Next Monday, June 15, marks the 800th anniversary of King John's signing of the Magna Carta in 1215. As we near this milestone it is a good time to reflect on one of the ideas this foundational document engendered — the rule of law.
It's often a concept taken for granted in liberal democracies. But an honest appraisal of the contemporary political and legal landscape in Australia demonstrates that we have strayed far from the principles that have evolved over the course of 800 years of English common law.
Just last week, the Australian Securities & Investments Commission chief told a Senate committee he wanted to investigate and prosecute companies for having "poor corporate culture".
Such a proposal is a parliamentary counsel's nightmare. Drafting a law that captures the complexity of workplace culture and turns it into a clear legal obligation is an impossible task.
The more likely outcome is a series of ambiguous words with vague definitions that give rise to discretionary power over company directors and senior managers. And wherever there is discretion in the law it becomes impossible to understand one's legal obligations.
Anyone should be able to go to the statute books, or read through legal decisions, and understand what is required of them under the law.
Arbitrary power is the enemy of the rule of law. But successive governments are falling over themselves to inject more uncertainty into our legal system, and to do away with bedrock principles of liberal democracy.
One of the most important reforms that came from the signing of the Magna Carta was the creation of the "common counsel", which decided whether taxes could be imposed. It would later lead to the principle that parliament has the power of the purse.
The former Gillard government turned this idea on its head when it shepherded through the parliament the Financial Framework Legislation Amendment Bill (No 3) 2012. This law handed to the executive the power to make grants in more than 400 areas of public policy. At the time it was described by University of Sydney law professor Anne Twomey as an "act of hara kiri".
In December last year, I released a report into the state of fundamental legal rights in Australia. That report revealed that 262 provisions in current commonwealth acts of parliament breached one of four legal rights: the presumption of innocence, the right to silence, the privilege against self-incrimination or the principles of natural justice.
This disregard for the rule of law is not an exclusive problem of the commonwealth. Recent decisions of various state governments have also sounded the alarm on the state of the rule of law in Australia.
In April this year, the High Court ruled that the NSW Independent Commission Against Corruption had acted outside its powers in the investigation of a case that properly fell outside its jurisdiction.
The response of the NSW government has been to enact a law that retrospectively grants ICAC more power to effectively annul the decision of the judiciary.
Time will tell whether such a clear breach of the rule of law will hold up against legal challenge.
The Victorian government also considered passing special legislation to avoid paying compensation due to the East West Link consortia.
Meanwhile, the Western Australian government has passed a piece of legislation that ends litigation still before the courts, strips the right to appeal, and ensures a financial windfall to the government.
It is clear that our liberties won't disappear overnight. But recent decisions of government at the state and federal level show that it's a death by a thousand cuts we need to be vigilant about avoiding. This protracted and constant erosion of our rights must end.
And with the celebration of the 800th anniversary of one of the greatest symbols of freedom from oppression, what better time to start than right now.
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