Sykes, Andrew --- "The 'Rule Of Law' As An Australian Constitutionalist Promise" [2002] MurdochUeJlLaw 2; (2002) 9(1) Murdoch University Electronic Journal of Law

It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power... Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.[9]

The third element of Dicey's formulation was that the rule of law expressed the fact that a constitution was the result of the "ordinary law of the land": [10]

The law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land.[11]

It may be seen that the Commonwealth of Australia Constitution Act 1900 (Imp.) reflects this formulation. For example, Clause 5 illustrates that everyone is bound under the constitution, while the preamble indicates that the Constitution was a result of the people's will. From the third principle we can also derive the constitutional rationale for keeping the Australian Constitution subject to the will of the people, through section 128.

It must be noted that A.V. Dicey created his formulation of the rule of law over 100 years ago in an age of classical liberal thought. It is therefore not surprising that his formulation is not the only modern formulation of the rule of law. Dicey's formulation has limits to its ability to achieve certain requirements of a democracy.[12] The traditional rule of law doctrine does not address a range of freedoms or human rights.[13] The traditional doctrine refers to formal equality under the law. This may be considered inherent in the notion of law and its application, however formal equality does not prohibit unequal laws.[14] "It constrains, say, racially-biased enforcement of the law, but does not inhibit racially discriminatory laws from being enacted."[15]

Diceyan theory may be further criticised due to his perception of the "sovereignty of Parliament and the supremacy of the rule of (ordinary) law".[16] Keith Mason has pointed out that Australian parliaments may be supreme, but they are not sovereign. "The rule of law affirms parliament's supremacy while at the same time denying it sovereignty over the Constitution."[17] In Australia the Parliament clearly must operate under the Constitution.

Criticisms of Diceyan theory have lead to different formulations of the rule of law; but Dicey's formulation still reflects some of the fundamental principles of the rule of law. In following his formulation some commentators prefer the narrow term 'government under law' rather than 'rule of law'.[18] However some commentators prefer to formulate the rule of law, not as an actual rule of law in itself, but as a "statement of constitutional and juridical principle, a juristic reserve, an idea of a profound legality superior, and possibly anterior, to positive law. It is not easy to define with precision, because in part it manifests itself more as an absence than a presence, rather like those other great negatives, peace and freedom".[19]

F.A. Hayek has provided a clear and concise formulation of the rule of law : "Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge."[20] Broader views on the rule of law, such as the judgment of Brennan, Deane, and Dawson JJ in Chu Kheng Lim v Minister for Immigration, will also recognize the inherent relationship between 'government under law' and the separation of powers doctrine.[21]

For the purposes of this article, it must be recognised that the meaning of the rule of law has been formulated in many different ways. However, the fundamental principles, such as the supremacy of law, are relatively consistent.

The Rule of Law in Australia: A Brief Illustration

At issue in Australian Communist Party v The Commonwealth was Commonwealth legislation designed to dissolve the Australian Communist Party, and make communist organizations illegal.[22] Although the preamble of this unique law stated it was "necessary" for the defence of Australia, the court struck down the law for being unconstitutional.[23]

Even though the Commonwealth thought this law was "necessary" they could not act outside the Constitution. Dixon J noted that Australia's government "is government under the constitution", and that the constitution is an "instrument framed in accordance with many traditional conceptions", some "of which are simply assumed." Among these assumed traditional conceptions "it may fairly be said that the rule of law forms an assumption".[24]

This judgment embraces the rule of law as an inherent part of our constitution. Although other constitutional matters were raised in this case Dixon's comments on the rule of law effectively used the concept as a restriction on arbitrary power.

Clause 5 of the Commonwealth of Australia Constitution Act also reflected the rule of law in this aspect of restriction in that everyone is under The Constitution.[25] In the recent case of Lange v Australian Broadcasting Corporation the High Court stated in its joint judgment that: "The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of state and commonwealth governments".[26]

This aspect of the rule of law ensures that government has its powers limited. Government decisions must be lawful; if they are not then a court may find them void. This provides a degree of protection to the freedom of society, as was demonstrated in the Australian Communist Party Case.

The case of Chu Kheng Lim v Minister for Immigration[27] demonstrated how the rule of law might protect human rights and freedom. In this case the Parliament amended the Migration Act[28] to provide for the compulsory detention of certain 'designated persons', who could not be released from custody by order of a court.[29] The law was struck down for being inconsistent with Dicey's first element of the rule of law and the separation of powers doctrine. Brennan, Deane, Dawson JJ, quoting Dicey, found that the amendment was:

Beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt... Putting to one-side exceptional cases, ... the involuntary detention of a citizen in custody by the state is penal or punitive in character and, ... exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is "ruled by the law and the law alone" and "may with us be punished for a breach of law, but he can be punished for nothing else".[30]

A v Hayden[31] is a further example of the rule of law operating to protect society from the possible tyranny of the state's illegitimate actions. This case concerned actions of members of the Australian Security Intelligence Service (ASIS) who had , with authorization of the Minister for Foreign Affairs, conducted an anti-terrorist exercise in the Sheraton Hotel in Melbourne. Staff at the hotel had not been aware of the exercise prior to its occurrence, which involved the use of a sledgehammer to smash a door and firearms with blank ammunition.[32] When faced with the question of whether the government could authorise the ASIS members to commit unlawful acts with immunity to prosecution Brennan J stated: "Neither ASIS nor the Minister nor the executive government could confer authority upon any of the plaintiffs to commit an offence or immunity from prosecution for an offence once committed. The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy... The principle... is that all officers and ministers ought to serve the crown according to the laws... This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when executive governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies."[33]

This decision clearly illustrates the importance of the second element of Dicey's formulation of the rule of law,[34] which is concerned with the "equal subjection of all classes to the ordinary law",[35] including government officials. Such a principle provides some protection for individuals from rogue government officials who may try to use their power to act above the law.

Lack of Application: Is The 'Rule of Law' a Fulfilled Promise?

If Dicey's formulation were a strict standard, then it would be quite easy to point out a number of circumstances in which that standard has been departed from by states.

Dicey's first principle (supremacy of regular law as opposed to the influence of arbitrary power) has been seriously challenged, due to the proposition that the rule of law excludes even wide discretionary authority by the government. The modern government depends on many discretionary powers granted to the executive by the large numbers of statutes annually passed by parliament or other legislature.[36] It seems that Dicey's formulation may be interpreted to disapprove of the thousands of regulations in our society made through the discretion of delegated authorities.

This first principle also contradicts the fact that, as a matter of necessary efficiency, many present day statutes allow police the power to detain people for a short period of time due only to a reasonable suspicion.[37] Ivor Jennings has also pointed out that arbitrary power may be increased in national emergencies, such as war. This was reflected in the drastic powers given to the English government by the Defence of the Realm Act in 1914.[38]

Dicey's second principle (equality before the ordinary law of the land) may also be challenged in today's law. Although it is true that public officials who commit crimes or torts are liable before the ordinary courts (except for circumstances of non-justiciability, such as in The Church of Scientology v Woodward)[39] it is not true that those public officials and private citizens have the same rights, and are thus equal. [40] "A tax investigator, for example, has powers which the taxpayer does not possess".[41] Furthermore, members of the police force may be able to exercise considerably more lawful power over members of society than the average citizen lawfully could.

The principle of equality before the law has raised significant problems for the rule of law. It would be unjust if the law failed to account for social difference and disadvantage, and simply presumed that everyone was equal and should be treated equally. This led Hayek to attempt to adapt the rule of law in a manner that Joseph Raz thought created "exaggerated expectations" for it.[42] Hayek stated: "The requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess... Such distinctions will not be arbitrary, will not subject one group to the will of others, if they are equally recognised as justified by those inside and those outside the group".[43] This statement lead Raz to allege it was a guarantee of freedom and a "slippery slope leading to the identification of the rule of law with the rule of good law".[44]

It can be noted that Raz has not limited himself to Diceyan theory in his criticisms of the rule of law. Raz argues that the rule of law "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".[45] Rather than hopelessly trying to make excuses as to why the rule of law has not always prevailed in English law, Raz stated: "Since the rule of law is just one of the virtues the law should possess, it is to be expected that it possesses no more than prima facie force. It has always to be balanced against competing claims of other values".[46] Raz considers the rule of law to be a negative value that is "merely designed to minimise the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be".[47]

Although Raz is discussing the rule of law in England where there is no written constitution that reflects aspects of the rule of law and 'government under law', such as there is in Australia, his criticisms are relevant to the way in which the rule of law has operated in Australia. Australia has, and has had, laws that apply to only one class. The most infamous of these is probably the Aboriginal 'protection' legislation. Australia also has legislation that allows police to detain people, who are presumed innocent, on merely a suspicion of a crime. Australia also has a process of detaining asylum seekers until they receive refugee status. However, do we always consider such use of arbitrary force unnecessary?

The Recent Controversy: Terrorism and the Rule of Law

The tragic events in New York and Washington on 11 September 2001 may have made liberal democratic societies, such as Australia, realise the importance of protection through government as well as protection from government.

The recently proposed legislative provision that allows government officers to hold suspected terrorists in custody, without charge, for up to 48 hours may indeed be considered contrary to the rule of law.[48] However it is quite a valid and appropriate provision if we view the rule of law as a juridical principle that must be balanced against other factors. The protection of Australian lives from the very real threat of terrorism is now, possibly more than ever, considered a top priority. Protection from such a realistic threat is a higher priority than the protection of one person's freedom for 48 hours. Protection from terrorism is more important than the possibility of a person being held in custody for a short time without having breached the law.

September 11 has forced us to realise that there can be greater threats in our world than the power of our own government. It is therefore appropriate that the rule of law continues to act only as an extremely credible principle that must be considered against other factors.

The selfish concerns of nineteenth-century individualism are no longer paramount in our modern liberal society. The rule of law needs to be balanced with the other concerns of our modern society. The conflict between the 48 hour provision and the rule of law highlights two important points. Firstly, the protection of the lives of our Australian friends, mothers, fathers, brothers, sisters, and children is far more important than an overly strict and possibly dangerous enforcement of the rule of law. Secondly, every conflict against tyranny comes at a price. The price of possibly false imprisonment of some individuals for a short time is a cheap price, perhaps according to utilitarian views, for protection against further loss of human life.

Conclusion

The rule of law has been limited in its fulfilment of constitutionalist promises. However, in assessing whether the rule of law has fulfilled its constitutionalist promises it must be repeated: "The rule of law sustains much more than constitutionalism".[49] Constitutionalist promises involve the limiting and supporting of state power. Before criticising the effect of the rule of law it must be noted that values of equality and human rights, as discussed by Dicey and Hayek, are not always directly constitutionalist promises. However this is not to say that constitutionalist promises, such as the restriction of arbitrary power, have not indirectly assisted these values. Such assistance occurred in Chu Kheng Lim.

The rule of law's intended protection against the use of arbitrary power, and the principle that law must be supreme, is, however, a constitutionalist promise. Furthermore, it is fair to say that the principle that government officials should be equally subject to the law is a constitutionalist promise, in that it fulfils a purpose of restraining state power.

The supremacy of law and protection against arbitrary power has been strongly reflected in cases such as The Australian Communist Party Case and Chu Kheng Lim. Furthermore, the principle that government officials must be equally subject to the ordinary law, was strongly supported in A v Hayden. However, these applications of the rule of law are not absolute in our society.

One need only look as far as Australia to see the use of arbitrary force when people who are not charged with any crime are kept in custody. However, the reasonable person might not always question the necessity for arbitrary force in some exceptional circumstances. The reason for this is that the rule of law should, as Raz put it, be "balanced against competing claims of other values".[50] This was seen in my discussion of measures to combat terrorism.

The rule of law, in any of its formulations discussed here, is indeed limited, and has had a limited effect in delivering its constitutionalist promises in Australian law. However, we should not rely on the rule of law as an absolute means of achieving equality, human rights, justice, freedom and even democracy.[51] It may be a highly creditable principle, however the rule of law is not one completely or explicitly entrenched in our constitution, and it is for this reason that we should, in future circumstances, be careful not to rely on the rule of law to provide almost any of its 'promises', in the true sense of the word. For promises should be absolute and without exceptions, and in contrast the rule of law has not delivered upon its 'promises' in many areas of the present law.

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Notes

[1] Tony Blackshield and George Williams, Australian Constitutional Law & Theory (2nd ed, 1998) 7

[1]

[2] Keith Mason, The Rule of Law, in P.D. Finn (ed), Essays on Law and Government, Volume 1: Principles and Values (1995) 123

[3] Blackshield and Williams, above n 1, 6

[4] Ibid

[5] Allan Hutchinson and Patrick Monahan, The Rule of Law: Ideal or Ideology (1st ed, 1987) ix

[6] Ibid

[7] Mason, above n 2, 123

[8] A.V. Dicey, Introduction to the study of the law of the Constitution (10th ed, 1959)

[9] Ibid, 202-203

[10] Ibid, 198

[11] Ibid, 203

[12] Jeffrey Jowell, The Rule of Law Today, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (3rd ed, 1994) 76

[13] Ibid

[14] Ibid

[15] Ibid

[16] David Kinley, Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentery Supremacy and the Rule of Law, [1994] FedLawRw 7; 1994, 22(1) Federal Law Review, 194, 195

[17] Mason, above n 2, 123

[18] Geoffrey Walker, The Rule of Law (1st ed, 1988) 2

[19] Ibid, 3

[20] F. A. Hayek, The Road to Serfdom (1st ed, 1944) 72

[21] Chu Kheng Lim v. Minister for Immigration (1992), 176 CLR 1

[22] Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951), 83 CLR 1

[23] Ibid

[24] Ibid, 193

[25] Australian Constitution, clause 5

[26] Lange v. Australian Broadcasting Corporation [1997] HCA 25; (1997), 145 ALR 96 at 109

[27] Chu Kheng Lim v. Minister for Immigration (1992), 176 CLR 1

[28] Migration Act 1958 (Cth)

[29] Ibid, 15-19

[30] Ibid, 27

[31] A v. Hayden [1984] HCA 67; (1984), 156 CLR 532

[32] Ibid, 579

[33] Ibid, 580

[34] Dicey, above n 8, 202

[35] Ibid

[36] Walker, above n 18, 130

[37] Michael Molan, Constitutional Law Text Book (17th ed, 1995) 22-23

[38] Ivor Jennings, The Law and The Constitution (5th ed, 1959) 57

[39] The Church of Scientology v. Woodward (1983), 57 ALJR 42

[40] Walker, above n 18, 131

[41] Ibid

[42] Joseph Raz, 'The Rule of Law and its Virtue', 1977, 93 The Law Quarterly Review, 195, 209

[43] Ibid

[44] Ibid

[45] Ibid

[46] Ibid, 210

[47] Ibid, 211

[48] Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth); George Williams, 'Our rule of law is under attack' The Age (Melbourne), November 23rd 2001, 15

[49] Mason, above n 2, 123

[50] Raz, above n 41, 210

[51] Ibid, 196