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Marshall, Hugh --- "Editorial: Public law, private lives" [2016] PrecedentAULA 56; (2016) 136 Precedent 2


PUBLIC LAW, PRIVATE LIVES

By Hugh Marshall SC

In his seminal work, Dicey states that the concept whereby governments are to be held accountable according to the principles of ‘ordinary law’, was an inviolable one, with notable exceptions.[1] The constitutional intent of a ‘level playing field’ for citizens and government alike was laudable but, as Gleeson CJ later observed: ‘...that perfect equality is not attainable ... [Limits] arise from the nature and responsibilities of government.’[2]

This edition of Precedent examines how public law can intrude into our private rights, and how the government promotes inhibiting legislation and sometimes stifles criticism by withdrawing funding or criminalising dissent. As an antidote, there are still avenues available for redressing the excesses of, or misapplication of, public law through administrative or judicial review.

Grant Watson considers recent developments in tort law relating to the liability of public authorities for their exercise of, or failure to exercise, statutory duties, functions and powers in the context of the various civil liability acts. The unanimous decision of the High Court in Hunter & New England Local Health District v McKenna[3] concluded that the powers, duties and responsibilities of medical authorities relating to the involuntary admission of mentally ill persons under mental health legislation were incompatible with a common law duty of care. Other decisions seem to be broadening the reach of s43A, almost to the extent of creating a statutory immunity.[4] Watson warns of the growing influence of public law concepts in private law actions, displacing the common law concept of reasonable care by the eponymous administrative law concept of ‘Wednesbury unreasonableness’.[5]

Diana Young and Nadja Zimmermann consider the application of procedural fairness in administrative decision-making. Contrary to some expectations, the obligation to provide a fair hearing does not automatically arise. Indeed, the practicalities involving notions of fairness vary according to circumstances and the statute concerned. They consider the rules of procedural fairness, and specific remedies available.

Sian Leatham considers the inter-relationship between the common law and the provisions of the Administrative Appeals Tribunal Act 1975 concerning legal professional privilege, the use of documents for collateral purpose and public interest immunity. Practitioners must be alert to issues involving this interaction of public and private law, particularly concerning the production of documentation.

Ashley Matthews reviews the roughshod treatment of whistleblowers in the financial services industry, concluding that the ineptitude of the various regulators charged with oversight of these financial institutions demands that a Royal Commission be established.

In similar vein, Anna Talbot considers the unconsulted victims in the criminal justice system when prosecuting authorities decide not to institute proceedings against alleged perpetrators. Citing the case of Scott Volkers and the ‘flawed’ decision-making process not to prosecute, she advocates a review process similar to that in the UK.

Peter Timmins reflects upon a Yes Minister approach involving secrecy disclosure by government and the failure to adequately protect whistleblowers. The unacted upon recommendations date back more than 25 years.

Emily Howie develops this theme by examining how recent legislation inhibiting peaceful protest breaches Australia’s international human rights obligations. Given the reduction in funding for community organisations that have criticised the government, she argues that the basic rights of ordinary Australians are vulnerable unless protected by human rights legislation.

Eliza Ginnivan illustrates how adverse costs orders made against public interest litigants effectively inhibit the process of redressing social inequities.

Greg Geason, the Chairman of the Tasmanian Resource Management & Planning Appeal Tribunal, describes how his tribunal functions. If all tribunals operated this efficiently, there would be little need for a review process. However, should there be such a need, Mark Robinson SC provides a comprehensive analysis of what can be done and what is required to do it.

Finally, Phillipa Alexander notes that the Court of Appeal in State of New South Wales v Avery[6] has determined that prejudgment interest should not be excluded in determining whether legal costs are subject to the cost-capping provisions.

Hugh Marshall SC is a barrister at Jack Shand Chambers, Sydney. PHONE: 02 92337711. EMAIL: marshall@jackshand.com.au.


[1] Dicey, Introduction to the Study of the Law of the Constitution, 10th edition, 1959, p193.

[2] Gleeson CJ, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, 556.

[3] [2014] HCA 44; (2014) 253 CLR 270.

[4] See Bathurst CJ in Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 88 NSWLR 10, 14.

[5] Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1KB 223.

[6] (2016) NSWCA 147.


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