What a Man or Woman Can Do and Invoke to Expect Truth and Fair Dealing from Public Officers
Ubi jus ibi remedium – where there is a right, there is a remedy.
The foundational position
The relationship between a man or woman and a public officer is not one between equals in power, but it is one governed by law that places obligations squarely on the officer, not merely aspirations. The rights available to a man or woman in this context are not created by modern legislation alone – they are layered across centuries of received law, and that layering matters because the older instruments are harder to repeal, harder to circumvent, and harder to argue away.
The foundational architecture, as confirmed in Framework JX9.4 in your project files and by the Parliament of Australia’s own APH Infosheet 23, is as follows:
Magna Carta 1297 (25 Edw I, c 29) – no free man shall be taken, imprisoned, dispossessed, outlawed, exiled, or in any way destroyed, nor shall the Crown proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land. An original is held at Parliament House, Canberra. Unrepealed. Received into Australian law.
Liberty of Subject Act 1354 (28 Edw III, c 3) – none shall be condemned without due process of law. Unrepealed. Cited by the Parliament of Australia in APH Infosheet 23.
Observance of Due Process of Law Act 1368 (42 Edw III, c 3) – none shall be put to answer without due process of law. Unrepealed. Cited in APH Infosheet 23. This extends the protection further back: not merely condemnation, but the compulsion to answer at all requires lawful process.
Bill of Rights 1688 (1 Will and Mar Sess 2, c 2) – the rights and liberties of the subject are birthright, received into Australian law. Excessive fines, excessive punishments, and the suspension of laws without parliamentary consent are prohibited.
These instruments, together with the Commonwealth of Australia Constitution Act 1900 (UK), establish four irreducible requirements before any public officer can lawfully impose a consequence on a man or woman:
- There must be lawful authority – identifiable, grounded, and traceable from its constitutional source.
- The man or woman must have had the opportunity to be heard before any adverse determination.
- The process must conform to natural justice and procedural fairness.
- Any coercive consequence must rest on a determinable legal basis that can be examined and contested.
What a man or woman can invoke – the full toolkit
1. The right to know the authority relied upon
A public officer exercising power over a man or woman must be able to identify the source of that power. This is not a courtesy – it is a legal requirement grounded in the rule of law. A man or woman is entitled to demand, in plain terms: what is the authority you are acting under? What statute, what provision, what delegation? Where authority is claimed through delegation, the chain must be traceable and unbroken. A delegate cannot sub-delegate without express statutory authority (delegatus non potest delegare).
Where the officer cannot or will not identify the authority, the act is potentially ultra vires – beyond power – and void regardless of form. An ultra vires act has no legal effect.
2. The right to be heard – audi alteram partem
Natural justice requires that before any decision adverse to a man or woman is made, that man or woman must be given notice of the case against him or her and a genuine opportunity to respond. This is not procedural window-dressing – it is a condition of validity. A decision made in breach of the hearing rule is not merely unfair; it may be void for jurisdictional error and subject to judicial review.
The practical invocation: where a public officer proposes to make a decision affecting a man or woman’s rights or legitimate expectations, a written notice asserting the right to be heard, identifying the decision to be made and the rights at stake, and requiring the officer to confirm that the hearing rule has been complied with, places the matter squarely on the record.
3. The right to reasons
At common law, and under statute, a man or woman affected by a decision of a public officer has a right to know why that decision was made. The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), s 13, provides a right to request a statement of reasons for a decision reviewable under that Act. The WA equivalent is the Judicial Review Act 2000 (WA), s 16. The statement of reasons must:
- set out the findings on material questions of fact
- refer to the evidence or other material on which those findings were based
- give the reasons for the decision
A failure to provide adequate reasons, or reasons that are conclusory and uninformative, is itself a ground of judicial review. Where reasons are inadequate, the inference available is that the decision was not genuinely made on the stated basis – which opens the door to grounds including improper purpose and failure to consider relevant material.
4. Freedom of Information
The Freedom of Information Act 1982 (Cth) and the Freedom of Information Act 1992 (WA) give every man and woman the right to access documents held by government agencies. This is not a discretionary favour – it is a statutory right. The right applies to documents relating to the man or woman personally, and also to documents about how policies, decisions and processes were applied.
What this means in practice: a man or woman who has received a decision, a demand, or an assertion of authority from a public body can request all documents held by that body in relation to the matter – including internal communications, legal advice, records of delegation, and records of how the decision was made. The production of those records, or the failure to produce them, advances the position either way. Where records are not produced, the presumption runs against the institution: omnia praesumuntur contra spoliatorem (all things are presumed against one who destroys or withholds evidence).
A well-constructed FOI request directed to every body in the chain – the decision-making agency, the delegating department, any legal office that provided advice, and any body that received revenue or benefit from the decision – creates a comprehensive evidentiary foundation.
5. The right to procedural fairness – the bias rule
No public officer should determine a matter in which he or she has a personal interest, an undisclosed allegiance, or a relationship that might reasonably be perceived as affecting impartiality. Nemo debet esse judex in propria causa. The test established in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 is whether a fair-minded lay observer, knowing all the circumstances, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question.
The practical invocation: a Disclosure Agreement – of the kind used in project documents and developed in prior correspondence with the Ministers – formally puts the officer on notice that the question of impartiality is live, requires disclosure of any interest or allegiance that could affect the candour of the response, and places non-disclosure on the permanent record.
This is not a mere formality. Taylor v Johnson (1983) 151 CLR 422 established the wrongful silence doctrine in equity: knowledge of another’s position, silence in the face of that knowledge, and taking advantage of that silence to enforce consequences are grounds for equitable intervention. A public officer who knows of a conflict, declines to disclose it, and proceeds to make a decision adverse to the man or woman has exposed the decision to challenge on the ground of actual or apprehended bias and, potentially, bad faith.
6. Judicial review – mandamus, certiorari, and prohibition
These are the three primary prerogative remedies available in the Supreme Court:
- Mandamus – compels a public officer to perform a public duty that he or she has failed or refused to perform. Available where there is an identifiable legal duty, not merely a discretion, and that duty has not been performed. The Judicial Review Act 2000 (WA) and the ADJR Act provide a statutory pathway alongside the common law.
- Certiorari – quashes a decision already made that was beyond power, made in breach of natural justice, based on an error of law, or made for improper purpose.
- Prohibition – prevents a public officer or body from continuing with a course of action that is beyond their jurisdiction.
Kirk v Industrial Court of NSW (2010) 239 CLR 531 confirmed that a State legislature cannot remove the Supreme Court’s jurisdiction to grant relief for jurisdictional error. This means that regardless of any privative clause or statutory limitation, the Supreme Court retains jurisdiction to review the conduct of any State officer for jurisdictional error. That jurisdiction cannot be ousted.
7. The Ombudsman
The Commonwealth Ombudsman and the WA Ombudsman investigate maladministration – poor, inefficient, or procedurally defective conduct by government agencies that may not reach the threshold of misfeasance or judicial review. An Ombudsman complaint does not award damages, but it creates an independent investigative record, can produce findings that embarrass an agency and compel a response, and documents the pattern of conduct for any subsequent proceeding.
The Ombudsman is an accessible, cost-free first step where the conduct falls into the category of institutional indifference or procedural failure rather than deliberate unlawful conduct.
8. The Corruption and Crime Commission (WA) and equivalent bodies
Where the conduct of a public officer crosses into serious misconduct – performing a public function in a manner that is not honest or impartial, breach of public trust, or misuse of information – the Corruption, Crime and Misconduct Act 2003 (WA) provides a referral pathway to the CCC. At Commonwealth level, the National Anti-Corruption Commission (NACC), established in 2023, investigates serious or systemic corrupt conduct by Commonwealth public officials.
These are not default first steps – they require material capable of supporting the higher threshold of corrupt or seriously improper conduct. But where the pattern of non-response, concealment, or enforcement without authority reaches the level of knowing conduct, the referral pathway is a legitimate and powerful one.
9. The wrongful silence doctrine in equity
Taylor v Johnson (1983) 151 CLR 422 is the standing authority. Where a public officer holds information relevant to a man or woman’s legal rights, knows of that person’s position, remains silent in the face of it, and then takes advantage of that silence to enforce a consequence, equity intervenes. The remedy is not merely monetary – the court can restrain enforcement entirely where the silence was unconscionable.
This doctrine is particularly powerful in combination with a record that documents: the notice given, the questions asked, the rights asserted, the silence maintained, and the enforcement continued regardless.
10. International instruments
Australia is a party to the International Covenant on Civil and Political Rights (ICCPR), ratified in 1980. Article 2 obliges Australia to ensure that any person whose rights are violated has an effective remedy. Article 14 guarantees the right to a fair hearing. Article 17 protects against arbitrary interference with private life, family, home or correspondence.
While the ICCPR is not directly enforceable in Australian domestic courts as a free-standing cause of action, Minister for Immigration v Teoh (1995) 183 CLR 273 established that ratification of a treaty creates a legitimate expectation that government decision-makers will act in conformity with it. A decision-maker who departs from treaty obligations without affording the affected party an opportunity to be heard on that departure acts in breach of procedural fairness.
The practical synthesis – what to do
The combination of the above instruments, deployed in sequence and documented with precision, creates a cumulative record that progressively narrows the officer’s room to manoeuvre. The sequence is:
The first step is always to identify the specific authority claimed and put the officer on notice that the authority is questioned. Every subsequent step builds on the failure or inadequacy of the response to that first step.
The record itself is the primary instrument. A man or woman who documents every notice given, every question asked, every response received or not received, every detriment suffered, and every escalation taken, and who keeps that record in a form capable of being placed before a court, is in a fundamentally stronger position than one who relies on verbal interactions or informal communications alone.
The record built carefully at every step is the only thing that travels forward.
The final point is the most important one. The rights described above are not gifts from the institution – they are rights the institution is obliged to respect because the institution itself derives its authority from the constitutional consent of the people. A public officer who cannot trace his or her authority back to that constitutional source, and who enforces consequences against a man or woman without being able to do so, is acting without lawful foundation. The duty of the man or woman is to require that foundation to be identified and, where it cannot be, to place that failure on the record and pursue the appropriate remedy.
Fiat justitia ruat caelum.
Last Updated 3 months ago
Views: 91