Principle of legality

Hopkins v Minister [2020] FCAFC 33

Legislation is presumed not to infringe fundamental rights/freedoms in the absence of clear language – the principle of legality6.  The task is to identify some right or freedom, then test if it is ‘fundamental’.

H arrived here as an infant in 1967.  46 years later, his permanent visa was cancelled due to his substantial criminal record7.  He argued for an ‘amplified common law right’ under international law not to be a ‘person’ to whom the Act could apply.  This was rejected: ‘person’ includes all natural persons, and the power to cancel ‘unambiguously’ applied.  There was no common law right ‘preferentially to choose’, and so the principle of legality had no application.

This principle is from Episode 59 of interpretation NOW!


6 Coco (1994) 179 CLR 427 (at 437), Lacey [2011] HCA 10 (at [43-44]).

7 s 501(3A) of the Migration Act 1958.