Judicial interpretation in the age of hyper-legislation

This paper will outline the phenomenon of hyper-legislation in an Australian (i.e. federal) context and then consider judicial responses to it. It will do so with particular reference to the principle of legality. That inquiry will consider also the role which the principle may increasingly play to ensure that proper consideration is given in statutes to rights, freedoms and principles when the legislative process – specifically its dominance by the executive – is deficient in this regard. It will be suggested that the principle of legality operates already as prophylactic fundamental rights presumption and that this function becomes increasingly important in the circumstances of hyper-legislation. More controversially, it will be argued that the courts may, quite properly, “pick up the slack” and deploy its considerable interpretive powers to those statutes that emerge from a legislative process which fails to give due and careful consideration to fundamental rights.