7.1 Introduction
7.1.1 What are fundamental legislative principles?
Fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law (Legislative Standards Act 1992, section 4(1)). The principles include requiring that legislation has sufficient regard to the rights and liberties of individuals and to the institution of Parliament.
7.1.2 Considering fundamental legislative principles
OQPC has a statutory responsibility to advise in relation to the application of fundamental legislative principles in drafting legislation (Legislative Standards Act 1992, section 7). The portfolio committees have a statutory responsibility to comment on the application of fundamental legislative principles to particular Bills and particular subordinate legislation (Parliament of Queensland Act 2001, section 93). The portfolio committees have replaced the former Scrutiny of Legislation Committee and adopted a similar approach and commentary.
Explanatory notes for Bills and significant subordinate legislation are required to contain a brief assessment of the consistency of the legislation with fundamental legislative principles and, if the Bill or subordinate legislation is inconsistent with fundamental legislative principles, the reasons for the inconsistency (Legislative Standards Act 1992, sections 23(1)(f) and 24(1)(i)).
This chapter provides some practical guidance on the application of the fundamental legislative principles. For more information on the application of fundamental legislative principles in the drafting of legislation, see the OQPC Notebook and Principles of good legislation: OQPC guide to FLPs, which are available on the Publications page on the Legislation website or consult the publications of the portfolio committees and the Alert Digests of the former Scrutiny of Legislation Committee.
Information about Fundamental Legislative Principles, which is updated and maintained by OQPC, is available on the Queensland legislation website.
The Legislative Standards Act 1992, section 4(3) specifies some of the matters that should be considered in deciding whether legislation has sufficient regard to the rights and liberties of individuals. These are considered below in Chapters 7.2.1–7.2.11. Chapter 7.2.12 considers some other matters that are relevant to the rights and liberties of individuals.
The Legislative Standards Act 1992, section 4(4) and (5) specifies some of the matters that should be considered in deciding whether legislation has sufficient regard to the institution of Parliament. These are considered below in Chapters 7.3.1–7.3.8. Chapter 7.3.9 considers some other matters that are relevant to the institution of Parliament.
Chapter 7.4 contains a practical application of fundamental legislative principles in an examination of inspectorial powers.
7.1.3 Modifying or abrogating fundamental legislative principles: the principle of legality
Before considering the content of fundamental legislative principles, it is important to understand how legislation affecting fundamental legislative principles will be interpreted by the courts.
The High Court has repeatedly stated that statutory provisions are not to be construed as modifying or abrogating important common law rights, freedoms, privileges or immunities in the absence of clear words or necessary implication to this effect.7 This common law presumption, or rule of statutory construction (‘the rule’), is considered to be an aspect of the ‘principle of legality’ which governs the relationship between parliament, the executive and the courts.8 The rule is of long standing and the Chief Justice of the High Court has recently reiterated that ‘[i]t can be taken to be a presumption of which those who draft legislation, regulations and by-laws are aware’.9
The type of common law rights, freedoms, privileges and immunities that are protected by the rule include the following—
- freedom from unwarranted imprisonment or detention10
- freedom of movement11
- freedom of speech12
- vested proprietary interests13
- privilege against self-incrimination14
- legal professional privilege15
- access to the courts16
- procedural fairness17
- that legislation is not retrospective18
- that legislation does not oust the jurisdiction of the courts19
- that the crown does not have right of appeal20
- rules of international law21
This list is certainly not exhaustive and the High Court has indicated a willingness to expand the rule significantly. For example, in X7 v Australian Crime Commission [2013] HCA 29, a majority in the High Court recognised that the rule was most frequently applied to legislation which may affect rights. However, the majority held that the rule also applied to legislation which could have an effect on a ‘defining characteristic of the criminal justice system’.22 In fact, the majority indicated that the rule would apply to any legislation which departed from the ‘general system of law’.23
As the rest of this chapter is explored, it will be noted that many of the common law rights, freedoms, principles and immunities protected by the rule overlap with the fundamental legislative principles identified in the Legislative Standards Act. This makes sense, given that both the rule and the fundamental legislative principles have a common aim: to provide the foundation for a parliamentary democracy based on the rule of law.
The rule means that it is essential to know and understand fundamental legislative principles. It means that the legislature, when making laws, must squarely face two issues. Firstly, the legislature must decide whether there is adequate policy justification to override the fundamental legislative principles. Secondly, if the legislature does decide to override the principles, it will only be successful in achieving its intent if it uses express words or words of ‘necessary intendment’.24 To achieve such overriding, the rule ‘will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to abrogate or restrict and has determined to do so.’25
