Introduction
Public officers – ministers, departmental heads, public servants, police officers, local government officials, and all others who exercise power on behalf of the State – do not hold that power as a personal entitlement. They hold it on trust, on behalf of the community, and subject to law. That trust carries obligations. When those obligations are breached, the law provides consequences.
This article examines the tort of misfeasance in public office, the broader duty of public officers to act according to law, what the rule of law requires of those who exercise public power, and what remedies are available to men and women who are harmed by the failure of public officers to discharge their obligations honestly and lawfully.
What Is Misfeasance in Public Office?
Misfeasance in public office is a common law tort – a civil wrong – that allows a man or woman harmed by the deliberate or reckless abuse of public power to seek compensation from the officer responsible, and in some circumstances from the State itself.
It is, as AGS Legal Briefing No. 115 (19 November 2020) describes it, a form of intentional tort, and the only tort recognised by the common law that has an exclusively public law operation. It is not a recent invention – the tort is over 300 years old – but its elements have been refined by the High Court of Australia and other superior courts over many decades.
The foundational Australian authority is Northern Territory v Mengel (1995) 185 CLR 307, in which the High Court examined the tort in detail. Subsequent significant cases include Three Rivers District Council v Bank of England [2003] 2 AC 1 in the House of Lords, and a line of Australian State and Federal Court decisions that have applied and refined the Mengel principles.
The Elements of the Tort
For a claim of misfeasance in public office to succeed, the following elements must be established.
First: a public officer. The defendant must be a man or woman occupying a public office – that is, exercising a public function or discharging a public duty conferred by law. Ministers, departmental secretaries, public servants, police officers, local government officers, and court officers have all been held to occupy public office for these purposes. A private lawyer engaged by a government agency does not, without more, occupy a public office.
Second: an invalid or unlawful exercise of power. The officer must have exercised, or purported to exercise, a power in a way that was invalid or unlawful. This includes acting without authority, acting contrary to the terms of the power, and acting for an improper purpose. As AGS Legal Briefing No. 115 confirms, an exercise of power will be invalid where no power exists at all, and invalidity can also arise from the manner of the exercise of a power where the act of the officer was contrary to law and therefore liable to be set aside on judicial review.
Third: the mental element – the critical threshold. This is where the tort differs most sharply from ordinary negligence. An inadvertent or negligent failure to act does not suffice. The officer must either:
- have acted with targeted malice – that is, with the specific intention of harming the plaintiff; or
- have acted knowing that the act or omission was unlawful, and knowing, or being recklessly indifferent to the probability, that harm to the plaintiff would result.
The second limb – knowing unlawfulness combined with reckless indifference to harm – is the more commonly argued pathway, because proof of targeted malice is rare. Reckless indifference, as Brennan J stated in Mengel, means the officer could not have been indifferent to the risk of harm without being dishonest about it.
Fourth: damage. The plaintiff must have suffered actual loss or damage as a result of the officer’s conduct. The tort does not operate as a remedy for technical or nominal wrongs.
The Distinction Between Misfeasance, Nonfeasance, and Maladministration
These three concepts are frequently confused. The distinctions matter.
Misfeasance is the wrongful exercise of a power the officer holds – doing something the officer had authority to do, but doing it unlawfully, dishonestly, or for an improper purpose. It is an active wrong.
Nonfeasance is the failure to exercise a power or discharge a duty at all. At common law, nonfeasance by a public officer does not automatically give rise to a cause of action in tort. A man or woman harmed by a public officer’s failure to act generally cannot sue in negligence without establishing that a specific duty of care was owed to them personally – not merely to the public at large. That is a significant threshold, confirmed by the High Court in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1.
Maladministration is a broader administrative law concept – poor, inefficient, or procedurally defective decision-making that may not reach the level of misfeasance or nonfeasance but nonetheless falls short of the standard the law and good governance require. Maladministration is addressed through administrative review, ombudsman complaints, and judicial review rather than through tort claims.
What the Rule of Law Requires of Public Officers
The rule of law is not merely a platitude. It has specific content when applied to those who exercise public power.
The foundational principle is that public power must be traceable to a lawful source. A public officer cannot act against a man or woman without lawful authority for that action. The authority must exist, it must extend to the action taken, and it must have been exercised in accordance with the procedural and substantive requirements the law imposes on it. Where any of those conditions is absent, the act is invalid.
The High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 confirmed that the constitutional guarantee of judicial review of executive action cannot be removed by Parliament. The supervisory jurisdiction of superior courts over the exercise of public power is a constitutional minimum, not a legislative concession.
The principle of legality, confirmed in Potter v Minahan (1908) 7 CLR 277 and applied consistently since, holds that Parliament does not abrogate fundamental rights and freedoms by general or ambiguous words. A public officer who relies on general statutory language to justify action that infringes fundamental rights is on uncertain ground – the statute may not bear the weight placed upon it.
The obligations imposed on public officers by the rule of law include the following.
Transparency. A public officer exercising power must be able to identify the source of that power. A man or woman affected by the exercise of public power is entitled to know, in plain terms, the authority relied upon, the decision made, and the reasons for it. Opacity is not neutrality – it is a failure of the duty of honest disclosure.
Consistency. A public officer must apply the law consistently and without favouritism or bias. The rule against bias – confirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – requires that decision-makers be, and be seen to be, impartial. A decision tainted by bias is invalid.
Proportionality. Where a public officer exercises a discretion, the exercise must be proportionate to the legitimate aim pursued. Disproportionate action – imposing a burden far greater than the situation warrants – is an abuse of power, whether or not it reaches the level of misfeasance.
Good faith. A public officer must act honestly and in good faith. Acting in bad faith – for an ulterior purpose, or in the knowledge that the action is unlawful – crosses the line from administrative error into legal wrong.
The Significance of Silence and Failure to Respond
A failure by a public officer or agency to respond to a formal notice or lawful enquiry is not a neutral act. It engages several overlapping legal principles.
The common law duty of honest disclosure – examined in the context of the Robodebt scheme in the Royal Commission Report (2023) – holds that a public officer who possesses information relevant to a man or woman’s legal rights, and who deliberately withholds or obscures that information, may be acting in bad faith.
Where a public officer holds information that would establish the invalidity of a claim or proceeding directed at a man or woman, and withholds that information, that conduct contributes to a picture of reckless indifference to the harm resulting from the continuation of the claim. That is the territory of the second limb of misfeasance.
The equitable principle of laches – that equity aids the vigilant, not those who sleep on their rights – runs against institutions as well as individuals. An institution that fails to respond to a formal enquiry, and subsequently seeks to enforce a claim or position, may find its delay and silence counted against it. The Latin maxim states it precisely: vigilantibus non dormientibus jura subveniunt.
The rule against nemo iudex in causa sua – no man should be a judge in his own cause – extends to institutional behaviour. An agency that is both the issuer of a disputed claim and the body that determines responses to challenges to that claim is in a structurally compromised position that the rule of law does not permit to operate without scrutiny.
The Role of the Robodebt Royal Commission
The Royal Commission into the Robodebt Scheme, which reported in July 2023, is the most significant recent Australian examination of systemic public officer failure. The Commission found that the scheme was not merely maladministration – it involved the deliberate use of a legal mechanism that officers knew, or ought to have known, had no valid legal foundation.
The Commission found that senior public servants and ministers failed in their obligations of candour to affected men and women, to the Parliament, and to the courts. Lawyers advising the scheme failed in their own professional obligations. The systemic failure to disclose the absence of legal authority was not inadvertent – it was sustained over years.
The Robodebt findings are directly relevant to the misfeasance framework. The knowing use of a legally invalid mechanism, combined with deliberate non-disclosure of that invalidity to those affected, is precisely the conduct the tort of misfeasance in public office is designed to address.
Remedies
A man or woman who has suffered harm as a result of misfeasance in public office has the following remedies available.
Compensatory damages for actual loss suffered as a result of the officer’s conduct – financial loss, damage to reputation, or other provable harm.
Exemplary damages in appropriate cases, where the officer’s conduct was sufficiently outrageous to warrant punishment beyond compensation. Australian courts have awarded exemplary damages in misfeasance cases, though they are not routinely granted.
Injunctive relief to restrain ongoing unlawful conduct. A court may, in appropriate circumstances, restrain a public officer or agency from continuing to act without lawful authority, pending a full hearing of the merits.
Judicial review to set aside invalid decisions. Where the conduct of a public officer amounts to jurisdictional error – confirmed in Kirk v Industrial Court of NSW (2010) 239 CLR 531 – the decision is a nullity and may be quashed.
Complaints to the Ombudsman – Commonwealth, State, or Territory – for matters that constitute maladministration falling short of tortious conduct. Ombudsman investigations are not judicial proceedings, but findings of maladministration carry weight and can produce practical remedies including apologies, policy changes, and compensation schemes.
What Men and Women Can Do
The practical steps available to a man or woman who believes a public officer has failed to act lawfully are as follows.
Document everything. Every formal notice sent, every response received or not received, every date and every method of delivery should be recorded and retained. The record is the foundation of any subsequent claim or challenge.
Put the questions on the record. A formal written enquiry requiring a public officer to identify the authority for their action, the basis of any claim, and the officer with carriage of the matter, places the institution on notice. Silence in response is itself on the record.
Use administrative review mechanisms. The Administrative Review Tribunal (replacing the AAT from 14 October 2024), the relevant State administrative tribunals, and the Ombudsman each provide avenues to challenge decisions and conduct without commencing civil proceedings.
Seek judicial review where appropriate. A decision made without lawful authority, for an improper purpose, in breach of procedural fairness, or in a way that is otherwise contrary to law may be set aside by a superior court on judicial review.
Take legal advice on tort claims. A claim for misfeasance in public office is not straightforward – the mental element is a high threshold and the evidentiary burden is significant. Qualified legal advice tailored to the specific circumstances is essential before commencing any such proceeding.
Conclusion
The power exercised by public officers belongs to the community, not to the officers themselves. It is a trust, and like all trusts it comes with obligations. The rule of law requires that those obligations be discharged honestly, transparently, within the bounds of authority, and with genuine regard for the rights of the men and women affected.
Where those obligations are breached – whether through deliberate abuse, reckless indifference, or the sustained opacity of an institution that will not account for its own conduct – the law provides remedies. Those remedies exist precisely because the alternative – public power exercised without accountability – is incompatible with a free society governed by law rather than by the will of those who happen to hold office.
Fiat justitia ruat caelum – let justice be done though the heavens fall. The obligations of public office are not negotiable. The law has always known this. The challenge, as it has always been, is holding those in office to it.
This article is provided for educational and informational purposes only. It does not constitute legal advice. Men and women with live legal matters are encouraged to seek qualified legal assistance appropriate to their circumstances.
Addendum
Local Government – Body Corporate, Not Government
The Question
Men and women confronted by council officers issuing notices, compliance demands, or infringement notices routinely assume they are dealing with Government – with all the authority and legal weight that implies. That assumption deserves scrutiny. The question is not merely philosophical. It has direct practical consequences for the authority behind any notice a local government officer purports to issue.
No Constitutional Foundation
The starting point is the Commonwealth Constitution. Local government does not appear in it. Two referendums – in 1974 and 1988 – sought to alter the Constitution to formally recognise local government. Both failed. Local government therefore has no constitutional existence at the Commonwealth level. It exists only because State parliaments have created it by statute, and it exists only to the extent and in the form those statutes prescribe.
In Western Australia, the Constitution Act 1889 (WA) provides the State-level foundation. Section 52(1) requires the Legislature to maintain a system of local governing bodies elected and constituted as the Legislature determines. The critical word is “governing” – used as a present participle, a verb describing what the bodies do, not a noun conferring governmental status. The provision creates local governing bodies. It does not create a tier of Government.
A Body Corporate – Not a Government
The Local Government Act 1995 (WA) states the legal character of a local government plainly. When an area of the State becomes a district, a local government is established. That local government is a body corporate with perpetual succession and a common seal, possessing the legal capacity of a natural person.
A body corporate is the same legal category as a company. It can own property, enter contracts, sue and be sued. What it is not is a sovereign governmental authority. The notices and compliance demands issued by its employees are administrative acts of employees of a body corporate – not exercises of sovereign power, not judicial determinations, and not judgments of any court.
A council officer issuing a compliance notice has made no legal finding. No court has determined anything. The notice is an assertion by an employee of a body corporate. Until a court of competent jurisdiction has heard and determined the matter, it remains precisely that – an assertion.
The instability of even this characterisation is illustrated by the NSW experience. The NSW Parliament converted councils from bodies corporate to bodies politic of the State in 2008, then converted them back to bodies corporate in 2011. The legal character of local government is entirely a creature of legislative choice. It has no fixed constitutional foundation, and it changes when the legislature decides to change it.
Do Local Government Officers Hold “Public Office”?
This question is genuinely contested in Australian law, and the honest answer requires distinguishing between different officers and different functions.
Courts have not definitively excluded local government officers from the tort of misfeasance in public office. Where a local government officer exercises a genuine statutory power – one actually conferred by the relevant Act, delegated through a valid chain of authority, and exercised within its terms – that exercise may be sufficient to constitute the officer a public officer for the purposes of the tort. Cases involving Shires and councils have proceeded on that assumption without extensively debating it.
However, the narrower judicial view, confirmed in several decisions, is that not all government employees hold public office in the relevant sense. The holder of the office must owe duties to members of the public arising from the exercise of a public function. An employee of a body corporate performing an administrative function does not automatically satisfy that requirement.
The more pointed question – and the one that matters most in practice – is not whether the officer abstractly holds public office, but whether the specific act complained of is traceable to a valid statutory delegation. Courts that have taken the narrower approach have asked: was the power claimed actually conferred by statute on this body, delegated to this officer, and exercised within the scope and manner the statute requires? Where any step in that chain fails, the act is invalid regardless of the officer’s title or the body’s general statutory existence.
The Authority Chain
The practical framework for any man or woman confronted by a local government notice is to examine the authority chain from first principles.
The local government body itself derives its existence from a State Act. Any power it claims to exercise must be found in that Act or in another statute that confers the power on it. That power, to be exercised by an employee, must be validly delegated to that employee through whatever mechanism the Act requires. The exercise of the power must fall within its scope – the right subject matter, the right circumstances, the right procedure.
Where any link in that chain is absent or defective, the act is invalid at the point of failure, and everything purportedly built on it is built on nothing. A compliance notice issued without valid delegation, or under a power that does not extend to the circumstances at hand, is not a lawful notice – it is an assertion dressed in official language.
What Cannot Be Delegated
The foundational principle is nemo dat quod non habet – no one gives what they do not have. A body corporate created by statute can only exercise the powers the statute conferred on it, and can only delegate to its employees what it itself holds. If the statute did not confer the power, the body does not have it, the delegation is void, and the employee purporting to exercise it holds no genuine public authority – only the appearance of one.
This principle applies with equal force to the notices such employees issue. A notice purportedly issued under a statutory power that does not in fact extend to the circumstances described in the notice is not a valid exercise of that power. It is an administrative act in excess of authority – which is precisely the kind of act that attracts judicial review, and potentially the tort of misfeasance, where the officer knew or was recklessly indifferent to the limits of the power being asserted.
The Tipler Confirmation
The Queensland Supreme Court’s decision in Tipler and Ors v Moreton Bay City Council [2025] QSC 194, addressed elsewhere in this series, confirmed that local government bodies are subject to human rights obligations and to judicial review of their decisions. Smith J granted an interlocutory injunction restraining the council from enforcing compliance notices against homeless men and women, on the basis that the council had not demonstrated it had given proper consideration to the human rights of those affected before making its decisions.
That confirmation is significant in the present context. If a local government body were purely a private body corporate with no public character, it would not be subject to human rights obligations or judicial review. The court’s willingness to apply those constraints confirms that local government, while not constitutionally Government, is exercising something sufficiently public in character to attract public law scrutiny. The corollary is that it must be able to demonstrate, when challenged, that its actions are grounded in valid authority, properly exercised, with genuine regard for the rights of those affected.
The failure to demonstrate any of those things is what the compliance notice framework is designed to expose.
The Practical Summary
Local government in Australia is not constitutionally Government. In Western Australia it is explicitly a body corporate – the same legal category as a company. Its officers may, in appropriate circumstances, hold public office for the purposes of the law of misfeasance, but only where they are exercising a genuine statutory power validly delegated to them and exercised within its terms.
Every notice issued by a local government officer carries with it an implicit claim: that the power exists, that it has been validly delegated, and that the circumstances justify its exercise. None of those claims are self-proving. Each can be put to the test. A man or woman who puts them to the test – in writing, on the record, requiring the authority chain to be identified in plain terms – is not obstructing lawful process. They are exercising the most fundamental protection the rule of law affords: the right to require that power be demonstrated, not merely asserted.
Nemo dat quod non habet – no one gives what they do not have. The authority behind a local government notice is only as strong as the chain that supports it. Examining that chain is not resistance. It is the rule of law in practice.
This addendum is provided for educational and informational purposes only. It does not constitute legal advice. Men and women with live legal matters are encouraged to seek qualified legal assistance appropriate to their circumstances.
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