Clark's Chapter 3: The Rule of Law

A Summary.

  • Rule of law "refers to the general notion of constitutional government." Has several meanings. The 'thin version' best reflects the reality of what the courts use.


  • Ancient Greeks: rule by men vs. rule by laws.
  • Roman period and medieval period: prince/ruler is above the law.
  • Late medieval period: idea of due process.
  • 1688, James II flees England, William of Orange crowned. Bill of rights created: king can not suspend or dispense with laws. Still part of the law of all Australian states and territories.
  • In modern application, dispensing with laws refers to the executive exempting certain persons from statutory obligations; 'suspension' is when the law temporarily applies to no one. These principles are still applied by the courts.
  • However, agencies such as the police may choose not to prosecute individual cases. Also, the executive may be given discretion by statute to not apply the law to some groups.

Modern Australian Judicial Discussion

  • Rule of law refers to the general idea that all persons in Australia regardless of position are under a duty to obey the law of the land
  • Whether any given legal provision or rule is actually binding upon a particular individual is a separate question (e.g. Diplomats immune from most Australian laws)
  • In the modern context the sovereign herself is normally obliged to obey the law
  • The judges of Australia subscribe to the view that the legal order is one governed by the rule of law
  • There is a recognised need "for institutional arrangements to ensure that persons comply with the law and to support the constitutional order as a whole." eg. Independent judiciary and legal profession.
  • Is the rule of law inherently linked to democracy? To some extent; they are certainly historically connected in Australia.

Per Justice Gaudron -

  • Those exercising executive and administrative powers are much subject to the law as those who are or may be affected by the exercise of those powers.
  • The courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.

A v Hayden (1984) – HCA

  • Group of six trainees and four supervisors working for the Australian Secret Intelligence Service took part in a botched training exercise at the Sheraton Hotel in Melbourne
  • Case provoked the legal question, whether the participants were obliged to give their names to the Victorian police whom arrested them
  • The central issue in this case concerned whether their contractual obligation to maintain confidentiality could override other considerations such as the public interested in the proper investigation of the crime. The court held it would not uphold injunctions sought by the plaintiff to restrain the Cth from disclosing their names to Victorian police.

Key points from judgements in A v Hayden

  • No one in Australia, including a member of a security organisation, is empowered to break the law nor is there a defence that the offender was following superior orders.
  • The military and the security forces are obliged to obey the law like anyone else
  • The Governor-General, the Federal Executive Council and every officer of the Cth are bound to observe laws of the land
  • ‘No agency of the executive government is beyond the rule of law. ASIS must obey the law….’

Diceyean Theory

  • Alfred Venn Dicey (1835-1922)
  • Clearly & influentially expressed the idea of the rule of law (but his views are now criticised)
  • His view of the concept:
  1. Persons only punished for breaking ordinary laws, not by discretion.
  2. No one is above the law.
  3. General principles and rights in the constitution result from judicial decisions.
  • Criticism of Dicey's views is now prevalent.
  • Discretionary powers do exist, and did at the time.
  • Some rights are secured by statute, not common law.
  • Parliamentary supremacy seems to conflict with Dicey's notion of the rule of law (though in Australia this is limited somewhat by the written constitution)
  • "Dicey's views must be approached with caution in an Australian context because of the institutional and constitutional differences between the British and Australian situations.
  • Dicey may have derived his ideas from WE Hearn.

Jurisprudential Discussions

  • Distinction between formal and substantive concepts of the rule of law.
  • Said to be 8 characteristics necessary to establish the rule of law, noted by John Finnis:

i) Proactive, not retroactive, rules
ii) Rules not impossible to comply with
iii) Rules are promulgated
iv) Clarity
v) Coherent and internally consistent
vi)Sufficiently stable
vii)The process of making rules for 'specific' situations is governed by more general, stable rules.
viii) People with authority to make and apply rules are a) accountable, and b) administer the law consistently.

  • Not all of these may always apply, even in places with the rule of law.
  • For example, retroactive statutes may be passed in Australia; they are not always unjust.
  • There is a notable difference between a place where the rule of law operates (even imperfectly) and one where it does not.
  • Post-1945 legal theory has suggested that the rule of law must have a minimum substantive content to distinguish it from oppressive regimes: some dictatorships meet the aforementioned 8 criteria.
  • Most recent views tend to argue for a minimum content based on human rights or international law
  • However, Australian courts will not invalidate a positive law for conflict with international or human rights standards.

The International Dimension

  • A central aim of the UN is to bring the rule of law to developing and conflicted countries. This includes ensuring that their laws are consistent with human rights standards.
  • An effective court and contract system is seen as essential for the development of a market economy.