Rule of law is drifting in Australia

At Ivy League sporting events, Yale – which rejoices in the motto lux et veritas (light and truth) — indulges in a terrace chant at the expense of Harvard — which can only boast veritas. It goes: “Your veritas sucks if you ain’t got lux”.

A similar taunt directed at government could be rendered, “Your lex sucks if it ain’t got ius”. This is because there is a crucial distinction, familiar to legal philosophers, between the Latin lex, meaning ‘law’ in the form of legislation (even if it is bad law), and ius, broadly translated as ‘right’, encompassing overreaching principles of justice and fairness. It enables legislation to be judged as good or bad, not just whether it is within power.

At its simplest, the rule of law holds that no one is above the law. Viewed through a political prism, the prominent New Zealand legal philosopher Jeremy Waldron considered its most important demand to be that

“people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology”.

This article considers broader aspects of the rule of law, including those which establish certain requisite properties of law. The ‘rule of law’ is a principle with a number of elements which help identify shortcomings in the exercise of power, or in the law itself, and requires accountability to the law by everyone and equal application of the law to everyone. In this way we can better gauge when government enacts legislation or takes executive action which is not ‘just or fair’, measured against certain expectations of a democratic society, including those set by established human rights standards.

Rule of law principles generally operate at a high level of abstraction but with concrete support in law for certain facets. For example, in Australia the Commonwealth Constitution achieves the familiar separation of the legislature, executive and judiciary, designed to avoid the concentration of power, and thereby abuse, within any one branch of government. Administrative law establishes avenues for reviewing the exercise of executive power, to ensure government decision-making remains within power, and is transparent and accountable. The common-law ‘principle of legality’ ensures that ambiguity in a statute is interpreted in favour of fundamental common law rights and freedoms, where possible, by expecting parliament to use clear and unambiguous language when restricting those freedoms.

However, other crucial aspects of the rule of law are not as well instantiated in Australian law. One especially important element of the rule of law concerns the compatibility of legislation with international human rights norms and standards. As the UN Secretary-General Kofi Annan explained in 2004:

“The ‘rule of law’ is a concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”

In a 2023 New Vision for the Rule of Law, the current UN Secretary-General António Guterres emphasised that the rule of law calls for “unwavering respect for all human rights … Human rights and the rule of law are mutually reinforcing — the advancement of the rule of law is essential for the protection of all human rights, and human rights are central to the rule of law”.

The understanding of the rule of law in Australia, as recounted in the Law Council of Australia’s policy statement on the rule of law, takes specific account of the need for consistency with international human rights standards, stating that international legal obligations must be met, whether created by treaty or arising under customary international law. It also particularises other long-established rule of law stipulations established by Lord Bingham. .

This raises a high expectation of conformity of legislation with fundamental human rights, of transparency and accountability, and fairness in the application of the law, in addition to the structural separation of powers and administrative review procedures already mentioned.

This article considers areas of possible ‘drift’ from rule of law principles in recent times, particularly concerning fundamental human rights, in an age when rights are susceptible to being put into political service, rather than to promote the comprehensive enjoyment of all rights by all Australians on equal terms. It takes for the purpose of illustration an assortment of recent enactments, challenges to the use of executive authority, scrutiny and other democratic and review processes, and inquiries. It examines whether there are any notable anomalies which, applying established rule of law principles, might signal the need for correction. Put another way, it asks whether we have reached the point at which the rule of law, and the protection for fundamental human rights as an element supporting it, if not also integral to it, need to be reclaimed.

Dr Paul Taylor is an Honorary Senior Lecturer in the T. C. Beirne School of Law, and Fellow of the Centre for Public, International and Comparative Law; Adjunct Professor at the School of Law, The University of Notre Dame Australia; and Fellow of the Higher Education Academy.