Fundamental Rights and Necessary Implication

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 approach 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.’