11th Greek Australian Legal and Medical Conference
Crete, Greece 2007

The Rule of Law in the 21st Century

The Honourable TRH Cole AO RFD QC

  1. Underpinning the comfortable lifestyle that all of us here enjoy, and we would not be here were our lifestyle otherwise, is the rule of law. We do not often think about the basis of our society: rather we accept that it is as we experience it. Our democracy, our civil rights, our governments on whom we impose increasing obligations, our comparatively organized society blended with our right to make our own choices in aspects of our life, our freedom from oppression and harm by others, our right to act as we see fit subject to not causing damage to others, our freedoms of belief and association, our freedom of expression subject to not damaging society or others, our mechanisms for peaceful resolution of disputes, all these matters and many more depend on one plank. That plank is the rule of law. Whether these aspects of our life are incorporated within the concept of the rule of law may be a topic of debate,1 but it is clear that, at least in our society in Australia, their protection is assured by the rule of law.
  2. What then do I mean by the rule of law? I mean the fact that each individual’s rights and obligations, what ever they may be, will, when in dispute, be determined judicially by an independent arbiter in accordance with the established laws of our country. I mean a structure where arbitrary or oppressive action by a government or its instrumentalities can and will be restrained by the courts. Just as each citizen has the protection of the law, so too is each citizen subject to the requirements of the law. I mean a system where conflict is resolved in an orderly way. I mean a system where both the application and administration of the law is independent of the legislative arm of government, and of the executive. I mean an organized system where the rights and obligations of governments, corporations, people, are determined not by force, nor oppression, nor intimidation, nor wealth, nor influence, but by the law. As the graffiti writers would say: “Law rules”.
  3. The liberties and privileges underpinning our lifestyle and system of government that we take for granted have not been easily or recently won. They are the culmination of struggles and compromises worked out over centuries. And so is the concept of the rule of law which protects them. It is thought that the concept of the rule of law derives from the notions of justice and fairness discussed by Aristotle2 in early Greece. However, Aristotle sounded a note of warning. In the text usually referred to as “Politics”, he wrote:

    “Law is not perfect justice. It is a only a kind of justice. It is a fallible, human project, a practical means by which we are to do our best, in the circumstances of real life, to achieve justice”.

    However, it was not until the Romans developed an organized system of law that the notion of predominance of the law came into prominence. In the English tradition, it was not until the 13th century, with the signing of Magna Carta by King John in 1215, that the rule of law became established. Magna Carta provided:

    “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (the king) proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”3

    This was a recognition for the first time, that the government of the day, in those days the King, but now the executive government- was bound by the law of the land howsoever made. That is a critical aspect of the rule of law.
  4. The concept was adopted and enhanced in England and Europe during the 17th and 18th centuries when the debate centered around the source of governmental power. As the notion of the absolute right of monarchs diminished in popularity, except with the monarchs themselves, so the concept that all power derived from the people, gained sway. It became recognized and accepted that the exercise of power depended upon the consent of the body of people, such that any exercise of power without the people’s consent was “without authority’, as the English philosopher John Locke put it. In Europe, these principles were espoused and developed by Jean Jacques Rousseau and Count Montesquieu, who wrote of the structure of government, and in particular of constitutions as embodying the will of the people, and thus of having legitimacy only because the constitution had the consent of the populace. In 1748, Montesquieu wrote:

    “When the legislative and executive powers are united in the same person…there can be no liberty; because apprehensions may arise, lest the same monarch or senate enact tyrannical laws, to execute them in a tyrannical manner.

    Again, there is no liberty, if judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”4
  5. The rule of law found expression in the American constitution and the decision of the Supreme Court of the United States in 1803 in Marbury v Madison :

    “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every government must be, that an act of the legislature, repugnant to the constitution, is void…

    It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule”5

    Thus by the time of the Australian Constitution in 1900, there was a well developed body of jurisprudence, philosophy and structure of government which had as its centerpiece the rule of law.
  6. In Australia, we recognize this role of the courts in what is commonly called the separation of powers, the separation of the legislature, the executive and the judiciary. The federal Parliament can pass such laws as the elected members see fit, subject always to the scope of the powers conferred on the legislature by the Constitution, which is assumed to express the will of the people. Beyond the Constitution the Parliament must not trespass6 and it is the courts which will interpret the Constitution and thus the scope of the Parliament’s powers. Similarly, the Executive branch of government may implement the laws of the Parliament only to the extent of the powers conferred by the Constitution as interpreted by the courts. In this way, the scope of parliamentary power is determined, the actions of the executive are circumscribed, order is maintained, the exercise of arbitrary power is prevented, and people’s rights are protected. A necessary ingredient in the rule of law is that the state will accept, and the machinery of the state will enforce, the determinations of the courts, even when such determination may be restrictive of the power of the legislative or executive branch of government.
  7. In Greece, the same separation of powers is found in the Greek Constitution. Article 26 addresses the “Organization and functions of the State”. It provides:

    “1. The legislative powers shall be exercised by the Parliament and the Presidents of the Republic.

    2. The executive powers shall be exercised by the President of the Republic and the Government.

    3. The judicial powers shall be exercised by courts of law, the decisions of which shall be executed in the name of the Greek People.7”

    The importance of judicial independence is stressed in Article 87 of the Greek Constitution which provides:

    “1. Justice shall be administered by courts composed of regular judges who shall enjoy functional and personal independence.

    2. In the discharge of their duties, judges shall be subject only to the Constitution and the laws; in no case shall they be obliged to comply with provisions enacted in violation of the Constitution.”
  8. Thus, at the start of the 21st century, the attendees at this conference come from countries which have well established structures which recognize and guarantee our freedoms, our rights, our privileges, and our manner of living. Why then, should we not look forward with confidence to a continuation of those aspects of our way of life which we readily take for granted?
  9. I do not think we should be other than optimistic that the rule of law developed over eight centuries, and underpinning much of western civilization, will continue. There are, however, a number of cautions I would raise.
  10. First, the rule of law is not accepted as a universal truth, or as a universal good. It does not apply in much of the world. For example, many nation states in Africa have dictators. The will of the dictator, not the rule of law, predominates. In many of those which purport to have a democracy, the difficulties of exercise of basic rights are so great that any theoretical concept of the rule of law is illusory. Absence of education, historical and cultural traditions, and poverty all result in people either not wishing to, or having the economic or educational capacity to contemplate the exercise of rights, even if they knew that such rights existed. In many such places, the judiciary is not independent of the state, and corruption is rife.

    In China, Bangladesh, Myanmar, Laos, Vietnam, Tibet, and North Korea, to mention just some countries, people’s rights, in so far as they exist, are not protected by the rule of law as we know it. There exists in many such countries a different social and philosophical view of the primacy of the good of the state, in contrast to the view in most western countries of the primacy of individual human rights. And in Thailand, the democratic rights of its citizens have been suspended by the military, without judicial challenge.

    In some countries in the Middle East, emphasis is accorded to aspects of religious law as distinct from law enacted by an elected parliament. In so far as acceptance of the rule of law can be said to be sourced from the will of the people, systems which derive the authority of the law from religious beliefs or divine guidance, whether considering the content of law or its application, may place the responsibility for the ordered structure of society on bodies other than an independent judiciary administering the rule of law.
  11. Second, the mere existence of the rule of law is no guarantee that the rights of people will be safeguarded. Germany had a tradition of the rule of law in the 1920’s and 1930’s. Yet that did not stop the rise of Hitler or the Nazis. Under Nazi Germany, the rule of law gave no protection to a great number of its citizens as a democracy turned into a dictatorship. Central to the effective exercise of the rule of law is that the machinery of the state will be used to uphold the decisions of the courts as the independent arbiter between citizen and state. In Nazi Germany, that did not happen: the courts in so far as they acted at all, did not act as an independent arbiter, and the state did not enforce any decisions contrary to the ruling power’s interests.
  12. Third, the pace of change in the world is such that one cannot be complacent that the world as we know it will continue. Consider the period since the start of the 20th century, that is, from 1900. The British Empire has fallen and dissipated into a great number of nation states. Many such states have not adopted the rule of law. There have been two world wars fought over territory or principle. Communism and the Soviet Union rose, expanded across much of Europe imposing its ideology as it spread, and then collapsed. Europe, which in 1900 was a series of independent states, now is engaging in trade, and aspects of parliamentary, administrative and judicial arrangements, as well as defence. There was created the League of Nations and, after its failure, its successor the United Nations, having the objective of ensuring world peace and stability. Its success has been limited.

    In technology, we have seen the advent of the motor car, the aeroplane, and other oil consuming machinery which has resulted in the creation of huge wealth and power in nations of previously modest status in the world. This has in turn brought renewed attention to the values and attitudes of such nations, many of which do not adopt the rule of law. More recently, there has been the invention of computers and the internet with the consequent explosion in instantaneous communications and the capacity for dissipation of knowledge. In turn, this has facilitated the expansion of world trade and the interlinking, both commercially and culturally, of communities once distant from each other. Borders in many areas are being broken down.

    The internationalization of trade, the creation of world bodies such as the United Nations and the World Bank, and the ready capacity to travel and communicate rapidly, is also affecting the law. More emphasis is now being placed on judicial views expressed in other countries. Whilst at present this consideration is limited to courts of similar tradition and background that may not in the future always be so.

    All this has occurred in 100 years. Change in the next 100 years cannot be predicted. Royalty and religion dominated the Middle Ages in the western world, with the rights of royalty and the rules of religion interpreted by various adherents in various ways, but always with the same certainty of correctness. Neither religion nor royalty foresaw that their central role in the running of the state would be usurped by democracy and the law, as it has in much of the western world, but not in many other cultures. Forgetting Aristotle’s caution, we tend to assert, as royalty and religion did in past centuries, that now we have evolved the perfect system. Although it presently seems unlikely, in a changing world, the centrality of the rule of law in the future should not be assumed: it should be jealously defended by those who accept its criticality to our society, unless and until a system found more desirable by informed decision of the population evolves.
  13. Fourth, for there to be an effective rule of law, the law must be able to be accessed by all, and it must be enforced. Access to the law may be denied to people from a variety of causes including poverty, lack of education and complexity of the law. As Justice Hayne wrote:

    “The rule of law requires that norms of behaviour, and the content of an individual’s rights and duties, should be capable of identification before events occur”8

    If the law is so complex that persons do not know what their rights or obligations are in advance of acting in a particular circumstance, then enforcement of the law will result in disquiet. This is often seen in the area of taxation law where there are not infrequent complaints that persons acted on a view of the law subsequently held to be erroneous. To ameliorate this, mechanisms such as advance rulings on assumed facts have been evolved.

    Complexity of the law, lack of knowledge of the law, and inadequate resources to ensure that people have a general understanding of their rights and duties, or means of access to those who can inform them of those rights and obligations, all pose a threat to the maintenance of the rule of law. Thus the importance of legal aid availability for those with insufficient monetary resources or capacity to ascertain their rights and obligations.

    If the law as enacted by the parliaments, both state and federal, or as pronounced by the courts, is disregarded, the law falls into contempt. People begin to think that they may choose which laws they will obey, and which they will not. There must be independent mechanisms which ensure that the law is obeyed. This is normally the function of the police, directors of prosecutions, and other statutory bodies, who are and should be, independent of the executive government. Let me give you one example in our society where failure to enforce the law led to a breakdown in the rule of law.
  14. At the start of this century, between 2001 and 2003, I was appointed Royal Commissioner to inquire into the building and construction industry in Australia. It was the first national review of that industry, which is of enormous importance to Australia. In 2001-2, the total production of the industry was $59.7 billion, which was 5.5% of Australia’s gross domestic product. The industry employed 7.5% of the Australian workforce. I found productivity in the industry to be less than the average for the market sector. Modelling showed that if industry productivity could be raised to that of the market sector, the gain to the Australian economy between 2003 and 2010 would approximate $12 billion.9 Further, at that time, the right of an individual worker in the industry to choose whether to join or refrain from joining a union did not exist as unionism was in practice compulsory. I refer to these matters because I found that the basic reason for the lower productivity in the industry was because of the absence of the rule of law in the conduct of the construction industry. Industrial pressure by unions and commercial expediency on the part of owners, contractors and sub-contractors had replaced the rule of law. I recommended reforms to change this. My Final Report stated:

    “There is widespread disrespect for, disregard of and breach of the law in the building and construction industry. The criminal, industrial and civil law is breached with impunity. Agreements made are not honoured. The result is that industrial power, not right or entitlement, determines outcomes. Short term commercial expediency prevails.

    The culture in the industry is that the criminal law does not apply because industrial circumstances are involved. The attitude is that the applicability of industrial law is optional because there is no body whose function it is to enforce it, or who has the will, capacity and resources to do so. Orders of industrial tribunals, and even courts, are disregarded if such orders are contrary to the views or interests of a participant. If unlawful action causes loss to others, that loss is not recovered. That is because of the difficulty, cost and time involved in bringing proceedings for recovery, the uncertainty of outcome, the view that continued relationships with unions are important, and the knowledge that if recovery action is taken the likelihood is that further industrial action will be taken causing yet further loss. Litigation for loss recovery is regarded as a bargaining chip to be used in future resolution of industrial disputes, rather than as a serious attempt to hold those causing loss responsible for it.

    Head contractors and subcontractors are subject to severe cost penalties for delayed completion. Industrial unrest and stoppages cause immediate loss from standing charges and overheads, and prospective loss from liquidated damages. These losses place intense pressure upon head contractors and subcontractors to accede to industrial demands. If the short term cost of such demands is less than the actual and prospective loss on the specific project, the usual result is that the demand is acceded to. That is because of the short term project profitability focus in the industry.

    In contrast, unions suffer no loss from unlawful industrial action. They know they will not be held accountable for unlawful industrial action by the criminal, industrial or civil law. The result is inevitable. Concessions are made based on short term, pragmatic, project profitability considerations.

    The result is the rule of law is diminished. Productivity is diminished to the disadvantage of the Australian economy, contractors, subcontractors and employees. Established freedoms protected by law, such as freedom of association, are ignored in favour of union power, and attempts to achieve industrial peace.

    Governments of both political persuasions, and at the Commonwealth and State level, have been endeavouring to change the culture of the industry for at least 20 years. The findings of this Commission make plain those attempts have failed.

    To achieve cultural change, and re-establish the rule of law in the building and construction industry, a comprehensive package of reforms is necessary.

    There are four principles which should drive cultural change:

    1. the boundary between lawful and unlawful industrial activity must be clearly delineated;
    2. unlawful conduct must attract serious consequences so that the rule of law may be re-established;
    3. those who, by unlawful conduct or practices cause other participants in the industry loss should bear the cost of the losses they cause; and
    4. there should be an independent monitoring and prosecuting authority in the industry to monitor conduct, and uphold the rule of law”10
    Those four principles, clear definition of unlawful activity, serious consequences for unlawful activity, attribution of loss to those causing it, and independent enforcement of the law, lie at the very heart of upholding and sustaining the rule of law.

    In relation to the freedom of choice to join or not join a union, my Final Report stated:

    “There needs to be a recognition, principally by unions but also by the major contractors and subcontractors, that in Australia there exists freedom of choice to either join or not join an association of employees. All actions of unions, head contractors and subcontractors which impinge upon this basic right are either presently prohibited by law or will be if my recommendations are accepted and implemented. Breaches of those laws must be vigorously prosecuted”11

    A major reform recommendation adopted by the Parliament was the creation of an independent body, the Australian Building and Construction Commission, to monitor conduct within the industry and enforce all aspects of the law, industrial, civil and criminal, and ensure that agreements freely entered into were adhered to. It is reported that there has been a significant shift in attitude within the industry to respect for the law and its implementation. As a result, industrial disputes have reduced, and productivity has greatly improved, with consequent economic advantage to Australia.12
  15. It can thus be seen that the notion of the rule of law is not a theoretical construct: it has an immediate and direct impact on our economy, on the conduct of business, on working relationships and, most importantly, on the exercise by individuals of their rights and freedoms.
  16. A related but different matter is the content of the law which the rule of law protects. The content of the law is always changing. It usually trails behind the view of the majority of the people. In a democracy, parliaments rarely make laws of importance, as distinct from laws of an administrative nature, without at least the philosophy of the law being publicly debated, for to do so risks the allegation of arrogance or non-representative action. It is not the function of the courts to make laws, but to interpret statutory laws and develop the common law to address previously un-experienced situations. In this way, a body of law has evolved which seeks to balance the rights of individuals with those of others, including the state. In western society, parliaments and the courts strive to confer upon individuals the maximum personal freedoms consistent with the security of the state and the freedoms of others.
  17. In the past the security of the state has rarely been under attack except from another state. In such circumstances a state of war is declared. When a state of war is declared, some freedoms of individuals are, by appropriate laws, diminished or eliminated for the good of the state and its people as a whole whilst ever the threat to the state remains. However, in recent times the security of people and property has come under threat from external forces which are not the instrument of a state, although such groupings may receive financial or moral support from state entities. The Bali bombings, the attack on the World Trade Centre, and the London Underground bombings are notable examples. Each was carried out by groups of persons having a philosophical approach which accepts that to cause harm to a population, or individual property or infrastructure, is a legitimate method of seeking to obtain acceptance of its views or philosophy. The globalization of the world, including the capacity for people freely to travel internationally, to obtain and transport goods necessary for the perpetrating of such attacks, to transfer funds across borders, and to communicate instructions remotely and simultaneously from distant locations, has resulted in our society being open to attack other than from a state, and in a manner not previously contemplated. If it is accepted, as it must be, that a primary function of a state is to protect its citizens and their property, then it is probable that there will be a re-alignment of the balance between protecting the freedoms of the individual and protecting the security of people and their property. This will be a profound change: people will be required to accept diminished personal freedoms to permit the state to attempt to diminish the threat to its citizens and their property in circumstances where there is no threat of invasion by a foreign state. It can be expected that the courts will closely scrutinize any legislation which seeks to diminish established rights. Paradoxically, those persons perpetrating offences against people and their property will, if charged and brought before the courts, receive the benefits of the rule of law, a keystone of the society which their activities were designed to disrupt and destroy.
  18. A fifth area of risk relates to the quality of, and consequential respect for, our legal institutions. Every endeavour must be made to ensure the legal strength of our judicial system, for if the courts and their decisions are not generally accepted by the majority there will be a tendency to seek an alternative system. There should be appointed to the courts, those most qualified to judge. How one selects such persons is a matter of some controversy, an area into which I will not venture.
  19. It must be accepted that the law is by no means perfect. The law endeavours to administer and deliver justice between parties, be they individuals, corporations or governments. It does so impartially. However the problems facing the courts are in many instances complex, and judges are human. Mistakes will be made, and that is why we have a system of appellate courts to minimize error. Our court structure is, perhaps, the most accountable of all of our governmental institutions. Except where the national interest requires otherwise, such as where aspects of national security are involved, or some other factor such as the protection of children operates, everything that occurs before the courts is done in public. Reasons are given for the court’s decisions. These are available to the public for perusal and consideration. Those reasons are able to be reviewed. Those reasons must express the matters taken into account by the court as relevant, the weight to be attached to such matters, and the process of reasoning leading to the result reached, because once delivered, the expressed reasons cannot be amended or supplemented. Most people do not read such reasons, and for good cause, many judgments do not make light reading, and most people do not have the time, interest or inclination to study the detail of the court’s judgment. Yet many people feel free to criticize the decisions reached, based on the little they know of the matter and usually gleaned from some brief report in a newspaper or the television. This is a common occurrence in relation to sentences in criminal matters, where there is a perception by members of the public that they are just as capable as the judge of reaching a correct determination of an appropriate sentence. Those with judicial experience will tell you that sentencing is a most difficult exercise - balancing the interests of the people in preserving law and order, aspects of punishment, reform, rehabilitation, any special position of the victim and the perpetrator of the crime, whilst endeavouring to maintain a thread of consistency in sentencing of various offenders for similar and dissimilar crimes over time, to mention just some of the factors to be taken into account in the sentencing process.
  20. I do not mean by my remarks to suggest that judges should not be open to informed criticism, or commentary, on their reasons for decision, or criticism of their conduct or efficiency. But it should be recognized that each criticism of a judicial decision carries with it that small element destructive of the judicial structure, and it is upon the integrity of that structure that the rule of law depends. And so does the calm operation of our society. Thankfully, the judicial structure is of such strength, at least in Australia, that criticism of decisions has not had, to date, a deleterious effect on the institution.
  21. The challenge in the 21st century is to ensure that the concept of the rule of law remains accepted by the great majority of our people. It may not be accepted in all societies, although those who espouse the democratic concept regard it as integral to democracy. It is generally regarded as an essential part of what is seen as “good governance” of people. Unless there is equality before the law in the sense that the law as enacted or established is applied impartially between citizens, corporations and the state, there will be oppression, favouritism, corruption and injustice. The same consequence will follow if the government, howsoever appointed, is not subservient to the impartial rule of law. Whilst ever a society accepts that the authority of the parliament and of the law flows from a grant of power by the majority of people of a state, the rule of law will remain central to the organization of society as we in the west know it.
  22. Those who do not live in a democratic state have a system of society based on a different footing: the ruling bodies in such states do not accept the basic cannon of western society that each person has equality of rights, or more accurately that each person within their state has equality of rights with all others who are citizens of that state. Whilst the international community speaks of equality of rights of all people, and has by agreement of some states adopted conventions seeking to encapsulate such equality, the reality is that nation states jealously guard the rights of their citizens within the boundaries of their state to the exclusion of others. So far as I am aware, there is no country which has proclaimed that within its state boundaries, citizens of the world have equal rights with its own people, including the right of residence and of support. The result is that the concept of the rule of law can sensibly only be considered within the boundaries of a given state. Many states may adopt the same basic principles, including the rule of law, but that adoption flows from the will of the people of the particular state, not because the concept flows from a universally accepted truth.
  23. Perhaps the international community is moving towards an international rule of law, but if it is, it has a long way to go. There is now an International Court of Justice and an International War Crimes Tribunal which address allegations of crimes against humanity. There are international organizations for the resolution of international trade disputes. But each of these organizations depends upon the agreement of the participant states to accept or abide by the decisions of the international tribunals. The law they administer flows from consensus of states, not the consensus of the peoples of the participating states. For instance, in Australia, provisions of international treaties, conventions or agreements entered into by Australia impose no obligations upon the citizens of Australia unless the Commonwealth parliament enacts legislation incorporating the provisions of such treaties, conventions or agreements into Australian domestic law.13 Thus, in the Inquiry last year into certain Australian companies in relation to the United Nations Oil-for-Food Programme, my primary task was not to determine if companies, including AWB Limited, had breached United Nations resolutions, but whether they or their executives might have breached aspects of Australian domestic law. Decisions of international tribunals can be enforced only by the mechanisms of the nation states, not by the international tribunals. It is, in my view, far too early to speak of any international rule of law, and it must be doubted if there will ever be such a concept. That is because the rule of law flows from the grant of power from the people of a body politic, and the world is a long way from becoming such a body with a common view of the proper organization of society.
  24. In conclusion, let me say this. On any view, we in Greece and Australia are fortunate to have the rule of law operating for our protection in our countries in the 21st century. Let us support and protect that valuable aspect of our society.

Endnotes

1. Compare: Dispute Resolution and the Rule of Law: Hayne J, Sino-Australian Seminar, Beijing, November 2002.

2. See, for instance, Antonin Scalia: The Rule of Law as a Law of Rules:56 U Chi.L Rev 1175-1181(1989).

3. See generally: The Legal history of the Rule of Law: Mansfield: www.mansfieldfdn.org.

4. Quoted by Mansfield in “The Legal history of the Rule of Law”

5. (1803)1 Cranch 137 at 177;5 US 87 at 111.

6. R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR at 267

7. Translation of the constitution as amended in 2001 provided by Klitos Paraskevopoulos and Prokopis Sofras

8. Dispute Resolution and the Rule of Law: Sino-Australian Seminar, Beijing,20-22 November 2002 p.5.

9. Final Report of the Royal Commission into the Building and Construction Industry: Volume 1 page 3.

10. Final Report of the Royal Commission into the Building and Construction Industry: Volume 1 page155.

11. Final Report of the Royal Commission into the Building and Construction Industry: Volume 1 paragraph 12

12. See, for example, Master Builders Association: National survey of Building and Construction; March Quarter 2007, page 7; See also:”Upholding the Law-Findings of the Building Industry Taskforce, September 2005: www.abcc.gov.au

13. See: State of Victoria-v- Commonwealth of Australia (1996)187 CLR 416 at 481;Bradley-v- Commonwealth of Australia (1973)128 CLR 557 at 582; Minister for immigration & Ethnic affairs (1995)183 CLR 273; compare Re Minister for Immigration & Multicultural and Ethnic Affairs; ex parte Lam (2003) 214CLR1.