“A State cannot claim to be operating under the rule of law unless laws are administered fairly, rationally, predictably, consistently and impartially.”
(Chief Justice Spigelman, as he then was, in an Address given on 20 March 2003 at the International Legal Services Advisory Council Conference Sydney)
Ann Applebaum in Gulag: A History reminds us that the rule of law requires that an individual is punished only for what he does, not for who he is or with whom he is associated.
Mark Robertson, barrister made the following comment in, “A disregard of the law” (TIA 41 (No. 11), June 2007:
“Applebaum refers to Josef Statins slippery technique of claiming to protect the community from “enemies of the people”, “wreckers” and “saboteurs”. She cites Hannah Arendt’s description of this technique, being to create “objective opponents” or “objective enemies” whose identity changes according to the prevailing circumstances.”
What is the ‘rule of law’ in the Australian Context?
The importance of the rule of law as a potential constitutionalist promise must not be underestimated. The current political issues of anti-terrorism, (increasing ASIO’s powers) and border protection (the Malaysian Solution) prompt us to ask whether the Australian government is totally restricted by the rule of law from exercising excessive and arbitrary power. May the government use arbitrary power against suspected terrorists and asylum seekers, or does the rule of law promise constitutional protection to these persons?
Keith Mason described the ‘rule of law’ as a “rare and protean principle of our political tradition” (Mason 1995, p. 123). The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of ‘a government of laws, not men” (Hutchinson and Monahan 1987). Mason has further noted, “The rule of law sustains much more than constitutionalism” (Mason p 123).
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.
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.
It must be noted that A.V. Dicey created his formulation of the rule of law over 100 years ago in an age of classical liberal thought. It is therefore not surprising that his formulation is not the only modern formulation of the rule of law. Dicey’s formulation has limits to its ability to achieve certain requirements of a democracy. The traditional rule of law doctrine does not address a range of freedoms or human rights. The traditional doctrine refers to formal equality under the law. This may be considered inherent in the notion of law and its application, however formal equality does not prohibit unequal laws. “It constrains, say, racially-biased enforcement of the law, but does not inhibit racially discriminatory laws from being enacted.”
Diceyan theory may be further criticised due to his perception of the “sovereignty of Parliament and the supremacy of the rule of (ordinary) law”. Keith Mason has pointed out that Australian parliaments may be supreme, but they are not sovereign. “The rule of law affirms parliament’s supremacy while at the same time denying it sovereignty over the Constitution.” In Australia the Parliament clearly must operate under the Constitution.
At issue in Australian Communist Party v The Commonwealth was Commonwealth legislation designed to dissolve the Australian Communist Party and make communist organizations illegal. Although the preamble of this unique law stated it was “necessary” for the defence of Australia, the court struck down the law for being unconstitutional.
Even though the Commonwealth thought this law was “necessary” they could not act outside the Constitution. Dixon J noted that Australia’s government “is government under the constitution”, and that the constitution is an “instrument framed in accordance with many traditional conceptions”, some “of which are simply assumed.” Among these assumed traditional conceptions “it may fairly be said that the rule of law forms an assumption”.
This judgment embraces the rule of law as an inherent part of our constitution. Although other constitutional matters were raised in this case Dixon’s comments on the rule of law effectively used the concept as a restriction on arbitrary power.
Clause 5 of the Commonwealth of Australia Constitution Act also reflected the rule of law in this aspect of restriction in that everyone is under The Constitution. In the recent case of Lange v Australian Broadcasting Corporation the High Court stated in its joint judgment that: “The Constitution displaced, or rendered inapplicable, the English common law doctrine of the general competence and unqualified supremacy of the legislature. It placed upon the federal judicature the responsibility of deciding the limits of the respective powers of state and commonwealth governments”.
This aspect of the rule of law ensures that government has its powers limited. Government decisions must be lawful; if they are not then a court may find them void. This provides a degree of protection to the freedom of society, as was demonstrated in the Australian Communist Party Case.
The case of Chu Kheng Lim v Minister for Immigration demonstrated how the rule of law might protect human rights and freedom. In this case the Parliament amended the Migration Act to provide for the compulsory detention of certain ‘designated persons’, who could not be released from custody by order of a court. The law was struck down for being inconsistent with Dicey’s first element of the rule of law and the separation of powers doctrine. Brennan, Deane, Dawson JJ, quoting Dicey, found that the amendment was:
Beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt… Putting to one-side exceptional cases, … the involuntary detention of a citizen in custody by the state is penal or punitive in character and, … exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is “ruled by the law and the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else”.
A v Hayden is a further example of the rule of law operating to protect society from the possible tyranny of the state’s illegitimate actions. This case concerned actions of members of the Australian Security Intelligence Service (ASIS) who had, with authorization of the Minister for Foreign Affairs, conducted an anti-terrorist exercise in the Sheraton Hotel in Melbourne. Staff at the hotel had not been aware of the exercise prior to its occurrence, which involved the use of a sledgehammer to smash a door and firearms with blank ammunition. When faced with the question of whether the government could authorise the ASIS members to commit unlawful acts with immunity to prosecution Brennan J stated:
“Neither ASIS nor the Minister nor the executive government could confer authority upon any of the plaintiffs to commit an offence or immunity from prosecution for an offence once committed. The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy… The principle… is that all officers and ministers ought to serve the crown according to the laws… This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when executive governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies.”
This decision clearly illustrates the importance of the second element of Dicey’s formulation of the rule of law, which is concerned with the “equal subjection of all classes to the ordinary law”, including government officials. Such a principle provides some protection for individuals from rogue government officials who may try to use their power to act above the law.
These are nice little academic arguments, but let’s look at the reality of the situation.
The Australian Federal Police and ‘the rule of law’
“A State cannot claim to be operating under the rule of law unless laws are administered fairly, rationally, predictably, consistently and impartially.”
Laws that are administered fairly, rationally, predictably, are the formula that allows modern pluralist and multi-cultural democracies like Australia to work and to flourish. What would happen without fairness, rationality and predictability? The chaos that followed the breakup of the former Yugoslavia or the ethnic divides in Rwanda or the Sudan are examples that spring to mind. As Mr Paulo Flores commented in Modern Racism “without justice there is never peace, without peace anything becomes possible!” If the Australian Federal Police have free rein, as they appear to do, to first classify citizens and then deal with them according to those classifications, which serves only to remove fairness, rationality and predictability, how can Australia truly claim to be a democracy subject to the ‘rule of law’?
“The pattern from the 1980s right through to Haneef is a culture of obsessive secrecy… where the AFP’s major objective has been to look good whilst at the same time avoiding public scrutiny and accountability,”
(Former AFP officer interviewed in October, 2008 for ABC Four Corners programme Good Cop, Bad Cop)
“The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy… The principle… is that all officers and ministers ought to serve the crown according to the laws…” (Brennan J in A v Hayden)
On the one hand we have the High Court of Australia espousing the view that, “… all officers and ministers ought to serve the crown according to the laws …”; while at the same time we have one of the central organs of the enforcement of justice in Australia, the Australian Federal Police actively “… avoiding public scrutiny and accountability …”.How can these diametrically opposing views be reconciled? The short answer is they can’t if Australia is to remain operating under the ‘rule of law’ where laws are administered fairly, rationally, predictably, consistently and impartially.
Refusing to investigate allegations made by Indigenous Australians against non-Indigenous Australians is an affront to any concept of fairness, rationality, predictability, consistency or impartiality. This is exactly what the Australian Federal Police did with a complaint made to them about an indecent assault committed on Australia’s most senior Indigenous Australian female bank executive by an ACT Department of Treasury official. Despite having attempted to make a complaint at Civic Police Station, the Australian Federal Police have refused to act because they don’t want to know about corruption in any government department and/or they don’t investigate complaints made by Indigenous Australians against non-Indigenous Australians.
Seizing and not properly receipting documents from the home of the former Commissioner for ACT Revenue and then denying their existence is a blatant affront to the ‘rule of law’, yet that is what the Australian Federal Police did and to date they have gotten away with it.
Then we have the case of Captain Fred Martens, a millionaire working in Papua New Guinea, who served more than 2½ years in prison after being convicted under Australian child sex tourism laws.
- A girl alleged Mr Martens had twice – in March and mid-September 2001 – flown her to the capital, Port Moresby, where she applied for a passport and visa to attend school in Australia, with an alleged sexual assault occurring on the second visit.
- Soon after his arrest in August 2004 he had asked investigating AFP agents to obtain various records and documents about his flights and her passport application, which he said would prove the girl’s statement was wrong.
- Many of these documents, which could prove the flight was in August, were never produced at his trial. He was convicted and lost an appeal, but was later granted a second review. He was exonerated.
The ‘rule of law’ issues
- Immigration records showed Mr Martens was not in PNG at the time of either of the flights and the alleged rape. Typed records supplied by the AFP at the trial had said he was in PNG.
- A doctor who certified the passport application photos was not called as a witness. He could have given the dates she was in Port Moresby.
- PNG police approached the wrong fuel company about the plane‘s refuelling records so these were not in evidence.
- The AFP officer swore PNG’s Civil Aviation Authority had advised it had not kept records of the flight. But Mr. Marten’s partner later obtained records of the plane’s take-offs, movements and landings over the counter from the authority
Excerpt from the Martens judgment
R v Martens  QCA 351
 That leaves for consideration the CA Authority flight records. These are crucial to the petitioner’s case. The respondent submits they should be disregarded, or discounted, because they are not fresh evidence. The records could, the respondent argues, have produced them at his trial had he and his solicitors made reasonable efforts to obtain them.
 The submission does little credit to the Commonwealth Director of Public Prosecutions. The records are of critical importance. The petitioner, and his advisors, have asserted that fact ever since his arrest in 2004. The evidence, some of which I will mention shortly, indicates that the petitioner has consistently requested the prosecutor to obtain the records which he claimed would exonerate him by establishing that GN’s complaint is unreliable. The prosecutor did not provide the records. Instead it told the petitioner that they did not exist. They were found after the petitioner’s conviction as a result of efforts made by his wife.
 In April 2005, during the petitioner’s committal, [Australian Federal Police officer, Tania Stokes] was questioned by the petitioner’s counsel about the availability of the records. She said that she and another AFP officer had made inquiries of the CA Authority but had been told that records of aircraft movements were not ordinarily kept for more than three months. Her purpose in seeking the records had been to confirm when, between 10 and 16 September 2001, the petitioner flew into Port Moresby from the Western Province. It can be observed that the production of the records should have been important to the prosecution case, as corroborating GN’s evidence of a flight on 14 September, or between 10 and 16 September. Ms Stokes was asked by the petitioner’s counsel to make further inquiries for the records and undertook to do so, but said she had been told that “every avenue” had already been explored. In her evidence Ms Stokes read an email sent to the AFP from Inspector Ibsagi of the PNG Police. The email read in part:
“… inquiries with PNG CAA – according to them is not a legal requirement … to keep all the flight records that are undertaken by individual pilots thus they do not have records of (the petitioner) flying any of those aircraft.”
 In August of 2005 when the committal resumed Ms Stokes was asked about her further investigation. She said that inquiries had been made “yet again” with the CA Authority which “stated that they were unable to locate any record.”
 Inspector Ibsagi gave a statement on 29 August 2005. In it he said that he had personally made several inquiries of PNG’s CA Authority:
“… regarding (the petitioner’s) flying licence, aircraft registered under his name, details of an aircraft, … P2-AWF and record of his employment with airlines in PNG.”
The results of the inquiry were that the CA Authority had:
“… been unable to locate any records but they are not required under PNG law to keep these records and I consider this matter closed.”
 After his arrest the petitioner was released on bail, a condition of which was that he not leave Australia. It was therefore impossible for him to travel to PNG to conduct his own inquiries of the CA Authority. It was, in any event, eminently reasonable for him to rely upon the resources of the Director of Public Prosecutions and the AFP to obtain the records. They undertook the task and informed the petitioner that the records did not exist.
 The records have always existed and have now been produced. It is a poor reflection upon the two organisations that one should have failed to find them, and denied their existence, and the other object to their use in the reference on the ground that the petitioner should have obtained them earlier. (My emphasis)
The actions of the Australian Federal Police in Marten’s case are an affront to the concept “… that all officers and ministers ought to serve the crown according to the laws …”.
Then there is the case of Jill Courtney who spent nearly 2 years in jail on remand. She was remanded without bail on the application of the Australian Federal Police. When Ms Courtney’s matter finally made it to court, Justice Peter Hidden of the NSW Supreme Court directed the jury to acquit her saying that.
“… the only evidence of a combination between them were the phone calls. But that evidence was deficient and the content of the calls could never have risen above the level of suspicion”.
He also said he was satisfied it had not been reasonable to institute the proceedings and awarded costs to Ms. Courtney.
How I wonder does causing a young woman to spend two years in jail enhance the concept “… that all officers and ministers ought to serve the crown according to the laws …”?
It sounds more like “… Josef Stalin’s slippery technique of claiming to protect the community from ‘enemies of the people’, ‘wreckers’ and ‘saboteurs'”. Where the “… ‘objective opponents’ or ‘objective enemies’ … identity changes according to the prevailing circumstances.” Yes, it appears that Ms Courtney was sacrificed on the altar of Mammon to ensure a budget increase for the Australian Federal Police. Or was it simply a case of anti-Muslim hatred?
While we ponder on all of this let’s not forget that the executioner of Australia stands poised, axe in hand, wafting to strike the fatal blow. The executioner is none other than the The Commonwealth Department of Public prosecutions (CDPP) own John Agius who has stated that he intends to file a notice of contention in the Julian Moti matter challenging the constitutional validity of the High Court reviewing the legality of the Australian government’s actions in the Solomon Islands during Mr. Moti’s illegal rendition to Australia. In a nut shell, the CDPP will argue that Mr. Moti’s rendition to Australia from Honiara in December 2007 falls into the category of “non-reviewable executive action,” or executive action carried out internationally that, under the Australian constitution, cannot be assessed by the judiciary.
What happened, I hear you all ask, to those wise words of Brennan J uttered in A v Hayden that: “Neither ASIS nor the Minister nor the executive government could confer authority upon any of the plaintiffs to commit an offence or immunity from prosecution for an offence once committed…”
Ah yes, our democracy is in peril and it’s time we put it’s “wreckers” and “saboteurs” on trial, or at least placed them before a Royal Commissioner. As I have argued previously, it’s time for a Royal Commission into the Australian Federal Police!
Blackshield, T and Williams, G. Australian Constitutional Law & Theory (2nd ed, 1998)
Dicey, A. V, Introduction to the study of the law of the Constitution (10th ed, 1959)
Hayek, F.A. The Road to Serfdom (1st ed, 1944)
Hutchinson, A and Monahan, P. The Rule of Law: Ideal or Ideology (1st ed, 1987)
Jowell, J. “The Rule of Law Today”, in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (3rd ed, 1994)
Kinley, D. Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law, 1994, 22(1) Federal Law Review, 194
Mason, K. T”he Rule of Law”, in P.D. Finn (ed), Essays on Law and Government, Volume 1: Principles and Values (1995)
Walker, G. The Rule of Law (1st ed, 1988)
A v. Hayden (1984), 156 CLR 532
Australian Communist Party v. The Commonwealth (1951), 83 CLR 1
Chu Kheng Lim v. Minister for Immigration (1992), 176 CLR 1
Lange v. Australian Broadcasting Corporation (1997), 145 ALR 96 at 109