THE JAMES SPIGELMAN ORATION 2015 

Values in Public Law

1	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.
2	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.
3	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 brutality. 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.
4	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.
5	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.
6	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.
7	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.
8	Let me remind you of some expressions of principle in disputes great and small.
9	In speaking of the terms of a statute concerned with Crown employment, Gleeson CJ said:
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.
10	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:
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.
11	Speaking in the same year, Gleeson CJ said about the presumption:
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.
12	It is worth interpolating at this point that this well-known presumption 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.
13	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.
14	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:
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.
15	Central to Deane J in the construction of the provision dispensing with formal defects of the bankruptcy notice under the Bankruptcy Act 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.
16	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.  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.
17	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 Akiba reveals law as social bonds steeped in reciprocity, and consent.
18	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.  Paul Finn has argued powerfully for the place of the notions of trust and fiduciary duty in the controlling of government power.  In 1982 in Bromley Borough Council v Greater London Council  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.
19	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).
20	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.  
21	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.
22	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.
23	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.
24	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.
25	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.
26	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.
27	Aspects of these arguments were woven into the reasons of the majority. 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 J.  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.
28	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.  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. 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.
29	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.
30	The striking down by the High Court in 2009 in International Finance Trust 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 Leeth 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 rested 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 Co 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.
31	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.   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 Nicholas in which her Honour, with customary clarity and force, exposed the values to be vindicated - equality and fairness, as central to judicial power.
32	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:  
[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…

33	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.
34	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.
35	The five values that are posited find their place in the scheme of the social and commercial statute that is the Bankruptcy Act.
36	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. 
37	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.
38	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 remarked 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.” 
39	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.
40	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.
41	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 equality between creditors and fairness to bankrupts and debtors, are served. The objects of the Act are of public importance and it is of great importance to the community that the role given by the legislature to a trustee, is fulfilled only by persons who are, and who are seen to be, completely independent.
42	Such is the accountability and independence of the trustee that in determining whether to admit or reject a proof of debt a trustee acts in a quasi-judicial capacity. This description of the trustee’s function reflects a duty to exercise her or his power in a way that is dictated by rules that provide certainty to creditors, and avoids unfairness by promoting equality amongst classes of creditors, while providing an independent and authoritative point of mediation between debtor and creditor in a manner which is required to be fair.  As Gibbs CJ put it: 
bankruptcy law has long been concerned to mitigate the severity of the primitive rules which gave creditors the power to secure the imprisonment of their debtors.

43	The balance between rules and principles is of particular importance in criminal law.  In the field of operation of criminal liability, the law should be as certain as possible.  Thus, as was said in Taikato interpretive choice is between making a rule and making a value judgment, a court should prefer the rule.  When, however, one comes to sentencing, certainty gives way to equality, humanity and a regard for the individual. The importance of evaluative assessment by the court toward the reaching of just punishment that recognises the humanity of the individual has been a feature of the High Court’s jurisprudence of the last 15 years.
44	In 2001, in Wong a majority of the Court rejected the legitimacy of guideline sentencing in respect of federal crime.  The guidelines were an attempt by the judiciary to introduce a degree of consistency and predictability into the sentencing process otherwise at large.  In the minority, Gleeson CJ recognised that inconsistency (the reduction of which was the aim of the guidelines) could itself constitute a form of injustice, stressing that the apparent inequality that human discretion can produce, and that criminal justice works as a system.  That system should be systematically fair, involving reasonable consistency.  In reflecting a different emphasis on the values to which I have referred the majority rejected the utility and legitimacy of the approach of guidelines because of the “core difficulty” of the complexity of the sentencing task.  That complexity was not of mathematical or algorithmic significance; rather, it was of human significance – the necessary humanity and individuality of the sentencing task.  Thus, sentencing principles must lead to “just sentencing of offenders whose offending behaviour is every bit as diverse as is their personal history and circumstances.”
45	In 2005, in Markarian the Court again emphasised the necessary individuality and humanity of the sentencing process, rejecting a staged approach to sentencing based on a starting point of a maximum period of imprisonment for a given quantity of drugs, then adjusted up and down for individual circumstances.  The approach of the Court of Criminal Appeal would have brought about a degree of consistency based on the Parliament’s identification of different maximum sentences for different quantities of drugs involved.  Those matters of certainty gave way, however, to a rejection of the maximum penalty of the immediately less serious offence as a defined starting point.  Maximum sentences could be no more than a yardstick or a basis for comparison with the worst possible case.  The judgment involved the rejection of the rigidity of a sentencing rule in favour of the overall evaluation of the offending and the offender. This reflected an emphasis upon the humanity of the task, necessarily directed to a just sentence of the individual, in the light of the perceived general moral sense of the community.  The phrase “instinctive synthesis” was used, in particular by McHugh J, who redirected attention to the great judgment of Jordan CJ in Geddes in which the Chief Justice said that the only golden rule was that there was no golden rule, “rule” being the operative word.  
46	The emphasis of the High Court in sentencing appeals since Markarian upon the necessity to have complete regard to the individual circumstances of the human evaluation of proper punishment has seen a rejection of any form of structured approach, or any rule, whether judicial or statutory, that may affect or impede the evaluation of the individual human context of the offender, in a manner reflecting justice and equality.  That is the underlying theme variously manifested and expressed in Carroll, Hili, Muldrock, Green and Quinn, Bugmy, Kentwell, and CMB.  These cases reveal the competing considerations of principle and rule, consistency, fairness and equality as moving forces that determine how law responds to intensely human, often tragic or violent, situations.  The consistency required in the context of sentencing is not numerical consistency, but consistency of principle.
47	The place of fairness, the rejection of unfairness and of the protection of the vulnerable can also be seen as the moving values that led not only to profound expressions of applied principle in Equity in cases such as Amadio, Taylor v Johnson and Walton’s Stores v Maher and in administrative cases such as Kioa v West , and also to the development of other legal rules in the criminal law in Dietrich (as to the necessity for legal representation for trials in serious crime to be fair) and in McKinney (as to corroboration of confessional statements).
48	Administrative law is an area in which legal theory and values play vital roles. The essence of Australian administrative law is the dominant political theory that underpins Australian society: the division of government into three arms or branches in Parliament, Executive and Judicature. There is nothing inevitable about this.  It is a governmental and legal organisation of power based on secular society, and suspicion of power and those who wield it drawn in its modern form from the European, English and American political and intellectual struggles of the 17th and 18th centuries.  The grasp of that elemental tripartite framework is essential to understanding the approach by the High Court of Australia to administrative law.  The place of s 75(v) of the Constitution guaranteeing the citizen (and most influentially, the non-citizen) the right to seek review in the original jurisdiction of the highest court in the country of the exercise of power by officers of the Commonwealth is central and pervasive in the structure and content of Australian administrative law (Commonwealth and State) and the structure of Australian constitutionalism.
49	It is important to recognise, however, that this organisation of power transcends what might, in a multicultural society, be seen as a culturally specific heritage.  This is because of the nature and character of judicial power to which I have made reference.  The power cannot be made to be wielded other than fairly, equally and justly.  The preservation of its independence and its authority, so characterised, is a constitutional imperative for the guarantee of liberty.  Thus, the organisation of power and the independence of the judicial power come to be important elements in reciprocity and consent, as part of the sovereignty of the people.
50	Take the pervasive legal notion of natural justice, or procedural fairness. It has a coherent organised structure based on developed rules and precedents, but at its heart is the abiding informing principle of “fairness”.  Justices Mason and Brennan in Kioa v West disagreed as to the vehicle for the carriage of the principle.  Justice Mason viewed it as a principle of the common law affecting (unless limited or excluded by statute) the exercise of public power. Justice Brennan viewed it as a part of the statutory command, capable of being limited or excluded by Parliament, such being ascertained in the process of statutory interpretation.  The difference may be of limited practical importance, arising only when non-statutory power is being exercised. The difference is, however, important for legal theory. If immanent within the common law, it draws its source from some well of fairness as an incident of the common law. If immanent within the sovereign command of Parliament it implies a necessary character of, and, to a degree, defeasible limit on, that law-making from some well of fairness attending Parliament’s acts. 
51	What is unfair will often be a matter of debate; it will often be affected by the terms of a statute or the content of a precedent; but in essence, it is an enduring human response rooted in democratic society’s expectations of equal and fair treatment of individuals by organs of power.  Syllogistic reasoning expressed in language seeking to define an operative rule is often inadequate to express why an exercise of power is unfair.  That is sometimes a product of an infelicity or inadequacy of language.  More often, the difficulty arises from the fact that the exercise of power must be assessed in its human dimension taking into account evaluative assessment of, sometimes indefinable, characteristics and nuances of the human condition.  Put bluntly, essential in many analytical reviews of the exercise of governmental power is the partly legal and partly human response to the facts: Is this how people should be subjected to the power of the state? 
52	Let me turn to reason.  Reason, a rejection of unreasonableness, pervades the control of executive power: for example, notions of unreasonableness in the exercise of power, requirements of reasonable satisfaction of a jurisdictional fact, and broad underlying requirements of reason in assessing apprehended bias. It is implicit in the understanding of the content of the power given by Parliament to the executive that the Executive will act according to reason and not caprice, that power will be exercised reasonably.  Much of the difficulty in cases discussing related concepts such as reasonableness, illogicality and irrationality is semantic.  What is the difference between illogicality and irrationality?  By what system of reasoning are we judging?  We are all illogical at times; but in what circumstances should that vitiate the exercise of public power?  Embedded within these questions are the fundamental considerations of Parliament’s authority and the need for power authorised by Parliament to be exercised according to reason, and not arbitrarily or capriciously.  These are not tests of carelessness; they are tests by reference to which courts are authorised to deny legitimacy to an exercise of power by another arm of government.  Perfection of logicality is not always possible, perhaps not even desirable; wise human judgement can sometimes include non-reasoned elements such as trust, intuition, or other appropriate unreasoned responses as much as it can include rational analysis.  How such considerations might legitimately fall into an analysis of government power will depend on the whole legal and human context, and, very much, upon a proper appreciation of the statute in question, construed and interpreted in the light of its purposes. 
53	Part of the difficulty in the attempts by the courts to explain the limits of the concepts of reason, logicality and irrationality is their inherent relativity in a variety of human contexts, and the recognition that it is legality, not social policy, over which the courts have a legitimate constitutional monopoly.  The concepts of reason, logicality and irrationality are not part of an undergraduate logic examination for this purpose. Rather, they are part of the vocabulary of the critique of the exercise of power in relation to human conduct.  The assessment of the exercise of that power will depend upon its context, including such things as the nature of the question, the terms of the power, the character of the body exercising it, the character and nature of the subject of the power and the consequences for that person.  These considerations must be set against the critical need for unquestioned constitutional legitimacy of the courts in the field of authority exercised by the courts, which may be undermined by courts arrogating to their domain (without Parliamentary authority) questions of social policy.  Once one appreciates this multifaceted contextual approach, the limits and difficulty of articulating rules of universal or comprehensive application (such as “jurisdictional error”, “irrationality” or “unreasonableness”) become apparent.  For instance, a linear and over-simplistic requirement of sound reason and complete logicality for any executive act may become, incrementally, judicial scrutiny of public social policy.  Yet, judicial deference to unreasoned or irrational impositions of power that legitimately attract the linguistic descriptions as “arbitrary”, “capricious” and “unjust”, brings the judiciary into public disdain for its impotence.  This is so, however, only if the law has immanent within it something which demands that it has the authority to control such an abuse of power.  No one, for instance, would feel disdain for the courts in their expression of powerlessness to strike down as unjust some announced statute on welfare reform which, in the eyes of some, is unjust.  The character of that unjustness may be easily seen to be political and not concerned with judicial power. 
54	The High Court in a number of recent decisions has illuminated the application of these relative, but essential, concepts.  In Kirk, the Court, through an interpretation of Ch III and an emphasis on the Constitutional importance of the control of power by the judiciary through the conception of jurisdictional error, subjected state executive and judicial power to the same supervisory control as equivalent Commonwealth power.  It is a decision of immense importance; there is an entrenching of a guarantee of liberty and freedom in that no Commonwealth or State Parliament can remove the capacity of the High Court and State Supreme Courts (and by appeal from them, the High Court) to supervise the exercise of governmental power by reference to jurisdictional error, by the exercise of judicial power that is required to be exercised fairly, equally and justly.
55	The entrenchment of that liberty and freedom is strengthened when one appreciates the approach of the plurality to jurisdictional error.  There was a rejection of any notion of jurisdictional error being assessed as a purely logical question, as Lord Denman had done in R v Bolton; and there was an adoption of an approach (relying heavily on the work of Sawer, Wade, de Smith and particularly Jaffe) in which the expression “jurisdictional error” is to be seen as functional not as a metaphysical absolute, but as an expression of the quality or gravity of the error.  The categories of identified errors in cases such as Craig and Aala can be accepted as established; the importance of context of the exercise of the power, most particularly the statutory content and context of the power, and the character of the tribunal or repository are critical.  The Court refused to “mark the metes and bounds” of jurisdictional error.  A qualitative assessment will be made of any error to assess its importance in the context of the source (statutory or prerogative) of the authority, the nature of the decision, and, I would suggest the values which I have identified.  The court is engaged in a process of characterisation to assess whether the nature and quality of the error were such as to deny the impugned act or decision of the character of lawfulness as the proper exercise of power envisaged by the statute.
56	That this approach to jurisdictional error permits the consideration of error and its functional significance by reference to the values that I have posited can be seen in the important decision of Robertson J in SZRKT.  In that case, critical and powerful corroborating evidence was not taken into account in the decision in which the applicant was disbelieved.  In a detailed and careful analysis of the material before the tribunal (in order not to undertake so-called merits review, but in order to assess the legitimacy of the exercise of power) Robertson J concluded that the execution of the fact finding task was so deficient as to not be a lawful exercise of power, and thus the error was jurisdictional.  Following Kirk, his Honour found it to be a case specific enquiry, not one to be determined by reference to fixed formulae or categories.
57	In Li, the High Court has now explicitly and without qualification, recognised the presumption that Parliament intends an exercise of statutory power to be reasonable.  That presumption stands beside the kindred presumption as to procedural fairness or natural justice to which I have referred.  The concept of reasonableness was used by the Court in two contexts: legal unreasonableness as a conclusion after the identification of jurisdictional error, and by reference to the nature of the outcome which is outside the area of “decisional freedom” and which bears the character of arbitrary, capricious and without common-sense.  The technique of analysis in the second context can be seen to be drawn from the well-known approaches in House v The King  (“unreasonable or plainly unjust”) and cases such as Avon Downs, reasonableness being understood at least as that to which Starke J referred in Boucaut Bay Co (In liq) v Commonwealth as approved by Windeyer J in Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd: “act not…dishonestly, capriciously or arbitrarily… as long as [he or she] acts upon circumstances…giving him [or her] a rational ground for the belief entertained.”
58	The values that I have posited are influential, but not necessarily dispositive, in each case. They are part of the legal framework against which law is construed and moulded, rather than as necessarily providing the content for hard rules of law about limits of power. This makes for greater flexibility, nuance, and for the strength of the law.  The boundaries of power can be very difficult to define by a priori reasoning.  As Windeyer J once said, the concept of judicial power defies or transcends conceptual analysis.  This is why all arms of government: Parliament, the Executive and the Judicature have a responsibility not to push to the point of decision the limits of power, except where such is absolutely necessary.  For instance, the legitimate limit of a privative clause that takes the form of an extension of authority of the decision-maker is a very difficult question.  The powerful inter-governmental warning of the plurality in Plaintiff S157 reveals the necessary lack of clarity of reasoning towards the ascertainment and articulation of the linear limits of power, whilst emphasising the constitutional imperative of judicial power in review of the acts of the executive.  The approach of Gleeson CJ in the same case by way of statutory interpretation was as effective in the circumstances.  Given the lack of clarity of the boundaries of power, and the necessarily minimalist character of hard rules of constitutional law as to limits of power, the utility of such hard rules is only apparent in the extreme case.  The approach of statutory interpretation works at all levels and degrees, constantly placing legislation and the actions of the executive under the moulding pressure of the principle of legality and of civilised society, including the values and the fundamental freedoms and liberty that inhere in both.  
59	The freedoms and guarantees that lie beneath and within the Constitution and the law are drawn from centuries of the struggle of a people against unbridled or arrogant power; from a societal recognition over centuries of the equality, human worth and dignity of the individual that was initially rooted in the spiritual equality of all before God, but which has long since supported and defined the secular humanist strength of this society; as a manifestation of the last consideration, from Equity’s insistence, in its widespread and pervasive modern character, upon fairness and equality; and from the foundations of the constitutional compact being the sovereignty of the people and the rule of law. We should never disparage, or indeed underestimate, the operative importance of any of this; rather we should be alive to the active force of these values in the law.  Further, we should recognise that were we to drain these values from the drafting, interpreting and application of public law we would construct the vehicle for authoritarianism under the guise of legal command.  
60	I have not sought to draw all these strands together.  That would be a life’s work. I have sought only to identify the currency, relevance and thematic strength of the constitutional and human values that attend the exercise of power in public law in our legal system.  The last 30-35 years do seem to have been host to a legal mind more attuned to judging the effect of power on people, rather than merely assessing the act of the execution by the wielder of power.  Perhaps that is only a personal observation reflecting my time in the law; but, compare the approaches in Kioa v West (on the one hand) and Twist v Randwick Council and Salemi v Mackellar (on the other).
61	Nothing that I have said demands any change of approach; none of it is new.  It is, however, from time to time, worth trying to catch the fleeting abstractions and values that pull us in different directions, especially when we may not see or hear them over the hubbub of daily work. They are often not enunciated in judicial decisions – often for good cause.  One only has to appreciate the debate about strict legalism to understand why. Sir William Deane in Crowl v Kleinwort Benson, in the passage I read, exposed in moving, almost emotional, prose the human considerations and values attending the law of bankruptcy; likewise the protective force and clarity of the language of Gaudron J in Kable  and Nicholas.  Chief Justice Gleeson in Jarratt, Al-Kateb and Electrolux, in the passages I read, was, in terms of prose, less explicit, but equally powerful, in dealing with the same human considerations and values in three very different contexts. The essence of law and justice lives equally in rich expression and in powerful understatement. The understanding and giving expression to these values in a considered way might, to paraphrase the wonderful language of Holmes, be said to be one of the more general aspects of the law that connects our calling with the universe and which catches an echo of the infinite, a hint of the universal law.
62	Let me leave the last words to one of our greatest judges whose life in the service of Australia included decorated combat service when over 40 years of age at Tobruk, El Alamein and in New Guinea. The words display the pragmatic, sometimes raw, humanism, and the rejection of positivism, one finds in Holmes, who also saw the horrors of war (though he as a young man in the Civil War 80 years before).   In Cobiac v Liddy Sir Victor Windeyer expressed, in a short passage, the necessary humanity of the law and the hallmark of its just character.  He said the following in connection with the construction of a penal statute that might be thought to have provided for mandatory sentencing:
The whole history of criminal justice has shewn that severity of punishment begets the need for a capacity for mercy.  The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception.  Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow on conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia’s sense, should season justice.  It is that a capacity in special circumstances to avoid the rigidity of inexorable law is the very essence of justice.

63	In the early pages of his Legal History Sir Victor Windeyer said: “Law is not, in essence, a body of technical rules, uncouth formulae and inexorable commands…. It is really a simpler and grander thing.  It is that which makes it possible for men [and women] to live together in communities, to lead a peaceful, organised social life.”
64	My fear in giving this oration was that I would leave something out, which would prompt a questioner to say, in an accent that betrayed the simple outlook of a toiler in the fields – ‘But what about value X?’; and then another to say ‘But what about value Y?’  Soon, like John Cleese in The Life of Brian, collecting the answers from his revolutionary colleagues to his partly rhetorical question “But what have the Romans ever done for us?” I would have a list of 10 omitted values. In this category, I would place ‘security’ along with certainty, and ‘proportionality’ along with reasonableness. I left both out largely because of the contemporary baggage they carry. ‘Security’ could be misunderstood in the contemporary political environment. By it I mean a sense of certain belonging in the community; in that sense it can be seen as the product of all of that I have said, especially the binding by consent to, and being a part of, a just and decent society. ‘Proportionality’ likewise rises out of, and in a sense is part of, reasonableness and a lack of arbitrariness; its separate expression would hint at a different field of value judgment of legitimacy of action, and would carry ready-formed doctrine which I was not meaning to incorporate. Its operation may best emerge from the case by case application of rules and principles informed by the values I have expressed.
65	I hope what I have said is worthy of James Spigelman, one of Australia’s greatest lawyers and judges.

Sydney
27 October 2015