A ‘free society’ is a system of interaction between humans wherein every person can participate in a civilised manner and without discrimination. In Australia, the Commonwealth of Australia Constitution Act 1900 (Imp) is the primary source by which society operates as an essentially free society. This paper seeks to establish that the functioning of such a society is dependent upon the existence of a legal framework supporting the rule of law, which is ultimately, an ideology.
Analogically, the circumstances in which the application of the rule of law has either created a free society or undermined it will be explored and its purposes thus inferred to construct a definition of the ‘rule of law’ reflecting contemporary standards. However, Dicey’s classical definition will be used as a guide to understanding the current position of the rule of law. Briefly, Dicey’s definition comprises of three elements: ‘absolute supremacy’ of law over arbitrary power, ‘equality before the law’ and the constitution is ‘the consequence of the rights of individuals.’
Towards a Definition: What is the Purpose of the Rule of Law?
* Presence of the Rule of Law
Dicey’s definition was formulated in the context of British law which lacked a written constitution, but its significance is evident in Australian law. Firstly, the third element of Dicey’s definition is apparent in the preamble of the Constitution, ‘Whereas the people... have agreed to unite in one indissoluble Federal Commonwealth...’ Although the Preamble holds no legal significance, it is an indication of the legislative intention to express the Constitution is the product of the rights of the Australian people. Also, Clause 5 enunciates the second principle and therefore, since the exercise of arbitrary power is not possible where every person is subject to the same laws, the first principle is established. Generally, these provisions draw on the idea of limited government, through a distribution of power, exemplified in the structure of the Constitution setting out the three arms of government under separate chapters.
Subsequently, the need for a separation of powers doctrine is consistent with the rule of law as an underlying assumption of the Constitution and according to Zywicki, as an inherent principle. In particularly, the High Court points out the importance of judicial independence as a manifestation of the rule of law to preventing abuse of power by Commonwealth officers: ‘pursuant to s75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.’ Since judicial independence is a derivative of the rule of law, the rule of law is inherent to a free society and not consequent to social order.
The case of Coco v The Queen further illustrates the effectiveness of judicial independence in protecting rights. The defendant was convicted for attempted bribery of Commonwealth police on evidence from a secretly installed listening device. Notwithstanding the act was authorised under statute law, the Court overturned the conviction because the ‘Courts should not impute to the legislature an intention to interfere with fundamental rights.’ By rejecting the legitimacy of the statute, individuals’ right to exclude one from their own premises and right to privacy were upheld.
To a limited extent, individuals, too, have influence over the government through possessing the right to vote. This distribution of power to individuals exposes two purposes of the rule of law: certainty of one’s equality status in society and the restriction of arbitrary power. Such an affirmation of the rule of law conforms to the notion of a society free from excessive arbitrary power.
* Absence of the Rule of Law
Since Dicey’s development of the classical rule of law, there have been many circumstances where the rule of law is corroded. For example, whilst judicial independence may act as a...