Why Is Rule Of Law Important In The Australian Legal System

In 1885s, classical formulation of the Rule of Law created by A.V.Dicey. He express clearly that Rule of law has 3 elements that is supremacy of constitution, protection of Human Rights/ Natural justice and equality before law. Rule of law is one of the most significant principles in the Australian Legal System and the three arms of government do also play roles in upholding the rule of law. All public must comply with the constitution and the laws must be enforced therefore every person has the same rights and responsibilities on their country and while there protect and preservation of fundamental human rights, there must have a very strong reasons exist then can only be removed.
1st element of Rule of Law, Supremacy of Constitution is one of the most important principles in the Australian Legal System. The constitution is supreme and must be respected by all that stated in clause 5. Judicial body upholds the supremacy of constitution which stated in the constitution implied the division of power has been upheld. For example, Mabo case no.1 1988 state that Coast Island Declatory Act 1985 has a conflict with Racial Discrimination Act 1975 to protecting their land’s right. By using section 109, the division of power upholds by
the court.
However, other may argue that supremacy of constitution is not effectively upholding by judicial body. Judicial body will prevail to Commonwealth more than State so it does not implied the division of power in the constitution. For instance, Tasmanian Dam Case 1983 reviews World Heritage Properties Conservation Act 1983 valid for the commonwealth parliament can pass a law to keep the cultural Heritage. So the high court is not upholding the 1stelement of rule of law by implied the principle of division of power.
Besides, Equality before law which is the 2nd element of Rule of Law is one of the most important principles in the Australian Legal system. It means that no man is above the law and everyone is treated equally. Judicial body can develop a new case-law to protecting people’s rights. For example, Mabo Case no.2 1992 upholds by Judges through judicial pronouncement which means court can develop a new case-law when there are no earlier cases. Native title Act 1993 is a complementary legislation that develops by the judges. Therefore, judicial bodies are effectively in upholding equally before law by protecting the rights of indigenous people.
On the other hand, some will argue that it is ineffective by upholding the equality before law by the judicial body. Judicial body may develop a bad case-law and lead to injustice. If the court rigidly follows a bad case-law and it can’t protect the rights of the people. For example, Searle v Wallbank 1947 uphold by the judges through judicial pronouncement that the landowner do not owe a duty of care to road user. This rigid application of the judicial pronouncement is unfair to the road users because landowner was given special privilege compare to road user and the equally before law cannot be upheld on road user.
Additionally, 3rd element of Rule of Law, protection of human rights is one of the most significant principles in Australian Legal System.
It protects the fundamental human rights and protect against the use of arbitrary power by the government. Judicial body is effective in upholding the rule of law because the courts protect the human rights and natural justice. For example, Adban case 1992 uphold by the judges through judicial review which reviewing the validity of a legislation. The High Court interprets the whole book of Constitution to implied freedom of speech and expression by upholding the protection of human rights. This prove that rule of law is important it helps to protect the freedom of speech and expression in the
constitution.
Furthermore, Doctrine of separation of power also one of the most important principles in Australian Legal System. It prevents abuse of power and prevents too much concentration of power in one government institution. It is perfectly separating the power and it is explicitly outline in the chapter 1, 2 and 3 in the Australian Constitution. For example, Boilermaker case 1956. There have separate the power of three arms perfectly that arbitration body cannot impose the fines because that is the area of law-making power of judicial body. Therefore, it clearly shows that it has upholding the doctrine of separation of power in three arms of government.
In contrast, others may argue that doctrine of separation of power is ineffective upholding by the three arms of government. It violates doctrine of separation of power. For example, all the members of executive also is the members of legislature, it shows that they do not have a perfect separation. Moreover, the involvement of the executive in the process of law-making affects with the law-making power of the parliament because bills are voted in accordance to party interest. As a result, Australia does not have a prefect separation of power in reality.
In conclusion, clearly the rule of law has effectively maintained by the three arms of government. Based on the three elements of Rule of laws, all public must obey with the constitution and the laws must be enforced, therefore every individual receives the same rights and responsibilities in their country and while there shield and defence of ultimate human rights, in that position must hold a very strong reasons exist than can simply be got rid of. While others argue that judicial body will shift the state’s power to the commonwealth, then the constitution may state clearly both law-making powers to preclude any dispute. Nonetheless, I have convinced that rule of law exercised by three arms of government in a very honest manner but not ultra vires.