The Government is not the same as us: eSafety Commissioner v Baumgarten [2026] FCAFC 12

Janina Boughey

When a government official tells you to do something, the instruction carries significantly more weight than when another person, without the cloak of government authority, issues the same instruction. If I tell a stranger not to smoke in a public place, they are very unlikely to stop smoking. For although I may be right about the harmful effects of their habit, I have no authority (at least in that context). But if the government puts up a ‘no smoking’ sign, or if a uniformed police officer, or, frankly, anyone in an official government uniform with perceived authority in the situation—such as a lifeguard on a beach or firefighter in the vicinity of a fire—tells a person to stop smoking, a fair number of people will obey. Certainly not all. But many, many more than if an ordinary member of the public issues the same command. This is so irrespective of whether the government official issuing the direction has actual legal authority to do so. Whether or not there is a law prohibiting smoking at that place, if the person issuing the order is perceived to have legal authority, then they are, in practice, exercising their special powers as a government official. And they ought to be treated as such and subject to public law accountability for the way they do so.