Australian Constitutional Promise

For instance, in Australian Communist Party v The Commonwealth, court struck down the designed legislation to dissolve the Australia’s communist party by declaring it as unconstitutional and thereby embracing that the rule of law is an intrinsic part of Australian constitution. In Lange v Australian Broadcasting Corporation, High Court held that the Australian Constitution dislodged the supremacy of the legislature and imposed responsibility on the federal judicature to fix the boundary of the relevant powers of both commonwealth and state governments.

This feature of rule of law makes sure that government has only restricted powers. Further, in the case of Chu Kheng Lim v Minister for Immigration, there was amendment in Migration Act by Parliament to offer for the compulsory detention of some ‘category of persons’ whom could not be set free even by order of a court. The law was annulled as it was found inconsistent with concept of separation of power and rule of law.

A v Hayden is the case law which demonstrates the rule of law which ensures to offer protection to the society from the probable tyranny of the government’s illegitimate operations. Thus, the verdict in the foregoing case clearly proves about the subsistence of rule of law which recommends equal treatmemt of all people under the ordinary law including government officials. [Andrew Skyes 2002]. However, some argue that rule of law is not fully enforced in Australia.

Critics cite the first incongruity is the immunity to government. The immunity to government refers to the immunity granted to the Governor-General and the state governors and also covers the government administration. However, it is to be recalled that it is necessary to express the immunity by words or by implication by expressing that this legislation does not bind the Crown. In case, if it does not bind the Crown, then it has to be expressly defined that this act does not bind the Crown.

Another incongruity is the existence of privative clause in both the federal and state legislation. The said clauses look for to limit or to take away the privilege of judicial review for the verdicts of the Australian government administration. The recent example on the subject is the Terrorism [Police Powers] Act, 2002 of New South Wales which safeguards certain decisions initiated by the Police Minister from the process of judicial review. In Australian judicial system, rule of law is revered as founding stone.

However, like people never thought of the foundation of any building while working or residing there, existence of the rule of law is also frequently forgotten by Australian citizens. [High Court of Australia 2002]. 3. CONCLUSION: Thus, the rule of law is the foundational doctrine or standard which acts as a corroborating system for the government of Australia. Further, the rule of law is solely designed to offer defence against the employment of subjective power and the concept that the law must be ultimate, is, in addition, an assurance extended by the constitution.

It acts to offer Australian citizens with foregone conclusion thereby obviously identifying the conduct demanded by the Australian law and also offers protection, by demanding the Australian government to operate in tune with law. It is to be remembered that phraseology ‘rule of law’ is not outlined in Australian Constitution or in its other legislations and hence, its relevance and its significance is open to elucidation.


Andrew Skyes. (2002) ‘The Rule of Law as an Australian Constitutional Promise. Murdoch University Electronic Journal of Law [Online] 9, [1]. Available from http://www. murdoch. edu. au/elaw/issues/v9n1/sykes91. html [13 April 2008]. High Court of Australia (2002) Dispute Resolution and The Rule of Law [Online] available from http://www. hcourt. gov. au/speeches/haynej/haynej_DisputeResolutionBeijing. htm [13 April 2008]. Ozpolitics (‘n. d’). The Rule of Law [Online] available from http://www. ozpolitics. info/guide/rules/rol/ > [13 April 2008]. Wade ECS and Bradley, AW. (1985) Constitutional & Administrative Law. London: Longman.