Introduction A ‘free society’ is a system of interaction between humans wherein every person can participate in a civilised manner and without discrimination. In Australia, the Commonwealth of Australia Constitution Act 1900 (Imp) is the primary source by which society operates as an essentially free society. This paper seeks to establish that the functioning of such a society is dependent upon the existence of a legal framework supporting the rule of law, which is ultimately, an ideology.
Analogically, the circumstances in which the application of the rule of law has either created a free society or undermined it will be explored and its purposes thus inferred to construct a definition of the ‘rule of law’ reflecting contemporary standards. However, Dicey’s classical definition will be used as a guide to understanding the current position of the rule of law. Briefly, Dicey’s definition comprises of three elements: ‘absolute supremacy’ of law over arbitrary power, ‘equality before the law’ and the constitution is ‘the consequence of the rights of individuals. ’
Towards a Definition: What is the Purpose of the Rule of Law? * Presence of the Rule of Law Dicey’s definition was formulated in the context of British law which lacked a written constitution, but its significance is evident in Australian law. Firstly, the third element of Dicey’s definition is apparent in the preamble of the Constitution, ‘Whereas the people… have agreed to unite in one indissoluble Federal Commonwealth… ’ Although the Preamble holds no legal significance, it is an indication of the legislative intention to express the Constitution is the product of the rights of the Australian people.
Also, Clause 5 enunciates the second principle and therefore, since the exercise of arbitrary power is not possible where every person is subject to the same laws, the first principle is established. Generally, these provisions draw on the idea of limited government, through a distribution of power, exemplified in the structure of the Constitution setting out the three arms of government under separate chapters. Subsequently, the need for a separation of powers doctrine is consistent with the rule of law as an underlying assumption of the Constitution and according to Zywicki, as an inherent principle.
In particularly, the High Court points out the importance of judicial independence as a manifestation of the rule of law to preventing abuse of power by Commonwealth officers: ‘pursuant to s75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review. ’ Since judicial independence is a derivative of the rule of law, the rule of law is inherent to a free society and not consequent to social order. The case of Coco v The Queen further illustrates the effectiveness of judicial independence in protecting rights.
The defendant was convicted for attempted bribery of Commonwealth police on evidence from a secretly installed listening device. Notwithstanding the act was authorised under statute law, the Court overturned the conviction because the ‘Courts should not impute to the legislature an intention to interfere with fundamental rights. ’ By rejecting the legitimacy of the statute, individuals’ right to exclude one from their own premises and right to privacy were upheld.
To a limited extent, individuals, too, have influence over the government through possessing the right to vote. This distribution of power to individuals exposes two purposes of the rule of law: certainty of one’s equality status in society and the restriction of arbitrary power. Such an affirmation of the rule of law conforms to the notion of a society free from excessive arbitrary power. * Absence of the Rule of Law Since Dicey’s development of the classical rule of law, there have been many circumstances where the rule of law is corroded.
For example, whilst judicial independence may act as a relatively effective deterrence for the abuse of Executive and Legislature power, issues arise as to the remedies available against the abuse of Judicature power. In asserting its judicial independence, the High Court in Plaintiff S157/2002 v Commonwealth stated it was ‘the ultimate decision-maker in all matters where there is a contest. ’ Zywicki suggests that as long as the court follows precedent and thereby gives individuals more certainty of knowledge over the rights they possess, ‘social coordination and economic wealth’ will increase.
The courts would not be relying on its discretion, but rules which will apply equally in the future. Thus, refining Dicey’s definition, Zywicki views ‘rule-based decision making’ as a basic concept of the rule of law. Contrarily, Sykes suggests discretion may be a ‘matter of necessary efficiency’ which is more valuable than strictly adhering to the rule of law. The rule of law, then, does not encapsulate the absolute value of society. Sykes refers to police discretionary power; however, this concept of balancing the rule of law against other values may be extended to situations wherein exceptions and defences in law apply to certain groups.
Consider the conferral of legal privilege and the requirement of confidentiality on legal practitioners in criminal law- whereas equality before the law operates in favour of the client, the law of legal privilege applies only to legal practitioners. As Sykes emphasises, ‘it would be unjust if the law failed to account for social difference and disadvantage… ’ Zywicki would concur and modifies the strict interpretation of Dicey’s second element: ‘the law may discriminate among different categories of peoples as necessary, but may not do so in such a way as to prejudice some or elevate some groups or individuals to the detriment of others. According to this newer definition, the essence of Dicey’s rule of law remains. In developing countries, such as Peru, the absence of the rule of law has lead to over-regulation of the economy. Corruption has impeded economic growth due to time-consuming and costly procedures that are required in order to conduct a business. The Australian liberal position on economic freedom has been established since the enactment of the Constitution. Consequently, it can be inferred that the protection of individual property is an objective of the rule of law and necessary in a free society.
Conclusion: The Rule of Law- A Contemporary Definition From the various purposes of the rule of law thus far ascertained, the rule of law is indeed, as Walker concedes, a set of ‘ideals which can be seen as general standards against which a legal system can be measured. ’ It is an ideology consisting of values related to equality, freedom and justice, which must weighed against other societal values. Sykes warns against relying ‘on the rule of law to provide almost any of its [constitutional] promises. Whilst the applicability of Dicey’s rule of law is limited in Australia, dismissing this inherent concept may lead to the destruction of our free society, economically and politically. The deficiency lies in the practical implementation of the rule of law rather than the ideology itself. Thus, the rule of law, although not an absolute presence in the Constitution, is necessary for the control and distribution of power that is intrinsic to a free society. ——————————————– [ 1 ]. Geoffrey de Q.
Walker, The Rule of Law: Foundation of Constitutional Democracy, (1st ed, 1988) 8. [ 2 ]. AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959). [ 3 ]. AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) 202-203 in Tony Blackshield and George Williams, Australian Constitutional Law and Theory: commentary and materials (5th ed, 2010) 90. [ 4 ]. Commonwealth of Australia Constitution Act 1900 (Imp). [ 5 ]. Commonwealth of Australia Constitution Act 1900 (Imp) Preamble. 6 ]. Commonwealth of Australia Constitution Act 1900 (Imp) clause 5. [ 7 ]. Commonwealth of Australia Constitution Act 1900 (Imp) ch I-III. [ 8 ]. Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 193 (Dixon J). [ 9 ]. Todd Zywicki, ‘The Rule of Law, Freedom and Prosperity’ (2003) 10 Supreme Court Economic Review 6. [ 10 ]. Plaintiff S157/2002 v Commonwealth  HCA 2, 104 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). [ 11 ]. Above n 8. [ 12 ]. (1994) 179 CLR 427. [ 13 ]. Ibid, 437. [ 14 ].
Commonwealth of Australia Constitution Act 1900 (Imp) s41. [ 15 ].  HCA 2. [ 16 ]. Ibid, 104 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). [ 17 ]. Above n 8, 13. [ 18 ]. Ibid, 12. [ 19 ]. Ibid. [ 20 ]. Andrew Sykes, ‘The ‘Rule of Law’ As An Australian Constitutionalist Promise’ (2002) 9 Murdoch University Electronic Journal of Law 24. [ 21 ]. Ibid, 32. [ 22 ]. Ibid, 27. [ 23 ]. Above n 8, 5. [ 24 ]. Above n 8, 8. [ 25 ]. Ibid. [ 26 ]. Commonwealth of Australia Constitution Act 1900 (Imp) s92. [ 27 ]. Above n 1. [ 28 ]. Above n 19, 38.