INTRODUCTION

Australia is governed by a written, entrenched constitution, which makes no mention of the rule of law. Yet the rule of law is said to be one of its most fundamental ‘assumptions’. The Australian Constitution places clear constraints on both legislative and executive power, which are rigorously enforced by an independent judiciary, though these limits are relatively ‘thin’. There is no constitutional bill of rights, nor any overarching constitutional requirement that government act in a way that is reasonable or proportionate. As then-Chief Justice Gleeson observed:

This distinction between legal and political limits on government power is one key to understanding the way the rule of law is conceptualised in Australian constitutional law. The latter has come to shape the former, as the High Court has derived implied constitutional rights to political equality, to vote in federal elections and to engage in political communication from the system of representative and responsible government that the Constitution provides. But the other key is to recognise that a great amount of work is done by non- (or perhaps, small ‘c’) constitutional norms and principles. Many principles and values associated with the various competing conceptions of the rule of law are protected by the principles of statutory interpretation developed by the courts. Yet it remains largely open to Parliament to confer broad executive powers and erode individual liberties, if it so chooses.