Australian Public Law | Sample Pages

CHAPTER 1 THE IDEA OF PUBLIC LAW

We are alone in the world, making our own way; and we are part of various communities. Communities provide us with a collective understanding of the conditions for a good and meaningful life. They might also impose constraints on us as individuals that prevent us from attaining those conditions. Our lives are a complex combination of the individual and the collective. For First Nations societies, the rights of individuals are also underpinned by their collective cultural relationship to land, which spans millennia.1

In the modern world, the collective nature of our existence has grown in complexity—in the household; the neighbourhood; cultural, social and political organisations; subnational political communities such as those governed by local, state and territory governments; nation-states; and, globally, regional organisations such as the European Union or the Association of Southeast Asian Nations (ASEAN), and a body representing all nations (the United Nations).

1 Megan Davis, ‘A Reflection on the Limitations of the Right to Self-determination and Aboriginal Women’ (2011) 7(23) Indigenous Law Bulletin 6.

At each of these levels there are rules about the way we interact with each other and with those who hold power. There are rules governing the responsibilities and rights of individuals and the responsibilities and rights of different collectives. These rules might privilege some individuals and groups over others; they might exclude and oppress individuals or groups; or they might attempt to create a society of equal enjoyment of rights for all individuals. The larger and more complex the organisational unit, the more elaborate and complicated the rules for functioning within it. And for each of these collectives, there is always the question of membership—of who belongs to the community and who does not—and there are rules governing that as well.

Defining public law

Public law is the system of institutions, rules and practices that govern the state. For our initial purposes (although we explore this concept in more detail below), ‘states’ comprise a set of governing institutions that have authority over a defined territory and population, and the capacity to enter into international relations.2

One of the most important dimensions of public law concerns the laws that regulate the relationship between the state and individuals. The state has a unique relationship with its citizens; but it also has many impacts on the lives of non-citizens, whether they be permanently or temporarily residing in the state’s territory, recent arrivals seeking asylum or foreign populations subject to the state’s military interventions abroad. The individuals affected by the state and the public law that governs it are not necessarily ‘natural persons’ (that is, human) either. They may be artificial persons in the form of legal corporations or unincorporated associations, including commercial businesses, trade unions, churches, charities, political parties and sports associations.

The public law of a state has a direct and powerful influence over individuals. It regulates individual conduct, such as freedom of movement and speech; it determines fundamental rights, such as the right to own property; it requires the fulfilment of certain responsibilities, such as participation in military service in defence of the state; and it punishes individuals who offend against its laws. The public law that governs the relationship between the state and the individual can differ depending on which group of individuals is concerned. For instance, some individuals who reside within Australia—people under 18, most noncitizens, people serving prison sentences of three or more years, people of unsound mind and corporations—are not afforded the right to vote for the Commonwealth Parliament. 3 As a result, Australian public law creates a different relationship between those individuals and the state than with the people to whom it grants the vote. Even where individuals are subject to the same public law rules, those rules may bear differently on different individuals as a

3 Commonwealth Electoral Act 1918 (Cth) s 93.

2 This definition is derived from the international law of states. See, eg, Convention on the Rights and Duties of States , opened for signature 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934) Article 1.

result of their circumstances. For example, the goods and services tax (‘GST’) is a 10 per cent impost on most goods and services purchased in Australia, but its impact is felt most keenly by the poor, who spend a greater proportion of their income buying goods and services than do the wealthy.4

Beyond its direct impact on individuals, public law also impacts the groups and communities of which individuals form a part. The extent to which the law protects freedom of association from state interference matters profoundly to the communities of people comprising religious groups, trade unions, political parties and activist organisations. Public law governs the relationships between the different political communities—local, state and territory, and national—that comprise the Australian federation. As Chapter 3 discusses in detail, Australian public law has from the outset of colonisation had a profound impact on the collective rights of Aboriginal and Torres Strait Islander peoples. One of the preeminent calls for structural change to Australian public law today—to enshrine in the Australian Constitution a First Nations Voice—is about recognising First Nations’ communal or collective rights to sovereignty and self-determination through the creation of political institutions.

Finally, public law determines which institution of the state has the power and responsibility to undertake particular activities (for instance, which institution can make the law, which institution enforces the law, and which institution has the final say in interpreting the law), and how those activities are undertaken by state officials. The relations between the different institutions and agents of the state itself, such as the interactions between the legislature and the courts, are also the subject of public law.

Public law rules can be found in many different sources. Some may be contained in a written constitution, while others may be found in judge-made law (the ‘common law’), in statutes and delegated legislation. Sometimes the ‘rules’ may be unwritten and legally unenforceable, existing in the form of practice and convention only.

As we explain in greater detail later in this chapter, a proper understanding of public law necessitates that we understand two key functions that public law performs:  empowerment and constraint of the state. These two concepts are key to understanding the legitimacy of the state. Legitimacy reflects the collective belief of those diverse individuals and groups that are governed by a state about the rightfulness of its power and rules. The extent to which individuals in a society accept the persuasiveness and binding authority of exercises of state authority, particularly in the face of disagreement, is referred to as the sociological legitimacy of the state.5 In practice, that sociological legitimacy is a complex amalgam of many factors: legal, as well as moral, social and political. At its core, it will be affected by the perceived legitimacy of the source of the state’s powers and its accountability for the exercise of those powers. Many of the rules of public law relate to empowerment or constraint. That is, they might provide the state with power to serve a particular function or perform a particular action; or they might provide a way in which an individual or group can restrain the state’s power against them.

4 For that reason, this type of tax is referred to as a regressive tax.

5 See, eg, Tom R Tyler, Why People Obey the Law (Princeton University Press, 2006).

Important as it is to study the rules themselves, a proper understanding of public law requires more than focusing purely on rules. Rules themselves must be interpreted, and the question of how this is approached, and by whom, is a source of disagreement and controversy in public law discourse. To understand how rules are interpreted and practised, it is important too that we understand key concepts that underpin public law analysis, such as ‘the state’, ‘sovereignty’, ‘the rule of law’ and ‘constitutionalism’. These concepts inform the ways in which public law rules have developed, the practice of public law and the tensions of many ongoing public law debates.

In addition to an understanding of the key concepts of public law, it is important that we focus on the actual practice of public law: how the rules and concepts of public law shape the way the state engages with individuals and groups, and how the state itself functions in reality, not just according to the promulgated public law rules. This includes studying the way individual actors in the state interpret and exercise public power, and the myriad of factors that influence that practice.6 In this respect, it is important to consider public law rules and principles against the wider social contexts from which they emerge and in which they are interpreted, applied and changed. In this book, we focus on the way public law is shaped by and operates against a backdrop of institutions , values and interests —points we develop towards the end of this chapter.

The public and the private

Another way to understand public law is to contrast it with private law. The conventional way of distinguishing between private and public law is that private law regulates the interactions between individuals (a horizontal relationship among legal equals) whereas public law regulates the relationship between the state and individuals (a vertical or hierarchical relationship between rulers and ruled). As we have suggested above, the idea that public law is about the relationship between the state and the individual is not the whole story of public law, which also impacts groups and communities, but there is no doubt that this relationship is of fundamental importance.

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On the conventional view, public law comprises constitutional law, administrative law, criminal law and tax law, since these fields all directly concern the relationship between the state and the individual. The increasingly expanding field of environmental law is also generally conceived of as public law, although while this is a distinct subject-matter, it is an amalgam of rules drawn from public law (primarily administrative law) and private law (such as the law of torts). Due to their shared concepts and principles and overlapping subjectmatter, constitutional and administrative law are often introduced together in Australian legal education as ‘public law’ subjects, and they form the core of this book. Criminal law and tax law, though public law on the classic understanding, are typically taught separately due

6 See, eg, Karl Llewellyn, ‘The Constitution as Institution’ (1934) 34 Columbia Law Review 1; Mark Tushnet, A Ne w Constitutional Order (Princeton University Press, 2003) 1; Matthew S R Palmer, ‘What is New Zealand’s Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-Holders’ (2006) 17 Public Law Review 133.

to their distinctive principles and specialised rules. However, particularly in our discussion of the judiciary in Chapters 11 and 12, we consider some of the key legal principles that have developed to protect individuals who have been prosecuted by the state for criminal offences.

T he conventional branches of private law are all those areas that directly concern relationships between individuals, which are primarily economic and familial. These include the law of contracts, property, torts, corporations, equity, the family and succession.

Of course, the distinction between public and private is not simply the province of law, but a longstanding concern of Western political thought more generally.7 The German–American philosopher Hannah Arendt (1906–75) traced the distinction between public and private to ancient Greece, where the private realm of the household was sharply demarcated from the public realm of political life.8 According to Arendt, in this classic conception, what were considered the mundane necessities of life—such as food production, childrearing, the disciplining of slaves and the rules of economic activity—were matters for the private realm, where women and slaves were confined. The public realm was the realm of freedom and equality enjoyed by non-slave men, where there was no necessary activity, where there was no hierarchical authority, where everything was decided through ‘words and persuasion and not through force and violence’, 9 and where what had to be decided related to the ideals of the common world, such as courage and honour. It was a condition of entering the public realm that men were free of their practical concerns.10

While the public–private dichotomy has had a variety of meanings over time and across contexts, a common contemporary understanding of the dichotomy maps broadly onto the public–private divide in law.11 According to that understanding, the public sphere is the domain of politics and the state, just as public law is the law which governs the state. The private sphere comprises the supposedly apolitical, non-state domains of the economy and the family, just as private law is the law governing economic and familial relationships among individuals.

The public–private distinction has been subject to sustained criticism. For some critics, the notion of distinct public and private realms fails to match contemporary social reality. Arendt observed that the ostensibly private matters of economics and family life had essentially become issues of common concern, subject to collective management through the public institutions of the state.12 On the other hand, the state had begun to resemble ‘a superhuman family’ undertaking ‘a gigantic, nationwide administration of housekeeping’ through its regulation of economic and familial life.13

7 Jeff Weintraub, ‘The Theory and Politics of the Public/Private Distinction’ in Jeff Weintraub and Krishan

K umar (eds), Public and Private in Thought and Practice (University of Chicago Press, 1997) 1, 1.

8 Ha nnah Arendt, The Human Condition (University of Chicago Press, 1958) 22–78.

9 Ibid 26–7.

10 Ibid 22–78.

11 Weintraub (n 7) 7.

12 Arendt (n 8) 33.

13 Ibid 28–9.

For other critics, the notion of a public–private dichotomy continues to accurately reflect social relations; the problem is precisely that the separation of public and private remains all too real. Such a critique has been made by generations of feminists, who have seen in the confinement of women to the private domains of home and family a central source of women’s subordination.14 From one perspective, women’s confinement to the private sphere has historically meant their complete exclusion from or unequal inclusion within the public sphere (here including the workplace and civil society as well as the state). From another perspective, because the home and family have historically been understood as private, the idea of the public–private dichotomy has often had the ideological effect of putting the domains of the home and family—for women, often sites of violence, inequality and oppression—beyond the reach of politics and state intervention. Even so, for some groups of women, such as First Nations women, the state itself has been a major source of oppression within their home and family lives, including, for instance, in relation to the taking of children, welfare management and the modern domestic violence interventions.15

Like feminists, socialists have seen reflected in the idea of the public–private dichotomy an important but troubling dimension of social reality. That reality is one in which, under capitalism, a vital social function—the production of the goods and services which sustain and improve human life—is largely controlled not collectively through public institutions but privately by wealthy individuals and corporations to make profit through the exploitation of workers.16 At the same time, socialists influenced by Karl Marx typically believe that the private sphere of economic production exerts a major, even determinative influence on the public domain of the state, thereby undermining the public–private divide.17

Just as the general distinction between public and private spheres has been the target of important critiques, the analytical distinction between public and private law—a distinction hinging on whether or not the state is involved in the relationship being governed by the law—is open to challenge. For one thing, the state and its many agencies can be one of the ‘individuals’ in a private law relationship: state actors can and frequently do enter contracts, own property, create and manage corporations and incur liability for negligence and other tortious acts.

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14 See, eg, Carole Pateman, ‘Feminist Critiques of the Public/Private Dichotomy’ in Anne Phillips (ed), Feminism and Equality (Basil Blackwell, 1987) 103; Ngaire Naffine, ‘Sexing the Subject (of Law)’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (Oxford University Press, 1995) 18; Margaret Thornton, ‘The Cartography of Public and Private’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 2; Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd edn, 2002) 10.

15 See generally Jennifer Koshan, ‘Sounds of Silence: The Public/Private Dichotomy, Violence, and Aboriginal Women’ in Susan B Boyd (ed), Challenging the Public/Private Divide: Feminism, Law, and Public Policy (University of Toronto Press, 1997) 87. For a recent example, see Megan Davis and Emma BuxtonNamisnyk, ‘Coercive Control Law Could Harm the Women It’s Meant to Protect’, Sydney Morning Herald (online, 2 July 2021) <www.smh.com.au/>.

16 See further Ellen Meiksins Wood, ‘The Separation of the “Economic” and the “Political” in Capitalism’ in Democracy Against Capitalism: Renewing Historical Materialism (Cambridge University Press, 1995) 19.

17 See, eg, Ralph Miliband, The State in Capitalist Society (Quartet Books, 1973); Nicos Poulantzas, State, Power, Socialism, tr Patrick Camiller (Verso, 2014) [trans of: L’Etat, le Pouvoir, le Socialisme (1978)].

In a fundamental sense, private law is always about the relationship between the state and the individual. That is because the state creates private law, either through the courts and judge-made law or, increasingly, through the legislature and statute. In doing so, the state is pursuing public or political aims, and determining what it will allow individuals to do to and with one another and what it will forbid. Will the state permit one person to possess another person as property, as under slavery? Will the state allow workers to bargain collectively with their employers over their employment contracts, so as to increase their bargaining power? Will the state allow Aboriginal and Torres Strait Islander parents to retain custody of their children, as under the family law that applies to non-Indigenous families, or will it authorise their children’s removal to assimilate them into white society? In giving answers to such questions through legal rules, the state confers on individuals a set of rights and duties, powers and disabilities, immunities and liabilities that condition their interactions with others. Such decisions are as much about the state’s relationship with individuals as they are about the relationships between individuals.

Having created the rules of private law, the state is also tasked with enforcing private law.18 If a person’s rights under private law are breached, that person can have their rights enforced by the state’s courts. If the person in breach refuses to obey, the courts can impose civil and criminal penalties, ultimately enforceable through coercive state agents, to compel the person into compliance. Because the state is always involved in creating and enforcing private law, private law always implicates the relationship between the individual and the state. In other words, all law created and enforced by the state is public law.

What does this mean for the study of public law? While the theoretical basis for distinguishing between public and private law is largely unpersuasive, we continue to rely on the distinction in recognition that it is a widespread and conventional way of demarcating different branches of law from each other. The main way we understand public law in this book is as a shorthand for constitutional and administrative law. Grouping these two fields of law together under the label of public law is not philosophical but practical.19 It makes manageable the task of learning about two branches of law which share much in the way of history, focuses, concepts and principles.

Key concepts of public law

We now turn to consider some of the key concepts that underpin our understanding of public law, and help us understand the development, practice and tensions within it. In this introductory chapter, we look at the state, sovereignty, constitutionalism and the rule of law. Within these concepts, we also consider ideas relating to the legitimacy of the state and accountability of state power. Other important public law principles that govern the Australian state, including representative democracy and the separation of powers, are taken up in later chapters.

18 Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press, 2019) 15–18.

19 Dawn Oliver, Common Values and the Public–Private Divide (Butterworths, 1999) 11.

The state

Since public law is the branch of law which governs the state itself, it is important to understand a little more about what states are, where they have come from and the forces that influence how they operate. Throughout history, human societies have organised themselves through a variety of political forms, including clans, tribes, city-states, fiefdoms, kingdoms, empires and nation-states. In the classic formulation of German social theorist Max Weber, a state is ‘a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’. 20 This form of political organisation contrasts with those in which claims to the use of coercion are made over particular groups of people rather than over particular territories, and relatedly where claims to the use of coercion over a particular territory are not exclusive. For instance, the feudal societies which prevailed in medieval Europe comprised a bewildering array of overlapping claims to rule over a given territory from a multitude of authorities: feudal lords, city-states, kingdoms, empires and the Christian church. 21

According to the US sociologist Charles Tilly, over roughly the thousand years from 990, states gradually became the globally dominant form of political organisation, driven by processes of war-making and the accumulation of wealth.22 Until relatively recently, many of the most powerful states were not nation-states but empires, unequally incorporating peoples and territories nearby through conquest and, in more distant parts of the world, through colonial expansion. Well into the twentieth century, empires were the dominant state form, ruling over the majority of the world’s peoples. 23 It was only after the Second World War, as empires began to collapse in the face of anti-colonial independence movements, that ‘the nation-state became the generalised form of sovereignty’. 24 The nation-state is now the predominant way in which communities organise and govern themselves politically, even as many other forms of political organisation continue to exist today. For Indigenous peoples internationally, the dominance of nation-states has meant that the project of self-determination has largely been one that occurs within the confines of the nation-state, 25 rather than a more radical project of secession and independent statehood. The achievement of Indigenous selfdetermination, rather, focuses primarily on enhanced political participation and collective

20 Max Weber, ‘Politics as a Vocation’, tr H H Gerth and C Wright Mills, in H H Gerth and C Wright Mills (eds), F rom Max Weber: Essays in Sociology (Routledge, 2009) 77, 78 [trans of: ‘Politik als Beruf’ (1919)].

21 He ndrik Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton University Press, 1994) ch 3; Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton University Press, updated edn, 2008) ch 2.

22 Ch arles Tilly, Coercion, Capital, and European States, AD 1990–1992 (Blackwell, 1992).

23 Ja ne Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton University Press, 2010).

24 Frederick Cooper, Colonialism in Question: Theory, Knowledge, History (University of California Press, 2005) 11.

25 See United Nations Declaration on the Rights of Indigenous Peoples , GA Res 62/295 (2 October 2007, adopted 13 September 2007) (‘UNDRIP’) Article 46; and further James Anaya, Indigenous Peoples in International Law (Oxford University Press, 2004) 81.

Indigenous autonomy through structural change within the nation-state.26 All people in the world are now under the influence of the law of states as a result of their membership of a state, their residence in a state or the control of state law over the territories in which they reside. To the extent that people are excluded from membership of a state (and are therefore ‘stateless’), this exclusion is itself a product of the laws of states.

Contemporary states comprise a diverse array of institutions, personnel, technologies, techniques and resources that enable them to govern people and territory. Most accounts of public law tend to emphasise the coequal importance of legislatures, courts and executives to the operation of states. However, when the historical experiences of states are studied, this reveals the centrality of executives and their administrative capacities to the emergence and functioning of modern states. Purely in terms of state personnel, the size of the executive branch vastly outstrips that of legislatures and courts. As Weber’s account of the state makes clear, a strong and centralised executive capacity to mobilise coercive force against the population and their property—through tax agencies, armies, police, prisons and the like—is a hallmark of modern statehood. But perhaps just as important for states to govern their populations and territories effectively is the development of a range of more mundane administrative capacities and techniques. Crucial in this respect are practices of collecting and storing information about people and the environment as well as methods for standardising the organisation of the social and material world—what the US political scientist and anarchist James Scott has called techniques of ‘seeing like a state’.27 Through many such techniques—including ‘the creation of permanent last names, the standardisation of weights and measures, the establishment of cadastral surveys and population registers, the invention of freehold tenure, the standardisation of language and legal discourse’—states have been able to expand their knowledge about and control over their populations and territories, and thus have greatly enhanced their governing capacities. 28

In the centuries since modern states first emerged, there has been a dramatic change in their reach and capacity. States now have at their disposal much greater resources and more precise knowledge of matters relevant to effectively governing their people. They know the size, distribution and earning capacities of their people. They know the economic potential of their territories. Consonant with this knowledge, state economies have much greater productive potential. They are able to raise vastly greater amounts of revenue through taxation and have greater control over their economies through monetary and fiscal policy. As a result, modern states have been able to expand dramatically their range of activities. They are not only concerned with the safety and freedom of their people but also with their health, welfare and education.

26 United Nations Expert Mechanism on the Rights of Indigenous Peoples, Efforts to Implement the United Nations Declaration on the Rights of Indigenous Peoples: Indigenous Peoples and the Right of Self-determination, 48th Session, Agenda Item 2 and 5, A/HRC/48/75 (13 September 2021) (‘Efforts to Implement UNDRIP’).

27 Anthony Giddens, The Nation-State and Violence (Polity Press, 1985) 2, 14–15, 46–7; James C Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1998)

2–3, chs 1–2.

28 Scott (n 27) 2.

Despite the predominance of nation-states, their actions—and the public law that governs them—are influenced by rules, actors and forces from without and within. One important external influence on states is public international law, which comprises the rules that govern the relations between states. Public international law also includes rules and norms that overlap with the laws of states and sometimes conflict with them. A key issue for the public law of states is the extent to which international laws are capable of influencing or even controlling state law. In Chapter 6, we explain the different facets of the relationship between Australian public law and international law.

In addition to international norms, states may be subject to external pressures or intervention by international institutions and their decisions, including the United Nations, the International Monetary Fund and the World Trade Organization. Regional supranational institutions, such as the European Union, influence how their member states are governed. The governance of states is also influenced by their relations and interactions with other states. In some instances, the influence of other states is agreed and formalised through treaties, which have a status at international law as well as within domestic law. Treaties govern a diverse range of matters, including establishing military alliances or arrangements for trade and investment, as well as setting minimum standards for the treatment of individuals, such as in the case of human rights treaties. In other cases, the influence of other states may be unilateral, such as the decisions of the US Federal Reserve Bank, the imposition of economic sanctions, or covert attempts to interfere with domestic affairs or military interventions. External non-state actors, too, can exercise power over how states are governed, from international non-governmental organisations like Human Rights Watch, to credit rating agencies such as Moody’s, to multinational corporations like Amazon. Of course, depending on their political, military and economic power, some states are much more susceptible to the influences of external actors than others.

From within, states and their public law are also susceptible to a range of influences and challenges. In well-functioning liberal democracies, the ordinary course of politics sees a range of different groups seeking to influence or gain control over the agencies of the state. These groups include political parties, religious groups, trade unions, social movements and non-government organisations, including charities and advocacy organisations. The power of profit-making corporations can also have a major influence on how states function—and often these corporations work collectively, to protect the interests of a particular market or industry. Indeed, for some Marxist theorists, the actions of the state are shaped and constrained in decisive ways by wealthy corporations and individuals as a result of their control over economic resources. 29 In some places and times, challenges to the state from within can take on an existential form, as in the case of insurgent, revolutionary and secessionist movements and military coups that seek to radically transform or overthrow the existing state order. On other occasions, without challenging the existence of the state, local communities may demand particular forms of recognition under the law of the state. In Australia, a key tension in the public law of the state—one that we explore further in Chapter 3—has come from

29 See, eg, Miliband (n 17) and Poulantzas (n 17).

Aboriginal and Torres Strait Islander peoples’ assertion of their right to self-determination under their systems of government and law within the Australian state.

Sovereignty

Sovereignty is considered a foundational concept of modern public law. But what does sovereignty mean? What is its significance for public law? And what is sovereignty’s relationship to the state and its authority? The concept of sovereignty is used in many ways, but one useful distinction is between external sovereignty—that is, the freedom of states from outside interference—and internal sovereignty— that is, the power to rule within a state.

Sovereignty in an external sense is the notion that states ought to be free to govern their people and territory without external interference from other states or international institutions. Sovereignty in this sense is a central concept within international law and is also known as ‘state sovereignty’, since it is possessed by states themselves. According to the High Court of Australia, the British Crown acquired external sovereignty in New South Wales— which at the time included what would become Queensland, Tasmania and Victoria—in 1788, in Western Australia in 1829 and in South Australia in 1836. State sovereignty passed to the Commonwealth of Australia in the early decades of the twentieth century as it acquired international status and increasing legal independence from the British Empire. 30 As much as the legitimacy of the British acquisition of sovereignty in the land we now call Australia continues to be challenged by many First Nations peoples, the High Court has held that the legality of the British acquisition of sovereignty cannot be adjudicated in domestic courts. We return to discuss these particular issues further in Chapters 2 and 3.

Sovereignty in its internal sense is more directly relevant to understanding public law. Within Western legal and political thought, the classic and still dominant account of sovereignty defines it as the supreme and absolute political power in a state. The originator of this account is often taken to be the sixteenth-century French jurist Jean Bodin, for whom sovereignty was ‘the absolute and perpetual power of a commonwealth … the highest power of command’. 31 The seventeenth-century English philosopher Thomas Hobbes was also an influential early proponent of the view that sovereignty is absolute and indivisible political power within a state. 32

According to the classic account, internal sovereignty includes the ultimate authority to make the law within a state. In practice, the public law rules in a given state will confer the power to make laws on state institutions such as parliaments. But if sovereignty is an absolute power to make law, by definition sovereignty cannot itself be granted or constrained by law such as a constitution. While it may be channelled into and exercisable by state institutions as a result of public law rules, sovereignty cannot ultimately be limited by public law. On this account, sovereignty is not the

30 Alison Pert, ‘The Development of Australia’s International Legal Personality’ (2017) 34(1) Australian Yearbook of International Law 149.

31 Jean Bodin, On Sovereignty, tr and ed Julian H Franklin (Cambridge University Press, 1992) 1 [trans of: Six livres de la République (1576)].

32 Thomas Hobbes, Leviathan, ed JCA Gaskin (Oxford University Press, 1996) 114–22.

product of public law but its foundation. And whereas states are the possessors of sovereignty in its external sense, states are the creation of sovereignty in its internal sense.

Given the potentially absolute power that sovereignty represents, the question of who possesses sovereignty—and what justifies their possession of it—is crucial. An influential approach to answering the question of who possesses sovereignty was given by the conservative German lawyer and political theorist Carl Schmitt, who was also a member and supporter of the Nazi regime. He put forward a thesis that the source of true power is revealed at the moment of its exercise in a time of crisis. In other words, the mark of sovereignty is precisely the power to make decisions outside (or create exceptions to) the regular law. As Schmitt put it, ‘sovereign is he who decides on the exception’. 33 Even though Schmitt’s formulation fits with the classic understanding of sovereignty—an absolute form of power unconstrained by the public law rules that ordinarily limit the state—many scholars have worried that it licenses illiberal government outside the rule of law. 34 In many modern states, there is an explicit anticipation of emergency, and the legal system will itself provide for ‘exceptional’ responses during times of crisis. So, for example, during the COVID-19 pandemic, governments within Australia were able to rely on emergency provisions in public health legislation, and later specific pandemic-targeted legislation, to create time-limited exceptions to general rules. Since these emergency frameworks operate within the existing legal structure of the state, they are not true exercises of sovereignty in the Schmittian sense. In modern nation-states, the people are generally considered to possess sovereignty, captured in the idea of ‘popular sovereignty’. The justification for popular sovereignty is democratic: if someone must possess absolute political power over the people and their territory, it should be the people themselves. While the state may exercise political and lawmaking power on a day-to-day basis according to public law rules, theories of popular sovereignty hold that the people are the ‘sleeping sovereign’ lying behind the state. 35 On this view, through their establishment of, and ongoing acquiescence to, a constitution, the people authorise the state’s existence and actions, but they also always hold the potential to awaken, sweeping the existing state away and recreating it through a new constitution. 36 For the most part, popular sovereignty is an abstract ideal that operates to legitimate modern states, but it is not entirely theoretical or hypothetical. Popular sovereignty can be glimpsed, for instance, in moments of popular revolutionary upheaval and, less dramatically, in highly participatory processes of constitution-making, 37 or the requirements of popular engagement, for instance, through referendum, to achieve constitutional amendment. 38

33 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (MIT Press, 1985; 1st edn, German 1922) 5, quoting Kierkegaard.

34 See, eg, Nomi Claire Lazar, States of Emergency in Liberal Democracies (Cambridge University Press, 2009) ch 2.

35 Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge University Press, 2016).

36 Popular sovereignty is sometimes conceptualised as ‘constituent power’, commonly understood as the power of the people to constitute a state (or to reconstitute it anew).

37 See further Margaret Canovan, The People (Polity Press, 2005) ch 5; Simone Chambers, ‘Democracy, Popular Sovereignty and Constitutional Legitimacy’ (2004) 11(2) Constellations 153.

38 Such as in s 128 of the Australian Constitution. See, eg, Geoffrey Lindell, ‘Why is Australia’s Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence’ (1986) 16 Federal Law Review 29.

While modern states are widely supposed to be underpinned by popular sovereignty in theory, the actual foundations of modern states cannot always be traced to democratic and consensual exercises of sovereignty by the people. Indeed, for the French philosopher Jacques Derrida, it is an original act of force—a political act—that institutes the law. 39 Derrida claimed that violence is at the origin of all law, and that therefore the legitimacy of the law is always in question, requiring constant reassertion and justification to maintain its legitimacy. As we explore in Chapters 2 and 3, force and violence, not an act of popular sovereignty, underpinned the British Government’s claims to sovereignty over the territories now known as Australia, in disregard for the Aboriginal and Torres Strait Islander peoples who had occupied those territories for millennia. As First Nations activism and advocacy continue to remind us, the violent, non-consensual nature of the Australian state’s founding puts its legitimacy in question to this day, and prompts many to call for a fundamental reconsideration of the constitutional relationship between First Nations and the state.

As the example of Australia demonstrates, the idea that contemporary states gain their legitimacy from popular sovereignty becomes more complicated in situations where the state is home to multiple peoples. Such states include settler-colonial states like Australia, where many Aboriginal and Torres Strait Islander peoples coexist with the non-Indigenous population, as well as multinational states such as Ethiopia (a federation with nine ethnically based regional governments) and the United Kingdom (comprising England, Scotland, Wales and Northern Ireland). In circumstances where multiple peoples coexist within the same state, can sovereignty justly be attributed to and wielded by a unitary ‘people’? For many people who live within these states, especially those belonging to minority or disempowered nations, the idea of a unified people possessing and exercising sovereignty can have the effect of suppressing or denying their own claims to collective political power.

In a world where different peoples frequently coexist within the same state, accounts of sovereignty which insist on its absolute and indivisible nature can seem inadequate. It is worth recalling that the influential accounts of absolute and indivisible sovereignty developed by Bodin and Hobbes were not merely theoretical, but were motivated by concrete political purposes. For Bodin, sovereignty served to justify a centralised monarchical French state with the power to subordinate feudal nobles making rival claims to autonomy and to suppress religiously motivated civil war.40 Hobbes, likewise, used sovereignty to defend absolute monarchy as the solution to the violent civil war which ravaged England during Hobbes’s lifetime.41 But different historical contexts may call for alternative understandings of sovereignty which see it as partial instead of absolute, plural and shared instead of indivisible. Indeed, an understanding of sovereignty as partial, shared and divisible might be said to underlie states that are organised on the basis of federalism. As US Supreme Court Justice

39 Jacques Derrida, ‘The Force of Law: The Mystical Foundations of Authority’ in Gil Anidjar (ed), Jacques Derrida, Acts of Religion (Routledge, 2002) 230–42.

40 El len Meiksins Wood, Liberty and Property: A Social History of Western Political Thought from Renaissance to Enlightenment (Verso, 2012) 147–53, 161–5.

41 Ibid 240–56.

Anthony Kennedy put it, federalism ‘split[s] the atom of sovereignty’.42 We discuss Australia’s federal system in greater depth in Chapter 5.

Against the canonical Western account of internal sovereignty as absolute and indivisible, in 2017, Aboriginal and Torres Strait Islander peoples articulated a different vision of sovereignty. In the Uluru Statement from the Heart, delegates from a National First Nations Constitutional Convention asserted First Nations’ ancient sovereignty, which they explained was ‘a “spiritual notion” reflected in the ancestral tie between the land, or “mother nature”, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors’.43 That sovereignty, declared the statement, ‘has never been ceded or extinguished, and coexists with the sovereignty of the Crown’.44 This is an account of sovereignty grounded in a deep connection to Country and that sees multiple sovereignties coexisting and overlapping in the same territory. It is a form of sovereignty that not only has not been ceded, but cannot be.

Constitutionalism

Constitutionalism is commonly understood to involve the establishment of institutional arrangements that limit the power of the state. These institutional arrangements are provided in the state’s constitution, which establishes key state institutions, allocates power to those institutions and, importantly, imposes limits on the scope of that power and how it may be exercised. For its proponents, constitutionalism is typically seen as a means of protecting individual liberty, on the basis that the freedom of individuals is threatened by a state whose power is not subject to adequate limitations.

While the history of constitutionalism is sometimes traced as far back as ancient Greece and Rome, an important episode in the modern development of constitutionalism involved the revolutionary upheavals in seventeenth-century England.45 Throughout this tumultuous period, there was a drawn-out, convoluted and bloody power struggle between, on one side, monarchs seeking to rule unconstrained by Parliament and, on the other side, parliamentarians and their allies seeking to rein in royal power. This struggle was eventually resolved with the triumph of parliamentary forces in the so-called ‘Glorious Revolution’ of 1688. In the constitutional settlement that followed, the King’s powers were substantially limited and their exercise largely made conditional on the approval of Parliament. In other words, executive power was restrained by legislative power.

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42 US Term Limits Inc v Thornton, 514 US 779, 838 (1995).

43 Fi rst Nations Constitutional Convention, ‘Uluru Statement from the Heart’ [2017] Indigenous Law Resources 1 (emphasis omitted). This account of sovereignty was paraphrased from a judgment in the International Court of Justice’s Western Sahara decision, which had also been quoted by Justice Brennan in the Mabo case: Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 85–6 (Vice-President Ammoun); Mabo v Queensland (No 2) (1992) 175 CLR 1, 41.

44 ‘U luru Statement from the Heart’ (n 43) 1.

45 See, eg, Charles Howard McIlwain, Constitutionalism: Ancient and Modern (Cornell University Press, rev edn, 1947); Carl J Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America (Blaisdell, rev edn, 1964) 28–9.

Another foundational episode in the development of constitutionalism occurred roughly a century later, as colonists in North America successfully staged their own armed revolution against the British King and Parliament that sought to rule them from afar. In establishing an independent state, the American colonists created a new constitution that imposed strong constraints on state power. They believed that, although government was necessary, it needed to be small and tightly controlled—with some important exceptions, such as expansive government power to militarily subdue, dispossess and govern Native American Nations.46 The framers of the US Constitution adopted a range of innovations to constrain state power: federalism, which involves dividing power between different levels of government; the separation of powers, in which the main institutions of each level of government have clearly defined and limited powers; constitutional guarantees of individual rights to protect individuals against certain exercises of government power; and judicial review, whereby compliance with the constitutional limits imposed on state power is supervised by the courts. In his 1914 book An Economic Interpretation of the Constitution of the United States , American historian Charles Beard famously argued that such limitations on power were principally devised by the Constitution’s framers to restrain the capacity of national and state legislatures to interfere with property rights (including property in African-American slaves).47

While the British and American experiences display a common commitment to constitutionalism, they represent two distinct approaches to achieving it. The British approach is known as ‘political constitutionalism’. Under political constitutionalism, the constraints on government are predominantly found in the political system rather than in legal restrictions enforceable in the courts. While under political constitutionalism there will often be rules constraining government power that are followed as a matter of entrenched political custom (commonly known as ‘constitutional conventions’), these customary rules are not judicially enforceable and any sanctions for breaching them are political. Political constitutionalism also involves the imposition of legal limits on government power, but these legal limits will themselves be alterable by the legislature.

At the heart of political constitutionalism on the UK model is a system where the power of the executive is ultimately constrained by the legislature, and the power of the legislature is constrained by its accountability to the electorate through elections. As we explain in Chapter 2, at the end of the seventeenth century, at the time of the Glorious Revolution and for centuries after, the English Parliament was composed of a wealthy class of propertied men, with only those in the House of Commons being elected by an extremely limited body of eligible voters. Those in the House of Lords were appointed by the monarch or inherited their positions by birth. Naturally, the limits imposed on state power by such an undemocratic political system favoured the interests and values of wealthy, property-holding men. Only in the early twentieth century—after remaining property qualifications on voting were removed in 1918 and women were enfranchised on equal terms to men in 1928—could it be said that the limits imposed on state power by Britain’s political constitutionalism became

46 Gregory Ablavsky, ‘The Savage Constitution’ (2014) 63(5) Duke Law Journal 999.

47 Ch arles Beard, An Economic Interpretation of the Constitution of the United States (Macmillan, 1914) ch 6.

democratic.48 Even where political constitutionalism is underpinned by a democratic political system, critics argue that the limits on government power supplied by majoritarian political processes do not adequately protect the rights of vulnerable and disempowered social groups and cannot protect the democratic system itself from being eroded or abolished.49

Against the UK’s tradition of political constitutionalism, the American approach epitomises ‘legal constitutionalism’ (although it too contains elements of political constitutionalism). Legal constitutionalism is a political doctrine which holds that the power of government can— and should—be delimited by the law and not just through political levers such as elections. In a system governed predominantly through legal constitutionalism, the constitution is a legal instrument more difficult to change than ordinary legislation. The courts have the final say on whether government actions and decisions are authorised under the constitution and the laws; if a court decides the actions or decisions are not so authorised, they will be declared unconstitutional and rendered invalid. This responsibility, known as judicial review, can often place the judiciary in opposition to the political branches of government. Where the political branches are democratically appointed, the legitimacy of judicial review— and legal constitutionalism more generally—is open to challenge on the grounds that it is undemocratic, since it involves non-elected judges overruling the decisions of democratically elected representatives.

Australia has developed its own unique combination of political and legal constitutionalism. On the legal side, Australia has a national constitution which delimits the powers of government institutions, especially at the national level but also to some extent at the state and territory level. The legal limits imposed on government power by the Constitution—predominantly limits about the composition and powers of the different branches of the Commonwealth Government and about the respective powers of the Commonwealth and states—are ultimately upheld by the courts and generally cannot be circumvented without amending the Constitution itself, which requires a referendum of the Australian people. The constitutions of the states are more flexible, generally having the status of ordinary law subject to amendment, with only some key provisions requiring special parliamentary majorities to amend, or in rare instances, a referendum, through what is known as ‘manner and form’ requirements.

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At the same time, Australia combines these elements of legal constitutionalism with some features of political constitutionalism. Most significant is Australia’s system of responsible government, which operates at the Commonwealth, state and territory levels. Responsible government involves a series of constitutional conventions constraining the actions of the executive, and a chain of political accountability from senior members of the executive branch through to the legislature and, ultimately, to the electorate. We discuss responsible government in greater detail in later chapters.

Another important concept to be familiar with in relation to political constitutionalism as it operates in Australia is ‘parliamentary sovereignty’, sometimes referred to as ‘parliamentary

48 To this day, the House of Lords remains an unelected chamber, though its power to veto legislation passed by the House of Commons was abolished in 1911. See further Meg Russell, The Contemporary House of Lords: Westminster Bicameralism Revisited (Oxford University Press, 2013).

49 Ir is Marion Young, Inclusion and Democracy (Oxford University Press, 2000). See further discussion in Chapter 7.

supremacy’. This idea developed after the Glorious Revolution in the UK, and was famously described by British legal scholar Albert Venn Dicey as having two elements: first, Parliament’s right to make or unmake any law, and, second, the inability of any other body to overturn legislation passed by Parliament. 50 Public law specialist Ryan Goss has criticised the concept as inapplicable to Australia, with its rigid written Constitution that cannot be ‘unmade’ by Parliament alone and its tradition of judicial review which involves the courts overturning legislation passed by Parliament if it conflicts with the Constitution. The result is that no Parliament in Australia exercises sovereignty, or supremacy, particularly in the form that Dicey described it.51 However, the language is still used frequently. In the Australian context, parliamentary sovereignty is often used to refer to the idea that—within the limits of the legislative powers of the Commonwealth and the states, and subject to relatively few constitutional limits, particularly in relation to human rights—Australia’s parliaments are accountable only to the Australian people. While some scholars and commentators continue to refer to parliamentary sovereignty and parliamentary supremacy in this sense, for the reasons set out above, we use more accurate language for the Australian context in this book, referring to the legal and political constraints on legislative power as applicable.

The balance struck in Australia between legal and political constitutionalism has long been a matter of contention. For much of the twentieth century, the major flashpoint was over the protection of federalism through legal constitutionalism. From the earliest years of federation, the Australian Labor Party (‘ALP’) and federal Labor governments strained against the judicially enforceable limits placed by the Constitution on the powers of the Commonwealth Parliament, especially limits on powers to regulate the economy. To overcome these limits, the ALP platform from 1919 committed the Party to constitutional reforms that would give the Commonwealth Parliament lawmaking power free of all legal constraints. While the ALP platform countenanced the ongoing existence of a federal system, it would be secured through ordinary Commonwealth legislation, not through constitutional constraints on the Commonwealth Parliament enforceable in the courts.52 In other words, the ALP ultimately sought the replacement of legal constitutionalism with political constitutionalism, primarily to dispense with the legal limits imposed by the Constitution on the Commonwealth Parliament’s powers over the national economy. As we explore further in Chapter 5, it was only from the 1970s that Labor abandoned these constitutional goals and the partisan politics of federalism—and its protection through legal constitutionalism—subsided.

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When it comes to limits on Australian governments’ powers to infringe human rights, Australia has developed a complex mix of political and legal constitutionalism that remains subject to ongoing political contestation. Historically, the protection of rights in Australia was predominantly a political matter. The Constitution’s drafters, influenced by British traditions

50 See A V Dicey, The Law of the Constitution (Macmillan, 8th ed, 1915) 3–4. See also J Goldsworthy, The Sovereignty of Parliament (Clarendon Press, 1999).

51 Ry an Goss, ‘What Do Australians Talk About When They Talk About “Parliamentary Sovereignty”?’ (2022) Public Law 55.

52 Au stralian Labor Party, Official Report of the Eighth Commonwealth Conference of the Australian Labor Party (Labor Papers, 1919) 3.

of political constitutionalism, saw fit to protect few rights in the original Constitution. The small list of rights granted constitutional protection have mostly been interpreted narrowly by the High Court—with the exception of economic rights (such as protection of property and freedom of interstate trade and commerce). While some conservative political figures in the 1940s and 1950s began advocating for stronger constitutional protections of individual rights, since the 1970s the cause of constitutional rights has largely been the preserve of those on the political left and opposed by those on the right. 53 This opposition has often been based on the inconsistency between constitutional rights and Australia’s ‘parliamentary sovereignty’, which we have explained above. Even though all attempts to enact stronger national constitutional protections for human rights have foundered, from the 1990s the High Court has discerned a series of ‘implied’ democracy-based limitations on power t hat protect the freedom of political communication and the right to vote. There are also constitutional limits that the High Court has imposed to protect the integrity of the exercise of judicial power from the political branches of government, and these have been able to provide some protections for the right to a fair trial and freedom against arbitrary detention. These limits are judicially enforced against the executive and the legislature, and, as we explain in Chapters 7, 11 and 12, their development and application by the Court has and continues to be controversial and polarising. In addition, since the mid-2000s, several Labor governments at the subnational level have enacted statutory bills of rights (Australian Capital Territory in 2004, Victoria in 2006, Queensland in 2019), adopting a novel approach to rights protection that combines legal and political constitutionalism that has become known globally as the ‘dialogue’ model. 54 We explore the current blend of political and legal rights protection further in Chapter 4.

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While the constitutional theories of political and legal constitutionalism emphasise the role of formal, institutionalised political and legal constraints on state power, in any community there will be a myriad of less formal ways by which state power is constrained and brought to account. As we discussed earlier, the power of states may be constrained from outside by international institutions, other states and an array of non-state actors (such as non-governmental organisations and multinational corporations). Some critical scholars of international relations have argued that, since the late twentieth century, states have become externally constrained by a ‘new constitutionalism’: a complex constellation of transnational institutions, rules and practices that forces states to operate according to neoliberal market logics. 55 The power of states may also be constrained informally from within, through the influence of political parties, trade unions, activist social movements, non-government organisations and private corporations. The role played by an independent media in scrutinising government actions is often seen as a vital informal constraint on state

53 Dylan Lino, ‘The Conservative Origins of Constitutional Rights in 1940s Australia’ (2022) 45(3) Melbourne University Law Review 1175; Dylan Lino, ‘Are Human Rights Enough (in Australia)?’ (2019) 41(2) Sydney Law Review 281.

54 See further Janet L Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69(1) Modern Law Review 7.

55 Stephen Gill and A Claire Cutler (eds), New Constitutionalism and World Order (Cambridge University Press, 2014).

power, although this has been criticised on the basis of the private media’s ultimate economic imperatives. We discuss some of these informal accountability mechanisms in greater detail in Chapter 7 of the book.

Although dominant understandings of constitutionalism put the constraint of state power at the centre, constitutionalism also has a positive dimension, focusing on the importance of state empowerment. The US liberal political theorist Stephen Holmes has emphasised how constitutional rules that limit power also ‘organize new practices and generate new possibilities which would otherwise not exist’. In this sense, argues Holmes, ‘[l]imits do not necessarily weaken; they can also strengthen’. 56 One example Holmes gives is the separation of powers, which simultaneously limits state power by dividing it and enhances state power through efficiently allocating distinct functions to specialised government branches. 57 Another example concerns the rules establishing representative democracy, which empower the people to rule but only ‘within certain predetermined channels, following certain present criteria of enfranchisement, and on the basis … of certain predrawn electoral districts’. 58 In these and other ways, Holmes argues, ‘limited government can subserve self-government by helping create the “self” … which does the governing’. 59

The rule of law

Few ideals of public law are more ubiquitous in public debate than the rule of law. Commentators celebrate Australia’s deep attachment to and respect for the rule of law while critics claim that Australia is a serial violator of the rule of law, especially when it comes to Aboriginal and Torres Strait Islander peoples, refugees and other marginalised people. Politicians accuse protestors and striking workers of flouting the rule of law while activists and advocates level the same accusation at heavy-handed governments and tax-minimising corporations. Powerful states launch military interventions into other countries to promote the rule of law while critics denounce those interventions as violations of the rule of law. What is clear from these diverse and widespread appeals to the rule of law is that it is seen as a valuable ideal, and that departures from the rule of law should be disdained.60 Given the divergent, even contradictory invocations of the rule of law by different interests in the public as well as legal sphere, it is also clear that the meaning of the rule of law is ambiguous and contested.

Discussion of the rule of law within Australian public law draws primarily on Western traditions of political and legal thought and celebrates certain features of Western societies. In accounts of the rule of law, it is not uncommon to encounter references to ancient Greece, Magna Carta and England’s 1688 Glorious Revolution, as well as analyses of the writings

56 Stephen Holmes, ‘Precommitment and the Paradox of Democracy’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, 1988) 195, 227.

57 Ibid 228.

58 Ibid 231.

59 Ibid 228.

60 See, eg, Jeremy Waldron, ‘The Rule of Law as an Essentially Contested Concept’ in J Meierhenrich and M Loughlin (eds), The Cambridge Companion to the Rule of Law (Cambridge University Press, 2021) 121, 128.

of Aristotle, Locke and Montesquieu. As we note below, in many contemporary treatments of the rule of law, Anglophone thinkers predominate. Alongside celebrations of certain Western thinkers and societies, dominant traditions of thought about the rule of law have been constructed historically through negative contrasts with non-European societies and have often been used to justify forms of Western domination such as colonialism. Indeed, the supposed lawlessness of Indigenous peoples has long been used to justify British colonisation of Australia. But Indigenous peoples, like other non-Western societies, have always had their own traditions and practices of law and lawfulness, their own methods by which power may be legitimately exercised and illegitimate exercises of power brought to account. Recognising the Western biases of thinking about the rule of law raises some challenging questions about its universality, which we return to below.

In its most general sense, the rule of law is a set of principles and institutional arrangements that constrain arbitrary exercises of power, especially by the state.61 As with other public law concepts, it is an instrumental concept, and it is important to remember what the rule of law is for. According to many accounts, the fundamental purpose of the rule of law is to protect individual liberty against arbitrary domination by the state.62 For legal philosopher Joseph Raz, the rule of law protects human dignity because, by creating an environment of predictability and stability, it treats people as autonomous and ‘capable of planning and plotting their own future’.63 But other objectives of the rule of law have also been identified. International financial institutions, such as the World Bank, have increasingly seen the rule of law as essential for achieving capitalist economic development, since it provides ‘a stable investment environment and the predictability necessary for markets to operate’.64 For critics, the recent harnessing of the rule of law to economic development has justified neoliberal policies that seek to reduce the role of the state in economic life to the maintenance of free markets rather than the pursuit of social justice, equality and human wellbeing. A host of United Nations agencies and institutions have identified another important objective of the rule of law as the promotion of peace and security within states. This security rationale for the rule of law has helped governments, citing threats to national security from terrorism, to justify the conferral of extraordinary and far-reaching powers on law enforcement institutions. According to human rights and security expert Liora Lazarus, the resulting ‘securitisation’ of the rule of law results in a worrying shift in the foundations of the rule of law: instead of constraining arbitrary coercive state power, the rule of law is used to authorise such power in the name of law, order and security.65

61 Martin Krygier, ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’ (2016) 12 Annual Review of Law and Social Science 199, 203–8.

62 See, eg, Martin Krygier, ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?’ (2011) 50 Nomos 64.

63 Joseph Raz, ‘The Rule of Law and Its Virtue’ in Joseph Raz (ed), The Authority of Law (Clarendon Press and Oxford University Press, 1979) 221.

64 Tor Krever, ‘The Legal Turn in Late Development Theory: The Rule of Law and the World Bank’s Development Model’ (2011) 52(1) Harvard International Law Journal 288, 313.

65 See further Liora Lazarus, ‘Doing Violence to the Rule of Law’ (Douglas McK Brown Lecture, Peter Allard School of Law, University of British Columbia, 5 April 2018).

The rule of law is often held up as a normative ideal, and accompanied by a prescription for how legal and political systems should operate. According to such prescriptions, it is possible to assess empirically the extent to which different societies achieve that ideal, as is done, for instance, by the World Justice Project’s Rule of Law Index.66 But behind the assessment of a list of measures, what, concretely, would it mean for a society to achieve the rule of law? Can empirical assessment through a prescriptive list of rules and institutions identify all the possible ways by which state power can be exercised arbitrarily?67 Is it possible to anticipate the institutional arrangements that are required in any particular context to prevent such arbitrariness? It is in answering these questions that disagreement arises.

One of the most influential accounts of the rule of law was advanced by A V Dicey in the late nineteenth century. Indeed, Dicey coined the phrase ‘the rule of law’, although the concept preceded him. According to Dicey, the rule of law had three key aspects. First, ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land’. In other words, exercises of state power (especially coercive power) must occur through precise legal rules rather than through ‘wide, arbitrary, or discretionary powers’.68 Second, ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’.69 In this dimension, the rule of law demands formal equality before the law, especially in the sense that public officials must not be put ‘above the law’ through special privileges or exemptions. Third, individual rights are secured through a gradual process of common law development in particular cases rather than declared from on high in a written constitution.70

Dicey’s account of the rule of law was very much a product of its time as well as its author’s politics. As a classical liberal who strongly believed in laissez-faire government, Dicey opposed the growth of the administrative state that he had witnessed over his lifetime in the UK and the wide powers of executive discretion that it typically entailed. Evident in Dicey’s account of the rule of law was a strong element of ‘Anglo-Saxon parochialism’, as the political theorist Judith Shklar once put it, since the third element in particular seemed to imply that the rule of law could only exist in the common law world.71 For Dicey, the rule of law was a distinctive achievement of the British people which confirmed their place atop a civilisational hierarchy and justified their far-reaching imperial rule over ‘uncivilised’ peoples across the globe.72 And yet, there are elements of Dicey’s account which remain important and influential in thinking about the rule of law today, including constraining discretion and formal equality before the law. While few today would share Dicey’s common law exceptionalism about the rule of law,

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66 World Justice Project, Rule of Law Index <https://worldjusticeproject.org/rule-of-law-index/>.

67 See the exploration of the traditional ‘forms’ of the rule of law in Kristen Rundle, Revisiting the Rule of Law (Cambridge University Press, 2022).

68 A V Dicey, An Introduction to the Study of the Law of the Constitution (1st edn, 1885) 172.

69 Ibid 177–8.

70 Ibid 208.

71 Judith Shklar, ‘Political Theory and the Rule of Law’ in A C Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell, 1987), 5.

72 Dylan Lino, ‘The Rule of Law and the Rule of Empire: AV Dicey in Imperial Context’ (2018) 81(5) Modern Law Review 739.

many adhere to a related belief that for the rule of law to exist, the law itself has to be more than just words on paper; it has to be actually respected and enforced by government actors. The idea is that, the law itself has to be more than just words on paper; it has to be actually respected and enforced by government actors.

Dicey’s account of the rule of law is commonly categorised as a ‘thin’, formal or procedural approach. On such an approach, the rule of law requires that laws possess certain formal qualities and can be enforced through certain procedures. To revisit Dicey’s account, laws should have the formal qualities of being relatively precise in their language and general in their application, and they should meet the procedural standards of being developed and enforceable through the courts. Another famous thin account of the rule of law was put forward by the Oxford legal philosopher Joseph Raz. In Raz’s view, the rule of law requires laws that possess the formal qualities of being prospective, open, clear, public, certain and relatively stable, and that those laws are accompanied by a set of procedural mechanisms: an independent judiciary, a limited form of legislative and administrative review, open and fair hearings and accessible justice.73

Raz spells out some important implications of adopting this approach to the rule of law:

‘[i]t says nothing about how the law is to be made: by tyrants, democratic majorities, or any other way. It says nothing about fundamental rights, about equality, or justice.’ 74

In other words, the rule of law does not mean ‘the rule of good law’.75 According to Raz: a non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.76

For Raz, because the rule of law is just one among many different things we should value in a political system, sometimes it may be necessary to depart from the rule of law in certain respects in order to achieve other important goals.77

Formal and procedural approaches to the rule of law can be contrasted with ‘thick’ or substantive approaches. These approaches emphasise that, in addition to meeting procedural requirements, the laws must uphold certain substantive values connected to morality, especially through protections for human rights. This element is evident in the 2004 definition of the rule of law offered by the United Nations for its own working purposes:

[The rule of law is a] principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure

adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decisionmaking, legal certainty, avoidance of arbitrariness and procedural and legal transparency.78

In late 2006, former English House of Lords justice Lord Bingham of Cornhill gave an influential speech setting out eight subrules of the rule of law.79 His fourth subrule states that the ‘law must afford adequate protection of fundamental human rights’, which he acknowledges ‘would not be universally accepted’ as a part of the rule of law. 80 However, he points out that the preamble to the 1948 Universal Declaration of Human Rights states that: ‘It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Bingham rejects Raz’s contention that a state which represses or persecutes sections of its people could be regarded as observing the rule of law, even if the persecution of the minority were the subject of detailed laws duly enacted and scrupulously observed. In his view, this would strip the rule of law of most of its virtue. He does not set down what rights in particular must be protected by the rule of law, but somewhat vaguely leaves this up to each society. In contrast to Raz, Bingham sees a necessary connection between law and morality. He believes that the rule of law relates to good law, and not just any law that is good formally and procedurally.

Critics of substantive approaches to the rule of law warn of the dangers of conflating everything that is good and desired with the rule of law, particularly in relation to equality, democracy and human rights. Legal philosopher John Tasioulas has referred to this tendency in rule of law discourse as ‘conceptual overreach’, 81 packing into the term ‘all the values we ideally hope the law will realise’.82 In 1987, Shklar suggested ‘it would not be difficult to show that the phrase “the Rule of Law” has become meaningless thanks to ideological abuse and general over-use’.83 Shklar’s criticism was not motivated by an argument to abandon the idea, but, rather, to sharpen and rethink its focus as one on the balancing of the relationship between state power and its subjects.

While most accounts of the rule of law emphasise the importance of constraining state power, upholding the rule of law also inevitably demands empowering the state. The rule of law requires state actors to secure it in practice: if the law is to rule, it must be widely implemented and enforced, and this requires the empowerment of state agents, even where they may be implementing and enforcing the law against other state agents. The most obvious state actors that need to be empowered to implement and enforce the law are courts and investigatory and enforcement agencies within the executive, including anti-corruption bodies. For the law to rule, institutions such as parliaments must also be empowered to

78 The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies—Report of the Secretary General, 58th sess, Agenda Items 37 and 156, UN Doc S/2004/616 (23 August 2004) 5 [11] (emphasis added).

79 Lord Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67.

80 Ibid 75.

81 John Tasioulas, The Inflation of Concepts’, Aeon (online, 29 January 2021) <https://aeon.co/essays/ conceptual-overreach-threatens-the-quality-of-public-reason>.

82 Ibid.

83 Sh klar (n 71) 1.

create the (precise, general, stable, rights-upholding, etc) laws that are to govern society in the first place. Moreover, while the rule of law is supposed to limit arbitrary state power, this implies that non-arbitrary state power may be benign, or even valuable and necessary. Indeed, according to rule of law theorist Martin Krygier, the purpose of the rule of law is best understood as being ‘to temper or moderate the exercise of power … not necessarily to weaken or shackle it’. For Krygier, the rule of law, instead of simply constraining state power, creates the conditions for ‘positive uses of power … to flourish’.84 On this account, the rule of law suggests a positive role for government, the ‘harnessing of power to good purpose’.85

Despite broad agreement about the rule of law’s importance, it has not been without its critics. As we have already introduced above, anti-colonial critiques of the rule of law look at how historically Western-centred accounts of the rule of law are thick with cultural assumptions, including particular Christian understandings of morality, the role of capitalism and the acceptability of human exploitation, and conceptions of liberalism and individualism that had emerged during the Enlightenment period of the seventeenth and eighteenth centuries in Europe.86 Indigenous traditions of political order and law do not necessarily share these assumptions, 87 often having different understandings of the individual and the collective within society, 88 the role played by connection and obligations to land, and the nature of law itself.89

A related critique is that spreading the rule of law to supposedly ‘uncivilised’ peoples has historically served as a central justification for Western colonialism—even as Western powers frequently departed from the rule of law by subjecting non-Europeans to the arbitrary violence involved in colonial expansion and rule. 90 In a historical, legal and anthropological study of rule of the law through images, interdisciplinary scholar Desmond Manderson studies the experience of Aboriginal people in Van Diemen’s Land (now Tasmania) in the 1820s and 1830s at the height of the ‘Black War’. 91 Manderson argues that not only were Aboriginal people denied the benefits of the rule of law, and subjected to arbitrary violence and dispossession (some of which was sanctioned by the law), but the Western-centric standards of the rule of law were weaponised to justify the denial of its protections. Manderson explains

84 Krygier (n 61) 205.

85 Ma rtin Krygier, ‘Tempering Power’ (UNSW Law Research Paper, 21 December 2015) 13 <https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2714692>.

86 See, eg, Eve Darian-Smith, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (Bloomsbury Academic, 2010).

87 See, eg, Irene Watson, ‘Indigenous Peoples’ Law-Ways: Survival Against the Colonial State’ (1997) 8(1) Australian Feminist Law Journal 39–58.

88 See, eg, John Borrows, Freedom and Indigenous Constitutionalism (University of Toronto Press, 2016).

89 See, eg, Hadley Friedland and Val Napoleon, ‘Gathering the Threads: Indigenous Legal Methodology’ (2015) 1(1) Lakehead Law Journal 16–44.

90 See, eg, Rande Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford University Press, 2005); Keally McBride, Mr Mothercountry: The Man who Made the Rule of Law (Oxford University Press, 2016).

91 De smond Manderson, ‘The Law of the Image and the Image of the Law: Colonial Representations of the Rule of Law’ (2012) 57 New York Law School Law Review 153.

that Aboriginal people were assessed as not ‘worthy’ of the rule of law. The British believed that, in order to properly ‘civilise’ Aboriginal people to the point they could benefit from the rule of law, the British would have to suspend the rule of law in relation to them.

These criticisms raise the question of whether a more culturally sensitive approach to the rule of law would be to focus less on prescribing a long list of specific criteria such as prospective and clear laws, an independent judiciary and human rights guarantees, and more on the broader objective of preventing arbitrary power. By recognising that the prevention of arbitrary power can be achieved in many different ways in different societies, such an approach to the rule of law would better reflect the diversity of traditions of lawfulness, including those practised by Indigenous peoples. In her work, Revisiting the Rule of Law, legal theorist Kristen Rundle argues returning to the underlying purpose of the rule of law brings us back to two often overlooked dimensions of the rule of law: the form of the rule of law, focused as it has been on rules rather than the wider set of practices that constrains power, and the people of the rule of law: who benefits and who is burdened. 92 She argues that focusing on the rule of law’s purpose of constraining arbitrary power helps us see ‘why it has persistently been the case that certain people are missing within—or missing out from—rule of law thought and practice alike.’ 93

The rule of law has also been subjected to significant criticism from those on the ideological left. As we have already seen with Dicey, some of the most prominent theorists of the rule of law have espoused an anti-state liberalism and seen the rule of law as a bulwark against government intervention in economic and social life. As Shklar has explained, economist Friedrich Hayek, an influential proponent of a procedural account of the rule of law as published in his 1944 book, The Road to Serfdom, was highly motivated by his desire to see the governmental powers conferred during the war rolled back, particularly to allow the free-market economy to flourish away from government control. 94 For progressive critics, libertarian accounts of the rule of law unduly limit the role of the state in redistributing wealth and promoting substantive equality across individuals within society.

According to some Marxists, the rule of law is an ideological mask that conceals class domination and the exploitation of workers under capitalism—and the role of law in achieving that domination and exploitation. Similar critiques were made by members of the Critical Legal Studies movement from the late 1970s, 95 who argued that the law is not neutral but represents the interests of the powerful within society. By contrast, the celebrated British Marxist historian E P Thompson famously declared the rule of law to be ‘an unqualified human good’, 96 on the basis that its procedural requirements had historically enabled oppressed classes to

92 Rundle (n 67) 48–65.

93 Ibid 53.

94 Sh klar (n 71) 1, 9. Similar concerns have been raised with respect to rule of law indices promulgated by the World Bank in developing countries.

95 Cr itical Legal Studies was a movement begun by American scholars to critique the dominant legal ideology on the basis of its conservatism and disengagement from politics.

96 E P Thompson, Whigs and Hunters: The Origins of the Black Act (1975) 266.

resist domination by the ruling class. As Rundle has explained, a central question within this ideological debate is the extent to which the rule of law ‘might productively be reconciled with the positive work of public law in the context of a well-functioning administrative state’. Even for those who see the rule of law as vehicle that has historically served the interests of the powerful, there may be value in ‘working with the idea, rather than against it, to investigate how it might support more participatory and inclusive political agendas.’ 97

In Australia, it is generally accepted that the Constitution protects some—but not all— of the procedural aspects of the rule of law, 98 with protections of more substantive aspects relying on a complex mix of political and legal constitutionalism. Debates in Australia about the existence of the rule of law and its nature—as formal and procedural, or substantive—is only part of a much richer and more ideological debate about how the rule of law can protect established interests or promote those historically marginalised and opposed within the state system. We return to many of these debates throughout the book, particularly as we look at the historical development of the institutions of the state in Australia (Chapter 2), the treatment of Aboriginal and Torres Strait Islander peoples during the violence and dispossession of colonisation and since that date (Chapter 3), and in relation to the protection of human rights (Chapter 4), the accountability of the executive (Chapter 10), and the role of the judiciary and protection of judicial independence and process (Chapters 11 and 12), and statutory and constitutional interpretation (Chapter 13).

THE FUNCTIONS OF PUBLIC LAW: EMPOWERMENT AND CONSTRAINT

As we defined it earlier, public law is the branch of law that governs the state. But what, more specifically, does public law do when it governs the state? What are the functions of public law? Public law is most commonly associated with constraining the power of the state. Many of the standard institutions of public law that we discuss in this book bring first to mind the central role played by public law in constraining public power—often referred to as holding the state, or public power ‘accountable’—and are typically justified on that basis.

Consider some central examples of public law institutions constraining the state. Constitutions are typically forms of ‘higher law’ that are more difficult to change than other laws, and which thereby limit the lawmaking powers of the legislature. Constitutional guarantees of human rights impose limits on the kinds of laws that legislatures can make and on the sorts of actions that executive agents can take. The separation of powers divides the power of the state functionally among different governmental branches and, in so doing, limits the power that may be wielded by any one branch. Federalism—a constitutional arrangement in which

97 Rundle (n 67) 45.

9 8 See the description of the Australian system in Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011).

power to govern is divided among national and subnational governments—likewise limits the power that can be exercised by any one level of government. Responsible government is a system in which the power of senior members of the executive is made accountable to and thus limited by Parliament, and and which is ultimately limited—through the system of representative government—by the electors who vote for members of parliament. As we have seen, the constraint of state power is the dominant theme in many accounts of the key public law concepts of the rule of law and constitutionalism.

Constraint of government must be a crucial theme in public law. The modern state’s enhanced capacity to govern has included an unprecedented level of economic and social power. States fund and manage large-scale, well-organised police and military forces. Governments in stable democracies have little fear of alternative power bases within the state threatening their supremacy. They are, then, free to govern in the knowledge of their superior strength. The constraints on this power to govern must, therefore, come from constraints on the legal exercise of powers within the system of public law.

But alongside limiting the power of the state, public law serves an opposite function that is sometimes neglected but equally important:  empowering the institutions of government to make, implement and resolve disputes about laws for the public good. We believe that the positive, facilitative role of public law is inherent in its principles, and must not be obscured by placing too heavy a focus on constraint for its own sake. As we have already seen in our discussion of concepts of the state and state legitimacy, constitutionalism and the rule of law, awareness of both functions—empowerment and constraint of the state—is essential for a proper understanding of public law.

While many traditional public law arrangements are conventionally understood to be concerned with constraining the state, from another angle they can be seen to also involve state empowerment. Constitutions do not simply limit the power of state institutions; they create those institutions and confer power on them to undertake particular functions. The separation of powers can be understood not only as a way of limiting power but also as a positive allocation of power to institutions whose attributes are designed to ensure the exercise of that power promotes the public good. As for federalism, far from being exclusively concerned with the constraint of government power, it also involves the positive granting of powers to multiple governments. As the case of Australia demonstrates, establishing a federal system often involves the creation and empowerment of an entirely new national government to rule over previously disparate polities, exercising power in ways that the separate polities themselves were unable to do alone. While the key public law ideas of the rule of law and constitutionalism undoubtedly involve constraint of the state, as we have explained above, a deeper understanding of those concepts shows that they cannot be disconnected from state empowerment.

To constrain one part of the state often means empowering another part. The legal protection of human rights through a bill of rights is an obvious example. Bills of rights are designed to constrain the power of both the legislature and the executive to infringe human rights. And yet, the enforcement of bills of rights—if constitutionally entrenched—typically takes place in the courts. In other words, constraining the legislature and executive through

a bill of rights simultaneously involves empowering the courts to monitor their compliance with it.

A commitment to both empowering and constraining the state is evident across diverse political traditions and ideologies, even as the emphasis on constraint and empowerment can differ. 99 For example, the tradition of liberalism tends to place most stress on limiting the power of the state. While liberalism comprises a diverse body of thought and practice, a core liberal commitment is to the protection of individual liberty. And for many liberals, the greatest threat to individual liberty comes from the state, given the state’s monopoly on the legitimate use of force.100 For this reason, liberals have often favoured public law institutions that limit state power, such as restrictions on the size and powers of the executive branch, the separation of powers between different government branches to ensure that no one institution has too much power, federalism to check the strength of the national government, legal protections for individual rights, and judicial review to monitor the legality of actions undertaken by the legislature and executive.

Despite the tendency within the liberal tradition to focus on the importance of constraining state power, liberals of all stripes have acknowledged that empowering the state in certain respects is necessary, even desirable, for protecting individual freedom. Some liberals have espoused a kind of ‘social liberalism’, which sees the need for certain forms of state empowerment—such as government supervision of industrial relations and the state provision of welfare support like healthcare, pensions and unemployment payments—to enhance individual and collective wellbeing and overcome unfreedom that can prevail in the market. Social liberalism has played a dominant role in the history of Australian politics, though since the late 1970s it has been partly supplanted by neoliberalism.101 While neoliberalism is often associated with the rolling back of state institutions to make greater room for ‘free markets’, in both theory and practice neoliberals have also recognised that certain kinds of state empowerment—expanding the authority of state agencies to maintain competitive markets, for example, or creating independent central banks to combat inflation—are essential for the task of expanding market relations and protecting them from democratic control.102 Even the most anti-statist libertarians concede the need to empower state institutions, such as courts and police, to enforce contracts and property rights.103

99 The major exception is anarchism, which seeks the abolition of the state. Some forms of socialism, e specially Marxist variants, envisage a future in which the state will become superfluous and disappear.

100 See, eg, Edmund Fawcett, Liberalism: The Life of an Idea (Princeton University Press, 2nd ed, 2018); Annelien de Dijn, Freedom: An Unruly History (Harvard University Press, 2020) chs 5–6.

101 Ma rian Sawer, The Ethical State? Social Liberalism in Australia (Melbourne University Press, 2003); Damien Cahill, ‘The Contours of Neoliberal Hegemony in Australia’ (2007) 19(2) Rethinking Marxism 221.

102 See, eg, William Davies, ‘The Neoliberal State: Power Against “Politics”’ in Damien Cahill et al, The SAGE Handbook of Neoliberalism (Sage Reference, 2018) 273.

103 See, eg, Ayn Rand, ‘The Nature of Government’ in Ayn Rand, The Virtue of Selfishness: A New Concept of Egoism (Signet, 1961) 76.

Republicanism—a political tradition related to but distinguishable from liberalism— likewise exhibits a concern for both constraining and empowering the state. In the history of Anglophone political thought, republicanism emerged to prominence as an ideology espoused by parliamentarian opponents of King Charles I during the English Civil War of the 1640s. They argued that being subject to and dependent on the arbitrary will of the King was akin to a slave’s subjection to their master, and saw freedom coming from a state governed by the will of the whole people.104 Here, we can see a desire both to limit state power—by abolishing unconstrained monarchy and making the state accountable to the people—and to empower the state—by creating a government under popular self-rule.

In an influential contemporary treatment of republicanism by the philosopher Philip Pettit, the republican concern with both constraining and empowering the state is also clear. On Pettit’s account, whereas the distinguishing trait of liberalism is to guarantee individual liberty by ensuring people are free from interference, republicanism is concerned to ensure that people are free from domination 105 On Pettit’s reading of the liberal tradition, constraining the state becomes the central political objective, since state action inevitably interferes with individuals and violates their freedom.106 By contrast, when freedom is instead understood in a republican sense as non-domination, constraining the state remains vitally important, but only insofar as it is about limiting arbitrary state power. This means creating a state constrained by the rule of law, legal constitutionalism, the separation of powers and democratic accountability.107 At the same time, in this republican vision, the state must actively be empowered in order to stamp out forms of domination that occur in other domains of social life, such as the family, the market and the workplace.108

Within the broad church of socialist thought and practice, emphasis is often placed on empowerment of the state as a key means for realising human freedom. Socialists have typically seen the substantial economic power possessed under capitalism by wealthy individuals and corporations as the greatest threat to human flourishing, so they have tended to favour the expansion and empowerment of the state, especially in the economic realm, to overcome that threat. In one of the classic socialist texts, The Communist Manifesto (1848), Karl Marx and Friedrich Engels envisaged the realisation of socialism through the state imposition of steeply progressive taxation, state ownership of all land and communication and transport infrastructure, a state-owned banking system, the expansion of state-owned enterprises and state provision of free public education, among other things.109 From 1921, the ALP declared in its national platform that the Party’s ultimate aim was ‘[t]he Socialisation of Industry, Production, Distribution and Exchange’110 —in other words, state ownership of and control over central dimensions of the economy, including the nationalisation of state primary

104 Quentin Skinner, Liberty Before Liberalism (Cambridge University Press, 1998).

105 Ph ilip Pettit, Republicanism : A Theory of Freedom and Government (Oxford University Press, 1997).

106 I bid.

107 Ibid ch 6.

108 Ibid ch 5.

109 Ka rl Marx and Friedrich Engels, The Communist Manifesto (1848).

110 Au stralian Labor Party, Official Report of Proceedings of the Ninth Commonwealth Conference (Labor Call, 1921) iii.

resources such as gas and coal. To progress towards that aim, the ALP platform also called for an expansion of the national government’s power by giving the Federal Parliament unlimited legislative authority, removing constitutional protections for federalism and the states, and abolishing the Senate.111 From a very different angle, the record of ‘actually existing socialism’ in places like the former Soviet Union and Communist China demonstrates incontrovertible dark sides of state empowerment, manifest in those states’ frequently repressive and at times extremely murderous institutions when rendered immune from meaningful legal restraint or democratic control.112

But socialists have often also been extremely sceptical of state power and many have insisted on the necessity of limits on state power for the realisation of socialist ideals.113 For Marx, the legal protection of individual rights from state interference was an important historical advance, even as he believed that those rights could not be adequately realised under capitalism and that some rights (such as rights in certain kinds of private property) were the source of exploitation.114 In Australia, the emergence in the mid-twentieth century of organisations dedicated to protecting civil liberties against legislative and executive encroachment was driven primarily by socialists and social democrats.115 Perhaps the dominant theme in socialist thought on the importance of constraining the state emphasises democratic accountability, either through making the state itself more democratic (for instance, through universal suffrage, elected and recallable state officials, and guarantees of freedom of expression, association and assembly)116 or by reducing the state’s reach to make room for decentralised forms of self-government in communities and workplaces.117

The twin functions of public law in empowering and constraining the state can be identified across different theories of state legitimacy and state power, and within core public law concepts that we have already discussed in this chapter. There is, however, substantial disagreement about the appropriate extent and location of state power, as well as the nature of the constraints that should exist and who should have the final say in relation to them. In all public law systems, there will be formal rules that govern these matters, but they must also be understood by reference to the practice of power. The study of any public law system involves an understanding of the particular version of power and constraint that exists in a

111 L F Crisp, The Australian Federal Labor Party 1901–1951 (Longmans, Green and Co, 1955) 240–2.

112 Ju lia Strauss, ‘Communist Revolution and Political Terror’ in Stephen A Smith, The Oxford Handbook of the History of Communism (Oxford University Press, 2014) 355.

113 In fact, the political horizon for many Marxist socialists is a future in which the state will no longer be necessary and, in the words of Engels, simply ‘wither away’: Friedrich Engels, Anti-Dühring [Herr Eugen Dühring’s Revolution in Science] (1878) pt 3, ch 2.

114 Igor Shoikhedbrod, Revisiting Marx’s Critique of Liberalism: Rethinking Justice, Legality and Rights (Palgrave Macmillan, 2019) ch 3.

115 Ja mes Waghorne and Stuart Macintyre, Liberty: A History of Civil Liberties in Australia (University of New South Wales Press, 2011).

116 Rosa Luxemburg, The Russian Revolution [Die Russische Revolution. Eine kritische Würdigung] (1918/1922).

117 See, eg, Rainer Eisfeld, ‘The Emergence and Meaning of Socialist Pluralism’ (1996) 17(3) International Political Science Review 267; Benjamin Ask Popp-Madsen, ‘Workers’ Councils and Radical Democracy: Towards a Conceptual History of Council Democracy from Marx to Occupy’ (2021) 51(1) Polity 160.

particular constitutional system as practised at a particular time, and the points of ongoing disagreement and tension about how and why that position should be different.

Contextualising public law: institutions, values and interests

We have emphasised that understanding public law requires attention to the rules that constitute it, the concepts that underpin it and the functions that it serves. We have also highlighted that our understanding of public law must be informed by its actual practice. This includes paying attention to the wider contexts in which public law emerges and operates. In this book, we emphasise the importance of studying public law against the backdrop of institutions , values and interests. Throughout the book, we draw on a range of approaches— including theoretical, historical, case study and comparative analyses—to explore the ways in which public law is influenced within a wider terrain of institutions, values and interests. Through this approach we consider the contingency of public law, the practice of public law by state institutions and the experience of public law by individuals and groups. Much depends on internal and external factors that are distinct from the public law rules themselves.

Institutions

Public law is created, interpreted, implemented and changed by the institutions and officers through which states exercise power, so an important dimension of public law is to understand the origin and function of these institutions, and the practice of the actors within them. Of course, these state institutions—such as legislatures, courts and executive agencies—are themselves created and governed by public law rules. The membership and role of these institutions vary across states depending on the system of political organisation that they employ. In Australia that system is often described as liberal democracy. Australia’s liberal democracy has adopted its main institutions of state and its principles of public law predominantly from precursors in the UK and the US, but Australia has fashioned these institutions and principles into a uniquely Australian public law. The centrality of institutions to public law is reflected in this book’s structure, which reflects the key public law institutions of Parliament (Part II), the Executive (Part III) and the Judiciary (Part IV).

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The need for differentiation between institutions was studied by a group of legal theorists in the 1950s and 1960s in the US.118 The result, known as ‘legal process theory’, attempts to identify the different institutional attributes and match those to government functions and government powers. The process theorists were, at the core, asking which state institutions were best suited to which state functions. They were particularly concerned about the different

118 The most famous legal process theorists were Hart and Sacks: Henry M Hart and Albert M Sacks, The L egal Process: Basic Problems in the Making and Application of Law (Foundation Press, 1994) 148 (prepared for publication from the 1958 Tentative Edition by William N Eskridge Jr and Phillip P Frickey); see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980).

institutional strengths and roles at work in the courts (composed of independent judges trained in legal reasoning) and the legislatures (composed of democratically elected representatives of the people). Many of their concerns about the strengths of each institution continue to be reflected in contemporary debates about designing modern public law institutions, such as anti-corruption commissions.119

Values

Public law is also shaped by the values of the actors involved in creating, interpreting and implementing it. There is nothing natural or neutral about any given system of public law: it will always be a human creation that embodies particular understandings about how the state should be organised, how it should operate and the ends it should serve. Indeed, the very idea that human communities should be governed by a state at all—the precondition for public law as we have defined it—is a novel one at odds with the values of many people and societies throughout human history.

The values underpinning public law are as varied as those operating within the domain of modern politics more generally. Some of the most foundational political values remain the three canonised during the French Revolution: liberty, equality and fraternity (or community). A range of political ideologies can be seen as the heirs of the Revolution and its declared values, including liberalism, socialism, anarchism and nationalism. But as the divisions between and within those ideological positions make clear, the meanings of liberty, equality and community have always been deeply contested. In 1790, the British politician and philosopher Edmund Burke penned a famous denunciation of the French Revolution on the grounds that, by upending long-established institutions and hierarchies, it disregarded the wisdom embodied in experience and tradition.120 While Burke’s critique can be seen partly as a defence of the values of liberty and community against what he saw as their perversion by the revolutionaries, it was also an assertion of the values of respect for tradition and established authority—values that would become central to modern conservatism. But even this by no means exhausts the values at play in modern politics, which are many, varied and contested. They include values and ideas relating to security, stability, material wellbeing, honour, forgiveness, efficiency, the pursuit of greatness, ecological sustainability and respect for human dignity.

In some ways, the centrality of values to public law is obvious. Key public law concepts and principles are frequently justified in terms of the values that they serve. Many accounts of public law put the value of liberty, in the sense of individual freedom from state interference, at the heart of public law ideas such as the rule of law, constitutionalism, the separation of powers and federalism (though whether and how these public law ideas actually serve the goal of liberty has been subject to debate). Beyond protecting individual liberty, we can see many other values reflected in core public law concepts. In the institutional specialisation generated

119 See, eg, Grant Hoole and Gabrielle Appleby, ‘Integrity of Purpose: A Legal Process Approach to Designing a Federal Anti-Corruption Commission’ (2017) 38(1) Adelaide Law Review 397.

120 Ed mund Burke, Reflections on the Revolution in France (Penguin Books, 1986).

by the separation of powers, we can see the value of efficiency. In federalism’s recognition of the existence and equal standing of pre-existing political communities, we can see the values of community, diversity and equality. In representative democracy’s guarantee to each qualified member of the body politic an equal say in the selection of their rulers, we can see the values of community and equality, as well as a vision of liberty that emphasises the freedom which comes from collective self-government. In legal constitutionalism’s entrenchment of fundamental rules and institutions, we can see the value of respect for tradition. These are just some of the ways that values are commonly seen to be connected to public law.

By contrast, in the domain of adjudication by the courts, whether over public law rules or otherwise, the centrality of values is resisted by some commentators and scholars. The idea that legal disputes can be resolved purely by considering the relevant legal materials, without resorting to values, is known as legal formalism (which we explore further in Chapter 13). That position has historically had many adherents among Australian lawyers, including on the High Court. One of the signal achievements of the American legal realist movement, which originated around the turn of the twentieth century, was to undermine the plausibility of legal formalism. The legal realists persuasively demonstrated that, in many cases, judicial resort to values is inevitable because the legal materials are simply too indeterminate to decisively resolve legal disputes. Importantly, this point holds true regardless of whether judges acknowledge (or even realise) their reliance on values in making decisions. As Australian constitutional law professor Rosalind Dixon has written, ‘[w]hether explicitly or not, Australian courts routinely consider a range of political and moral values in making constitutional decisions—the question is simply when and how openly they do so, and on what sources they rely in giving content to relevant values’.121

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One of the central instruments of Australian public law, the Australian Constitution, is sometimes erroneously represented as a politically neutral, value-free document. According to this view, the Constitution is a practical and legalistic instrument of government, devoid of the appeals to values made in other constitutions because it lacks declarations of high principle and guarantees of individual rights.122 But since the Constitution reflects many key public law concepts and principles (the rule of law, constitutionalism, the separation of powers, federalism, representative democracy, responsible government and so on) which are themselves value-laden, the Constitution cannot be anything other than value-laden too. Framed more critically and in historical terms, the Constitution was drafted by wealthy, white, settler men whose ideological outlooks ranged between liberal and conservative and who espoused common commitments to settler colonialism, empire, capitalism, monarchy, white supremacy and patriarchy. The Constitution they drafted inevitably reflected their values. Of course, the Constitution is given meaning in its contemporary context, and it will be applied and interpreted by individuals working in the legislature, the executive and the courts in light of that contemporary context. However, the extent to which those

121 Rosalind Dixon, ‘Functionalism and Australian Constitutional Values’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018) 3, 4.

122 See Dylan Lino, ‘The Australian Constitution as Symbol’ (2020) 48(4) Federal Law Review 543.

individuals can—and should—breathe contemporary values into the Constitution is limited and contested. Many calls for formal constitutional reform and amendment throughout Australian history—from republicans, nationalists, feminists, First Nations peoples, socialists and others—have reflected a desire to transform the values that underpin the Australian Constitution.

Interests

Finally, public law is shaped by the interests of the actors who create and develop it, and of groups in society more generally. The idea that social phenomena (including legal phenomena) can be explained by reference to the interests of the people involved in and affected by them is fundamental to the modern social sciences. For instance, it is an axiom of a great deal of modern economics that individuals act in ways that seek to maximise their own interests. That idea, originally used to explain economic phenomena, has been adapted by ‘public choice’ theorists to explain political phenomena and by ‘law and economics’ theorists to explain legal phenomena. From another perspective, in political science, a common way of understanding politics, known as pluralism, is to see it as a competition among different interest groups within society. These interest groups—political parties, corporations and business owners, workers and trade unions, religious organisations and so on—compete to have their policy preferences upheld in processes of political decision making, including in the creation, interpretation and implementation of laws.123

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Interests also play an important explanatory role in many social scientific fields that adopt a critical stance towards existing societies. For critical race theorists such as AfricanAmerican law professor Derrick Bell, legal outcomes can be explained by reference to the interests and power of different racial groups within society. Bell argued that legal advances for African-Americans would not be achieved ‘where the remedy sought threatens the superior social status of middle and upper class whites’, but only where there was a convergence in the interests of African-Americans and white people.124 Scholars in the field of settler-colonial studies have argued that, in settler-colonial societies such as Australia, the fundamental social dynamic is one where Indigenous peoples and settlers have competing interests in Indigenous peoples’ land. On this account, settler actions follow a ‘logic of elimination’ that seeks to dissolve Indigenous societies and secure settler interests over Indigenous territories.125 Feminist social scientists have sought to demonstrate how contemporary societies operate in innumerable ways—including through legal arrangements—that systematically advantage the interests of men and disadvantage

123 See, eg, Robert A Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control (Yale University Press, 1982).

124 Derrick Bell, ‘Brown v Board of Education and the Interest-Convergence Dilemma’ (1980) 93(3) Harvard Law Review 518, 523.

125 See Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8(4) Journal of Genocide Studies 387.

the interests of women.126 Within Marxist social science, social phenomena within capitalist societies can be explained as the outcome of struggles between the working class and the capitalist class to advance their respective interests.

There are thus many different perspectives to help understand how public law is shaped by a range of individual and collective interests at work within contemporary societies. In this book, we do not adopt any rigid stance about which of these perspectives ought to be adopted, though elements of many of them will be evident in the chapters that follow.

We suggest that a useful way to examine the role of interests in public law is to ask: who wins and who loses from a given principle, rule, decision, law, arrangement or system of public law? Whose voice is heard, and whose is not, in the course of developing a policy, making a law or coming to a decision? Although these questions are simple, answering them is not always straightforward. As we have already seen from the diversity of perspectives discussed above, different people will provide different answers to the questions depending on their viewpoint. But thinking about who benefits from particular public law arrangements, who is disadvantaged by them and whose voice is heard in relation to them provides an important lens for understanding how public law operates in practice.

OUR APPROACH TO PUBLIC LAW

Throughout this chapter, we have already explained much of the way we analyse public law in the remainder of this book. In particular, we have explained how we look at the dual functions of public law—empowerment and constraint—to understand contemporary public law, as well as explaining that the development of Australian public law must be understood in its context, and we have drawn out three key contextual factors to look out for: institutions, values and interests.

In this book, we endeavour to explain the Australian public law rules, concepts, principles and institutions so as to provide foundational understandings of the modern practice of public law in the Australian state. We explain the public law rules, concepts and principles as they exist in statutes and in judicial pronouncements, as well as in the settled practice of the state. We explain the current position by reference to its historical—contextual—development.

In this respect, we also endeavour to explain that the contemporary public law of any state is continually open to contestation. This is because it is a result of historical contingencies and the contemporary practice and intersection of institutions, values and interests. As we have already seen, this contestation can mean that there may be competing explanations of contemporary public law, and certainly that there is contestation for the future direction of public law. Public law is a political, social and economic phenomenon that can have dramatically different impacts on individuals and groups who have

126 See, eg, Graycar and Morgan (n 14).

relationships with the state. As we have already done in this opening chapter, we approach public law by interrogating the interests, assumptions and voices that are privileged by the current position, and consider what interests, voices and values have been excluded from it, and the reasons why.

Our approach to public law looks ahead to the future of public law in Australia, and the development and reform of public law. Through this interrogation, we invite students of public law to engage with the question of whether the current public law framework reflects and serves the interests of different groups of people in a fair way, or whether public power unjustly privileges some while bearing more harshly upon others.127

There is no one right way to organise an exploration and critique of Australian public law. It is a rich tapestry of ideas and concepts to facilitate understanding of the relationship between us, the people, and the state in which we reside. In this book, we have chosen a structure that starts in Part 1 with foundational narratives and principles of understanding the structure of the state and public law in Australia. Chapter 2 uses a historical analysis to discuss the development of Australian public law from its British colonial origins. This chapter provides the context to understand modern public law institutions, rules and issues as a contingent evolution of this colonial history, subject to a variety of contextual pressures. Chapter 3 addresses the foundational fact of Australia’s colonial establishment, and the various dimensions of the ongoing relationship between the First Nations—the Aboriginal and Torres Strait Islander peoples—and the Australian state. Moving from the foundational history, Chapter 4 introduces one of the core concerns of public law across the world: the protection of human rights. The chapter explores the different ways in which human rights operate to limit the power of the Australian state and empower it to protect and enforce them. As the chapter makes clear, the protection of human rights in Australia remains an area of ongoing debate and agitation for reform. Chapter 5 introduces the core organising principle of federalism, and explores the rules and institutions of federalism while considering how the principle operates to empower and constrain the state, the subnational units and the people within them. Chapter 6 is the final chapter in this first part, and provides the international context for understanding Australian public law: it explains the international influences on the development and practice of public law in the Australian state.

Parts 2–4 (Chapters 7–13) are organised according to the functions and powers of the core Australian public law institutions: the Parliament, the executive and the judiciary.

Part 2 looks at the relationship between the Australian people and their representatives, with a focus on the Parliament. Chapter 7 explores the idea of the ‘people’ in the Australian democracy, as well as principles of democracy and representative government; Chapter 8 turns to look at the functions, powers and procedures of the Australian parliaments.

127 On the importance of critical thinking in public law, see Gabrielle Appleby and Rosalind Dixon, ‘Critical T hinking in Constitutional Law and Monis v The Queen ’ in Gabrielle Appleby and Rosalind Dixon (eds), The Critical Judgments Project: Re-reading Monis v The Queen (Federation Press, 2016) 1.

Part 3 examines the administrative state—the large and complex institution otherwise known as executive government. Chapter 9 introduces the executive and its many institutions and actors, and discusses the various sources of public law that empower it; Chapter 10 then looks at different ways in which public law constrains executive power, that is, holds the executive to account.

Part 4 finishes the book by looking at the role of the judiciary in the state. Chapter 11 provides an overview of the institution of the judiciary, the concept of judicial power, and the importance in our public law system of its separation from the other government powers. Chapter 12 looks at how Australian constitutional doctrines concerning the judiciary—in particular, on the separation of judicial power and the institutional integrity of the judiciary—have developed in our public law system to offer important institutional and rights protections. Chapter 13 addresses the judiciary’s important role in interpreting statutes and the Constitution, and the principles, doctrines and methods that influence their interpretive choices.

DISCUSSION QUESTIONS

1 What purpose does the distinction between the public and the private serve in law? To what extent has the distinction historically acted to oppress and subjugate certain groups of people? Does it still work that way today?

2 Identify three different ways that ‘sovereignty’ is used in public law, as explained in this chapter. Given these different meanings, is sovereignty still a useful public law concept?

3 Explain the core distinction between the theories of political constitutionalism and legal constitutionalism. Identify the strengths and weaknesses of each theory, and how a system of public law might be designed to address these weaknesses.

4 How different are the procedural (‘thin’) and substantive (‘thick’) approaches to the rule of law? How does each approach protect human rights?

5 Make a list of the different actors—individuals, groups and institutions—that affect how public law is developed and practised. Which of these individuals, groups and institutions have historically had the most influence? How might this have shaped the way public law operates in Australia today?

FURTHER READING

Appleby, Gabrielle and Rosalind Dixon (eds), The Critical Judgments Project: Re-reading Monis v The Queen (Federation Press, 2016)

Borrows, John, Freedom and Indigenous Constitutionalism (University of Toronto Press, 2016)

Dixon, Rosalind (ed), Australian Constitutional Values (Hart Publishing, 2018)

First Nations Constitutional Convention, ‘Uluru Statement from the Heart’ [2017] Indigenous Law Resources 1

Lino, Dylan, ‘The Australian Constitution as Symbol’ (2020) 48(4) Federal Law Review 543

Lino, Dylan, ‘The Rule of Law and the Rule of Empire: A V Dicey in Imperial Context’ (2018) 81(5) Modern Law Review 739

Loughlin, Martin, Against Constitutionalism (Harvard University Press, 2022)

Oliver, Dawn, Common Values and the Public–Private Divide (Butterworths, 1999)

Rundle, Kristen, Revisiting the Rule of Law (Cambridge University Press, 2022)

Saunders, Cheryl, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011)

Shklar, Judith, ‘Political Theory and the Rule of Law’ in A C Hutchinson and P Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell, 1987) 5