Examining Rule of Law and Limited Government in Australia: An Analysis

This essay provides an in-depth analysis of the principles of rule of law and limited government within the Australian political system. It begins by defining these two crucial concepts, highlighting the separation of powers among the three branches of government and the importance of a written constitution in limiting governmental authority. The essay then examines how these principles are implemented in Australia, contrasting the Australian system with the more stringent separation of powers found in the United States, and acknowledging the influence of the Westminster system. It discusses key cases, such as Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan, and the role of the judiciary in upholding these principles through judicial review. The essay further explores the interrelationship between rule of law and limited government, emphasizing their mutual interdependence and the role of the judiciary in ensuring the supremacy of law and preventing abuses of power. It concludes by assessing the strengths and weaknesses of the Australian system, including the need for improvements at the state level and the importance of maintaining judicial review power. The essay references several scholarly works to support its arguments.

Rule of Law & Limited Government
Australia
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The given statement essentially upholds two critical principles which form the lynchpin of
modern democracies. One of these is the principle of limited government. The principle of
limited government is represented in the initial part of the given statement which tends to
highlight that there are three organs of the government and the power is essentially divided
amongst them and the same is enforced through a written constitution which clearly
demarcates the boundaries of the three organs. It is noteworthy that the proponents of limited
government are not anti-government but do not believe in concentration of power which
could potentially lead to a self-serving bias which could prove to be detrimental. As a result,
different but overlapping powers are vested to various arms or organs and these are required
to check each other’s working in order to prevent any overreach. This is also reflected in the
given statement where it is clearly stated that the role of one branch of government must not
be performed by the other and vice versa (Fenna, Robbins and Summers, 2013).
In Australia, the concept of limited government has been enacted through the separation of
power doctrine but the same is not as stringent as observed in United States. This is because
of the influence that the Westminster system has had on the political system owing to the
colonial roots. Further, in the Victorian Stevedoring & General Contracting Co Pty Ltd &
Meakes v Dignan case, the High Court opined that the separation of power in Australian
context is not strict as it is not practical and hence there is always a certain amount of
overlapping. This limited government principle and corresponding separation of power is also
visible in the Australian Constitution where a separate chapter is dedicated to each of the
branches so as to bring out the underlying utility. Additionally, in order to ensure that the
various organs of the government tend to remain within limits, a free and independent
judiciary has been put in place (Kerr and Williams, 2003).
Yet another principle which is contained in the latter part is the rule of law. This implies that
it would be law that would be supreme and the concerned individual or lawmaker. This
concept came into existence in 1885 when this was outlined by A.V. Dicey. Dicey associated
three different meanings with this term. Firstly, it implies and establishes the supremacy of
law and therefore is against any interference of arbitrary power. Secondly, rule of law also
refers to the practice of equality before law thus establishing the supremacy of law as
supposed to any individual by ensuring that no individual is above the law of the land.
Thirdly, the rule of law highlighted that the constitution was essentially a product derived
from the "ordinary law of the land". The above interpretation of rule of law is also reflected

in the given statement where the government is supposed to be derived from law and not
men, thereby providing stability to the system (Groves, 2014).
The rule of law is not mentioned explicitly in the Australian constitution and thereby one
needs to rely on judicial commentaries to find evidence regarding the same. A pertinent case
in this regard is the Australian Communist Party v Commonwealth (1950) 83 CLR 1 at 193.
In this particular case, Dixon J advocated that one of the key assumptions on which the
Australian Constitution is based is the rule of law. However, this does not necessarily imply
that each and every aspect of the rule of law is entrenched in the constitution. Clarity in this
regard has not yet emerged as has been put forward by Hayne J in the Kartinyeri v
Commonwealth (1998) 195 CLR 337 at 381 case (Crawford, 2017).
In order to explore, the interrelationship between the rule of law and the limited government
principle, it is imperative to analyse the rule of law pyramid indicated below.

From the above pyramid, it is apparent in order to ensure that law is supreme and everybody
is equal in the eyes of law, it is imperative to have reasonable checks and balances which is
where the role of separation of power comes into picture. This is because if all the power of
making laws and deciding on these is rested into a particular arm of the government, then it
would become supreme and would not comply with the existing law of the land. Thus, in
order to ensure that rule of law is practised, it is imperative to have limited government
thereby allowing the law to take its own course (Willoughby, 2014). Further, in various
countries where monarchies and dictatorship exists, it is apparent that rule of law does not
exist as the underlying monarch or dictator is above law due to concentration of power. On
the other hand, in major democracies, the judiciary plays a critical role in ensuring that there
is no abuse of power by the executive. This serves as the necessary enforcement and
institutional mechanism that has been put in place in order to ensure that rule of law could
exist (Williams, 2004a).
Infact, both these principles are mutually interdependent and cannot exist in isolation. For
instance, if the principle of limited government is to followed without the rule of law, then
the same cannot be accomplished as the various arms of the government need a supreme
source such as constitution from which the power needs to be deprived and which acts as the
law of the land which cannot be altered. Similarly, rule of law cannot be applicable in the
absence of limited government. This is because in such a scenario, one organ of the
government typically executive would become highly powerful and effectively dictate the
terms for the other organs of the government whose independence and power would be
compromised and dependent on the sweet will of the head of the state. In such a scenario, the
supremacy of law would be severely curtailed and replaced by the supremacy of men which
implies that as men would keep on changing, the law to be obeyed would also alter based on
the sweet will of the man or party in power (Crawford, 2017).
To enforce separation of power, it is imperative to have an independent and robust judiciary
which can interpret the various rules or laws that are executed by either the legislature or the
executive. Further, taking into consideration the principles enshrined in the constitution, the
judiciary needs to determine whether the laws are in line with the granted power to the
respective branch of government and does not involve any abuse of power. This abuse of
power may take place in the form of overreach or deploying power in a manner which
violates the basic structure of the constitution (Ker and Williams, 2003) This power of
judicial review was highlighted in the Australian Communist Party v Commonwealth (1951)

83 CLR 1 where an act named as the Deputation Act enacted in the name of nation’s defence
was struck down by the High Court citing overreach and abuse of power (Williams, 2004b).
The Australian judiciary at the Federal level seems to separated and protected from the
interference of the other two organs but the same cannot be stated at the state level. Further,
in the recent years, there seems to a gradual erosion of judicial review which is particularly
apparent in the context of counter-terrorism. This was at display in the Thomas v Mowbray
(2007) 233 CLR 307 where the court did not strike the controversial Division 104 related to
the control order regime thus allowing the executive immense scope and freedom within the
limited government doctrine. Clearly, this is a worrisome aspect and needs to be addressed so
that there is no erosion of the fundamental rights of the people which are a key for a dynamic
democracy such as Australia (Fenna, Robbins and Summers, 2013).
The judiciary has played a pivotal role in upholding the two principles. Firstly, they have
acted as the final voice on the interpretation of constitution and thus have resolved various
debates in relation to the separation of power. Further, the courts have also struck down those
laws which either represent overreach or violate the various rights that have been granted by
the Constitution to the people (Groves, 2014). Secondly, they have ensured that the
supremacy of law is maintained and thus enforcing the rule of law. In this regards, a key
aspect which the courts have taken care of is to act in an impartial manner even in cases
which have involved members of executive and legislative. This goes a long way in ensuring
that the people tend to follow the prevalent laws as they are aware that it is indeed the
supreme power (Gleeson, 2001).
However, there are certain improvements which are especially required at the state level so as
to increase the credibility of the state laws and to ensure that rule of law is established not
only in letter but in spirit. Besides, it is crucial that the judicial review power available with
the judiciary should not be diluted while at the same time in name of judicial activism must
not be abused. This would ensure that there is a healthy balance between the three organs of
the government thus justifying the key principles identified in the statement provided
(Groves, 2014).

References
Crawford, L.B. (2017) The Rule of Law and the Australian Constitution. 2nd ed. New South
Wales: Federal Press.
Fenna, A., Robbins, J. and Summers, J. (2013) Government Politics in Australia. 7th ed.
Sydney: Pearson Higher Education AU.
Gleeson, M. (2001) COURTS AND THE RULE OF LAW: The Rule of Law Series. [online]
Available at: http://www.hcourt.gov.au/assets/publications/speeches/former-justices/
gleesoncj/cj_ruleoflaw.htm [Accessed 10 Aug. 2017]
Groves, M. (2014) Modern Administrative Law in Australia: Concepts and Context. 4th ed.
Cambridge: Cambridge University Press.
Kenny, J. (2013) Constitutional Role of the Judge: Statutory Interpretation. [online] Available
at: http://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-kenny/kenny-j-
20130315 [Accessed 10 Aug. 2017]
Kerr, D. and Williams, G. (2003) ‘Review of Executive Action and the Rule of Law under
the Australian Constitution’, Public Law Review, 14, pp. 2019.
Williams, G. (2004a) ‘Human Rights and Judicial Review in a Nation without a Bill of
Rights: The Australian Experience’, Supreme Court Law Review, 23, pp. 305.
Williams, G. (2004b) ‘The Constitutional Role of the Courts: A perspective from a Nation
without a Bill of Rights’, New Zealand Journal of Public and International Law, 2, pp. 25.
Willoughby, G.K. (2014) Public Budgeting in Context: Structure Law, Reform and Results.
5th ed. New Jersey: John Wiley & Sons.