Overview

Judge Culver of the District Court of New South Wales explains how the rule of law is alive and well in Australia and runs through an example of what it looks like where the rule of law is present.

The Rule of Law

The rule of law is often taken for granted in our community and just as we take for granted breathing, I think lawyers and the community often take the rule of law for granted because it is so entrenched in our system of law. From my perspective, the rule of law is a system of rules or laws that protect us all against the arbitrary exercise of power.

It is underpinned by some fundamental features, for example there is the defined structure of authority, we know who has the authority to make law and to apply law and to enforce law.

There is furthermore accountability. Every citizen has rights and obligations, and even the court, when it gives decisions has accountability through our system of review and appeal.

There is a separation of powers, so that the judiciary is independent of the executive power or government. That's important because the government agencies are often a party to proceedings, so the court must occupy a space of being impartial.

There is underpinning the rule of law a great sense of justice and fairness, where everyone is an equal under our system of law. No one is above the law and that includes government agencies.

A stark example of the rule of law enshrined in our practice of criminal law is that everyone enjoys the presumption of innocence and there are clear and defined and obligations that we at all stages are mindful of.

A Country without the Rule of Law

Many of the students watching this would have the plan at some stage to go and explore this fantastic planet of ours.

When an Australian travels overseas, they can often find themselves in a very remote location.

Imagine that you are overseas in some very isolated area and you're walking along and a stranger comes up to you. That stranger does not speak much English and you don't speak the language of the stranger. The stranger thrusts a package at you and says “look look.” You at first decline, but the stranger is quite insistent, “look, please look.”

So there is the package put into your hands. The next thing you know, there is a hand on your shoulder and there is a police officer who is asking to speak to you, again not speaking in your language. You don't know what's happened.

You go with the police officer back to the police station and you are put in a cell. You ask for some kind of indication as to what is going. You ask for a lawyer. You are told no. You are in the cell for a few days and you lose track of time.

Then you then get brought up into a courtroom and there are proceedings occurring around you, and that's done again in a language for which you have no understanding. You have not been given an opportunity to phone anyone to tell them where you are, and the next thing you know, to your surprise, you have been sentenced for a very serious offense.

This is taken from real life examples.

Contrast with Australia

Contrast this with what you can expect in Australia, to demonstrate why to me, the rule of law is alive and well in Australia.

Imagine you are in Australia.

You are walking along a street, you have a package in your hands. Now a police officer cannot just come and search you without an appropriate basis to do so. If the police officer arrests you, the police officer has to announce that you are under arrest. You are entitled to know why you are under arrest. You are taken to the police station and you are able typically to ask to speak with a lawyer. You have a right to silence and you are told you have a right to silence. If you do not speak the language, then an interpreter typically is made available for you.

You have a right, typically for a phone call. You are taken to a courthouse, where your bail is determined but everything has to be explained to you.

If you do not have a lawyer, then the magistrate will explain to you what is going on what the considerations are. At every point along the way, you have a right to know what is happening, what is the evidence against you, and you have a right to be heard. You have a right to give your perspective or version of the events and this persists all along the way.

Just say you are found guilty, at some sentencing hearings you have a right of appeal.

These are matters that in my view, underpin the essential features of the rule of law; the accountability, the transparency, the presumption of innocence, the right to participate, the application of natural justice.

All of these matters of fairness imbue our practice of law and in my view is alive and well in Australia and judges are very aware of ensuring that the rule of law is met in our courtrooms.