In
my opinion Justice is an extra textual concept;
one created, not by legislation, but by those who
judge. Decisions like Mabo, recognize that "International
conventions which have been ratified by Australia
and many other countries are a source of identifiable
values of an enduring kind."18 Therefore
the traditional rule of law is informed by both
the common law and International. It may even be
said that enduring international values support
fundamental rights implied in the doctrine, and
that without jurisprudence, there, perhaps, could
be no justice.
What is better for the Doctrine? Active or passive
judges? In Australia we seem to have 3 kinds.
1.
Those that adore and profess to the inflexible rule
of law, i.e. Dawson and Brennan JJ: "this court
is not free to adopt rules that accord with contemporary
notions of justice and human rights if their adoption
would fracture the skeleton of principle which gives
the body of our law its shape and internal consistency"19
( In other words, law as a principle is more important
than the rights of those it rules).
2. Those that profess to the rule of law, the supremacy
of parliament, yet make law, in some part refusing
to admit doing so, in order to keep the government
in their checks and balances, for example Gleeson
J: "What judges are doing has not changed. The change
that has taken place is in context in which they
are doing it. The legitimacy of judicial law'making
is questioned in an age when the public equate legitimacy
with democratic election and direct accountability."20
3.
Those that are open about their law making function,
for example Kirby J: "Judges...have been making
the law for 700 years."21
In
some areas of constitutional jurisprudence, the
rule of law doctrine is a vouch for parliamentary
sovereignty, in other areas parliamentary supremacy
is oft seen as having a negative affect on the ideals
of democracy: "whatever the wishes of a majority,
they ought not be given effect at the expense of
a minority, large or small... yet...We do not attend
to it in our Constitution, we do not discuss it
on any intellectual level that commands respect,
and yet there is no question more crucially important
for the health of democratic society."22
An active judge is aware of the social ramifications
of particular legislation constitutionally interpreted.
A passive judge, accepts that the view presented
legislatively by the parliament is therefore the
will of the people, not excluding that 'the people'
are simply the majority. Such judicial tension,
between active and passive jurisprudence, can be
seen in the Kirby J's judgement in Katinyeri. In
favour of a progressive reading Kirby J said: "Each
generation reads the Constitution in the light of
accumulated experience. Each finds in the sparse
words ideas and applications that earlier generations
would not have imagined simply because circumstances,
experience and common knowledge did not then require
it. Among the circumstances which inevitably affect
any contemporary perception of the words of the
constitutional text are the changing values of the
Australian community itself."23
In a question posed to Murray Gleeson CJ, phrased
"What does the Australian Constitution do for the
Australian people?"24, I found it interesting
to note Gleeson CJ left the mention of civil rights
until last. Pre civil rights come the interests
of lawyers and politicians and thinkers who enjoy
employment from the wide and varied legislative
machine that has become the Federal nation state.
What is a constitution if not for but the people?
The people are sovereign; it is the duty of the
executive to listen, and counsel, but not to rule.
Why then would a now CJ of the HC leave our rights
until last mention? In fact, he doesn't even end
with the mention of the people but says the constitution
governs the relationship between various governments
with which it deals and the people who are affected
by it. In the view of Gleeson CJ, it seems the constitution
is in the whole to do with governance, in this way
it could be said that the constitution affects the
people, though for those that want to change it,
and it seems there are and have been many, in the
words of Robert Menzies it is "one of the labours
of Hercules".25
This is good and bad. Frustrated Justices must first
be brought relevant and important cases before they
can have a say , which depending on the whereabouts
of those who appointed them, may throw themselves
into a lumbering minority. There was no such minority
in Mabo. If one was to sympathize with
the aboriginal people of this 'nation' then one
could say that sovereignty does not exist. The ideal
that sovereignty landed with the invading English
forces in the late 1770's could be merely an old
time fallacy developed to justify the invasion of
this land:
If there is no sovereignty, then there cannot possibly
be the rule of law.
If there is no rule of law, then there is little
justified governance, least of that, governance
which should take its lovely nation and go and fight
other nations in a grapple for natural resources,
angering its newest neighbour (East Timor), after
getting to know them for a little while, even freeing
them from an Australian made ' Suharto endorsed
murderous cage, befriending them, and then letting
them know that everything, when you are free, comes
at quite a distorted price: " the meagre "concessions"
contained in the Timor Sea Treaty ultimately represent
the amount calculated by the Australian government
to be the minimum required for the maintenance of
a semblance of stability and the suppression of
social unrest in the poverty stricken nation."26
Idealism should change the constitution, at least
for it to enshrine, in the explicit written word,
the rights of the Australian people, and what they
can expect from governance. Justice Murray Gleeson
could have mentioned, that because these rights
are not written in the constitution, the constitution
is both the vessel and challenge of civil liberties.
Many cycles of governance bring people into power
who try eventually quite hard to take rights away.
Cases like Kable27, in which a state
parliament is trying to keep a criminal who has
served out all his sentence, in jail extensively,
are cases in which a High Court must decide about
the nature of fundamental rights. One of the more
socially conservative amongst them, Brennan CJ,
said: "a purported law has never been held to lack
the character of a law simply because it affects
the liberty or property of only a single individual".28
If everyone is equal before the law, how can laws
be made for individuals? Should not laws be made
for everyone? Can a powerfully supreme power then
make laws for its members that only apply to them?
Laws that naturally exclude anyone else? I find
it strange that Dawson J, also in dissent in Kable,
claims that any idea that the Parliament is not
sovereign was abolished in 1688.29 I
find it stranger still that he can exhibit such
displeasure at the remarks of Cooke J in the New
Zealand Court of Appeal; Cooke J said " some common
law rights may go so deep that even Parliament cannot
be accepted by the courts to have destroyed them".
Dawson J would clearly feel no remorse dismissing
an appeal against the legislation that would have
all brown eyed babies killed; blue eyed babies might
mean a national genocide. Cooke J's remarks were
in 1984, and in his judgement directly after, Dawson
J has commented "As this Court observed, that view
was rejected by Lord Reid in Pickin v British
Railways Board"30. This case took
place in 1974. How can a court observe a Lord rejecting
comments that will not be made for another 10 years?
Perhaps the High Court JJ's are of such great intellect
that they have finally reinvented the ancient art
of time travel.
My
answer to Dawson J is that absolute parliamentary
supremacy (and a gullible voting stock) took Hitler
to power on the back of a booming economy. The German
people believed that his physical intrusions into
sovereign nations were of a friendly nature. An
ambitious and conservative leader was voted in by
a scared and misinformed public, who were eventually
taken to war, at great price for "the homeland".
What is the final stop of the legislature if not
the High Court? Problems that legislation causes
in the community means that the complaints are taken
to the Highest Court in the homeland.31
If there is a significant problem with the legislation,
it is up to the High Court to strike it down as
invalid, especially if the legislation is interfering
with "fundamental rights" of the Australian citizen,
though even these rights, the most conservative
within the system would disallow. An extremely right
wing parliament might otherwise think that the poorest
and most simple deserve nothing less than a life
of sweet servitude to their economic masters. If
you do not have money, you do not have freedom to
develop32, and, if legal dissenters are
to believed, you do not have fundamental rights.
It could be said, in this case, that parliament
made law is a "mere technique for the conquest and
maintenance of power."33 and that "by
its coercive character law can be distinguished
from custom and morality."34 In an extreme
political situation, which can arise under and because
of the doctrine of the rule of law, "the annihilation
of the rights to personal, political and social
freedom is justified [by Fascism], which asserts
that all these fundamental rights are the mere offspring
of capitalism."35
In
Australia it is undecided, because of the lack of
explicit rights and freedoms in the constitution,
whether such fundamental rights even exist, before
they can be taken away. Although the outcomes of
cases such as Langue v ABC, and Australian Communist
Part v The Commonwealth, indicate that the court
is willing to legislate in favour of basic rights,
the freedoms are hardly absolute but limited to
what is necessary for the effective operation of
that system of representative government provided
for by the Constitution.. Even then there are hints
that the Constitution may imply even more rights
than it at first appears.
Such judicial favours and leanings become especially
precarious in times of war, when rights are often
curtailed, and liberties taken away, for the sake
of a 'safe' country, or cynically, the legislation
is put in place to keep governments safely in their
seats of power. During such time it is "well established
that the executive power may be used to authorise
legislation imposing sanctions for seditious or
subversive conduct".36 One would hope,
that even in times of war, rights such as those
expressed in the judgements of Theophanous v
The Herald and Weekly Times 37,
carrying on from the decisions in "Nationwide News
and Australian Capital Television [which] established
that the implied freedom is a restriction on legislative
and executive power",38 are not over
ruled. If this was the case then the supremacy of
parliament could hardly be said to reflect the will
of the people, and the reflection of the rule of
law by Australian constitutional jurisprudence could
become less legalistic than politically influenced
and/ or jaded. It was also said in Davis,
that "the legislative powers of the Commonwealth
extend beyond the specific powers conferred upon
the Parliament by the Constitution and included
such powers as may be deduced from the establishment
and nature of the Commonwealth as a polity."39
It is unclear whether the rule of law doctrine here,
extends only to our government or to the wishes
of the majority involved in the "common ' wealth."
Wealth, it seems, may influence both arms more radically
than the rights of the people, for it is those with
wealth that seem to be in control. And war is essential
to the making and keeping of riches.
A fine example of wartime or pre war legislation,
if one is intellectually reactive to a government
which tries to legislate fundamental rights away,
was the raft of 5 bills named the 'Counter Terrorism
Laws', which the Howard government first introduced
in 2002.40 The Bills were designed to
allow police and intelligence agencies to detain
people without charge or legal advice, redefined
terrorism and treason, and could still quite possibly
outlaw many forms of political process and industrial
action. A direct correlation may possibly be inferred
to the executive powers in Germany in the 1930's.
In such a time, it is encouraging to have a strong,
as in principled and socially aware, High Court
judiciary. If such legislation is brought before
the court to be interpreted one would hope that
a present justice may hold the same view of the
rule of law doctrine as Dixon J did in the 1950's
when he, warning of unfettered executive power,
said: "history and not only ancient history, shows
that in countries where democratic institutions
have been unconstitutionally superseded, it has
been done not seldom by those holding the executive
power. Forms of government may need protection from
dangers likely to arise from within the institutions
to be protected."41 It is a feature of
the rule of law, that the high court, as the balance
of the model, can strike down offensive legislation
"if its scope or application potentially exceeds
the Constitution.42
The already plenary power of the Commonwealth seems
to increase in such wartime situations. I am curious
to see whether such powers can be justified when
our nation declares war against a sovereign nation,
as well as they have been justified when the country
has been attacked; the 2 situations essentially
represent opposite spectrums of the rule of law.
Under one rule there is trust that the government
will make sound decisions in the name of defence
under s51 (vi); under the other extreme rule of
law, when the parliament has declared an initial
offensive, there is hardly a sub section in s 51
which outlines a power to make laws 'on the attack',
or as our present leader would say, 'pre'emptive
strike.'
Is the constitution merely a document that keeps
politicians and legal practitioners, in particular
the High Court judiciary, employed? "It excluded
the Aboriginal people, it excluded the Chinese and
other non'indigenous people, it excluded the Pacific
Islanders from the debates, but it grew out of the
will of the majority of the people on the continent
at the time."43 What was the majority
of the people at the time? Who created the constitution?
" What is our 'native land'? It is a cherished and
fading illusion...Excessive patriotism...is a narrowment...
of the mind and the arrogance of the white race,
especially that of the British Empire".44
White men created a white man constitution, and
it could be suggested that it is the constitution
that has allowed Australia to increasingly become
a federal economy proclaiming economic rationalism
over a warm, organic social community.
It is possible Rose Scott would be turning in her
grave.45 But her view is clearly not
represented in the formal conventional debates of
the early and late 1890's. At the time women had
very little say. I believe it is therefore unfeasible
for a High Court Justice, and a very much respected
one at that, to say that the constitution grew out
the will of the majority when "84 per cent of the
people, including all women outside South Australia
and all indigenous Australians, could not or did
not vote in the federation referendums of the late
1890's."46 Under the constitution indigenous
Australians did not even have the right to vote,
the mechanism of true citizenry, until 1967. The
original owners of this land, who were very much
in the majority when the English arrived, and who
were gradually killed off, had no legal say, although
they were still sent to foreign wars, under a constitution
which supposedly represents the bastion of representative
democracy.
Though a change to the system under our constitution
is unlikely, and hardly within the powers of a High
Court judge, it is interesting to play with the
notion that Representative democracy is having a
single seat for every separate interest, minor or
major, and sitting them in a great hall, where all
year round issues are debated and solutions for
old and new problems are found and sorted. Representative
democracy, and the rule of law, could be said to
be least served by re'employing a large group of
middle and upper class white men and women, quaffed
by party politics and influenced by large sums of
corporate cash; or is this covered by section 51,
s 51 (i) (Trade), (iv) (Borrowing money), (xx),
(xxvi), (xxxix), the incidental powers?
Thankfully the same High Court Justice believes
that it is the advantages of judge made law that
keep a legislature in check if they veer outside
of his progressive constitutional readings. His
Justice does not only believe in the concrete nature
of the past, but also believes in keeping the Nation's
supreme constitutional instrument "unfrozen"47.
Though not distrustful of the document, "Like every
product of fallible human beings, it may be improved,
as no doubt it will.48" He does not believe,
as does Gleeson J, that majority rule democracy
is in any way representative, and is thankful for
the High Court and Chapter III. Kirby J believes
" Weaknesses in the electoral system, disinterest
in politics, the nature of political parties, the
proliferation of specific interest groups... and
structural features of legislative institutions
all undermine the assertion that legislative acts
are the primary expression of the majority's will.";49
it would seem Kirby J's idea of representation,
and therefore the foundation of parliamentary supremacy,
is on par with the notion mentioned earlier by Viscount
Radcliffe.
The rule of law doctrine is an often angry, yet
friendly pet of those involved in arguing and spelling
out the power granted them by the Constitution;
it is also the "fundamental principle of democratic
governance."50 It is a pet because it
can be used in many ways; politicians, lawyers and
judges all know it well. The doctrine can be reflected
in the ways with which parliament claims supremacy,
through the faith of the voting public. Both reflections,
the ugly and the encouraging, are reflected in Australian
constitutional jurisprudence, depending on the nature
and beliefs of the justices, for law is as objective,
as everyone is equal before the law. If law was
so totally objective, then each High Court justice
would always be in agreement; there would always
be few dissenters, as a premium science only allows
for one cure. Perhaps law is objective, and the
justices on the bench subjective; for it is through
their minds that the law must flow. Dicey coined
the "idea that individual rights have their foundation
in the 'ordinary law of the land' from which constitutional
law flows".51 But it is from the High
Court bench from which constitutional law flows.
And the river is often winding, and rarely in flood.
The rule of law doctrine allows for the existence
of parliamentary supremacy as much as it allows
for judge made law. It is both fallacy and fetter.
Australian Constitutional jurisprudence is aware
of this, and this is why more and more judges are
admitting to making law. The Australian parliament
still seems to be kept in check by the High Court,
but it depends on who is appointed and who is in
power. The next few years will be a challenge for
the rule of law doctrine; either it is with the
people or against us.
1
Dicey, A V Introduction to the Law of the Constitution
9th ed Macmillan, London, 1945, pp 39 ' 40
2 Lord Hailsham, 1983, as quoted in Campbell
E, The Australian Judiciary, Cambridge
University Press, 2001, printed in UTS Legal Process
and History notes, Autumn 2004
3 Neumann Franz, The Rule of Law,
Berg Publishers, 1986, pg 4
4 Dickson CJ, Canada, quoted in Campbell
E, The Australian Judiciary, Cambridge
University Press, 2001, printed in UTS Legal Process
and History notes, Autumn 2004
5 Re Kirby: ex parte Boilermakers'
Society of Australia (1956) 94 CLR 254 at 275,
as quoted in Coper, M & Williams, G, Power,
Parliament and the People, Federation Press,
Sydney, 1997, pg 72
6 Kirby J, The Australian Constitution
' A Centenary Assessment (1997), as printed
in the Monash University Review [Vol 23,
No 2'97],
7 The Hon Sir Anthony Mason, "The Judge
as Law Maker." (1996), 3 JCULR 1, pg 10
8 Kirby J, The Australian Constitution
' A Centenary Assessment (1997), as cited in
the Monash University Review [Vol 23, No
2'97], pg 234.
9Polites v The Commonwealth
(1945) 70 CLR 60
10Commonwealth v Tasmania (1983)
158 CLR 1
11Dawson J, Richardson v Forestry
Commission (1988) 164 CLR at 321, as cited
in Hanks P, Kayzer P, & Clark, J, Australian
Constitutional Law, 7th ed, LexisNexis Butterworths,
Australia, 2004, pg 170
12 Commonwealth v Tasmania (1983)
158 CLR 1, Hanks P, Kayzer P, & Clark, J,
Australian Constitutional Law, 7th ed, LexisNexis
Butterworths, Australia, 2004, pg 160
13 Australian Communist Part v Commonwealth
(1951) 83 CLR 1? at 257'258, as cited in Hanks P,
Kayzer P, & Clark, J, Australian Constitutional
Law, 7th ed, LexisNexis Butterworths, Australia,
2004, pg 159
14The Hon Sir Anthony Mason, "The Judge
as Law Maker." (1996), 3 JCULR 1, pg 12, printed
in printed in UTS Legal Process and History notes,
Autumn 2004
15 The Hon Sir Anthony Mason, "The
Judge as Law Maker." (1996), 3 JCULR 1, pg
12, as printed in printed in UTS Legal Process and
History notes, Autumn 2004
16per Mason J, Commonwealth v Tasmania
(1983) 158 CLR at 125
17 The Hon A M Gleeson CJ, in a speech
to The Sydney Institute, "Legal Oil and Political
Vinegar." (16/03/1999), pg 3
18 The Hon Sir Anthony Mason, "The
Judge as Law Maker." (1996), 3 JCULR 1, pg
13
19 per Brennan J, Mabo v Queensland
(No 2) (1992) 175 CLR 1, as printed in UTS Legal
Process and History supplementary materials, Autumn
2004, pg 104
20 The Hon A M Gleeson CJ, in a speech
to The Sydney Institute, "Legal Oil and Political
Vinegar." (16/03/1999), pg 1
21 Sir Anthony Mason, Foreword, in Parkinson
P, The Principles of Equity, LBC, Sydney,
1996, v at vi, as quoted by Kirby J, What is
it really like to be a Justice of the High Court
of Australia?", 19 Sydney law Review 514, (1997),
pg 525
22 Viscount Radcliffe, as quoted by Gleeson
J, 16th March, Speech to Sydney Institute, Legal
Oil and Political Vinegar, pg 4
23 Katinyeri v Commonwealth,
[1998] 195 CLR at 400
24Innes, J ed, Millenium Dilemma,
2nd ed, University of Wollongong, 2000, page 113
25 Botsman, P, The Great Constitutional
Swindle, Pluto Press Australia Limited, Annandale,
NSW, 2000, p xi
26 Kelly, R, Australian government
blackmails East Timor into ratifying oil and gas
deal, 12th March 2003, World Socialist Web
Site, accessed 13/10/04
27 Kable v DPP (1996) 189 CLR
51
28 per Brennan CJ, Kable v DPP (1996)
189 CLR at 64
29 Dawson J, Kable v DPP (1996) 189 CLR
at 73
30 Dawson J, Kable v DPP (1996) 189 CLR
at 73
31 John Howard's election night victory
speech, 9th October, as seen on the ABC
32 see Leiboff, M and Thomas, M Legal
Theories in Principle, Lawbook Co, 2004, Chapter
8
33 Neumann Franz, The Rule of Law, Berg
Publishers, 1986, pg 6
34 Neumann Franz, The Rule of Law, Berg
Publishers, 1986, pg 11
35 Neumann Franz, The Rule of Law, Berg
Publishers, 1986, pg 37
36 Burns v Ransley, (1949) 79 CLR 101
at 116, as cited in Hanks P, Kayzer P, & Clark,
J, Australian Constitutional Law, 7th ed,
LexisNexis Butterworths, Australia, 2004, pg 478
37 Theophanous v The Herald and Weekly
times limited and another F.C. 94/041 Constitutional
Law (Cth) ' Defamation (1994) 182 CLR 104 (1994)
Aust Torts Reports 81 ' 297
38 Theophanous v The Herald and
Weekly times limited and another F.C. 94/041 Constitutional
Law (Cth) ' Defamation (1994) 182 CLR 104 (1994)
Aust Torts Reports 81 ' 297, at 142 per Mason CJ
39 per Mason CJ, Dean and Gaudron JJ,
Davis v Commonwealth, (1988) 166 CLR 79 at 92
40 Head, M 'Counter'Terrorism' Laws:
A Threat to Political Freedom, Civil Liberties
and Constitutional Rights, in Melbourne University
Law Review, [2002] MULR 34
41 Dixon J, Communist Party Case,
(1951) 83 CLR at 187, as cited in Head, M 'Counter'Terrorism'
Laws: A Threat to Political Freedom, Civil Liberties
and Constitutional Rights, in Melbourne University
Law Review, [2002] MULR 34
42 Brennan and Toohey JJ, Re Tracey;
Ex parte Ryan, (1989) 166 CLR at 568, as quoted
in Head, M 'Counter'Terrorism' Laws: A Threat
to Political Freedom, Civil Liberties and Constitutional
Rights, in Melbourne University Law Review,
[2002] MULR 34
43 Kirby J,, in an interview published
in Innes, J, Millenium Dilemma, 2nd ed,
University of Wollongong, 2000, pg 143
44 Rose Scott to Dowell O'Reilly, 'Sunday'
[circa 1900], O'Reilly Family Papers, Mitchell Library
Botsman, P, The Great Constitutional Swindle,
Pluto Press Australia Limited, Annandale, NSW, 2000,
Chpt II intro
45 Botsman, P, The Great Constitutional
Swindle, Pluto Press Australia Limited, Annandale,
NSW, 2000, p 7
46 Botsman, P, The Great Constitutional
Swindle, Pluto Press Australia Limited, Annandale,
NSW, 2000, p 3
47 Kirby J, The Australian Constitution
' A Centenary Assessment (1997), as published
in the Monash University Review [Vol 23, No 2'97]
48 Kirby J, The Australian Constitution
' A Centenary Assessment (1997), as printed in the
Monash University
49
Kirby J, The Strengths of the Weakest
Arm, Keynote Address, Australian Bar Association
Conference, 2nd July 2004
50 Lindsay K, and The Hon Mr Justice
Young, federal constitutional law, Lawbook
Co, Sydney, 2003, pg 14
51 Dicey, A, V, An Introduction to
the Study of the Law of the Constitution, as
quoted in Lindsay K, and The Hon Mr Justice Young,
federal constitutional law, Lawbook Co, Sydney,
2003, pg 14
A
good example of this facet of the rule of law doctrine
can be seen in the outcome of Commonwealth v Tasmania.10
An expansionist reading of the External Affairs power,
a power that Dawson J, pre'Tasmania dams, had warned
had " the potential to obliterate the division of
legislative power otherwise affected by s 51";11
is taken by the bench to strike down as invalid, state
legislation which would have a dam constructed in
an environmental area protected under Article 6 of
the Convention for the Protection of the World Cultural
and Natural Heritage.12 Such constitutional
jurisprudence reflects a rule of law doctrine, which
not only sets out to include international prerogatives
as an essential buffer against mala fides
parliamentary will, but also reinforces the idea that
the Federal Government is essentially well above the
state legislatures in the model, as one would logically
induce from s 109 of the Constitution. In the Tasmanian
Dams case it was up to the High Court bench to decide
whether state or federal legislation could be invalid
in regards to International obligations; another tool
with which to keep parliamentary power, in this case
state power, rational and appropriate. 
