To protect liberty law should protect property rights.
468
These include the right
to exercise beneficial control over property,
469
the right to dispose of property
(for example by subleasing
470
or otherwise dispose of an interest in a lease),
471
and the right to exclude others from entry to ones land.
472
To protect liberty law should protect economic and commercial rights. These
include rights in carrying on ones business
473
or trade,
474
preparing goods for
sale,
475
selling goods,
476
authorising an agent to act on ones behalf,
477
exercising freedom of contract
478
as well as the right to have other parties
show good faith in agreements and other dealings.
479
This commitment to liberty is manifest in several common situations. (i)
Remedial statutes are construed liberally and beneficially. (ii) Criminal statutes
are construed narrowly and in favour of the accused.
480
This approach was
freely adopted in the days when the criminal law was unspeakably barbaric.
Nowadays when the criminal law is not so harsh courts have modified this
approach. If there is an ambiguity in a penal statute the court will use ordinary
principles in order to resolve it. If this still leaves them in doubt, they may
prefer the construction which favours the citizen rather than the state. (iii) For
fiscal or taxing statutes, an approach similar to that for penal statutes is
adopted and they may be construed in favour of the taxpayer.
481
(iv) There is a
presumption against alteration to the common law since it is regarded as the
source of rights and liberties. (v) Since courts are the protectors of rights and
the constitutional mechanism for resolving disputes, there is a presumption
against ousting their jurisdiction and against limiting access to them. (vi)
Courts are reluctant to construe a statute as operating retrospectively because
the maxim of law demands that the law governing the subject be ascertainable.
468
Director of Public Prosecutions v Logan Park Investments (1995) 132 ALR 449
469
Harris, 1986, p 236, citing Pound Social Control through Law (1942)
470
Re Shearer (1891) 12 LR (NSW) 24
471
American Dairy Queen v Blue Rio (1981) 37 ALR 613
472
Coco v R (1994) 120 ALR 415
473
Commonwealth v Progress Advertising and Press Agency Co (1909) 10 CLR 457
474
Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410
475
Mudginberri Station v Langhorne (1985) 68 ALR 613, 621
476
Mudginberri Station v Langhorne (1985) 68 ALR 613, 621
477
Christie v Permean Wright
(1904) 1 CLR 693; McCrae v Coulton
(1986) 7
NSWLR 644
478
Hayes v Cable (1961) 78 WN (NSW) 735
479
Harris, 1986, p 236, citing Pound Social Control through Law (1942)
480
McNally v United States 483 US 350 (1987)
481
Farmer v Murphy (1986) 67 ALR 114
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