The rule of law
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other house are for the benefit of Australia rather than the government, and include no instances of discrimination. The judiciary also exercises the power to control legislation if it is deemed not in accordance with the ‘rule of law’. This was proven in the landmark case of Chu Keng Lim vs Minister for Immigration. Parliament had amended the migration act to provide for the compulsory detention
of certain designated persons who could not be released from custody by an order of the court.
The high court rejected this legislation stating that it was “ beyond the legislative power of parliament to invest the executive with an arbitrary to detain citizens in custody not withstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. Putting to one side exceptional circumstances the involuntary detention of a citizen in custody by the state is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.
Every citizen is “ ruled by the law and the law alone” and may with us be punished for a breach of law but he can be punished for nothing else.” The judiciary also applies a system of precedent which allows for consistency in decisions but still provides for individual circumstances. This insures that there is no discrimination between people. Although all current conventions comply with the ‘rule of law
’, the constitution does not guarantee it and provides for things such as the arbitrary exercise of power by the Governor General. However in Emy
Hughes publication Australian Politics it states that “ the court reasoned that that since the constitution could be presumed to authorise a system of representative democracy
this in turn entailed freedom of debate. This line of reasoning pointed the way towards the discovery of implied rights. Without the doctrine of ‘the rule of law’ our government would be undemocratic and would be deemed ‘the rule of men’ in which certain members were exempt from the law and would not be equitable.
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