Kristen Rundle

It is a real privilege to read and be given the opportunity to reply to this AusPubLaw book symposium on my Cambridge ‘Element’, Revisiting the Rule of Law. That each of Gabrielle Appleby, Megan Davis, Dylan Lino, Alex Reilly, Paul Burgess and Justice Angus Stewart took the time to take my efforts at explication, analysis and intellectual leadership seriously, and then reflect on their own academic and professional endeavours in association with those efforts, is the ultimate compliment to an author whose first priority in writing the work was that it be useful to others.

The little book with which we are here concerned came into being because the editors for the ‘Philosophy of Law’ series within the new Cambridge University Press ‘Elements’ project asked me to write the volume on ‘the rule of law’. My instructions were to provide a succinct and accessible overview of key ideas and debates within scholarship on the rule of law, as well as to suggest ways in which the boundaries of this received territory might be pushed in the direction of new frontiers of inquiry.

Paul Burgess

I was not convinced that a small (66 page) book that – in addition to being written for a principal audience of students and teachers of legal and political thought – was written for ‘anyone who wants to understand more about how we think, speak, and write about the rule of law’ (at 3) could provide a creative approach or motivate substantive further academic ideas about the concept. I was wrong.

Across only three logically (yet innovatively structured) short parts, Kristen Rundle stimulates and provokes engagement with the concept of the Rule of Law in Revisiting the Rule of Law. The three parts – that first examine the methodology associated with theorising the Rule of Law before considering the entangled way in which the concept is frequently presented – culminate in a part that explores ‘what may be missing or under-examined within theoretical engagement’ (at 2) and identifies a need to revisit the Rule of Law.

Angus Stewart

Kristen Rundle’s remarkably readable and insightful book, Revisiting the Rule of Law, reminds us that the idea, or ideal, of the rule of law means different things to different people. The ‘rule of law’ is a highly contested concept. It is perhaps particularly vulnerable to elasticity because it inevitably has different meanings in different constitutional contexts, and that is not always acknowledged. For example, AV Dicey generally remains the go-to theorist for judges when writing about the rule of law. Yet Dicey described the rule of law in the context of the English unwritten constitution. That is a quite different context from the arrangements of other constitutional systems.

Gabrielle Appleby, Megan Davis, Dylan Lino and Alexander Reilly

Kristen Rundle’s multiple achievements in Revisiting the Rule of Law are belied by its slim volume (although its lucid concision is one of those achievements). A book on the rule of law by one of the world’s leading analytical legal philosophers, it provides a cut-through typography of different ‘accounts’ of the ambiguous and contested ‘rule of law’; explores the different articulations of its driving purpose and its connections with other foundational public law principles such as constitutionalism, liberty, legitimacy, and accountability; and considers the arguments and contestations that exist amongst those scholarly and practice-based disciples – and critics – of the rule of law.

In our view, the most important achievements of Rundle’s book lie in her contextualising and peopling of the rule of law. This is done through a number of what she terms ‘provocations’, and by situating these provocations within the rule of law as a ‘working idea’, given meaning through discourse and practice (at 3).

Guy Baldwin

The growth of structured proportionality in recent years has been a much remarked upon feature of global constitutionalism. Even supporters of proportionality describe how it ‘exhibits a viral quality, spreading relatively quickly from one jurisdiction to another’ – not, exactly, an image of careful adaptation. Originating in Germany, proportionality spread to Australian constitutional law in respect of the implied freedom of political communication in the case of McCloy in 2015, and in respect of s 92 in the case of Palmer in 2021 (after previously being considered in earlier cases). However, Gageler J and Gordon J have maintained principled opposition to the use of structured proportionality in these and other cases. Gageler J became Chief Justice of Australia on 6 November 2023. Does that change things?

In this blog, I consider the possible significance of the new Chief Justice to the proportionality debate, before explaining why I consider that proportionality should be abandoned in Australian constitutional law, and suggesting an alternative approach.

Dane Luo

NSW Premier Chris Minns went to the 2023 state election promising to ‘change the constitution of NSW to protect Sydney Water and Hunter Water from privatisation!’ A change to the constitution, according to Minns, would put ‘a lock to make sure future governments don’t sell [Sydney Water and Hunter Water] off’. After the election, Minns’ government introduced legislation to amend the state’s constitution, explaining that it ‘effectively put a sphere of protection around both entities, preventing privatisation, preventing unreasonable price spikes and ensuring these essential assets will always belong to the people of NSW.’ But does the Constitution Amendment (Sydney Water and Hunter Water) Act 2023 (NSW) (the Amendment Act) actually ‘lock’ or ‘protect’ the State’s water infrastructure as Minns claims?

Matthew Groves

A sexual assault is alleged to have occurred several years ago in the federal Parliament building. Mr Bruce Lehrmann was alleged to have sexually assaulted Ms Brittany Higgins. Mr Lehrmann sought a stay of the charges, arguing that he could not possibly get a fair trial. That claim failed, so a trial followed. The jury was discharged after five days of deliberation. A retrial was planned but the prosecution was discontinued because of concerns about Ms Higgins’ mental health and the impact a second trial might have upon her.

Neil Laurie

It is not uncommon for the activities of ad hoc and permanent commissions of inquiry to be the subject of judicial review. But the series of decisions that culminated in the very recent High Court decision of Crime and Corruption Commission v Carne [2023] HCA 28 requires special attention as they deal with the intersection of judicial review of a permanent commission of inquiry’s report provided to its parliamentary oversight committee, thereby potentially raising issues of parliamentary privilege.

Joe McIntyre

What is a Court? What does a Court do? What are we left with when we strip away the theatre and ceremony, the grand buildings and reams of paper, the gladiatorial intellectual sparring, and careful deliberations? We are so focused on the processes and outputs of courts that we rarely stop to reflect on the fundamental purposes they serve, and the limits that these purposes impose on them.

The peccadillos of the Australian Constitution (the autochthonous expedient, structural implications, the US/UK hybrid etc) means that we have a particularly active jurisprudence on the nature, limits and implication of judicial power. In its latest contribution to this oeuvre, AZC20 v MICMSMA, the High Court grappled once more with the concept of ‘matter’ in the context of an appeal rendered moot by intervening events. In an 4-1 decision, the Court held that the Full Court of the Federal Court lacked jurisdiction to hear an appeal where events meant that there was no longer any active dispute.

Bharan Narula

Is a trial on indictment for an offence contrary to a law of a self-governing territory a ‘law of the Commonwealth’ for the purpose of s 80 of the Constitution? To the extent that R v Bernasconi (1915) (Bernasconi) has been understood to decide that the power in s 122 is not subject to the requirements of s 80, will a case likely need to involve a trial on indictment of an offence enacted by the Commonwealth Parliament under s 122 for a majority to decide whether Bernasconi should be distinguished or re-opened? These questions were considered in Vunilagi v The Queen [2023] HCA 24.

Janina Boughey

Among English-speaking common law jurisdictions Australia has been the most resistent to doctrines of deference in the administrative law context. It is often said that Australia’s High Court has rejected deference. In fact, a majority of the High Court has rejected Chevron deference, but only in obiter. Nevertheless, it is true that Australia has no ‘doctrine’ of deference, that Chevron deference specifically is generally thought to be inconsistent with the Australian conception of the separation of powers, and that the very mention of the word ‘deference’ seems to provoke the ire of some judges.

Brenda Tronson

In Australia, we can generally display our political opinions in public without fear of penalty, government persecution or violence. The High Court confirmed in the mid 1990s that our constitution contains an implied freedom of political communication, which is central to our representative democracy. The freedom is not absolute, and some regulation of protests is permitted.

But in 2022 and 2023, two Australian states (NSW and South Australia) passed laws which banned certain forms of protest. Do those laws go too far?

Jane Hall

Henry Palmerlee

This post first briefly summarises the case for a federal judicial commission, a proposal which has been mooted for decades but has only recently gathered broad support from the legal sector. It then argues that, to perform its role of maintaining public confidence in the judiciary, the commission should include lay-people as members. (In this post, the term ‘lay-person’ refers to someone disconnected from the three branches of government – for example, a legal practitioner, an eminent community figure, or simply a member of the public. The operative aspect of lay-personhood is that a person does not hold a role within the legislature, executive or judiciary, and has not held one in the past.) Finally, constitutional concerns regarding the inclusion of non-judicial members are addressed.

The post concludes that, while the inclusion of lay-members in a commission may raise unique constitutional concerns, these concerns are unlikely to pose an insurmountable obstacle so long as suitable qualification requirements are implemented for lay-members.

Narelle Bedford

Darren O’Donovan

The Final Report of the Robodebt Royal Commission was released on 7 July 2023, in a landmark moment for Australian public administration. The report makes searing findings against senior public servants and politicians. In this post I discuss how, in her report, Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.

Jerry To

The recent judgment of the Federal Court of Australia in Smart Education Program Pty Ltd (in liq) v CLGC Australia Pty Ltd [2023] FCA 826 (Smart Education) has raised much consternation. At first glance, the case appears to be a run-of-the-mill contractual dispute. However, the source of controversy arises from an unexpected source, which concerned not the parties but the conduct of the judges themselves.

Smart Education prompts interesting questions about whether there is any scope in Australian public law to provide relief to the parties in circumstances of undue judicial delay. This article will focus on one such possibility: whether the High Court of Australia could have issued a writ of mandamus compelling the Federal Court to hand down its judgment in a timely manner. This, in turn, raises complex questions going to the very heart of the operation of the federal judiciary and the High Court’s ability to regulate their conduct.

Harry Sanderson

Many foundational principles of Australian public law arise from constitutional implications, to the extent that that within the Constitution ‘much of the greatest importance is implied’ (McGraw-Hinds (Aust) Pty Ltd v Smith at 668 (Murphy J)). In Zurich Insurance Company Ltd & Anor v Koper & Anor [2023] HCA 25 (Zurich), the High Court unanimously rejected an argument identifying a novel constitutional implication. The Court was divided, however, on the proper approach to drawing implications within the Constitution. That division maps onto longstanding debates regarding the proper approach to constitutional interpretation.

This post considers the different approach taken by each judgment on the point of implications in light of the dominant methodology of textualism, and questions the distinction between text and structure which informs their reasoning.

Jack Zhou

States and Territories allow the possibility, in certain circumstances, for a review of a conviction or sentence even after an offender has exhausted all avenues of appeal. But do these circumstances apply in federal jurisdiction over Commonwealth offences? In the absence of Commonwealth law to that effect, s 68 of the Judiciary Act 1903 (Cth), which places the administration of federal criminal law substantially in the hands of the States and Territories, could possibly achieve that.

This post will consider the High Court’s recent decision in Attorney-General (Cth) v Huynh [2023] HCA 13 (Huynh) and outline the reasoning of the majority and minority judgments. It then provides some observations about the importance of post-conviction inquiries and the potential gap left by the High Court’s decision.

Lucas Lixinski