Native Title: a Hayekian analysis
THE NATIVE TITLE ACT AND SPONTANEOUS ORDER:
HOW LEGISLATING IN PLACE OF THE COMMON LAW HAS UNDERMINED FORMAL EQUALITY AND THE RULE OF LAW
I ABSTRACT
Australia is a country where legislative solutions to social problems are very popular. ‘Someone should make a law against it’ and ‘they should do something about that’ are oft-repeated mantras on all sides of politics. They’re even commoner among ordinary citizens, who — as F A Hayek argued some sixty years ago — soon get used to authority taking personal choice out of their hands. Legislators pass more (and more complex) laws, laws under which the rest of us are supposed to live.
One of Hayek’s great insights was his understanding that governments are bad managers, especially when they seek legislatively to micromanage every possible outcome. The Road to Serfdom concerned the totalitarian abuse of power, but Hayek leaves us in no doubt that ends-directed, teleological legislation — even in a democracy — ultimately shares some of the same fascistic tendencies.
The ‘impenetrable thickets’ of the Native Title Act — as memorably described by Gaudron J — exhibit many of the qualities about which Hayek warned in The Road to Serfdom and Law, Legislation and Liberty. As an important contributor to classical liberal economic and jurisprudential theory, Hayek remained concerned throughout his life with formal equality, the dangers of arbitrary legislation and the risk that arbitrary legislation would derogate from the rule of law — and with it the formal equality he so prized.
In this paper, I argue that the NTA derogates from the formal equality that underpins all liberal democracies, and the manner in which it does so is arbitrary. This arbitrariness undermines the rule of law. Before turning to the Act, I outline Hayek’s evolutionary theory of law, particularly his discovery that the common law manifests the characteristics of a ‘spontaneous order’. Read more »
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