The Rule of Law and the Written Constitution

In Australian Communist Party v The Commonwealth, decided by the High Court of Australia in 1951, Justice Owen Dixon stated that the rule of law ‘forms an assumption’ of the Australian Constitution. This equivocal dictum is often cited, quoted and paraphrased in Australian case law and academic commentary, with apparently increasing frequency. However, it is rarely analysed or explained. The full implications of Justice Dixon’s statement remain consciously unexplored, and thus the relationship between the rule of law and the Australian Constitution.

This mirrors trends witnessed in other jurisdictions, including the United Kingdom, where the rule of law is increasingly referred to as an actionable legal doctrine, or at least a source of substantive principles of law. This development is tied to the ascendancy of common law constitutionalism, which posits the common law as a unique moral entity, antecedent and superior to ordinary legislation.

Though gaining increasing currency, these ideas are patently controversial. The rule of law is a notoriously contested and complex concept. For this reason alone, it would be difficult for the courts to give it immediate, normative operation. This would also challenge the orthodoxy of parliamentary sovereignty, if it entails a vision of the rule of law that is immune from legislative interference. The picture is further complicated in Australia by several factors — not least that Australia is governed by a written Constitution, and the rule of law is not mentioned in it.

This paper will introduce the debate surrounding the place of the rule of law in the Australian constitutional framework, and provide an Australian perspective on the broader issues of common law constitutionalism and the existence of fundamental, unwritten principles of constitutional law. It will suggest several bases on which it may be doubted that the rule of law could ever sensibly serve as such a principle, in Australian and perhaps elsewhere.

Lisa Burton (BA/LLB (Hons 1), UWA; BCL (Distinction), Oxon) is completing a PhD at Monash University under the primary supervision of Professor Jeffrey Goldsworthy. Her thesis considers the relationship between the rule of law and the Australian Constitution. Lisa is currently in Oxford conducting research towards her PhD with the assistance of an Endeavour Research Fellowship from the Australian Federal Government. Before commencing her PhD, Lisa worked as a researcher at the Gilbert + Tobin Centre of Public Law at the University of New South Wales and assisted the panel appointed by the New South Wales Government to consider the introduction of recall elections in that State. She has lectured in Administrative Law and Constitutional Law at several Australian universities, and completed the BCL at the University of Oxford in 2011.