Thursday, September 4, 2014

The Rule of Law

In Australia, we talk proudly of living under ‘the rule of law’, praise other countries for doing so, and condemn others for not doing so. So what is this ‘rule of law’?

The rule of law is the legal principle that decisions within a nation should be determined according to laws, statutes and legislation, rather than according to the whims of individual members of the government. All well and good. There are, however, a couple of issues that we need to keep in mind when extolling the virtues of the rule of law.

First of all, most politicians, when they use the term, have in mind a fairly specific approach to law: a western, democratic view of law, which takes into consideration such things as ‘universal’ human rights. The fact that a nation lives under the rule of law is not, in itself, any moral vindication of that country. Our Australian leaders would not, for example, regard very highly a nation living under Sharia Law. Australian leaders would (perhaps with justification) criticise a nation whose laws ignored the rights of minorities. These nations may be living under the rule of law, but they are not laws that we regard very highly.

The point is that ‘law’ is not the final arbiter here. There is something above and beyond law which (we seem to believe) gives us the right to pronounce a law good or bad. Law can also be used to strip people of rights which we might otherwise regard as fundamental. Among these are laws regarding national security.

Like many nations, since 2001 Australia has made, and continues to make, changes to laws concerning national security. These often give additional powers to police and to security agencies. It is always difficult to argue against these laws, and anyone who does so is accused of not taking seriously the threat to national security, or of being a ‘bleeding heart liberal’. The odd thing about these laws is that they often gain the most support from those who talk loudest about individual liberty and small government. The problem is that these laws sometimes involve the sacrifice of certain freedoms and rights. Of course, compromise is always necessary in society. These laws could also be used in situations for which they were not originally intended; but, by and large, we in the West seem to trust our governments, police and security forces not to abuse them. Perhaps we are a little naïve.

There are laws in place since 2010 in Australia which include in the definition of national security any serious threat to Australia’s borders or national integrity. This sounds fair enough. Clearly an ‘invasion’ is a threat to national security. Recently, however, ASIO (Australia’s main security agency) identified an Australian citizen, currently living overseas, as a ‘people smuggler’. The 2010 legislation was used to revoke this person’s passport. Now, I don’t know if this person is a people smuggler or not, but two things concern me about this decision.

First, is people smuggling really a matter of national security? It is a crime, certainly. But does it involve national security? A grey area at best.

Second, by invoking this law, the government is, in fact, able to undermine the ‘rule of law’. If this person is a people smuggler he [or she] can be charged with a crime and extradition procedures can begin. The person can face trial. He or she can defend themselves against the charges—which would seem to be a fundamental right under our particular rule of law—and justice can be done, and be seen to be done.

Invoking national security legislation bypasses the rule of law (while using law to do so). It’s also probably quicker, easier and cheaper.

I am not here to defend an alleged people smuggler. But I am here to uphold their right under the rule of law to have the opportunity to defend themselves against charges, properly presented before a court of law.

We need to be very wary of this slippery slope. And we are very foolish if we think there are not those within our society who will use such laws for their own ends, and to undermine the very rule of law of which they claim to be so proud.


  1. And International Law - I don't understand how we are signatories to UN conventions eg refugees and ignore them eg Israel etc etc
    Can only hope there are professionals like Julian Burnside who can shine a light into the politicians hypocracy.

  2. A very interesting post, Philip. Like you, I feel that 'tampering' with national laws (often for political gain) is a minefield, and it cannot lead to anything positive.