In any event, even if one followed the `Simms reasoning`, the real intention of the legislature is relevant, as explained in Part IV of that article. The principle of legality is motivated by the search for the real legislative intention of Parliament, to which Simms must still refer when he says: “Parliament must deal directly with what it does”. [54] The importance of Parliament`s real intent in determining whether the principle of legality applies to statutory rights will soon become apparent. BT – The principle of legality in Australia and New Zealand In any event, the evolution of constitutional laws in the United Kingdom highlights similar concerns that would arise from a broad principle of legality. They have considerable power. For example, Marshall felt that Thoburn “raises difficult questions”:[192] [151] There are, of course, other principles of interpretation that do not necessarily point in the same direction as generalia specialibus non derogant – the assumption that general laws do not depart from special laws. Even if “Simms reasoning” were accepted as new and different reasoning, Parliament`s actual intent is still relevant. [113] Lord Hoffmann said that “Parliament must be resolutely concerned with what it does.” [114] As Goldsworthy noted, His Lordship wrote “as if legislators could have intentions.” [115] Indeed, Lim made a rather significant concession: “If Parliament does not know that a particular right is considered fundamental in a particular context,” then “one can accept” that Parliament “should not be directly confronted with what it does.” [116] This is consistent with some of the comments made by the United Kingdom. The principle of legality “does not apply in the absence of the necessary context of a relevant fundamental common law principle.” [117] The fundamental protection of the common law must be “already in place.” [118] Curiously, Philip Sales J. (as was his Lordship at the time) adopted the words of Simms to say that similar criticisms apply to “important” or “valuable” legal rights. There is no binding declaration of essential or valuable rights under the law; These rights are also subject to judicial recognition. It follows that there is uncertainty as to which legal rights are actually significant or valuable and therefore protected by the principle. Whether a legal right is important or valuable (or a statutory right at all) can be debatable and controversial.

For example, in Vikpro Pty Ltd v Wyuna Court Pty Ltd,[97] Justice Holmes simply stated in an obiter dicta before the Queensland Court of Appeal that a tenant`s right to object to the payment of property tax under the Property Tax Act 1915 (Qld) was not a “right of such importance” that he applied the principle of legality. [98] The reasons for this conclusion have not been stated. Previous cases have not specified the process and criteria for identifying important or valuable legal rights. [99] It is true that the principle of extending legality to important or valuable legal rights would mean that some legal provisions are, in Dicey`s words, “holier or more immutable” than others, and that Parliament cannot repeal or modify these provisions “as freely and in the same manner”. [131] This creates a hierarchy of legal provisions. Only those that are more important or more valuable are protected by the principle of legality. But otherwise, the protection of important or valuable legal rights under the principle of legality is consistent with Dicey`s concept of parliamentary sovereignty. Parliament reserves the right to revoke or modify these statutory rights, provided that it has clearly and unambiguously stated this in the subsequent law infringed. Finally, the principle of legality is considered an orthodox principle of legal interpretation that is “compatible with the principle of parliamentary supremacy”. [132] It “can be defeated. by a sovereign legislator.” [133] Finally, there appears to be little benefit in return for such methodological challenges.

Parliaments can and do so in order to adopt legally protective interpretive provisions that protect the provisions against subsequent legislation. The presumption against implied repeal already protects laws from repeal or amendment by subsequent statutes, unless explicit words or necessary implications are included. In the words of Gageler J. (albeit expressed in different contexts): “In addition to its application to established categories of protected common law rights and immunities”, the principle of legality must be “approached with caution”; [241] “A deliberate appeal” to the principle “can only weaken its normative force, reduce the predictability of its application and, ultimately, call into question its democratic legitimacy.” [242] The extension of the principle of legality to certain legal rights may give rise to considerable difficulties. As mentioned above, this does not fall within the traditional scope of the principle. There is no certainty as to whether the principle can extend to important or valuable legal rights (and what those rights are). Given this widespread lack of support and acceptance, Parliament cannot decide, or has deliberately decided, to abrogate or amend certain legal rights, if it does not even know that it is obliged to do so. The extension of the principle of legality beyond its conventional interpretation probably does not reflect the institutional relationship between Parliament and the courts. The principle must be based on an awareness of the functioning of the two institutions. Therefore, an expanded principle of legality would likely lead to accusations of legal activism. As Goldsworthy said, “judges do not have the same relatively unlimited power to alter these principles of interpretation.” [109] The above criticisms relate to the lack of clarity in the definition of constitutional laws and the questionable conformity with Parliament`s intent in recognizing and protecting them.