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Is the High Court Mistaken about the Aim of Statutory Interpretation?

Published online by Cambridge University Press:  01 January 2025

Dale Smith
Dale Smith*
Affiliation:
Melbourne Law School, University of Melbourne
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Abstract

A central tenet of the High Court of Australia's account of statutory interpretation is that the aim when interpreting a statutory provision is to ascertain the meaning of the words contained in that provision. The goal of this article is to challenge that tenet, which I call “the meaning thesis”. I argue that the High Court's acceptance of the meaning thesis leaves it unable to account for important features of the practice of statutory interpretation. In particular, it struggles to account for the ways in which statutory provisions interact with other legal norms (including other statutory provisions), especially when those other norms are introduced into the law after the statutory provisions with which they interact. This, I argue, provides a powerful reason to abandon the meaning thesis. I conclude by briefly suggesting how we might begin to develop a more satisfactory account of statutory interpretation.

Type
Article
Information
Federal Law Review , Volume 44 , Issue 2 , June 2016 , pp. 227 - 255
Copyright
Copyright © 2016 The Australian National University

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Footnotes

I am grateful to participants at a seminar at Melbourne Law School at which an earlier version of this article was presented. I am also grateful to Hrafn Asgeirsson, Patrick Emerton, Jeff Goldsworthy, Larry Solum and David Tan for very helpful comments on an earlier draft, and to an anonymous referee for their helpful suggestions. This research was supported under the Australian Research Council's Discovery Projects funding scheme (project number DP140102670).

References

1 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 (‘Lacey’), 592 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Some would deny that the Court's scepticism about legislative intent is all that recent, pointing (for example) to the wording of the famous passage from Project Blue Sky: ‘the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.’ (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’), 384 (McHugh, Gummow, Kirby and Hayne JJ) (emphasis added).)

2 See, eg, Ekins, Richard and Goldsworthy, Jeffrey, ‘The Reality and Indispensability of Legislative Intentions’ (2014) 36(1) Sydney Law Review 39Google Scholar (who are highly critical of the High Court's scepticism) and Campbell, Joseph and Campbell, Richard, ‘Why Statutory Interpretation is Done as it is Done’ (2014) 39 Australian Bar Review 1Google Scholar (who are broadly sympathetic to the High Court's position).

3 I do not mean to imply that someone who is not sceptical about legislative intent must regard it as contributing to the meaning of the words in the statute. This is, perhaps, the standard approach (see, eg, Ekins and Goldsworthy, above n 2), but one might believe that legislative intent is relevant independent of any contribution it makes to the meaning of the words in the statute.

4 I believe that many academic commentators also accept the meaning thesis, though I shall not seek to substantiate that claim in this article. If I am right, the difficulties for the meaning thesis that I identify pose problems, not only for the High Court, but for much academic writing about statutory interpretation as well.

5 Hart, HLA, The Concept of Law (Clarendon Press, 3rd ed, 2012) 141–6.CrossRefGoogle Scholar

6 Though, where the mistake occurs in the course of interpreting a statute, it is open to Parliament to amend the statute.

7 Hart, above n 5, 146–7.

8 Project Blue Sky (1998) 194 CLR 355, 384 (footnote omitted).

9 This example comes from Soames, Scott, ‘Interpreting Legal Texts: What Is, and What Is Not, Special about the Law’ in Philosophical Essays, Volume 1: Natural Language – What It Means and How We Use It (Princeton University Press, 2010) 410Google Scholar. It is a variation on an example offered by Bach, Kent: Bach, Kent, ‘Conversational Impliciture’ (1994) 9(2) Mind and Language 124, 134.CrossRefGoogle Scholar

10 Kepa Korta and John Perry, ‘Pragmatics’ in Edward N Zalta (ed), The Stanford Encyclopedia of Philosophy (Winter 2012 Edition) <http://plato.stanford.edu/archives/win2012/entries/pragmatics/>. This way of distinguishing between semantics and pragmatics is controversial, but we need not be too concerned with this controversy. Whatever the precise nature of the distinction, it appears closely related to the distinction that the High Court draws between legal meaning and literal or grammatical meaning.

11 The joint judgment in Project Blue Sky explicitly referred to context as one factor that may cause legal meaning to diverge from literal or grammatical meaning, and the High Court has recently reiterated that context is relevant only in so far as it helps identify the meaning of the text (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 (‘Consolidated Media’)). Other factors mentioned in Project Blue Sky, such as purpose, can plausibly be regarded as part of the context: see, eg, Thiess v Collector of Customs (2014) 250 CLR 664, 672 (‘Thiess’) (treating the identification of statutory purpose as part of ‘contextual construction’).

12 I point out below that standard accounts of pragmatics point to the speaker's intentions to explain how pragmatic content is generated. Since the High Court is sceptical about legislative intent (in any sense that could generate pragmatic content), it might seem mistaken to ascribe to the Court the view that we must take into account pragmatic considerations when ascertaining the legal meaning of a statute. However, it is not clear how else we are to understand the Court's distinction between legal meaning and literal or grammatical meaning. In what other way could legal meaning extend beyond literal or grammatical meaning, consistent with the Court's clear indication that legal meaning is concerned with the meaning of the words in the statute?

13 I use the phrase ‘linguistic content’, rather than the word ‘meaning’, because – as we shall see – the latter is ambiguous.

14 Thiess (2014) 250 CLR 664, 671. I take it that the Court uses the terms ‘construction’ and ‘interpretation’ interchangeably, and I shall follow it in this regard. Cf Solum, Lawrence B, ‘The Interpretation-Construction Distinction’ (2010) 27(1) Constitutional Commentary 95.Google Scholar

15 Greenberg, Mark, ‘The Standard Picture and Its Discontents’ in Green, Leslie and Leiter, Brian (eds), Oxford Studies in Philosophy of Law: Vol. 1 (Oxford University Press, 2011) 39, 48.CrossRefGoogle Scholar

16 Thiess (2014) 250 CLR 664, 671 (quoting from Consolidated Media (2012) 250 CLR 503, 519).

17 We have also seen that the joint judgment in Project Blue Sky stated that a provision's legal meaning often corresponds to its literal or grammatical meaning. This is plausible if ‘legal meaning’ refers to linguistic content, but it is far more contentious to suggest that the significance of a statutory provision often corresponds to its literal or grammatical meaning.

18 Greenberg claims that we should understand this contribution in terms of the relevant difference that the provision makes to people's legal rights, obligations, powers, etc: Greenberg, Mark, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’ in Marmor, Andrei and Soames, Scott (eds), Philosophical Foundations of Language in the Law (Oxford University Press, 2011) 217, 222.CrossRefGoogle Scholar

19 This is a thesis about the legal effect of valid provisions, and so it is no objection to the thesis that the legal effect of a repealed or constitutionally invalid provision departs from its linguistic content (because the provision has no legal effect, despite having linguistic content).

20 Indeed, the Court may believe that the correspondence between legal effect and linguistic content is constitutionally mandated: see below n 71.

21 The same is true of many academic commentators. Notable exceptions include Greenberg, above n 15, 47–9; Solum, Lawrence B, ‘Communicative Content and Legal Content’ (2013) 89(2) Notre Dame Law Review 479, 479.Google Scholar

22 I am grateful to Jeff Goldsworthy for drawing my attention to this objection.

23 See, eg, the text for above nn 8 and 14.

24 Jeff Goldsworthy makes a similar point in critiquing what he calls extreme ‘realist’ theories of legal interpretation: Goldsworthy, Jeffrey, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010) 230CrossRefGoogle Scholar. Indeed, he suggests that, if such a theory were correct, a statute would not be law until its meaning was constructed by a court.

25 This is not to deny that courts sometimes have to make new law to fill gaps in a statute (see Section III(B)), but it is to ascribe to the High Court the view that such cases are the exception, not the rule.

26 Especially as not every remark by a High Court judge fits easily with the meaning thesis: see below n 43.

27 It is unclear whether this line of thought has influenced the High Court, but it has clearly influenced some academic commentators: see, eg, Goldsworthy, above n 24, 263–4.

28 The conjecture that the High Court's approach to statutory interpretation is influenced by such considerations finds support in the Court's repeated references to the constitutional dimension of statutory interpretation: see, eg, Zheng v Cai (2009) 239 CLR 446, 455–6. (While there is not a strict separation of judicial and legislative power at the State level, the Kable doctrine requires that relatively discrete roles be assigned to the legislature and the courts: Kable v DPP (NSW) (1996) 189 CLR 51.)

29 For discussion of how judges should fill gaps in the law, see, eg, Hart, above n 5, 273; Cane, Peter, ‘Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law’ (2005) 25(3) Oxford Journal of Legal Studies 393, 409–10.CrossRefGoogle Scholar

30 Greenberg, above n 15, 76. I have adapted this example to the Australian context. It should also be noted that Greenberg's target is what he calls ‘the Standard Picture’; he regards what I am calling the meaning thesis as a corollary of the Standard Picture: at 47–9.

31 He Kaw Teh v The Queen (1985) 157 CLR 523.

32 Greenberg, above n 18, 231. A similar account is offered by philosophers of language such as Scott Soames (Scott Soames, ‘What Vagueness and Inconsistency Tell Us about Interpretation’ in Marmor and Soames, above n 18) and legal philosophers such as Andrei Marmor (Marmor, Andrei, The Language of Law (Oxford University Press, 2014) 19)Google Scholar.

33 Ekins and Goldsworthy, above n 2, 51.

34 Though this reason is defeasible (ie the presumption is rebuttable), depending on the wording of the provision, the utility of imposing strict liability, etc: He Kaw Teh v The Queen (1985) 157 CLR 523, 529–30 (Gibbs CJ).

35 This is, very roughly, how Ekins and Goldsworthy seek to account for the presumption of mens rea. They suggest that a mens rea requirement is presupposed by Parliament when it enacts criminal statutes, in a way that contributes to the linguistic content of those statutes, and they seek to account for presuppositions of this sort in terms of the speaker's (in this case, Parliament’s) intentions: Ekins and Goldsworthy, above n 2, 56–7.

36 (2011) 242 CLR 573.

38 For a very different account of linguistic content that nevertheless ascribes a crucial role to the speaker's (publicly accessible) intentions, see Emerton, Patrick, ‘Political Freedoms and Entitlements in the Australian Constitution – An Example of Referential Intentions Yielding Unintended Legal Consequences’ (2010) 38 Federal Law Review 169, especially 176–7.CrossRefGoogle Scholar

37 Ekins and Goldsworthy make a similar point: Ekins and Goldsworthy, above n 2, 56–7. They also point out that – while they are concerned with the intentions that we have reasonable grounds for attributing to Parliament, which may differ from the intentions Parliament actually had – the exercise of attributing intentions to Parliament presupposes that Parliament is capable of having intentions: at 48.

39 See Campbell and Campbell, above n 2, for an attempt to show that the meaning of statutory provisions can be identified without appeal to legislative intent (and hence to show that the High Court's scepticism about legislative intent is tenable). However, Campbell and Campbell do not seek to show that the meaning thesis can account for the presumption of mens rea, and it is far from clear that they would be able to do so. While they list several factors that they regard as relevant to identifying a statute's linguistic content, they provide little indication of how those factors are relevant or of how to balance those factors when they conflict.

40 For example, common knowledge is important for Paul Grice, because he regards the relevant intention of the speaker as being (roughly) to convey certain information to the audience via the audience's recognition of that intention: Grice, Paul, Studies in the Way of Words (Harvard University Press, 1989) 92Google Scholar. See also Goldsworthy, Jeffrey, ‘Implications in Language, Law and the Constitution’ in Lindell, Geoffrey (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (Federation Press, 1994) 150, 160–1Google Scholar regarding the connection between speakers’ intentions and background assumptions.

41 Lacey (2011) 242 CLR 573, 592 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

42 See, eg, Mills v Meeking (1990) 169 CLR 214, 234 (Dawson J); Wik Peoples v Queensland (1996) 187 CLR 1, 168–9 (Gummow J).

43 There are further reasons to investigate whether the mens rea example poses problems for the meaning thesis independent of scepticism about legislative intent. At least one of the newer members of the High Court appears uncomfortable with the view expressed in Lacey: Gageler, Stephen, ‘Legislative Intention’ (2015) 41 Monash University Law Review 1, 12–3Google Scholar. Nevertheless, for most of this article, Gageler J appears to presuppose the meaning thesis (though there are some remarks towards the end (at 16) that are not easily reconcilable with that thesis). Moreover, I suggested (above n 4) that many academic commentators also accept the meaning thesis. Some of those commentators reject scepticism about legislative intent, and so are not vulnerable to the objections presented so far. They are, however, vulnerable to the objections that follow, which raise problems for the meaning thesis that are independent of scepticism about legislative intent.

44 Greenberg, above n 15, 78.

45 In fact, Ekins and Goldsworthy focus on the intentions that can reasonably be attributed to Parliament as a whole. I discuss the significance of this below.

46 Greenberg also objects to views like the meaning thesis by appealing to general scepticism about legislative intent (Greenberg, above n 15, 78), but that objection is distinct from the one considered in the text.

47 Ekins and Goldsworthy, above n 2, 54.

48 See, eg, Ekins, Richard, The Nature of Legislative Intent (Oxford University Press, 2012)CrossRefGoogle Scholar. Ekins claims that all legislators must share a ‘standing’ intention to enact legislation in accordance with accepted procedures. However, he claims that the ‘particular’ intentions that Parliament has with regard to a specific statute need not be shared by all (or, perhaps, any) individual legislators.

49 For a critique of Ekins’ theory, see Goldsworthy, Jeffrey, ‘Legislative Intention Vindicated?’ (2013) 33(4) Oxford Journal of Legal Studies 821, 826–31CrossRefGoogle Scholar. Goldsworthy suggests a way of overcoming what he sees as the central problem with Ekins’ theory – namely, the absence of a tenable account of how the content of the particular legislative intentions is constituted. Goldsworthy's suggested solution focuses on the intentions of the sub-set of legislators who sponsor the bill, contribute to debate on the bill, etc: at 831–5. However, this would appear to turn Ekins’ purportedly non-aggregative theory into an aggregative one. More importantly for our purposes, at this point Greenberg's concerns re-emerge. It is doubtful whether the relevant legislators will always be aware of the presumption of mens rea. Even if the bill's sponsor is, the same may not be true of other legislators who debate the bill, propose amendments, etc.

50 On the former, see above (and, more generally, Ekins and Goldsworthy, above n 2); on the latter, see, eg, Dworkin, Ronald, A Matter of Principle (Harvard University Press, 1985) 38–50.Google Scholar

51 That it is harder for orthodox approaches to account for the application of principles of statutory interpretation to provisions that pre-date those principles has not, I think, been widely noted. One exception is Aileen Kavanagh, in her discussion of s 3(1) of the UK Human Rights Act in Kavanagh, Aileen, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) 99–100Google Scholar.

52 Equivalent provisions now exist in each State and Territory: Legislation Act 2001 (ACT) s 139; Interpretation Act 1987 (NSW) s 33; Interpretation Act 1987 (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18.

53 See Pearce, DC and Geddes, RS, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 41.Google Scholar

54 See the discussion of the Victorian equivalent of s 15AA in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262 (Dawson, Toohey and Gaudron JJ).

55 GTK Trading Pty Ltd v Export Development Grants Board (1981) 56 FLR 292.

56 I am concerned in the text with the effect of s 15AA on pre-existing provisions. The meaning thesis may (perhaps) be able to account for the effect of s 15AA on provisions enacted after the introduction of s 15AA, in the same the way that it may (perhaps) be able to account for the mens rea example.

57 Perhaps Parliament intended that the earlier provision be read in light of any future changes to the law. (I am grateful to Jeremy Gans for suggesting this possibility.) Let us leave to one side the question of whether Parliament had any such intention, and communicated it in the way necessary for it to form part of the linguistic content of the earlier provision. The fundamental problem with this suggestion is that such an intention is too general to generate the necessary linguistic content. For the effect of s 15AA on the earlier provision to be reflected in that provision's linguistic content, Parliament must (at the time of enacting the earlier provision) have had communicative intentions about how future changes to the law would affect the provision. If Parliament did not anticipate the particular changes that occurred, and simply intended that the earlier provision be read in light of future changes to the law, whatever they may be, then this condition is not met.

58 Similar provisions exist in other jurisdictions, both in Australia (Human Rights Act 2004 (ACT) s 30) and overseas (eg Human Rights Act 1998 (UK) s 3; New Zealand Bill of Rights Act 1990 s 6). How similar these provisions are to s 32(1) of the Charter is the subject of debate, which I will not enter into here.

59 X7 v Australian Crime Commission (2013) 248 CLR 92, 153 (Kiefel J). There are other ways of understanding the principle of legality, which may reduce the overlap with s 32(1).

60 Momcilovic (2011) 245 CLR 1, 50 (French CJ), 203 (Crennan and Kiefel JJ). That s 32(1) goes further than the principle of legality is also central to Heydon J's dissent in Momcilovic (see, especially, at 181–2), and is supported by the Explanatory Memorandum (Explanatory Memorandum, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 23) and the Second Reading Speech (Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1290 (Rob Hulls)).

61 See Pearce and Geddes, above n 53, 128–9 for a discussion of this practice.

62 Cf Scalia, Antonin and Garner, Bryan A, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012) 252Google Scholar, who argue that the in pari materia principle cannot reflect legislative intent, irrespective of whether the statute in pari materia was enacted before or after the primary statute. This is, they claim, because it is implausible to say that the legislature knew of all the related legislation that existed when it enacted the primary statute, and because it is impossible to say that it knew of related legislation that is only subsequently enacted.

63 It is hard to see how the reading down strategy could apply to the third example presented in Section V – namely, the in pari materia principle. I shall not pursue this concern here, however.

64 One possibility is that s 15AA does not itself alter the legal effect of pre-existing provisions, but rather directs the court to make new law by adopting whichever interpretation would best promote the statutory purpose. I discuss whether the meaning thesis can be saved by interpreting provisions like s 15AA in this way in Dale Smith, ‘The Meaning of a Statute and the Content of the Law’ (unpublished manuscript). Here, it is enough to note that many of the considerations that make the meaning thesis seem appealing in the first place (see Section III.B) militate against interpreting s 15AA as conferring on courts a broad power to make new law to promote the purpose of the provisions they interpret.

65 (2014) 250 CLR 664, 672 (quoting from Cabell v Markham (1945) 148 F 2d 737, 739).

66 This interpretation of s 15AA bears obvious similarities to the one rejected in Section V, and I suggest below that it is vulnerable to a similar objection.

67 This was the view of Dawson J in Mills v Meeking (1990) 169 CLR 214, 235, with regard to the Victorian equivalent of s 15AA.

68 See Pearce and Geddes, above n 53, 43–5.

69 It is worth noting, though, that English courts have largely eschewed the reading down strategy with regard to the UK equivalent of s 32(1): see especially Ghaidan v Godin-Mendoza [2004] UKHL 30.

70 Momcilovic (2011) 245 CLR 1, 92. Hayne J expressed agreement with Gummow J on this point: at 123.

71 Indeed, it was common ground among the judges in Momcilovic that, if s 32(1) required a court to depart from the determinate linguistic content of the provision it was interpreting, in order to give that provision a rights-compliant interpretation, then s 32(1) would be unconstitutional (since it would require judges to exercise legislative power). Heydon J, in dissent, was particularly clear on this point (Momcilovic (2011) 245 CLR 1, 158, 181–4), but see also at 92 (Gummow J, with Hayne J concurring on this point), 208, 211, 221 (Crennan and Kiefel JJ).

72 Momcilovic (2011) 245 CLR 1, 50 (French CJ), 221 (Crennan and Kiefel JJ). Bell J is less clear on this point, but I think that her Honour also holds this view: at 250.

73 One might seek to avoid this conclusion by denying that s 32(1) changes the legal effect of ambiguous pre-Charter provisions, instead interpreting it as a direction to the court to make new law to resolve the ambiguity in a way that is right-compliant. See above n 64 regarding the problems with that suggestion.

74 Momcilovic (2011) 245 CLR 1, 50 (French CJ), 92 (Gummow J), 123 (Hayne J), 210 (Crennan and Kiefel JJ), 250 (Bell J). Crennan and Kiefel JJ base their interpretation of s 32(1), not only on the qualifying clause, but also on the fact that s 32(1) is expressed as a directive as to how statutory provisions are to be ‘interpreted’, which they take to be a reference to the ordinary process of statutory interpretation: at 210. However, it is unclear what role the qualifying clause is meant to play if one takes the reference to ‘interpretation’ in s 32(1) as bringing into play all the factors mentioned in Project Blue Sky.

75 Heydon J makes a similar point in dissent: Momcilovic (2011) 245 CLR 1, 178–9, 181.

76 It might be argued that the word ‘purpose’ is used differently in s 32(1) than in Project Blue Sky. However, there is evidence that Parliament intended that s 32(1) would change how statutory provisions are interpreted (see the references to the Explanatory Memorandum and Second Reading Speech in above n 60). Reading the qualifying clause in s 32(1) as requiring conformity to orthodox principles of statutory interpretation flies in the face of that intention .

77 This was Heydon J's view in Momcilovic. The majority judges might also be tempted by this objection: see above n 71.

78 Especially since this dogma needs to be qualified anyway. A statute's linguistic content will not supply an answer to every legal question pertaining to that statute, and so judges sometimes need to make new law to fill a gap in the statute.

79 One cannot claim, consistently with the meaning thesis, that s 15AA amended the pre-1981 provision, unless one can show that it altered the provision's linguistic content. For the reasons already given, this is unlikely.

80 I am grateful to Farrah Ahmed, Patrick Emerton and Jeremy Gans for pressing me to address this strategy.

81 Concerning implicatures and how they differ from what was said, see Grice, above n 40, ch 2; Goldsworthy, above n 40, 152–61.

82 Ekins and Goldsworthy, above n 2, 56.

83 Alternatively, one might claim that s 15AA directs the court to supply the replacement provision. However, this reading of s 15AA is problematic for the reasons given at above n 64. In addition, it would mean that, until the court makes its decision, there is no relevant law, because (according to the repeal and replacement strategy) the pre-1981 provision was repealed by s 15AA.

84 Momcilovic (2011) 245 CLR 1, 221.

85 This line of thought was suggested in conversation by Jeff Goldsworthy.

86 As we have seen, the introduction of s 15AA in 1981 altered the legal effect of all those provisions that had previously been given a literal construction that did not promote the statutory purpose, where there was another available interpretation that did promote that purpose. Arguably, this included a broad range of taxation (and other) provisions. The 2011 amendment altered the legal effect of a further set of provisions – namely, those for which there were multiple open interpretations, each of which would, to varying degrees, promote the statutory purpose.

87 Though note that the modern trend may be towards viewing the principle of legality, not as shedding light on Parliament's intentions, but rather as justified on normative grounds (to ensure that Parliament considers the impact of legislation on certain rights and freedoms): Lim, Brendan, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372Google Scholar. This makes it hard to view the principle of legality as contributing to the linguistic content of statutory provisions. One possibility is that the application of the principle to any statute should be regarded as an exception to the meaning thesis, but this would only reinforce the point in the text that the exceptions to that thesis appear to be multiplying rapidly.

88 See, eg, Re Bolton; Ex parte Beane (1987) 162 CLR 514; Bropho v Western Australia (1990) 171 CLR 1; Coco v R (1994) 179 CLR 427.

89 Potter v Minahan (1908) 7 CLR 277.

90 See Dan Meagher's suggestion that the origins of the principle may be traceable back to Somerset v Stewart (1772) 98 ER 499: Meagher, Dan, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449, 452–3Google Scholar.

91 See, eg, the unamended provisions in the Customs Act 1901 (Cth) and the Defence Act 1903 (Cth).

92 Dworkin, Ronald, Law's Empire (Harvard University Press, 1986) ch 9Google Scholar; Greenberg, Mark, ‘The Moral Impact Theory of Law’ (2014) 123 Yale Law Journal 1288.Google Scholar

93 See, eg, Raz, Joseph, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Clarendon Press, revised ed, 1994) ch 13Google Scholar. For a recent attempt to develop a coherence theory that overcomes these objections, see Amaya, Amalia, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (Hart Publishing, 2015)Google Scholar.