Australia and the ‘rule of law’

Elsewhere there might be the sultan’s caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law’s bureaucracy and the auto-da-fe of the Inquisition. In England by contrast, king and magistrates were beneath the law, which was the even-handed guardian of every Englishman’s life, liberty and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters could be heard piping them (though for different purposes).[1]

In this stylish statement Roy Porter pointed to the rule of law’s popularity as a rhetorical device in eighteenth century England where it was ‘the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.’[2] Arising out of struggles between the monarchy, Parliament and the courts, the rule of law sought to protect individual liberty and private property by placing constraints on arbitrary authority. The ruling class used the rule of law ideology to enhance their power, but it also acted as a break on that power. All citizens from the monarch to the poorest citizen became bound by the rule of law and could settle their disputes in the courts presided over by judges, who were independent of manipulation.[3]

Most people in both English society and British colonial settler communities believed that the rule of law also had substantive content and was a highly flexible notion. The list ranged from the inherently legal to the explicitly political. Its meaning depended on who was employing it and for what purpose. In one form or another the rule of law embraced: the right to justice by the judgement of one’s peers conceded in Magna Carta and trial by jury (both elements of claims of an Ancient Constitution); habeas corpus, a protection solidified during the latter half of seventeenth century[4]; freedom from suspension of or dispensation from laws of Parliament secured after the Glorious Revolution of 1688; the independence of the judiciary established by the Act of Settlement 1701[5] but not operative in the colonies until the middle third of the nineteenth century and its corollary, the right to a trial according to law and established legal procedures involving the application of rational principles; and, freedom from intrusion and arrest by the use of general warrants developed by the courts during the mid-eighteenth century.[6] Closely allied and overlapping with the rule of law were a series of ‘constitutional rights’, some of which seemed settled, at least in Britain, such as no taxation without representation and the right to petition the Crown and others protections such as freedom of the press, freedom of association, freedom of assembly, and freedom of conscience.

The ideology and practice of the rule of law were exported to Britain’s colonies. According to the English jurist William Blackstone, writing in 1765,

...if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For the law is the birthright of every subject, so wherever they go they can carry their laws with them.[7]

But, as David Neal has pointed out, in practice this depended on the circumstances of the colony. Neal seeks to discover what the rule of law meant in the particular circumstances of the Australian penal colony of NSW from its foundation in 1788.[8] As convicts, ex-convicts, and their children made up an increasingly large proportion of the population (87 per cent in 1828 and 63 per cent in 1841), British governments wanted liberty to be restricted by their representatives, the governors and that did not augur well for the rule of law. Until 1823, governors ruled in an autocratic manner and had extensive discretionary powers but agreed with the British government that the transported criminals needed to be kept under close surveillance and punished firmly and quickly if they broke the rules.[9] Colonists whether free settlers (the Exclusives) or ex-convicts (the Emancipists), felt they were too closely watched and demanded that the rule of law be recognised as protection against the arbitrary rule of the governor. While the colonists waged their campaign for civil and legal rights, the courts became ‘a sort of broking house of power.’[10] Colonists expressed their opposition to the actions of governors, while governors sought to have their actions and authority legitimised by judicial process. Even convicts soon learned to use the magistrates’ courts for their own purposes.

Neal argues that the political ideas and discourse of the colonists were based on their English legal inheritance as systematised by Blackstone in his Commentaries on the Laws of England.[11] They claimed ‘no more than their rights as free-born Britons, rights guaranteed by the Magna Carta, Habeas Corpus, the Bill of Rights, [and] the Act of Settlement.’ Seeking ‘to forge a new social and political order out of the penal colony’, they demanded an independent judiciary, trial by civilian, not military, jury, and representative government.[12] The first important step in consolidating the rule of law in NSW occurred in 1824 when the newly established Supreme Court began to hear cases. It was staffed by judges appointed in England who supported the principles of the rule of law and were a major counterweight to the power of the governors. The achievement of a nominated legislature, the development of a free press and the introduction of civilian jury trials were also significant landmarks in entrenching the rule of law. But it was not until a partially elected legislature was formed in 1842 that, Neal argues, NSW finally changed from a penal colony to a free society, a situation helped by the ending of transportation to the colony.

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[1] Porter, Roy, English Society in the Eighteenth Century, (Penguin), 1982, p. 149.

[2] Thompson, E.P., Whigs and Hunters: The Origin of the Black Act, (Penguin Books), 1977, pp. 263-264; see also Hay, Douglas, ‘Property, Authority, and the Criminal Law’, in Hay, Douglas, et al, (eds.), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, (Penguin), 1977, pp. 17-63

[3] According to Neal, the rule of law had at least three elements: ‘general rules laid down in advance, rational argument from those principles to particular cases, and, at least in a developed form, a legal system independent of the executive for adjudication of disputes involving the general rules.’ These elements must be applied in the everyday working of the legal system and not be used by the governing classes for rhetorical effect or only when convenient to their interests. See ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 67.

[4] This right was given legislative recognition in the Habeas Corpus Act 1679.

[5] The constitutional position of the judiciary was established in the Act of Settlement, 1701, s 3.

[6] See Leach v Money (1763) 19 State Trials, 981; Entick v Carrington (1765) 19 State Trials, 1045.

[7] Blackstone, William, Commentaries on the Laws of England, (University of Chicago Press), 1979, Vol. 1, pp. 104-105.

[8] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. xii, 15, 32 and 64.

[9] For the debate on the kind of convicts sent to Australia, see Garton, Stephen, ‘The Convict Origins Debate: Historians and the Problem of the ‘Criminal Class,’’ Australian and New Zealand Journal of Criminology, Vol. 24 (1991), pp. 24-82 and Dyster, Barrie, ‘Convicts’, Labour History, Vol. 67, (1994), pp. 74-83.

[10] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, p. 190.

[11] Ibid, Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, pp. 23 and 25.

[12] See, Blakeney, Michael, ‘The reception of Magna Carta in NSW’, Journal of the Royal Australian Historical Society, Vol. 65, (2), 1979, pp. 124-142.