On Freedom

The Hon Robert French, until very recently the Chief Justice of Australia, gave the 2017 Law Oration about the rule of law in the Banco Court of the Supreme Court of Victoria.  You can read it or watch it here.  He cited authority for a proposition which I occasionally find a failure to grasp bedevils young lawyers’ thinking about problems.  It is that if there is not a law against it, you’re free to do it, in Australia at any rate.  You do not need a positively expressed ‘right’ to be entitled to do something (like be a bigot).  There is in fact no positively expressed right to be a bigot; rather the freedom to be a bigot, to the extent it exists, is an incident of your general freedom not having been curtailed by laws limiting that freedom.  Paradoxically, the Attorney-General would be on stronger ground in asserting the existence of his ‘right’ if his government worked some human rights, like freedom of speech, into the Constitution or even just enacted a federal charter of rights.

Of course sometimes it is nearly impossible to know whether a rule applies, and that is bad.  Incomprehensible laws undermine the rule of law, as do laws which ought never have been made and which are never used (like most of the criminal offences in the Legal Profession Act 2004). What, for example, is the meaning of r. 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, a piece of subordinate legislation made under the authority of the Legal Profession Uniform Law (Vic.)?  That rule, a bad rule, says: ‘A barrister must not engage in conduct which is … discreditable to a barrister’.  Equally poor a law is the prohibition on barristers engaging in conduct which is ‘prejudicial to the administration of justice’, also in r. 8.  What even is the ‘administration of justice’? That is a question I have actually had to think about, and the answer is not entirely clear.  Breach of these rules actually gets prosecuted.

Might this blog post, in which I scorn unduly broad laws made by unelected bureaucrats, which can be used lazily by prosecutors who personally don’t approve of certain conduct of their colleagues even though it does not infringe any specific norm, prejudice the administration of justice by ‘bringing the law into disrepute’ (whatever that means)?

Getting back to what should be a most elementary proposition, what the former CJ said was:

‘In a judgment given in 1995, the eminent English jurist, Sir John Laws, encapsulated that idea neatly when he said:

“For private persons, the rule is you may do anything you choose which the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions.” [R v Somerset County Council; ex parte Fewings [1995] 1 All ER 513, 523]

In making that observation Sir John Laws drew an important distinction between the position of a human and that of a public authority. For a public authority the rule is different — any action to be taken must be justified by positive law. That is a proposition which is important to the idea of the rule of law so far as it applies to the exercise of official power.’

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