers of each of the three arms of government established by the Constitution?
34. The assumption underpins the substantive nature of the original jurisdiction conferred on the High Court by s 75(v) of the Constitution. That ensures that actions or inactions of officers of the Commonwealth are always amenable to the Constitutional writs of mandamus, prohibition and injunction. This amenability upholds the rule of law because the jurisdiction under s 75(v) is irremovable. That entrenched nature of the jurisdiction under s 75(v) is a means of assuring all persons affected that officers of the Commonwealth must obey the law and cannot exceed or neglect any jurisdiction that the law confers on them. And, the existence of s 75(v) limits the powers of the Parliament and the Executive to avoid or confine the scope of judicial review of actions by officers of the Commonwealth.
35. However, in recent times some governmental functions have been privatised, and others "outsourced". So in NEAT Domestic Trading Pty Ltd v AWB Limited, the potential for evasion of judicial review under s 75(v) was exposed. There, the Wheat Marketing Act 1989 (Cth) prohibited the export of wheat from Australia without the consent of a Commonwealth authority. However, the prohibition did not apply to a particular company identified in the Act. Additionally, the authority could not give approval to a third party to export wheat without the company's prior written approval. The High Court held that the company's refusal to give its approval was not judicially reviewable. That was because, although the company had a limited statutory role in the approval process, it had its own private character derived from its incorporation under companies legislation and pursued its own private commercial objectives. The Court held that it was not possible to impose public law obligations on the company while simultaneously accommodating its pursuit of its private interests. The Court noted that in 2003 there did not appear to be any similar statutory roles given to private bodies where issues of public and private law might intersect.
36. However, that case raises the question of what role judicial review under s 75(v) will have for, say, private operators of immigration detention facilities or prisons or, if they are outsourced, the customs service or some other function that hitherto has been seen as governmental. What will the legal position be if the functions of parts of the public service were "outsourced" to private contractors? Would s 75(v) extend to review of their decisions or, if it did not, would it operate to make the outsourcing invalid for the very reason that, if valid, it would preclude judicial review?
The role of statutory construction
37. The Courts have developed a number of principles of statutory construction that operate to confine what would otherwise be permissible under legislation. The High Court has adopted a textualist approach to construction of legislation. Thus, the Court has held that the task of statutory construction must begin with a consideration of the statutory text. However, it also recognises that context and purpose are important in the ascertainment of the meaning of a provision.
38. The leading modern case is, of course, Project Blue Sky Inc v Australian Broadcasting Authority. The Court must construe every relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute, viewed as a whole and in its context. It must also try to construe the Act on the basis that the legislature intended its provisions to achieve harmonious goals. A meaning other than the literal or grammatical meaning ordinarily will need to be justified by a plausible formulation of it.
39. However, our legal history has been responsible for the interposition, into this textually pure world view, of some inhibiting presumptions, including principle of legality above.
40. The words of a statute are susceptible to judicial frailties. Sometimes, the meaning of a statute may, like beauty, be in the eye of the beholder. A law can have one meaning in a liberal democracy and quite another in a totalitarian dictatorship. The old Soviet Union had one of the most progressive Bills of Rights in the world. The problem was that in that oppressive regime, ordinary citizens could not enforce any of those rights. But, that is not the only setting where draconian consequences can occur from unexpected views of what words mean.
41. This issue arose much closer to our legal system in November 1941, during World War II. It is exemplified in Lord Atkin's remarkable and courageous dissenting speech in Liversidge v Anderson. The Defence (General) Regulations 1939 (UK), had been made in consequence of the threat to Britain. That provided in reg 18B that:
"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained."
42. Lord Atkin said:
"I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin, cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman: "In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute." In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I.
I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them. They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular. Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
I know of only one authority which might justify the suggested method of construction: "'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less'. 'The question is,' said Alice, 'whether you can make words mean so many different things.' ''The question is,' said Humpty Dumpty, 'which is to be master – that's all.'" ("Through the Looking Glass," c. vi.) After all this long discussion the question is whether the words "If a man has" can mean "If a man thinks he has." I am of opinion that they cannot, and that the case should be decided accordingly."
43. However, in Liversidge, the majority construed the regulation in the sense Lord Atkin impugned so that the people whom the Home Secretary thought were of hostile origin or association were detained at pleasure and had no legal remedy for the deprivation of their liberty. The importance of what happened in that case is that the ultimate result was obviously, and dangerously, influenced by the context of the grave threat that Britain was then facing.
44. Nearly 50 years later, all seven justices of the High Court in George v Rockett recognised that Lord Atkin's view was correct and orthodox. That case involved the issue of what facts were necessary to justify the issue of a search warrant. They affirmed that facts had to exist which were sufficient to induce the requisite state of mind in a reasonable person.
45. In Al-Kateb v Godwin, the question arose about the extent of the common law right to personal liberty in the face of a statutory power to keep a person in indefinite detention who had not been convicted or accused of any crime. McHugh, Hayne, Callinan and Heydon JJ, over the dissents of Gleeson CJ, Gummow and Kirby JJ, held that the Migration Act 1958 (Cth) authorised the indefinite detention by the executive of an alien or non-citizen who had no visa or authority to enter Australia, but who could not be returned to his home country or to a third country. Mr Al-Kateb was not in any sense a "freeman" in the vernacular of Magna Carta and he had no lawful authority to be in Australia. The legal justification for that decision was that the Parliament of the Commonwealth had power to make laws with respect to aliens and immigration under s 51(xix) and (xxvii) of the Constitution. Yet, the High Court's decision was, and remains, very controversial, both here and internationally, given that it upheld the potential of permanent deprivation by the executive of a person's liberty.
46. Could such executive detention be authorised in respect of Australian citizens in a law made under another head of Constitutional power or by a State or a Territory legislature? Those issues are being explored in State laws that seek to extend the period of convicted prisoners' incarceration beyond the sentence fixed for their crimes by the Courts, in what are euphemistically called preventative detention regimes.
47. The reactions of legislatures to recent developments in our society has also created other tensions between the boundaries of common law concepts of rights and liberties, Constitutional implications, and legislative and executive power to interfere with those concepts and implications. The threats posed by terrorism and organised criminal activities have to be addressed by responsible governments in all democratic nations. The critical question is where and how lines are drawn.
48. The dilemmas facing courts of democratic countries in dealing with anti-terrorism legislation were discussed by Dame Mary Arden in an extra judicial lecture in 2005: Human Rights in the Age of Terrorism. Her Ladyship discussed the then recent decision in A v Secretary of State for the Home Department. There, the House of Lords quashed the Human Rights (Designated Derogation) Order 2001 (UK). That Order had purported to allow the Home Secretary to detain a person suspected of being a terrorist but who could not be deported. The Order also purported to exclude the detainee's right to apply for a writ of habeus corpus. Lady Mary noted that this decision stood in startling contrast to the decision in Liversidge. She criticised the breadth of Lord Hoffmann's libertarianism and in particular his dictum that the real threat to the life of Britain:
"… in the sense of people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these."
49. Arden LJ wondered whether this dictum expressed a legal judgment or was a matter of political science. She noted that the Supreme Court of the United States had also held in Rasul v Bush that detainees at Guantanamo Bay could challenge the lawfulness of their detention. She discussed the dilemma posed for the Courts in dealing with what may potentially be violations of human rights by Governments that act against persons based on secret national security information when that information is substantively not justiciable.
50. We are currently seeing an analogue of this problem playing out in Australia where persons who have been found to be entitled to refugee status cannot be granted a visa, and so be released from immigration detention, because of a secret, adverse security risk assessment.
The volume, complexity and constant amendment of legislation
51. Ignorance of the law is no excuse. Sir Samuel Griffith said that a distinguished lawyer had told him that "the law is always certain although no one may know what it is". Naively, Barwick CJ once said that "a citizen should not be bound by a law the terms of which he has no means of knowing". That was before Acts and legislative instruments were available on the internet. Nowadays the statute web page, such as Comlaw, lets one search for the terms of an Act or Regulation as in force at any particular time in the last 25 years or so.
52. What has been remarkable in the last 40 years is the expansion of statute law, not just in its subject matter but also in its prolixity. Prolixity and statutory labyrinths are closely linked. In 1948, Jordan CJ described the statutes governing alienation of Crown land in New South Wales as providing:
"… in elaborate detail, in a jungle penetrable only by the initiate, for various ways in which various special and peculiar forms of interests in Crown lands may be acquired from the Crown."
53. Kirby J wryly observed in Wilson v Anderson that that impenetrable jungle had become "overgrown by even denser foliage" in the form of the federal and State Native Title Acts.
54. In 1973, the entire consolidated statutes of the Commonwealth were printed in 12 bound volumes. In 2011, the 190 Acts passed by the Parliament in that year alone occupied nine bound volumes. That leaves to one side what has happened in the making of delegated legislation. The High Court has emphasised that a court must construe a provision in the context of the Act as a whole. That can be a tall order with the many legislative behemoths such as the multiple volumes of Income Tax Assessment Acts 1936 and 1997, the 1,414 pages of Competition and Consumer Act 2010, the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 (Cth). Many Commonwealth Acts now come in more than one volume, if you get a printed copy. Lord Coleridge CJ once addressed an audience of Varsity men at Oxford saying:
"We must remember not merely the beauty of the individual colleges, but the beauty of Oxford as a whole. And what a whole it is!"
The audience's fervent agreement suggested to his Lordship that he could have chosen better phraseology.
55. On a recent count the Migration Act 1958 (Cth) had been amended 68 times in the last 10 years – about once every two months. Even that rate obviously did not keep pace with some urgent necessities in 2009 when that Act was amended 10 times. But, then the tax legislation was amended 30 times in 2012. Of course, the constant tinkering means that it is difficult to use just one version of an Act, lest it has been amended in a material way before or after the relevant time for which one needs it. I discussed some of the difficulties in construing the perplexing replacements of the repealed simple two line text of s 52 of the Trade Practices Act 1974 (Cth) in Wingecarribee Shire Council v Lehman Bros (Australia) Ltd (In Liq).
56. No one can pretend that there is now any reality in the fiction that the Parliament has considered the detail of this tsunami of paper before it enacts it as law. Judges cannot read through the whole of most modern Acts once, let alone each time that they must refer to them or the latest or relevant amended versions. Indeed, our society must ask who is reading this material before it is passed, let alone after it is in force, and why is it all necessary?
57. Take for example, the recently introduced s 23 EJ(2) of the Federal Court of Australia Act 1976 (Cth). It is a legislative instruction to judges in these remarkably informative terms:
"(2) A juror is taken to be discharged if the juror dies."
58. The most worrying lesson from that section is that someone felt that they needed to put this into an Act. Did the drafter think a judge could possibly get that outcome wrong without the section? Much of the prescriptive style of legislation is premised on this conception – that judges, and lawyers and the community, need all that "help". The premise is wrong, and badly wrong.
59. Principles based legislative drafting identifies with reasonable clarity what the Parliament considers important and leaves it to the good sense of the Courts to interpret the law so as to give effect, generally, to its legislative purpose.
60. But, the prescriptive drafting style of recent times is quite a different beast. It presents judges, lawyers and the community with a cascade of every possibility imaginable to the drafter, however inane or recondite, to pour over and interpret. But because drafters are human, they miss points – until the now inevitable next amendment of the Act. Yet, the requirement that every word of an Act be construed so as to give effect to it, if at all possible, in harmony with the rest of the legislation, invites the Courts and litigants to identify the fine distinctions between each phase in a cascade or plethora of alternatives. That means in contracts, dealings with government and litigation, parties and their advisers must also cover every possible permutation in the legislation. This increases costs and the time people spend dealing with their affairs, out of all proportion. Forms are longer to fill in, litigation is much more complex, longer and costlier.
61. Does the community get value for money from prescriptive drafting? It is fair to say that it is not the experience of the Courts that this technique assists in any way to the efficient administration of justice.
62. The current Commonwealth drafting style takes impenetrability to depths that raise real issues of concern about this policy, its value and consequences. Let me take one example to illustrate how this impacts on legality and rights. I have picked an incomplete example from the new criminal cartel provisions in the Competition and Consumer Act 2010 (Cth), omitting the impact on it of the Criminal Code in the Criminal Code Act 1995 (Cth).
63. For centuries the common law has worked on a presumption in relation to the proof of a criminal offence that is based on a relatively simple but sometimes misunderstood concept. Lord Hailsham of St Marylebone LC described this concept in his speech in Haughton v Smith as derived from:
"… the Latin aphorism: "Actus non facit reum nisi mens sit rea." Properly translated, this means "An act does not make a man guilty of a crime, unless his mind be also guilty." It is thus not the actus which is "reus," but the man and his mind respectively. Before the understanding of the Latin tongue has wholly died out of these islands, it is as well to record this as it has frequently led to confusion."
64. The Criminal Code now contains criminal responsibility provisions that were once described by Grant Donaldson SC as bringing:
"to mind the comment attributed to William James in reference to the work of Hegel –
"it was no doubt written with a passion of irrationality; but one can not help wondering whether to the reader it has any significance save that the words are strung together with syntactical correctness"."
65. Let me give an insight into the penumbra. The Competition and Consumer Act now has a new Div 1 in Pt IV. It begins with s 44ZZRA which foreshadows "The following is a simplified outline of this Division" that takes 20 more pages to reach s 44ZZRV. Two indictable criminal offences are created by ss 44ZZRF and 44ZZRG. The first provides, beguilingly simply enough:
"44ZZRF Making a contract etc. containing a cartel provision
(1) A corporation commits an offence if:
(a) the corporation makes a contract or arrangement, or arrives at an understanding; and
(b) the contract, arrangement or understanding contains a cartel provision.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) The fault element for paragraph (1)(b) is knowledge or belief."
66. So far so good. A "cartel provision" is defined in s 44ZZRD in about six pages with multiple alternatives. Obviously, a prosecutor must select one for each charge, as I will now. Critically, s 44ZZRD(1) provides:
(1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:
(a) either of the following conditions is satisfied in relation to the provision:
(i) the purpose/effect condition set out in subsection (2);
(ii) the purpose condition set out in subsection (3); and
(b) the competition condition set out in subsection (4) is satisfied in relation to the provision."
67. Let us choose an example of the purpose/effect condition, in s 44ZZRD(2)(a) and (c), in respect of a charge of price fixing for goods. Importantly, to understand these provisions one needs to know that the word "likely" is defined (in s 44ZZRB) as "including a possibility that is not remote". The Crown must prove that the provision has the purpose, or has or is likely to have the effect, of directly or indirectly, fixing … the price for, … goods supplied or likely (that word again) to be supplied by any or all of the parties to the contract, arrangement or understanding.
68. Next, the competition condition is satisfied "if at least 2 of the parties to that contract, arrangement or understanding are or are likely to be … in competition with each other in relation to … the supply of those goods".
69. So, a judge has to work out a summing up for an offence against s 44ZZRF(1) faced only by a corporation that will explain to a jury in a comprehensible way that they must be satisfied beyond reasonable doubt that:
- the corporation made an understanding, falling short of a contract;
- that contained a provision that had the purpose of; or
- the provision had, or it was not a remote possibility that it had, the effect directly or indirectly of;
- fixing the price for goods supplied or that, it was not a remote possibility that the goods would be supplied by any party to the understanding and;
- at least 2 of those parties were, or it was not a remote possibility that they would have been, in competition with each other in relation to the supply of those goods.
70. As can be seen there are three separate but cumulative uses of "likely" in that "simplified" scenario. That scenario, however, eschews discussion of how the jury will be instructed about both the physical and fault elements in Ch 2 of the Criminal Code and the further elements of a charge against an individual. Individuals will be charged under s 79 with accessorial conduct for which the penalty is a maximum of 10 years imprisonment or a fine of up to 2,000 penalty units. Corporations are liable to fines of $10 million. Given those maximum penalties, clarity of drafting should have been a paramount consideration.
71. Research has shown that the more complex a summing up is the harder it is for a jury to understand. And that research also showed that the longer the sentences or clauses used in a summing up, the harder they are to comprehend. Sir Winston Churchill once observed: "Broadly speaking, the short words are the best, and the old words best of all."
72. The summing up will occur in a setting where the jury will be told, repeatedly, that they must be satisfied, about the elements of the charge, beyond reasonable doubt. But, that expression cannot be further explained to them. How would anyone make sense of being satisfied beyond reasonable doubt that, first, it was not a remote possibility that a provision had an effect, secondly, it was a not remote possibility that goods would be supplied and, thirdly, it was also a not remote possibility that at least two of the parties were in competition with each other? It will be a difficult task for a judge to frame any summing up to a jury on charges under ss 44ZZRF or 44ZZRG that results in a conviction that will be able to survive appellate review. Who will be able to understand this morass? Only, perhaps the drafters who created this abomination and those of the Income Tax Assessment Act 1936 and, its half written and now abandoned rewrite in the 1997 Act (Cth). Churchill also quipped that: "In the course of my life, I have often had to eat my words, and I must confess that I have always found it a wholesome diet." Could the Court one day order the Parliamentary drafters to eat their words?
73. There will be very extensive and complex pre-trial and lengthy trial hearings of cases for offences against ss 44ZZRF and 44ZZRG. Many people will have their lives disrupted by those proceedings. The drafting is a disaster waiting to happen. It is inconceivable that the Parliament understood the mind numbing complexity of what it no doubt thought was a very important reform. There is not really any comparison between the arcane complexity of Div 1 of Pt IV of the Competition and Consumer Act and the simplicity of the United States' equivalent in the highly effective and still in force Sherman Act of 1890, s 1 of which provided:
"Every contract, combination in the form of trust or otherwise; or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court."
74. There is a real danger that the human beings who will face charges under the Australian cartel legislation will be likely to find that its overwhelming complexity first, stretches the case out significantly, secondly, creates the real possibility of a miscarriage in the trial and, thirdly, makes it impossible for any ordinary individual to pay for lawyers and experts to defend the charges. The personal stress that any litigation imposes is likely to be exacerbated by such factors. They may create inhibitions for access to justice. The potential for oppressiveness to be created by proceedings under this legislation may undermine the rule of law. No doubt any cartel case will be complex whatever the legislation. No-one suggests that cases under the Sherman Act are simple. But, such cases do not have to be made unnecessarily complex. Juries do not have the intelligence of Wittgenstein to contemplate directions as to how to approach a charge under ss 44ZZRF or 44ZZRG.
75. The issue for our society is whether the laws it makes should be, so far as possible, efficient to administer, as an aspect of the rule of law. When faced with arcane voluminous legislation that challenges comprehension, one can legitimately raise a question as to whether that is a law at all? But that is for another day.
Charters of Rights
76. I do not consider that the Victorian or Australian Capital Territory approach to statutory recognition of human rights is the most desirable solution for our country to follow. They are legislative attempts to give some definition to the principle of legality. But, they suffer from the same weaknesses as the common law presumptions do: statutes can displace them and they do not withdraw legislative or executive power. Only a constitutional provision has that effect. Entrenchment of fundamental rights can be traced back to the 14th century. The Due Process Act of 1368 provided:
"No person be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land:
And if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error."
It is still the law in force in at least New South Wales and the Australian Capital Territory but it has not been much used.
77. The Charter of Human Rights and Responsibilities Act 2006 (Vic) provides in s 36(2) that if the Supreme Court of Victoria is of the opinion that a statutory provision cannot be interpreted consistently with a human right, it may make a declaration to that effect under s 36. The Court must try to interpret legislation "in a way that is compatible with human rights" under s 32. What is more, s 36(5) provides that a declaration of "inconsistent interpretation" does not affect the validity of the impugned legislation nor does it "create in any person any legal right".
78. Two criticisms of that Act may be made at once. First, the Court cannot find the impugned law invalid. To the contrary where incompatibility exists, that law is valid and overrides the Charter rights. Secondly¸ the Court can only make a declaration that has no legal effect except to draw the incompatibility to the attention of the Attorney-General. The High Court looked at the Victorian Act inconclusively in Momcilovic v The Queen. A declaration under s 36 of that Act raises real questions concerning Ch III which will no doubt create future controversy.
79. If citizens are to have rights worth having, they can only be guaranteed either by constitutional entrenchment through a democratic referendum or, by the Parliament scrutinizing legislation and the Courts continuing to apply the principle of legality. As I have said, one problem is that no-one can really assimilate or analyse effectively the veritable tsunami of prolix legislation that is being passed in today's age.
80. A reaction to the suggestion that Australia should have a Constitutional Bill of Rights is that this would give too much power to the judiciary. But, as in any constitutional democracy, the boundaries for any separations of powers among the three arms of government are drawn themselves by a democratic process. At the moment, the only checks or balances on the relatively plenary legislative power of the Parliament under Ch I of the Constitution comprise limited constitutional implications, the important political need for legislatures to justify their actions to their electorates and common law principles of statutory interpretation.
81. Creating an entrenched Bill of Rights gives no substantive new power to the judiciary. Rather, the decision to reflect important societal values in a Constitutional instrument involves the electorate removing or withdrawing power from not just the legislative and executive branches, but also from the judicial one as well. The right, for example, to due process limits judicial power too.
82. Of course, Courts must determine the legal validity of any legislative or executive conduct in light of any relevant provision in a Bill of Rights. Our legal system currently allows every court in this country, from a local court magistrate to the High Court, when exercising federal jurisdiction, to declare a law made by any parliament or under delegated legislation or any executive conduct to be constitutionally invalid. When, particularly, the High Court makes a decision of that character, the Court can become involved in political controversy. But, that is simply a proper and necessary outcome of the third arm of government performing its role of determining the boundaries in which the other two arms of government may or may not operate or the limits of judicial power. That use of judicial power is itself an essential governmental function in a society operating under the rule of law. And, when the Courts exercise their powers, under Ch III of the Constitution they must justify that exercise in proceedings that occur transparently in open court and in reasons for the judgment in which the Court decides and pronounces the law.
83. In essence such judgments are also the product of statutory interpretation both of the impugned law or source of executive action and the asserted relevant constitutional provisions. The brief historical overview given above helps to explain some of the presumptions and rules of statutory interpretation that the Courts have developed in dealing with legislation that affects some fundamental values of our society.
84. Lest it be thought that I have been declaiming an uniquely Australian problem with legislative drafting, I should refer to what Lord Phillips of Worth Matravers PSC said in R (Noone) v Governor of Drake Hall Prison:
"The road to hell is paved with good intentions. In this case the good intentions were to introduce mandatory rehabilitation for very short term prisoners by coupling time spent in custody with a release period under licence. This was known as "custody plus". Hell is a fair description of the problem of statutory interpretation caused by transitional provisions introduced when custody plus had to be put on hold because the resources needed to implement the scheme did not exist."
85. The steady, inexorable and unthinking use of bloated legislation is a real threat to our democracy. It is making the ascertainment and determination of the law unnecessarily more and more difficult. Ordinarily, laws that criminalise conduct should be relatively easy to distil to a jury. The more complex the laws, the more loopholes and difficulties in application will be found. The Parliament should give serious reconsideration to the way Commonwealth legislation is now drafted. Principles based legislation is relatively succinct, straightforward and has worked for many centuries effectively.
86. The Courts were able, in general, to construe such Acts in a way that gave effect to the legislative intention. Of course, there have been cases where the Courts got that wrong, but then the Parliament can and has corrected such errors of approach. The danger of not only losing sight of the wood for the trees, but losing the benefit of the efficient and effective administration of justice is emerging now. Court cases take longer, partly because the parties must cover every statutory possibility in the thicket of the current prescriptive drafting style. The time has come to turn back to stating principles in our laws and trusting to the common sense of the Courts to understand something that, in reality, they can read as a whole. The whole quality of justice is suffering.
* A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory. The author acknowledges the assistance of his associate, Venetia Brown, in the preparation of this paper. The errors are the author's alone.
A paper presented at the 2013 AGS Administrative Law Conference, Canberra, 20-21 June 2013.
 As quoted in Hansard: Legislative Council Western Australia 3 December 2008 at 810.
 Art II
 Art IV
 Art VIII
 25 Edw I c 1 recited that the Charter confirmed all the rights and liberties that the King had granted and given to all the Freemen of his realm forever
 25 Edw III St 5, c 4, 28 Edw III c 3, 42 Edw III c 3
 3 Car I c1
 16 Car 1 c 10, 31 Car II c 2
 1 Will and Mar Sess 2 c 2
 Somerset v Stewart (1772) Lofft 1 at 19; 98 ER 499 at 510
 R v Wilkes (1763) 2 Wils 151
 i.e. a Government Minister
 later Lord Camden
 2 Wils at 159-160
 see the note of the Wilkes v Wood (1763) Lofft at 19
 32 Geo III c 60
 Butterworths; London 1984
 (1765) 2 Wils 265; 95 ER 807
 2 Wils at 288-289
 2 Wills at 291
 with whom Barton and O'Connor JJ concurred
 Clough v Leahy (1905) 2 CLR 139 at 150 per Mason CJ, Brennan, Gaudron and McHugh JJ
 (1908) 7 CLR 277 at 304 (citing a passage from Maxwell on Statutes 4th ed at 121)
 2 Wils 275
 (1994) 179 CLR 427 at 435
 179 CLR at 436
 179 CLR at 437
 (1987) 162 CLR 514 at 523
 179 CLR at 436
 179 CLR at 437-438
 (1990) 71 CLR 1 at 18
 Potter v Minahan (1908) 7 CLR 277 at 304
 see generally: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252 per Deane, Dawson, Toohey and Gaudron JJ and the cases cited there; X7 v Australian Crime Commission  HCA 29 at - per Hayne and Bell JJ,  per Kiefel J
 Bropho 171 CLR at 17-18; Potter 7 CLR at 304
 Annetts v McCann (1990) 170 CLR 596 at 598
 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at 141-142 -; Daniels Corporation 213 CLR at 554 
 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553  per Gleeson CJ, Gaudron, Gummow and Hayne JJ
 Wentworth 176 CLR at 252; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 5880-581 -, 583  per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
 Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ
 (2004) 221 CLR 309 at 329 
  AC 539 at 587, 589
 in a passage approved by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 
 AM Gleeson: The meaning of legislation: Context, purpose and respect for fundamental rights (2009) 20 PLR 26 at 33-34
 (1989) 168 CLR 461
 see e.g. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264; R v Kirby; Ex parte Boilermakers Society of Australia (1956) 96 CLR 254 esp at 264-268; Re Wakim; Ex parte McNally (1999) 198 CLR 511
 (1997) 189 CLR 520 at 567 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
 (2004) 220 CLR 1 at 51 - per McHugh J, 77-78  per Gummow and Hayne JJ, 82  per Kirby J
 s 72(iii)
 (1951) 83 CLR 1 at 193
 83 CLR at 193
 83 CLR at 193
 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514  per Gaudron, McHugh, Gummow, Kirby and Hayne JJ
 211 CLR at 514 
 (2003) 216 CLR 277
 216 CLR at 297  per McHugh, Hayne and Callinan JJ
 216 CLR at 297 
 Recently, in the United Kingdom there has been a suggestion that the government may somehow seek to privatise the Courts or some of their functions.
 Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 297 ALR 190 at 200  per French CJ, Crennan, Kiefel, Gageler and Keane JJ
 (1998) 194 CLR 355 at 381-382 -, 384  per McHugh, Gummow, Kirby and Hayne JJ
 ASIC v DB Management Pty Ltd (2000) 199 CLR 321 at 338 - per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ
 Union of Soviet Socialist Republics
  AC 206
  AC at 244-245
 (1850) 5 Ex 378
  AC 378 at 393
 Viscount Mangham, Lords Macmillan, Wright and Romer
 (1990) 170 CLR 104 at 112 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; see too the cases cited in George 170 CLR at 112
 (2004) 219 CLR 562
 see e.g. Fardon v Attorney-General (Qld) (2004) 229 CLR 575 upholding the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
 (2005) 121 LQR 604
  2 AC 60
  AC 206; 121 LQR at 616-617
  2 AC at 132 
 542 US 466 (2004)
 Riddle v The King (1911) 12 CLR 622 at 629
 Watson v Lee (1979) 144 CLR 374 at 381
 Re E W Hawkins (1948) 49 SR (NSW) 114 at 118; see Wilson v Anderson (2002) 213 CLR 401 at 437 , per Gaudron, Gummow and Hayne JJ, 453  per Kirby J
 (2002) 213 CLR 401 at 453 
 the Native Title Act 1993 (Cth) and Native Title (New South Wales) Act 1994 (NSW)
  FCA 1028 at -
  AC 476 at 491H-492A
 now Solicitor-General for Western Australia; see his speech "Welcome to the Honourable Justice Virginia Margaret Bell", Ceremonial - Bell J - Welcome Perth  HCA Trans 267
 s 44ZZRD(4)(a) and (c)
 about $340,000
 15 USC 1
 cf: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 214-218 - per Gummow, Hayne, Crennan, Kiefel and Bell J
 42 Edw III c 3
 That Act has been included as part of the legislation in force in the Imperial Acts Application Act 1969 (1969 (NSW) s 6 and Pt 2 of Sch 1 and under its own title in Australian Capital Territory; cf Adler v District Court of New South Wales (1990) 19 NSWLR 317; Thomas v Baptiste  2 AC 1
 (2011) 245 CLR 1
 see the paper by Prof Helen Irving: State Jurisdictional Residue: What remains to a State Court when its Chapter III functions are exhausted?
  1 WLR 1743 at 1745