How the Summary Changes When Aimed at Public Officers Rather Than Solicitors
The foundational difference
The solicitor framework (in the previous article) is built around a self-regulating profession with a duty to the court that overrides duty to the client. The public officer framework is built around the rule of law itself – the requirement that the exercise of public power be authorised, transparent, proportionate, and in good faith. The consequences for getting it wrong differ markedly: a solicitor faces disciplinary action, costs, and professional ruin; a public officer faces administrative sanction, tort liability, judicial review, and in serious cases criminal exposure – but through entirely different mechanisms.
Part 1 – The equivalent of “Turning a Blind Eye” for public officers
The Shirvington paper’s core proposition – that passive non-intervention can be as culpable as active wrongdoing – has a direct parallel in public office. However, the legal machinery is different.
For a solicitor, “turning a blind eye” engages professional conduct rules and duties to the court. For a public officer, the equivalent engagement is through:
- The tort of misfeasance in public office (for active or knowingly unlawful conduct)
- Nonfeasance (failure to exercise a duty), addressed through mandamus and judicial review
- Maladministration (procedurally defective decision-making), addressed through ombudsman complaints and administrative review
These three categories must be kept distinct because they attract different remedies. The Shirvington “blind eye” principle maps most closely onto misfeasance – but the mental element required is significantly higher than professional misconduct.
The Robodebt Royal Commission (2023) is the modern Australian illustration: senior public servants continued using a mechanism they knew or ought to have known had no valid legal foundation, and the failure to disclose that invalidity to those affected was sustained over years. That is the public officer equivalent of the Forsyth’s Case analysis in the solicitor context.
Part 2 – Legislative framework: what replaces the Legal Profession Acts
For solicitors, the primary instruments are the Legal Profession Uniform Law (NSW/Vic), the Legal Profession Act 2008 (WA), and the ASCR. For public officers, the primary instruments are:
Commonwealth:
- Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) – the central accountability statute for Commonwealth entities. Section 25 imposes a duty of care and diligence; s 26 a duty to act honestly, in good faith and for a proper purpose; s 27 a duty in relation to use of position; s 28 a duty in relation to use of information; and s 29 a duty to disclose interests. Taken together, the general duties establish an overarching framework for integrity, probity and ethical behaviour applying to the accountable authorities and officials of all PGPA Act entities. Critically, any claim or view that it is somehow acceptable for an officer to breach finance law and fail to act with probity, but still be acting in good faith and for a proper purpose, is clearly and unambiguously wrong. No civil or criminal penalties apply directly under the PGPA Act for breach of these duties. However, employment-related sanctions under the Public Service Act or Parliamentary Service Act may result.
- Public Service Act 1999 (Cth) – governs APS employees. Imposes the APS Values and the APS Code of Conduct. Breach of the Code can result in termination. The Public Service Act contains other elements that go to defining the unique nature of the Australian Public Service, including the APS Values, the appointment, roles and responsibilities of Secretaries and the role of the Secretaries Board.
- Criminal Code Act 1995 (Cth) – applies to public officers as it does to all persons, with specific offences including abuse of public office (Division 142), bribery (Division 141), and fraud on the Commonwealth (Division 135). Unlike the PGPA Act, these carry direct criminal penalties.
- Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) – provides for judicial review of decisions made under Commonwealth law. A “failure to make a decision” where there is a duty to decide is reviewable. Mandamus is available to compel performance of a public duty.
- Ombudsman Act 1976 (Cth) – the Commonwealth Ombudsman investigates maladministration by Commonwealth agencies. No power to award damages but can recommend action and make findings that carry significant reputational and political consequences.
- Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) – impose obligations on Commonwealth officers to act compatibly with human rights in the exercise of public functions.
Western Australia (State level):
- Public Sector Management Act 1994 (WA) – governs WA public sector conduct, including the Commissioner’s Instructions and the Public Sector Code of Ethics
- Corruption, Crime and Misconduct Act 2003 (WA) (CCM Act) – the primary anti-corruption statute in WA. Administered by the Corruption and Crime Commission (CCC). Covers serious misconduct (corrupt conduct) and minor misconduct. Serious misconduct includes the performance of a public function in a manner that is not honest or impartial, breach of trust, and misuse of information or material obtained in the course of public duties
- Parliamentary Commissioner Act 1971 (WA) – the WA Ombudsman, investigating maladministration by WA agencies
- Judicial Review Act 2000 (WA) – equivalent of the ADJR Act for WA State agencies
Part 3 – Silence: how it differs for public officers
For a solicitor, silence is professionally questionable but not directly unlawful unless it assists a client in avoiding legal obligations. For a public officer, silence has different legal dimensions:
The common law duty of procedural fairness (audi alteram partem) requires a decision-maker who is considering a decision that affects a person’s rights or legitimate expectations to, at minimum, hear that person. This is an obligation imposed by law, not merely professional etiquette.
The distinction between misfeasance, nonfeasance and maladministration (drawn from Framework JX9.4 in your project files) is critical here:
- Where a public officer fails to exercise a duty at all (nonfeasance), mandamus is the remedy – but only where a specific duty to act can be identified. A general failure to respond is not, of itself, a legal wrong. A specific statutory duty to decide is.
- Where a public officer knows that failing to act will cause harm and persists regardless, that is the territory of misfeasance – but the mental element threshold (Northern Territory v Mengel (1995) 185 CLR 307) is high: targeted malice or knowing/reckless indifference to unlawfulness and resulting harm.
- Where a public officer’s failure to respond is simply poor administration – delay, indifference, bureaucratic dysfunction – without the mental element, that is maladministration, addressed through ombudsman complaints and administrative review, not tort.
The practical record-building framework for the public officer context therefore includes an additional layer not present in the solicitor context: identifying which of these three categories the silence falls into, because that governs which remedial pathway is engaged.
Part 4 – Key cases: the changed table
The case table for public officers replaces the professional conduct cases with public law authorities. The core cases are:
| Case | Relevance |
|---|---|
| Northern Territory v Mengel (1995) 185 CLR 307 | Foundational Australian authority for misfeasance in public office; the four elements; Brennan J on reckless indifference |
| Three Rivers District Council v Bank of England [2003] 2 AC 1 | Leading UK authority on misfeasance; adopted in Australian courts |
| Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 | Nonfeasance – specific duty of care to the plaintiff must be established; high threshold |
| Minister for Immigration v Teoh (1995) 183 CLR 273 | Legitimate expectations created by ratified international treaties |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 | Principle of legality; privative clauses cannot exclude judicial review of jurisdictional error |
| Kirk v Industrial Court of NSW (2010) 239 CLR 531 | State legislature cannot remove Supreme Court’s jurisdiction over jurisdictional error |
| CPCF v Minister for Immigration (2015) 255 CLR 514 | Limits on exercise of statutory power over individuals |
| Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 | Rule against bias; decision-makers must be and be seen to be impartial |
| Commonwealth v Verwayen (1990) 170 CLR 394 | Detriment includes time, effort, stress, anxiety – Calderbank consequences |
| House v The King (1936) 55 CLR 499 | Appellate review of discretionary decisions; the five House errors as grounds for overturning |
Part 5 – Latin maxims: the changed and expanded table
The maxims applicable to public officers overlap with but diverge from those applicable to solicitors. The public officer set draws more heavily on constitutional and administrative law tradition:
| Maxim | Meaning | Application |
|---|---|---|
| Audi alteram partem | Hear the other side | Procedural fairness – a public officer must hear a person affected before deciding |
| Nemo debet esse judex in propria causa | No man should be judge in his own cause | The rule against bias in public decision-making |
| Qui tacet consentire videtur | He who is silent is taken to consent | The record value of non-response by a public body |
| Ubi jus ibi remedium | Where there is a right, there is a remedy | Every unlawful exercise of public power has an available remedy |
| Delegatus non potest delegare | A delegate cannot further delegate | The authority chain must be traceable and unbroken; sub-delegation requires express statutory authority |
| In dubio pro libertate | In doubt, in favour of liberty | Where a statute is ambiguous, the interpretation that preserves liberty prevails |
| Omnia praesumuntur contra spoliatorem | All things are presumed against a person who destroys evidence | Where a public body fails to produce records, the presumption runs against it |
| Fiat justitia ruat caelum | Let justice be done though the heavens fall | Institutional convenience does not override legal obligation |
| Veritas odit moras | Truth is ill-served by delay | Relevant to persistent non-response and withholding of information by public bodies |
Part 6 – The changed practical framework for non-response by public bodies
The solicitor non-response framework centres on the conduct rules, Calderbank offers, and professional complaints. The public officer framework adds and substitutes:
- Confirm service and identify the specific statutory duty engaged – not all public bodies have a duty to respond to every notice; the duty must be identifiable.
- Allow the stated response period to expire – record the default date, characterise the non-response as nonfeasance or maladministration on the current evidence.
- Issue a formal default notice – invoking qui tacet consentire videtur, identifying the specific statutory duty not performed, and placing the misfeasance-nonfeasance-maladministration taxonomy on the record.
- Make a Freedom of Information request – to establish what the body holds on file in relation to the matter. Production of those records, or failure to produce them, advances the position either way (omnia praesumuntur contra spoliatorem).
- Lodge an Ombudsman complaint (Commonwealth Ombudsman or WA Ombudsman as applicable) for maladministration – this creates an independent investigative record and can produce recommendations the agency must answer.
- Refer to the CCC (WA) where there is evidence suggesting serious misconduct under the CCM Act.
- Issue a Calderbank offer – costs consequences run against public bodies as they do against private parties.
- File for judicial review under the ADJR Act (Cth) or the Judicial Review Act 2000 (WA) – seeking mandamus to compel performance of the identified statutory duty, and/or certiorari to quash any invalid decision already made.
- Document all detriment for Commonwealth v Verwayen costs consequences.
- Reserve the misfeasance in public office cause of action on the record – expressly noting that the mental element has not yet been established to the level required for proceedings, but that the facts are consistent with the second limb of Mengel and that the position is reserved pending further conduct by the officer.
The key structural difference in one sentence
For a solicitor, the primary accountability mechanism is the profession itself – the court’s inherent jurisdiction and the conduct rules. For a public officer, the primary accountability mechanism is the constitution and the rule of law – and the ordinary courts, through judicial review and tort, are the enforcement vehicle.
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