Principle of legality

Smith v R [2022] SASCA 48

Statutes are read not to breach fundamental rights and freedoms, absent clear words8.  This protects against ‘inadvertent and collateral’ contraventions9. The boundaries here are ever being tested10.

In this roadside licence check case11, it was accepted (at [28-29]) there is a common law right to go about your lawful business undisturbed.  It was argued that, after telling Smith his licence was ‘all clear’ but not then returning it to him, he was under de facto arrest in breach of that right – rejected.  It was held that the law authorised the licence check, and there was no evidence the purpose in stopping the car was ‘unconnected with proper policing enquiries’. 

This principle is from Episode 87 of interpretation NOW!


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

9 NAAJA [2015] HCA 41 (at [81]), Caratti [2017] FCAFC 177 (at [25]).

10 Hopkins [2020] FCAFC 33 [at [40-44]) is another recent instance.

11 s 40H of the Road Traffic Act 1961, s 96 of the Motor Vehicles Act 1959.