The beginning of a conversation – Criminal law and the broader field of Australian public law
Nicholas Petrie and Julian R Murphy provide the first post introducing our book forum on their edited collection Public Law and Criminal Law in Australia: Overlap, Intersection and Inconsistency. To see all posts, please click here.
Nicholas Petrie and Julian R Murphy
17.12.2025
The thing we most wanted to achieve in collecting a series of chapters on Australian criminal law and public law was to start a conversation, or many conversations really. We wanted to start conversations between the practitioners and academics in these two areas of law that have traditionally been practiced and studied separately. We also wanted to start a conversation between the bodies of law themselves—to draw attention to the points at which legal principles in each of these areas overlap, intersect and are in tension. We thought we had gone a good way to achieving this in the book itself, which is comprised of chapters by academics, practitioners and statutory office holders spread across the field of criminal and public law. We have since been pleased to see these conversations continue in email correspondence, in chambers and at the launch of the book by Geoffrey Nettle AC KC earlier this year. But the book forum hosted by this blog is perhaps the height of what we had hoped for, bringing together as it does practitioners and scholars thinking hard and critically about the book, each of whom significantly develops the ideas therein, while also testing them.
Chris Carr SC and Minh-Quan Nguyen are two colleagues from the Victorian Bar expert in criminal and public law. In their post they highlight the ways that the practice of criminal law is informed by public law principles, and in turn has been central to the development of those public law principles. Perhaps more importantly, they show that the intersection of these two areas of law is inescapable in practical terms because of the high-stakes contests over the regulation of state power that are involved in many sites of criminal law, providing an informative example of public interest immunity claims in criminal trials.
Professor Gabrielle Appleby reminds us that not everyone has previously neglected the links between criminal and public law. Appleby then identifies a number of distinct ways in which the book shows that criminal law is public law. However, we are most grateful for Appleby’s identification of one shortcoming in the book, and that is its focus on the idea of the criminal trial as a contest between the individual and the state, to the neglect of collective interests. Appleby emphasises that our society is not only made of up individuals and the state, but also collective groups and identifies that can be just as, or more, important to their members. We would do well to think more, Appleby suggests, about how criminal law operates on communities as communities, particularly First Nations. We agree.
Professor Malcolm Thorburn offers a welcome challenge to any oversimplification of criminal law as just another strand of public law. Thorburn contends that there are important respects in which criminal law is different to all other areas of public law. In particular, Thorburn sees the criminal law’s setting of norms as serving a fundamentally different function to the setting of similar norms by other species of law (tort, for example). While it might be said that all public law (including criminal law) is concerned with regulating the relationship between the state and the individual, criminal law—Thorburn says—does so in a unique way. Again, we agree.
Each of the contributions in this book forum confirms our belief that there is much more to be said on this topic, both in the pages of law journals (and blogs) and in courtrooms. We are grateful to AusPubLaw for providing a platform for the lively exchange of ideas in this book forum. We are especially grateful to the contributors to the forum for the considered and insightful way in which they test and develop the ideas in the book and, in doing so, do it great credit.
Dr Nicholas Petrie is a Barrister at the Victorian Bar, where much of his practice involves matters of public law.
Julian R Murphy is a Barrister at the Victorian Bar and an Honorary Fellow at Melbourne Law School.
Suggested citation: Nicholas Petrie and Julian R Murphy, ‘The beginning of a conversation—Criminal law and the broader field of Australian public law’ (17 December 2025) <https://www.auspublaw.org/blog/2025/12/the-beginning-of-a-conversation-criminal-law-and-the-broader-field-of-australian-public-law>