ROBODEBT AND THE RULE OF LAW
“At its most basic level, the rule of law is the concept that both the government and citizens know the law and obey it.”
This description comes from the Rule of Law Education Centre, whose resources help students understand the role the rule of law plays in our society. It is important work, as demonstrated by the Robodebt Royal Commission.
The Commission is still to report. But based on the evidence presented, it seems possible the Commission will find that the Australian Government (as a collective) knew the law and chose not to obey it. An alternative finding might be that government acted without proper regard to the law.
Either would represent a failure in the rule of law. The first would be diabolical.
Rule of law emerged as a concept in a number of ancient societies. Its basic requirement – to know and obey the law – applies to equally to the rulers and the ruled, to those with power and those without. Over time it has proved one of the most important, yet most elusive, principles supporting good government.
Aristotle saw the concept as an important constraint on power. In around 300 BCE, he argued that “if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws”. Ancient Romans might have understood the concept as nemo est supra leges – no one is above the law.
More than 2000 years after Aristotle, jurist Albert Venn Dicey is credited with popularising the concept in Victorian England. For Dicey, sovereignty of parliament and supremacy of the law were key. His view was that executive government’s role was to implement the law without discretion or regard for its impact.
The approach is intellectually neat but somewhat naïve.
As a matter of practice, it is impossible for the slow-moving processes of parliament and courts to keep-up with the scale and pace of society. The legislative foresight needed from parliament to cope with every nuance and complexity of society is equally unrealistic. These problems, in part, led Plato to promote a more flexible ‘philosopher king’ model of government in around 370 BCE.
Philosophical umbrage has also been taken at the notion of amoral officials implementing the law without regard for its impact. The 2011 World Justice Project noted, for example, that this approach would leave implementation of apartheid laws within the rule of law. Lord Bingham has separately argued that the rule of law needs to embrace within it a strong conception of universal rights. The attraction of Bingham’s idea masks a delicate and complex debate, which continues.
In the UK and Australia today, executive government moves quickly and exercises enormous discretionary power. Legislation is often broad in its drafting and subject to varying interpretation. Courts limp slowly behind society. As a consequence, the true meaning of the law only reveals with the passage of time.
One suspects that Dicey, were he alive today, would find this all very irritating.
Australia and the UK are not alone in having a discretion-filled executive. A century or so before Dicey, French philosopher Montesquieu (who, like Aristotle, Plato and Beyoncé, was so famous he needed no other name) inspired the framers of US constitution to pursue a different model. This model included a powerful executive and the strictest separation of powers between the executive, parliament and courts the world had seen. Despite their different structures, all three nations proudly promote both the rule of law and separation of the powers.
Rule of law is an encompassing concept. Within it, Robodebt begs a specific question – how can executive government be confident it knows and obeys the law?
The position on obeying the law is clear. Section 4.2 of the Ministerial Code of Conduct prohibits ministers from encouraging or inducing public officials to breach the law. Section 13 of the Public Service Act sets out the APS Code of Conduct, which requires public servants to comply with all applicable laws. Vigilance is needed, and the courts are the ultimate arbiter, but intent is clear.
To obey the law, however, you need first need to know it. This is easier said than done. Uncertainties exist and understanding shifts, as courts interpret and, within the bounds of precedent, reinterpret the law.
The High Court’s judgements on the Pape and Williams cases provides an example. Until these cases, executive government believed (reasonably it seemed) that it had a relatively unfettered power to spend. Pape and Williams turned this on its head, creating much consternation within, and legislative scrabbling by, executive government.
Uncertainty does not relieve executive government of its responsibility to know the law. Ignorance is also not, and should never be, an excuse.
Tools are available to help. Since 1982, draft legislation includes an explanatory memorandum to clarify its aims and purpose. These ‘exmos’ are not part of the law but respond to the inherent difficulty of converting policy intent into legislative meaning.
For social security legislation, a guide exists to help interpret the law. Part 1.3.1 of the Guide makes clear, for example, that the legislation is to be interpreted beneficially. Ambiguity is meant to be resolved in favour of individual social security recipients - something the Royal Commission will doubtless reflect on.
Legal opinion, as highlighted by the RC process (surely it is time to acronymise Royal Commission), can be a critical tool. Opinion, though, is not definitive. The value of legal opinion depends on the specific question asked. Answers can be heavily caveated, reflecting underlying uncertainties in the law.
Other possibilities also exist. Helen Irving has, for example, explored whether the High Court should be empowered to provide advisory opinions where uncertainty exists. She found arguments on both sides. Advisory opinions might reduce uncertainty. But they may also bring the court too close to executive government – offending separation of the powers.
Government also has the option of enacting clarifying legislation. As part of the Northern Territory Emergency Response, for example, parliament suspended the Racial Discrimination Act to guarantee the legality of some executive actions. Leaving aside the merits of the example, pursuing this option is subject to two constraints. First, parliament must agree. Second, the legislation must be constitutionally valid.
A compounding factor is the pace with which executive government operates. Creating greater legal certainty, through clarifying legislation or (if available) advisory opinions takes time. A fundamental mismatch exists between the tempo of executive government and that of parliament and the courts. Delay is something modern executive government has little – sometimes too little - tolerance for.
These issues mean that executive government actions often involve a degree of legal uncertainty. It is here where what Steven Levitsky and Daniel Ziblatt call the soft guardrails of democracy come into play.
Soft guardrails are the voluntary norms and standards which guide the practice of government. Robodebt suggest that ours might need strengthening.
One approach might be for government to establish a transparent standard for the level of legal risk it feels is consistent with operating within the rule of law. Establishing a consistent standard would send a strong signal to public officials about the importance of the rule of law and would better enable the actions of government to be publicly assessed.
The obvious question is: what standard?
The law itself provides a possible conceptual starting point. Criminal cases are decided against a standard of ‘beyond reasonable doubt’. Civil cases, by contrast, are decided on a lesser ‘balance of probabilities’ standard. These, perhaps, set the boundaries of what might be appropriate.
Variations within these boundaries are also possible. One might be that government needs, and should be willing to demonstrate publicly, a ‘sound reason to believe’ its planned actions are legal.
Adopting a clear soft guardrail (standard) would demonstrate executive government commitment to the rule of law. But it is not a minor decision, and its implications are potentially significant.
Questions raised by the Pape and Williams decisions apply to a substantial amount of Commonwealth expenditure. These questions remain unresolved by the court. A high standard (say beyond reasonable doubt), if applied diligently, could substantially change the shape of Commonwealth spending and result in a quite different balance of power with the states. A high standard might also limit executive government’s ability to respond quickly (or at all) to some emerging events.
Whether these specific outcomes would be good or bad is debatable. It emphasises the importance of taking a careful, deliberate approach to setting any standard.
Ultimately, the law is the law. Adherence to a soft guardrail does not change this. A court may still find an executive government with (say) ‘a sound reason to believe’ to be acting illegally. Like all soft guardrails, its value lies in promoting good behaviour from government – not guaranteeing an outcome.
Stricter adherence to the rule of law is also no guarantee of good policy. An open question exists about what would have happened had the Commonwealth successfully legislated for Robodebt. Legality may have been resolved, but what was manifestly bad policy may well have remained.
Even so, the rule of law is critical concept underpinning our society. It deserves our attention and better protection.