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Last updated: August 2008
Constitutional, legal and Government framework
Rule of law
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For more information :
- Aitken and Orr, in Sawer’s The Australian Constitution, 3rd Edition, Australian Government Solicitor, 2002 at p 136-8
- Review of Government decision making
The rule of law is basic to Australia’s system of Government. The rule of law requires that individuals are not subject to any arbitrary or capricious exercise of power by Government officials. Government officials cannot act contrary to Acts and Regulations, nor can a Government official exercise coercive powers against an individual without statutory authority.
An individual whose rights or interests are affected by a decision made by a Government official may seek to have the decision reviewed.
An Australian Government official may be subject to both common law rules and legislative rules when undertaking any given action.
Common law
Common law, or judge-made law, is a body of law that has been formulated, developed and administered by courts, over time. Examples include the duty of care in giving advice, misfeasance in public office and the implied duties of employers and employees under the common law contract of employment. Principles developed under the common law can be displaced, amended or codified by legislative action.
Commonwealth, state and territory laws
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A Government official may be subject to both Commonwealth law and state or territory laws when undertaking any given action. An example of the interplay between Commonwealth and state or territory law can be seen in the area of anti-discrimination legislation in which both Commonwealth and state or territory laws may have application. The relationship between Commonwealth laws and the laws of the states and territories is a complex issue and legal advice should be obtained when specific issues are raised in this area.
Similarly, the operation of Commonwealth immunities is a complex issue on which legal advice should be sought. There is a presumption against the Crown being bound by statutes but sometimes a statute expressly provides that the Crown is bound. For more information, see: Hogg & Monahan, Liability of the Crown (3rd edition, 2000).
Criminal law
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A Government official may be subject to the criminal law when undertaking any given action. Provisions of particular relevance to Australian Government employees include:
- section 14 of the Financial Management and Accountability Act 1997, which makes it a criminal offence for a Commonwealth official or Minister to misapply, or improperly dispose of or use, public money
- key sections in the Crimes Act 1914 such as section 70 which relates to the disclosure of information by Commonwealth officers and section 79 which relates to official secrets
- the Criminal Code Act 1995 (incorporating the Criminal Code) which establishes a range of offences, including theft, fraud, abuse of public office, bribery and unauthorised access to, or modification of, restricted data.
