2. MARCO TEÓRICO
2.2. FUNDAMENTACIÓN TEÓRICA
2.2.1.6. Tipos de desintegración familiar
& Le Roy850 Stephen851 Equality before the law Clarity & stability of law Accessible Courts Judicial Independence Natural Justice Limitations on Exercise of Power Discretion limitations Human Rights Congruence of law and social values Integrity of Legality
The elements in these lists relate to the elements of the rule of law, not the legal validity of a law that does not comply, as Crawford observed. Crawford, above n 822, 21-22.
844 Crawford, above n 822, 39. 845 Raz, above n 813, 214-218
846 Bingham, above n 826, 37, 48, 55, 60, 66, 85 & 90. 847 Fuller, above n 843, 39.
848 Tamanaha, above n 829, chapter 9. 849 Walker, above n 824, 24-41. 850 Saunders & Le Roy, above n 843, 5. 851 Stephen, above n 843, 24.
129 | P a g e Aside from the differing elements in the lists, their views also differ regarding the nature of the doctrine. That is, whether it imposes only very formal or ‘thin’ obligations so that, in the words of Raz, the ‘law may … institute slavery without violating the rule of law’;852 or ‘thicker’ obligations which Bingham described as requiring the doctrine to include moral elements protecting human rights.853 While there are other variations in the differing academic views of the elements of the doctrine, most would not disagree with Bingham’s concession that the rule of law is subordinate to the doctrine of parliamentary sovereignty. Accordingly, despite his ‘thick’ views as to the scope of the doctrine, Bingham also accepted that:
Parliament may … legislate in a way which infringes the rule of law; and in which the judges,
consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.854 Beyond those views are those of scholars like Dworkin855 and Allan856 who have, or have
been taken857 as given the doctrine both a ‘thick’ meaning and one which is essential to a
law’s validity. In Allan’s view, ‘the rule of law amounts to a theory of legitimate
government’.858 ‘It is a value internal to law itself’, 859 and requires ‘compliance with those conditions under which each person’s freedom (or liberty) is secured, consistently with the enjoyment of a similar freedom for everyone’.860
The merit of these different and differing views of the rule of law are beyond the scope of this thesis. What is relevant is whether the rule of law operates to narrow the effect of Cowper provisions so that they do not allow interference with police independence. This could occur in two circumstances.
First, if Allan is correct in his view that the rule of law is essential to the validity of law and if the provision of government directions to police is inconsistent with the rule of law.
Second, if Allan is not correct, but that Cowper provisions are considered ambiguous and the doctrine is used to resolve that ambiguity, and if the provision of government directions to police is inconsistent with the rule of law. Such usage of the doctrine would occur in accordance with the principle of legality (which some have also treated as interchangeable
852 Raz, above n 813, 221 853 Bingham, above n 826, 66-84. 854 Ibid 168.
855 Ronald Dworkin, Law’s Empire (Harvard 1986). 856 Allan, above n 828.
857 Crawford makes the point that ‘Dworkin is credited with articulating a substantive theory of the rule of law. However, “one finds virtually no mention of the phrase “rule of law” as such within [Dworkin’s] major work on legal theory”’. Crawford above n 822, 31 & Craig, above n 833, 478.
858 Allan, above n 828, 119. 859 Ibid 88.
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with the rule of law).861 The principle of legality was defined by the United States Chief Justice Marshall in 1805:
Where rights are infringed where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.862
Legality has been well established by the High Court since O’Connor J’s adoption of Marshall’s views and language in Potter v Minahan863 in 1908.
The common element in both circumstances is that the provision of government direction to the police is contrary to the rule of law. That issue is discussed below in Chapter 7.3.4. Before it is discussed, however, it is necessary to consider the other conditions for the two circumstances. The first is whether the Allan version of the rule of law is an accurate reflection of the state of the law in Australia. That issue, due its complexities, is discussed in Chapter 7.3.3 below.
The second is a simpler question: are the Cowper provisions unclear? It is not uncommon for commentators to refer to the vague and ambiguous nature of Cowper provisions.
Examples can be found in the observations of Pitman,864 Finnane,865 Fleming,866 Manison867
and in the Neesham Report.868 This is, however, a puzzling assessment, as those who take
that view seem to ignore the plain meaning of the words used in Cowper provisions,869 the
legislative intent, particularly as expressed by Cowper himself870 and in South Australia in 1972,871 and the contrary of assessment by notable scholars872 whose analysis involved an
examination of those words and their intended meaning. To repeat the views of Waller873 who wrote in 1980 of the clarity of the Cowper provision enacted by South Australia: ‘In no other Australian state had Parliament enacted so recently and clearly legislation expressing the subordination of the police to the executive government’.874
861 Stephen McLeish and Olak Ciolek, ‘The Principle of Legality: Constitutional Innovation’ in Dan Meager & Matthew Groves (eds), The Principle of Legality in Australia and New Zealand (Federation, 2017) 27, 29.
862United States v Fisher 6 US 358,390.
863 (1908) 7 CLR 277. More recent examples can be found, such as Bropho v Western Australia (1990) 171 CLR 1, 18 and X7
v Australian Crime Commission (2013) 248, 92. 864 Pitman (1998), above n 76, 63 & 125. 865 Finnane (1994), above n 117, 39. 866 Fleming, above n 83, 61 & 63. 867 Manison, above n 78, 499.
868Neesham Report, above n 363, Vol 1, 30.
869 In the Neesham Report, the Commissioner seemed to base his interpretation not on the words used, or the parliamentary intent, but instead on ‘the resignations [sic] and dismissals [sic] of police commissioners in Queensland and South Australia’. Ibid 35.
870 See Chapter 3.2. 871 Ibid.
872 such as by Waller, Plehwe and Wettenhall and the Canadian McDonald Report. Waller, above n 55, 255; Plehwe and Wettenhall, above n 56, 80 and McDonald Report, above n 48, 1008 & 1012.
873 Then Leo Cussen Professor of Law at Monash University. 874 Waller above n 55, 255.
131 | P a g e Similarly, Campbell and Whitmore, both notable academics in the fields of constitutional and administrate law, referred to the ‘clear statutory mandate for ministerial direction’ existing in most States.875 Those matters and views were not considered by the commentators who assert that Cowper provisions are vague or ambiguous. Their conclusions seem to be little more than unsubstantiated assertions based on irrelevant factors876 or
misrepresentations.877 Indeed the most puzzling of those views is the reliance expressed in
the Neesham Report on ‘the resignations and dismissals [sic] of Police Commissioners in Queensland and South Australia’878 for the supposed ambiguity of the Victorian provision,
rather than the standard statutory interpretation methodology.
As discussed in Chapter 2, the method of statutory interpretation adopted by the High Court and Supreme Courts in Australia is primarily literalist, relying on the words used. As stated by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority:879
The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation.
Given the clarity of the language used in Cowper provisions, which, as the McDonald Report said of the Canadian equivalent, ‘does not brook much doubt as to where the ultimate authority of direction lies’,880 the provisions cannot be regarded as ambiguous. Accordingly, unless there is some other indication in a particular policing Act of a contrary legislative intention,881 there seems no reason why Cowper provisions should be read as anything
other than what they plainly say.
7.3.3 – Rule of Law – Constitutional Limitation 7.3.3.1 - Canada
The issue of whether the rule of law can be the basis for the invalidity of laws is the subject matter of Crawford’s recent study of the rule of law. She rejected that potential, concluding
875 Enid Campbell & Harry Whitmore, Freedom in Australia (Sydney University Press, 1973) 28.
876 For example, Fleming’s assertion that ‘The law is ambiguous’ derives from the lack of consistency in legislation and from local custom and practice varying between jurisdictions’. It is apparent that Fleming cannot distinguish between ambiguity and variety. Fleming above n 83, 61.
877 Fleming asserts that Finnane asserted that the South Australia legislation ‘introduced further ambiguity’, when Finnane made no such assertion. See ibid, 63 and Finnane (1994) above n 117, 39.
878Neesham Report, above n 363, 19. 879 (2008) 233 CLR 259, 270.
880McDonald Report. above n 48, 1008.
881 Provisions need to be interpreted in the context in which they are found – and one potential issue which might indicate a contrary intention are provisions found in some policing Acts providing the common law powers and provides of constables to police commissioners. This issue is discussed below in Chapter 7.4.
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that ‘the rule of law is unsuited to judicial enforcement, at least within the Australian constitutional framework’.882
It is not intended to repeat or review Crawford’s analysis other than to observe that while she made reference to certain United Kingdom decisions,883 she gave only a superficial
examination to Canada884 where the Courts have not only discussed the issue but seem also to have applied it – in a manner consistent with Allan. Accordingly, it is necessary to
examine the Canadian decisions and their applicability to Australia.
The decision of the Supreme Court of Canada in Campbell, if Roach is correct, applies the rule of law as a ‘substantive limitation on government action’. By substantive, Roach was referring to the invalidity of a law inconsistent with the doctrine.885 As noted earlier, this is
problematic interpretation of the reasoning in Campbell, but the issue remains: has the Canadian Supreme Court accepted that the rule of law can invalidate laws?
In the earlier 1998 decision in Reference Re Secession of Quebec886the Supreme Court
recognised the rule of law as one of the ‘four foundational constitutional principles that are most germane for resolution of this Reference’.887 The Court considered that those
foundation constitutional principles can be used beyond the function of ‘assist[ing] in the interpretation of the text and the delineation of spheres of jurisdiction’.888 While the Court
considered that the constitutional principles ‘could not be taken as an invitation to dispense with the written text of the Constitution’ it considered that they:
may in certain circumstances give rise to substantive legal obligations (have ‘full legal force’, as we described in the Patriation Reference889…) which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and government.890
Despite the apparent breadth of those comments, Elliot in his assessment of that decision, considered that ‘The question of whether the rule of law can function on its own as the basis
882 Crawford, above n 822, 197.
883 Such as R (Jackson) v Attorney-General [2006] 1 AC 262, [107] where Lord Hope stated that ‘the rule of law enforced by the courts is the ultimate controlling factor on which [the constitution] is based’ as well as subsequent decisions expressing the contrary traditional view, such as R (on the application of Miller and Don Santos) v Secretary of State for Exiting the European Union [2017] 1 All ER 158 & [2017] UKSC 5. Ibid 2-3.
884 Ibid 2.
885 There is a certain terminology source of confusion by the use of the word ‘substantive’ in the context of the rule of law – in that the word ‘substantive is used in the ‘thick/thin’ debate regarding the nature of the doctrine to determine whether the doctrine refers to issues beyond those of form, such as human rights. This is a different use of the word ‘substantive’ from Roach’s use of that term - referring to the validity of a law.
886 [1998] 2 SCR 217.
887 Ibid 248. The others are federalism, democracy and constitutionalism. 888 Ibid.
889Reference re Resolution to Amend the Constitution(Patriation Reference) [1981] 1 SCR 753, 845. 890 [1998] 2 SCR 217 249 (emphasis added).
133 | P a g e upon which the validity of legislation can be challenged was not addressed in the Quebec Secession Reference’.891
This seems a questionable view. Not only does the language used by the Court seem to clearly indicate that the rule of law can be used as a substantive limitation upon government action, but the Court also relied on an earlier Supreme Court authority in which the rule of law was given substantive operation to limit the effect of the plainly written constitutional text. In Re Manitoba Language Rights Reference892 the Canadian Supreme Court considered the failure of Manitoba to have complied with a constitutional obligation for bilingual legislation for over a century. The Court recognised that failure to comply with the constitutional obligation meant:
(i) … that the unilingual Acts of the Manitoba Legislature be declared to be invalid and of no force or effect, and (ii) without more, such a result would violate the rule of law.893
The latter conclusion requires some examination as the Court seems to have reached the counter intuitive view that compliance with a documented constitutional requirement ‘would violate the rule of law.’
The basis for this view is that the Court considered that:
The rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principles of normative order. Law and order are indispensable elements of civilised life. ‘The rule of law in this sense implies … simply the existence of public order’.894
It is, however, somewhat difficult to identify the particular normative order interpretation of the rule of law that the court applied from the various and varied views of the theoreticians of the rule of law referred to earlier. Nonetheless, the Court sought to rely on the very ‘thin’ theorist, Raz who they quote as saying:
‘”the rule of law” means literally what it says: the rule of the law … It has two aspects: (1) that people should be rules by the law and obey it, and (2) that the law should be such that people will be able to be guided by it’. The rule of law simply cannot be fulfilled in a province that has no positive law.895
The last sentence in that passage, however, was not from Raz and it is not apparent from his ‘thin’ approach that he would necessarily have endorsed it.
891 Robin Elliot ‘References, Structural Argumentation and the Organizing Principles of Canada’s Constitution’ [2001] 80
Canadian Bar Review 67, 115.
892 [1985] 1 SCR 721. The decision in the Manitoba Language Reference was specifically referred to in the Quebec Secession
Reference, [1998] 2 SCR 217, 249 & 257-8. 893 [1985] 1 SCR 721, 752-3 (emphasis added).
894 Ibid 749. In that passage the Court was quoting W I Jennings, The Law and the Constitution (1959). 895 Ibid 750. In this passage the Court was quoting J Raz, above n 813, 212-13.
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It is important to observe that in Manitoba the Court did not use the rule of law as tool in the interpretation of the constitutional provision. The Court accepted that Manitoba’s unilingual legislation ‘are, and always have been, invalid and of no force or effect’,896 but used its view of the rule of law to develop and apply a ‘de facto doctrine of necessity’ to deem the invalid laws ‘temporarily valid and effective from the date of this judgment to the expiry of the minimum period necessary for translation, re-enactment, printing and publishing’.897
The doctrine of necessity is not used in these cases to support some law which is above the
Constitution; it is, instead used to ensure the unwritten but inherent principle of rule of law which must provide the foundation of any constitution.898
Analysis of that approach is well beyond the scope of this study. The importance and
relevance of the decision to this aspect of this study is that it demonstrates the willingness of the Canadian Supreme Court to give the rule of law a substantive or constitutional role in preference to the clear unambiguous and acknowledged wording of a constitutional provision.
From these decisions it appears clear that the rule of law in Canada, at least, has constitutional effect, capable of both supporting and invalidating law by itself.
7.3.3.2 – Rule of Law – Constitutional Limitation in Australia?
While Canada appears to have endorsed the rule of law as the basis for substantive limitations on legislative provisions, the next question is whether the High Court would give the rule of law the same operation. The short answer to that question is no.
The Canadian cases seem to have been based on a combination of an express reference to the rule of law in the preamble to the Canada’s Constitution (the Constitution Act 1982
(Can)) with a judicial acknowledgement that the rule of law is a ‘fundamental postulate of our constitutional structure’.899
There is no Australian equivalent to the expression of the rule of law found in Canada’s constitutional preamble: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.
However, there can be found some equivalents to the expressions found in Canadian decisions regarding the inherent nature of the rule of law to the constitution. So just as the
896 Ibid 767. 897 Ibid.
898 Ibid 766 (emphasis added).
135 | P a g e Canadian Supreme Court has regarded the rule of law as ‘one of the fundamental and organizing principles’ of the Canadian Constitution900 which is ‘implicit in the very nature of a
Constitution’901and which ‘infuse our Constitution and breathe life into it’902 some views have been expressed in the High Court that have some similarity. The predominant Australian view is the often repeated and referred to view of Dixon J in the Communist Party Case:903
it is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.904
While less dramatically expressed than its Canadian equivalents, Dixon’s view expressed that the rule of law has a role in the constitution. The consequences of this statement in Australia are not, however, clear as the High Court has not considered, as Gummow and