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International Law

: Open and Shut

Chief Justice reflects: admin law has come a long way in 40 years

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In his Garran Oration 2010, Public Law and the Executive, delivered at the Institute of Public Administration Australia National Conference in Adelaide recently, NSW Chief Justice James Spigelman examined the growth and development of the law in Australia concerning the exercise of executive power. The address includes observations about the interpretation of the Commonwealth constitution, and the constitutionalisation of administrative law. The Chief Justice points to some surprising possible flow on effects to amendment of state constitutions that with hindsight might have rendered the abolition of the Queensland upper house of parliament unconstitutional. Much of the speech is devoted to the jurisprudence of judicial review of executive action and the proper role of the courts.

The Chief Justice reflects also on his first public foray into the world of government secrecy in a paper delivered to a conference in January 1972, his first book Secrecy: Political Censorship in Australia, published later that year, and the prominence it gave to the case of the late Detective Sergeant Arantz.

Arantz had leaked a research report on the incidence of crime in NSW that conflicted with the Government's public version of events, to be hounded out of the Police Force as a result of his public spiritedness, and with a politically influenced psychiatric assessment hanging over him to boot. (This post on Arantz, and the book, was written last year on the death of Basil Sweeney, the journalist who broke the story.) As the Chief Justice observes:

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, 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.