HAJO DUKEN. No one is above the law

This sounds so obvious and innocent. However, in times of raids on journalists and the national broadcaster, moves to substantially curtail the liberty to protest, the prosecution of Witness K and his lawyer, and many other clashes between the law and our liberties, do we not have every reason to be suspicious and ask what politicians really mean when they lecture us that ‘no one is above the law’?  

Whenever a political leader in Australia or anywhere else in the world sees the need to refer to  the authority of the law, I can’t help but remember the promise by Vladimir Putin in his first presidential campaign of 2000, namely to create a ‘dictatorship of the law’ in the Russian Federation. Back then, the meaning of this phrase and the underlying intentions were widely discussed by academics and in the media, both in Russia and elsewhere. Was it merely a reference to the ‘rule of law’, or rather an acknowledgement of the power the law can grant to those who want to fundamentally reshape a natioIn a democracy, laws are the product of a process in which the views of a majority prevail. As lawmakers are always humans and laws are not per se good or bad just because they are made by a majority, all democracies in the world accept that more safeguards and checks and balances need to be in place to protect societies against what is often referred to as ‘tyranny of a majority’ or ‘elective dictatorship’.

If we, as a nation, feel that governments threaten or fail to protect our liberties, it seems logical to compare our freedoms and constitutional checks and balances with the best examples around the democratic world.

Standard constitutional safeguards found in modern democracies include the following:

(1) The principle of ‘separation of powers’ which divides state power between the legislature, executive and judiciary.

(2) A well-resourced judiciary that is (to the largest extent possible) independent from legislature and executive.

(3) The establishment of two-chamber parliaments combined with the requirement that all or certain laws require approval in both chambers.

(4) Some nations are set up as federations in which state powers are divided between federal and state levels. Examples include the US, Canada, Germany, Austria, Russia, Brazil, India and, of course, Australia. The European Union, whilst not formally a federation, is based on federal principles and sometimes described as a de facto federation.

(5) In parliamentary democracies, particularly in those that are not constitutional monarchies but republics, the powers of the head of state/president may also be designed to limit the power of parliament. Individual constitutions may grant a head of state the independent right to dissolve parliament, refuse or initiate the appointment or removal of a prime minister, or refuse signing an act of parliament into law.

(6) Electoral systems that ensure that every vote has equal weight.

(7) The protection of individual rights, freedoms and liberties in a nation’s constitution.

Australia is very well set up as far as (1) to (4) are concerned. (5) is highly relevant to the ongoing monarchy v republic debate and requires a deeper analysis at another time. The same applies to (6) which captures one of the oldest questions in modern democracies, namely whether majority or proportionate voting systems are more democratic. Germany and New Zealand with their very similar mixed systems seem to be the platinum standard here. The Mixed Member Proportional system in NZ was introduced as a response to the perception that NZ may in fact have been an elective dictatorship. It also guarantees seats to the Maori population.

In relation to (7) we certainly lag dramatically behind almost the entire rest of the world.

The inclusion of a catalogue of basic/human/civil rights into a country’s constitution reconciles the inherent tension between the concept of democracy as majority rule and the importance of individual liberties in a democratic society, and the need for a certain level of protection of those liberties against the collective. Individual rights are exactly that: rights of individuals, small groups or institutions who rarely have the support of the majority and sometimes not even the support of anybody else.

In the vast majority of countries in the world, it is (at least in principle) considered entirely logical that parliament (as the body elected and governed by majorities) cannot be (solely) relied on to protect individual rights and freedoms. On the contrary, it is internationally widely accepted that individual liberties need protection also against parliaments, and only independent courts can be tasked with striking the balance between the will of the majority (as expressed in laws passed by parliament) and individual rights, and their powers must include the power to strike down laws as unconstitutional. Only communist countries (where the communist party always has supremacy) and countries rooted in the British system have fundamental problems accepting those principles. The reason for the latter lies in the ancient English doctrine of ‘sovereignty of parliament’ according to which parliament is supreme over all other state bodies, has the right (without limitation) to pass any laws it thinks fit, and the judiciary can therefore not have the power to declare acts of parliament (laws) invalid.

Whilst the concept of parliamentary sovereignty is still upheld as a general principle in Australia, it is not disputed that any such sovereignty is subject to Commonwealth and State constitutions. The constitutions bind parliaments, and the courts have the power to enforce them, including by striking down laws as unconstitutional.

However, the powers of the courts to limit the powers of parliament only exist to the extent that the relevant constitution provides guarantees, safeguards and rights. Unfortunately, the Australian Constitution only includes a very limited number of (express or implied) individual rights. With regard to standard liberties like freedom of the press, freedom of speech, freedom of religion and freedom to protest, it by and large remains silent leaving the relevant parliament of the day with the absolute power to grant, remove or limit such freedoms in any way it thinks fit. In Australia, parliament are the only source of law in relation to those freedoms. When members of the government (supported by a majority in parliament) tell us that no one is above the law, what they really say is this: ‘(With regard to liberties) we have absolute power.  We are the law and we do whatever it takes to ensure the law is enforced. We define, grant and remove liberties as we wish.’ Or in other words: L’ état, c’est nous!

Although there are voices in Australia who suggest that the lack of protection of human rights and civil liberties can only be rectified by way of incorporating a bill of rights into the Australian Constitution, it has always surprised me how strongly many lawyers, journalists and other ‘influencers’ in society object to this approach on grounds that go far beyond the obvious practical difficulties like the high procedural hurdles for changing the Constitution. It has been argued that the elected parliament is best suited to protect human rights and civil liberties and any constitutional change would place too much power in the hands of ‘unelected’ judges. I find those arguments bizarre. In all Western democracies, the trust in politicians (including those we elect) is at a low, and courts (particularly the highest courts) appear to enjoy among the highest levels of trust of all state institutions. Further, Australia is already a constitutional democracy (with a written constitution) that recognises the High Court as the supreme guarantor of our Constitution and democratic system. In addition, a closer look at all Western democracies with a modern constitution including a bill of rights shows: it works; those democracies are well alive and functioning, and people are generally very happy to rely on (constitutional) courts for ensuring that politicians do not overstep constitutional boundaries. Moreover, the mere existence of a bill of rights has such a disciplining effect on lawmakers that cases in which the courts actually need to intervene are very rare.

Those who are campaigning for a better protection of the freedom of the press and other freedoms, the status of refugees, and the recognition of indigenous rights and voices, should be careful not to be fobbed off with yet another commission or an act of parliament (like a Media Act as occasionally suggested). It might be time to acknowledge that a stable and lasting protection of individual and human rights and civil liberties as well as a meaningful recognition of the rights and status of indigenous Australians can only be achieved through a systematic overhaul of our constitution. A united front of media organisations, indigenous representatives, universities and organisations representing the legal professions, could well be influential enough to start this process. We should also recognise that we have a large number of professionals with practical experience in other constitutional democracies in our country who could be of invaluable assistance in finding the best constitutional approach. A modern constitution with a strong bill of rights, a permanent indigenous voice (why not in the form of a guaranteed number of indigenous seats in parliament like in NZ) and a transition to a republic with a head of state that is more than one in name only, is not beyond reach.

Hajo Duken is a lawyer admitted in Germany and Australia. He lives in Sydney.

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3 Responses to HAJO DUKEN. No one is above the law

  1. Terry O'Brien says:

    I agree that no one is above the Law. However, this seems not to apply to the Government and certain members of secret organisations when they flagrantly breach international convention and decency. Hopefully the High Court has the moral stamina to throw out the case against our truth sayers.

  2. ANDREW FARRAN says:

    In the matter of human rights our Constitutional and legal structure is defective, as explained in the above article. To rectify all at once this, and the other shortcomings noted, would be a political and human task beyond the improbable. It might be better to tackle these issues in smaller portions.

    To begin with we would benefit from a Charter of Human Rights with Constitutional status, not a mere and potentially impotent legislative instrument that would not displace inconsistent or otherwise paramount legislation.

    Some may recall that when the human rights issue was raised with Prime Minister Menzies in his day he would assert that these were protected by the Common Law and there was no need to go beyond that. With the sort of draconian legislation now in vogue, including that which authorises secret trials and the withholding of evidence, the Common Law has provided little if any legal protection. Meanwhile the Courts would benefit from more judges of the calibre of the late Lord Justice Denning MR, who through creative techniques of statutory interpretation was able to overcome or work around oppressive legislation.

    • Hajo Duken says:

      Many thanks, Andrew.
      Your point regarding the Common Law is well made and important.
      My impression is that the ‘smaller portion’ approach has not really worked so far. The most recent example is the reaction to indigenous demands for a voice.
      As constitutional reform almost always faces the fiercest resistance from the political establishment, it might be worthwhile to start with a mere academic project to write a model Cth constitution. Once finalised, the model could then serve as a basis for the public debate.

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