Keynote Address: Law, Power and Government Responsibility

Australian Government Legal Services Conference

Chief Justice Allsop AO*  14 October 2021

1 Good morning

2 I am grateful to the organisers for asking me to speak to Commonwealth government lawyers at their inaugural conference and for persisting in these challenging, although more hopeful, times.

3 The role of a government lawyer is a unique and important one.

4 The theme of this conference is the DNA of a government lawyer and more specifically the importance of technical legal skills and personal soft skills and their linkage. My chosen topic is somewhat broader, but, as I hope to convey, nonetheless critical to your day-to-day work in the way you provide those technical legal services, engage with government and comprehend your position in public administration.

5 The membership of the Australian Government Legal Service is drawn from a broad range of practice. It may not be immediately apparent how your role as a Prosecutor at the CDPP has much in common with that of a Building Code Lawyer at the Australian Building and Construction Commission, beyond your legal professional obligations. But there are fundamental and meaningful commonalities, which is what I would like to speak to you about today.

6 Let me first turn to the governing provisions of the Public Governance, Performance and Accountability Act 2013 (Cth).[1]

7 The Explanatory Memorandum to the Public Governance, Performance and Accountability Bill explains that the third object of the PGPA Act, para 5(c)(i) requires the Commonwealth and its entities to meet high standards of governance which “provides the foundation for high performance and community confidence in the public sector” and is “grounded in accountability, transparency, leadership, integrity and stewardship and in responsiveness to the needs and aspirations of citizens”.[2] It also requires meeting high standards of accountability, which the Memorandum explains, ensures responsible decision-making.[3] By para 5(c)(iii), the PGPA Act identifies as another object the requirement “to use and manage public resources properly”, which, the Memorandum explains are “entrusted to entities by the Parliament on behalf of the Australian people to provide desired goods and services”[4].

8 The PGPA Act imposes upon officials of a Commonwealth entity a number of duties in the exercise of their powers, performance of their functions and discharge of their duties. They include duties of care and diligence; to act honestly, in good faith and for a proper purpose; in relation to use of position; the use of information; and to disclose interests.[5] As for the duty to disclose material personal interests, the Memorandum explains that a “[f]ailure to do so can undermine confidence and trust in the Commonwealth entity”.[6] Further, in the second reading speech to the introduction of this Bill, the Minister noted that these duties “align with the fiduciary duties contained in the Corporations Law”.[7]

9 The ideas behind the PGPA Act are not new. In Part 1 Book 1 of The Republic Plato has Socrates say in answer to the equation of might with right by Thrasymachus:[8]

no ruler of any kind, qua ruler, exercises his authority, whatever its sphere, with his own interest in view but that of the subject of his skill. It is his subject and his subject’s proper interest to which he looks in all that he says and does.

10 The roots of power lie within the polis – the body politic and the social contract. To be a government lawyer is to occupy a unique position in the body politic.

11 The 2016 Secretary’s Review of Commonwealth Legal Services which prompted the establishment of this centralised community of Australian Government lawyers, identified three unique characteristics of the role of the government lawyer:

  • “as public servants they are guardians of the rule of law as it applies within government;
  • they have an important relationship to their Minister in a system of responsible government; and
  • they have an obligation to protect the reputation of the Commonwealth, its legal interest and the public interest”.[9]

12 Reference is also made to the unique and at times challenging need to marry professional legal obligations with the role of public servant which necessitates a “whole-of-government focus”.[10]

13 The reason I have commenced with a short overview of the statutory framework within which you operate is to focus your attention upon the evaluative language used and chosen by the legislature, particularly the words confidence and trust, accountability, transparency, integrity, stewardship, responsibility and duty, and upon the government’s likening of public duty to fiduciary duties. Community and judicial confidence and trust in your roles and your work and in that of the people and entities and agencies you advise, is important beyond the maintenance of the integrity of the legal profession and your legal professional obligations. It arises out of your unique position: one in which you advise upon the exercise of, and yourself wield a form of, public power. Awareness of the social and historical context of that power, entrusted to the Parliament and Executive by the people of Australia, should be stored in the genetic instructions of every government lawyer and inform your day-to-day work. Today I would like to discuss the nature of that public power, and in particular, its evaluative character.

14 Law is the product of and directed towards the organisation of human relationships and experience. The degree to which you see and feel the impact of the law on those human relationships and experiences in your day-to-day work may vary; for instance, it may be felt more acutely by those working as prosecutors. In our society, laws are expressed in written language as opposed to, for example, oral tradition. It is explicated in statutory instruments and as the number of those instruments increased, many of our roles, as lawyers, became increasingly occupied by the interpretation, construction and application of those instruments. Law also forms incrementally through written judgments in application to new facts, that is, the common law. So, much of our work involves reading, analysing what we read, and writing to explain our analysis and process of reasoning, as we apply those written words to new facts. But ultimately, whilst contained within written language, law is of course, not about language. Its ultimate goal is not the ascertainment or discovery of meaning in language. It is about the human and social reality from which it arises and to which it applies. Its goal is the acceptable and just regulation of those human lives and relationships in order to foster the peaceful, safe and orderly co-existence of those lives. And it is permeated by principles which encapsulate values steeped in the history of humanity. It is not only those that sit in the legislature or on the bench that have cause to consider this broader context. It is a role, indeed a duty, of all lawyers who apply those written words in their ordinary daily work (most of which is not performed in the context of litigation) to not be overcome by taxonomy and formalism or by the particular at the expense of the proper understanding of the whole.

15 Law is political, by which I do not mean its creation, application or adjudication is politically or ideologically motivated; rather law embodies or implements hierarchical power dynamics and relations between people, and between people and their government. As Professor Jeremy Waldron put it:[11]

Law is part of a political system, and it works as part of that system. It is not like a self-contained prefabricated component which is just plugged in, so to speak. It works in a way that is sensitive to other aspects of the political system’s functioning.

16 Law can be seen as part of what Jean-Jacques Rosseau called the “Body Politic” to describe the collective power of the people,[12] in which reside the Commonwealth and State governments.[13] All lawyers have some cause to consider power; the power of their privileged position in relation to their clients and others, hence their professional obligations, and the power dynamics between the private actors they advise and their counterparts. But for government lawyers, the ‘whole’ context within which you operate includes an extra layer of responsibility – that arising out of the public character of the power. Public power is of quite a different nature to private power. For example, where severe pain or suffering is inflicted by a public authority to coerce, it is condemned as torture and its prohibition a principle of ius cogens.[14] This label is reserved for public power, no matter the level of suffering at the hands of a private actor, in recognition of the responsibilities and expectations placed upon those with great public power. That expectation and that character transform violence into torture. 

17 I pause here to note that I am certainly not positing that language is unimportant – quite the opposite. Language, understood in its proper context is central to our legal system. Indeed it is a tool of power – one that can be used to oppress or one that can be used to maintain confidence and trust in its subjects. What I would like to warn against is an overly-lawyered focus on text at the expense of context.

18 Lawyers, in the same vein as they seek certainty in text, often seek to discover the ‘boundaries of power’ so that they can definitively state what is inside and what is outside the grant of power. I think the metaphor of boundary or ‘line” is apt to mislead as to the true nature of power. Power is not fixed or definable. A boundary or line assumes a capacity to define such with precision. Of course, a conclusion of within or without a source of power must be made. But it does not follow that such can be identified by precise definition in express text. Power is often evaluative in nature. It develops organically as a result of action, relationships and language. What for instance is the limit, definitionally, of a privative clause? How far can Parliament authorise the Executive to act “lawfully”? In recognition of that inherent nature, sometimes it is the task, indeed duty, of each arm of government to stay within the space that their power occupies, rather than seeking to find and push its limits: To stay away from the (hidden) edge, if edge there be. The reason for this is threefold. First, government power is the product of a social contract entered into by the people on terms that it be exercised fairly and justly, with proper regard for human dignity. Secondly, the Constitution sets out the bare arrangements of that social contract, with a limited and defined role for the judiciary in monitoring and ruling upon the exercise of power. Thirdly, power is granted on a foundation of both trust and mistrust. The Constitution provides the checks and balances to deal with that mistrust. So, to assure legitimacy and confidence, those in power must take it upon themselves to ensure they operate in a way that elicits and maintains that trust. 

19 The social contract theory is well known. It posits that people are willing to obey laws not just because they fear the threat of punishment or because they are solely motivated by a hope to benefit from that obedience, but because they consent to the arrangements of obedience.[15] For John Locke, a rational person consents to relinquishing some control in order to enjoy the mutual protections and privileges of a centrally organised and enforced societal system.[16] But in doing so, people expect that they will be better off, so, Locke says, laws must protect property rights, the peace, safety and public good of the people[17] and be applied in a way that is just, equitable and non-arbitrary.[18] One may conceive of it as consensual reciprocity of restraint by both the people and the government.[19] Thomas Paine, writing at the birth of the United States in his seminal piece Rights of Man, stated that “government is nothing more than a national association acting on the principles of society.”[20] Note that he did not say acting on the authority of society, but on the principles of society. Government acts must embody the principles of just governance as a term of the consensual arrangement. In 1971, John Rawls revived and revised the social contract theory in A Theory of Justice.[21] For Rawls, people consent to government not just by a process of individual rational reasoning in the narrow sense, as this allows for utilitarian justifications of governance.[22] But because it is the reasonable and moral choice, as it facilitates the creation of co-operative society which can agree to the fair terms of their co-operation on the understanding that they will be treated equally.[23] So, each and every person is afforded and guaranteed a minimum level of equal treatment, which requires recognition of existing inequalities and disadvantages. By way of example, Justice Mary Gaudron drew out this idea of substantive or relative equality in the law of discrimination. First in her interpretation of s 117 of the Constitution (the right not to be subject to disability or discrimination in another State) in Re Roberston.[24] Then, in Castlemaine Tooheys, in relation to s 92 of the Constitution, Justice Gaudron writing with Justice McHugh observed that “the essence of the legal notion of discrimination lies in the unequal treatment of equals, and, conversely, in the equal treatment of unequals.”[25] Underlying this substantive equality, which inheres in the notion of ‘equality before the law’ is recognition of the inviolable dignity of all people, to which I will come.

20 That we are born into this complex and existing system of government and so may not actively consent to its structure, does not detract from the utility of social contract theory as a frame of reference for understanding public power. It is clearly a theme that pervades the Constitution.

21 In 1920, the High Court in The Engineers’ Case observed that ‘[w]hen the people of Australia, to use the words of the Constitution itself, “united in a Federal Commonwealth” they took power to control by ordinary constitutional means any attempt on the part of the national Parliament to misuse its powers.’ [26] The idea that the Constitution was formed on the will and desire of the people and so derives its authority from the people united has been affirmed by the High Court on a number of occasions.[27] The “ordinary constitutional means” of accountability arise out of the dual legal and political structure of the Constitution.[28] Legal, by empowering an independent judiciary to declare and enforce the limits of the power entrusted to the legislature and executive, primarily through the vehicle of s 75(v) which “secures a basic element of the rule of law”[29] or what we might call, the fulcrum of the common law. Political, through the function of responsible government by providing a chain of accountability through the vertical structure of public service, to Minister, to executive, to parliament and to the people.[30]

22 Political accountability is embedded in the “constitutionally prescribed”[31] conventions of representative democracy and responsible ministerial government. The changing composition of Parliament, which makes the laws, must be the expression of the democratic consent of the people, that is, representative. The executive, which administers those laws, is responsible to the representative government through the control of public funds, the requirement that Ministers be members of the legislature,[32] freedom of speech in debate and coercive powers.[33] It has been recognised time and time again that these concepts arise clearly out of the words of the Constitution and the Convention Debates,[34] so are embodiments of principles drawn from centuries of struggle by people against power.

23 These concepts reflect a suspicion of government power and a desire to place upon it checks and balances. As French philosopher, Montesquieu famously said, “constant experience shows us that every man invested with power is apt to abuse it…it is necessary from the very nature of things that power should be a check to power.”[35] Diffusing and dispersing power by mandating its separation is directed towards avoiding misuse, corruption and abuse of the power entrusted to it by the people. So, the trust placed by the people in those that govern, a term of consent to the social contract, arises directly out of a mistrust of power, otherwise unchecked.

24 Another central conception of the Constitution is parliamentary sovereignty. Since those who make and administer the laws are ultimately composed of or responsible to Parliament and since Parliament is an embodiment of the collective will of the people and the people have the capacity to change the composition of Parliament if dissatisfied with its functioning, therein sovereignty resides. This implication arises out of the limited restrictions on parliamentary power: the Constitution does not dictate to the Parliament the manner in which it ought exercise its powers (once it has the power) and avoids enumerating rights against the exercise of those powers, except through the right, if it be called that, to vote and, again if it be called that, the right to avail oneself of the legal apparatus of Chapter III. The sovereignty of Parliament, however, does not do away with the relevance of the social compact between the government and the governed. The Constitution sets out the arrangements of power, whose legitimacy in the eyes of the people is not guaranteed simply by abiding by the arrangements of government. In 2009, in his Sir Maurice Byers Address, Stephen Gageler, Solicitor-General as he then was, stated that it seemed “incontrovertible that federation…at the end of the nineteenth century was conceived of…as a means of empowering self-government by the people of Australia” and that government is “constantly contingent on it maintaining the confidence of the people”.[36] His Honour was referring to the words of Sir Samuel Griffith propounded in his Notes on Australian Federation in 1896, that “actual government of the State is conducted by officers who enjoy the confidence of the people”.[37] Given the size of modern public administration and the public service, it is not realistic to suggest that any lack of confidence can alone be rectified through the ballot box, or through judicial review or other forms of administrative law alone. Maintaining the confidence of the people, which involves maintaining awareness and application of values underlying the entrustment of power, is critical to the grant of power.

25 The social and political history underpinning the Constitution can be found in the very concept of the rule of law which “reflects values concerned in general terms with abuse of power by the executive and legislative branches of government”[38] and which, as Justice Dixon stated in his much-cited reasons in the Communist Party Case: “forms an assumption” of the Constitution.[39] A few examples of the legal presumptions of statutory interpretation which are expressions of the rule of law suffice to demonstrate the underlying mistrust of power: that statute will not operate retrospectively;[40] that mens rea is an element of a criminal offence;[41] and that in the absence of express words, Parliament cannot have intended to abrogate fundamental common law rights.[42] Whilst being presumptions, they can be displaced by statutory language of the sovereign Parliament, we must not forget that the act of presuming is based on the contention that the people, who entrusted power to the government, are entitled to expect that the power will be exercised in a predictable, equal and fair manner, that being the consideration for the social contract, and that it will be exercised in a constrained way, owing to their mistrust. These presumptions arise out of basic moral values that far pre-date the creation of our Constitution. The grounds of judicial review: breach of the natural justice rule,[43] the no evidence rule and the improper exercise of power ground (which incorporates notions of relevancy, bad faith and abuse of power), in common law and statute, arise out of these expectations. Furthermore, the very grant of power in the judiciary, as made clear in Kable,[44] is the culmination of this history of mistrust. Kable makes clear that it is an irreducible imperative that judicial power is to be exercised fairly, equally and justly. That Parliament cannot confer upon courts functions incompatible with the very essence of their power provides assurance, that is encourages trust, in the independence of the judiciary and the reasonable exercise of its power.[45] There are also limited substantive protections implied through the words of the Constitution. In PlaintiffM68, Justice Gageler described the “inherent constitutional incapacity to the Executive…to authorise or enforce deprivation of liberty” as a “limitation on the depth of the non-prerogative non-statutory executive power of the Commonwealth conferred by s 61 of the Constitution.”[46]

26 As Justice Gaudron identified in Corporation of the City of Enfield v Development Assessment Commission, “[t]he potential for executive and administrative decision to affect adversely the rights, interests and legitimate expectations of the individual is now well recognised.” [47] So, too, her honour said, were the inadequacies of prerogative writs to compel operation within power, hence the introduction of statutory schemes to review executive and administrative action, which were also informed by accountability, meaning “the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers”.[48] What is recognised here is that the constitutionally protected exercise of judicial power, whilst of strength, is restricted in the extent to which it can protect against exercises of executive or administrative power which adversely affect people’s lives.

27 In Re Bolton; Ex parte Beane, a matter which considered the detention of a non-citizen by an officer of the Executive without statutory authority, Justice Brennan stated that “[m]any of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statues [there, the Habeas Corpus Act of 1679] which are so much part of the accepted constitutional framework that their terms, if not they very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force”.[49] They are part of the common law upon which and in which sits the Constitution.

28 So the implied common law foundations of our Constitution and its unwritten conventions, as well as terms of statutory interpretation and grounds of judicial review, found in both common law and statute, embody a recognition of the fundamental elements of the social contract and the standards of governance expected by the people. But the extent to which these fundamental principles can be vindicated is limited. When the executive or legislature push the limits of that power, the expectations of the people as to how government should behave (whilst relevant to the extent that they have found form through one of the accepted legal principles) will rarely assist the Court in assessing whether the exercise of power has gone too far. It can force into operation the s 75(v) protective purpose of the judiciary,[50] pitting judiciary against officers of the Commonwealth. If the judiciary is seen to be continually policing the limits of power, this can engender a sense of distrust in the executive’s power and the effectiveness of checks and balances, and if politicised, an undermining of the judiciary. If the question is, for example, one of jurisdictional error on the grounds of unreasonableness, courts in hard cases are faced with challenging questions of characterisation, keeping in mind the need to stay firmly within the realm of legality and not merits review.[51] 

29 The Parliament, in recognition of this reality, has enacted laws and established oversight bodies to extend and entrench accountability mechanisms beyond those provided for by the Constitution: notably, the Administrative Appeals Tribunal Act 1975 (Cth) following the Kerr Report of 1971.[52] Other mechanisms include internal review, the offices of Ombudsman, Inspector-Generals and Commissions and the Freedom of Information Act 1982 (Cth) – labelled by some as the fourth “integrity” branch of government.[53]

30 But the breadth and depth of Commonwealth executive power is great. Justice Brennan in Davis v The Commonwealth identified the three categories of executive power or capacities as “statutory (non-prerogative)…prerogative (non-statutory)… and capacity which is neither a statutory nor a prerogative capacity”.[54] Since the Kerr Report, the degree to which lives and relationships are regulated and the degree to which citizens expect government to deliver services and manage our lives has only grown. The remit of Commonwealth power has also grown. Although, I note that throughout the pandemic we have seen States reclaiming power; the impact of this on Commonwealth power remains to be seen. The trend has, clearly, been towards an increase in the size and complexity of public administration; in the volume of delegated instruments;[55] the delegation of discretionary adjudicative powers; and the outsourcing of executive functions to Commonwealth statutory and non-statutory bodies. This raises concerns about whether responsible government can really perform its function as a check on the exercise of executive power where Ministerial oversight is diminished.

31 Much of the responsibility should and does fall to the arms of power to self-regulate in accordance with a proper understanding of their power in its real human and historical context. In this task the government lawyer is central. 

32 In 1994, in light of the perceived inadequacies of the existing accountability mechanisms, the Honourable Paul Finn, former justice of the Federal Court, described the people of Australia as the “forgotten first cause of our systems of government”.[56] For Finn, the institutional arrangements and policy checks and balances enacted by the legislature gave the constitutional system a credibility that responsible government could not alone provide. But those arrangements were also insufficient. So, in 1995, Finn proposed the concept of the “Public Trust”; that a fiduciary relationship existed between the State’s officers, and the people.[57] In his Second Report on Integrity in Government, Finn claimed that “[p]ublic officers hold their positions and the authority their positions confer not for their own benefit but for the benefit of the public whom, ultimately, they serve”.[58] For Finn, the “all-important third dimension of public office – the officer-public relationship”, had been much forgotten in its own right, despite underpinning anti-corruption laws and conflict of interest regulations.[59] Finn placed emphasis on the words of Justices Deane and Toohey in NationWide News Pty Ltd v Wills, that “the powers of government belong to, and are derived from…the people”.[60] So, common law’s fiduciary principles, including conflict of duty and interest and misuse of position, could be applied to impose upon officers a personal responsibility when exercising the power of the people and so as to avoid acts that offend grievously the most basic and deep rooted values.

33 The values underpinning the concept of the Public Trust can be seen peeking through tentatively in a judgment delivered by his Honour in 1997: Hughes Aircraft Systems International v Airservices Australia.[61] This case concerned a claim that the Civil Aviation Authority, a public corporation, failed to conduct a commercial tendering process fairly. In resolving the claim, the complexities of which need not be discussed here, his Honour noted the importance of characterising the Authority not just as a party to a contract, but as a public body “whose owners are, ultimately, the Australian community whom the authority serves under and in accordance with its statutory mandate” and in relation to which it should act as a “moral exemplar”.[62]

34 In 2010, Finn revisited his concept, acknowledging that it had not found judicial favour. He concluded that given the, by that time, well-developed principles of statutory interpretation and judicial review, imposing such fiduciary obligations on officers of the government would be both unnecessary and unworkable. He maintained, however, that this “characterisation” was “fundamental to an understanding of the contemporary legitimacy and authority of our constitutional arrangements”.[63]

35 As we can see in the instruments recited at the commencement of my talk, it seems the Parliament is likewise concerned with ensuring that certain evaluative standards which align with the concept of a public trust are upheld in order to maintain the legitimacy of the bodies entrusted with public power. The Parliament has exercised its s 51(xxxix) power, which, as Justice Gageler made clear in Plaintiff M68/2015 “extends not only to legislative facilitation of the execution of the executive power of the Commonwealth, but also to legislative regulation of the manner and circumstances of that execution”.[64] By use of words like confidence, duty, fairness, rationality, integrity and stewardship, they recognise the need for self-censure and self-awareness in a large, complex and diverse modern public administration. This is made clear in the APS Values and Code of Conduct in Practice, published by the Australian Public service Commission in 2003, wherein it states that “the principles of good public administration…lie at the heart of the democratic process and the confidence the public has in the way public servants exercise authority”.[65]

36 The model litigant standard is one manifestation of the public’s reasonable expectations as to the management and use of public power entrusted to governments, public officials and agencies. However, that does not encapsulate the totality of the responsibility. The court, as a structural constitutional expression of the will of the people, must adjudicate upon legality of the exercise of government power. In doing so it is imperative that it can trust government lawyers to assist it in the exercise of judicial power, which must be exercised in a way that is fair, equal and just. Courts must be able to rely on government lawyers not to lead the court into exercising its powers in a way incompatible with that function. I recall a late judicial colleague, Peter Hely, a great judge, coming back from court one day and saying that he had just had a remarkable experience. The government lawyer had said to him (somewhat sternly and with some exasperation): Your Honour cannot achieve result X through section Y of the Act; that would be without power and unlawful. But, if your Honour is intent on that result, the only lawful way to achieve it is through sections A, B and C. That lawyer may be present. He is still with the AGS. It was the epitome of the standard of the government lawyer that the court has come to expect. And Peter Hely had never been spoken to like that before; but he admired the work of that lawyer, as we all did, and do when he sometimes descends from his advisory lofts.

37 So integrity, trust, confidence and duty are not lofty aspirational terms, they are value-imbued concepts fundamental to the grant and exercise of power. That they are intangible and broad concepts, whilst not on their own legally enforceable by the persons over whom power is wielded, does not mean they are devoid of meaning. The broader historical and political context which I have discussed is not acknowledged in the statutory instruments themselves, that is customary and unremarkable, but it nonetheless exists and existed as a matter of fact. The power and the words are symbolic and carry with them a context. They are also intuitive human concepts which enables them to provide a meaningful check on the day-to-day work of public administration.

38 I would like to now to turn to the concept of dignity. This is a term that appears less frequently in statutes directed at accountability. This may be because law-makers assume it inheres in the principles of justice and fairness, which it does. However, I do think it deserves separate recognition. The inalienable dignity of all persons is perhaps most well-known for its expression within and as the guiding principle of international human rights instruments. The concept embodies the recognition that all persons, by virtue of their membership of humankind, are equally entitled to a level of respect commensurate with that humanity. Those instruments are the product of wide consultation and so reflect the minimum agreed standards of respect, from which no deviation is permitted, to be afforded to each person so that they may “engage freely in any public activity and…enjoy the public benefits of that society.”[66] The term dignity connotes autonomy over oneself and combines “formal equality before the law with equal protection of the law”.[67]

39 In 2019, the High Court had cause to consider, in some detail, the concept of dignity in a constitutional context. The case concerned State laws which prohibited certain communications and activities surrounding abortion clinics. One law under consideration explicitly identified as its purposes the protection of the safety, privacy and dignity of persons accessing the abortion services. Chief Justice Kiefel and Justices Bell and Keane expressed that “the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom [of political communication], is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”.[68] Later, their Honours reiterated that: “the burden on the implied freedom is justified by the very considerations of the dignity of the citizen as a member of the sovereign people that necessitate recognition of the implied freedom.”[69] Dignity was not just relevant because of its explicit articulation in the statute. Dignity was identified as inhering in the very concept of the implied freedom of political communication, because each person, who all taken together make up the body of sovereign people, is and are to be afforded equal respect in the democratic and representative structure of the Constitution. This built upon what had been formerly recognised by Justices Deane and Toohey, for whom restrictions on political communication could be justified as being in the public interest if they did not go beyond what was reasonably necessary “for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society.”[70] Dignity, a term connoting a recognition of the minimum standard of respect to be afforded to all human life, arises out of the implied terms and conventions of the Constitution.

40 Dignity, framed as understanding and respect, has been described as the “most basic moral principle” from which fairness and justice, in substance and procedure, grow.[71] So when an exercise of power is to be performed in a way that is fair, just and with integrity (as it should), this requires that the persons affected are treated with respect and dignity. Fairness is not just about process. If law is about the organisation of human lives and relationships and if the people have entrusted those in power with the levers of the law, the application and exercise of the law must pay due regard to the dignity of the persons who have granted that high trust and power to make decisions affecting those lives and relationships. To respect their dignity is to afford the necessary respect to the person, who in an act of human agency, consents to the power.

41 I would like to discuss a few examples demonstrating the intensely human impact of the law. 

42 The impact is perhaps most commonly recognised in criminal law. But the intensely human impacts in other areas can be obscured by the commercial context. Justice Deane captured the severe impact of bankruptcy on the humanity of the ordinary person when his honour observed that:

Many, and possibly most, of the petitions in the bankruptcy lists of this country see the bankruptcy of honest, albeit unbusinesslike or naïve, people whose indebtedness springs from causes which evoke sympathy rather than indignation. For such people, bankruptcy does not represent a game to be played to the frustration of their creditors. It represents a pronouncement of failure and humiliation attended by the fear of unknown consequences and the susceptibility to criminal punishment for what would otherwise be innocent conduct.[72]

43 Dignity is at the foundation of procedural fairness. In SZRUI [73] a Tribunal exhibited apparent bias by the way it spoke to an applicant. I said:

The fair treatment, and apparent fair treatment of an applicant called to give evidence and present arguments…involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification…) an inhering requirement of the exercise of state power.

44 Dignity is also at the foundation of the notion of real and genuine consideration. Decisions of governments affect people’s lives, sometimes deeply. Real and genuine consideration are abstracted terms. In Hands v Minister[74] I sought to express the legal doctrine in human terms:

The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

45 Both in the making and application of the law, government should be cognisant of the finely balanced nature of the social contract. Allowing people to be heard, treating them with fundamental human respect and decency, applying proportionality, consistency and reasoning in recognition of lived human reality provide legitimacy to the conferral of power. The exercise of power should align with the values and principles supporting its very legitimacy.

46 In 2006, an American legal scholar Ian Shapiro claimed that "political legitimacy is seldom seriously challenged in the contemporary world."[75] This proposition is not as easily maintained today as it would have been in 2006. In light of the events of the storming of the Capitol and the turbulent last Presidency, this statement might perhaps be optimistic. We should not strive to test that political legitimacy. In 2020, the World Justice Project’s Rule of Law Index reported a global decline in the indices of ‘Fundamental Rights’, ‘Constraints on Government Powers’ and ‘Absence of Corruption’.[76] Judicial review may not protect an individual’s legitimate expectations against the adverse exercise of [administrative power] [77] but those expectations, are real and legitimate. Public confidence in government is fostered where the people, even when feeling wronged, can see that those in power respect the human impact and human dignity of the objects of their actions.

47 On the other hand, affronts to dignity and injustice, gone unchecked, can elicit emotional responses and engender distrust. If those in power seem disconnected and unaccountable, “gratitude to the law for all that it gives us, respect for its good-faith efforts to guide us, or a sense of belonging to a community under law”[78] can erode. Part of the consideration for consent in the social contract is that those in power uphold their side of the bargain in how they behave.

48 If, as the philosopher John Dewey said “democracy is more than a form of government; it is primarily a mode of associated living, of conjoint communicated experience”,[79] all arms of government must look at the effectiveness of their communication with the People in light of their human experiences.

49 The place of the government lawyer in this context can thus be seen to be of central importance. She or he is the bridge between the branches of government. She or he is the repository of the trust of the Executive, of the Parliament, of the Judiciary and of the People in the lawful working of the Polity.

50 I wish you well for the balance of this conference.

51 May I leave you with words, of some force and clarity, of a fine judge: a judge in Equity, later a Judge of Appeal and then the President of the New South Wales Court of Appeal, the Honourable Dennis Mahoney in 1973 in P&C Cantarella v Egg Marketing Board. They go to the heart of the role of the government lawyer:

The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result.[80]

* Chief Justice of the Federal Court of Australia. This is an edited version of the keynote address delivered on 14 October 2021 at the Inaugural Australian Government Legal Services Conference (online). I thank my Associate, Sarah Horton, for her assistance with the preparation of this address.

[1] Hereinafter referred to as the ‘PGPA Act’.

[2] Revised Explanatory Memorandum, Public Governance, Performance and Accountability Bill 2013 (Cth) 13.

[3] Ibid.

[4] Ibid.

[5] See ss 25–29.

[6] Revised Explanatory Memorandum, Public Governance, Performance and Accountability Bill 2013 (Cth) 27.

[7] Commonwealth, Parliamentary Debates, House of Representatives, 16 May 2013, 3448 (David Bradbury).

[8] (Desmond Lee trans, Penguin, 2nd ed, 2007) at 99.

[9] Secretary – Attorney-General’s Department, Chris Moraitis PSM, Secretary’s Review of Commonwealth Services, 28 April 2016 at 100.

[10] Ibid at 101.

[11] See Jeremy Waldron, ‘Legal and Political Philosophy’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2004) 357; See also The Engineers’ Case (1920) 28 CLR 129, 146–147: ‘For the proper construction of the Australian Constitution it is essential to bear in mind two cardinal features of our political system which are interwoven in its texture…the common sovereignty of all parts of the British Empire; the other is the principle of responsible government. The combined effect of these features is that the expression “State” and the expression “Commonwealth” comprehend both the strictly legal conception of the King in right of a designated territory, and the people of that territory considered a political organism.’; Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 82 (Dixon J): ‘they [the framers] appear rather to have conceived the States as bodies politic whose existence and nature are independent of the powers allocated to them’.

[12] Jean-Jacques Rousseau, On the Social Contract (Donald A Cress trans, Hacket Publishing Company, 2nd ed, 2019) 12–13.

[13] See The Commonwealth v Baume (1905) 2 CLR 405, 413 (Griffith CJ); New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1, 120 [194] and Hocking v Director-General of the National Archives of Australia [2020] HCA 19, 78–79 [212] (Edelman J): ‘Rousseau described the "public person ... formed by the union of individuals", with individual "members" collectively described as "The People", as a "Body Politic". Rousseau carefully distinguished "The People", the collective term for membership of the body politic, from the subsets of "Citizens" and "Subjects". In its primary sense, the body politic of the Commonwealth is such a legal body with membership constituted by the political community of the people, and with established territory. In this primary sense of "the Commonwealth", which the preamble to the Constitution describes as an "indissoluble Federal Commonwealth", the membership is of all the people and not merely the subsets such as statutory citizens, subjects or electors. The Constitution contains inherent limits upon the extent to which legislatures can fracture the membership of the political community of the body politic such as by exclusion of those people who were, and remain, necessary members of the body politic or by imposition of unjustified restraints upon the participation by the people in the operation of the body politic.’

[14] Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 1.1. See discussion in Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513, 542 [168]–[169].

[15] See, eg, Simone Weil, The Need for Roots (Arthur Wills trans, Routledge, 2002) 14: ‘it requires to be generally recognized, and above all by leaders themselves, that consent and not fear of punishment or hope of reward constitutes, in fact, the mainspring of obedience, so that submission may never be mistaken for servility’.

[16] John Locke, Two Treatises of Government (Everyman, 1993) 163–164, 178–180.

[17] Ibid 180.

[18] Ibid 217–218.

[19] See, eg, Lisa Burton Crawford, Janina Boughey, Melissa Castan and Maria O’Sullivan, Public Law and Statutory Interpretation: Principles and Practice (The Federation Press, 2nd ed, 2021) 11, citing Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24(3) Law and Philosophy 239, esp 241-2.

[20] (Dover Publications Inc, New York, 1999) 110.

[21] (The Belknap Press of Harvard University Press, 1999).

[22] Ibid 14. Note that for Rawls, a truly rational actor would not consent to this structure of governance simply “because it maximized the algebraic sum of advantages irrespective of its permanent effects on his own basic rights and interests.”

[23] John Rawls, Political Liberalism (Columbia University Press, expanded ed, 2005) 49–50.

[24] (1989) 168 CLR 461,570-574.

[25] Castlemaine Tooheys Ltd & Ors v The State of South Australia (1990) 169 CLR 436, 480. See also Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, 472–473 [28] and Wong v The Queen (2001) 207 CLR 584, 608 [65].

[26] (1920) 28 CLR 129, 151.

[27] See Nationwide News v Wills (1992) 177 CLR 1, 72 (Deane and Toohey JJ); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ); Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 171, 180 (Deane J); McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J); Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557–562; McCloy v New South Wales (2015) 257 CLR 178, 207 [45]–[46] (French CJ, Kiefel, Bell and Keane JJ), 257 (Nettle J).

[28] See, eg, Lisa Burton Crawford and Jeffrey Goldsworthy, ‘Australian Constitutionalism’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook to the Australian Constitution (Oxford University Press, 2018) 356.

[29] Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 25–26 [42]–[44] citing Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 482 [5].

[30] See, eg, Boilermakers’ (1956) 94 CLR 254, 275–276; Egan v Willis (1998) 195 CLR 424, 448–453 [35]–[45].

[31] Roach v Electoral Commissioner (2007) 233 CLR 162, 199.

[32] Constitution s 64.

[33] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 559.

[34] Ibid, 557–558.

[35] Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans, Hafner Press, 1949) 150.

[36] ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ (The 2009 Sir Maurice Byers Address) Bar News: The Journal of the NSW Bar Association.

[37] (1896) 17.

[38] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1, 23 (McHugh and Gummow JJ). Note their Honours then stated “it would be going much further to give those values an immediate normative operation in applying the Constitution”. The concept of rule of law not rule by men can be traced to Aristotle, The Politics of Aristotle (Ernest Barker trans, Oxford University Press, 1946) 127. See further AV Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan, 8th ed, 1915) 179, 183-9; and Tom Bingham, The Rule of Law (Penguin, 2011) (who had a ‘thick’ definition of the rule of law: 67).

[39] Australian Communist Party v Commonwealth (1951) 83 CLR 1, 193 (Dixon J). See also APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 351 [30] (Gleeson CJ and Heydon J); Thomas v Mowbray (2007) 233 CLR 307, 342 [61] (Gummow and Crennan JJ); and South Australia v Totani (2010) 242 CLR 1, 42 [61].

[40] Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ).

[41] He Kaw The v The Queen (1985) 157 CLR 523, 528 (Gibbs CJ), 582 (Brennan J).

[42] See e.g. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 43–44; Coco v The Queen (1994) 179 CLR 427, 437; and Al-Kateb v Godwin (2004); 219 CLR 562, 577 [20] (Gleeson CJ).

[43] In Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44, 56–57 [26] Gleeson CJ made clear that Parliament is assumed to have intended that a statutory power be exercised fairly and in accordance with natural justice unless a contrary intention is made plain because of the statute’s prejudicial impact on a person’s rights, interests or legitimate expectations.

[44] Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51.

[45] See further James Allsop, ‘The James Spigelman Oration 2015: Values in Public Law’ (2017) 91 Australian Law Journal 118, 122–123.

[46] (2016) 257 CLR 42, 105–106 [162].

[47] (2000) 199 CLR 135, 156 [54].

[48] Ibid 157 [55].

[49] (1987) 162 CLR 514, 520–521, referred to by Gageler J in Plaintiff M68/2015 v Minister for Immigration (2016) 257 CLR 42, 101–102 [147]. 

[50] See Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 513–514 [103]–[104].

[51] See further James Allsop, ‘The James Spigelman Oration 2015: Values in Public Law’ (2017) 91 Australian Law Journal 118, 130.

[52] Commonwealth Administrative Review Committee, Parliamentary Paper No 144, 1971.

[53] See, eg, James Spigelman AC, ‘The Integrity Branch of Government’ (AIAL National Lecture Series on Administrative Law No 2, Sydney, 29 April 2004) 2.

[54] (1988) 166 CLR 79, 108.

[55] See, eg, Chief Justice Robert French, ‘Litigating in a Statutory Universe’ (Speech Delivered at the Victorian Bar Association 2nd Annual CPD Conference, The New Litigation Landscape – Challenges and Opportunities, Melbourne, 18 February 2002) 2.

[56] ‘Public Trust and Public Accountability’ (1994) 3(2) Griffith Law Review 224, 225.

[57] P Finn “A Sovereign People, a Public Trust” in P Finn (ed) Essays on Law and Government Vol.1 (Law Book Company, Sydney, 1995). See also John D Fitzgerald, ‘Equity and Public Law – Is a ‘Fiduciary: the Public Interest’ an oxymoron?’ (Paper delivered at the Administrative Law Section of the New South Wales Bar Association, 22 April 1996).

[58] Integrity in Government Project: Second Report - Abuse of Official Trust: Conflict of Interest and Related Matters (Australian National University, 1993) 3.

[59] Ibid 4.

[60] (1992) 177 CLR 1, 72.

[61] (1997) 76 FCR 151.

[62] Ibid 196–197.

[63] ‘Public Trusts, Public Fiduciaries’ (2010) 38(3) Federal Law Review 335, 336.

[64] (2016) 257 CLR 42, 93 [122] (Gageler J) cited by the majority in Hocking v Director-General of the National Archives of Australia [2020] HCA 19 at [75].

[65] 14.

[66] Gerhardy v Brown (1985) 159 CLR 70, 126–127 (Brennan J) referring to the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). See also Simone Weil, The Need for Roots (Arthur Wills trans, Routledge, 2002) 16.

[67] Committee on the Elimination of Racial Discrimination, “General Recommendation No 32 (2009): The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination”, recorded in the Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 64th sess, Supp No 18, UN Doc A/64/18 (2009), p 152.

[68] Clubb v Edwards; Preston v Avery (2019) 267 CLR 171, 196 [51].

[69] 204 [82].

[70] Australian Capital Television (1992) 177 CLR 106, 169.

[71] DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Clarendon Press, Oxford, 1986) 5.

[72] See, eg, Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, 82.

[73] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, [5].

[74] Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, 630 [3].

[75] The State of Democratic Theory (Princeton University Press, Princeton, 2003)120.

[76] World Justice Project, Rule of Law Index 2020, <>.

[77] See Attorney-General of the State of NSW v Quin (1990) 170 CLR 1, 35–36 (Brennan J).

[78] Leslie Green ‘Law and Obligations’ in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2004) 529.

[79] Democracy and Education: An Introduction to the Philosophy of Education (The Free Press, 1997) 87.

[80]P&C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366, 383.