Legality of Law in Australia

This article discusses the concept of legality in constitutional, administrative and criminal law in Australia. It covers the importance of law, legal system, hierarchy of courts, principle of legality, rule of law and more. The article also provides a brief history of the Australian legal system and its roots in the British legal system.

Running Head: Legality of Law
Legality of Law in
Australia
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Table of Contents
Introduction................................................................................................................................2
Importance of Law.................................................................................................................2
Legal System..........................................................................................................................2
History of Australian Legal System.......................................................................................3
Meaning of Constitution........................................................................................................3
Australian legal system..........................................................................................................3
Hierarchy of Courts................................................................................................................4
Principle of Legality...................................................................................................................4
Elements of Legality..............................................................................................................5
Rule of Law............................................................................................................................6
Importance of Rule of Law....................................................................................................7
The Principle of Legality in the Constitutional Law..............................................................8
The Principle of Legality in Administrative Law..................................................................8
The Principle of Legality in Criminal Law............................................................................8
Conclusion..................................................................................................................................9

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Bibliography.............................................................................................................................10
Introduction
Every open in our day and age requires a plan of laws in order to work honestly. All
through the many years, various legal intellectuals and law masters have tried to characterize
and delineate the law, and these defining terms and depictions are significantly affected by
social, political and religious points of view on the overall population. The Australian
political and legitimate structures work in an administration shows that it was developed in
1901. Regulatory and lawful decision- making happens at government and regional levels,
every so often deceives the mind of an understudy or spectator of the Australian real system
about how these parallel structures work accommodatingly. Law is set of rules, developed
through time, which is accepted by the community. Sometimes, the rules might in the
customs and traditions, which are being followed by people for long period. Not all rules are
laws. The main purpose of law is to provide harmony and justice to people. (What is Law?,
2019). In this paper, the concept of legality in constitutional, administrative and criminal law
will be discussed.
Importance of Law
Laws are required so that community work adequately, to make sure that some section
of the society does not influence, cash or solidarity to tamper with others or do things for
their own benefits. There are laws to make sure that everybody gets their own rights and
obligations and legal rights and obligation of other people. (what is law?, 2015).
Legal System
All countries have a legal system to work efficiently. The ‘legal system’ includes the
laws, their implementation and make sure that they are being followed properly. Legal
system shows the way the citizens behave and the expectation of a country from its citizens,
associations and public body towards the legal system (what is the legal system?, 2017).

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History of Australian Legal System
Australian legal system’s roots are in British legal system. It started developing when
British people started building up the colonies in Australia in early 1770. The British
Parliament allowed a restricted appropriate to make a neighborhood arrangement of
governing body to every one of the British states inside Australia, typically alluded to give
'mindful government' in the period between 1855 to 1890 (What is Parliament?, 2019). As
every one of the settlements was allowed this correct it had the capacity to build up its own
laws and legitimate frameworks to manage its specific circumstance. Along these lines, the
law and lawful framework in every one of the settlements started to grow independently.
Procedure through laws are embedded in Australian legal system are:
 When parliament pass the law are ‘statute law’;
 Regulations, rules, bylaws etc., are passed as ‘delegated legislation’ by parliamentary
and statutory authority; and
 courts deciphering the laws, and choosing present cases which are similar to previous
decided cases and applying the same application of the law in ruling the present case.
This is known as ‘common law’. (Australian Law & Legislation: the Australasian
Legal Information Institute Database (AustLII): Law Making In Brief, 2018).
Meaning of Constitution
A Constitution is a legal framework, which tells about set of rules to support the
government the way to run (govern) the country, decision of power and authority of the
power. The Constitution provides the guidelines for the country to run effectively and
efficiently. The name of Constitution of Australia is coined as Commonwealth of Australia
Constitution Act 1900. (How Australia formed its Constitution).

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Australian legal system
Australian legal framework oversees locals for what may and may not do as people
from the Australian society and in light of the way that they pick the people who make the
law:
 Commonwealth government – laws that are given consent by the Commonwealth
Parliament, chosen by every single Australian native who are selected to cast a vote.
 District government – laws that are given consent by district government, picked by
every Australian who are having voting rights.
 Local government – local government’s laws are given approval by local councillors.
Hierarchy of Courts
(Australian Law & Legislation: the Australasian Legal Information Institute Database
(AustLII): Law Making In Brief, 2018)
High Court of
Australia
State &
Territory Courts
Supreme Court
Intermediate
Courts
Lower Courts
Commonwealth
Courts
Federal Court Family Court
Federal
Magistrate
Corurt

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Principle of Legality
The most vital concept of rule of law is principle of legality lies at the establishment
of any legal executive building, without which the presence of the rule of law cannot be
considered. As it is suitably laid out, "the rule of law in its expansive sense, comprehended in
general arrangement of open specialists, regardless of their position, does not merit the name
of guideline of law except if it gives without anyone else a case of withstanding
legitimateness. The concept of legality of law first handed down in Electrolux Home
Products Pyt Ltd v. Australian Workers’ Union [2004] HCA 40; 221 CLR 309; 209 ALR 116;
78 ALJR 1231 (2 September 2004) (Electrolux Home Products Pty Ltd v Australian Workers'
Union, 2004). The standard of statutory interpretation is principle of legality. If Parliament
tries to intrude basic rights or principles, or to leave from the general course of action of law,
by then it should express that objective by clear and expressive.
Elements of Legality
To determine the legality of the law there are various elements to be satisfied-
1. The first element is to check the retrospective test. Parliament necessarily utilizes
transparent and express language to authorize a resolution, which distorts existing
legitimate principles whereupon individuals have requested their illicit relationships,
practicing rights and caused responsibilities and commitments. The standard expects
laws to be forthcoming on the grounds that it is drastically unreasonable to consider
an individual in charge of damaging a law that did not exist at the time the person
acted.
2. The principle envy gives protection for accessing the courts. In Plaintiff S157/2002 v.
Commonwealth [2003] HCA 2 211 CLR 476; 77 ALJR 454; 195 ALR 24 (Plaintiff
S157/2002 v Commonwealth, 2003), The High Court connected the rule of
legitimateness to barely translate an adverse condition: an arrangement of statute law
statutory arrangement that endeavored to keep the courts from auditing legality of the
administration’s demonstrations and choices.
3. The third element of legality is equality before law and its protection. As A.V. Dicey
has said that, it is a piece of standard of law that 'each government servant, from the

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Prime Minister to a constable or an authority of duties, is under a similar obligation
regarding each demonstration managed without lawful avocation as some other
resident.' In the case Puntoriero v Water Corporation [1999] HCA 45; 199 CLR 575;
73 ALJR 1359; 165 ALR 337; 104 LGERA 419 (Puntoriero v Water Corporation,
1999) the plaintiff filed lawsuit against government body for dumping of intoxicated
water into agricultural land that resulted in damages to agricultural land. The High
Court of Australia applied the principle of legality and held the authority legally liable
like any other normal person.
4. The fourth element of legality is to protect the basic element of free and fair hearing.
It incorporates principle of common equity, the assumption of honesty, benefit against
self-implication, criminal standard of confirmation and others (The principle of
legality, 2016).
Whenever Parliament tries to interrupt with the rights and principles that interruption
must be reasonable and clear. Lord Diplock pointed out in Black-Clawson International
Limited v. Papierwerke Waldhof-Aschaffenburgaktiengesellschaft [1975] AC 591; [1975]
UKHL 2 (Black-Clawson International Limited v. Papierwerke Waldhof-
Aschaffenburgaktiengesellschaft, 1975) that the rule of law as an established rule necessitates
that a resident, before investing in any game-plan, ought to probably know ahead of time
what are the lawful results that will spill out of it. Where those outcomes are directed by a
resolution the wellspring of that information is the thing that the rule says.
Rule of Law
A strict meaning of the standard of law is difficult to express because the same
number of marginally unique definitions are acknowledged. Most definitions concur,
guaranteeing government is under law is central. This implies substantive laws, not simply
the constitution, should bind government and the law works as a limitation on the intensity of
government. As the standard of law is a requirement on the intensity of government, the
legislature cannot just institute laws to vanquish this reason. While in fact they would act
under law this would not be under the standard of law. Inside the idea of the standard of law,
there is likewise the ramification that our everyday lives ought to be free from dangers of
brutality and persecution from people or gatherings.

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Key rules that support the standard of law
 Fairness: it is reasonable that in our legitimate framework the law applies to
everybody, government and native.
 Rationality: laws should be balanced. It is against the standard of law to make a law
that cannot be pursued.
 Predictability: being unsurprising implies that the laws that an individual must comply
with are known alongside what the imaginable result is if these laws are broken, in
this way the standard of law is against the authorization of review laws.
 Consistency: not exclusively does the law apply to everybody, it applies to everybody
similarly, and along these lines, cases with comparable realities are probably going to
have comparative results. This likewise necessitates judges recognize how cases that
may seem comparative are unique in the event that they need to treat them in an
unexpected way.
 Impartiality: In arrangement of government, there is fair legal executive that is
isolated from alternate arms of government (the official and the council). This implies
that judges can settle on choices dependent on the benefits of the case without
confronting weight or negative repercussions from the legislature. The lawful calling
overall is additionally fair hence; specialists and advocates must speak to a customer
to the best of their capacities without dread of repercussions (Rule of Law, 2017).
Importance of Rule of Law
Today in Australia, the rule of law necessitates that legal framework and government
ought to give:
 results when an individual comes under the purview of the court,
 steady, logical and free consent choices regarding legitimate issues,
 assurance of people’s right and duties,
 ways to settle the question between gatherings according to the law
 understanding of clear, recognizable laws (What is the rule of law?, 2017).

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(Rule of Law Education, 2015)
The Principle of Legality in the Constitutional Law
The principle of legality speaks to a vital mainstay of the auxiliary connection among
Parliament and the courts in our constitution. The courts and Parliament primarily
communicate through statutory understanding. As an essential standard of statutory
development, the rule of lawfulness offers substance to the liberal convention of the
customary law. As pondered by Dicey, the guideline of lawfulness demonstrates how
parliamentary matchless quality and the standard of law strengthen each other (The Principle
of Legality as a Reflection of the Constitutional Relationship between Parliament and the
Courts, 2018).
The Principle of Legality in Administrative Law
The principle of legitimacy requires comprehensively communicated discretions to be
perused according to the major qualities, including expressive values of human rights and
customary law. It can be contended that this rule is appropriately situated inside a specific
origination of fair lawful culture, the way of life of support, in which leaders are obliged to
legitimize their choices by demonstrating either how the choices adjust to the qualities or that
they are legitimate takeoffs from the values. These advancements require both an obligation

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on administrative decision makers to give explanations behind their choices and an obligation
on judges to concede to those motivations to the degree that they shun assessing on a
rightness standard. The blend of the two obligations settles on chiefs responsible to principal
esteems without pressing out the space for exercise of their tact. Along these lines
internationalization is kept securely inside the overlay of custom-based law constitutionalism
(The Principle of Legality in Administrative Law: Internationalisation, 2001).
The Principle of Legality in Criminal Law
The principle of legality is derived from the latin phrase ‘nullum crimen sine lege, nulla
poena sine lege’ which means ‘no crime nor punishment without law’. The standard of
legitimateness implies that criminal risk and discipline ought to be founded just upon an
earlier authorization of forbiddance that is communicated with sufficient accuracy and
clearness. The doctrine that makes legality principle incorporates:
 nullification of present custom- based law correctional tenets;
 forbiddance of legal formation of latest reformatory guidelines;
 uncommon principles commanding that punitive rules be translated entirely;
 the disallowance of ex post facto laws;
 fair treatment negation of ambiguous criminal resolutions.
Conclusion
The principle of legality has been established as an important criteria for deciding morality of
laws overcoming statutes and human rights. It acts as a warranty of the working of legislative
system and has rooted itself in the effectively enforcement of the laws. The origin of this
principle has been traced in above mention cases and importance of this is principle in
modern world can be seen from the various judgments given by Australian Courts. This
principle protects the human rights from being abused by the inappropriate laws. Those laws
which are not consistent or failing the test of legality are morally wrong and can be set aside.

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To achieve the fair treatment of law the judges have started applying this principle while
delivering the judgment.
Bibliography
Black-Clawson International Limited v. Papierwerke Waldhof-
Aschaffenburgaktiengesellschaft, 595 (UKHL March 05, 1975).
Puntoriero v Water Corporation, 45 (High Court of Australia September 9, 1999).
The Principle of Legality in Administrative Law: Internationalisation. (2001). Retrieved
2019, from Research Gate:
https://www.researchgate.net/publication/237725913_THE_PRINCIPLE_OF_LEGA
LITY_IN_ADMINISTRATIVE_LAW_INTERNATIONALISATION
Plaintiff S157/2002 v Commonwealth, 2 (High Court of Australia February 4, 2003).

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Electrolux Home Products Pty Ltd v Australian Workers' Union, 40 (High Court of Australia
September 2, 2004).
Rule of Law Education. (2015). Retrieved 2019, from Rule of Law:
https://www.ruleoflaw.org.au/rule-law-education-2015/
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https://www.akdlawyers.com/what-is-the-legal-system/
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(AustLII): Law Making In Brief. (2018). Retrieved 2019, from Melbourne

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