Criminal Law as Public Law – Public Law and Criminal Law in Australia book forum
Gabrielle Appleby provides the second post in our book forum on Nicholas Petrie and Julian R Murphy’s edited collection Public Law and Criminal Law in Australia: Overlap, Intersection and Inconsistency. To see all posts, please click here.
18.12.2025
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.
The relationship between public and criminal law: identified but understudied
In the opening chapter, Murphy argues that the relationship between public law and criminal law is ‘barely even acknowledged by public lawyers’ and that the texts ‘often omit any reference to criminal law’ (p 9). He then refers to some ‘green shoots of scholarship attending to the relation between criminal law and public law’ (p 9), predominantly drawing from the United Kingdom, but referring to some work of judges and practitioners in Australia as well. He argues that ‘the relation between criminal and public law remains understudied, especially in Australia’ (p 10).
I think in the Australian context, Murphy both overstates the problem but is also correct.
In my co-authored introductory textbook to Australian Public Law (published now in its fourth edition with Oxford University Press), we have always looked at criminal law as posing a challenge to the rigidity of the conventional public law (in the form of constitutional and administrative law) and private law divide. In the first edition, for instance, we argued:
The blurring of the public and private spheres is not only a result of the public sphere encroaching on the private sphere. Hobbes’ primary justification for public law—saving individuals from the chaos of unregulated individual desires—is most obviously evident in the criminal law. (emphasis added)
We go on to explain how in the criminal law, the state takes on the responsibility for punishing individuals who have harmed others. An officer of the State, the Director of Public Prosecutions, decides whether there is a case to be brought against an individual according to the prescribed law, and prosecutes the case on behalf of the community at large. Judges must apply the criminal law consistently to all accused persons, and in sentencing, impose punishment on the individual—the ultimate coercive power of the State. There is, we argue, ‘no clearer example of the exercise of public law.’ Many of these points resonate with those drawn out in greater depth in Murphy’s chapter.
In our fourth edition, we had, perhaps, become too complacent. After defining public law as ‘the law of a state that describes the system of institutions, rules and practices that have developed to govern the state’ and noting the particular focus of public law on the relationship between the State and the individual, we went on to claim:
On the conventional view, public law comprises constitutional law, administrative law, criminal law and tax law, since these fields all directly concern the relationship between the state and the individual. … Criminal law and tax law, though public law on the classic understanding, are typically taught separately due to their distinctive principles and specialised rules. (emphasis added).
Australian examples of convergence: Chapter III, human rights and anti-corruption
The Australian constitutional and historical context and practice reveal unique and fascinating ways in which criminal law is public law.
First, public law in Australia—in the sense of those subjects taught as public law, administrative and constitutional law—has at least since the 1990s been concerned with criminal law to the extent that the criminal procedural protections of the individual have been captured by the constitutionally protected essential characteristics of Chapter III courts. It is certainly it is true that in Australian constitutional law, particularly since the Mason Court, criminal law (whether that be in relation to organised crime responses, serious and sexual offenders, or terrorism) has been a key ‘battleground’ in which much of our understanding of Chapter III constitutional law has developed. The contributions in this book of Craig Lenehan SC and Eleanor Jones on the constitutional concept of punishment in Chapter III, and Anthony Gray on the Chapter III fair process guarantees provide important additions to this already extensive Australian scholarship on a uniquely Australian jurisprudence.
Second, with the increased interest in legal human rights protections in a system bereft of a comprehensive bill of rights, Australian public law has also considered the extent to which the common law procedural protections in criminal trials provide important ‘human rights’ protection in the Australian patchwork quilt of legal rights protections. This is therefore both an intersection between criminal law and public law, but an example of the instantiation of criminal law as public law.
Third, there is also the increasing interest of Australian lawyers in anti-corruption efforts and the work in particular of Australia’s now comprehensive national set of anti-corruption commissions. Corruption of public institutions is at once an issue of public law, as well as being (predominantly, although in most jurisdictions not exclusively) one of criminal concern. This, again, is a growing area of Australian practice and scholarship in which the criminal and public are so clearly not just intersecting, but are one. Indeed, Kateena O’Gorman SC and Cal Viney’s fascinating chapter in this volume takes up this site of convergence and its implications, exploring whether a conventional public law interpretative approach should be taken to anti-corruption commission disclosure obligations, or whether this is an area in which a distinct approach, informed by the particular constitutional status of these agencies and their anti-corruption work, is preferable.
Public law and criminal law: Beyond the individual to the community
In the definition of public law offered in Murphy’s opening chapter, there is focus on the work of criminal law for the public interest and informed by public values, as well as a focus on the relationship between the state and the individual (p 7). As we explain in our text Australian Public Law, the relationship between the state and the individual is one of the most important sites of public law. And criminal law, as public law, embodies this relationship between the State and the individual.
But there is also, of course, the community. Where does this sit within public law, and, if criminal law is conceived of as public law, within the criminal law? And what difference might that make?
In our text Australian Public Law, we are also keen to draw attention beyond the traditional focus on the individual, to how public law impacts the group, the community, of which the individual forms a part:
The extent to which the law protects freedom of association from state interference matters profoundly to the communities of people comprising religious groups, trade unions, political parties and activist organisations. … Australian public law has from the outset of colonisation had a profound impact on the collective rights of Aboriginal and Torres Strait Islander peoples.
The responsibility of the State to First Nations
There is, then, a much-needed line of inquiry to look at the criminal law as a form of public law, and most importantly a form of law that regulates—empowers and constrains—the actions of the State as against First Nations (and other groups), both as individuals, yes, but also in their collective rights and experiences. For First Nations, these exist as rights to culture, language, the extent to which they have the freedom or even right to exercise traditional laws and customs, as well as their collective experiences of colonisation, and the historical and contemporary manifestations of that, including in systemic disadvantage. That the criminal law has so often been the State’s tool of discrimination against and oppression of First Nations only underscores the need for this inquiry.
Some of these issues are considered in the chapter by Saul Holt KC and Rachael Taylor on the intersection of the Racial Discrimination Act 1975 (Cth) and the criminal law, but their focus is on the jurisprudential challenges of actions under that particular statute, rather than some of the systemic questions that might be highlighted by a more explicitly public law conceptualisation of some of the structural issues in criminal law.
Such a focus might interrogate, for instance, the High Court’s 2013 decision in Bugmy v The Queen, in which the Court stressed that in our criminal law system, the courts are concerned with giving effect to justice to the individual, and that while intergenerational and community level disadvantage might be relevant, if proven, for an individual offender, that cannot be taken as proven at a systemic level for people who make up a particular group, particularly First Nations in Australia. It might also, for instance, provide a rich foundation for further justifying and understanding the role of Indigenous sentencing courts as critical parts of our legal system.
Which brings me then to the long-term intellectual benefits of this volume. There are certainly immediate scholarship and practical benefits in bringing together the excellent chapters in this volume. And there is benefit to considering the ‘intersection’ between criminal law and public law, as is conceived for instance in the chapters by Kieran Pender, Jennifer Robinson and Phoebe Cook on whistleblowers, secrecy and transparency and Julia Wang’s chapter on criminalising public protest.
But the real benefit, in my view, is to take the idea of criminal law as public law more fundamentally, and to consider the benefit—if any—of applying the same principles to looking at criminal law questions as we are increasingly doing in public law. This, as I read it, is the challenge set in the opening chapter by Murphy. And there are chapters in this volume that do this, most notably those by Jeremy Gans on the human rights obligations of public prosecutors, and O’Gorman and Viney’s approach to the disclosure obligations of anti-corruption commissions, already mentioned above.
Of course, the volume is an initial entry into this conceptual field, and so it leaves much unturned, for future study by public and criminal practitioners, jurists and scholars. In particular, what may be gained by conceiving of the criminal law as public law for First Nations within our community, and whether understanding their individual as well as collective relationship with the State from a public law lens can provide greater clarity or alternative solutions for their current engagement with the criminal justice system.
Gabrielle Appleby is a Professor at the UNSW Faculty of Law & Justice and the Head of Research at the Centre for Public Integrity. Gabrielle wishes to thank Professor Megan Davis AC for her review of an earlier version of this post.
Suggested citation: Gabrielle Appleby, ‘Criminal Law as Public Law – Public Law and Criminal Law in Australia book forum’ (18 December 2025) <https://www.auspublaw.org/blog/2025/12/criminal-law-as-public-law-public-law-and-criminal-law-in-australia-book-forum>