Rule of law

The ‘rule of law’ is the principle that both the government and citizens know the law and are ruled by it. This means that the law applies to everyone, regardless of their position or status. To make sure everyone knows the law and their rights, laws should be easy to understand, findable and enforced.

The rule of law limits the powers of governments, businesses and citizens, and protects citizens against the use of arbitrary power – autocratic decisions not based on law.

The rule of law is a key feature of Australia’s democracy. Covering clause 5 of the Australian Constitution states that all the laws made by the Australian Parliament apply to everyone—including those that made them.

Elements of the rule of law

Although there is a broad definition of the rule of law, there is debate about what else it includes. Some parts of Australia’s legal system that are generally considered to be part of the rule of law are:

• Citizens can’t be found guilty of an offence that wasn’t a law when they committed the act – retrospective laws
• Everyone is innocent until proven guilty – presumption of innocence – in a fair and public trial
• Citizens can’t be punished, or their rights affected, unless a court has decided a law has been broken
• The government can be challenged about its actions by the media and citizens, and through the courts
• All citizens are given ‘natural justice’ – procedural fairness.

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

The principle of the separation of powers states that the power to govern should be shared between the Parliament, the Executive – government – and the Judiciary to avoid any group having all the power. Each group works within defined areas of responsibility and can keep a check on the actions of the others.

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 can’t 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 shields citizens from the arbitrary – unrestrained or autocratic – exercise of power by the Parliament and the Executive.

What are the benefits of the rule of law?

• Strengthens democracy because laws are made by representatives of the people.
• It provides a predictable and ordered society.
• All citizens are treated equally and lawfully which protects citizen’s rights.
• All citizens are free from arbitrary arrest and imprisonment, or standing trial for breaking an unknown law.
• An independent, impartial and transparent judicial system.