No Ticket, No Start---No More!
In The Shadow of the Law
Geoffrey de Q.Walker
One of the notable achievements of this Society has
been to document and publicise a sequence of occurrences
that attest to the existence in Australia of a strange
region where some fundamental principles of law and
ethics are reversed. This is a region where the law
is binding on the weak but not on the strong, where
the law exalts rather than discourages conflict and
confrontation, where the decision of a tribunal does
not settle a dispute but merely provides something
else to dispute about, where the person most affected
by the decision has no necessary right to be heard
and where freedom under law is treated almost as superstition.
The Gorman case, the Laidley case, Newport Power Station,
the grain handling industry, the Sweeney and Nimmo
affair, the Kafkaesque perspectives revealed in the
Hancock Report---and many other alarming or bizarre
events or utterances have been subjected, through the
publications of this Society, to the searching and
cleansing light of day.
Admittedly, none of these things was really secret.
Each one had been briefly reported in the media, but
there was no-one to interpret them or link them together.
The only commentary came from the initiates of this
different legal world who tended to veil the significance
of these events by describing them in the terminology
and rhetoric of law, but given those terms and those
forms of argument a different meaning from that which
they ordinarily bear. One is reminded here of the speculations
of modern physics, with its anti-matter, its parallel
universes and its reversals of causation. For in the
shadow of our legal order, as it were, there has grown
up an anti-legal system, administering a body of anti-law.
What the Society has done is wrench apart the dusty
curtains and let in fresh air and sunlight so that
everyone can see what has really been going on for
all these years. As far as I am aware, that is all
he Society has done, but it is a great deal. The initiates
of this parallel legal order, or more particularly
their supporters in politics and the media, were the
first to understand what mere daylight could do to
their domain. They unleashed an avalanche of invective
upon the Society and its members and did not shrink
from accusing them of treason.
But the Society stood firm and held the curtains wide
open. Soon the sunlight did its work and it became
possible to discuss this legal twilight zone in the
same terms as those applied to the normal legal order.
Although it is even now still mainly talk, talk can
be powerful as we are now seeing in the Soviet Union.
Talk can unleash forces that can travel further than
anyone would foresee. Besides, there are now events
and milestones of a different kind that show that a
new principle, or rather a newly rediscovered one,
is starting to work itself out on the plane of real
events. Robe River, Mudginberri and Dollar Sweets
are a few of the names one can read on these milestones.
Bit by bit, people have begun to realise what was
really going on in this parallel legal universe. Thanks
to the work of this Society, it has now become possible
to argue, without fear for one's safety, that the same
rules should apply in the parallel reality as apply
in the mainstream, legal order. It is all a matter
of equality, and Australians, having some of the world's
strongest democratic traditions, have a strong feeling
Now equality, however one defines it, is a powerful
idea, but it also plays an important part in legal
and constitutional theory. As Lord Devlin has pointed
out, 'A sense of injustice is more easily aroused
by the apprehension of unequal treatment than by anything
else'. And, in turn, 'a sense of injustice is the
most potent breeder of discord yet invented'. Legal
equality in this context primarily means equal treatment
for people in equal circumstances. It can also work
more subtly than that, according to the great Scottish
judge Lord Mansfield (who died in 1795). One night
after dinner, according to tradition, he told a meeting
of Scottish distillers that as far as the law was concerned,
the good whiskey was no different from water. The law
treated them the same. Hearing murmurs of protest from
his audience, he went on, 'Yes, indeed it is. For it
is as much an offence against the law to make the one
in private as it is to make the other in public'.
The idea of equality before the law forms part of
a broader doctrine of constitutional law, the doctrine
of the rule of law. This doctrine is itself in some
danger of extinction and it is for that reason that
anyone who plays an active part in the affairs of society
should have an idea of what it means, for there are
many who would use this phrase, too, to mean its own
opposite. There are also a number of bona fide but
unsatisfactory definitions of it around, which although
they have their merits, can result in a rule of law
model that is unstable and easily undone.
Using all the materials I could find, ancient and
modern, from many different legal systems, I have endeavoured
to construct a model of the rule of law that will work
for all countries, for all social systems and for all
reasonably foreseeable futures. At the same time, I
believe it is a definition that will produce a model
sufficiently strong that it will not unravel under
the stresses that are likely to be placed upon it.
I might mention, therefore, the main ingredients of
the rule of law (I count 12 in all, but will not go
through them all), and see if they cast any light on
the parallel legal system I have described.
1. There must be substantive laws prohibiting private
violence and coercion such as to give the citizen protection
against general lawlessness and anarchy. The rule of
law must mean freedom from private lawlessness and
anarchy before it can mean anything at all. Obviously,
Australia has such a body of law.
2. The government must also be bound by substantive
law, not only by the Constitution, but as far as possible
by the same laws as those that bind the individual.
We should therefore come on guard whenever we find
governments giving themselves the power to do things
to people that people are prohibited from doing to
one another. Thus, article 327 of the French Penal
Code declares lawful homicides committed by government
authority. This provision was the one which gave immunity
under French law to the two French secret agents who
in 1985 sank the vessel Rainbow Warrior in Auckland
Harbour, in respect of the manslaughter of a photographer
who swam into the wreck to rescue his cameras. Article
327 did not, of course, affect the liability of the
two under New Zealand law.
3. Substantive law must be guided by the principle
of 'normativism'. This means that the law should be
certain in the sense that it is prospective, open and
clear, and relatively stable. It must have generality
of application in the sense that while laws should
be certain and specific about what they prohibit, they
should not particularise the persons to whom they apply.
The special laws deregistering the BLF infringed this
The equality principle is part of this requirement
of normativism. It is the main basis for protecting
the general interest against inroads by pressure groups
and other special interests. It is of course the failure
to respect this principle in industrial law, by singling
out the employer for disadvantageous treatment in the
original 1904 legislation, that even then made it clear
to the most farsighted minds what industrial arbitration
could eventually become.
4. There must be some mechanism for ensuring that the
law is, and remains, reasonably in accordance with
public opinion. Otherwise, there may be widespread
disrespect for law and pressures for violent change
may build up and find expression in arbitrary and lawless
One would expect in a country operating under a system
of representative democracy that this requirement could
be confidently said to be met. But here we have on
the contrary one of the most glaring gaps between reality
and the rule of law ideal. Such is the power of the
IR club as a lobby group that both major political
groupings have entrenched and reinforced a system that
commands only minority support among the population
at large. The Hancock Committee itself discovered (though
it was coy about disclosing the fact) that only some
28 per cent of the population conceded unions, in any
industry, the right to strike, and only 14 per cent
accepted the use of work bans. Recent surveys have
confirmed a trend that has become more and more apparent
over the last 20 years.
Recent polls show that 78 per cent of the population
believe that unions have too much power, and this must
include large numbers of union members themselves.
Remarkably, fully 53 per cent favour the abandonment
of the Arbitration Commission. Yet that same suggestion,
as we have seen, brings accusations of treason from
government ministers. Plainly, these and a multitude
of examples from other areas of law show that there
is a need for some means of enabling the people to
get the laws they want and to break through
the opposition of party machines and pressure groups.
The citizen-initiated referendum is probably the only
practicable way of doing this.
5. There must be institutions and procedures capable
of speedily and impartially enforcing the substantive
laws mentioned earlier, those that prohibit private
violence, coercion, general lawlessness and anarchy.
It is not necessary, incidentally, that all law should
be enforced all the time, and indeed to attempt to
do so would probably destroy the rule of law more quickly
than anything else.
One could give innumerable examples to support the
view that this requirement has not been uniformly observed
in the sphere of industrial law, especially until the
recent revival and development of the common law economic
torts. In the construction industry, failure to enforce
the ordinary law led to the BLF's becoming a state
within the state (as the BLF Commission of Inquiry
put it), an independent fiefdom that came to threaten
the power of governments themselves. It was this, not
the BLF"s lawbreaking as such, that led governments
to legislate against the BLF, but in so doing they
themselves infringed the rule of law.
6. An independent judiciary is an indispensable requirement
of the rule of law, indeed of all known methods of
controlling power. It implies freedom from interference
by the executive and the legislature, whether by way
of threats or by way of blandishments such as offering
the prospect of an exalted career. As the political
scientist, Ralf Dahrendorf points out, the whole power
of the law and courts lies in their independence.
Without it, they cease to serve any useful purpose.l
Inseparable from the privilege of independence is
the judiciary's corresponding obligation of impartiality.
The judge is given independence, with its accompanying
insulation from the ordinary processes of feedback
that affect other decision-makers, in order to enable
him to be fearlessly impartial, so that he will not
favour the ends of one party over those of another.
Any notion that a judge should have, or may properly
have, any kind of agenda for altering society is completely
inconsistent with the obligation of impartiality,
because sooner or later cases will come before the
judge that in one way or another raise the issues
on which he has private policy goals. If the law is
to be used to reform society, it is for the legislature
to do it, not the judiciary. The judicial role is not
so much aa commanding function as a helping one, with
an element of humility about it. The judge is assisting
the restoration of an independently working social
order to working condition by resolving a collision
between two citizens or groups. For a judge to use
this position in order to carry out a policy agenda
is a form of judicial corruption, involving as it does
the use of a power for which it was granted, which
was to do impartial justice according to the law.
This bears emphasising, because there are certain
high-profile judges who are fond of pointing out how
essential judicial independence is for the rule of
law, but who do not accept the concomitant duty of
impartiality in this sense. Some of these judges have
continued, while on the bench, to engage in public
advocacy of various causes in a way that suggests that
they are unlikely to be even-handed in their resolution
of disputes. Enthusiasm, as Lord Devlin has said,
is not and can never be a judicial virtue and a judge
must accept that his position, while it carries certain
privileges, also carries obligations that are not imposed
on other people.
Conversely, the impartiality of some industrial judges
has sometimes been treated as a form of misconduct,
as can be seen from the cases of Justices Sweeney and
Nimmo, who were excluded from the Full Bench after
a 1965 decision in which they refused a basic wage
rise on the grounds of the economy's capacity to pay.
Also linked with the idea of impartiality is the proposition
that the courts must apply what are called the rules
of natural justice. These rules are, first, that the
judge must not be judge in his own cause. That rule
has seldom been infringed in Australia, until the advent
of the modern crusading media judge who has an agenda
to carry out. He may not have a financial interest
in the case, but he does have a personal ideological
interest in a particular outcome. The second is that
he must hear both parties and give them an equal opportunity
to present their case. We all know how that rule fared
under industrial law in the Laidley and Gorman cases.
All these principles are interrelated. A breach of
one of them may sooner or later lead to breaches of
the other. The alleged breaches of the duty of impartiality
referred to in a recent cause celebre led to
the government's infringement of judicial independence
when it established the new tribunal and did not reappoint
the member in question. The failure of governments
to enforce the ordinary laws against violence and coercion
ultimately led to a breach of the requirement of generality
in law-making, when federal and state parliaments passed
legislation specifically targeting the BLF.
Two main conclusions can be drawn from this. The first
is that the structure and operation of law in the industrial
arbitration area has infringed the principles of the
rule of law in several different and important ways.
It is hardly surprising, therefore, that it has produced
the consequences so well detailed in the publications
of the Society. The rule of law is a device for maintaining
a flexible but strong hold on the exercise of power
in society. When it ceases to be effective, power runs
The other conclusion is that one cannot pick and choose
among the ingredients of the rule of law. We must observe
them all. It is no use espousing judicial independence
unless we also insist on the duty of judicial impartiality.
Again, if we neglect equal enforcement of the laws
against violence and coercion, we may sooner or later
be driven into breaking other rule of law principles
such as normativism. The rule of law is inseverable
and that means that we will have to accept its dictates
even when they are inconvenient. But if we wish to
maintain the conditions for civilised existence, the
conditions that are protected by th rule of law, that
is a price well worth paying.
Why HR Nicholls?