The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.
The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.
The rule of law has been described as a “rare and protean principle of our political tradition”. The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of ‘a government of laws, not men'”. Keith Mason has noted, “The rule of law sustains much more than constitutionalism”.
A.V. Dicey created a classical formulation of the rule of law in 1885. He stated that the rule of law has three meanings:
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.
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”:
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.
The Rule of law in the Australian context
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.
Further, The Australian Constitution provides at section 80 that:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”
New South Wales has a long history of trial by jury. The first jury trial in New South Wales was held in April 1841 in Berrima.
What is torture?
Torture, according to the United Nations Convention Against Torture, is:
…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
Torture… any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person… punishing him for an act… or for any reason based on discrimination. In my post titled Racism takes many forms, I discussed whether the actions of the Western Australian police in tasering Mr. Spratt 41 times in a week amounted to torture and whether in doing this they were operating outside of the ‘rule of law’.
While restrained on the floor of a cell, several police attached their Tasers to the small of Mr. Spratt’s back and ‘fired’ fifty thousand volts of electricity into him, not once, but nine times. Why? Because he had not followed their directions. Remember, the police had already restrained Mr. Spratt by this time, so any tasering after the point at which he was restrained was punishment and only punishment. It was not some act arising out of a necessity to restrain him. The video relating to these incidents which is publically available clearly shows that Mr. Spratt was in pain and suffering both physically and mentally. In short, he was tortured by the Western Australian Police because of his recalcitrant attitude and because of his Aboriginality.
Is torturing an unarmed and defenseless man because of his ethnicity something that Australians should be proud off? I hope that everyone who thinks about this and the implications that flow from it would say no. If we say no, then why do we sit back and allow it to happen on a daily basis? Those complicit to a crime are as guilty as the perpetrators. The complicit party to the crimes committed against Mr. Spratt is Australia’s Citizenry. We see it, we’re horrified, but we move on. It happens again and again and again; each time we shrug our shoulders and move on. We are as a result complicit.
Likewise when a racist public servant writes a letter to the Chief Executive of a Government Department requesting, no, demanding that another officer, an Indigenous Australian, be sacked because of his ethnicity and the Indigenous Australian is indeed eventually sacked while the racist remains in his job, we as a nation are complicit. And make no mistake, a letter can cause mental pain and suffering, especially when it contains odious racist comments that are eventually acted on. The letter to Howard Ronaldson is yet one more example of Australia’s flagrant disregard for the provisions of the United Nations Convention Against Torture.
When a police officer or public servants places themselves above the ‘rule of law’ they are offending against one of our most cherished legal principles. When it is done to further a racist agenda, whether personal or state sanctioned, it offends against one of the most cherished principles of international law. When our government fails to act, we as a nation are complicit in what amounts to the odious crime of Torture.
All I seek is for each one of us to ask of ourselves, is what is happening on a daily basis to Indigenous Australians fair and reasonable under all of the circumstances, and do I want to be complicit in it?