Thursday, February 11, 2021

The principle of legality, rights limitation by necessary implication

Parliament may make laws that deliberately infringe people’s rights. Including rights contained in a Bill of Rights.


But bills of rights may require that legislation is to be interpreted consistently with individual rights, so far as it is possible to do so.


The exact wording of this sort of interpretive requirement may vary between bills of rights in different states. [1]


However, there is a generally applicable principle which requires that when Parliament intends its legislation to infringe individual rights, it can only do so “by express words or necessary implication.” This is called the principle of legality.


Differences over whether rights infringement was a “necessary implication” were central in D (SC 31/2019) v Police [2021] NZSC 2 (9 February 2021). [2]


The majority held that the relevant legislation was insufficiently clear to displace the presumption against retrospective penalties. The minority considered that the only available interpretation of the legislation was that it did displace that presumption.


It is for Parliament to decide what to do to avoid the consequent incongruities (noted by Glazebrook J, dissenting on this point, at [243]-[248] and referred to in the joint majority judgment of Winkelmann CJ and O’Regan J at [82]).

Given the disagreement here among Judges of the final appeal Court over application of the principle of legality, you might fairly ask whether the majority could have given clear guidance on how such disagreement might be avoided in future. Should the principle of legality have been modified by excluding “necessary implication”, so that clear words are required for legislation to infringe rights? A statutory example of clear words is mentioned at [79].


The rejection in New Zealand of the more “far-reaching” interpretive approach in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 drew mention from Glazebrook J at [253] of academic commentary about when the courts might be prepared to override Parliament’s purpose.


The extent to which, on an appeal against sentence, the appellate court should consider evidence of recent (that is, post-sentencing) assessments an offender’s prospects of rehabilitation, also arose for comment in this case.


No objection had been taken to the consideration of such material by the appellate courts here, so the point did not need to be decided, but William Young J observed that on sentence appeals the issue is whether there had been an error at sentencing, so he had reservations about the practice ([305]-[307]). Glazebrook J had reservations too, but on the narrower ground that the scheme of the present legislation seemed to be against consideration of such updating material (at [262]).

There are also some interesting remarks on judgment anonymisation in contrast to name suppression: see [136]-[147].

I don’t need to distress you with a more detailed consideration of this appeal, because the Court itself sets out an admirably clear summary of the positions taken by each Judge and the result of the case (at [1]-[11]). Thank goodness for that.



[1] For example, s 6 of the New Zealand Bill of Rights Act 1990, s 3 of the Human Rights Act 1998 [UK], and see my comment on the difference between these (8 September 2011). See also my discussion of Momcilovic (9 September 2011).


[2] The principle of legality is referred to in this case at [76]. For background, see Bruce Chen “The Principle of Legality: Issues of Rationale and Application” (2015) 41 Monash University Law Review 329. In New Zealand the principle has statutory form in s 6 of the New Zealand Bill of Rights Act 1990. Its rationale as an aspect of the rule of law is that Parliament understands the way the courts will interpret its legislation, treating it as improbable that there would be a departure from fundamental rights without express and unambiguous statutory wording to avoid the risk that legislation will have unintended consequences.