Kristen Rundle

It is a real privilege to read and be given the opportunity to reply to this AusPubLaw book symposium on my Cambridge ‘Element’, Revisiting the Rule of Law. That each of Gabrielle Appleby, Megan Davis, Dylan Lino, Alex Reilly, Paul Burgess and Justice Angus Stewart took the time to take my efforts at explication, analysis and intellectual leadership seriously, and then reflect on their own academic and professional endeavours in association with those efforts, is the ultimate compliment to an author whose first priority in writing the work was that it be useful to others.

The little book with which we are here concerned came into being because the editors for the ‘Philosophy of Law’ series within the new Cambridge University Press ‘Elements’ project asked me to write the volume on ‘the rule of law’. My instructions were to provide a succinct and accessible overview of key ideas and debates within scholarship on the rule of law, as well as to suggest ways in which the boundaries of this received territory might be pushed in the direction of new frontiers of inquiry.

Paul Burgess

I was not convinced that a small (66 page) book that – in addition to being written for a principal audience of students and teachers of legal and political thought – was written for ‘anyone who wants to understand more about how we think, speak, and write about the rule of law’ (at 3) could provide a creative approach or motivate substantive further academic ideas about the concept. I was wrong.

Across only three logically (yet innovatively structured) short parts, Kristen Rundle stimulates and provokes engagement with the concept of the Rule of Law in Revisiting the Rule of Law. The three parts – that first examine the methodology associated with theorising the Rule of Law before considering the entangled way in which the concept is frequently presented – culminate in a part that explores ‘what may be missing or under-examined within theoretical engagement’ (at 2) and identifies a need to revisit the Rule of Law.

Angus Stewart

Kristen Rundle’s remarkably readable and insightful book, Revisiting the Rule of Law, reminds us that the idea, or ideal, of the rule of law means different things to different people. The ‘rule of law’ is a highly contested concept. It is perhaps particularly vulnerable to elasticity because it inevitably has different meanings in different constitutional contexts, and that is not always acknowledged. For example, AV Dicey generally remains the go-to theorist for judges when writing about the rule of law. Yet Dicey described the rule of law in the context of the English unwritten constitution. That is a quite different context from the arrangements of other constitutional systems.

Gabrielle Appleby, Megan Davis, Dylan Lino and Alexander Reilly

Kristen Rundle’s multiple achievements in Revisiting the Rule of Law are belied by its slim volume (although its lucid concision is one of those achievements). A book on the rule of law by one of the world’s leading analytical legal philosophers, it provides a cut-through typography of different ‘accounts’ of the ambiguous and contested ‘rule of law’; explores the different articulations of its driving purpose and its connections with other foundational public law principles such as constitutionalism, liberty, legitimacy, and accountability; and considers the arguments and contestations that exist amongst those scholarly and practice-based disciples – and critics – of the rule of law.

In our view, the most important achievements of Rundle’s book lie in her contextualising and peopling of the rule of law. This is done through a number of what she terms ‘provocations’, and by situating these provocations within the rule of law as a ‘working idea’, given meaning through discourse and practice (at 3).

Guy Baldwin

The growth of structured proportionality in recent years has been a much remarked upon feature of global constitutionalism. Even supporters of proportionality describe how it ‘exhibits a viral quality, spreading relatively quickly from one jurisdiction to another’ – not, exactly, an image of careful adaptation. Originating in Germany, proportionality spread to Australian constitutional law in respect of the implied freedom of political communication in the case of McCloy in 2015, and in respect of s 92 in the case of Palmer in 2021 (after previously being considered in earlier cases). However, Gageler J and Gordon J have maintained principled opposition to the use of structured proportionality in these and other cases. Gageler J became Chief Justice of Australia on 6 November 2023. Does that change things?

In this blog, I consider the possible significance of the new Chief Justice to the proportionality debate, before explaining why I consider that proportionality should be abandoned in Australian constitutional law, and suggesting an alternative approach.

Dane Luo

NSW Premier Chris Minns went to the 2023 state election promising to ‘change the constitution of NSW to protect Sydney Water and Hunter Water from privatisation!’ A change to the constitution, according to Minns, would put ‘a lock to make sure future governments don’t sell [Sydney Water and Hunter Water] off’. After the election, Minns’ government introduced legislation to amend the state’s constitution, explaining that it ‘effectively put a sphere of protection around both entities, preventing privatisation, preventing unreasonable price spikes and ensuring these essential assets will always belong to the people of NSW.’ But does the Constitution Amendment (Sydney Water and Hunter Water) Act 2023 (NSW) (the Amendment Act) actually ‘lock’ or ‘protect’ the State’s water infrastructure as Minns claims?

Matthew Groves

A sexual assault is alleged to have occurred several years ago in the federal Parliament building. Mr Bruce Lehrmann was alleged to have sexually assaulted Ms Brittany Higgins. Mr Lehrmann sought a stay of the charges, arguing that he could not possibly get a fair trial. That claim failed, so a trial followed. The jury was discharged after five days of deliberation. A retrial was planned but the prosecution was discontinued because of concerns about Ms Higgins’ mental health and the impact a second trial might have upon her.