M3 - Learner Manual

1. The rule of law

The rule of law has a number of meanings. As a historical concept, it essentially means that government should be through law, as opposed to the exercise of arbitrary (or random) power.

There is often an element of discretion (or responsibility) in the way in which general rules are applied to particular fact situations, and sometimes new questions of law have to be decided by the courts. But the rule of law means that the determination should be governed by reason rather than whim, prejudice or ad- hoc decision making. Common law therefore, provided for this logical examination.

A further aspect of the rule of law is the principle of equality before the law. That is, the wealth or status of the parties should be irrelevant to the outcome of the case.

 

2. Due process of law

“Due process” is an aspect of government originally established by the Magna Carta, a charter of English liberties granted by King John on June 15, 1215. The rule of law demands that the punishment of a person should only occur in accordance with proper legal process. This is a fundamental principle of all western legal systems.

Important aspects of “due process” in the criminal law are the:

• presumption of innocence; and
• right to trial by jury for serious offences.

 

3. The separation of powers

Many provisions of the Australian Constitution are based on long-standing principles of the British Parliamentary System. One of the most important of these is known as the Doctrine of Separation of Powers.

Its main principle is that there are three (3) distinct functions of the government, which should be separate and independent of each other – to ensure that each function is properly performed.

The three (3) functions of government are:

(a)        Executive (PM and Cabinet)

(b)       Legislature (Parliament)

(c)        Judiciary (Courts)

 

Each “independent” arm of government acts as a check and balance on the other.

 

 

(a) The Executive

The Executive consists of the Prime Minister, assisted by a cabinet of senior ministers. The Executive is responsible for administering the laws and business of government through departments, statutory authorities and the defence forces.

 

(b) The Legislature

The power to pass law can be exercised only by the elected members of the two houses (House of Representatives & Senate) of the Federal Parliament and approved by the Governor-General.

 

(c) The Judiciary

The High Court and other Federal/State Courts have the judicial power to interpret laws and enforce them through penalties and fines.

If interpretation by the courts effectively creates new laws, they remain valid unless the parliament chooses to pass legislation that abolishes or modifies the judicial approach. For example, after the High Court decision in Mabo in 1992 the Commonwealth parliament passed the Native Title Act in 1993.

 

The meaning of “common law”[1]

The phrase “the common law” has three distinct meanings:

1. It is a system of law – distinct from a civil law system
2. It is a source of law – common law (also known as case law or judge-made law) as opposed to legislation/statute
3. It is a historical source of law within the United Kingdom – common law as opposed to equity.

The common law system of law making came before the parliamentary system.  It began in England in the 11^th Century with the establishment by William the Conqueror, King of England, of the Kings Courts. The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes. The common law changed and developed as different types of disputes developed and different customs evolved. 

The common law was the main body of law until the 17^th century when the British Parliament increased its law-making power and activity (this resulted in more laws coming into being through Acts of Parliament). Common law is often referred to as ‘judge-made’ law.

Common law is separate from statute law and does not rely on there being any Act of Parliament (or statute) underpinning it. While statute law is the main sources of law in Australia, the common law remains a vital and developing part of our legal system. Statute law always prevails over common law if there is a conflict.

The common law relies on the principle of precedent.  This means that courts are to be guided by previous decisions of courts, particularly courts that have higher authority. So, the extent that common law is written down is that it is found in decisions of courts. This means that it can often be difficult to find the common law that applies to a situation, as it is not in one single decision of a court, but rather different parts of it are set out in different decisions.

 

The doctrine of precedent in Australia[2]

Some of the rules that make up the doctrine of precedent in Australia are:

• In the hierarchy of the court system, a decision of a higher court is binding on lower courts – for example, a decision of the Supreme Court of Western Australia is binding (must be followed) by the District Court of Western Australia, but would only be persuasive (do not have to follow) on Queensland or other state courts.  Decisions from other common law countries such as the UK and New Zealand can also be persuasive but are not binding.
• Most courts are not bound to follow their own previous decisions, although they are expected to do so.

• The highest court in Australia, the High Court, is not bound to follow its own decisions.
• The decisions of courts outside Australia are not binding on Australian courts. However, Australian courts can refer to them for guidance or comparison if, for eg, a case is unusual or difficult.
• When a court makes a decision, it gives reasons for its decision. Another case with similar but not identical facts can be decided differently (that is, it can be distinguished). It is often said that ‘each case will be decided on its own facts’.