Public Law and The Executive

The Allegory of the Cave was devised by Plato in his great work The Republic. It takes the form of dialogue between Socrates and Plato's brother. The Allegory is a serviceable metaphor for the significant transformation of the public service over the last three or four decades. Socrates imagines a cave in which prisoners have been chained and held immobile since childhood. Behind them is a fire, between the fire and the prisoners is a walkway. The prisoners watch the shadows cast by persons on the walkway, but do not know that they are shadows. As far as they know the shadows are the real thing. As Socrates hypothesises, even if a prisoner were freed and saw the persons themselves, he would continue to believe that the shadows were real. If that free prisoner were let out of the cave and exposed to the sunlight, it would take some time before s/he adjusted both to the sun and to the reality which s/he was observing for the first time. There are, as Socrates observed, two kinds of bewilderment of the eyes: first, when going into the light from the cave and, secondly, when coming back into the cave from the light. In the process of fundamental reform of the public service that has occurred over recent decades, the general movement has been in the direction of freeing public servants from their caves and exposing them to the sunlight. From time to time, however, those set free have had to engage in speleological excursions to departmental caves that had been overlooked or have re-emerged. Socrates identified the dilemmas facing a person who has been enlightened and who is forced to descend again into the cave. He happened to choose, as his example, descent into the world of the law, by a person who has seen the light of true justice. Such a person's behaviour could well appear ridiculous to those who never left the cave, in circumstances which Socrates identified as follows: If, while his eyes are blinking and before he has become accustomed to the surrounding darkness, he is compelled to fight in courts of law, or in other places, about the images or the shadows of images of justice, and is endeavouring to meet the conceptions of those who have never yet seen actual justice. Socrates warned that even an enlightened person in this situation may be tempted to misbehave when faced with the obduracy of those who continue to mistake shadows for reality. Although Plato would be the last to say so, a sense of omniscience usually leads to misbehaviour. In the judiciary this form of misbehaviour is called activism. In the public service it is called strategic planning with performance indicators. * * * * * * * * My personal journey has taken me from involvement with early attempts to expose the public service to the light, via the privileges associated with appointment to head a government department – in the days when the head of the department was, accurately, characterised as a ‘permanent’ head, to determining the legality of executive conduct in the exercise of judicial power. It was in January 1972 at the annual Summer School of the Australian Institute of Political Science held in Canberra, that I first presented a paper on secrecy in government. The commentator on that occasion was then the Minister for Education and Science, Malcolm Fraser. Later that year I published my first book, entitled Secrecy: Political Censorship in Australia. The style was considerably more polemical than I adopt today. This was the earliest advocacy of Freedom of Information legislation in Australia. The process of freeing public servants from the caves in which they once dwelt has been a long one. In order to see just how far we have come, I found it instructive to look back at the opening chapter of my book. It covered the case of Detective Sergeant Phillip Arantz who, in November 1971, leaked to the Sydney Morning Herald a secret report on the incidence of crime in New South Wales. Arantz was a key member of the research branch of the Police Department, responsible for the collection of crime statistics. He noticed that the Police Commissioner's Annual Report to Parliament contained false statistics on crimes committed and on solution rates. All his attempts to correct the information internally were rebuffed. He first leaked information to parliamentarians, but their questions in parliament were ignored or evaded and the true statistics remained secret. Frustrated, Arantz gave the full report to the Herald. He was disciplined for a breach of public service rules and dismissed from the force. Even more disturbingly, his conduct was regarded, in the then police culture, as so bizarre that the Police Commissioner ordered that he undergo a psychiatric examination. It was later disclosed that the Commissioner had personally rung the psychiatrist at Prince Henry Hospital, who noted on his report: ‘Possible political expediency in bringing pressure to bear on patient's admission’. Over a decade later Arantz was exonerated, notionally reinstated in the force and given an ex gratia payment. Later, after the change in the culture of the force brought about in large measure as a result of Jim Wood's Royal Commission, he was posthumously awarded the Police Commissioner's Commendation for Outstanding Service. The most direct result of Arantz's public spirited sacrifice – which was considerable – was the establishment of the Bureau of Crime Statistics and Research. This Bureau is a regular source of independent, objective information on crime and criminal justice policy in my state. Public debate on the administration of criminal justice is enriched to a degree that other spheres of discourse should envy. The treatment that Phillip Arantz received is inconceivable today. The institutional structure has been transformed. I refer, for example, to Freedom of Information legislation, Whistleblower legislation, the Ombudsman, the Independent Commission Against Corruption (ICAC), Corruption Commissions, Integrity Commissions, Statutory Inspectorates and the enhancement, especially through Committee processes, of the efficacy of the ultimate accountability institution, the parliament. These new mechanisms for ensuring the integrity of executive decision-making, have been reinforced by statute and by development of the common law, in the form of the invigoration of administrative law. This has been, in my opinion, the most significant judicial development of the law in my legal lifetime. We now have a vigorous set of institutions, principles and practices, much of which have been conferred or extended by legislation, to reinforce the integrity of governmental activity. I wish to focus on recent developments in the jurisprudential foundation of Australian law with respect to the executive arm of government. Australian jurisprudence has long oscillated between emphasis upon a common law, evolutionary basis for legal development, on the one hand, and a positivist focus on textual analysis, both constitutional and statutory, albeit analysis informed by the common law, on the other hand. The drift of recent High Court authority is to privilege the latter. In the past lawyers debated whether the source of legitimacy of Australian governance resided in an Act of the Imperial Parliament or in the adoption of the Commonwealth Constitution by the Australian people, reinforced by the ability of the people to amend that constitution. After the Australian Acts, the former is no longer an option. The alternative to the latter is an evolutionary basis, so that legitimacy is seen to inhere in the interaction of continuity and change within our institutional arrangements over time. The latter is attractive to the common law mindset but is not, at present, the dominant approach. The contemporary public law jurisprudence of the High Court has turned away from historical continuity as the source of legal legitimacy to focus on the constitutional text. This is a matter on which the High Court has changed its approach from time to time. The present position may not be permanent, but it is the present position.1 Separate treatment of constitutional law, administrative law and statutory interpretation law remains useful in many respects. the of constitutional law, administrative law and the law of statutory the of as a In Australian three are Public law has been The of and that and the of Public law or should with the the governance than as is on the in which is are an of the of governmental power. As one has the in this on power. constitutional should not be seen to on the exercise of some constitutional are the by which political is In a of responsible of the which has for over a and a public is on the and of the people as a This and and, in so, both and by the for its All three of governmental – executive and judicial – their and their in the the most of our Commonwealth Constitution are the with which it the people have to in one on to that upon people be in a It was not the who but the people of the the of Parliament by to be by the As with and executive the Constitution judicial and, as of the to the exercise of the power. of who exercise judicial do so with a that the in the of judicial by the Commonwealth Constitution from the which that Constitution to the political of responsible government. This is a that has been over the by now the of the Commonwealth is that should be by of institutional political accountability is and by of those institutional political accountability is or The of is with contemporary High Court but this is a for determining many of judicial both constitutional and Australian constitutional law has a of judicial even more than the jurisprudence on of the Constitution on which of our Constitution was The of our jurisprudence has been but it is not to change in the This institutional is to in of the of in many as one of the has it is more to of see The exercise of judicial to and executive has The of judicial has not been it become when legislation has been on a basis not in the of the the most was the the and from case law in of constitutional as the of of political In recent the High Court has that approach. constitutional jurisprudence on the at in the first Over the last decade or two the High Court has the constitutional of a of found in the Commonwealth Constitution by them as It is the that These have been with force by a of of which parliament This not the of the when at common law a of this development see the of many constitutional is a which has just The result is the as if the of had been as constitutional the focus on the to be This jurisprudence is in the process of public law. The of this new approach on executive has been the of a constitutional foundation for Commonwealth and administrative law and a focus on the constitutional foundation of executive the Commonwealth executive to that of the This development is of for the of interaction between the judiciary and executive government. The process of of administrative law with a change of had long been called the by which the courts legality on the of the were the This was for the of that the basis of the exercise of judicial with respect to the Commonwealth and, the was to be found in of the Commonwealth which the to The of the has that the and of this of judicial now has to be in constitutional than in of the of the common law called The in which the new principles were of attempts to the of the Court to administrative in The constitutional of the High Court could not be an see The High Court has that is a of judicial which is in the by parliament to this of judicial would be as upon the of the as upon the of the The of to administrative conduct from was The in this process was taken this in a of the High Court which that the Court of a were a constitutional with a parliament not have the to the of a Court in a that it to meet the constitutional The High Court held by force of the Commonwealth is an of judicial to of the as the High Court found to with respect to Commonwealth to authority in with recent High Court was than could not which away the of There may between the and of judicial at Commonwealth and but the fundamental principles are the The in the Commonwealth Constitution to the constitutional and to Court of the the High Court has for the of law as an the of the In the after about the of administrative law as then the Commonwealth an administrative law the of the the and the of the Act This was as significant at the time, it the and of the common law. development in the common law of other and to a degree that in this as is so the legal development in the form of statutory the law for example, The of a constitutional basis for judicial of administrative has to to fundamental The of administrative law, both and is now This is a much for example, It may be to the of as a of a than as an ex it is a that is now at the of Australian administrative law In my an focus on the integrity and legality of executive it to as a on judicial in executive but for it to do so of the constitutional upon the exercise of judicial power. The most now of the of Australian administrative law is the of when his The and of the to administrative do not the and of the law which the and the exercise of the power. If, in so the administrative or so be but the has no to administrative or The of administrative to the to which they be from are for the of the and, to political for the the Court on the legality of administrative in our is from the of administrative There I much for of as to which of the conduct to a degree which is not in the development of the administrative law of other common law and Australian law has to a this has been to has been called Australian in the of judicial was not as a The development of Australian law a significant in judicial with in other common law the of Australian have a degree of to they not the The occurred in the This is the that has now been, in by the of a constitutional foundation for judicial The of now to the the kinds of which would to judicial to have been There was a of as The that this was as was of the for a and more in the constitutional jurisprudence has now as an result is that the of set be as We now in a position we have a general of New of be to the This on a case by case basis its constitutional be as a common law This has now been in the development of a new for judicial characterised as or on the of the The most recent of the High Court in this respect that two have been in this This may be by the High Court in a case on which it is This new of a real of the judiciary as a matter of into the of when the result is to the would have It may on considerable and for a to from that a or on the of the executive As and once who with process of on an of may by the as or or even that no person should adopt If are of that the is then they may have no legal I not in the judiciary when I that the to the of judicial power. The constitutional of the of is a one of its most is on the There is for debate about the of our present of which of legal the of a is a fundamental between which are to the exercise of judicial and the which be to the of political The that it is the judiciary which is an exercise of judicial a significant of on I that have been the was not It is an of the of courts to the of judicial I in the to the development of the case law on the new The of in the case of statutory the of the full of the and of the law of statutory is how courts a has authority to and how s/he is to about the the process of statutory interpretation be to whether the conduct of is of that parliament be taken to have that the was The law of statutory interpretation is now at the of administrative law. not executive conduct is statute The exercise of we have called is as a result of legal development some three to judicial to principles of process now be as constitutional interpretation to a significant is to the of statutory It however, in one a the law of statutory but not constitutional be by parliament. the of the executive has been to statute or to the of the it now that the of the is not of the executive of the which be and to of the The of the be as has been in for the of The in the Court from the the The by then of the the that the conferred by was the of the The an of from when he was a of the In the the executive was found to have a to or the of to of whether was a common law in this The in the of the to the of the of The of the executive to to head of was extended to circumstances or as by the The of the executive of the Commonwealth to have been free from the of in a which that is now no source of as to the of executive power. The of the of the executive of the Commonwealth on a case by case basis, albeit with to the of the This new focus to a change of In the as the have been with so be by the of In of our legal this is a In a was and a was to the of the and to the of parliament. the executive no longer to It is to two judicial once it is and a for the Court to the In the of and common law its it is not a in a constitutional It is not to statutory and the The of executive is not by for example, the and of executive now on a process of constitutional than historical In this respect the fundamental the the of law and responsible government – be of in the law of statutory interpretation may to a of an of Commonwealth executive has been in a recent the first time, as far as I it has been that the in Royal as was by the Commonwealth as has long been in Australian legislation, by the in the of the The in that case noted that the between the Commonwealth and the of the is not that the by the executive were those the of by the We have not the last of this which to be on the of is the structure of This by of the of and of the Commonwealth Constitution in the of in with Constitution and the of the parliament of state. As I have out on a occasion the time when the people of New South and, I the people of other to adopt their Constitution was when the people of the – other than in South and – in of the adoption of the Constitution of the It was that Constitution by gave to the Constitution of that and the former into In this it is to that were in that great of Australian constitutional and The identified the in which the in the and people of the had been between the and the and on to that by force of of the It may be that the of the are into the new and should be as if they form or of the new The of the of and may be as one by and in the a in which the new are with the a of government a structure and From time to time of the High Court have to the in which the as their to the Commonwealth in this be the development of the jurisprudence of the High as the of a Court of a is found to have which be changed and are, by the Commonwealth so the in that Constitution to the of the be found to have which be by the of the by the people of the in a It however, be to force to its The Constitution of within is a constitutional this constitutional may not be to the Act entitled Constitution of state. In my opinion, it to other fundamental the of and may be found to have force by of the Commonwealth The Commonwealth Constitution that be may be to the executive of the is a constitutional by of to the and to the It is by no are the of executive so but it is that the of responsible government are them if I be a even the principles of the of law and of responsible government may now be in by force of the Commonwealth one example, it may not be for one to adopt a form of government. of for however, for to the the three spheres of of public law to the exercise of executive which I have the of the principles of statutory and constitutional interpretation by the This the authority for the of determining the of the constitutional and determining the of executive both and state. The of statutory and constitutional interpretation to the of courts for the of courts as of in my some on the of to the law of statutory This is reinforced by the constitutional that the of their as a constitutional I not that of the on principles in this There however, some to the of I to a that I have the on the exercise of judicial power. As a constitutional respect the of judicial in the of the in which they be It is to a on other by from the of and principles of interpretation those which the of the is a of the judicial As many by the of positivist is a between and interpretation the legal of the the of The contemporary of his them of He The of interpretation is to the which the to to the with which the the or the sense which he to the the is for interpretation is judicial in and so long as the of the of the in the are be no as to the and of the to to a and be had to the and of the or to the of the the between a of the of the law, and the over of the law the of more both are of are not for the of new law. are of at the real of the of law. The former of interpretation to out the by his in the in which he and endeavouring to from the he had to meet and the by which he to meet his with respect to the in The if the former to light, to the of the the other hand, the of interpretation is to or and not to It a into the as a or not, into a to be with an of It is a not a judicial on to The of as in a may be to be it to law into that it the courts to political that it the personal into judicial In the first in a interpretation of and especially of to law into is no longer the it was This is an and a of It is no longer to upon the public by legislation with the of The is and and result in or a that courts and the law at in a questions of and are so to the the that courts or may a of interpretation the courts to political pressure which but the general administration of interpretation the personal into the administration of justice. The of law is to of this judicial and may be for a time, is more to the public and more in the to if not for the law. The of interpretation no longer The of the of the of the legal is and it has not occurred I is I have them at about judicial in executive and analysis its in this The is one of called judicial As his is held on It is an the of which are in the of a or and the of the judicial which judicial legitimacy is not or it is is the of the law of person in a and it is the of the is entitled to of I have no that the Australian judiciary the of the exercise of judicial power. In as in of institutional is for of approach. I that are real which they are to

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• Foundations of Public Law

  Martin Loughlin•Foundations of Public Law•2010

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