Policy Statement - Rule of Law Principles
19 March 2011
A key objective of the Law Council of Australia is the maintenance and promotion of the rule of law. For that reason, the Law Council often provides analysis of federal legislation and federal executive action based on its compliance with so-called “rule of law principles”.
This document seeks to articulate some of those key principles. It is intended to act as a guide to the framework often employed by the Law Council and its committees in evaluating the merits of government legislation, policy and practice.
This document is not intended to offer a comprehensive definition of the “rule of law”. It is acknowledged that what is encompassed under the banner of that phrase is a matter of some contest and that it is a concept which is not necessarily amenable to an exhaustive definition.
In particular, it is acknowledged that there is considerable public debate about two matters:
- the intersection between human rights and the rule of law and the extent to which the rule of law is necessarily predicated on respect for human rights; and
- the intersection between democracy and the rule of law and the extent to which the rule of law necessarily assumes that laws are passed by a democratically elected legislature formed following free, fair and regular elections. It is not necessary to definitively resolve either of those debates in this document.
Instead, this document focuses on the most basic tenets of the rule of law — and those which are most often invoked in Law Council submissions and advocacy.
With respect to broader human rights principles, it is noted that Australia is a party to the seven key international human rights treaties and has also signed or ratified a number of optional protocols to those treaties. These international treaties, which Australia has voluntarily entered in, set out in clear terms Australia’s international human rights obligations.
Australia is bound to comply with their provisions and to implement them domestically. For that reason, in an Australian context, regardless of the extent of any agreed overlap between the rule of law and human rights, it is entirely appropriate to evaluate government legislation, policy and practice by reference to its compliance with international human rights law.