rule of law in australia essay

It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power... Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else. It means, again, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the 'rule of law' in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals. [9]

The law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land. [11]

Beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt... Putting to one-side exceptional cases, ... the involuntary detention of a citizen in custody by the state is penal or punitive in character and, ... exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is "ruled by the law and the law alone" and "may with us be punished for a breach of law, but he can be punished for nothing else". [30]

Australia’s Legal Systems: Rule of Law Role Essay

The rule of law has always been as core of the Australian legal system. It is used as” a primary means of subjecting governmental power to control” (92). In Australia, the judicial process is characterized by the application of universal and abstract criteria based on the principle that all citizens are equal before the law. Even though a juridical interpretation of the law admits a range of possible resolutions, the criteria which characterize judicial proceedings limit the space in which actors in conflict may negotiate and exchange political costs and benefits. The rule of law was introduced by a colonial Chief Justice and than asserted by V. Dicey.

In some cases, the institutional limitations may in fact tie the hands of a democratic government seeking to redress past wrongs, but they do so only within the rule of law. In Australia, the rule of laws is enforced by courts. The Constitution also assumes the rule of law in the case Australian Communist Party v Commonwealth (Wade and Bradley 62). Since due process and fair-trial guarantees should be an absolute condition of legitimacy in any accountability scheme, it makes no legal, moral, or political sense to insist on prosecution in the presence of amnesties that have obtained legal effect despite their immorality. Accepting such reasoning would violate the cardinal rule of nullum crimen nulla poena sine lege (no crime no punishment without a previous penal law), in the sense that defendants always have the right to the most benevolent law that can be applied to them after the commission of a crime.

This does not mean that the effects of these proceedings are neutral, for a law generates differential costs among diverse social groups. Still, laws reorganize the form of conflict resolution, redefining the cost/benefit matrix determining the probability that each of the diverse social groups involved will realize their interests. In Australia, “statutes are sometimes retrospective and this is not necessarily wrong or unjust- Statutes are sometimes passed to deal with invalidity and uncertainty in the law. Such statutes are retrospective in operation but not necessarily objectionable” (Wade and Bradley 73).

Even though a law does not have a particular or concrete beneficiary — that is, even though it does not constitute a selective threat-it can establish the magnitude and universality of the costs that will confront those who decide to violate it. The Australian justice system recognizes presumption of innocence and double jeopardy rule, legal equality and habeas corpus rule. Thus, the foundations of rule establish that all criminals should be brought to justice, particularly when they have followed an authoritarian strategy and when their crimes have been massive. Without an autonomous judiciary willing to defy the political strategies of the presidency, as well as without political parties and human rights organizations willing to face the risk of the rule of law, military subordination to constitutional rule would probably not have come about. Similarly, the due obedience law constitutes a de facto amnesty that violates the right to justice of the victims and their relatives (Wade and Bradley 100). The democratic record in much of the world has been either weak or simply bad when it comes to judging the crimes of the guardians. That is, individuals should only be held accountable to laws that were in effect at the time they acted. The issue of the rule of law is not whether justice should be pursued but rather how it is to be sought.

Works Cited

Wade, E.C.S., Bradley, A.W. General Principles of Constitutional Law – Chapter 6. pp. 91-104.

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Rule of law

The rule of law is a key feature of Australia’s democracy and legal system. This fact sheet explains the principle of the rule of law and its relationship to the separation of powers.

What will I learn?

• The rule of law is the principle that all people are equal before the law and must obey it.
• The rule of law helps to create order and ensure fairness in society.

Glossary words

democracy , rule of law

Curriculum alignment

Year 7 ACHASSK195

What is the rule of law?

The ‘rule of law’ is the principle that all people are equal before the law and must obey the law. The rule of law means that laws apply to everyone, including the people that make them. To make sure everyone knows the law and their rights, laws should be easy to find out about, easy to understand and enforced.

The rule of law is a key feature of Australia’s democracy and legal system. The rule of law is established in covering clause 5 of the Australian Constitution, which states that all the laws made by the Australian Parliament apply to everyone in Australia.

Elements of the rule of law

Although most Australians agree on a broad definition of the rule of law, there is debate about what else should be included in the definition. Some features of Australia’s legal system that are generally considered to be part of the rule of law are:

• Everyone is innocent until proven guilty in a fair and public trial—this is known as the ‘presumption of innocence’.
• People can only be punished if a court has decided they have broken the law.
• A person can only be found guilty of committing a crime if their actions were illegal at the time. Retrospective laws – laws that change what was legal or illegal in the past – should not be created.
• The government can be challenged about its actions through the courts and by the media and citizens.

An important part of the rule of law is reviewing, updating and removing laws to make sure they are fair and reflect social values. The Australian Law Reform Commission is an independent agency that provides recommendations for law reform to the Australian Government.

Relationship with the separation of powers Separation of powers in Australia. Parliamentary Education Office (peo.gov.au) Separation of powers in Australia.

Parliamentary Education Office (peo.gov.au)

Description

This diagram illustrates the separation of powers in the Australian system of government. The Parliament (represented by an icon of Australian Parliament House) has the power to make and change law. The Executive (represented by a group of people) has the power to put law into action. The Judiciary (represented by an icon of a scale) has the power to make judgements on law. The three groups—Parliament, Executive and Judiciary—are connected.

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The ‘ separation of powers ’ is the principle that the power to make and manage laws should be shared between different groups—the Parliament , the Executive  and the Judiciary —to avoid one group having all the power.

The rule of law and the separation of powers limit the powers of the Parliament, the Executive and the Judiciary. The Parliament and the Executive must act lawfully and can be held to account by the courts if they don’t. The Australian Parliament cannot judge the limits of its law-making powers—this is the role of the High Court of Australia.

The Judiciary is independent and their decisions are impartial. These decisions are made without the influence of those who make the law (the Parliament) or those whose actions are being challenged in a court (the Executive). In this way the Parliament and Executive can’t gain too much power. This helps protect citizens from the arbitrary – unrestrained or autocratic – exercise of power by the Parliament and the Executive.

Benefits of the rule of law

Some of the benefits of the rule of law are:

• All citizens are treated equally and lawfully which protects citizen’s rights.
• An independent, impartial and transparent judicial system.
• All citizens are free from arbitrary arrest and imprisonment, or standing trial for breaking an unknown law.
• Australia’s democracy is strengthened because laws are made by representatives of the people.
• There is a level of order and predictability in society.
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Separation of powers: parliament, executive and judiciary.

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PRINCIPLE 2: THE RULE OF LAW

The rule of law is the idea that every person is subject to the laws of the land regardless of their status..

It is also the idea that you cannot be punished or have your rights affected other than in accordance with a law, and only after a breach of the law has been established in a court of law.

Aristotle by Francesco Hayez

How old is the rule of law?

Athenian philosopher Aristotle famously expressed a preference for the “rule of law” rather than the “rule of men”. It has been said that the law restrains and civilises power and is a safeguard, not a menace.

Where is the rule of law spelled out in our Constitution?

Covering clause 5 says that the Constitution ‘ and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth ’.

How does the rule of law protect the Australian people?

The rule of law restricts the powers of governments, corporations and individuals, and protects against the exercise of power without a lawful basis. The laws of Australia apply to everyone, including Government Ministers, Parliamentarians and Judges.

How does the rule of law affect me?

The laws in Australia should be capable of being known by anyone. You cannot be punished  by a court for something you do unless it is against the law when you do it. You have the right to the presumption of innocence and a fair trial. ​ Why is it important?

The rule of law gives us a predictable and ordered society. It promotes justice, fairness and individual freedom. The rule of law provides a shield against the arbitrary exercise of power. It ensures that judges are independent from the people and institutions whose actions are challenged.

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Rule of law

We have primary responsibility for supporting the Australian Government to protect and promote the rule of law.  

The rule of law underpins the way Australian society is governed. Everyone – including citizens and the government – is bound by and entitled to the benefit of laws. 

How we uphold the rule of law

We uphold the rule of law through our daily work to ensure:

• laws are clear, predictable and accessible
• laws are publicly made and the community is able to participate in the law-making process
• laws are publicly adjudicated in courts that are independent from the executive arm of government
• dispute settlement is fair and efficient where parties cannot resolve disputes themselves. 

We support the Australian Government in being accountable for actions, making rational decisions and protecting human rights .

Our international work

We advance the rule of law internationally by actively promoting adherence to the global rules-based system and helping to build effective governance and stability in our region.

Find out more about our international law work.

Get more information

Find out more about our work to strengthen Australia’s legal system .

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