* The Rule of Law and the Australian Constitution, has been cited with approval and discussed by Edelman J in Graham v Minister for Immigration and Border Protection, handed down by the High Court today (at [106] at [175])
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.
Taking Dixon J’s statement as its starting point, this book examines the extent to which the rule of law is protected and promoted by the Australian Constitution – indeed, how the complex and contested concept of the rule of law should be understood within the Australian constitutional order.
This wide-ranging and engaging book combines theoretical analysis of the concept of the rule of law and constitutionalism with doctrinal analysis of the case law of the Australian High Court. It examines the nature and limits of legislative, executive and judicial power, and so should appeal to constitutional and administrative lawyers, scholars and practitioners. The book adds an Australian voice to global debates and a novel perspective on that enduring question of how to create ‘a government of laws rather than of men’.
Foreword by Jeffrey Goldsworthy
Acknowledgments
Table of Cases
Table of Statutes
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
Bibliography
Index
[T]he “rule of law”, is pursued with vigour by Lisa Burton Crawford. This is no idle quest. Nor is it the first. But it must be one of the most searching. … depth of legal scholarship and the coherence of the overall analysis. …
In his Foreword, Jeffrey Goldsworthy describes the book as a tour de force – and that it is.
Graeme Johnson, Australian Law Journal, 2019, 93
This is an excellent book: a pleasure to read, crisply written, informed, informative, and with a clear and cumulative line of argument which, though I come from a very different starting point, spoke to me very clearly, congenially, and persuasively. … Lisa asks first ‘whether the rule of law is a judicially enforceable doctrine of Australian constitutional law’ and second, whether it should be. … More, since the question raises general issues of principle, I will broaden it: does the ideal of the rule of law require judicial enforceability of alleged legal means to that ideal? Does conformity to them need to be a necessary condition of legal validity? We come at this question from very different starting points – she from inside Australian public law, I from outside – but to my cumulative delight as I read into her book, we end up very close.
Professor Martin Krygier, Book Forum hosted by UNSW, 29 October 2018
The book provides a careful and thorough analysis of the ways in which the rule of law is implemented in the text and structure of the Constitution, and has been given effect by decisions of the High Court. It is a rich and indispensable resource for public lawyers. Of course, not everyone will agree with the thesis put forward. … Nonetheless, Dr Crawford’s achievement in this book is considerable, and it deserves a very wide readership.
James Stellios, Australian Journal of Administrative Law, September 2018
[The book] reminded me of two brief exchanges about the rule of law. One was in 2007 or 2008 in Fiji with some American diplomats discussing the military coup under which President Bainimarama displaced the elected Prime Minister and his government. At the time I was one of the Australian sessional members of the Supreme Court of Fiji. One of the diplomats, referring to Fiji’s new military leadership, said with some bemusement’you know we ran all these guys through rule of law programs’. The second exchange occurred when I was addressing law students at Seoul National University in October 2011 on the topic of the Rule of Law and the Constitution. When it came to question time, one of the international students, who came from Germany, asked ‘where is it written down in your Constitution, this rule of law?’
That question, I suppose, generalised to’where is it located?’, is one of the underlying themes of Lisa Burton Crawford’s important and thought provoking book. I say ‘thought provoking’ not in the usual euphemistic way in a vote of thanks for a boring speech that has said nothing new. I say ‘thought provoking’ because in various parts in the text I found myself stopping and saying ‘I’m not sure I agree with that’ or ‘I need to think about that’. The book requires of its reader reflection upon each topic and that is a mark of its merit. …
The book is a comprehensive and thoughtful piece of scholarship and yet eminently readable. I congratulate the author and the publishers on it.
The Hon Robert French AC, Federal Law Review, July 2018
Ever since Justice Dixon stated in Australian Communist Party v Commonwealth, “I think that it may fairly be said that the rule of law forms an assumption [of the Australian Constitution]”, the comment has puzzled commentators. What did he mean by “assumption” and “the rule of law”? The author of this book takes up the challenge of working out the relationship between the rule of law and the Australian Constitution.
The author examines the Constitution in the light of “thin” and “thick” conceptions of the rule of law. The former are formal and promote “clarity, prospectivity and predictability”. The latter promote “rights and liberties essential to the dignity of the individual within a liberal democracy” and “substantive justice”. The thick version is a slippery slope. I wondered how she would handle it. The answer is well – it is not an open-ended examination of the concepts; it focuses on the Australian Constitution.
After two chapters on the conceptions of the rule of law, the author examines the origins of the Australian Constitution, the Communist Party case, the formal requirements of government action, judicial review of administrative action, constitutional rights, the common law and the Constitution, and whether the Constitution offers a guarantee of the rule of law.
This is a measured and well-balanced appraisal of the rule of law in an Australian context. It is beautifully written with sparkling prose and a healthy dose of short sentences (without ever being trite) and the author takes the reader by the hand throughout.
Jeffrey Barnes, InPrint, Law Institute Journal Victoria, November 2017
The Australian Constitution can be described as a lawyers’ document, one light on the highly emotive guarantees of rights and liberties contained in others across the globe. Yet, the question of whether the rule of law, itself a charged and not to mention contested concept, can be said to be enshrined in the Constitution is one which attracts disagreement. Lisa Burton Crawford sets out in this monograph not just to provide an answer to whether the Australian Constitution contains substantive protections for the rule of law, ensuring that in this country it is the law that rules and not the rule of man or woman, but also to consider whether this would be desirable at all. …
This book is a valuable addition to constitutional scholarship in this country. It is thoroughly researched, highly readable and provides an excellent springboard for future scholarship and debate on this important topic. For anyone interested in governance and the rule of law in Australia, and even further afield, this work is a must read.
Michael Potts, Qld Lawyer, 2017
In Australian Communist Party v Commonwealth (1951) 83 CLR 1 (the Communist Party Case) Dixon J stated that the rule of law ‘forms the assumption’ of the Australian Constitution. So begins chapter 1 of this book. But as Crawford points out almost immediately it is not clear what Dixon J meant by ‘the rule of law’. There is no mention of the rule of law in our constitutional text. On any view it is a cluster of principles rather than a single one.
Crawford’s central question is how can a cluster of principles that are inherently that are inherently unclear and contestable, and which also sometimes conflict with one another and with other important principles, form a justiciable part of the Constitution? She explains the origins, nature and foundation of the Australian federal Constitution. She examines the way it imposes limits on executive and legislative powers and the extent to which judicial review of executive action is guaranteed and constrained by the Constitution. She considers the “deliberately” limited protection for individual rights and liberties provided by the Constitution. She challenges the relationship between the Constitution and the common law, and argues that the rule of law is unsuited to judicial enforcement in the Australian constitutional framework.
The book is cleanly structured. Crawford tells you the purpose of each chapter and what she intends to cover. Although this book will no doubt be of particular interest to constitutional and administrative scholars and lawyers it is a relatively accessible and engaging read for practitioners in other areas.
Queensland Law Reporter – 9 June 2017 – [2017] 22 QLR
