The Law must be Known and Accessible

Overview

The law must be known and predictable so that all people are able to be guided by it and know clearly the consequence of their actions.

The laws must also be comprehensible and clear with limited government discretion so that the laws are applied predictably and in a non-arbitrary manner.

 Finally, all individuals must have access to justice.

Known Laws

All individuals are required to know the law and law must be able to be known. 

Firstly, every person is deemed to know the law and is bound by it.  Presumed knowledge of the law means citizens should take steps to make themselves aware of the law, either on their own or with help from a lawyer.

Secondly, the law must be knowable.  All laws must be reasonably clear in their meaning, public, and ascertainable or knowable to all citizens, stable and prospective.  When two people try to figure out what a law is, that law should be clear enough so that they come to broadly similar conclusions.   Interrelated rule of law principles ensure the laws are capable of being known, such as no retrospective law and laws must be made in an open and transparent way.

Finally, where it is necessary to have discretion exercised by regulators or other members of the Executive, there should be clear guidelines as to how those discretions should be exercised. A person subject to the discretion should be able to determine in advance with a reasonable degree of accuracy how that discretion is going to be exercised with respect to the circumstances.

These are important to the rule of law because they provide predictability and help individuals know what activities are lawful in order to guide their actions and expectations. 

Furthermore, known laws limit the opportunities for a government to behave arbitrarily. 

Access to Justice

All individuals must have access to justice. 

The human rights of all people are a core tenet of our modern democracy and having access to justice is an important part of protecting those rights. 

Legal processes must be sufficiently robust and accessible to ensure the enforcement of citizen protections. 

Legal institutions like courts and tribunals exist to provide solutions to legal problems. When people cannot access these institutions, or if their ability to access them is limited, they cannot receive just outcomes. Access to justice is fundamental to the working of the legal system – a state can have the fairest and best laws in the world, but if people cannot use them to seek solutions to problems and just outcomes, then the law is useless. 

A significant part of access to justice is having access to legal advice from a lawyer who can use their expertise to present a legal matter to the court in the best way possible. Most people would not be able to afford to pay a lawyer for a long period of time without experiencing significant financial hardship. The high cost of legal advice has led to many people representing themselves in court. 

Although free legal advice and representation is available from Legal Aid and community legal centres, access to this is limited by a means test, and whether these organisations have the resources and available funds to provide assistance. 

Principles from the Magna Carta

Even in the times of Magna Carta, the law was known by all.

After the Magna Carta was agreed to, many copies were made and sent out to all the towns and churches. It was reissued many times by subsequent Kings. The document was read aloud twice a year and posted all over the towns, including nailed to church doors. This way, the law was widely known, and every person knew the King was also required to follow to the law – and in doing so, accept the consequences of breaking the law! 

Watch our video on the principles of the rule of law that come from the Magna Carta.