Fundamental Rights and Necessary Implication
| Author | Dan Meagher |
| DOI | http://doi.org/10.1177/0067205X221146332 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(1) 102–128
© The Author(s) 2023
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DOI: 10.1177/0067205X221146332
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Fundamental Rights and Necessary
Implication
Dan Meagher*
Abstract
This article traces the manner in which the High Court’s recent legality jurisprudence has applied the
‘modern approach’to interpretation in the context of fundamental rights. It is an approac h which has
exerted doctrinal pressure on the iconic and once authoritative conception of legality outlined in Coco v
The Queen. Relevantly, the Court’s commitment to contextualism has extended to the interpretation of
statutes which, on their ordinary meaning, implicate fundamental rights; and the important doctrinal
shift which these cases seem to evidence is that the infringement of fundamental rights by necessary
implication no longer has to satisfy the stringent —Coco —test. In Coco, the Court had stated that
legality —the fundamental rights presumption —‘may be displaced by an implication if it is
necessary to prevent the statutory provisions from becoming inoperative or meaningless.’
Received 13 February 2022
I Introduction
It is a well-established proposition at common law that a statute may only infringe fundamental rights
by express words or necessary implication.
1
To do so expressly involves the use of ‘unmistakableand
unambiguous language’to clearly manifest that statutory inte ntion.
2
That seems clear enough. But
when does a statute manifest that intention by necessary implication and by what interpretive process
does a court ascertain it? These are difficult interpretive questions. But inour age of statutes, wherethe
capacity of legislation to infringe fundamental rights is commonplace, it is increasingly important for
the political arms of government and the citizenry to understand when and how this occurs.
One maybe intractable difficulty is that reasonable judicial minds may differ as to when an
implication of this kind is ‘necessary’in the relevant sense. It is an elusive, question-begging
Deakin University Law School of Law Locked Bag 20001 Geelong AU-VIC 3220 Australia
* School of Law, Deakin University. My thanks are due to Jeff Goldsworthy, Matthew Groves and the anonymous referees
for their valuable comments and suggestions and likewise to the participants at the Centre for Comparative Constitutional
Studies Brown Bag Seminar Series at the Melbourne Law School where an earlier version of the article was presented on 30
March 2021. The author may be contacted at d.meagher@deakin.edu.au.
1. Coco v The Queen (1994) 179 CLR 427, 437–8 (Mason CJ, Brennan, Gaudron and McHugh JJ) (‘Coco’).
2. Ibid 437.
concept: ‘necessary’to do what? In Coco v The Queen (‘Coco’), the High Court stated the following
proposition:
[I]n some circumstances the presumption may be displaced by an implication if it is necessary to prevent
the statutory provisions becoming inoperative or meaningless. However, it would be very rare for
general words in a statute to be rendered inoperative or meaningless if no implication of interference with
fundamental rights were made, as general words will almost always be able to be given some operation,
even if that operation is limited in scope.
3
That is a high and difficult interpretive threshold to meet. Yet, we will see that the jurisprudence
of the High Court may be evolving in this regard. The willingness of the Court to take seriously the
modern approach to statutory interpretation in fundamental rights cases has exerted doctrinal
pressure on the Coco conception of legality. The upshot, as will be explained, is that a less stringent
test of ‘necessary implication’in the fundamental rights context has emerged and gained traction on
the High Court.
In any event, to consider these difficult and fascinating interpretive questions the article will
proceed as follows. Part II considers the doctrinal significance of Bropho v Western Australia
(‘Bropho’)and Coco.
4
Bropho concerned the presumption of Crown legislative immunity, not
fundamental rights. Yet it is significant as it illustrated how and why the application of the modern
approach exerted doctrinal pressure on a presumption that had relied on a strict test of rebuttal for its
strength. The doctrinal refinement made by the Court was to adopt a less stringent test of ‘necessary
implication’. Importantly, the Court said that it was no longer appropriate or justified that a
necessary implication in this context ‘means that it “must be manifest, from the very terms of the
statute, that it was the intention of the legislature that the Crown should be bound”’.
5
It will be suggested that something similar is now occurring on the High Court regarding legality,
the fundamental rights presumption. In order to do so, it is necessary to first consider the doctrinal
significance of the High Court’s decision in Coco. There, the Court offered its now seminal
statement of principle regarding legality which included an account of ‘necessary implication’.
6
That account, as detailed above, involved a stringent test of ‘necessary implication’to rebut legality.
Since then, our senior appellate courts, including later iterations of the High Court, have routinely
endorsed this statement of principle. The Coco conception of legality assumed the status of in-
terpretive orthodoxy in contemporary Australian law as a consequence.
Yet, in Part III, we will see that in its recent jurisprudence the High Court has tempered the
strictness with which it has applied legality to determine the legal meaning of a statute that engages a
fundamental right, at least in certain contexts. Central to this interpretive refinement is the account
of legality offered by the majority judgments in Lee v New South Wales Crime Commission (‘Lee’).
7
It will be suggested that on this account the proper application of the modern approach in the context
of fundamental rights compelled the re-evaluation as to the manner in which legality ought to be
applied. Relevantly, that the infringement of fundamental rights by necessary implication may be
established without having to satisfy the strict Coco test outlined above. The case law analysis then
undertaken of the High Court’s most recent legality jurisprudence —particularly the decisions in
3. Ibid 438.
5. Ibid 17 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
6. Coco (n 1) 437–8 (Mason CJ, Brennan, Gaudron and McHugh JJ).
Meagher 103
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