The Federation Press

The Rule of Law and the Australian Constitution


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’.


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

Table of Contents

Foreword by Jeffrey Goldsworthy
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


Of interest...