After her appointment this week as Attorney-General, Michelle Rowland made a brilliant move: she undertook to uphold the rule of law.

That means she has set herself key performance indicators that go beyond the criteria for success that applied to her previous role as communications minister.

Rowland has implicitly accepted that her tenure as Attorney-General should be judged not merely according to the party line, but by whether she is an effective guardian of the principles of the rule of law.

The simplicity of that term belies the significance of the package of ideas Rowland has now embraced.

While known collectively as the rule of law, this is a doctrine that goes beyond merely obeying the laws that are approved by parliament.

It is a collection of doctrines that underpins the Constitution. It provides an apolitical framework for principled law-making and governance that, if respected, prevents arbitrary rule.

The result in this country is a sustained history of lawmaking – progressive and conservative – that is the envy of less fortunate nations.

True democracy is inconceivable unless accompanied by concepts that include equal treatment under the law, the presumption of innocence, access to justice and the right to a fair trial.

This doctrine also provides space for freedom under the law by acting as a bulwark against the rise of an over-mighty state that rules through the discretion of back-room power brokers instead of through clear laws that are known in advance.

To be effective as first law officer, Rowland needs to give life to these principles – not only within her department and its agencies, but across the government’s entire agenda.

The first test will be whether she is prepared to take a fresh look at a scheme she promoted as communications minister that would censor the internet using a technique that would breach core principles of the rule of law.

This might require the new AG to have an awkward discussion with Anika Wells, her replacement as communications minister, who will now determine whether that scheme goes ahead.

Instead of legislating to outlaw specific online content that would be known in advance, Rowland as communications minister wanted to impose a statutory duty for online entities to prevent “harm”.

After pledging support for the rule of law, she needs to show consistency by setting aside her previous stance and making it clear to Wells that this proposal should be overhauled.

The term “harm” is simply too vague. It would enable unelected officials to impose punishments based on subjective assessments – which looks like rule by bureaucratic discretion, not rule through clear laws that are known in advance.

Rowland’s predecessor as Attorney-General, Mark Dreyfus, also left some issues that will test her commitment to legal clarity over discretion.

Does she propose to reform the rules governing the dispute-settlement procedure that handed Brittany Higgins $2.4 million after a one-day mediation?

Those rules can be found in Appendix C of the government’s Legal Services Directions.

On a cursory reading, Appendix C might look like a perfectly reasonable set of rules for handling monetary claims against the government. It imposes all sorts of checks before taxpayers’ money is handed over.

But there’s a loophole that means all those checks can be discarded and a payout could still be made.

The loophole is tucked away towards the end of Appendix C in clause 5 which says: “The Attorney-General may permit a departure from the normal policy, but may impose different or additional conditions as the basis for doing so.”

That looks like a green light for arbitrary decision-making that renders the rest of Appendix C meaningless.

Rowland was not Attorney-General when the Higgins payout was made. There is, of course, no suggestion that Dreyfus did anything outside the scope of Appendix C.

But because Rowland has no skin in the game, she is perfectly placed to start the reform process. Why not ask the Australian National Audit Office for a report on Appendix C with a view to replacing that loophole with something that resembles clarity and rigour?

Rowland’s commitment to the rule of law was also noticed by the Law Council of Australia, the legal profession’s peak national body.

It not only commended her undertaking, it issued a statement outlining the principles that needed support.

“These include that the law should be applied equally to all people and should not discriminate on arbitrary or irrational grounds, that all people are entitled to the presumption of innocence and to a fair and public trial, that all Australians should have access to a competent and independent lawyer of their choice in order to establish and defend their rights, and that the judiciary should be independent of the executive and the legislature,” said Law Council president Juliana Warner.

My organisation, the Rule of Law Education Centre, took a similar course and issued a newsletter drawing attention to the primary place of the rule of law among the Attorney-General’s responsibilities.

In 2021, the education centre wrote a job description for Attorneys-General that warned against opening the door to parallel systems of justice.

In that context, it will be worth watching for Rowland’s response to next month’s final report by Victoria’s Yoorrook Justice Commission – an organisation that seems to want a separate Indigenous justice system.

Under the Law Council’s test, as outlined above by Warner, the legitimacy of such an initiative would depend on whether race-based criminal justice for Victorians is irrational or arbitrary.

Over to you, Attorney-General.