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New South Wales was never envisaged to be, and never was, as Robert Hughes (The Fatal Shore, 1986) claims, a dictatorship or a gulag. It was to be a colony, admittedly a penal colony, but one nonetheless subject to the law. This meant that from the very beginning, we were subject not to the rule of men, but the rule of law. Now by the rule of men, we mean a system of governance in which the government enjoys a near absolute discretion in governing, as in the Soviet Union or Nazi Germany. From 1788, no Australian governor or government has ever enjoyed anything even close to such powers.

What then is the rule of law? Sir Guy Green, (Governors, Democracy and the Rule of Law - Robert Mezies Oration, 1999) former Chief Justice and then Governor of Tasmania, concludes that it has two core elements. First, everyone, particularly the executive arm of government, is subject to the law. Secondly, while citizens may do anything which is not prohibited by law and which does not infringe the rights of others, the executive government may only do what is authorised by law. This in fact accurately describes every system of government known to Australia since 1788.

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