⇒ The principle of proportionality means that the penalty for a given offence should be approximately proportional to the gravity of that offence. It would be a scandal if, for example, the sentence for rape were the same as for speeding. ⇒ The principle of accountability is the principle that a person should only be convicted of crimes for which he or she is responsible. For example, if you have a seizure and you have committed a crime as a result of this seizure, the principle may be violated if you have been punished for it. As Chief Justice Gleeson noted twelve years ago, the principle of legality is an important aspect of the rule of law in Australia, especially since few fundamental rights and principles are constitutionally protected from legislative interference. But the decision in the Anufrijeva case illustrates the internal tension in this action between the protection of these rights and principles and the idea that the law must have its ordinary and natural meaning. 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. ⇒ The principle of minimum criminalization states that only serious crimes that harm society should be criminalized, but not trivial crimes. The fundamental principles of legality are contained in the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Geneva Convention: In criminal law, the principle of legality aims to guarantee the rule of law in criminal proceedings.1 min read First, The principle is opposed to retroactivity. Parliament must use clear and unambiguous language to pass legislation “that retroactively distorts an existing law under which persons have ordered their affairs, exercised their rights, and assumed responsibilities and obligations.” The rule of law requires laws to be forward-looking because it is radically unfair to hold a person accountable for violating a law that did not exist at the time they committed their acts. The rule of law as a constitutional principle requires that a citizen, before committing to a course of action, be able to know in advance what the legal consequences will be. If these consequences are regulated by a law, the source of that knowledge is what the law says.

112 Although the extended principle has not been applied, there have been a number of cases during this interregnum in which individual judges have concluded that PoL may have a proportionality dimension: HM Treasury v Ahmed [2010] UKSC 5, [2010] 2 A.C. 534, at [122] (Lord Phillips); Pham v Secretary of State for the Home Department [2015] UKSC 19, p. [113], [118]–[119] (Lord Reed). However, in the Electrolux case, Chief Justice Gleeson stated that the principle of legality “is not merely a reasonable guide to what a parliament in a liberal democracy is likely to have intended; This is a working hypothesis, the existence of which is known to both Parliament and the courts, and on the basis of which the language of the law is interpreted. The assumption is one aspect of the rule of law. Chief Justice Gleeson`s testimony has since been repeatedly upheld by the Supreme Court. But what does it mean to call the principle of legality an aspect of the rule of law? The principle of legality is enshrined in the Latin expression “nullum crimen sine lege, nulla poena sine lege”, which roughly translates to “no crime and no punishment without law”. The principle of legality implies, in essence, that criminal liability and punishment are based only on the prior adoption of a sufficiently precise and unambiguous prohibition.

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. Chief Justice Gleeson`s statement has two elements. The first element is that the principle of legality makes it difficult for the courts to restrict rights and doctrines that are essential in a society based on the rule of 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.