SOURCE: HTTP://LAWGOVPOL.

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AN INTRODUCTION TO LAWS
Laws are rules, regulations and restrictions that apply to all members of society. Laws
define how people should behave or conduct themselves, and provide sanctions and
deterrents against improper and destructive behavior. Laws help to organise our societies,
maintain order, ensure our safety and prevent infringements of our rights. Without laws,
societies would descend into lawlessness, anarchy and violence. In a democratic society,
laws are created by representatives of the people (parliaments) and independent judges
and magistrates (courts). There are two types of laws: criminal law, which deals with
offences against people, property and morality, and civil law, which deals with
disputes(disagreement) between different parties.

What is Law?

Where people live together or gather in numbers they usually agree on rules about
conduct and procedures. They do this so that the group may better achieve its objectives
and to ensure the rights of its individual members are respected and protected. Schools
have rules specifically for these purposes, as do social groups such as clubs and sporting
teams. Families too might have rules, determined by parents or guardians, to ensure the
safety and security of younger members. Society has certain unwritten rules that reflect
social and cultural values, such as an expectation that individuals display courtesy and
good manners, observe things like queues and keep to the left on escalators.
A law is the highest form of rule and protects individuals by determining what is
acceptable behavior and conduct. Laws are considered a fundamental element of civilised
society: maintaining order, ensuring good conduct and protecting the human and civil
rights of individuals. Without a system of laws, society would most likely degenerate into
disorder and anarchy. Decisions in lawless societies are generally made by individuals or
groups who have the strength or power to coerce others. The 1980 Australian movie Mad
Max (see picture) was set in a fuel-depleted society where law and order had begun to
dissolve, and areas outside the cities were ruled by armed motorcycle gangs, the most
powerful of which was headed by the eponymous ‘Toecutter’. Laws exist primarily to
halt this descent into chaos, violence and anarchy.
In societies like Australia, which is a liberal democracy, laws are determined by
institutions, not by individuals. Collectively, these institutions are considered to represent
the state. Even in a society which operates according to the rule of law, much depends on
the trust and consent of the people. The population generally accepts the need for laws
and obeys them willingly. The state lacks the power and the resources to enforce and
uphold laws if large numbers of citizens willfully disobey them. As citizens, we agree to
abide by certain rules and surrender our absolute freedoms – and in return our lives and
our rights are protected by the state and its laws. The French philosopher Rousseau, who
lived in the mid 1700s, described this as the social contract.
The law is fundamentally important – but it is not perfect. The law is only as fair and
effective as those who develop, implement and oversee it. Charles Dickens once noted
that “the law is an ass” while Martin Luther King correctly observed that “everything that
Hitler did in Germany was ‘legal’.” The law is not above debate, criticism or challenge.
The law must be flexible, receptive to suggested reform and capable of change. As people
and society changes, so too must the law.

THE RULE OF LAW

The rule of law is the principle that every person – regardless of their rank, status or
office – is subject to the same laws and the same legal and judicial processes. To put it
another way, just as citizens must obey the law, so too must governments. Neither the
king, nor the king’s ministers, nor the government’s officials are above the law; no
person can ignore or subvert the law or act with arbitrary power. The rule of law is also
concerned with the legality of the actions of executive government. It requires the
executive government and its agents and agencies – such as the military, the police and
security agencies – follow fair procedures and respect the rights of citizens.

The idea of the rule of law is ancient. It is explained in Aristotle’s Politics (Book III,
chapter 16). In England, the idea that the king is also subject to laws of the land has its
origin in the Magna Carta of 1215. The signing of the Magna Carta was groundbreaking:
for the first time in English history, a written law curtailed the arbitrary power of a king.
That law also extended rights and protections for all Britons, not just the barons who had
grievances with the king. Its mythology notwithstanding, the Magna Carta fell
considerably short of the rule of law. The original Magna Carta stood for only two
months before it was repudiated by King John and annulled by the pope, Innocent III.
Although still subject to the law, the king retained the authority to change the law
himself.
The rule of law did not become entrenched in the Westminster system of government
until the Glorious Revolution of 1688. This was preceded by 85 years of argument
between the Stuart monarchs and the parliament and common law jurists (notably Sir
Edward Coke) over the divine right of kings, their claim to rule as they please. Under the
Bill of Rights passed in 1689, the king was forbidden from suspending or dispensing with
laws passed by parliament or imposing taxes without parliamentary consent. He was
forbidden from establishing his own courts or acting as a judge himself.

The rule of law is a cornerstone of democratic societies. The rule of law is not enshrined
in the Australian Constitution or other legislation, nevertheless, it is an important
foundation for Australia’s system of government. The principle of the rule of law has
been cited in a number of High Court judgements. On January 1st 2001, the centenary of
Australia’s Federation, prime minister John Howard was asked what he would nominate
as some of the great achievements of the past century. Mr Howard began his reply: “Well
I think the maintenance of democracy and the rule of law for 100 years”.

There are some anomalies that suggest the rule of law is not fully applied in Australia.
One is what lawyers call the ‘shield of the Crown’. This refers to privileges and
immunities enjoyed by the Crown, its representatives, officers and agents. Most of the
ancient privileges and immunities of the crown have been abolished by various
parliaments, however, a few privileges and immunities remain, including the principle
that legislation does not bind the Crown, except by express words or implication. In plain
English, the government can itself ignore legislation unless it contains the statement:
“this Act binds the Crown”. Another anomaly is the use of privative clauses in Federal
and State legislation, which restrict or remove the right of judicial review for decisions of
the executive government. One example of this is the New South Wales Terrorism
(Police Powers) Act 2002, which protects some decisions of the State’s police minister
from judicial review.

In conclusion, the rule of law is a foundational philosophy or principle that

underpins Australia’s system of government. It operates to provide citizens with certainty
by clearly identifying the conduct required by the law. It also provides protection by
requiring the government to act according to the law. That said, the rule of law is
sometimes carried only by convention. It is not defined or protected in the Constitution or
other legislation, and its meaning and application is open to interpretation. Though the
rule of law is important, there are anomalies where the executive arm of government is
exempt from ordinary laws of the land.

MAKING OUR LAWS

There are many different laws to regulate the many different fields of human activity.
Humans are complex and diverse, so the laws that address human activity and conduct
are also diverse. Australian society alone is regulated by thousands of different laws,
from the Constitution down to local government by-laws about dog registration, parking
and littering. These laws are not just concerned with individual conduct. They also
provide a means for resolving disputes between parties, such as commercial or
contractual disputes, disagreements between employers and employees, disputes between
neighbors, family separations and child custody matters. The law is a broad field of study
and professional activity, with many areas of focus and specialisation.