Overview
In their 2012 book Global Policing, Bowling and Sheptycki, touch on the nexus between the social contract, colonialism and the use and abuse of state power. They quote Thomas Hobbes’ Leviathan of 1651, John Locke’s Second Treatise of Government of 1689 and Jean Jacques Rousseau’s 1762 treatise The Social Contract.
Summarised, Hobbes argued that [l]aw is dependent upon the sanction of the sovereign and the government without sword are but words of no strength to secure a man at all. At the opposite end of the scale Rouseau argued that freedom happiness equality and liberty existed in primitive societies prior to social contract, but a new form of social organisation-the state was formed to assure and guarantee rights liberties freedom and equality.36 Between these two extremes John
Locke the British philosopher argued that [t]he purpose of government and law is to uphold and protect the natural rights of men – when it ceases to fulfil it then the laws have no validity’. 37 All
three influenced the American Declaration of Independence in 1766, which had an influence on both the reason the Australian colonies were settled and how the social contract evolved within these colonies throughout the 19th century. Noteworthy is that the period in which both Hobbes and Locke wrote preceded the Glorious Revolution and its Bill of Rights of 1688, as well as what became known as the Bloody Code, which sentenced so many to transportation to Australian colonies.
The French philosopher, Francois Marie Arouet, Voltaire, in juxtaposing the absolute power of the French monarchy with the Constitutional Monarchy he observed in England, noted of English law that:
The English system was the one that all of humanity would choose if they were given the choice to make laws…giving back to each man all his natural rights, which people have been stripped of in nearly all monarchies. These rights are: the complete liberty of the person and of his possessions; to speak to the nation through the instrument of the pen; to be tried in any criminal matters only by a jury made up of independent men; to not be judged in any matter except by the precise terms laid down by the laws; to follow in peace any religion one desires… I dare to say that if you assembled all of human kind to draw up laws, this is how they would frame them for their own safety.38
36 https://www.britannica.com/topic/social-contract 37 https://plato.stanford.edu/entries/locke/
38 Voltaire Philosophical Dictionary (1764) quoted in Adcock, M. The Enlightenment. Nelson Cengage
Learning. South Melbourne, Australia 2014, p. 56.
These are the common law rights which underpin British-based liberal democracy, which are part of to social contract in Blainey’s pale empire of ideas which remain in Australia after the actual physical empire has ceased to exist. In relation to colonialism, Bowling and Sheptycki argued that:
[t]he social contract is the key to police legitimacy and forms the basis of the liberal idea of policing by consent … Policing was central to the colonial system and imperial domination. It was used to impose European standards of legality… European legal institutions of police and courts were used, along with other ideas, to impose modernity upon the globe. Policing was the lynchpin of the colonial project. Military authorities attended to ‘constabulary duties’ as well as being an ‘army of occupation’ … Very often colonisers encountered organised resistance to the imposition of outside rule and in such circumstances this was responded to with what would nowadays be called counter-insurgency operations.39
Australia also experienced this, particularly in relation to its indigenous inhabitants; however, despite some abuses of power by the colonial authorities, the Australian experience of transitioning from a military autocracy to a vibrant democracy was steady and was punctuated by a series of incidents, which if seen through a police prism, reveal a slightly different perspective from the widely accepted historical orthodoxy of the Australian colonial experience.
The adoption of the Peelian policing tradition in 19th century colonial Australia, and at the national level when the AFP was established can best be understood through the role the Crown plays in ensuring both restraint on authority and accountability at the individual level. As Goldstein points out:
democracy is heavily dependent upon its police, despite their anomalous position, to maintain the degree of order that makes a free society possible. It looks to its police to prevent people from preying on one another; to provide a sense of security; to facilitate movement; to resolve conflicts; and to protect the very processes and rights – such as free elections, freedom of speech, and freedom of assembly – on which continuation of a free society depends. The strength of a democracy and the quality of life enjoyed by its citizens are determined in large measure by the ability of the police to discharge their duties.40
This chapter will explore the notion of ‘consent-based legitimacy’. This is a vital concept in any discussion of the AFP and policing, particularly in a liberal-democratic sense. In many policing contexts, control is maintained more by force or the threat thereof, rather than by community self- regulation with organised police support, as in liberal-democratic societies. The chapter considers the evolution of a distinct police identity and the development of the legitimacy of this identity, from its origins in the British Isles, its transportation to the Australian colonies and its adaptation to local circumstances including federation. The focus is on the formation of the AFP, and its evolution as international peacekeeper with the United Nations and its domestic crime duties.
39 Bowling and Sheptycki (2012), Ch. 1.
40 Goldstein, H., Policing a Free Society, Cambridge, Mass: Ballinger Publishing Company, 1977, p. 1.
The significance of oaths
In 1728 Voltaire visited England and later published Letters Concerning the English Nation in 1733 in which he wrote: ‘The English are the only people on earth who have been able to prescribe limits to the power of kings by resisting them; and who, by a series of struggles, have at last established that wise form of government where the prince is all powerful to do good, and at the same time is constrained from doing evil.’41This incurred the wrath of the French King,
who was an absolute monarch and whose excesses resulted in the French Revolution. Britain did not suffer the same fate as France, because it balanced the power of the King with that of Parliament in a Constitutional Monarchy.
One of the mechanisms which gives power to do good and constrain power to do evil, is to temper the natural impulse of the political class to pursue power, with an apolitical entity with benevolence and fairness as its core raison d’être. In British-based liberal-democracies, this entity is the Crown, which within a Constitutional Monarchy remains the sole enactor of laws.
Kings, princes and politicians, may possess authority, and the ability to pass laws, but it is those in their service who exert that power by force of arms if necessary. These forces are the military and the police, which have traditionally been focused externally and domestically respectively. Military force is a familiar concept and requires no further explanation at this point. The relationship between the Crown and the police, as a significant component of the criminal justice system reflects a broader benevolence which is a feature of British-based common law systems. This benevolence is based upon strong adherence to objectivity and impartiality in the administration of the criminal law in favour of those accused of criminal activities. This is demonstrated by the oaths of office taken by police, whose wording they share with the judiciary, namely to carry out their duties ‘without fear, favour, affection or ill-will’. These words form an integral part of the oaths of both police and judges and oblige them to act impartially and objectively. They are oaths sworn by both police and judges, to the Monarch, Her Majesty Queen Elizabeth the Second and Her Heirs and Successors according to law. The pivotal role played by the Crown in Australia’s system of government is important to grasp, because it is the apolitical nature of this entity, the Crown, which plays a part in denying the potential for partiality, subjectivity or undue influence to play a role in public affairs. The institution of the Crown is a robust and elegant mechanism which effectively balances authority with accountability, both vital ingredients underwriting the element of trust which is so vital in the impartial and objective administration of justice, particularly criminal justice. The benevolence in this regards is further guaranteed by the Coronation Oath, sworn by Her Majesty when she took the Throne on 2 June 1953, which is discussed further below.
41 Adcock, M. The Enlightenment. Nelson Cengage Learning. South Melbourne, Australia 2014, p. 55.
Dating from the restoration in England following Cromwell’s failed administration and inherited in the Australian parliamentary system, the Crown plays a central role in the founding governance of the Australian Federation, as a third element in the passage of legislation through the Federal Parliament. Often overlooked in daily political discourse, the Crown is actually a part of the Parliament, by virtue of the role played by Royal Assent, usually performed by the Governor General. Refusal to grant Royal Assent is a significant, but rarely invoked feature of the Westminster system of government, but by its mere presence, it formally serves as a restraint on parliamentarians. This is embedded in Australia’s founding document, the Australian Constitution.
The Australian Constitution 1901 42 states:
Section 1. Legislative power
The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called ‘The Parliament’, or ‘The Parliament of the Commonwealth.’ Section 2. Governor-General
A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him. 43
It can thus be seen that the Parliament of the Commonwealth of Australia consists of three distinct and independent components: a popularly elected House of Representatives; a Senate consisting of Senators elected on a State basis; and the Queen, represented by the Governor-General. The latter, often overlooked in day-to-day politics, is a largely silent but extremely important component of the legislative process, as proposed bills, passed by both houses of the Parliament, do not become law until they receive Royal Assent. This is a final check on political power, and its potential abuse, due to the fact that laws inconsistent with the ‘peace, order and good government’44 of Australia cannot become law if they do not receive Royal Assent. Politicians,
42Commonwealth of Australia Constitution Act 1900.
43 Sawer, G. (1975) The Australian Constitution. Chapter 1 The Parliament.
44 The phrase ‘peace, order and good government’ was originally used in the British North America Act,
1867 (now known as the Constitution Act, 1867) enacted by the Imperial Parliament, and it defines the principles under which the Canadian Parliament should legislate. The drafters of the Australian
Constitution borrowed heavily from other likeminded liberal-democratic countries including Canada. The Australian Constitution states that the legislative power of the Commonwealth of Australia is vested in the Queen, a Senate and a House of Representatives and, subject to the Constitution, the Parliament makes laws for the 'peace, order, and good government of the Commonwealth'.
aware of this, are thus restrained from excess. This is what is meant by the Crown denying power to others.45
Furthermore, Her Majesty Queen Elizabeth II, in Her Coronation Oath swore to govern all of her subjects, including all Australians, ‘…according to their respective laws and customs’ and furthermore in doing so, ‘…cause Law and Justice, in Mercy, to be executed in all…judgements.’
The relevant detail from the Coronation Oath 46 is provided below:
Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?47
45 Royal Assent in Australia’s legislative process can trace its antecedents to the very foundations of
parliamentary democracy in England in the Middle Ages, when all powerful monarchs, ruling with the Divine Right of Kings, gradually ceded power to representative institutions, the House of Lords, consisting of bishops, abbots, earls and barons and the House of Commons, consisting of shire and borough representatives. During the reign of Henry VI it became common practice for both houses to originate legislation as Bills which could not become law unless the Sovereign’s Assent had been obtained, because the Sovereign was, and remains the only enactor of laws. The Divine Right of Kings ended with the execution of King Charles in 1649, following a trial for treason. This was replaced by the Commonwealth or Protectorate, otherwise known as the English republic under Oliver Cromwell as the Lord Protector between 1649 and 1660, which abolished Royal Assent. This form of government subsequently failed and was replaced by the pro-Royalist Cavalier Parliament (1661-1679) which
reinstated Royal Assent and repealed all laws passed during the period of Cromwell’s republic. Following parliaments retained Royal Assent as part of the legislative process. In terms of rights and freedoms in England in that period, a number of noteworthy developments ensued. These include: the English Bill of Rights, which dealt primarily with parliamentary matters such as regular sittings and parliamentary free speech; and the Act of Habeas Corpus in 1679 which required courts to examine the lawfulness of detention and which, based on Magna Carta 1215, was intended to prevent unlawful or arbitrary detention. This period also witnessed what was to become known as the ‘Bloody Code’, whereby an increased number of offences attracted capital punishment. These included murder, rape and assault as well as highway robbery, burglary, arson, house-breaking, high treason, coining, forging, uttering, personating, riot, stealing and sacrilege. The number of offences rose from 50 in 1688, to 160 in 1765 and 225 in 1815, when, following the end of the Napoleonic wars, there were calls for reform. This was also a period in which those convicted for such crimes, often had their sentences commuted to transportation, originally to the American colonies, and upon loss of these, to Australia. When the Australian colonies developed responsible and representative government in the 19th century, they adopted the British
bicameral structure, including Royal Assent, and when these colonies federated in 1901, the Federal Parliament adopted a similar structure, also including Royal Assent as part of the legislative process. Thus what had been designed to limit the arbitrary power of all-powerful monarchs, has been adapted to the benefit of the community, by placing a subtle, but important restraint on the potential for political excess in parliament.
46 https://www.royal.uk/coronation-oath-2-june-1953
47 Of interest is a comparison of ‘peace order and good government’ of the countries mentioned in the
Coronation Oath, between those who remained constitutional monarchies (Britain, Canada, New Zealand and Australia) and those which became republics (South Africa, Pakistan and Ceylon). South Africa, Pakistan and Ceylon, now Sri Lanka, have all suffered violent post-colonial histories, whilst Britain,
Queen. I solemnly promise so to do.
Archbishop. Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?
Queen. I will.
The monarch, as represented by the Crown, serves as a symbol of the legitimacy of all courts of justice, and of their judicial authority, as well as those charged with applying and enforcing the law, the police. All participants of the criminal justice system, the legislators, the police and the judicial officers, are required to swear true allegiance to Her Majesty in oaths or affirmations. The wording of these oaths is also important, as judges and police, in particular swear oaths or affirmations which include the obligation to carry out their duties ‘without fear, favour, affection or ill-will.’
The actual wording of the oath sworn by members of the Australian Federal Police is provided below:
Australian Federal Police Oath
I………., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law. That I will faithfully and diligently exercise and perform all my powers and duties as a person declared to be a member under section 40B of the Act of the Australian Federal Police without fear, favour, affection or ill-will, from this date until I cease to be a person declared to be a member under section 40B of the Act of the Australian Federal Police. That, whenever performing duty in the Australian Capital Territory, I will cause Her Majesty’s peace to be kept and preserved, and prevent to the best of my power, offences against that peace. And that, while I continue to be a person declared to be a member under section 40B of the Act of the Australian Federal Police, I will to the best of my skill and knowledge, faithfully discharge all my duties according to law: So help me God.48
The combination of authority and accountability under The Crown, is shared by those components of the criminal justice system, the police and the courts as it is these institutions which actually deal impartially and objectively with people on a daily basis, and have the capacity to directly and meaningfully impact people’s lives, for better or worse, but they are always administered in accordance with law and justice in mercy in accordance with the sentiments of Her Majesty’s Coronation Oath.
Canada, New Zealand and Australia have enjoyed relative peace and prosperity over a prolonged period. Whilst some doubt can be raised as to the direct influence of the Crown in this regard, it is certainly good governance and a relative absence of political excess, widespread corruption or large-scale ethno- religious violence in the Constitutional Monarchies which is a point of differentiation with the republic