The rule of law and the Australian Constitution

This thesis examines the relationship between the rule of law and the Australian Constitution. Its more particular aim is to determine whether legislation enacted by the Commonwealth Parliament could be invalidated by the Australian High Court on the basis that it is inconsistent with the rule of law. The starting point for this inquiry is an oft-cited dictum from Australian Communist Party v Commonwealth, decided by the High Court in 1951. In that landmark case, Dixon J said that the rule of law ‘forms an assumption’ of the Constitution. This has since become a common refrain in the case law of the High Court, but its meaning and significance remain unclear. It remains uncertain whether the rule of law has constitutional force in Australian law — not least because the rule of law is not expressly mentioned in the Constitution. In order to clarify the relationship between the Constitution and the rule of law, this thesis considers three things. The first is the complex and contested nature of the rule of law. The second is the concept of constitutional implications; that is, when it can legitimately be said that a principle or doctrine which is not expressed by the Constitution is nonetheless a part of it. The third is the work of TRS Allan, who insists that the rule of law is an inherent doctrine of constitutional law in all liberal democracies, including Australia. Allan is a leading proponent of the theory of common law constitutionalism, according to which the fundamental principles of a legal order are discovered by the common law courts — and not necessarily in the text of a written constitution. This thesis demonstrates that the rule of law is not an implication of the Constitution or, contra Allan, an inherent doctrine of Australian constitutional law. Thus the rule of law lacks constitutional force, except and insofar as it is implemented by the text or structure of the Constitution. The Constitution does partly implement the rule of law, but only in particular and limited ways. Commonwealth legislation can be invalidated by the High Court on the basis that it is inconsistent with the Constitution, which is itself an important implementation of the rule of law ideal. But the Constitution does not guarantee all the particular principles which, theoretical inquiry may reveal, are necessary to ensure the law’s rule. At first, this may appear to represent a failure of constitutional design. However, this thesis also demonstrates that that is not the case, due to the complex and contested nature of the rule of law.