Does the rule of law support human rights?
The rule of law, narrowly defined, is interested in maintaining equality before the law. Equality before the law requires above all that a person cannot be punished unless it is done by the law. Another way of understanding this is to say that a legal system under the rule of law has processes which give people, regardless of their status, equal access to the rights they are entitled to under the law, for example:
- Equality before the law in the criminal trial process means that all are entitled, regardless of their status in society or the crime they are accused with, to the presumption of evidence and the opportunity to put their case before an independent and impartial court.
- Equality before the law is that an individual, regardless of their status in society, can challenge a law which is unconstitutional or otherwise invalid under Australian law to the highest court in the land.
- Equality before the law includes being able to challenge the decision of a government agency on equal footing. For equality before the law to exist here the government must follow certain rules when dealing with an individual, because the resources of the government far outstrip those of most, if not all, individuals.
These examples of equality before the law do not immediately indicate specific human rights, but are clearly situations which call for many different rights to be protected.
It is well accepted that the rule of law and the maintenance of human rights are connected. The Universal Declaration of Human Rights states in its preamble that human rights are to be protected by the rule of law, except in circumstances where rebellion against tyranny and oppression is the only recourse. Ideally, people should want to follow the law, and trust that legal processes will provide just outcomes.
Human Rights in Australia
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Preamble to the Universal Declaration of Human Rights (1948)
The separation of powers is an important feature of the protection of human rights since it allows a formal process for the actions of the Executive and the Legislature to be challenged in the courts. That these challenges occur is an essential aspect of the rule of law.
Racial Discrimination and Alcohol Restrictions on Palm Island
The right to challenge a law which is racially discriminatory is permitted by the Racial Discrimination Act (Cth). In the case Maloney v the Queen  HCA 28, Mrs Monica Maloney challenged the validity of alcohol restrictions present on Palm Island under the Liquor Act (Qld). This case raises an interesting discussion about the balance between the protection of the right not be racially discriminated against and the right to live in a community which is safe and secure.
The Maloney case is a window to the complex interaction of the needs of the community, protection of human rights, and the desire for freedom from government control. The formal legal process for making a decision based on the law in this instance is a rich example for discussion of the rule of law operating in practice in Australia.
Gender Equality and the Rule of Law
Gender equality is the idea that a person regardless of their gender has access to the same rights and freedoms as everyone else. A significant discussion about gender equality relates to the debate over equal opportunity in the workplace for women. The narrow version of the rule of law has no preference for ensuring gender equality, however, in developing countries the issue of women participating in the development of legal and civic institutions is an important one in developing the rule of law and democratic processes.
In Australia, sex discrimination is an established area of law. RoLIA’s resource examines the a case of sex discrimination, and outlines the workings of the Gender Equality Regulator that was established in
Challenging the Decisions of the Executive
The right to challenge the actions of the Executive has been a central aspect of many cases to do with the processing of asylum seekers’ applications for refugee status. Migration law and policy is a complex area and one which is hotly debated in the community and Parliament. Policy relating to the processing of asylum seekers is not directly a concern of the rule of law concept, although it is widely regarded as raising many human rights concerns.
The operation of legal processes to deal with asylum seekers when they are challenged before the courts is a clear example of the operation of the rule of law. The Federal Court of Australia and the High Court have often made decisions which have run contrary to public opinion and government policy. These decisions are based on the courts’ interpretation of the law and the ensuring that the actions of the Executive are lawful. The judiciary acting as a check on the power of the Executive is an essential aspect of the separation of powers, and is one which affects the human rights of those who are subject to those actions.