TOPIC 3.2: Why is the Rule of Law a Fundamental Tenet of Liberal Democracy?

What is the Rule of Law?

The concept of Rule of Law comprises a range of principles and legal traditions. Perhaps the most overarching and well known of these principles is ‘equality before the law.’

That is, in countries, which are underpinned by rule of law, the law is applied equally and fairly to all, and no one individual or company or institution is above the law. Adherence to the principles and traditions of rule of law is considered by developed nations to be the hallmark of a functioning political system, ensuring sound governance for the people. The following video provides more explanation.

Rights, interest and the rule of law

Accountability in managerialist terms is to utilise planning and performance indicators and measuring government activity. Another means of accountability is to have processes in place to enable insiders to report on unaccountable activities either through the internal systems, or outside the system, as through ‘whistle blowing’. Yet another element is to utilise the rule of law to embed the correct values and to have a system of redress should the rules (Law) be broken in the process of governing, as discussed in Topic 2, as follows.

Prior to white settlement, the indigenous nations had complex and significant legal systems. European settlement brought with it the British legal system and this is the official ‘law’.

In some communities and sub-cultures, vestiges of other legal systems still control the lives of those who are guided by them.

For example, there is some discussion that canon law has had an influence in the behaviour of the Catholic Bishops with regards to the lack of outing and prosecution of paedophile priests (Tapsell, 2014)^[1], and cultural laws (Su, 2014; Burn, 2013)^[2][3] that influence the treatment of, and marriage of, young girls which may not comply with local Australian law.

Because one of the fundamental tenets of our government is rule of law, and no one is above the law, the judicial system plays a large part in Australian public life. Public servants, therefore, should respect the law, understand it, and work within it.

It is important to be aware that there are many types of laws and many ways to classify the main branches of the law.  Each classification will capture an important aspect of the differences though it may do so at the expense of clarity in some other aspects. Figure 1 is a classification that includes Australian legal history (Carvan, 1999).^[4]

The difference between public law and private law is intended to reveal the prominence of the respective public and private aspects of rights and interests.

Thus, public law includes:

• Administrative Law: laws concerning the proper administration of laws and obligations by government officials
• Constitutional Law: as the name suggests, the laws concerning constitutions, both written and by convention
• Criminal Law: wrongs against the community, especially peace and order
• Industrial Law: working conditions, wages and industrial conditions generally
• Taxation Law: laws imposing taxes and other revenue-raising measures.

And private law includes:

• Contract Law: laws concerning legally binding agreements entered into between parties
• Commercial Law: laws concerning business and commercial dealings
• Torts: laws regulating civil liabilities other than breaches of contracts
• Succession Law: laws regulating the disposition of assets upon death
• Property Law: laws concerning real property (such as land) and personal property (all other property)
• Corporate Law: laws that regulate the structure, conduct and operations of corporations and the duties of directors
• Banking Law: laws that provide the framework or the establishment and regulation of banks.

Clearly, the work of public servants is guided by the law, but this guidance can take a number of forms. In some cases, it is direct and specifically aimed at the public service; in other cases, its influence is much more subtle. An example of direct and specifically aimed at federal public servants, is the Public Service Act 1999 (sections 10 and 13) which sets out legally enforceable requirements around behaviour.

In addition to the classification of public and private law, there is an overarching distinction that is often made between Statutes and the Common Law.

• Statutes: statutory laws or legislation refer to those laws enacted by parliaments
• Common Law: common law refers to those laws that can be discerned from the judgments handed down by the judiciary.

Courts in Australia

In Australia, the court system includes the Commonwealth, state and territory courts.

Commonwealth courts include:

• The High Court of Australia: the judicial power of the Commonwealth is vested in the High Court – the final court of appeal on civil and criminal matters and the court that determines constitutional issues
• The Federal Court of Australia: deals with bankruptcy, corporations law, industrial relations, taxation, trade practices and judicial review of administrative actions
• The Family Court of Australia: deals with marriage and divorce, including custody and welfare of children.

State and territory courts include:

• Supreme Courts: the highest state and territory courts, dealing with the most important civil litigation and most serious criminal cases
• Intermediate Courts: decide the great majority of serious criminal cases involving a jury and civil litigation up to certain monetary limits, for example County Courts in Victoria or District Courts in New South Wales.
• Courts of Summary Jurisdiction: presided over by a magistrate, these courts deal with most of the ordinary or summary offences, including traffic infringements and minor assaults. They also conduct initial committal proceedings for more serious cases
• Small Claims Courts: allow minor legal disputes to be dealt with quickly, cheaply and informally.

There are, in addition to the above courts, other bodies that administer justice. They include:

• Industrial Tribunals: both the Commonwealth and the states have specialised tribunals to deal with industrial matters
• Administrative Appeals Tribunal: the major Commonwealth tribunal for reviewing administrative decisions. As a state example, Victoria has VCAT, which, according to some, plays a prominent and contentious role in planning appeals
• Native Title Tribunal: established under the Native Title Act 1993, the Tribunal deals with claims concerning Native Title by Aboriginal and Torres Strait Islander people.

In addition to Australian law, we need to be aware that Australia is also subject to international law and this is increasingly obvious as we meet the conditions of our international treaties and conventions, and in complex trading arrangements as discussed in Module 5 of Unit 1.