The principle of legality is a rule of interpretation of the law: if Parliament intends to interfere with fundamental rights or fundamental principles or to depart from the general legal order, it must express this intention in clear and unambiguous language. In 1908, Justice O`Connor in Potter v. Minahan called this principle a constant prediction of parliamentary intention: the principle of legality is now part of customary international law. The majority of states have constitutional provisions that establish the right to “no crime or punishment without law.” The majority of those who do not have such constitutional provisions have codified rights through laws and treaties. The principle of legality is enshrined in the Latin expression “nullum crimen sine lege, nulla poena sine lege”, which roughly translates to “no crime and no punishment without law”. The principle of legality implies, in essence, that criminal liability and punishment are based only on the prior adoption of a sufficiently precise and unambiguous prohibition. In conflict with the principle of legality, the rule that legal codes must be interpreted reasonably so as not to thwart the legislative process. The rule of law as a constitutional principle requires that a citizen, before committing to a course of action, be able to know in advance what the legal consequences will be. If these consequences are regulated by a law, the source of that knowledge is what the law says. The second element of Gleeson C.J.`s request is that when Parliament interferes with these rights and principles, that interference must be clear.
This reflects an essential element of the rule of law: the law must be clear and accessible. If people have to organize their affairs by law or face penalties, then they must be able to understand what it requires. As Lord Diplock stated in Black-Clawson Ltd v. Papierwerke AG, the principle of legality protects these fundamental rights and principles because it requires the courts to adopt a conservative approach to the interpretation of the law, which errs in respecting them. In the words of the French Chief Justice, when a court is faced with “constructive decisions” about the meaning of a law, it must assume the importance that minimizes the interference of the law with these rights and principles. Twelve years ago today, the High Court handed down its decision in Electrolux Home Products Pty Ltd v. Australian Workers` Union, remembered today for Chief Justice Gleeson`s historic discussion of the principle of legality. Chief Justice Gleeson`s statement has two elements. The first element is that the principle of legality makes it difficult for the courts to restrict rights and doctrines that are essential in a society based on the rule of law. Second, the principle jealously guards access to the courts. In Case S157/2002 v. Commonwealth, the High Court has applied the principle of legality to interpret strictly a private clause: a statutory provision intended to prevent the courts from reviewing the legality of executive acts and decisions.
Gleeson C.J. explained this approach with a quote from Lord Denning: 74 In this context, note Lord Sales` call for “prudence,” “stability,” and the “slow wave of constitutional principles” (p. 74). Sales, “Legalism in Constitutional Law: Judging in a Democracy”  P.L. 687, 698). Fourth, the principle of legality protects the essential elements of a fair trial. Parliament must speak with irresistible clarity in order to renounce the rules of natural justice, the presumption of innocence and the privilege of self-incrimination, the criminal standard of proof and the principle of public justice. 177 See, for example, R.
v Secretary of State for the Home Department, ex parte Simms,  2 A.C. 115, 130B (Fusion of anxiety examination cases Wednesbury and legality); H. Woolf, J. Jowell, C. Donnelly and I. Hare, De Smith`s Judicial Review, 8th edition (London 2019), chap. 11 (blind examination of substantive and legality review cases in the chapter on substantive review). 3 See, for example, R.
v. Secretary of State for the Home Department, ex parte Stafford  2 A.C. 38, 47–49; R. v. Lord Chancellor, ex parte Lightfoot  Q.B. 597, 607–10, 623–24; R. (Child Poverty Action Group) v Secretary of State for Work and Pensions  UKSC 54,  2 A.C. 15, at . Even if the PoL is not revived, for example because the common law norms at stake are not considered sufficiently normatively important to trigger the principle of legality, a weaker presumption may still apply in favour of preserving common law norms: Burrows, A., Thinking About Statutes (Cambridge 2018), 71-74CrossRefGoogle Scholar. Lord Bingham disagreed.
In his view, the rules were clear. It expressly referred to the receipt of the application for asylum as decided and not to the notification of the applicant. Parliament had expressly provided for the notification of decisions elsewhere in the Staff Regulations. Lord Bingham acknowledged the importance of the principle of legality for the rule of law, but countered that it was “a cardinal principle” of the rule of law that “clear and unambiguous legislation should be implemented”. The Court`s “aversion” to the Government`s treatment of the applicant could not lead it to give the Regulation “anything other than its clear and obvious meaning”. Thirdly, the principle protects against derogations from equality before the law.