Ausbuy

The Rule of Law

July 18th, 2008

Life in Australia is governed by the rule of law - or is it? Before we can answer that question we must consider the purpose of laws, how they are made and how they are applied. Let us look at the various aspects as follows.

Purpose of Laws. These can be summarised as follows:

• Property Laws. Early societies were on communal ownership but, as these societies evolved, individual ownership was recognised as was property designated as communal - e.g. the village green. Initially the people who owned the property used it but over time a secondary right of tenancy was recognised.
• Right of the State. Since the properties referred to above could only be recognised and protected by group action, the ruling power (State) assumed or was given authority to organise life within that group.
• Right of the Individual. Over the years rights given to the State were corrupted and enabled the State and whoever controlled power to unfairly control the lives of individuals forming part of the group. An example of this was the feudal system which grew up in England after the Norman Conquest. This gave ownership and control in a direct line from the King, passing through the nobility but excluded the people who actually worked the land. Gradually new rights were gained by individuals. In some cases these rights were codified in a document such as the English Magna Carta or formed part of a constitution, as in the USA.
• International Law. This was a body of laws designed to provide a dispute resolution procedure that did not involve going to war. Initially this was done through the League of Nations which in turn was succeeded by the United Nations. We now have a system of bilateral treaties which govern relationships between individual states. This is intended to further develop relationships on an exclusive basis conferring rights not covered by international conventions and trade laws. However the problem with International Law is that there are no readily available means of enforcement of these laws. This tends to favour the large powerful countries that would probably get the same results without International Law. However it provides a debating centre and a very good living for specialists in the field.

Over the years life and law became more complicated. Countries like England appointed travelling judges to consider the legal position of parties in dispute. The average person did not possess the legal training or skill to represent themselves before a judge and out of this need grew the legal profession. In recent times lives and commerce became so complex that laws multiplied. Many of them were badly drafted and others became outdated because of changing circumstances. Various rights conflicted with each other and a better educated public, aware of their legal rights, increasingly looked to the court for settlement of disputes. The judiciary became more assertive in giving increased rights to individuals in disputes with the State.

As science advanced the disputes became even more complex and judges and jury were increasingly called upon to adjudicate on issues where the law was not clear and the issue was beyond their understanding. Increasingly they were forced to turn to the implied rights contained in common law. This in its turn led to a decision based on a personal belief system of individuals. Over the years this exercise of personal conscience (prejudice?) has led to judgments which on the surface do not conform to the laws of Australia. These can and often are overturned by the High Court but there are limits to the number of cases which can be thus treated.

The question of jurisdiction has also arisen. We recently saw the ludicrous situation of an Australian judge hearing a case against Japanese whaling interests in an area where Australia has no internationally recognised rights. The Australian judge found that the Japanese had acted illegally by fishing for whales in an area of the sea over which Australia claimed control. The decision, which could not be enforced anyway, was predictably ignored by the Japanese and the international community. This type of silly action wastes money and makes the Australian legal system look ridiculous. Given the problems referred to above there has been a call for Australia to produce a Bill of Rights and a written Constitution. The argument is that this would create a greater degree of certainty and in the eyes of the civil libertarians entrench the rights of individuals. This seems laudable but we must remember that the laws are also designed to protect the rights of the State and its ability to govern for the greater good of the majority of the community. In a highly charged political atmosphere it would be impossible to satisfy competing interests and get both documents accepted at a referendum. We should also be aware that the minority have rights as well as the majority and that these require protection particularly when laws are badly drafted by Parliament. It is obvious that the beliefs of the civil libertarians can never be fully reconciled with the rights of the states, referred to above, in any Bill of Rights.

There is no doubt that the present system has its weaknesses but I feel that reforms can and should be attempted without having to change the whole system. It would be nice to codify these so called implied rights but even the legal system cannot agree on them, never mind the political establishment. However the following steps could be taken:

• Recognition by the judiciary that individual beliefs should be secondary to the legal situation.
• When a judgment is overturned by a higher court the reasons should be stated including errors by the judiciary in a lower court.
• Continued failure to uphold the law by judges should be considered by a group of peers who would have the power to remove a judge who was not applying the law in a reasonable fashion.
• We should start the task of repealing old laws which have been superseded and redrafting new laws - particularly in the area of tax and commerce. This should not be considered as an area for backdoor legislation. The redrafts should be accepted by a bipartisan committee of Parliament.
• Ausbuy would like to see clarification of the trade practices and labelling laws. In particular we should examine the burden of proof.
• Australia should have universal Federal laws which supersede State laws.
• Certain areas should be removed from the legal system and handled by tribunals with the necessary technical skills. An example of these is workers’ compensation or tax dispute.

The overall aim should be to preserve the rule of law, to make it cheaper and more efficient and at the same time recognise and reconcile the competing interests in an increasingly complex world. If this is not done the Rule of Law will lose its place as the guiding principal of Australian life.

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1. Under traditional english law, the jury has the power to decide not just the facts of the case, in regard to whether the defendant has broken the existing law, but to decide the law itself - i.e. to decide whether the law is just, and, if not, overrule it. The judge is traditionally only there to decide on the law - the existing law - as an advisory to the jury.

   The jury decides the facts of the case, and the judge decides on the existing law in relation to the case. But the jury may aquit the defendant if they consider that the law is unjust in the case at hand.

   In any case, a member of the jury is not required to give reason for his vote in the case. If he believes the law is unjust, he may vote for aquittal even if the law has clearly been broken, and is not required to justify his decision. By this means, one person may overturn an unjust law - if enough people on juries decide throughout the country, in a large enough number of cases, to vote for aquittal.

   This is how the prohibition on alcohol in the U.S. was repealled. It began with people on juries, who disagreed with the law, refusing to convict. the government followed this with repeal, because the law was of not being enforced inthe courts.

   In a free society, the court judges are not in the position of kings. That is what is meant by “trial by jury of ones peers”. Judges have only progressively aquired that reverence through public ignorance.

   Comment by free_enterprise — July 19, 2008 @ 8:06 pm

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