Lately we’ve noticed the term ‘the rule of law’ being thrown around a lot. Most of the time the emphasis seems to be about ‘law and order’. It can be confusing as there are elements of law and order within the rule of law, under our Constitutional arrangements. However, the rule of law is not that clear-cut.
It doesn’t simply mean that people in Australia have to follow Australian law (although we should). It involves things like equality before the law (meaning no matter who you are the law applies to you and that no one is above the law), that we are innocent until proven guilty (a court will decide whether a law has been broken) and that we are ruled by laws not people.
One of the first people to articulate the rule of law was AV Dicey in his 1885 book Introduction to the Study of the Law of the Constitution. The Dicey definition is one that is often used to describe the rule of law and its aim to prevent the exercise of tyrannical or arbitrary power:
1.A man can only be punished if it was proved in court that he breached a law. This means that the Sovereign cannot punish people arbitrarily.
2.No man is above the law, and everyone is equal before the law. This means that the law applies to everyone in the exact same way regardless of social, economic or political status.
3.The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons. This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights.
Our Constitution was created not long after this first written definition of the rule of law. The Dicey book was referred to often during the Constitution Conventions in the 1890’s. Andrew Sykes discusses how the Australian Constitution fits within these three principles:
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.
Since 1885 there have been many scholars and thinkers that have expanded upon the Dicey definition of the rule of law. Former Justice of the High Court and Governor-General Sir Ninian Stephen has defined it as:
1.Government should be under the law, not just ordinary citizens.
2.Administrators of the law (judges, lawyers) must be independent from government.
3.There should be ready access to the courts of law for those who seek remedy or relief
4.Law of the land should be certain, general, and equal in operation
As you can see these two definitions are similar, but Stephen goes a bit further with independence of the judiciary. These are but two definitions and the rule of law should not be limited to just these tightly defined principles. It is a broad concept, which is meant to protect the people from arbitrary power. If you watch out for countries that are criticised about their application of the rule of law, you’ll notice that many (if not all of them) are not very democratic. The rule of law is essential for a well-functioning democracy.
After meeting with Philippines President Rodrigo Duterte in his hometown of Davao last week, Foreign Minister Julie Bishop stated:
During my conversation with President Duterte we discussed the country's anti-drug campaign at length. I conveyed Australian and international concerns with respect to extra-judicial killings and spoke of the importance we attach to human rights and the rule of law.
Since his election Duterte has encouraged a war on drugs, where police or really anyone can just shoot and kill drug dealers and takers. Since he assumed office on 30 June 2016 it has been estimated that over 8000 people have been killed.
There could possibly be some people in Australia that might support something like this. But the rule of law means that there is a process to be followed before someone can be punished for a crime. You can’t just allege that someone committed a crime and then shoot them. An impartial court needs to decide whether a crime has been committed and then provide a sentence only after a guilty verdict.
Minister Bishop again discussed the rule of law, this time in Singapore when discussing the role of Australia and the US in the South China Sea dispute:
Liberal-democratic institutions such as rule-of-law rather than rule by executive privilege, civilian control of the military, independent and competent courts, protection of property and intellectual property rights from state appropriation or theft, and limitations on the role of the state in commercial and social affairs remain the prerequisites for stable and prosperous societies, as they are for the creation of a vibrant and innovative private sector.
When the rule of law is upheld we are ruled by laws and not by people. Let’s go into a little more detail about the principles.
Equality before the law
As Federal Court judge Michael Barker told Rod Culleton last December “I don’t care if you’re a senator or a janitor. Everyone is equal before the law.” Mr Culleton had informed the Judge that he was a Senator. It’s unclear whether he was expecting some way out of bankruptcy because of his job title.
This is one of the most basic tenets of the rule of law. Even a Senator has to pay their bills and if they don’t they can be brought before a court and declared bankrupt like any other person.
Innocent until proven guilty
This is another basic tenet of the rule of law. Everyone is entitled to the presumption of innocence and a fair trial before an independent court. The independence of our Courts is set out in the Constitution and is vital to the separation of powers.
The Constitution and the rule of law
If the main aim of the rule of law is to restrain power, then the Australian Constitution is a good example of that. The basic law of Australia, our Constitution, limits the power of the three branches of government. These being the legislature (the parliament), the executive (‘the government’) and the judiciary (the courts). How these three powers function is clearly outlined in our Constitution. The independence of our courts is imperative. Former Chief Justice Murray Gleeson stated in 2000:
Judges have to be independent of all interests which might otherwise seek to influence the outcome of proceedings. In particular, they have to be independent of the executive government. This is because so much of their work involves dealing with disputes between the executive government and citizens, and maintenance of the rule of law frequently requires courts to uphold the rights of individual citizens against the executive government.
At times the courts must protect citizen’s rights. The government can only do what is permitted by the Constitution. If they step outside what is allowed, then the courts are there to overrule them, as outlined in chapter III of the Constitution.
Because our Constitution can only be altered through a referendum, the sovereignty of the nation lies with the people. This means that our System of Government meets one of the other basic tenets of the rule of law, that the law should be certain and well known.
The law as a positive
Our society is founded upon the principle of legality and rules. Everywhere around us there is a way that things should be conducted for the common good. Some of these are laws, others are customs and traditional practices. Laws are implemented to improve society or make it safer for the people. Let’s look at one example. In the past, no one had to wear a seatbelt in a car. In fact many cars were manufactured without seatbelts. Once evidence of not being restrained in a car proved to cause more injuries in an accident, the governments of Australia took action and made laws to protect the people. Former Chief Justice Murray Gleeson discusses:
Many people see the law in negative terms: as a constraint upon freedom and creativity; as a series of traps for the unwary; as a set of rules designed to stifle initiative and enterprise. They see the Constitution as means of enabling courts to frustrate the will of elected parliaments. To some, the rule of law is thought to require the police to investigate, and bring to punishment, every deviation from the letter of the statute book, no matter how harmless or accidental it might be.
That is not what the law is about. The rule of law is meant to be a safeguard, not a menace. It operates in many aspects of our lives. Our system of government is infused by the principle of legality. Trade and commerce are conducted under the assumption that legal obligations will be honoured and, if necessary, enforced by the power of the state, exercised by courts. Personal relationships, involving questions of property and status, are entered into against a background of established legal duties and entitlements. Workplace relations are governed by legislation and principles of common law. The civil law is working at its best when people do not need to go to court to make claims or enforce rights, because legal obligations are known, and accepted. The essential purpose of the criminal law is to keep the peace, so that people can lead their lives, and go about their affairs, in reasonable security.
Law and order
It is easy to assume the ‘rule of law’ means ‘law and order’. But it is not that simple. The rule of law gives us a predictable and ordered society. Every person, regardless of who they are, is subject to the same law and has access to the same legal and judicial processes.
The rule of law, enshrined in our Constitution, restricts the powers of government and parliament and protects against the influence of arbitrary power. The justices in our judicial system interpret the rule of law by balancing community rights and freedoms with the powers of government.
As always we welcome your comments and feedback in the comments section. Can also you help us spread the message that the rule of law is more than law and order by sharing this article with your friends, family and colleagues?
Photo attributed to Julie Bishop