Wednesday, 19 August 2020
Last week, Parliament passed a law which challenges fundamental legal principles.
The law unilaterally amended a state agreement for the first time in some sixty years. It exempted the State from defined liabilities, removed potential appeal and review rights and excluded principles of natural justice.
The law also excluded the Freedom of Information Act, which ordinarily allows media and the public greater transparency into government action and the capacity for informed scrutiny. It is not clear why that exclusion was necessary, or how that exclusion will serve the public interest. Similarly, there is limited capacity for the public to scrutinize the State’s principal justification for the legislation: the reported potential $30 billion liability.
Our State’s Constitution provides that Parliament is bound to pass laws for the peace, order and good government of Western Australia. The new law can be analysed by reference to that standard. Extinguishing a potentially crippling liability is in the interests of the State. Damaging the State’s reputation for negligible sovereign risk is not. Drawing a balance between the immediate financial benefits of this law and the long-term effect is a political decision, and a difficult one at that.
More fundamentally, the new law affects a principle on which our system of law is based. Citizens acquiesce to be governed by the State on the basis the State will govern according to the rule of law. The rule of law comprises a series of concepts, but most fundamentally: all people, whatever their status, are subject to the ordinary law of the land. Departure from that principle has the capacity to affect the foundation of our democracy.
The new law is unprecedented and extreme. Its terms, particularly those which limit the public’s access to information, require close scrutiny and further justification.
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The Law Society of Western Australia is the peak professional association for lawyers in the State. The Society is a not-for-profit association dedicated to the representation of its more than 4,000 members. The Society enhances the legal profession through its position as a respected leader and contributor on law reform, access to justice and the rule of law. The Society is widely acknowledged by the legal profession, government and the community as the voice of the legal profession in Western Australia.