Governments keep getting bigger. The exercise of their powers is more far-reaching than ever before.
As powerful as government may be, there is no such thing in Australia as unlimited official power. Governments can only exercise the powers vested in them. Governments exist only to serve the public interest and the courts will hold them to the highest standards. Governments must also honour fundamental principles of justice unless they expressly legislate to the contrary.
The relentless expansion of government led to the development of administrative law, something that barely existed 50 years ago. However, a number of systemic weaknesses in public administration pose serious challenges to fundamental principles of justice. For example, subject-matter specific agencies can wear policy blinkers, potentially leading to unbalanced decision-making, over-zealous administration or capture by prominent interest groups. Further, the process-based nature of public administration provides an effective screen behind which flawed decision-making can hide.
These challenges are not always effectively countered by administrative law remedies. It is extremely difficult, absent proven legal error, to overturn administrative decisions. Arguably, our system of administrative review protects the decision-maker as much as, if not more than, the person affected by the decision. This makes it more vital than ever to ensure that regulation is applied appropriately so that fundamental requirements of justice are served.
As professionals who are usually involved, often intimately, in seeking or exercising government powers, government lawyers are essentially the first check on government power. Importantly, they are legally and ethically bound to exercise that check. A government lawyer’s duty can only be discharged by ensuring that every act of government, within their influence, is undertaken in the public interest and according to law. The duty extends beyond model litigant obligations.
As part of the executive team, government lawyers often will be privy to the underlying (and unstated) reasons for decisions, the approach of bureaucrats to matters within their remit and the practical framework in which government decisions are made. Importantly, they have a sightline to circumstances when governments may act improperly, through inadvertence, ignorance or otherwise.
There are not separate internal and external standards of proper conduct, there is one standard. Externally discoverable transgressions may be corrected by judicial review, as difficult a hurdle as that may prove for affected parties. Internally hidden transgressions, if known or obvious to government lawyers, must be corrected by them. Lawyers must ensure that the agency complies with the spirit and letter of the law and must do this even if there is no prospect that the affected citizen will ever know. As the government is bound to high standards, its lawyers are bound to ensure its compliance – to uphold the fundamental principles of the rule of law and to identify risks to them in the morass of regulation that confronts them.
The duty to the administration of justice is, of course, not a government lawyer’s only duty. However, it is their overriding duty and one upon which others in government are unlikely to focus critically or at all. Governments are entitled to robustly assert their view of the public interest and to seek advice from their lawyers about how best to comply with the law, or how to change it, to reflect their policy objectives. The lawyer’s duty to the client requires that they provide the legal assistance necessary to meet all such lawful requests. A great deal of valid legislation adversely affects fundamental rights and the rule of law requires that these legislative choices must be respected.
The rise of the administrative state has done nothing to displace fundamental principles of justice. To the contrary, the avalanche of recent appellate court decisions on principles of legality suggests that those principles are more important than ever. The protection of the rule of law from inadvertent erosion by the inexorable expansion of public power is a duty of all lawyers. In a complex regulatory environment, this difficult but important task requires vigilance.
As officers having a sightline to circumstances when governments may act improperly, and as the first check on government power, government lawyers are legally and ethically bound to exercise that check.
This article summarises a conference paper delivered to state government lawyers in June 2018. A copy of the paper, which includes examples of specific ethical issues affecting government lawyers, is available here.
Lionel Hogg, Partner