The rule of law is not just a legal abstraction. Its principles of fairness and neutrality are a fundamental part of good public service practice, and a working knowledge of the rule of law can help public servants to do their jobs more effectively, says University of Melbourne Associate Professor Tom Daly.
Dr Daly will be teaching a Melbourne MicroCert, Good Governance: Navigating law for public managers delivered by ANZSOG and the University of Melbourne, and says that the rule of law is based on a long legacy of good government practice that should inform the daily work of public managers – and help them push back against a growing trend towards undemocratic actions by governments.
“The rule of law is not just for lawyers, or about technical legal issues and procedures or complying with the law. It shapes everything we do in government and is a way of thinking about government that gives practical effect to ideas of fairness and equity, and is essential for maintaining a healthy democracy,” Professor Daly said.
Dr Daly says that the rule of law is based on the ‘three Ps’: power, policy and protections.
“That means that government power is not exercised in an arbitrary way; that policy is informed by law and stays within the limits of the law; and that the law provides protections for the public and in particular for vulnerable communities,” he said.
“Public managers need to be aware of these things because the rule of law itself depends just as much, if not more, on public sector professionals upholding it in their work than it does on laws and courts and the other external mechanisms that are there when things go wrong.”
“When the public sector was staffed by people on permanent contracts, they could impart their knowledge and wisdom to junior appointments. They had a knowledge of the concrete ways that rule of law issues could arise, and these are lessons that are hard to write up in a book. When we have more political appointees, and more on short-term contracts, we have lost an effective way of fostering a rule of law culture and knowledge base. So, we need to figure out alternative ways of meeting that knowledge gap.”
Rule of law under threat
Dr Daly said that while all governments over-reach themselves at times, and that the relationship between elected governments and public managers always has had a tension to it – there were long-term trends under governments from all sides of politics that were eroding the rule of law in Australia.
“There is a declining commitment to even basic legality. We have seen ministers taking actions beyond the powers provided to them by law, and there are instances where senior public managers have actually failed to call this out. Being elected doesn’t mean ministers can do whatever they want just because they are ministers, they can only do what they are authorised to by law,” he said.
“If that behaviour became normalised, we would end up with very arbitrary governments, not good governments. So, we need public managers who can identify these issues, who can troubleshoot or raise issues with lawyers in their departments if necessary and who can hold the line.
“Public servants are themselves officeholders and part of encouraging a ‘rule of law culture’ is to think more deeply about what this means.”
Dr Daly said a sharper focus on the rule of law could be used to recalibrate government practice. For example, the contacting out of government services needed to be looked at through a rule of law lens, to ensure that essential issues of fairness were not lost in the quest for greater efficiency.
“Contracting out government functions can lead to efficiency gains but efficiency isn’t everything. It does raise issues around oversight – are contractors complying not just with the law but with rule of law standards more broadly? Sometimes fairness loses out to efficiency especially when it is for-profit and the balance isn’t adequately struck.
“The concept of ‘reasonableness’ can be lost in long chains of contracting. The idea of ‘good faith’ – that people in government should act honestly and sincerely – is an important part of the rule of law. Does contracting out mean you no longer have a clear line of sight to see if that is happening?
“There is often an unthinking approach to contracting out, and this can get lost in the political debate about whether contracting out is a good thing. It gets down to practical issues like how do we contract out in such a way that rule of law standards are maintained, regardless of how the political wind is blowing on contracting out itself,” he said.
Pushing back against democratic decay
One of Dr Daly’s fields of interest is the subject of ‘democratic decay’ – the global phenomenon of the slow regression of democracy since the mid-2000s, both in countries that have slipped out of the ranks of democratic nations, and those that haven’t.
“When we talk about democracy we are not just talking about elections, but the concept of a liberal democracy with adequate protection of core democratic rights: free speech, organisation and assembly and association, the kind of things that allow us to have political parties and civil societies, unions and NGOs. As well as protection of minority rights.
“The rule of law is also central to democracy and raises the role of stability, predictability and clarity in the law. When we see democracies going backwards in extreme ways, such as Poland, India and Venezuela, we see governments use the laws in arbitrary ways to attack their opponents, disabling accountability mechanisms, closing down civil space, and using the law in very anti-democratic ways. Democracies a baseline commitment by all political actors that that their powers are limited by law.
He says that, while Australia does not suffer from the scale of problems in countries like Poland, there were symptoms of democratic decay emerging, around the broader trends of integrity, standards in public life, and to a shift to ‘bare legality’ in the actions of governments.
“At a public sector level, there is a disregard for standards that uphold neutrality and impartiality in the public service, and a loss of transparent government. For example, in the decision to make deliberations of the National Cabinet covered by cabinet confidentiality.
“Public managers are expected to be responsive to the government of the day, of course, but what we see happening in recent years is you can have ministers and political appointees pushing not just for responsiveness but for something closer to party loyalty, which is deeply problematic.”
He said that having public services committed to the rule of law and their own independence would benefit elected governments in the long run.
“If a public manager gives frank and fearless advice and says this policy could be problematic because it doesn’t comply with this law or this convention, and breaches these standards of fairness, they are not just protecting the rule of the law, they are helping that minister to produce policy that can be implemented that is less open to being challenged in the courts and is sustainable policy.”
Dr Daly said that the Melbourne MicroCert will use practical case studies to show participants the practical ways that rule of law conflicts can arise, and the practical measures that public servants can take to deal with them.
“Does that mean talking to peers, is it escalating certain problems, or going to the lawyers when there is doubt? People will finish the course much better equipped to ask the right questions, even if they don’t know the answers. We want to empower them with that language and frameworks and practical considerations so that they really can make the rule of law a lived practice for themselves in their work.”
Registrations for the Good Governance: Navigating law for public managers Melbourne MicroCert are now open. This course is ideal for public sector professionals, especially non-lawyers, who want to understand how rule of law standards shape policymaking, protect rights, and prevent arbitrary governance, and early career managers working in regulation impacted space, or directly with regulatory frameworks.
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