Rule of Law - Revision Booklet V

Laws Must Be Certain Definition:

Laws must exist before they are applied. Citizens need to know the law in advance so they can guide their behaviour.

• Laws cannot be retrospective.

• Punishment only occurs under the law in force at the time of the act.

Laws Must Be Certain Competing Tension:

Certainty vs Flexibility – Laws must be predictable, so people know their rights, but sometimes flexible interpretation is needed (e.g. Coco v The Queen requiring clarity vs courts adapting principles for justice).

Laws Must Be General Definition:

Laws should apply broadly and not target single individuals.

• General laws = fair, impersonal rules.

• Special laws allowed where rational differences exist (e.g. police, children, non-citizens).

Laws Must Be General Competing Tension:

Laws must apply to everyone, but exceptions are made when responsibilities differ (e.g. Roach v Electoral Commissioner balancing prisoner rights with community responsibility).

Laws Must Be Applied Equally Definition:

Laws apply equally to all to whom they are relevant, without bias or favour.

• Requires separation of powers: Parliament makes laws, judiciary applies them independently.

• Prevents abuse of power and arbitrary justice.

Laws Must Be Applied Equally Competing Tension:

Empowered vs Disempowered – The law should empower all, but disadvantaged groups may struggle to access justice equally (e.g. Dietrich v The Queen where equality before the law required access to legal representation).

The Importance of the Rule of Law for Society:

• Core Role: Ensures Australia remains a free, democratic, and fair society.

• Protects human rights and prevents arbitrary government action.

• Functions as both a practical principle and an aspiration citizens must defend.

Features of a Society Governed by Rule of Law

1. Universality – Everyone (including the government) is bound by the law.

2. Accessibility – Laws must be public and understandable.

3. Independent Judiciary – Courts decide disputes impartially.

4. Presumption of Innocence – Innocent until proven guilty.

5. Fair Trial Rights – Prompt, transparent, impartial hearings.

6. Protection from Arbitrary Power – No unfair arrest or detention.

7. Judicial Determination of Punishment – Only courts can impose penalties.

Constitutional Monarchy:

• King Charles III is Head of State, GG represents him.

• GG powers: assent, summon/dissolve Parliament, dismiss government.

Constitutional Monarchy Conventions:

GG acts on advice of PM if:

• PM holds majority in HoR.

• Supply is guaranteed.

• Advice is constitutional.

Constitutional Monarchy Competing Tensions:

Rights vs Responsibilities: GG has responsibility to maintain stable government; Parliament claims right to govern with majority.

Representative Government Features:

Universal franchise, regular elections, secret ballot, one vote one value, MPs paid, parliamentary privilege, right to protest/petition.

Responsible Government Definition:

Executive drawn from and accountable to Parliament.

Responsible Government Conventions:

Unwritten Rules

1. Ministers must be MPs.

2. PM must sit in HoR.

3. Cabinet collectively responsible; must resign if confidence lost.

4. Ministers individually responsible; must resign if misleading Parliament.

5. Senate should not block supply.

6. GG acts on advice if majority and supply are secured.

Responsible Government Accountability Tools:

Question Time, committees, censure motions, media scrutiny.

Responsible Government Competing Tension:

Fairness vs Efficiency: Conventions ensure fairness (accountability), but Cabinet dominance ensures efficiency in law-making.

Law-Making by Parliament & Resolving Deadlocks: Stages of Law-Making

1. Drafting & Cabinet approval.

2. First Reading.

3. Second Reading (debate).

4. Committee Stage.

5. Third Reading.

6. Senate repeats.

7. Assent.

8. Proclamation.

Deadlocks (s.57)

• Senate rejects bill twice (3 months apart).

• GG may dissolve both houses.

• Election → bill reintroduced → joint sitting if rejected again.

• Example: 1974 Medibank bills.

Possible Outcomes of Double Dissolution

• Government majority in both houses → legislation passes.

• Government majority only in House → possible joint sitting if Senate blocks.

• Opposition wins House → change of government.

2025 Federal Election Demographics – Important in any question about law making by parliament

• Gen Z & Millennials now outnumber Boomers in the electorate.

• Younger voters → Greens/ALP; older cohorts → Coalition.

• Women: ~49.6% of MPs (near parity, a historic high).

• Ethnic diversity is growing in metropolitan electorates.

Groups Still Under-Represented:

• First Nations Australians: ~3.8% of the population, only a handful of MPs.

  • Example: 2023 Voice Referendum failure showed difficulty of achieving parliamentary recognition.

• People with Disability: very few MPs openly identify as disabled (~18% of population).

  • Example: Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2019–23).

• LGBTQ+: presence is growing but limited.

  • Example: Marriage Equality Act 2017 passed only after postal survey and mass public activism.

• Culturally and Linguistically Diverse (CALD) communities: ~30% of Australians born overseas, but not reflected in Parliament.

  • Example: Migrant communities often influence law reform through lobbying and petitions (e.g., multicultural councils).

• Youth (Gen Z MPs): few under 30 MPs despite youth being the largest voting bloc.

Groups Still Under-Represented: Impact on Law-Making

• Parliament reflects dominant groups (middle-aged, able-bodied, majority culture).

• Reform for minority groups often relies on external pressures:

  • Indigenous rights → Mabo case, 1967 referendum.

  • Disability rights → Royal Commissions.

  • LGBTQ+ rights → activism, postal survey.

Party Policy & Voting

• MPs usually vote along party lines due to party discipline.

• Voters elect governments expecting policy promises fulfilled.

Influences on Legislation (People Power)

• Pressure groups: unions, business, environment.

• Social movements: climate rallies, equality protests.

• Media/social media: frames debate, pressures MPs.

• Royal Commissions/inquiries: provide recommendations (e.g., Stolen Generations, Disability RC).

• Petitions: direct citizen participation.

People Power Competing Tension:

Certainty vs Flexibility: Party policy = certainty, but under-represented groups and people power force flexibility.

Preferential Voting (House of Reps)

• Voters rank candidates (1, 2, 3…).

• Candidate must gain absolute majority (50% +1).

• If no majority → lowest candidate eliminated, preferences redistributed until one wins.

• Strengths: stable majority governments, efficient law-making.

• Weaknesses: limits minor party representation.

• Tension: Fairness vs Efficiency – efficient, but not fully representative.

Proportional Voting (Senate)

• Seats allocated in proportion to votes (Single Transferable Vote).

• Ensures smaller parties/independents gain representation.

• Strengths: more representative, checks government power.

• Weaknesses: risk of deadlocks; minor parties can hold balance of power.

• Tension: Certainty vs Flexibility – more voices included, but less certainty for government law-making.

Indigenous Australians & LEJ Impact Legislature

• Pre-1967: excluded under s.51(xxvi), s.127.

• 1967 referendum gave Cth power.

• Statutes: Racial Discrimination Act 1975, Native Title Act 1993.

• Bringing Them Home Report (1997).

• Uluru Statement from the Heart (2017)

• Voice to Parliament Referendum 2023 – Fed – Failed but SA has a state based Voice to Parliament

Indigenous Australians & LEJ Impact: Executive + Royal Commissions

Implemented RDA 1975 via treaties.

• Deaths in Custody (1987–91).

• Royal Commission into the Protection and Detention of Children in the NT (2016–2017) (Don Dale)Child S

• Sexual Abuse (2013–17).

• Disability (2019–23, included Indigenous focus).

• Policies: NT Intervention (2007), National Apology (2008), Closing the Gap.

Indigenous Australians & LEJ Impact: Judiciary

• Mabo (No 2) (1992): native title recognised.

• Wik (1996): coexistence with leases.

• Koowarta (1982): upheld racial discrimination powers.

• Love v Commonwealth (2020): Aboriginal people not “aliens” under s.51(xix).

Indigenous Australians & LEJ Impact: Competing Tension

Empowered vs Disempowered: Courts and referenda have empowered Indigenous Australians, but Parliament has sometimes disempowered them through restrictive legislation.

Law-Making by Judges: Judicial Pronouncement

• Donoghue v Stevenson (1932): duty of care.

• Grant v Australian Knitting Mills (1936): extended negligence.

Law-Making by Judges: Elements of Duty of Care

1. Recognised Legal Relationship: A duty of care arises from a recognised legal relationship, such as an employer to an employee, a doctor to a patient, or a manufacturer to a consumer. 

2. Foreseeability of Harm: It must be reasonably foreseeable that the defendant's actions or omissions could cause harm to the plaintiff. 

3. Standard of Care: The defendant must meet a specific standard of care, which is the level of caution a "reasonable person" would exercise in the same circumstances. 

4. Breach of Duty: The defendant fails to meet the established standard of care. 

5. Causation: The defendant's breach must be the direct cause of the plaintiff's harm. 

6. Damages: The plaintiff must have suffered actual and quantifiable damages as a result of the breach. 

Law-Making by Judges:

Law-Making by Judges: Statutory Interpretation – Rules & Cases

Guidance for Judges in Statutory Interpretation

Internal Guidance (within the Act itself)

Judges look inside the statute for clues to meaning.

• Includes:

  • Definition sections (key terms defined at the start of the Act).

  • Headings, schedules, and punctuation.

  • Context of surrounding provisions.

Law-Making by Judges: External Guidance (outside the Act)

Judges can refer to secondary materials that reveal Parliament’s intent.

Includes:

• Second Reading Speeches.

• Explanatory Memoranda.

• Law reform commission reports or international treaties.

Law-Making by Judges: Guided by the Acts Interpretation Act 1901 (Cth), s.15AB

allows use of extrinsic materials to confirm or clarify meaning.

Law-Making by Judges: Rules for Statutory Interpretation

1. Literal Rule – plain meaning. (CIC Insurance v Bankstown FC [1997]).

2. Golden Rule – avoid absurdity. (Adler v George [1964, UK]).

3. Mischief Rule – address the “mischief”. (Smith v Hughes [1960, UK]).

4. Purposive Approach – Parliament’s intent. (s.15AA, Acts Interpretation Act 1901 (Cth)).

   • Tasmanian Dams (1983).

   • Cole v Whitfield (1988).

Law-Making by Judges: Departure from Precedent – Rules & Cases

• Distinguishing: facts differ → Shaddock v Parramatta CC (1981).

• Overruling: higher court overturns precedent → Mabo (No 2) (1992).

• Reversing: higher court overturns on appeal → R v Ridgeway (1995).

• Disapproving: court applies precedent but criticises → Trigwell (1979).

Law-Making by Judges: Competing Tension

Certainty vs Flexibility: Precedent gives certainty, but departure and interpretation rules provide flexibility.

Delegated Legislation: Who makes it?

FEC, gov departments, councils, statutory authorities.

Delegated Legislation: Why?

efficiency, expertise, emergencies, local needs.

Delegated Legislation: How?

enabling Act → draft → approval → Gazette → tabled → possible disallowance.

Delegated Legislation: Pros

efficient, expert.

Delegated Legislation: Cons

less democratic, fragmented.

Delegated Legislation: Competing Tension

Fairness vs Efficiency: Efficient, but weaker fairness due to reduced accountability.

Parliament & Courts Relationship: Codification

Parliament enshrines case law (Mabo → Native Title Act).

Parliament & Courts Relationship: Remedial Legislation

Parliament overturns judgments (Ridgeway → Undercover Ops Act).

Parliament & Courts Relationship: Competing Tension

Rights vs Responsibilities: Courts protect rights; Parliament has responsibility to legislate broadly.

Judicial Independence: Features

s.72 tenure, fixed salaries, independent appointment/removal, judicial privilege.

Judicial Independence: Important

impartiality, prevents political interference.

Judicial Independence: Competing tensions

Empowered vs Disempowered: Independence empowers citizens, but courts can be disempowered if Parliament overrides their rulings.

Separation of Powers

Arm	Function	Purpose of Supervision
Legislature (Parliament)
Executive (Government)
Judiciary (Courts)

Arm	Function	Purpose of Supervision
Legislature (Parliament)	Makes laws	Ensures accountability of Executive & Judiciary
Executive (Government)	Administers laws	Ensures law is implemented fairly & efficiently
Judiciary (Courts)	Interprets & applies laws	Ensures both Parliament & Executive act lawfully

Separation of Powers Goal

Prevent concentration of power, uphold rule of law, protect rights

Parliament → Executive

Mechanism	Explanation	Example	Tension
Question Time
Committees (e.g. Senate Estimates)
Disallowance of Delegated Legislation
Motions of Censure/No Confidence
Royal Commissions
Independent Oversight

Mechanism	Explanation	Example	Tension
Question Time	Ministers answer questions publicly	HoR Question Time	Fairness vs Efficiency
Committees (e.g. Senate Estimates)	Investigate government spending/actions	Robodebt, Defence, Education inquiries	Empowered vs Disempowered
Disallowance of Delegated Legislation	Reject regulations made by Ministers	COVID-19 emergency regulations	Fairness vs Efficiency
Motions of Censure/No Confidence	Hold government accountable for conduct	Used against Ministers during scandals	Rights vs Responsibilities
Royal Commissions	Expose executive misconduct	Aboriginal Deaths in Custody (1991), Robodebt (2023)	Fairness vs Efficiency
Independent Oversight	Ombudsman, ICAC, Auditor-General monitor executive behaviour	Ombudsman Robodebt Report, ICAC corruption cases	Fairness vs Efficiency

 Parliament → Judiciary

Mechanism	Explanation	Example	Tension
Override/amend court decisions
Define jurisdiction
Appointment/removal (s.72)

Mechanism	Explanation	Example	Tension
Override/amend court decisions	Parliament can legislate to reverse outcomes	Ridgeway (1995) → Undercover Operations Act	Rights vs Responsibilities
Define jurisdiction	Decides which courts hear certain cases	Family Court jurisdictional changes	Certainty vs Flexibility
Appointment/removal (s.72)	GG appoints judges on executive advice, removal by Parliament	Parliamentary control limited to misconduct	Rights vs Responsibilities

Executive → Parliament

Mechanism	Explanation	Example	Tension
Cabinet control
Delegated Legislation
Governor-General’s powers

Mechanism	Explanation	Example	Tension
Cabinet control	Sets legislative agenda and priorities	Budget & major bills initiated by Cabinet	Fairness vs Efficiency
Delegated Legislation	Makes detailed regulations efficiently	Health, transport, environmental rules	Fairness vs Efficiency
Governor-General’s powers	Royal Assent, dissolve Parliament	1975 Whitlam Dismissal	Empowered vs Disempowered

 Executive → Judiciary

Mechanism	Explanation	Example	Tension
Judicial appointments
Enforcing judgments
Law Reform Commissions

Mechanism	Explanation	Example	Tension
Judicial appointments	Executive nominates judges	Justice Jacqueline Gleeson (2021)	Empowered vs Disempowered
Enforcing judgments	Police & government implement rulings	Enforcement of court orders	Rights vs Responsibilities
Law Reform Commissions	Respond to judicial recommendations	SA Law Reform Institute projects	Fairness vs Efficiency

 Judiciary → Executive

Mechanism	Explanation	Example	Tension
Judicial Review
Constitutional Review
Natural Justice

Mechanism	Explanation	Example	Tension
Judicial Review	Courts assess legality of executive action	Williams v Commonwealth (2012)	Rights vs Responsibilities
Constitutional Review	Limits executive to constitutional powers	Plaintiff M68 v Minister (2016)	Fairness vs Efficiency
Natural Justice	Ensures executive follows fair procedure	Administrative Appeals Tribunal oversight	Fairness vs Efficiency

Judiciary → Parliament

Mechanism	Explanation	Example	Tension
Judicial Review
Statutory Interpretation
Common Law Rights

Mechanism	Explanation	Example	Tension
Judicial Review	Invalidate unconstitutional laws	Communist Party Case (1951)	Rights vs Responsibilities
Statutory Interpretation	Clarify meaning of ambiguous Acts	Cole v Whitfield (1988)	Certainty vs Flexibility
Common Law Rights	Develop principles protecting rights	Love v Commonwealth (2020)	Certainty vs Flexibility

Parliament → Itself (Self-Supervision)

Mechanism	Function	Example	Tension
Standing Orders
Committees
Code of Conduct & Register
Sunset Provisions
Post-Enactment Review

Mechanism	Function	Example	Tension
Standing Orders	Regulate debate & procedure	Speaker enforcing order	Fairness vs Efficiency
Committees	Scrutinise bills, spending, ethics	Scrutiny of Bills, Privileges Committee	Empowered vs Disempowered
Code of Conduct & Register	Prevent corruption & conflicts of interest	MP disclosure rules (2023 reforms)	Rights vs Responsibilities
Sunset Provisions	Laws expire after set time unless renewed	COVID-19 emergency laws	Fairness vs Efficiency
Post-Enactment Review	Evaluate rights impact of laws	Human Rights Committee reviews	Certainty vs Flexibility

 Independent Oversight Bodies

Body	Role	Example	Tension
Ombudsman
ICAC
Auditor-General
Human Rights Commission

Body	Role	Example	Tension
Ombudsman	Investigates public complaints about government departments	Robodebt investigation (2017)	Fairness vs Efficiency
ICAC	Investigates corruption in government	SA ICAC, NSW ICAC findings	Empowered vs Disempowered
Auditor-General	Audits financial management & spending	Reports on public sector efficiency	Rights vs Responsibilities
Human Rights Commission	Promotes and reviews equality and discrimination laws	Reports on disability & race issues	Fairness vs Efficiency