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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 for equality.

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 principle.

    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 action.

    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 riot.

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?

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