Since March 2020 Australia’s governments have been using their powers to excessively coerce, obstruct or otherwise unreasonably interfere with the life, liberty and property of the citizen. These governments are exercising emergency powers to impose measures that profoundly undermine basic principles of the rule of law, including equality before the law and the right of citizens to be protected from unpredictable and arbitrary interference with their vital interests. On the pretence of fighting a virus, draconian measures have been adopted that profoundly violate the Australian Constitution and the inalienable rights of the individual.
When laws are created to regulate coercion and violence, the government can never undermine the inalienable rights of the individual. That being so, writes Trevor Allan, a constitutional law professor at Cambridge University, the concept of the rule of law encompasses “traditional ideas about individual liberty and natural justice and, more generally, ideas about the requirements of justice and fairness in the relations between governors and governed”. Indeed, an important element of the rule of law is that laws must limit, control and guide the exercise of discretionary power. As Professor Allan points out,
It would be foolish to ignore or deny the real threat to liberty that such discretionary powers present; they leave the citizen at the mercy of the judgement of public officials, who may have little incentive to allow even reasonable objections to thwart their pursuit of their own policy agendas. There is a danger of oppression or unfairness, even when officials are well intentioned and act in good faith in (what they deem) the public interest”.
The realisation of the rule of law depends, however, “as much on characteristics of society as of the law, and on their interactions”. This ideal of legality is not just a matter of “detailed institutional design” but, primarily, an “interconnected cluster of values” that can be pursued in a variety of legal-institutional ways. Indeed, the fact it has often “thrived best where it was least designed” appears to indicate that the realisation of the rule of law is not just about legal-institutional design but also social-cultural outcomes.