The relevance of the Rule of Law is demonstrated by application of the following principles in practice.
- The separation of powers between the legislature, the executive and the judiciary.
- The law is made by representatives of the people in an open and transparent way.
- The law and its administration is subject to open and free criticism by the people, who may assemble without fear.
- The law is applied equally and fairly, so that no one is above the law.
- The law is capable of being known to everyone, so that everyone can comply.
- No one is subject to any action by any government agency other than in accordance with the law and the model litigant rules, no one is subject to any torture.
- The judicial system is independent, impartial, open and transparent and provides a fair and prompt trial.
- All people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves.
- No one can be prosecuted, civilly or criminally, for any offence not known to the law when committed.
- No one is subject adversely to a retrospective change of the law.
There is no single agreed definition of the rule of law. However, there is a basic core definition that has near universal acceptance. As Emeritus Professor Geoffrey Walker, has written in his defining work on the rule of law in Australia: ‘…most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it.’
– Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988).
‘The rule of law is an overarching principle which ensures that Australians are governed by laws which their elected representatives make and which reflect the rule of law. It requires that the laws are administered justly and fairly.’
– Robin Speed, RoLIA President
Key Documents and Further Reading
Please see the priorities page for RoLIA’s submissions to government and papers on various rule of law issues.There are many books on the rule of law, the following works provide a good place to begin study of the concept and its core principles:
- Walker, G., The Rule of Law: Foundation of a Constitutional Democracy, Melbourne University Press, 1988.
- Saunders, C. and Le Roy, K. (eds.), The Rule of Law, The Federation Press, 2003.
- Tamanaha, B., On the Rule of Law: History, Politics, Theory, Cambridge University Press, 2004.
- Castle, T. (ed.), Speeches of a Chief Justice: James Spigelman 1998-2008, CS2N Publishing, 2008 (Chapter II: The Rule of Law).
- Bingham, T., The Rule of Law, Allen Lane, 2010.
- Krygier, M., ‘Chapter 10: The Rule of Law’ Oxford Handbook of Comparative Constitutional Law, eds. M. Rosenfeld, A., Sajo, (Oxford University Press, 2010), pp.233-249.