What does rule of law mean in Australia?

Attorney-General Robert McClelland exposed his thoughts and beliefs on the rule of law and human rights in Australia when speaking to University of Melbourne law students. He urged them to contribute to the imminent national consultation on introducing a charter of rights and responsibilities.


Speech by the Attorney-General, Robert McClelland

to students at Melbourne Law School, 21 August 2008

It’s a pleasure to join you to speak about what I think is one of the most fundamental issues and certainly one of my key priorities as Commonwealth Attorney-General, that is promoting human rights within a strong legal framework.


We pride ourselves on a system of government  based on the rule of law. But what does that mean? Does it mean simply that we are ruled by laws? In some societies, that is the case – the ruling elite use laws to protect their position of privilege.

Thankfully, we live in a democracy – surely that means more than just simply determining which political party wins the majority of votes. It means the election of a group of citizens who are entrusted to advance the interests of their fellow citizens.

Some citizens enjoy greater advantages than others. But all citizens have rights – inalienable human rights that should not be greater or less than any other citizen. And an important function of government is to uphold those fundamental human rights of all citizens. In Australia the rule of law and human rights are regarded as synonymous or at least mutually supportive. They are supported by:

  •  our democratic system of responsible government
  • the separation of powers between the Parliament, Executive Government and the Judiciary
  • a professional judiciary whose independence is constitutionally protected and who hold all accountable for upholding the law
  • an independent media
  • an accountable, apolitical public service, and
  • a comprehensive administrative law system.

And we have relatively sophisticated, albeit fragmented, anti-discrimination laws and also agencies, such as the Human Rights and Equal Opportunity Commission, who play an important part in advancing and protecting human rights.

But while we have an accountable political system and our legal framework is strong, there is always more that can be done to ensure that all citizens have equal rights. Their asset base may differ but Government has an obligation to ensure that all citizens are equal indignity and worth as human beings.

The Rudd Government has a strong human rights agenda and is committed to promoting respect for human rights and the rule of law as cornerstones of our system of government and our society. A key part of upholding the rule of law at home is having a clear policy position on international human rights instruments. These instruments reflect the values of humanity in the 21st century.
The United Nations is far from perfect but it is a vital forum to develop, inform and advance human rights.

And the Rudd Government is committed to re-engaging with the international community to advance human rights. We have nothing to hide and much to embrace. To this end, I recently announced that the Rudd Government will issue a standing invitation to Australia for United Nations human rights special procedures.
The United Nations Human Rights Council has a mandate to examine, monitor, advise and publicly report on human rights situations in specific countries, or on major human rights issues – anywhere in the world.

Standing invitation
By extending a standing invitation to visit, Australia joins 61 other countries, including the United Kingdom, New Zealand and Canada, who have adopted this positive approach towards the United Nations.

And I was pleased to see that our actions are seen as more than gestures. The announcement has been welcomed by members of the United Nations, including the United Nations Independent Expert on Minority Issues and Chairperson of the Special Procedures Working Group, and the Vice-Chair of the Human Rights Committee. We are not courting their favour but we recognise and reciprocate their respect.

In a similar vein, when we came to Government there were a number of United Nations international human rights instruments that were opposed, ignored, or sat on, by the former Government.
The Rudd Government has well and truly run back on the playing field. We have ratified the United Nations Convention on Persons with a Disability, and we are well advanced in the long overdue process of becoming a party to a number of Optional Protocols, including to the Convention Against Torture and the Convention for the Elimination of Discrimination against Women.

Possible torture offence
As we work to again take a leading role on the international human rights stage, we are also working to ensure domestically we have a human rights system that does not just work to redress discrimination – but that prevents abuses in the first place.

For example, in the area of torture, our domestic criminal laws already contain offences which, collectively, outlaw all acts of torture.

At the Commonwealth level – the Crimes (Torture) Act 1988 currently criminalises torture committed outside Australia, but only Australian citizens or other persons who are present in Australia may be charged with such offences. Furthermore, acts of torture committed anywhere in the world during the course of armed conflict are criminalised under the Criminal Code Act 1995.

However, there is no single, comprehensive offence that criminalises torture committed within and outside Australia. This is despite calls by the United Nations Committee Against Torture for all nations to enact a specific torture offence.
In response to this, I am consulting

with the States and Territories on the development of comprehensive Commonwealth legislation to prohibit torture.

Given the serious nature of torture, it is proposed that the offence have extra-territorial application, to make torture an offence with respect to acts both within and outside Australia. This would put torture on the same footing as genocide, crimes against humanity and war crimes under domestic law.

The Rudd Government is committed to clearly and explicitly implementing our international obligation to prohibit torture in domestic law.  It will also send a strong message, both within Australia and internationally, that this Government will take whatever steps are necessary to eliminate the use of torture, wherever it occurs and whomever commits it.

National consultation
Currently, human rights are protected in Australia in a range of ways including through anti-discrimination laws —covering age, sex, racial, and disability discrimination. These laws are complemented by common law and constitutional rights.

The Rudd Government believes that the protection of human rights and responsibilities is a question of national importance for all Australians. For this reason, we propose to undertake an Australia-wide inquiry to determine how best to recognise and protect human rights and responsibilities in Australia.
I’m guessing some of you will be keen to be involved in this process – especially those of you who, I understand, have been working on a project providing mock advice to the Victorian Attorney-General on the Victorian Charter of Rights. Clearly, you’ve already turned your minds to this form of human rights protection.

I expect that many others in the community may also raise this issue and express their views – both for and against – during the consultation. Indeed, I noted with interest comments by the Federal Opposition outlining their objection to a charter of rights.

The Government’s view is that how best to protect and recognise human rights and responsibilities is a question of such national importance that it’s appropriate that we first seek the views of the Australian people. Our consultation will have no outcome pre-supposed. I encourage you all to use this opportunity to contribute your views, thoughts and experiences to the range of ways in which human rights may be protected nationally and into the future.

The timing of the national consultation will be announced in due course. The inquiry will be widely advertised to encourage the best and broadest level of participation possible. And I look forward to your contributions.

Strong legal framework

My remarks so far only touch on the work we are doing in the area on enhancing human rights and the rule of law.

Our agenda is much broader and includes tackling areas such as homelessness, indigenous disadvantage and immigration. However, our human rights agenda would mean little if we don’t match it with continuing to work to enhance our legal framework.

Australia has a stable political system, a competitive economy, and a legal culture that is regarded as one of the best in the world. But we cannot afford to be complacent. Many reform challenges remain, and the Rudd Government is taking responsibility for tackling them.

As Attorney-General, one of my key objectives is to help underpin Australia’s prosperity by ensuring that our domestic legal system is robust, that we reduce unnecessary costs, and remove impediments for those who need access to justice. This includes improving access to legal aid and community legal centres to provide much needed legal assistance to disadvantaged people.

Such assistance is often needed at a point when people may be facing social exclusion as they deal with family breakdown, the loss of a home or job or are struggling with financial difficulties.
I am also considering various reforms to improve the conduct of litigation. On a number of recent occasions, I have made my view known that – whilst court resources are finite – justice should be available to everyone. Not merely for those who can afford protracted litigation.

Confronting the legal system should not be an existential threat – at least to your assets, including the family home. But the reality is that any substantial litigation is just that. We need to ensure that those with greater resources are unable to manipulate the system to overwhelm those who have less resources but a justified grievance.

Finally, we are taking significant steps to remove discrimination that exists for Australians in same-sex relationships. We are amending a wide range of Commonwealth laws and programs to ensure equality. All of this is part of our commitment to ensure a fair go for all Australians.

Some of you may have started your legal studies with the aim of using the law to make a difference. I started that way and I can assure you that you can. All of you have the potential to play a key part in improving Australia’s human rights record. Not in an esoteric and theoretical sense – but to achieve real and practical outcomes.

We can all contribute to making a better, fairer, more accessible, legal system. You have my recognition and encouragement to do just that.

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