Chris Carr SC and Minh-Quan Nguyen

Public Law and Criminal Law in Australia deals with overlaps and intersections, in more ways than one.  For one thing, the volume methodically interrogates the relationship between the fields of ‘public law’ and ‘criminal law’, highlighting the connections and commonalities (and some tensions) between them.  For another thing, the volume sits at the intersection of scholarship and practice, as reflected in the varied backgrounds of its editors and contributors.

We wish to focus on two contributions that the volume makes to the understanding of criminal law and public law.  First, it provides a theoretical treatment, and practical illustrations, of how criminal law forms part of Australian public law.  Second, it highlights that criminal law serves as an important theatre for ongoing debates about public law doctrine and the development of that wider body of law.  In both respects, it is of real practical significance to those who practise in these fields.

Gabrielle Appleby

Nicholas Petrie and Julian R Murphy’s recently released edited collection, Public Law and Criminal Law in Australia: Overlap, Intersection and Inconsistency (Federation Press, 2025) invites us to consider the relationship between ‘public law’ and ‘criminal law’—whether that is in terms of overlap, intersection or inconsistency. In doing so, the volume both provides important consideration of these issues in the Australian context, as well as lays an excellent foundation for a rich vein of future scholarship.

Nicholas Petrie and Julian R Murphy

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.

Yee-Fui Ng

I am deeply grateful to Frank Pasquale, Anna Huggins, and Alexandra Sinclair for their insightful comments on my book. It is such a pleasure to have such deep engagement and interaction with my work.

My decision to write this book stemmed from the large-scale scandals and controversies arising from automated decision-making that erupted in democracies such as Australia, the United States (US) and the United Kingdom (UK), which have harmed hundreds of thousands of people. The echoes of Robodebt in Australia, the MiDAS automated system in Michigan, and the UK Post Office Scandal reverberate until today, and prompted me to question: how did things go so wrong in these advanced liberal democracies with their sophisticated checks and balances?

Alexandra Sinclair

New technologies always lay bare the ambiguities present within existing frameworks of legal regulation. The use of artificial intelligence (AI) and automation in public-sector decision-making is no different. Automation in the administrative state has amplified the already contradictory and ambiguous aspects of administrative procedure. Does administrative decision-making necessitate a process of human cognition; are consultation obligations able to be met through AI simulation of public opinion; to what extent must courts exercise deference in evaluating the predictive assessments of AI models; and can the source code and training data of machine learning models satisfy the requirements of reason-giving are a few of the novel questions public sector automated decision-making raises.

Frank Pasquale

In her Combatting the Code: Regulating Automated Government Decision-Making in Comparative Context, Yee-Fui Ng examines many instances of predictive AI use that raise serious concerns about potential inaccuracy, discrimination, or alienation. Her penultimate chapter, ‘Towards a Framework for Technological Governance’, provides important methods for addressing these problems. The book also articulates normative foundations for a positive ideal of legal decision-making that is enhanced—not replaced by—AI.

This post, an appreciative response to the book, will focus on the reasons given for decisions, particularly given the rise of chatbots that can simulate reasoning processes. My main contention is that the principles animating Combatting the Code should not only lead us to demand reasons for automated decision-making, but in many cases should also require human reasoners to articulate such rationales in response to arguments posed by applicants and litigants.

Anna Huggins

Associate Professor Yee-Fui Ng’s new book, Combatting the Code, makes an important and timely contribution to debates about regulating automated government decision-making. Her in-depth comparative analysis of grounds of legal challenge for automated government decision-making across four dimensions (judicial review for rationality, anti-discrimination, public sector privacy and data protection, and freedom of information) in the United States (US), United Kingdom (UK), and Australia is an impressive feat. She also proposes a new framework for technological governance that moves beyond a focus on external legal and political accountability measures by foregrounding the importance of internal managerial controls for automated systems within government agencies.

Benjamin B Saunders

I am grateful to Professor James Stellios and Leslie Gonye for their interaction with my book – from two very different perspectives.

The book is an expansion and development of my PhD research, which was a historical examination of the views of the framers of the Constitution regarding responsible government, completed in 2017. At the time, Professor Stellios encouraged me to develop further some aspects of my work, including giving further examination to the concepts of ‘popular sovereignty’ and the ‘sovereignty’ of the people, and also reflecting further on the doctrinal implications of my thesis.

Leslie Gonye

I commend Ben Saunders on his book Responsible Government and the Australian Constitution. He has produced an accessible work that diligently examines and threads together a vast volume of material to argue the importance of historic context in understanding the Constitution regarding responsible government. This is key, as the provisions in the Constitution that concern the executive are relatively few and as responsible government is fundamentally political, there is plenty of scope for principles to evolve for governments to operate for the sovereign people of Australia to govern themselves in the manner they deem best (Saunders, p 207).

James Stellios

In this comment I offer observations on Associate Professor Saunders’ book, Responsible Government and the Australian Constitution (Hart, 2023) (Saunders), focusing primarily on the doctrinal implications of the book’s thesis. I will start by reflecting on the institutions of ‘representative and responsible’ government. While often presented as a composite expression, the institutions are distinct in principle, and that distinctiveness might have important implications for the role of judicial review. Further complicating the place of judicial review within the constitutional system is the tension created by the combination of political and legal constitutionalism, as each conception of constitutionalism contemplates a different means for controlling government power. Finally, I briefly reflect on the doctrinal implications of these constitutional features.

Ellen Rock

I am very grateful to Dr Anna Olijnyk and Emeritus Professor John McMillan for taking the time to engage so thoughtfully with the arguments I have made in the book, and for their insightful contributions to this book forum. In my reply, I would like to reflect on their comments by reference to perhaps the most high-profile accountability development that has post-dated the publication of this book: the establishment of a National Anti-Corruption Commission. This development has of course been on the agenda for some time, allowing ample opportunity to design an optimal model. The Labor government introduced its long-awaited bill into Parliament in September and has since been passed in an amended form by both Houses. It is clearly too early to predict how effective the ultimate Commission will be as an accountability mechanism. However, informed by the arguments I have made in Measuring Accountability, two key points bear consideration.

Anna Olijnyk

Ellen Rock pulls off an impressive feat in Measuring Accountability in Public Governance Regimes (‘Measuring Accountability’). The book’s two central insights are, on the one hand, usually overlooked in administrative law scholarship and, on the other, so convincing as to elicit a reaction of ‘yes, of course!’ Rock points out, first, that claims of ‘too much’ or ‘not enough’ accountability make little sense without a normative benchmark of the ideal amount of accountability. Secondly, she argues the existence of an accountability deficit or overload must be assessed at a systemic level, rather than by focusing on single accountability mechanisms in isolation.

In this post, I explore how these insights might shed light on the (non)development of novel grounds of judicial review addressing serious forms of administrative injustice (‘substantive grounds of review’) in Australia.

John McMillan

Accountability has become an accustomed concept in our professional and public life.

We are constantly reminded in the workplace that we are accountable for how we discharge functions and the impact of our actions on others. We are equally likely to draw on accountability principles to question the professional conduct of others. A familiar line in daily media stories is that government officials must be held accountable if allegations are substantiated about matters as diverse as Robodebt collection, flood prevention, grant allocation, COVID enforcement, workplace abuse, conflict of interest, privacy breaches, wasteful spending and misleading promises. Those of us engaged in teaching or legal practice are likely to rely on accountability as an overarching norm to explain how public (and private) sector entities and officers should be answerable for what they do.

What more can be said? Dr Ellen Rock dives straight in! While explaining accountability theory both comprehensively and lucidly, she takes the discussion further by focussing valuably on two practical dimensions.

Anne Carter

I am honoured and humbled to have such an eminent panel engage with my book, Proportionality and Facts in Constitutional Adjudication. As I will explain below, the motivations for this book stemmed in part from my time as a practising government lawyer, so I’m particularly delighted that this book forum includes two practitioners of public law, along with a leading comparative constitutional law scholar. Each panellist has engaged thoughtfully with the substance of the book and has raised a number of distinct issues. In this post I will explain the motivations behind the book and its main themes and findings, as well as responding to the helpful contributions from the three panellists. In doing so I will sketch some future directions about the ongoing conversation about facts in proportionality reasoning (and public law more generally).

Samuel Murray

Dr Anne Carter’s Proportionality and Facts in Constitutional Adjudication is a timely and welcome addition to the perpetually growing commentary concerning the advent of structured proportionality in the High Court’s jurisprudence of the implied freedom of political communication.

As Dr Carter notes throughout the book , a bare majority of the High Court in McCloy v New South Wales (2015) 257 CLR 178 dramatically changed the approach to testing proportionality in respect of the implied freedom by adopting a structured, multi-faceted approach to proportionality testing, effectively in lieu of the prior verbal formulation from Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. given how extensively it changed the approach to the implied freedom. McCloy heralded a new wave of both academic commentary and case-law about the merits and application of the new formulation. This book does an excellent job at building out the former and offering guidance for the latter in respect of the use of facts in the new world of implied freedom proportionality testing.

Mike Wait

Dr Anne Carter’s new book, Proportionality and Facts in Constitutional Adjudication, makes a substantial and timely contribution to our understanding of a range of issues emerging in the burgeoning field of proportionality litigation. The focus of the book is on sources of evidence, burdens of proof and aspects of procedure. However, the book’s real strength is that it locates what are ultimately practical litigious issues within a sophisticated account of the evolution of the implied freedom of political communication in Australia and an appreciation of comparative approaches drawn from jurisdictions which have long wrestled with these issues.

Rosalind Dixon

Proportionality analysis is ultimately deeply fact dependent. It depends on an assessment of the suitability of laws for achieving their purposes – a question of basic logic and social fact. It further requires an assessment of whether a law is necessary, or could achieve its objective through some hypothetical, less restrictive alternative, and is 'adequate in the balance', namely achieves greater benefits than costs, from a constitutional perspective.

Anne Carter notes in her important new book that these are all arguably 'legislative' rather than 'adjudicative' facts, but also distinct in nature and scope. As the High Court has indicated, each calls for different sources of evidence, and procedures and rules governing their use. Yet to date, the constitutional law-fact nexus has attracted only limited attention in Australia. Carter’s book therefore makes an important contribution to the literature on this question. It provides a nuanced survey of the procedural challenges and complexities facing the High Court in this context, and offers tentative, well-reasoned potential solutions, informed by comparative experience.

David Hume

In SDCV v Director-General of Security [2022] HCA 22, the High Court held, 4:3, that it was constitutionally-permissible for the Federal Court to have regard to 'closed' information, which was known to the Court and the Government’s lawyers, and was the subject of 'closed' submissions involving the judges and the Government’s lawyers but was not disclosed to SDCV or his lawyers. The key issue in the case was whether the statutory scheme established by the Administrative Appeals Tribunal Act 1975 (Cth) – which permitted the Federal Court to rely on closed information, while prohibiting it from being disclosed to SDCV – required or permitted the Federal Court to act in a procedurally unfair way.

In this post, I first address the factual and procedural background (which are interesting in and of themselves); secondly, I address some key aspects of the majority’s reasoning; and, thirdly, I make some observations on the reasoning and outcome.

Alysia Blackham

It is an incredible privilege to have such an esteemed panel reflect on this book. Reforming Age Discrimination Law is, at its heart, a call to action. It maps the many ways in which individual enforcement of age discrimination law is struggling to achieve meaningful change. It puts forward a series of reforms to improve the individual enforcement model, strengthen positive equality duties, bolster the roles of statutory equality agencies, and enhance collective enforcement. This is an ambitious programme of reform, that requires action by governments, employers, unions, statutory agencies, legal practitioners, legal educators, courts, and judges. I argue, too, that these reforms work best together; they are mutually supportive and reinforcing, just as these forms of enforcement work best together.

The Hon Anthony North KC

Congratulations to Alysia Blackham on a very high-quality contribution to the learning in this area. I was particularly impressed by the logic and coherence in the development of the argument.

There are many issues raised in this book that capture my interest. I have chosen two, each of which reflects the different phases of my career, first as a judge, and then as a law reformer. Improvements here would make a significant difference to age discrimination law. The first concerns the reverse onus of proof, and the second concerns the enforcement of positive duties.