Seitenhistorie

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There is no explicit recognition of the rule of law in the Australian Constitution. However, in Australian Communist Party v Commonwealth (1950) 83 CLR 1 at 193, Dixon J of the High Court of Australia recognised that the rule of law forms an unwritten 'assumption' underpinning the Australian Constitution. This does not mean that every aspect of the rule of law is constitutionally entrenched. A distinction must be drawn between 'implications' from the Australian Constitution (which are terms or concepts anchored in the text or structure of that instrument) and 'assumptions'. Only implications may be enforced as part of the Australian Constitution and, therefore, the critical question is which aspects of the rule of law may be implied from that instrument. This question has not yet been conclusively answered by the High Court. In Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381, Gummow and Hayne JJ stated that 'the occasion has yet to arise for consideration of all that may follow from Dixon J's statement'. Leighton McDonald (2003) states:

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"\[A\]lthough explicit references to the ideal \[of the rule of law\] can be found in many doctrinal areas ..., these references are rarely matched by careful examination of the rule of law's precise content, how its elements interrelate, or how doctrinal outcomes are to be determined. ... So although the ideal is accepted as a constitutional assumption, and no doubt guides the Court in its roles of interpreting and making the law, the meaning and consequences of this remain inchoate in its jurisprudence."

II. Judicial Review of Legislative and Executive Action

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Some Australian judges and commentators have observed a weakening of judicial review, particularly in the counter-terrorism context. In _Thomas v Mowbray_ (2007) 233 CLR 307, the High Court upheld the constitutionality of Australia's controversial control order regime in Division 104 of the Commonwealth _Criminal Code Act 1995_. In finding that the regime fell within the defence power, the High Court gave considerable scope to the executive to calculate the terrorist threat and the necessity for particular legislative measures to be introduced in response to that threat. The High Court also rejected challenges to the regime based on the separation of powers. It found that federal courts could issue control orders because this was a judicial (and not an executive) function. Furthermore, the prevention of terrorism was an exception to the general rule that a person could only be detained as a consequence of a judicial finding of guilt. Justice Kirby (in dissent) at \[386\]-\[387\] was scathing of his fellow High Court judges, saying that this case provided:

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"\[F\]urther evidence of the unfortunate surrender of the present Court to demands for more and more governmental powers, federal and State, that exceed or offend the constitutional text and its abiding values. It is another instance of the constitutional era of laissez faire through which the Court is presently passing."

III. A Substantive Conception of the Rule of Law

Australia is unique amongst western democratic nations in not having a Bill or Charter of Rights. The Australian Constitution contains limited express rights, and the High Court has tended to interpret these in narrow terms. (For example, the requirement in section 80 of the Constitution that '\[t\]he trial on indictment of any offence against any law of the Commonwealth shall be by jury' has been interpreted by the High Court as conferring on the Commonwealth Parliament the power to itself determine what offences shall be 'on indictment', and thus subject to a jury trial; see _R v Bernasconi_ (1915) 19 CLR 629.) The rule of law and the separation of powers have formed the basis for the implication of some _procedural_ rights into the Australian Constitution. For example, the High Court has held that the Australian parliament may not enact a Bill of Attainder. A declaration of the guilt of a particular person or class of persons by the Commonwealth Parliament would constitute an improper exercise by the Parliament of judicial power (_Polyukhovich v Commonwealth_ (1991) 172 CLR 501.). However, to date, the High Court has stopped short of implying _substantive_ rights from the rule of law and separation of powers (McHugh 2001). In _Re Minister for Immigration and Multicultural Affairs; Ex parte Lam_ (2003) 214 CLR 1 at 23, McHugh and Gummow JJ stated:

"In Australia, the observance by decision-makers of the limits within which they are constrained by the Constitution and by statutes and subsidiary laws validly made is an aspect of the rule of law under the Constitution. It may be said that the rule of law reflects values concerned in general terms with abuse of power by the executive and legislative branches of government. But it would be going much further to give those values an immediate normative operation in applying the Constitution."

The High Court was unable to reach a consensus in Polyukhovich v Commonwealth (1991) 172 CLR 501 as to whether the Australian Constitution prohibits the Australian parliament from making retrospective criminal laws.  Furthermore, in Kruger v Commonwealth (1997) 190 CLR 1, five members of the High Court rejected the existence of an implied guarantee of general legal equality in the Australian Constitution (Kruger v Commonwealth (1997) 190 CLR 1 44-45 (Brennan CJ), 63-68 (Dawson J, with whom McHugh J agreed at 142), 112-113 (Gaudron J), 153-155 (Gummow J)).