How strong is the rule of law in Australia when compared to overseas jurisdictions?
A strong rule of law culture means people will mostly choose to abide by the laws of that country. So, a big part of the rule of law is about people’s attitudes to the law.
In other words, does the law actually impact on the decisions people make in their daily lives? To the extent that it does, you have the rule of law.
In Australia, most people accept the rule of law and abide by laws. If not – we have strict criminal processes that ensure they are tried and punished fairly.
Even in places like Australia where generally the legal system functions pretty well, there are parts that don’t. But when you compare Australia to other countries overseas, you can see the strength of our rule of law.
We’re lucky: elections in Australia are relatively civil
A big part of the rule of law is about government. If politicians and government agencies are not only required to comply with the law, but actually do – then the rule of law is working.
Many countries these days claim to be democracies, but not all of them have a robust rule of law. And this can become really apparent in the electoral process.
In 2016, Australia had a federal election and the result was pretty close. After the election, the following Monday, stores opened, and people went to school and work. Australians more or less accepted the result and the legal mechanisms that regulated the transfer of power.
In a culture governed by the rule of law, politicians and their supporters generally accept that if you lose, you hand over power to your opponents and don’t riot in the streets or instigate a coup.
What about overseas?
In other countries, the story is very different. Take, for example, the 2007 elections in Kenya. After the results were announced, there was widespread violence that killed hundreds and caused thousands of people to flee. The unrest lasted for a number of months. So, here we can see how important for elected officials to have a commitment to the rule of law.
As much as everyone hates elections (except of course for democracy sausages), it’s generally better to have peaceful votes at the local primary school than riots in the streets.
The rule of law in Australia’s criminal processes
People usually talk about the rule of law in the context of politicians and presidents, and that sort of thing is really important. But it also overlooks many other day-to-day processes that the rule of law oversees, such as the criminal processes.
In Australia, if someone breaks into your house or steals your car, you can go to the police, report the crime and they will generally investigate it. If they catch the perpetrator, that person will be charged and brought to court. If convicted, they’ll be punished and if what they did was serious enough they’ll go to jail.
If you’re the victim of a crime, you don’t need to bribe the police to investigate. The offender will be charged and tried before a court, and they can’t just get off by bribing the judge (as far as we know).
At the same time, if you are accused of a crime, there are a range of procedural safeguards that protect your rights. These include rules which regulate how the police can use their powers to arrest you, or investigate the crime and question suspects, rules relating to what evidence can be admitted which aim to ensure the reliability and accuracy of the evidence.
In places where the rule of law is strong, you can’t be convicted of something that wasn’t a crime when you did it – so the government can’t make you a retrospective criminal.
What about overseas?
Compare this with countries like Mexico or the Philippines, where the criminal law has broken down. The system is so overwhelmed that it just can’t cope with the demands placed on it. When people can no longer rely on the law, they’re forced to take things in their own hands. This leads to spiralling violence. Also, once corruption infects the courts, people no longer rely on them to be able to apply the law properly – and the rule of law deteriorates even more.
One important area in Australia where the rule of law might not be working at its best is in the context of overrepresentation of indigenous people in our prisons. Here, we see the application of the same rules – criminal law – to everyone. But for a range of reasons these rules have a disproportionate impact on people of Australia’s First Nations. Some of these reasons are legal – about the content of the law and the processes that apply it. But many of them go beyond law.
These reasons relate to broader and very complicated questions about opportunity, disadvantage, and dispossession. This shows that its often not enough to simply have legal answers to social issues – and points to some possible limits of the rule of law.