THE JAMES SPIGELMAN ORATION 20151
Values in Public Law
I am appreciative of the great honour the New South Wales Bar has given me by the request to deliver this public lecture. I had the privilege to work closely with James Spigelman on the Supreme Court. Many of the ideas that I wish to discuss come from consideration of what he has said and written. I will always be in his debt.
I will not add to the volume of discussion on Magna Carta as we come to the closing months of its 800th anniversary. But the values about which I wish to speak inhere in the fabric of our law and have done for centuries. This is not best understood by the process of tracing the course of the words of charters and bills of rights, or the course of precedent or by comparing the terms of statutes of different eras, alone. It is to be understood, first, by recognising that public law is concerned with power, state power: its organisation, distribution, exercise and control; and secondly, by identifying the public values that inhere in those complex relationships of organisation, distribution, exercise and control. It is this identification of the values that assists in understanding the features of our legal system that are timeless.
Power, and its control, is not only the domain of public law; private law sees the control of power, and the protection of the vulnerable as central themes. This is reason for questioning any strictness, or clarity of division, in the public/private taxonomy. Power is power, it might be said. Yet there is something super-added, something meaningful, sometimes something menacing in the presence of state authority. By way of example only, this can be seen in the distinction between torture and private brutality2. In the former, a special repugnance to the brutality (worthy of raising the status of the law prohibiting it towards a ius cogens) is brought by its infliction in the name of a polity, a political system, a people. The distinction between public and private law is real, if not linear in its boundaries, if not logical in its form and content, if not always consistent in its application. For these reasons, the distinction is worth making.
In the first of four outstanding lectures delivered at Wabash College in the 1930s dealing with the development of constitutional guarantees of liberty Roscoe Pound referred to the:
fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust relations and order conduct, and so are able to apply the force of that society to individuals. Liberty under law implies a systematic and orderly application of that force so that it is uniform, equal, and predictable, and proceeds from reason and upon understood grounds rather than from caprice or impulse or without full and fair hearing of all affected and understanding of the facts on which official action is taken.3
This expression of the matter raises a number of considerations that inform all aspects of public law: the reasonable expectations of women and men in their lives, the notion of a civilised society, meaning a just civil society in which there is a shared and expected reciprocity, and freedom from the exercise of arbitrary and unreasonable power. These have within them the values to which I will come.
The phrase “public law” should be further commented upon. I do not propose to restrict what I say to constitutional and administrative law and the law concerned with the organisation of legislative and executive power. Public law, if it is to be a meaningful conception for the discussion of public values, encompasses, at its heart, criminal law – as the epitome of public power, underpinned as it is by the potential for raw, state-sanctioned force. Public law also encompasses various areas or subjects in which the society as a whole has an interest and where a form of state power is exercised. Perhaps the best example of this is the law of insolvency, in particular, personal bankruptcy.
In each of these four areas, power is distributed, exercised and controlled primarily by reference to text – constitutional and statutory. Those texts are to be read and understood by reference to the organised values that surround them, and to the purposes and aims of the texts in the social and political milieu of their creation.
Let me remind you of some expressions of principle in disputes great and small.
In speaking of the terms of a statute concerned with Crown employment, Gleeson CJ said:4
Where Parliament confers a statutory power to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, Parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of Parliament's assumed respect for justice.
The same judge, speaking of a statute that was said to confer a power of indefinite detention, spoke in the same controlled powerful prose of the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words. This was not a factual prediction to be the subject of evidence, but:5
in a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
Speaking in the same year, Gleeson CJ said about the presumption:6
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
It is worth interpolating at this point that this well-known presumption7 should not be seen as a barrier to the nuanced relationship between statute and common law and the ability of one to affect the other. The importance of context and of the evaluation of the fundamental character of the rights in question must be recognised.8
These extracts reflect a complete recognition of the values of fairness, reasonableness and justice in the framing of legal rules and in the exercise of power in a free society, and in the recognition that these values inhere because the subject is about how power affects people – their rights, interests and expectations.
In looking at how these very same considerations inform how the law of bankruptcy should be understood, Deane J, in prose of understated, but immense power, said the following in discussing the need for strictness in the rules attending the making of a person bankrupt:9
It is true that the strictness of the above rules leaves open the possibility of abuse by unscrupulous debtors. That is, however, an unavoidable concomitant of the protection of ordinary people faced with the threat of being made bankrupt. 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.
Central to Deane J in the construction of the provision dispensing with formal defects of the bankruptcy notice under the Bankruptcy Act10 was the recognition of the effect of this penal state power on people and of their humanity. He knew that bankruptcy, like prison, can crush the lives of ordinary people.
Central to the administration and execution of the criminal law is fairness and equality. The essential requirement of a fair trial in all its manifestations ultimately reduces to contemporary evaluation of the human engagement under rules at the trial. At its root is the value of fairness, or a lack of unfairness, sufficient to enable the exercise of the power to be characterised as lawful. The essential requirement of equality inheres in the fabric of the law and justice.11 It is an aspect of fairness. Unequal justice is an oxymoron; it is no part of the exercise of judicial power to mete out inequality and unfairness.
A little more should be said at this point about power and law. It is a mistake to view law and legitimate power as based on command alone. Law is comprised not only of command from a legitimate source, but it is also the expression and recognition of natural human and societal bonds of conduct. Ultimately, a legal system, to be just and to work effectively, must be derived from the consent or acceptance of the governed. By consent, I do not mean the individual willingness in each case to accept the particular exercise of power, rather I mean the underlying acceptance of the legitimacy of the organs and mode of the exercise of societal authority. This may involve, but does not require, central command; it rests, ultimately, upon reciprocal acceptance and shared values. An examination of the lucid analysis by Finn J of the laws and customs of the Torres Strait Islander peoples in Akiba12 reveals law as social bonds steeped in reciprocity, and consent.
But power is real. It and its exercise are often based on compulsion, and may be of such a character as to change the lives and fortunes of those subject to it, for the worse. Governmental power is given to those in different branches of government by the operation of an organised political process, being our system of national and state responsible and representative government, resting on the sovereignty of the Australian people, most recently recognised by a majority of the High Court in the Unions NSW Case.13 Paul Finn has argued powerfully for the place of the notions of trust and fiduciary duty in the controlling of government power. 14 In 1982 in Bromley Borough Council v Greater London Council 15 the fiduciary principle was crucial to the House of Lords’ resolution of a problem of statutory interpretation and abuse of power in the context of the delimitation of power of a public authority. Whilst those notions have not found expression in Australian legal rules, they provide a powerful informing norm consonant with, and giving a human sense to, the broader political and legal conception of the sovereignty of the people, which of itself does not direct one to values, but to the vehicle or mechanism for their transmission.
An organised political system with a foundation of the sovereignty of the governed provides the constitutional framework in which to view power as reciprocal, consensual and as serving the people. It also provides the framework for the values of the governed, of the people, to inform how governmental power is wielded (on their behalf).
Let us, in that context, examine then the values that inform the understanding and exercise of public law. Drawing together the above general remarks, at least five values or groups of values can be posited. They are not meant to be crisp in definition. I would begin with a value or feature that may be seen as prosaic, but it is the product of other features, and is essential to any system of government or organisation of power: reasonable certainty, so power can be understood, known and exercised, and branches of government take responsibility for its exercise, in a workably efficient and fair way. Secondly: honesty and fidelity to the Constitution, and to the freedoms and free society that it assumes, reflecting the constant of a principle of legality. Thirdly: a rejection of unfairness, unreasonableness and arbitrariness. Fourthly: equality. Fifthly: humanity, and the dignity and autonomy of the individual, as the recognition of, and respect for, the reciprocal human context of the exercise of power and the necessary humanity of the process; in many contexts this translates as the recognition of mercy. These should not be seen as a list of separate conceptions. They all inter-relate. Uncertainty of rule or outcome and inequality in inconsistencies of the exercise of power are aspects of unfairness or arbitrariness. The necessary humanity required in the exercise of power reflects a rejection of unfairness, and a need to have a perspective in examining the exercise of power of that of the subject, and not just from that of the wielder, of the power. Not all values will dominate any particular question. Some give way to others in a given circumstance. None derogates from, indeed all in the long term enhance, the primary necessary functions of government, beginning and ending with the protection of the community.
Power is not only to be appreciated or understood by debates about who is to wield it: Parliament, Minister, civil servant, judge or private individual, or about who has the last say in approving (or not) how power has been wielded; it is about people – how people should be treated in the exercise of power in a just and decent society. This is not about being nice. Rather, it is about how those who are the subject of the exercise of power in a free democracy, should be entitled to expect that the lawful exercise of power involves attributes or characteristics that recognise and reinforce human dignity and decency, and that reflect the high trust that society has placed in those with public power to exercise it lawfully and for the common good.
Once one understands public law as power, the embedded political and legal theories in law become more apparent. Power is not linear; it is not always structured and exercised in an ordered way. It can be amorphous, and can only be understood and controlled effectively by organising the values that attend it, by legal method. This method will express itself at the point of the formulation of principle at a high level, and in mundane day-to-day decision-making. The fairness of a process is not only to be judged by analysis of the formal considerations for its exercise set by principle, but also by the daily impact upon, and reasonable perception of fairness by, those the subject of the exercise of the power.
One aspect of the consideration of the place of values in public law is the need for balance between norm, principle and rule. These are not clearly identifiable separate vehicles, but expressions along a gradation of particularity. The proper balance of values and norms in the fabric of the law and in the creation of certainty in the law must recognise the requirement that principle and rule conform to moral standards as the gauge of the law’s flexibility and as its avenue for growth and to accommodate changes in values in society, without the need to change rules. Conceptions of legal responsibility and what is right and just to be vindicated by law change over time and with changes in society.
I do not presume to lay out a comprehensive or original jurisprudential scheme. I only wish to recollect the threads that bind our legal system - the values and principles that underlie it, and the nature and central place of our political system that is founded on the sovereignty of the Australian people and on the reciprocity and consent there embedded and required. Australia’s lack of a comprehensive schematic code of human rights expressed in language of the second half of the 20th century should not blind one to the strength of influence of the values that feed and support a free society in which legal rule is always encased in principle based on values, and to the fact that this is part of our legal tradition.
Let us examine a number of cases, of great and small political and legal importance, in order to discern the abiding presence, in different contexts, of the values which I have posited, and the political and legal theory assumed in their expression.
Mr Kable had been convicted of a violent crime: the manslaughter of his wife. As he approached the end of his sentence, he sent letters from prison to individuals that caused it to be thought that, upon release, he might well commit further violent crimes against those individuals. An Act of the New South Wales Parliament was passed that provided for the continued detention of Mr Kable by order of the Supreme Court upon satisfaction of certain conditions (not being conviction of any crime). The argument of Sir Maurice Byers on Mr Kable’s behalf reached to the very foundations of civil society: the statute was not a law, but rather, in substance, an order to the Court to imprison Mr Kable; the NSW Constitution assumed the rule of law as a constitutional imperative, the continuation of which was a working assumption of the Australian Constitution; the statute was inconsistent with a basal element of representative parliamentary democracy thus founded on the rule of law, by its call for imprisonment otherwise than pursuant to conviction for an offence; and the undermining of State courts making them unfit for the investiture of federal jurisdiction.
Aspects of these arguments were woven into the reasons of the majority16. A critical feature of all the judgments of the majority was the centrality of Ch III of the Constitution. Let me refer to some features of the strongly-worded reasons of Gaudron J17. Her starting point was the constitutional structure of an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. In such, there was a constitutional demand for an equality of justice in federal and state courts. This required that no State Parliament could confer a power upon a State court repugnant to, or incompatible with, its exercise of the judicial power of the Commonwealth.
This approach can be seen as protective of a political theory of organised government built on division of power between Parliament, the Executive and the Judiciary. That theory, most immediately traceable to the 17th and 18th centuries, has its origins in Western European political and legal theory and organisation from the 11th and 12th centuries.18 But Gaudron J, and the other justices in the majority, were concerned with far more than the question of the structure of government and distribution of power. This was not some governmental demarcation dispute or “turf war”. The Court was concerned with the freedoms and liberty upon which our system of government is founded. The Judicature is vested with a form of power distinct and different from executive and legislative power. The power is based on pre-existing law (though part of the Judicature’s task is the law’s health and direction), and as part of its essential fabric, the execution of judicial power is constitutionally required to be fair, equal and just. This is not rhetoric. These features are part of the defining character of the power. They are features that reach back to the rejection of inequality of status as the foundation of the Ancient World by the placement of one man or woman’s soul (however lowly she or he were born) as the spiritual equal of the soul of a king.19 The forging of the place of the individual and the recognition of her or his human dignity lie at the root of our conceptions of fairness and equality. They are the features that engender the consent, trust and respect of society in the administration of justice in its daily contact with people, often in circumstances that can be productive of distress, a sense of abject failure and crushing humiliation. These considerations pervade the judgments in Kable.
The prohibition upon the Parliament conferring incompatible functions on courts, protects courts, as the vehicles for judicial power, from any suggestion that they wield power (often in circumstances of the above kind) other than fairly, equally and justly. This creates and protects a constitutional guarantee of liberty (that is perceptible to all) that the power of the state will be judged fairly, equally and justly by the institution recognised by federal and state constitutions to undertake that task: the Judicature. This is why Kable is of enduring importance.
The striking down by the High Court in 2009 in International Finance Trust20 of s 10 of the Criminal Assets Recovery Act 1990 (NSW) reveals the strength of the judicial power’s roots in fairness, equality and human dignity. There were three judgments in the majority (French CJ, Gummow and Bell JJ, and Heydon J). The provision in question required the Supreme Court to make an ex parte order freezing assets of the person if it was satisfied that there was a reasonable basis for a suspicion that the assets were derived from serious criminal activity. There was no provision for a later inter partes discharge of the order, except at a final hearing for forfeiture, at which hearing the onus of proof was reversed. French CJ stated in unequivocal terms that procedural fairness or natural justice was at the heart of judicial power, as an incident of judicial power. He was not just referring to federal judicial power, but to all judicial power contemplated by Ch III. In so stating, French CJ referred to the passage in the judgment of Mason CJ, Dawson and McHugh JJ in Leeth21 where their Honours noted what the Privy Council observed in the Boilermaker’s Case – “a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers.” The separateness of judicial power is part of the guarantee of fairness and equality. Gummow and Bell JJ rested22 the same conclusion upon what the Chief Justice and five justices (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) had said in Bass v Permanent Trustee Co23 as to the content of judicial power: the application of the law to the facts as found in proceedings in which the parties are given an opportunity to present and challenge evidence.
Sometimes, how one states a proposition adds to its enduring force by insinuating deep understanding. In this way, language itself can be seen to be a source of law. The expression of the matter in Bass to which Gummow and Bell JJ referred was founded on a number of High Court decisions. 24 This was not the first time that it had been so expressed. But, sometimes the prosaic or workmanlike language in which the fundamental principle is expressed does not fully expose the values that are being vindicated. One expression of the matter specifically cited by the Chief Justice and five justices in Bass was Gaudron J in Nicholas25 in which her Honour, with customary clarity and force, exposed the values to be vindicated - equality and fairness, as central to judicial power.
The fourth justice in the plurality in International Finance Trust, Heydon J, articulated a foundational value of procedural fairness as respect for human dignity, individuality and political liberty, quoting the English philosopher John Lucas in The Principles of Politics: 26
[S]ince men can talk, they should be allowed to, and not just bundled about like chessmen….
[W]e owe it to a man as a human being to engage in argument with him, and allow him to engage in argument with us, rather than take decisions about him behind his back, completely disregarding, as it were, his status as a rational agent, able to appreciate the rationale of our decisions about him, possibly willing to co-operate in carrying them out…
Each man ought himself to have some say of his own in his own future, and…each man ought to count, to count as being himself, and not merely as one instance among many of the human species…
These passages in Nicholas, Bass, Kable and International Finance Trust are not just the collection of fine rhetorical phrases. They express the nature of judicial power and the values that protect the power’s efficacy and in so doing protect us from abuse of power.
Let me move away from the turning of the power of Parliament on to the person of the anathematised individual, to the daily events of sequestration, change of status, and often-felt denunciation of bankruptcy.
The five values that are posited find their place in the scheme of the social and commercial statute that is the Bankruptcy Act.
Deane J, in the passage quoted earlier identified the very real, human, side of bankruptcy. Whilst Dickensian images of squalid and unjust debtors’ prisons such as Marshalsea and the Prison of the Fleet are no longer a reality, public law continues to grapple with how best to provide reasonable certainty and equality for creditors and yet at the same time protect the bankrupt from the inherent vulnerability that comes with her or his impoverishment.
Three overarching objects of modern Australian bankruptcy law seek to reconcile these, at times competing, considerations: first, the provision of a fair, equal and orderly system to regulate the treatment of a debtor’s assets and their distribution between creditors, thereby promoting reasonable certainty for all with a financial interest in the bankrupt estate; secondly, the prevention of fraud upon creditors; and thirdly, as far as possible, the treatment of the bankrupt with humanity and dignity, by preferring rehabilitation of a bankrupt to her or his punishment.
The first of these objects, that of a fair, equal and orderly system, is not one unique to the law of bankruptcy. It is an ideal that is found in all areas of the law. At its heart is a societal need to minimise the distress, uncertainty and confusion of parties affected by the law by, as far as possible, making the law and its application as predictable as possible. As Sir Frederick Pollock remarked27 in his text on jurisprudence, “[the] normal and necessary marks, in a civilized commonwealth, of justice administered according to law [are] generality, equality and certainty.”
In the context of criminal law Brennan CJ, Toohey, McHugh and Gummow JJ said the following:
The operation of the criminal law should be as certain as possible. If the interpretative choice is between making a value judgment and applying a rule, a court exercising criminal jurisdiction should prefer the rule.28
That principle is equally relevant to bankruptcy law, which involves the exercise of coercive powers ratified by the state for societal harmony. By preferring rules to value judgments in bankruptcy law where possible, the judiciary exercises its power in a way that is predictable and understandable thereby continuing to foster the consent, trust and respect of society in its operation. The natural relationship between debt and commerce requires it to be so. A system which fails to offer reasonable certainty in dealing with the property of a bankrupt fails its citizens by not providing them with the necessary confidence to borrow and lend and thereby conduct business.
Reasonable certainty is needed to provide creditors the confidence that the estate will be dealt with equally without the need for creditors themselves to engage in litigation to protect their interest. Essential to the administration of bankruptcy therefore is the requirement for an accountable process in the hands of an independent person who consolidates a bankrupt’s estate, pays out creditors equally and treats the bankrupt with humanity. That role is fulfilled by the trustee of the bankrupt’s estate. Here the values of public law intersect with equitable principles to ensure that where power is wielded over a citizen by another at law such power is regulated by and subject to the constitutional check of judicial power. As an experienced bankruptcy judge said:
a trustee plays a central role in the administration of estates under the Act and is under a general duty to exercise the powers committed to him in such a fashion that the objects of the Act, including those of
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