The common law principle of legality

In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that '[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.' This development has occurred throughout the common law world most relevantly in New Zealand and the United Kingdom where its re-emergence coincided with the enactment of statutory bill of rights. It is however the aim of this article to outline the nature and scope of the principle of legality in contemporary Australian law.

The principle of legality as clear statement rule: significance and problems

In Australia, the common law principle of legality has hardened into a strong clear statement rule that is applied when legislation engages common law rights and freedoms. It has transformed a loose collection of rebuttable interpretive presumptions into a quasi-constitutional common law bill of rights. However, these developments are not without controversy or issue. The analysis undertaken in this article suggests that the principle of legality as clear statement rule -- as mandated by the High Court in Coco v The Queen -- can only work legitimately if Parliament has clear and prior notice of the rights and freedoms that it operates to protect. But it is problematic if what a common law right, such as freedom of speech, requires or guarantees in any given legislative context is unclear and contested, and so must be judicially divined at the point of application. In these cases, the principle operates to enforce a (post-legislative) judicial approximation of what best protects and promotes an abstract legal value or principle. It amounts to the illegitimate judicial remaking of prior legislative decisions on rights. This undercuts the normative justifications for the principle of legality as it obscures from Parliament the common law (rights) backdrop against which its legislation is enacted and interpreted.

Beyond deficit models of learning mathematics : Socio-cultural directions for change and research

Major paradigmatic changes in mathematics education research are drawing attention to new perspectives on learning. Whereas deficit models were previously in the foreground of research designs, these have been replaced by a wide variety of theoretical directions for studying diverse approaches to learning mathematics. There is now an acceptance of the need for richness and variety in research practices so that approaches can be studied, compared and mutually applied and improved. Psychological and quantitative approaches and methods are now increasingly complemented, or even replaced, by new directions that rely on social and anthropological theories and methods. Rather than reviving ideas about deficit research in mathematics education, the aim of this chapter is to present some socio-cultural perspectives of mathematics learning, and to show how these perspectives go beyond the deficit model of learning. Framing the main traditional markers of discrimination in school mathematics—gender, social class and ethnicity—in a perspective of social justice, the chapter concludes with a reflection on equality in terms of the democratic principle of meritocracy in mathematics education.

Addressing the curious black spot that is the separation between the principle of legality and sentencing

The principle of legality has evolved into a clear and entrenchedjurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and fre edoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legalsystem operates in its most coercive manner against individuals. In thisarticle, we argue that logically the principle of legality has an importantrole in the sentencing system given the incursions by criminal sanctionsinto a number of basic rights, including the right to liberty, the freedom ofassociation and the deprivation of property. By way of illustration, we setout how the principle of legality should apply to the interpretation of keystatutory provisions. To this end, we argue that the objectives of generaldeterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send offenders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of offenders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

Excessive criminal punishment amounts to punishing the innocent : an argument for taking the parsimony principle seriously

Punishing the innocent is incontestably repugnant. Punishing offenders more harshly than is justified is a form of punishing the innocent, yet this practice is commonplace in the United States. This Article sets out a normative argument in favor of less severe penalties for many forms of offenses. There is already an established principle, which limits punishment to the minimum amount of hardship that is required to achieve the objectives of sentencing. The principle is termed “parsimony” and is widely endorsed. Yet, in reality, it is illusory. It has no firm content and in its current form is logically and jurisprudentially incapable of grounding a persuasive argument for more lenient sentences. This Article gives content to the principle of parsimony. It is argued that application of the principle will result in a considerable reduction in the number of offenders who are sentenced to imprisonment and shorter sentences for many offenders who are jailed. The recommendations in this Article will enhance the fairness and transparency of the sentencing system. The argument is especially important at this point in history. The United States is experiencing an incarceration crisis. The principle of parsimony, properly applied, is an important key to ameliorating the incarceration problem. The Article also examines the operation of the parsimony principle in Australia. Unlike sentencing courts in the United States, Australian judges enjoy considerable discretion in sentencing offenders. Despite the vastly different approach to sentencing in Australia, it too is experiencing a considerable increase in the incarceration rate. It emerges that the courts in a tightly regimented sentencing regime (the United States) and a mainly discretionary system (Australia) effectively ignored the parsimony principle. It is not the strictures in the United States that curtail the imposition of parsimonious sentences; rather, it is the absence of a forceful rationale underpinning the principle and a lack of clarity regarding the attainable objectives of sentencing. This Article addresses these shortcomings. In doing so, it paves the way for fundamentally fairer sentencing outcomes in the United States and Australia.

Rethinking the Australian model of promoting gender equality

Examines the public law of gender and equality from the perspectives of comparative constitutional law, international law and governance.