BY LISA BURTON CRAWFORD

In Australian Communist Party v The Commonwealth, Justice Dixon famously asserted that the rule of law ‘forms an assumption’ of the Australian Constitution. This has been cited and repeated with such frequency that it might appear to be a well-established principle of law. A quick search of Australian legal databases will reveal hundreds of cases that contain the phrase “the rule of law”. This is not a uniquely Australian trend. While it has long been an important political ideal, references to the rule of law now appear in the judgments of the highest courts across the common law world, with apparently increasing frequency. As Mark Walters put it, ‘the expression “the rule of law” [has] moved from lecture halls and books of jurisprudence to courtrooms and case reporters’.

The purpose of this post is introduce some of the complexities that Dixon J’s statement belies — which I explore at length in my book, The Rule of Law and the Australian Constitution. The aim of that broader project is to elucidate the relationship between the Constitution and the rule of law. I examine whether the rule of law is a judicially enforceable doctrine of Australian constitutional law, or a political ideal only partly implemented by constitutional rules. This requires an assessment of whether, and to what extent, the Constitution reflects various competing conceptions of the rule of law – and indeed, how that protean concept is understood within the Australian constitutional order. It also requires consideration of the theory known as ‘common law constitutionalism’, which Thomas Poole described as a ‘potent phenomenon within contemporary public law discourse’.

The Rule of Law and Common Law Constitutionalism

It is one thing for a court to refer to the rule of law, to explain the purpose or value of certain legal principles and practices. But some scholars present a far more radical argument: that the rule of law is a necessary standard of legal validity. TRS Allan stands at the vanguard of this movement. He argues that an expansive conception of the rule of law, articulated by the common law courts, constrains government power in any genuine liberal democratic order – whether or not it is enshrined in a written constitution. As the rule of law does not depend upon any particular constitutional document, it transcends jurisdictional boundaries. It forms the central pillar of a common law constitution.

Some of these ideas have found favour with members of the judiciary in other countries. For example, in R (Jackson) v Attorney-General, Lord Hope of the UK House of Lords stated that ‘the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’. The Supreme Court of India has declared that the rule of law forms part of the basic structure of the Constitution of India, and hence that Parliament can never amend that Constitution so as to abrogate or destroy it – even by the procedure for amendment stipulated in that Constitution. And the Canadian Supreme Court has identified the rule of law as one of several ‘vital unstated assumptions upon which the text [of the Canadian Constitution] is based’. In 2002, Poole observed that ‘[t]heories of the common law constitution, as well as doctrinal work grounded in the assumptions of that theory, are prevalent in the literature to such a degree that a new orthodoxy seems on the verge of being formed’.

Yet, the rise of the rule of law has not been uncritically accepted. The idea that this complex and contested concept forms an inherent constraint on government power has been challenged – especially within the United Kingdom, where it seems antithetical to the doctrine of parliamentary sovereignty. Though dicta such as those from R (Jackson) v Attorney- General demand attention, there are many more cases which affirm the traditional view: that the Parliament in Westminster is sovereign, and hence can make and unmake any law that it thinks fit (Miller v Secretary of State for the European Union being a recent case in point). Critics have also questioned the logical and philosophical premises of theories such as Allan’s, and the merits of the constitutional model he proposes, in which the courts and not the Parliament are the fulcrum of power.

Allan insists that his theory applies to Australia as well as the United Kingdom: that the Australian High Court has inherent authority to invalidate government action that is contrary to the rule of law, in the expansive sense that he defines it, quite regardless of what the Australian Constitution has to say. Others have noted that this seem incongruent with the realities of Australian public law — though that incongruence has not been explored or explained at length. And even if we reject Allan’s theory, we surely cannot ignore the rule of law altogether.

The first reason for this is that Allan’s is but one conception of the rule of law. As noted above, it is an expansive one. For example, it requires robust protection of individual rights. Indeed, it requires that all government action be justifiable on some reasonable conception of the common good. But this understanding of the rule of law does not enjoy universal support; others advocate a more “formal” conception. The second is that, while the phrase does not appear in the constitutional text, there is clearly some connection between the Australian Constitution and the rule of law. The rule of law denotes the existence of a legal system, and the Constitution brought such a system into being. It is a legal instrument that established the federal government and its respective branches; it confers and limits the government’s powers.

Specific parts of the Constitution seem to correspond to the individuated desiderata of the rule of law – such as Chapter III, which establishes the federal judicature, and empowers it to review certain kinds of government action. The concept of the rule of law may help us understand the nature of this constitutional framework, and discrete principles and practices; it may also elucidate areas in need of reform. After all, if the rule of law is so important, and so deserving of constitutional protection, we should want to know whether and to what extent it is protected by the Australian Constitution in its present form.

What, then, is the relationship between the Australian Constitution and the rule of law? To answer this question, we must first form a view on what the rule of law means.

What is the rule of law?

Dixon J did not define ‘the rule of law’. His Honour alluded to the ‘traditional conception’ of it, but that tells us little more. The basic ideal of a government of laws rather than of men has been dissected and qualified, embellished and expanded. Depending on which theory one subscribes to, the rule of law could be taken to require any or all of the following: that government action be clear and calculable; that government conform to human rights norms; or that all government power be exercised in a manner that can be justified on some reasonable conception of the common good.

However it is defined, the rule of law is internally complex and pertains to difficult questions of public policy and legislative craft. The principles and practices that are required to attain the rule of law (assuming that could be done) will vary between different jurisdictions. They will depend upon myriad social, political and historical factors. They may well change with time. They will require constant balancing, against the other requirements of the rule of law, and against other valuable goals. And of course, while legal scholars may have a particular interest in defining the state that the law must be in, in order to achieve law’s rule, the rule of law cannot be achieved by law alone.

This does not mean that we should despair of the rule of law. Although it is complex and contested, the ideal of a government of laws rather than of men is a valuable one. The fact that it is difficult to achieve the rule of law does not mean that we ought not try; the fact that we may never reach the goal does not mean it is an unworthy one. But it does suggest that the rule of law is not readily translatable into concrete legal rules — and that the rule of law need not be pursued in the same way in every legal order.

The Relationship Between the Constitution and the Rule of Law

What, then, of Dixon J’s suggestion that the rule of law forms an assumption of the Constitution? There is an element of truth in this statement. To describe the rule of law as an ‘assumption of’ the Constitution is to capture the basic and defining features of that instrument. The Constitution was designed to create a new federal government, and demarcate its powers. It was always understood that those powers would be limited.

The British tradition of parliamentary sovereignty was significantly modified; while the federal Parliament is the superior law-making body in our system of government, its powers are expressly subject to the Constitution. The executive and judicial powers are not expressly limited in this way, but when viewed in context it is clear that they are similarly confined. Thus no branch of the federal government has power to alter the Constitution; all are bound by it. It is also clear that the High Court has power to enforce the limits of legislative and executive power, though only some of that power is expressed by the Constitution.

Many of these fundamental propositions went without saying. They are, to use Dixon J’s words, assumed.

This is all very important. However, it does not tell us much about the details: the content of the law to which the federal government is subject.

I have undertaken a detailed analysis of the various limitations on legislative, executive and judicial power imposed by the Constitution, and the extent to which they which they reflect the contested requirements of the rule of law. This includes discussion of, for example, the nature and scope of the courts’ authority to review executive action, and the formal and substantive requirements of Commonwealth laws. This analysis revealed that, important though they are, the limitations on government power imposed by the Australian Constitution fall short of all that the rule of law might be said to require. These limitations do not marry up with any particular conception of the rule of law, be it ‘thick’, ‘thin’, or somewhere in between.

Of course, we may expect that executive actors will use their powers wisely and justly; that Parliament will not enact laws that were opaque or unreasonable, or change the law so often that it became unpredictable and unstable – in other words, that government can be trusted to comply with many of the disparate requirements that might now be regarded as essential elements of the rule of law. Many of the expectations described above are legitimately reflected in principles of statutory interpretation, but it is open to Parliament to disappoint them, provided that it does so clearly and by an otherwise valid law. Hence the place of the requirements of the rule of law within the Australian constitutional system is not merely a matter of presence or absence, but of allocation. Almost all of the various requirements of the rule of law discussed in the book have some presence in Australian law, but few are justiciable standards of constitutional validity.

Does TRS Allan present a plausible theory of Australian constitutionalism?

This returns me to the challenge put by TRS Allan. In outline, his theory entails that the constitutional principles of a legal order are discovered and developed by the common law courts. They cannot necessarily be found in a written constitution. Rather, they reflect the fundamental precepts of liberal democracy, which Allan groups together under the banner of the rule of law. Allan would argue that my conclusions are mistaken: that it was simply ‘not open’ to the framers of the Australian Constitution ‘to choose only partial implementation of the rule of law, or to leave its enforcement to other organs of government [than the courts]’.[1] The Australian government is inexorably bound – legally and morally – by the requirements of the rule of law, which Allan defines expansively.

This is certainly an alluring vision. However, it is not a plausible interpretation of Australian constitutional law. I outline two reasons for that conclusion here.

First, it is inconsistent with established doctrine. For example, Allan argues that the Australian Government has no power to unjustifiably interfere with individual rights. But there is little support for this claim in Australian legal history, or the Constitution. We can (lamentably) point to any number of cases in which the High Court has found to the contrary. And while some of these decisions might be dismissed as errors, as Allan argues, but there are simply too many of them for his theory to stand.

Secondly, the methodology of constitutional interpretation that Allan advocates is unconvincing. There is ongoing debate about how the Constitution should be interpreted. However, that debate generally proceeds from the premise that it is the Constitution that must be interpreted. On Allan’s account, the Australian government is bound by principles that have no anchor in the Constitution whatsoever. This is not a particularly dynamic or liberal method of constitutional interpretation: it leaves the Constitution behind. This is antithetical to many well-established principles of Australian constitutional law; indeed the whole nature of the Australian constitutional order.

On Allan’s account, this means that Australia is not founded on the rule of law — or perhaps, is not even a genuine liberal democracy, in the way that Allan defines those terms. Maybe that is the case. The more logical conclusion appears to me to be that Australia is a different kind of constitutional order from that which Allan describes.

The nature of the Australian constitutional order is best captured, not by Dixon J’s well-worn statement, but by another passage in the Communist Party Case: Fullagar J’s statement that, within our legal system, ‘a stream cannot rise higher than its source’. The source in this metaphor is, of course, the Constitution. Each branch of government is bound by this law. But as a stream flows from its source, legal validity flows from compliance with the Constitution and the laws validly made thereunder, and not the more fundamental principles or values that that Constitution might reflect. The constitutional distribution of power guards — to some extent — against its abuse. The legality of government action is supervised by a robustly independent judiciary. These principles and practices are understood as elements of the rule of law.

Of course, the Australian constitutional model is not the only means of pursuing the rule of law, or the best one. We might question whether constitutional reform is needed, in order to better protect the rule of law. But the only legally valid means of changing the Constitution is a referendum, pursuant to s 128.

A Constitutional Guarantee of the Rule of Law?

The s 128 device is seldom used. The reasons why that is the case are undoubtedly some of the most important in Australian public law, and I do not profess to identify or explain them all. However, we cannot sensibly decide whether the Constitution requires amendment, or generate the impetus for change that a constitutional amendment would require, without understanding what the Constitution does, and what it does not do – and the Constitution does not ‘guarantee’ the rule of law.

Could it do so?

The idea of a constitutional guarantee of the rule of law is a powerful one. It seems to be increasingly fashionable. But it is also an extraordinarily complex and contestable idea. We must be alert to these complexities. For example, we may do well to identify the particular principles or practices that we wish to protect (be it clarity, stability, or respect for human rights norms) rather than the nebulous concept of the rule of law.

We must also be aware of the limitations of our endeavor. Though the rule of law is a subject of increasing fascination for lawyers, the law can only truly rule when people (both government actors and “ordinary” people) believe that it ought to. The way in which law is made, executed and enforced might encourage or discourage that belief, but so might any other number of factors that are beyond the law’s control. In the end, no law can guarantee its own rule – not even a constitution.

Dr Lisa Burton Crawford is a Lecturer at Monash University. Her book, The Rule of Law and the Australian Constitution (Federation Press, 2017) is out now.

[1] Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2003), 264.