Under the rule of law, all people should be ruled by just laws. But what makes a good law?

Is it just a law that happens to be supported by the political party we favour?  Or is there something more fundamental, some set of principles and ideas above partisan politics that provide a clear way of judging whether a law measures up?

The most reliable way of assessing any law is not to look for ideological purity. Those things change like the wind depending on which political faction is on top.

A more reliable method is to test it against the requirements of the Constitution and the principles that go to make up the doctrine we know as the rule of law.

Rule of Law Principles

Rule of law principles are above politics. They are designed to prevent the rise of arbitrary rule – which is the great evil that stymies progress. Arbitrary decision-making is the hallmark of authoritarian regimes. In those places, if law exists at all, it is applied differently depending on anything you like – race, religion, class, language, political allegiance and even whether or not you are in the good books with some petty bureaucrat or politician.

At one point in the history of the world, most places suffered from arbitrary rule. It still exists in many places. The risk of regressing into that form of governance is the reason why the principles of the rule of law are so important for Australia.  They include equality before the law, the separation of powers, the requirement that the law must be capable of being known in advance, that punishments can only be imposed in line with the law and, most important of all, the requirement that we are all presumed innocent of wrongdoing and the onus of proving otherwise rests with the state.

2. The law must be Clear

The law must clearly state what is expected for people to comply with it, and what penalties apply if they do not. Clearly defined laws help to prevent uncertain and arbitrary rule and provide consistent decision making about breaches of law.

3. The law must be Known and Accessible

Law must be discoverable (easily found) by community members and use simple language (accessible) so it can be understood, increasing the ability of people to adjust their behaviour to comply with the law. The media can help with this by publicising laws or changes to laws.

4. The law must be Accepted

The community must accept the law as relevant and reflective of societies wishes and values, otherwise they may not follow it.

5. The law must be Applied Consistently and Fairly

The Executive authorities in charge of administering the law (applying it) and the Judiciary must be seen to be doing so in a way that is consistent, fair and equal. This means that everyone is subject to the law, even those in power, and that similar penalties are applied for similar breaches.

6. The law must be Enforceable

People breaking the law must be able to be brought to justice by relevant bodies of the Executive and the Judiciary. Without enforcement of penalties, there is no incentive for people to follow the law.

7. The law must be Stable

The law must not change regularly so the community knows what it required of them. This will enable people to comply with law and have trust in the legal system.

8. The law must be Amendable (Changeable)

As community needs and values change over time, the law must be able to change to ensure that the law is accepted, and people can follow it easily.

9. The law must be Prospective, not Retrospective

Retrospective Laws are laws passed today that change what was legal or illegal yesterday. This changes what people’s rights and responsibilities were in the past and makes people unable to comply with the law.

Education Resources: What are the Characteristics of Effective Laws

Further reading:

The Law of the Constitution: AV Dicey

The Rule of Law: T Bingham

https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/rights-equality-and-non-discrimination

https://peo.gov.au/understand-our-parliament/how-parliament-works/system-of-government/rule-of-law/