Rule of Law in the Constitution - 1448 Words

Introduction A ‘free society’ is a system of interaction between humans wherein every person can participate in a civilised manner and without discrimination. In Australia, the Commonwealth of Australia Constitution Act 1900 (Imp) is the primary source by which society operates as an essentially free society. This paper seeks to establish that the functioning of such a society is dependent upon the existence of a legal framework supporting the rule of law, which is ultimately, an ideology. Analogically, the circumstances in which the application of the rule of law has either created a free society or undermined it will be explored and its purposes thus inferred to construct a definition of the ‘rule of law’ reflecting contemporary†¦show more content†¦In asserting its judicial independence, the High Court in Plaintiff S157/2002 v Commonwealth stated it was ‘the ultimate decision-maker in all matters where there is a contest.’ Zywicki suggests that as long as the court follows precedent and thereby gives individuals more certainty of knowledge over the rights they possess, ‘social coordination and economic wealth’ will increase. The courts would not be relying on its discretion, but rules which will apply equally in the future. Thus, refining Dicey’s definition, Zywicki views ‘rule-based decision making’ as a basic concept of the rule of law. Contrarily, Sykes suggests discretion may be a ‘matter of necessary efficiency’ which is more valuable than strictly adhering to the rule of law. The rule of law, then, does not encapsulate the absolute value of society. Sykes refers to police discretionary power; however, this concept of balancing the rule of law against other values may be extended to situations wherein exceptions and defences in law apply to certain groups. Consider the conferral of legal privilege and the requirement of confidentiality on legal practitioners in criminal law- whereas equality before the law operates in favour of the client, the law of legal privilege applies only to legal practitioners. As Sykes emphasises, ‘it would be unjust if the law failed to account for social difference and disadvantage...’ Zywicki would concur and modifies theShow MoreRelatedThe Rule Of Law And The Uk Constitution1298 Words   |  6 PagesThe rule of law is seen as being one of the most fundament al components of the UK constitution as well as being a principle that is concerned with restricting parliamentary action. Though the rule of law is seen to be a component in the constitution; the actual meaning of the rule of law has been very problematic to interpret. 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