The rule of law is a core principle of Australia’s legal system. But how well is it protected in Australia today?

To answer that question, it is important to consider which version of the rule of law is being considered, as different people have said that it means different things.

For some, the rule of law is a “thin” concept, meaning:

  • that laws must be set forth in advance,
  • they must apply equally to everyone, and
  • they must be public, clear, stable and certain.

For others, the rule of law is “thicker” – it is a commitment to fundamental human rights, or to democracy, or to justice.

Throughout Australia’s history the first layer or “thin” set of values have usually been well protected. Our laws do generally apply equally to everyone, even to government ministers, judges, and members of parliament. Laws are public, indeed, anyone with an internet connection can access and read most of our nation’s laws. And lawmakers do generally try and write laws in a way that is clear and certain (although not always with success).

However, for some of the deeper values associated with a conceptually “thick” rule of law, our country’s track record could be much better.

Human rights protection

One critical example is the protection of human rights. Most Australians believe that their human rights should not be taken away without a good reason.

Indeed, many people in this nation – 61 per cent according to a survey by Amnesty International Australia in 2006 – think that the government is legally unable to take away their rights because they believe that we already have a bill of rights.

That belief is understandable, because people take their cues on how the law works from American television shows and films, in which the US Bill of Rights can often be seen. And yet, the belief is wrong. Our legal system contains no comprehensive protection of human rights at all.

Preventing atrocities

Too often, the consequences of failing to protect human rights are felt by those who are least able to protect themselves.

Last year, an episode of ABC’s Four Corners showed boys held in juvenile detention in the Northern Territory’s Don Dale Youth Detention Centre. A 14-year-old boy named Jake was held in a small, dark concrete room with no running water, except from the toilet. A prison riot squad used tear gas on five boys in solitary confinement who had done nothing wrong.

A 13-year-old boy named Dylan was stripped naked and left on the floor of his cell, and was later assaulted by a prison guard, who kneed him in the back and hit him on the head, apparently for spending too long the phone. And at another detention centre in Alice Springs, Dylan was strapped to a mechanical restraint chair by his wrists, waist, and ankles, his head covered with a white bag known as a “spit hood”.

There are many other examples in this country of people treating the vulnerable in appalling ways, without any care for their human rights. But this is not the only way that human rights are breached. Sometimes, it is the law itself which is the problem.

Human rights and anti-terrorism laws

Since 11 September 2001, our governments have started passing more laws that take away people’s rights in the name of national security. Some of these are extremely harsh.

For example, there are laws that allow the police to secretly imprison you for 14 days, without even charging you of a crime. Other laws take away the presumption of innocence, meaning that if you cannot find evidence to show that you are not guilty, you will go to jail.

Other laws control what you can say, who you can spend time with, where you can go and even how you can dress. Worst of all, laws like this have been passed more and more often in recent years, and often in areas that have nothing to do with terrorism.

The simplest solution

How can we fix this problem? The simplest solution is for Parliament to pass a law called a “charter of rights”, that sets out all of the human rights that Australians have, and requires the Government to ensure that these are protected. Such a change is well overdue in this country, and indeed, we are only the democratic nation in the world without a charter of rights. If we wish to live in a country where the rule of law is not just a noble idea, but part of everyday reality, our law needs to reflect that.