The Rule of Law and the Australian Constitution

The rule of law is one of the most cherished political ideals in the modern world. Even though we disagree about what the rule of law means, we all seem to agree that it is a worthy goal, to which any good legal system should aspire. Yet, some argue that this is not enough; that the rule of law is too important to be left in the realm of politics, and must be protected by legal means.

References to the rule of law now appear, with apparently increasing frequency, in case law from across the common law world. In some countries, it has been claimed that the government can never validly act in a way that is contrary to the rule of law. The position in Australia remains unclear. There is no mention of the rule of law in our constitutional text – but in the Communist Party Case, Dixon J said that the rule of law ‘forms an assumption’ of the Australian Constitution. This statement has often been repeated, but never properly analysed.

1. Introduction 2. What is the Rule of Law? 3. Substantive Conceptions of the Rule of Law 4. The Origins of the Australian Constitution 5. The High Court and Constitutional Review: Justice Dixon and the Communist Party Case 6. Clarity, Prospectivity and Change: The Formal Requirements of Government Action 7. The Rule of Law and Judicial Review of Executive Action 8. The Rule of Law and Constitutional Rights 9. The Rule of Law, The Common Law and The Australian Constitution 10. A Constitutional Guarantee of the Rule of Law? 11. The Stream and the Source: The Australian Constitution and the Rule of Law

Dr Lisa Burton Crawford is a Lecturer in Law at Monash University