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But, in the Thirty Years Which Elapsed Between 1885 and 1915, Important Changes Took Place in the System of English Government

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But, in the Thirty Years Which Elapsed Between 1885 and 1915, Important Changes Took Place in the System of English Government 247 THE JUDICIA Y AND ADMINISTRATIVE LAW IN AUSTRALIA * , Most of those who are now engaged in the practice of the law derived their first impressions of the principles of consti- tutional law and practice from Dicey's fascinating Introduction to the Study of the Law of the Constitution. The book was first published in 1885, and, as its author himself said in 1915, "the book dealt with the main features of our Constitution (i.e., the British Constitution) as it stood in 1884-5." 1 Dicey's Description of the Constitution of 1885.-But, in the thirty years which elapsed between 1885 and 1915, important changes took place in the system of English Government. Today, fifty years after Dicey's first edition, much of what he wrote has to be taken with limitations and qualifications. Let us refer for a moment to Dicey's thesis. According to his view, the three great features of the British Constitution were the sovereignty of Parliament, the rule of law, and the conventions of the Constitution . Parliamentary sove reignty is a conception which is greatly qualified in practice, and, even in point of law, Australians are quite used to the fact that Parliaments, both Federal and State, may be prevented by law from acting as they would wish. The conventions of the Constitution are in a continual state of flux : there have - been many old conventions altered and' new conventions estab- lished during the past fifty years, in England as well as in Australia. For the purpose of "administration" and "adminis- trative law" however, the thesis of Dicey which matters is that of the "Rule of Law". The Rule of- Law in 1885.-Dicey said that the Pule of Law had three aspects. The first was that no man was punish- able or could lawfully be made to suffer in body or estate except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. This aspect of the rule was, he 'said, in contrast "with every system of Government based on the exercise of wide, arbitrary or dis- cretionary powers of constraint".2 *An address delivered at Sydney on December 3rd, 1936, by the Honourable Mr. Justice Evatt, LL.D., of the High Court of Australia, before the New South Wales Regional Group of the Institute of Public Administration .-ED . 18th ed., Introduction, p. xvii . - 2 INTRODUCTION TO THE STUDY OF THE LAW OF CONSTITUTION, 8th ed ., p. 184. 248 The Canadian Bar Review [Vol. XV The second aspect of Dicey's Rule of Law was the doctrine of legal equality, that "every man, whatever be his rank or condition, is subject to the ordinary law of the realm, and amenable to the jurisdiction of the ordinary tribunals".3 For, according to Dicey, every official from the Prime Minister down to the local constable was under the same responsibility for every illegal act done as was every other citizen.4 Here, Dicey contrasts the position of France, which he regards as typical of the Continental State of the eighties. There, he says, State officials "are, or have been in their official capacity, to some extent exempt from the ordinary law of the land, protected from the jurisdiction of the ordinary tribunals, and subject to certain respects only to official law administered by official bodies".' Dicey's third aspect of the Rule of Law was that the rules of English constitutional law, such as the right of personal liberty and the right of public meeting, are the result of the decisions of the ordinary courts of law in particular cases, and not of and general declaration of rights contained in a written or rigid Constitution. Dicey's Supreme Optimism.-With a grand display of opti- mism, Dicey said that, under the Rule of Law, there was necessarily absent from our constitutional system "the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government" .' In particular, he said there was really nothing corresponding to the droit adminis- tratif or tribunaux administratifs of France. He deprecated and deplored the fact that, in "less fortunate" countries, disputes in which the Government or its servants were concerned were outside the jurisdiction of the ordinary civil courts, and had to be dealt with by special, and more or less official, bodies. Dicey said that such an idea was "utterly unknown to the law of England, and, indeed, is fundamentally inconsistent with our traditions and customs".7 The Droit Administratif.-Dicey emphasized the absence from the English language of any satisfactory equivalent for the expression "droit administratif",$ and that thephrase"adminis trative law" was "unknown to English Judges and counsel", and, indeed, was hardly "intelligible without further explana- tion". In France, on the other hand, droit administratif deter- mined (i) the liabilities of State Officials, (ii) the rights and 3Ibid., p. 189. 6Ibid., p. 198. 4 Ibid . 7 Ibid. Ibid., pp. 190-191 . 3 Ibid., p. 326 . 19371 Administrative Law in Australia 249 liabilities of private individuals in dealing with State officials, and (iii) the methods by which these respective liabilities, were enforced .9 The two leading principles of droit administratif in France were first, the idea that the Government and its servants possess special rights and privileges as against private individuals, and, second, the necessity for maintaining such a -"separation of powers" as would prevent the Government, the Legislature and the courts from interfering with each others provinces.i° Dicey's Description No Longer Accurate.-I have sufficiently expounded Dicey's description of the English governmental system in 1885. Obviously it is impossible to accept his descrip tion as -portraying . the constitutional system of England or Australia today, unless many important qualifications are made. Even when he wrote, Dicey, to some extent at least, left out of account the enormous increase in the output of modern legislation . Increasingly from year to year, such legislation deals with the complex affairs of the modern State, and, of necessity, enters into and affects many of the relationships, and so the life, of the ordinary citizen. In truth, Dicey's account of - the so-called "Rule of Law" only describes the legal and constitutional position as it exists under the common law unaffected by statute. In "the same way, Viscount Haldane said in 1915 in a Privy Council appeal from Australia, that the liberty - of the ordinary citizen to act as he pleases was a fundamental conception of English legal doctrine. Each assertion is quite accurate in .relation to the common law. Put we do wrong to accept them as descriptive of government today, when both liberty and property are almost completely subjected to the control of Legislatures . For instance, what I have called the first aspect of Dicey's "-`Rule of Law" requires the addendum that by many modern statutes, persons in authority are frequently granted, by Parliament itself,- arbi- trary and discretionary powers affecting both the liberty and the property of the individual. Similarly, modern statutes make it impossible to assert with accuracy that there is complete equality between Government officials- and ordinary citizens in the courts of law. Let me give one illustration of how this works out in practice. Difficulties in Proceedings Against Officials.-It is - quite impossible for the practising lawyer of today to know'in advance every statutory provision giving special rights, concessions, privi leges or immunities to Governments, or Commissions, or. Boards, 9 Ibid., p 329. 10 Ibid., pp. 332-333 . - 250 The Canadian Bar Review [Vol. XV or authorities, or their officials. Therefore, when counsel is asked to advise in reference to some apparently arbitrary act of a public authority which has caused injury or trouble to his client, he has first to make sure that the right to bring an action (which would be clear where the defendant was an ordin- ary citizen), has not been cut down, qualified or limited in some drastic way. Then he has to consider whether, if an action can be brought at all, it can be brought in the ordinary courts, such as the Supreme Court or a District Court, or whether he has not been restricted by statute to having his complaint Further,dealt with by some special tribunal.,, if everything appears to suggest calm seas and a prosperous voyage, the first step is often, not to commence an action, as would be the case if the defendant were an ordinary citizen, but to give notice of action or other legal proceedings to the authority concerned. And there are quite a number of statutes which provide that, unless notice is given, the action, although it is brought to trial and the plaintiff's case is proved in all respects against the official or department, must be dismissed with costs. Of course, if a notice of action really meant that the parties concerned were compelled to conciliate their differences instead of litigating them, all would be well. But, as it is today, the requirement of notices of action against departments and ofcialp often serves only as a trap to clients and less careful legal advisers. For, later on, when the notice has expired, the action has really to begin, and the claim of the plaintiff has to be stated all over again as it was in the notice, so that little or nothing is gained by such a notice. Modern Administrative Law Inevitable.-It is not accurate, therefore, to assert that in Australia today there is anything like complete and universal subjection of all persons in the com munity to one general rule of law.
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