The Rule of Law


Introduction

The rule of law is an important touchstone in Prime Minister John Howard’s thinking. On the centenary of Australia’s federation (1 January 2001) he was asked what he would nominate personally as some of the great achievements of the past century. The Prime Minister began his reply by saying, “Well I think the maintenance of democracy and the rule of law for 100 years”.

Respect for the rule of law is a recurring theme in the Prime Minister’s speeches and media releases. For him, it is a defining feature of Australia, and a critical legacy of the Westminster system of government. It is a legacy he would like to leave with Iraq, and its absence is a central concern with the government of Zimbabwe. When asked questions on matters before the courts, he frequently cites the rule of law when explaining why he is unable to comment.

If it is so important you might ask, what is the rule of law?

What is the rule of law?

At its heart, the rule of law is the principle that every person - regardless of their rank, status or office - is subject to the same law and the same legal and judicial processes. Putting it another way, just as citizens must obey the law, so must governments. Neither the king, nor the king’s ministers, nor the government’s officials are above the law, and they cannot rule or act with arbitrary power.

Its motif is a government of laws, not men. The principle of the rule of law is concerned with the legality of the actions of the executive arm of government and ensuring that the executive arm (particularly the police) always follows fair procedures.

Where did the idea come from?

The ideal of the rule of law is ancient. For example, it is expounded in Aristotle’s Politics (book III, chapter 16).

In England, the notion that the king is subject to the law of the land has its origin in the Magna Carta of 1215. For the first time in English history, a written law curtailed the power of a king. That law also extended beneficial protections for a wider segment of society than the barons who were seeking redress for their grievances with a king and his failed war campaign. Notwithstanding its mythology, the Magna Carta fell considerably short of the rule of law. The original Magna Carta stood for only two months before it was repudiated by King John and annulled by Pope Innocent III. Although subject to the law, the king retained the authority to change the law.

The rule of law only became a part of the Westminster system of government through the Glorious Revolution of 1688 and the 85 years of preceding argument (interrupted by Cromwell’s republic) between the Stuart monarchs and the parliament and common law jurists (notably Sir Edward Coke) over the divine right of kings to rule as they please. Under the Bill of Rights 1689, the king was forbidden from suspending or dispensing with laws passed by parliament, or imposing taxes without parliamentary consent. He was forbidden from establishing his own courts or acting as a judge himself.

Professor A V Dicey further developed the notion of the rule of law (as it operates in Westminster systems of government) in his 1885 text, The Law of the Constitution. He argued that the rule of law comprised three inter-linked ideas:

  1. The supremacy of regular law rather than arbitrary power. No one can be punished except for conduct that represents a clear breach of the law, established in the ordinary legal manner before the ordinary legal courts of the land. Governments cannot exercise arbitrary power through secret, arbitrary or retrospective laws.
  2. Government under the law and equality before the law: ministers of state and government officials are subject to the law and accountable for their actions before the ordinary courts of the land. There is a consistent application of the law and legal processes regardless of position or status.
  3. The protection of individual liberties by the common law. Free access to the courts of justice is a sufficient guarantee for civil liberties and against injustice.

While it remains influential, Dicey’s formulation of the rule of law, particularly his third point, is contested. Unlike the first two points, Dicey’s third point is not an ideal or principle. It is an argument for the British legal tradition against the need for a constitutional bill of rights. Some have suggested that Dicey’s complete faith in the judiciary was naive. More importantly, all protected rights within a Westminster system of government are at the mercy of the parliament. The Glorious Revolution established the supremacy of the parliament over the common law, and the courts cannot protect citizens against parliamentary statutes that reduce individual liberties.

Does the rule of law operate in Australia?

Although the principle of the rule of law is not one of the rules of Australian law, (ie. it is not enshrined in the Australian Constitution or other legislation), it is an important foundation for Australia’s system of government. The principle has been cited in a number of High Court judgements.

Nonetheless, there are anomalies that some use to argue that the rule of law is not fully applied in Australia.

The first anomaly is what lawyers call the shield of the Crown. The shield of the Crown is a collective term for the privileges and immunities enjoyed by the Crown. The term “Crown” here does not just refer to the monarch and her representatives - the Governor-General and the state governors - it also covers the wider sense of the executive government, including government departments and statutory authorities. Most of the ancient privileges and immunities of the crown have been abolished by the Westminster, Commonwealth and state parliaments. However, a few privileges and immunities remain including the principle that legislation does not bind the Crown except by express words or implication. In plain English, in many (but not all) circumstances the government can ignore legislation unless it contains the statement: “this Act binds the Crown”.

Another anomaly is the use of privative clauses in federal and state legislation. These clauses seek to restrict or remove the right of judicial review for the decisions of the executive arm of government. A recent example in New South Wales is the Terrorism (Police Powers) Act 2002, which protects some decisions of the Police Minister from judicial review.

Conclusion

In Australia, the rule of law is a foundational philosophy or principle underpinning Australia’s system of government. It operates to provide citizens with certainty - clearly identifying the conduct required by the law - and protection, by requiring the government to act according to the law.

However, the principle is not defined in the Constitution or other legislation, and its meaning and application is open to interpretation. Although important, there are anomalies where the executive arm of government is exempt from ordinary laws of the land. These anomalies include the legal doctrine known as the shield of the Crown, and the use of privative clauses in legislation.

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