The rule of law

The rule of law is the principle that every person – regardless of their rank, status or office – is subject to the same laws and the same legal and judicial processes. To put it another way, just as citizens must obey the law, so too must governments. Neither the king, nor the king’s ministers, nor the government’s officials are above the law; no person can ignore or subvert the law or act with arbitrary power. The rule of law is also concerned with the legality of the actions of executive government. It requires the executive government and its agents and agencies – such as the military, the police and security agencies – follow fair procedures and respect the rights of citizens.

The idea of the rule of law is ancient. It is explained in Aristotle’s Politics (Book III, chapter 16). In England, the idea that the king is also subject to laws of the land has its origin in the Magna Carta of 1215. The signing of the Magna Carta was groundbreaking: for the first time in English history, a written law curtailed the arbitrary power of a king. That law also extended rights and protections for all Britons, not just the barons who had grievances with the king. Its mythology notwithstanding, 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 the pope, Innocent III. Although still subject to the law, the king retained the authority to change the law himself.

The rule of law did not become entrenched in the Westminster system of government until the Glorious Revolution of 1688. This was preceded by 85 years of argument between the Stuart monarchs and the parliament and common law jurists (notably Sir Edward Coke) over the divine right of kings, their claim to rule as they please. Under the Bill of Rights passed in 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.

The rule of law is a cornerstone of democratic societies. The rule of law is not enshrined in the Australian Constitution or other legislation, nevertheless, it is an important foundation for Australia’s system of government. The principle of the rule of law has been cited in a number of High Court judgements. On January 1st 2001, the centenary of Australia’s Federation, prime minister John Howard was asked what he would nominate as some of the great achievements of the past century. Mr Howard began his reply: “Well I think the maintenance of democracy and the rule of law for 100 years”.

There are some anomalies that suggest the rule of law is not fully applied in Australia. One is what lawyers call the ‘shield of the Crown’. This refers to privileges and immunities enjoyed by the Crown, its representatives, officers and agents. Most of the ancient privileges and immunities of the crown have been abolished by various 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, the government can itself 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, which restrict or remove the right of judicial review for decisions of the executive government. One example of this is the New South Wales Terrorism (Police Powers) Act 2002, which protects some decisions of the State’s police minister from judicial review.

In conclusion, the rule of law is a foundational philosophy or principle that underpins Australia’s system of government. It operates to provide citizens with certainty by clearly identifying the conduct required by the law. It also provides protection by requiring the government to act according to the law. That said, the rule of law is sometimes carried only by convention. It is not defined or protected in the Constitution or other legislation, and its meaning and application is open to interpretation. Though the rule of law is important, there are anomalies where the executive arm of government is exempt from ordinary laws of the land.