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Part 4 · The rule of law

Power must run through law. In Australia that promise is an assumption behind the Constitution rather than a sword that strikes down statutes, and the essay that earns the marks is the one that knows exactly where the assumption ends and the doctrine begins.

Ideas and cases at a glance

Authority	In a line
Dicey	Three limbs: no punishment without breach of law, officials answer to the ordinary courts, the constitution grows out of ordinary law
Raz	The formal conception: law must be capable of guiding conduct, and even an unjust regime can comply
Rundle	The relational account: ask who the rule of law is for, law addresses its subjects as agents
Australian Communist Party v Commonwealth (1951)	The Constitution is framed on the assumption of the rule of law, and Parliament cannot recite itself into power
Plaintiff S157 v Commonwealth (2003)	Section 75(v) is an entrenched minimum provision of judicial review that a privative clause cannot oust
Coco v The Queen (1994)	The principle of legality: only clear words or necessary implication abrogate fundamental rights

The promise and the contest

The rule of law is a simple promise with a complicated life. The promise is that no one is above the law, the government included, and that public power is exercised through law rather than personal will. The complication is that lawyers do not agree on how much the promise demands, and the examiner knows it. This module is the subject's flagship essay topic: the marks sit in the contest between conceptions, not in reciting the promise.

RULE. arrowIn Australia the rule of law is an assumption on which the Constitution is framed, not a freestanding ground for invalidating legislation (Communist Party Case). Its practical work is done through specific doctrines: entrenched judicial review under s 75(v) and the principle of legality.

Trap. The rule of law is not rule by law. A state that governs through formally valid but arbitrary statutes satisfies rule by law. The rule of law asks for more, and how much more is precisely the contest between the conceptions below.

The conceptions

Dicey's three limbs

Dicey gave the classical account. First, no one may be punished except for a distinct breach of law established in the ordinary courts: the supremacy of regular law over arbitrary power. Second, equality before the law: officials from ministers to constables answer to the same law in the same courts as everyone else. Third, in a system like England's the constitution is the result of the ordinary law of the land, built up from judicial decisions on the rights of individuals rather than handed down in a declaration. Dicey is the reference point every later account pushes against, so state him accurately before you criticise him.

The formal conception

Raz sharpened the formal account. Law's job is to guide conduct, so the rule of law demands the features that make guidance possible: laws that are prospective, open, clear and relatively stable, an independent judiciary, access to the courts, and limits on discretion that would make the law's guidance illusory. The bite of the account is its modesty. The rule of law is one virtue of a legal system, not the whole of political morality, and on Raz's view a deeply unjust regime could still comply. That modesty is a strength in argument: it keeps the ideal precise and testable.

Thick conceptions and the relational turn

Substantive or thick conceptions add content: basic rights, equality, sometimes democracy itself. Their appeal is that a rule of law worth wanting should not be satisfiable by a well-drafted tyranny. Their cost is precision, because once the ideal absorbs every good thing it stops doing independent work. Rundle's relational account cuts differently: instead of listing features, it asks who the rule of law is for, and answers that governing through law is distinctive because it addresses the governed as agents capable of following rules, which conditions how power can treat them.

RULE. scalesChoosing a conception is argument, not preference. Weigh what the formal account buys (precision, testability) against what it misses (a compliant tyranny), name your choice, and defend it against the strongest version of the other side.

The Australian doctrine

An assumption, with an edge

The rule of law is not written into a clause of the Constitution. In the Communist Party Case the High Court struck down the Communist Party Dissolution Act, which had recited the constitutional facts said to support it. Dixon J described the Constitution as framed in accordance with the traditional conception of the rule of law, an assumption on which the instrument rests. Fullagar J supplied the enduring image: a stream cannot rise higher than its source. Parliament cannot conclusively recite the facts on which its own power depends, because that would let the stream rise above the source.

RULE. arrowParliament cannot recite itself into power. The validity of a law depends on constitutional facts the courts decide, not on Parliament's own assertion of them (Communist Party Case).

The entrenched minimum

The assumption has one hard doctrinal edge. In Plaintiff S157 the Court read a sweeping privative clause so that it did not protect decisions affected by jurisdictional error, and described s 75(v) as an entrenched minimum provision of judicial review. Parliament cannot deprive the High Court of jurisdiction to restrain officers of the Commonwealth who exceed their authority. Be precise about what is entrenched: review for jurisdictional error, not merits review and not a general guarantee of good government.

RULE. arrowSection 75(v) entrenches a minimum of judicial review: a privative clause cannot oust the High Court's jurisdiction over jurisdictional error by Commonwealth officers (Plaintiff S157).

The principle of legality

The rule of law's everyday vehicle is interpretive. Courts presume that Parliament does not intend to abrogate fundamental rights, freedoms or immunities, so general words are read down and the presumption yields only to clear words or necessary implication (Coco v The Queen). The justification is not a guess about what Parliament meant. It forces the political cost of rights abrogation into the open: if Parliament wants the power, it must say so and answer for it.

RULE. twistGeneral words do not abrogate fundamental rights. Unless the statute shows clear words or necessary implication, the right survives (Coco). The twist is the whole rule: always ask whether the words are clear enough to spring it.

Trap. Legality is not the Charter. The common law principle of legality and Charter s 32(1) both push interpretation towards rights, but they are different tools with different sources and limits. Section 32(1) is engaged by the Charter's catalogue of rights and, as read in Momcilovic, works like an ordinary interpretive principle rather than a power to rewrite. Run the two separately: see Protecting rights in Australia.

What the rule of law cannot do

Under parliamentary supremacy a clear statute prevails. The principle of legality is exhausted by clear words, no Australian court invalidates legislation for breaching the rule of law as such, and outside s 75(v) the ideal has no entrenched machinery. That is the strongest counter-argument to any claim that Australia guarantees the rule of law, and a strong essay states it at full strength before answering it. The best answer is usually structural: the assumption does real work at the margins, in interpretation, in the control of executive power, and in what Parliament must openly say to achieve, even though it cannot strike the clear statute down.

RULE. arrowThe courts' protection of the rule of law is interpretive and jurisdictional, not substantive. Clear words defeat legality; only jurisdictional error engages the entrenched minimum.

The essay that earns the marks

Attack plan. Five steps, in this order. 1. Name and define your conception, with its author. 2. Locate the rule of law in the Australian system: the Communist Party assumption and its two doctrinal edges, s 75(v) and legality. 3. Apply it to the words of the prompt, not to the topic in general. 4. Meet the strongest counter-argument at full strength. 5. Conclude only as far as the authority allows.

RULE. staircaseThe essay climbs in order: conception before doctrine, doctrine before application, application before evaluation. An essay that starts halfway up, applying an undefined ideal, has already lost the structure marks.

Trap. The magic wand. Asserting that a law breaches the rule of law, with no conception named and no authority engaged, is assertion rather than argument. The phrase has no legal force on its own, and examiners are primed to punish it.

Worked example

"In Australia the rule of law is an assumption rather than a guarantee." Discuss.

A Pass answer says. The rule of law means no one is above the law. In the Communist Party Case the High Court said the Constitution assumes the rule of law, and in Plaintiff S157 it protected judicial review. So the rule of law is partly an assumption and partly guaranteed. This is accurate, but it never names a conception, so nothing in it can be measured, and the conclusion restates the question.

An H1 answer says. On Raz's formal conception the claim is largely true: the features that make law capable of guiding conduct are secured in Australia by ordinary law and constitutional structure rather than by any entrenched guarantee, with two exceptions. The Communist Party Case makes the assumption operative where Parliament recites its own authority, and s 75(v) entrenches a minimum of judicial review (S157). On a thicker conception the claim is truer still, because no substantive rights are entrenched and legality yields to clear words (Coco). The answer then weighs whether an assumption that controls recitals, sustains review and disciplines drafting is meaningfully weaker than a guarantee, and concludes with a position.

Critical pitfalls and counter-arguments

Treating the rule of law as one agreed thing. An essay that never names a conception has lost marks before it applies anything.
Overstating S157. It entrenches review of jurisdictional error under s 75(v). It does not entrench merits review, reasons, or good administration.
Turning legality into invalidation. The principle reads statutes down; it never strikes them down. If the words are clear, the analysis is over.
Ignoring Raz's modesty. The sharpest counter to a thick conception is that stretching the ideal to include every political good destroys its analytical value. Engage it, do not dodge it.
Misattributing the stream. The "stream cannot rise higher than its source" image is Fullagar J. The "traditional conception" assumption language is Dixon J. Precision with the Communist Party Case signals command of the one case everyone cites.

Take it to the practice bank

The rule of law is examined as an essay, and its doctrinal edges are drilled as hypotheticals. In the Principles of Public Law practice bank, the principle of legality is tested directly in the Protecting Rights problems, each with a realistic Pass answer, an H1 model answer and the examiner's comments.

Practice prompts

Take the worked example prompt above and write the opening paragraph twice: once on Raz's formal conception, once on a thick conception. Notice how the whole essay's architecture changes with the choice.
Write the Communist Party Case paragraph for an essay on parliamentary power: facts in one sentence, the recital problem in two, Fullagar J's image deployed once, and the limit of the case stated honestly.
Draft the counter-argument paragraph you would least like to face: parliamentary supremacy plus clear words defeating legality, then answer it without overclaiming.

Check your understanding

Auto-marked drills. Answer, then see the authority in the feedback.