Over at Jotwell, Linda Jellum reviews The Principle of Legality and a Common Law Bill of Rights – Clear Statement Rules Head Down Under by Daniel Meagher.* Here’s a summary of the paper from the SSRN abstract (the paper is available on SSRN here):

This article traces the evolution in Australia of fundamental rights protection provided by the courts. It is a fascinating and controversial story that at its most critical moments was (and continues to be) informed by American constitutional law design and statutory interpretation principles. On one level that is no surprise when ‘it may be said that, roughly speaking, the Australian Constitution is a redraft of the American Constitution of 1787 with modifications found suitable for the more characteristic British institutions and for Australian conditions.’ But what is extraordinary is that the decision of the framers of the Australian Constitution to consciously reject American notions of formal rights guarantees has not, ultimately, been decisive in this regard. As Sir Anthony Mason – one of the leading figures central to the new judicial rights consciousness in Australia – noted, portentously, in 1995 ‘[j]ust as the courts can protect common law rights by applying presumptive rules of construction, so they can protect fundamental rights, even in the absence of constitutional entrenchment and statutory backing.’ And so it has proven to be.

The Australian High Court has transformed an old interpretive canon (with American roots) into a strong Australian species of clear statement rule for fundamental rights called the principle of legality. It has done so to fill the lacuna in formal rights protection in Australia and to temper (if not outright resist) increasingly common legislative attempts to eradicate fundamental rights. The Court has used the application of the principle of legality to construct (and robustly protect from legislative encroachment) a quasi-constitutional common law bill of rights. In order to normatively justify these developments the High Court has turned towards the inherently contested principles of the Australian Constitution to anchor the principle of legality and the interpretive process more generally. This has, controversially, occurred as part of a foundational shift in judicial doctrine and practice that considers legislative intention to be the product not the lodestar of statutory interpretation.

Entitled Super Strong Clear Statement Rules Down Under, Jellum’s Jotwell review of the article is a fun adventure into comparative administrative law. Here’s a taste of the review:

Professor Meagher argues that the Australian courts have applied the clear statement canon not to discern congressional intent, as that canon is arguably used in the U.S., but rather to thwart legislative intent. Reminiscent of Justice Scalia, the High Court has concluded that “legislative intention . . . is a fiction which serves no useful purpose.” Lacey, 242 CLR 573, 592 (2011). But the Court then does something that would surprise even Justice Scalia. The Court suggests that legislative intent is not something that exists independently of judicial interpretation, but rather is the product of the court’s process of construction. The High Court reconceptualized the interpretive duty of judges as one of determining legislative intent as the product of rather than the goal of statutory interpretation.

Professor Meagher concludes his paper by noting that the High Court has transformed the clear statement canon into a principle of legality that acts as a protector of fundamental rights and grounded its new principle in that Country’s constitution. In so doing, the Court has constructed (and then robustly protected from legislative encroachment) a quasi-constitutional common law bill of rights. While he may support the idea that fundamental rights are important, the High Court’s approach “has shaken the very foundations of—and the principles that attend to—the proper judicial role in the construction and application of statutes in a constitutional system of separated powers.”

* Now I’m completely caught up on featuring the Jotwell Administrative Law Section reviews in this AdLaw Bridge Series. Thanks to my research assistant Brooks Boron for helping me catch up. Next week I’ll return to my long list of new papers that have been posted on SSRN in the last few months.

This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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