August 20, 2015

On the rule of law

By Martin Krygier
On the rule of law
A judge. Source
What it is, why it matters, and what threatens it

On 11 August, the Joint Parliamentary Committee on Human Rights released an unsung but remarkable critique of the government’s bill to allow dual nationals to be stripped of their Australian citizenship.  Again and again, the committee finds that the Australian Citizenship Amendment (Allegiance to Australia) Bill ignores, overrides or subverts a swathe of human rights, both substantive and procedural. What is the significance of that? Is it just technical legal stuff, which ordinary folks needn’t bother about? Or is there something more at stake? I think so. Underlying the committee’s meticulously detailed filleting of the bill is an implicit but fundamental concern: the bill is serially and seriously incompatible with the rule of law.

Everyone praises the rule of law. No one, least of all the government in this officially trumpeted year of the 800th anniversary of Magna Carta, ever admits to violating it. However, the phrase is used in so many ways for so many purposes, that one could be forgiven for thinking that many who speak of it don’t know what they’re talking about. Notwithstanding all this confusion, many people – and I am one – believe we are talking about something very precious.  What is it, and why should we care?

“The rule of law” is a small phrase that points to large values centrally focused on the ways power is exercised. It emphasises the need to temper power, moderate its exercise, so that it cannot be exercised at the will and caprice of power-wielders, and so they are required to take into account the views, interests, defences and explanations of those their power might harm. The extent to which such tempering, moderation, channelling, constraint occurs is, in the last instance, the test of the strength of the rule of law.

Why should that matter? Listen to any discussion of the rule of law down the centuries and you will quickly hear another phrase: “arbitrary power”. That is the prime enemy and target of the rule of law. It is enemy because arbitrary power threatens the freedom, dignity and security of the lives of all who are subject to it.

And what makes power arbitrary? When power-wielders are not adequately controlled, the grounds for their exercise of power unspecified and untestable, that power beyond serious question or review, there’s a problem. Even if you have that, but power-wielders are inclined and able to use their power without any need to provide space for its targets to be heard, to question, to inform, or to affect the exercise of power over them, there’s another problem. Neither problem is a good one to have. The Australian Citizenship Amendment (Allegiance to Australia) Bill, in its meagre nine pages, deliberately and systematically invites both.

A couple of examples. The bill declares that dual nationals automatically “renounce” their Australian nationality, either by specific conduct inconsistent “with their allegiance to Australia” or on the basis of a conviction for any one of 57 offences under criminal law.

In the former case, since the culprit is unlikely to shout “I renounce Australian citizenship”, how does one find out? Nothing is said, so only the Minister for Immigration and Border Protection is left to declare the renunciation has occurred. What counts as evidence? Again, nothing is said, except that rules of natural justice do not apply, the powers are to be exercised by the minister alone (in other words, without judicial process), and Section 39 of the ASIO Act, which prohibits action from being taken on anything less than an ASIO “security assessment” “does not apply in relation to this section”. So there are no criteria the minister has to satisfy in making the decision. It’s all up to him. As the Joint Committee observes, “In practice, a decision may be made that a person has lost their citizenship on the basis of supposition and conjecture as to whether they may have engaged in specified conduct. This could apply when the person is not in Australia and not in a practical position to challenge the lawfulness or correctness of this decision.”

Apart from renunciatory conduct, conviction for any of 57 criminal offences (including “destroying or damaging” “any property belonging to the Commonwealth”) can be sufficient ground for “renunciation” of citizenship. So treat your local postbox with new respect. These “renunciations” are permanent, even though some of the listed offences presently carry maximum sentences of only five years.

So, ex-citizens will often be in no position to influence how their conduct is construed by the minister, or even know that it is being considered, that evidence is being assembled, that the minister being advised. And how will they learn of their altered status? Rules in the existing Citizenship Act, which require the Minister to give the person notice of the decision and reasons for it, also do not apply. In relation to each citizenship-stripping decision, the minister must merely “give notice … at such time and to such persons as the Minister considers appropriate”, that is, to anyone or no one at any time or no time.

A central ambition of the rule of law is at all times to maintain the difference, as the legal philosopher Jeremy Waldron has put it,  between treating people as persons with interests and a voice that needs to be heard, and treating them as we might treat “dilapidated houses or rabid dogs”. We might add that Waldron’s distinction is not qualified by race, religion, or nationality. No person, however unpleasant, however threatening, should be treated like a dilapidated house or a rabid dog, even where it might be right to treat them very severely indeed. When power can be exercised arbitrarily, however, the distinction tends to vanish.

Those with power and responsibilities are sometimes impatient with the rule of law, not because they are monsters but often for honourable motives: they believe it gets in the way of their effective exercise of power for good purposes. They’re wrong about that, because untempered power is commonly ill-informed, and its results destructive, sometimes crazy. And it gets away with it, often at great cost, for a time.  Many practices of the rule of law do not, after all, merely constrain power. They require that it be exercised on the basis of evidence, tested and refined by argument, and publicly justified. They inform it, channel it in fruitful directions in ways and for reasons that citizens can examine, question, and rely upon. The rule of law does not merely constrain caprice, it enables thoughtfulness. This all makes it less likely that power will flail about harmfully and destructively, both to itself and to others, as often occurs when the heat’s turned up. Think of Dr Haneef. But power-holders often don’t like to worry about any of that, particularly when they feel under pressure.

Since pressures on government are relentless, so too are pressures to short-change the rule of law. So when we wonder about legislative inroads on rule-of-law constraints, whether in this bill, or in ASIO legislation to grant officers engaged in “special intelligence operations” vast immunity from civil and criminal liability, or in migration laws that systematically block asylum seekers’ access to courts, the central question should not be “Is there a law or procedure or constitutional argument that can give such practices cover?” Rather, we should ask “How does this square with the values that make the rule of law precious?” If the answer is “with difficulty” then we have a problem. And if we’re moved to ask that question very often, we have a very large problem, not just for potential ex-citizens but for us all. 

Martin Krygier

Martin Krygier is a professor of law and social theory at the University of New South Wales. He is the author of Civil Passions: Selected Writings, a collection of essays. He also writes extensively on issues of political and legal theory and morality, particularly the rule of law, and central and eastern European politics and law.

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