Fourth, the principle of legality protects the essential elements of a fair trial. Parliament must speak with irresistible clarity in order to renounce the rules of natural justice, the presumption of innocence and the privilege of self-incrimination, the criminal standard of proof and the principle of public justice. Legality in its criminal aspect is a principle of international human rights law and is included in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. However, the imposition of penalties for crimes contrary to international law or criminal offences under “general principles of law recognized by civilized nations” is normally excluded from its scope. As such, the trial and punishment of genocide, war crimes and crimes against humanity does not violate international law. Ultimately, it is unlikely that the legislature will overturn fundamental principles, violate rights, or depart from the general legal system without expressing its intent with irresistible clarity. Twelve years ago today, the High Court handed down its decision in Electrolux Home Products Pty Ltd v. Australian Workers` Union, remembered today for Chief Justice Gleeson`s historic discussion of the principle of legality. There is a tension between these two elements of Chief Justice Gleeson`s testimony in the Electrolux case.
As part of an unwavering protection of fundamental rights against interference with legislation, courts may be tempted to depart from the principle that a law must mean what it says. Notification is essential for a person to be able to challenge an adverse administrative decision in court if they so wish. The general terms of the Regulation were not sufficient to replace this basic principle. The government`s failure to make the payments was illegal. The rule of law provides for the availability of rules, laws and legal mechanisms to implement them. The principle of legality verifies the availability and quality of laws. Legality checks whether a certain behavior is legal or not. The concept of legitimacy of the law refers to the fairness or acceptance of fairness in the implementation process. The quality of legality and compliance with the law can refer to legality, i.e.
compatibility with the law, or they can be discussed in principle of legality or discussed as legal legitimacy. The principle of legality is the legal ideal that requires all laws to be clear, verifiable and not retroactive. It obliges decision-makers to resolve disputes through the application of previously declared legal provisions and not to retroactively change the legal situation by discretionary deviations from the applicable law. It is closely linked to legal formalism and the rule of law and dates back to the writings of Feuerbach, Dicey and Montesquieu. This principle is particularly relevant in criminal and administrative law. In criminal law, this translates into a general prohibition on imposing criminal sanctions for acts or omissions that were not punishable at the time they were committed or omitted. The principle is also considered violated if the penalties for a particular offence are increased retroactively. In administrative law, this translates into the desire of public servants to be bound by the law and to apply it rather than acting on a whim. As such, proponents of the principle are generally opposed to discretion. The principle can be expressed differently in Latin expressions such as nullum crimen, nulla poena sine praevia lege poenali, nulla poena sine lege and nullum crimen sine lege.
In criminal law, the principle of legality means that only the law can define a criminal offence and prescribe a penalty (nullum crimen, nulla poena sine lege). It also states that criminal law cannot be interpreted broadly to the detriment of an accused, for example by analogy. According to this principle, a criminal offence must be clearly defined in the law. The legal concept includes both written and unwritten law and implies qualitative requirements, particularly in terms of accessibility and predictability. The conditions are met if individuals can now determine from the wording of the relevant provision and, where appropriate, by judicial interpretation, which acts and omissions give rise to criminal liability. The principle of legality also includes the provision prohibiting the retroactive application of criminal law to the detriment of an accused. This principle is enshrined in the constitutions of many countries as well as in the most important international convention for the protection of human rights. At the end of World War II, the status of the principle of legality was mixed worldwide. Although many countries have constitutional provisions that require the establishment of crimes and penalties by law, they do not explicitly require a prohibition on retroactivity. At the same time, there were explicit provisions in many countries. After all, in many countries, legality was not mentioned in the constitution at all.
Ewik and Silbey define “legality” more broadly than meanings, sources of authority, and cultural practices that are somehow legal, although they are not necessarily authorized or recognized by official law. The concept of legality offers the opportunity to reflect on “how, where and with what effect, law is produced in and through everyday social interactions. How do our roles and status, relationships, obligations, privileges and responsibilities, identities and behaviours shape the law?  In contract law, the legality of the subject matter is required for any enforceable contract. You may not enter into or enforce a contract to engage in activities for illegal purposes.  Lord Bingham disagreed. In his view, the rules were clear. It expressly referred to the receipt of the application for asylum as decided and not to the notification of the applicant. Parliament had expressly provided for the notification of decisions elsewhere in the Staff Regulations. Lord Bingham acknowledged the importance of the principle of legality for the rule of law, but countered that it was “a cardinal principle” of the rule of law that “clear and unambiguous legislation should be implemented”. The Court`s “aversion” to the Government`s treatment of the applicant could not lead it to give the Regulation “anything other than its clear and obvious meaning”.
Chief Justice Gleeson`s statement has two elements.