The Frontiers of Public Law

Jason NE Varuhas, Shona Wilson Stark, Jason NE Varuhas, Shona Wilson Stark

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509930388
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This major collection contains selected papers from the third Public Law Conference, an international conference hosted by the University of Melbourne in July 2018. The collection includes contributions by leading academics and senior judges from across the common law world, including Australia, Canada, New Zealand, the United Kingdom and the United States. The collection explores the frontiers of public law, examining cutting-edge issues at the intersection of public law and other fields. The collection addresses four principal frontiers: public law and international law; public law and indigenous peoples; public law and other domestic fields, specifically criminal law and private law; and public law and public administration. In common with the two books from the previous Public Law Conferences, this collection offers authoritative insights into the most important issues emerging in public law, and is essential reading for those working in the field.

1

Introduction: The Frontiers of Public Law

JASON NE VARUHAS AND SHONA WILSON STARK^*

This collection originates from the third biennial Public Law Conference, entitled ‘The Frontiers of Public Law’, a major international conference held at Melbourne Law School in July 2018, co-organised by the University of Melbourne and the University of Cambridge. We acknowledge the Wurundjeri people of the Kulin Nation as the Traditional Owners of the land on which the Conference took place.

The 2018 Conference was the third in an ongoing biennial series of major international conferences, following on from the first two Public Law Conferences, both held in Cambridge, in 2014 and 2016 respectively. This collection is the third book in an ongoing series, following on from those collections derived from the first two Conferences: Public Law Adjudication in Common Law Systems: Process and Substance,¹ and The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives.²

The motivation for the conference series is to provide a leading international forum for public lawyers from a broad range of jurisdictions to discuss and debate the most important public law issues facing common law systems; and through this enterprise to foster a community of public lawyers drawn from multiple jurisdictions and from the academy, judiciary, legal practice and government. From the time of founding the series it was always the intention of the convenors that following the second Cambridge Conference the series would move to different parts of the common law world. The Melbourne Conference, from which this collection derives, was the first such conference to be held outside the United Kingdom (UK). Moving the conference carries forward the goals of the series, bringing in a wider range of perspectives and participants from different jurisdictions, and focusing attention on public law issues pertinent to different countries and regions. As is evident from the content of this collection, as well as addressing cutting-edge issues that arise across the common law world, the Melbourne Conference also focused attention on a set of public law issues that had not so far been a central focus of the conference series, and which are of particular significance in Australia. Specifically, it was of fundamental importance that public law issues relating to Indigenous peoples should be a core concern of the Conference and collection, especially in the light of recent landmark developments in Australia, including the Uluru Statement from the Heart and moves towards a treaty with Indigenous peoples in the State of Victoria, and given the importance of these issues for other common law settler states, including New Zealand and Canada. The Conference included plenary and parallel sessions addressing this topic within single jurisdictions and from a comparative perspective. The topic will again be one of a number of important themes to be explored at the fourth biennial Public Law Conference, to take place in Ottawa in June 2020, co-organised by the Universities of Ottawa, Melbourne and Cambridge. The Ottawa Conference will be the first conference in the Public Law series to take place in North America.

The conference series, now established as the leading regular forum for the scholarly discussion of public law in the common law world, continues to grow and develop. The Melbourne Conference saw the largest number of attendees of any conference in the series, with 250 delegates in attendance from 125 institutions, drawn from 20 countries. It also saw the largest response to our general call for papers, and largest conference programme, with 80 papers presented in just over two days. It is particularly pleasing that the Melbourne Conference attracted the largest number of judges, officials and legal practitioners of any of the conferences in the series, with these groups accounting for approximately half of all delegates, which produced an exciting and stimulating environment for exchange of ideas between those within the academy and those working outside universities. All legal analysis can be enriched by engagement among academic public lawyers and those in practice, in government and on the bench, each group bringing different perspectives to bear in the light of their different experiences. The Conference opened with a panel comprising Kenneth Hayne, formerly of the High Court of Australia, and Lord Mance, then Deputy President of the UK Supreme Court, who considered the frontiers of judicial and executive power. The keynote plenary session featured Professor Cheryl Saunders, of Melbourne Law School, and Professor Benedict Kingsbury, of New York University School of Law, who considered the rise of global constitutional and administrative law.

In common with the previous collections, this book brings together leading academics and judges, as well as a stellar group of early career scholars, drawn from across the common law world, to discuss and debate issues at the cutting-edge of public law. The essays identify, analyse and provide solutions to a range of novel issues of great importance at the border of public law and other fields, many of these issues so far having been unrecognised or under-explored, despite their significance. The chapters will be an invaluable reference point for public lawyers seeking to understand these emergent issues at public law’s frontiers, and are likely to lead thinking on these topics and set the parameters for future debate and discussion. Importantly, the issues addressed herein implicate not only public law but variously international law, the law relating to Indigenous peoples, private law, criminal law and the practice of public administration. As such, the essays will be of importance to those working in these fields. As is discussed in the next section, many of the most important legal issues arising within and across common law jurisdictions implicate more than one field, and therefore call for thinking across the traditional categories around which legal thought and legal practice have been organised.

I.The Frontiers of Public Law

The theme of this collection, which follows the theme of the Melbourne Conference, is ‘The Frontiers of Public Law’. The book builds on the intellectual foundations set by the previous collections. The first collection, published in 2016, interrogated a supposed boundary that runs through public law, between process and substance or, perhaps more accurately, multiple boundaries between process and substance within public law. If the first book focused on an important distinction within public law, the second book, published in 2018, examined the extent to which public law is or is not a unified field or discipline, considered from the perspectives of doctrine, theory and comparative law. This included consideration of multiple boundaries within public law, and consideration of public law across jurisdictional boundaries. This book, on the frontiers of public law, moves from looking at questions squarely within public law, to examining intersections between public law and other fields (albeit the essays have significant ramifications for public law itself, as discussed further below). The term ‘frontiers’ was preferred to ‘boundaries’ in order to encourage exploration not only of the constraints on or limits of public law, but also of the possibilities for legal development and legal thought at public law’s outer edges. The chapters address four frontiers: public law and international law; public law and the law relating to Indigenous peoples; public law and other fields of domestic law, including criminal law and private law; and public law and public administration.

One important prompt for the ‘frontiers’ theme is that public lawyers have tended to focus on matters at the perceived ‘centre’ of, or within the ‘mainstream’ of, public law, with the vast majority of scholarly writing preoccupied with a relatively small set of well-known topics, such as the legitimacy of judicial strike-down powers, dialogue under bills of rights, deference, statutory interpretation and so on, the terms of debate for each topic being well established, with scholarship in regard to each becoming increasingly specialised and detailed, concomitant with the increasing specialisation of the legal academy. The topics are no doubt important, thus why they have garnered such attention, but at a certain point the law of diminishing returns must invariably cut in. What has been far less explored is public law’s outer edges. Yet it is at the outer edges of a field or discipline that one often learns the most about the nature of that field or discipline. This is because at the outer edges certain matters, taken for granted at the (perceived) centre of the field, are brought squarely into focus and tested. These include the fundamental question of whether there is a distinct field of public law at all and, if so, in what way it differs materially from other fields. Often, as one explores the edges of public law, one identifies topics of such significance that they should be a core concern of public law inquiry and/or should not be considered distinct from the field of public law. For example, there must be a serious question whether any public law issue in a settler state can be examined in isolation from a consideration of how the issue impacts on Indigenous peoples. In other words, Indigenous laws, rights and culture should be at the very heart of public law thinking and scholarship, including in scholarship on those established public law topics considered above, such as dialogue and interpretation, as chapters in this collection demonstrate.

Certain matters of fundamental importance, including matters that are of increasing prominence, such as contracting by government, the rise of soft law techniques, the phenomena of global administrative and constitutional law, the role of the judge in criminal law proceedings and the regulation of Indigenous property rights, simply cannot be addressed without the input of public lawyers, and equally cannot be addressed solely through the application of public law tools. These matters implicate international law, criminal law, private law, the law relating to Indigenous peoples, and the discipline of public administration. One aim of the collection is to draw out this complexity, and the multi-dimensional nature of emerging legal problems. A further aim is to encourage conversation on these topics among specialists in public law, specialists in the other fields and those with knowledge across fields. In turn the chapters provide an incisive and well-rounded set of insights into the selected topics, interrogating these topics in a way that recognises their complexity and multi-dimensional nature.

An important and interesting question raised by the chapters is the extent to which there are discernible boundaries or frontiers between public law and the other fields. It is difficult to provide a single answer to what is a ‘big’ question, and in a sense the question is one posed for readers, to draw their own conclusions, in light of the rich material presented in the chapters.

Nonetheless, there is at least one golden thread running through the contributions to this collection. As certain phenomena, which are the subject of legal regulation, tend to greater complexity – government, public administration, politics, social life, technology, economy, the international order and so on – there are significant ramifications for public law practice and thought. In particular, the law must of necessity adapt to comprehend and effectively regulate this changed reality, which in turn often has the consequence of challenging, and possibly breaking down, established legal categories or boundaries. In turn there is greater fluidity between fields previously considered distinct, such as public law/international law, public law/Indigenous law, public law/private law, public law/criminal law, and public law/public administration. Of course, the path of legal development may not necessarily be smooth. Indeed, legal change is likely to be messy, uneven and stuttering, as longstanding concepts and categories prove resilient to varying degrees. From a comparative perspective it is important to observe that new lines are likely to be drawn differently in different jurisdictions, depending on local contextual features.

Turning first to the division between domestic and international law, for a long time there has been much consideration of the influence of international law on the domestic order, but as the division between the two has worn thin, we increasingly see ideas drawn from the domestic sphere ebbing into the international domain, such as constitutionalism and administrative law, and indeed more generally there has been a reassertion of the domestic and the local, which in turn challenges the universalising tendencies of international law. Moreover, the international realm has itself become increasingly complex, making its intersection with an increasingly pluralistic domestic order far from uniform.

The increased recognition that the law ought to specifically protect the interests of Indigenous peoples, has contributed to the increased plurality of common law legal systems. This may be because Indigenous legal norms are read into or inform the general law of the state. It may be because a settler legal system creates new norms specifically to address the interests of Indigenous peoples, such as variants of fiduciary obligation, duties to consult, Indigenous legal rights or new institutional structures. Or it may be because the distinctiveness of claims seeking to protect Indigenous rights or interests adds a new dimension to existing fields, such as the law of judicial review. Furthermore, a normative concern to recognise and protect the interests and culture of Indigenous peoples cuts across established legal categories; it is a concern relevant to public law, property, tort, equity, succession, contract and so on. Indeed, it is difficult to think of a legal field where the normative concern is not relevant. Because this normative concern cuts across established categories, it also operates to challenge and break down those categories. So, for example, ‘private’ ideas of personhood, property and rights are put to ‘public’ ends, such as safeguarding sites of cultural importance, and at the same time give legal recognition and effect to important aspects of Indigenous culture such as Indigenous conceptions of nature. Treaties with Indigenous peoples defy categorisations of purely public, private or international. Thus, as the normative concern to recognise and protect Indigenous interests gains force and momentum, it will likely operate to reshape or break down traditional modes of thought and categorisation.

Modes of government have become increasingly pluralistic and sophisticated, with governments mobilising new tools such as soft law (with corresponding developments in the international sphere). In the case of soft law, its legal regulation challenges existing public law categories, posing questions as to whether old categories should adapt or new ones be created, and draws public law and judges deeper into the domain of public administration (raising the question of whether judicial control is the best form of control). Indeed soft law tools such as policies, which are creatures of public administration, may be co-opted as judicial tools of legal regulation, collapsing any discernible division between law and administration.³ Another technique, government by contract, challenges intuitively familiar categories of public and private, administrative law and contract law. Indeed it is increasingly difficult to differentiate an autonomous public sphere from an autonomous private sphere in the world, the two being increasingly intermingled, with the consequence that any distinction between public law and private law will struggle to provide a workable basis for organising legal thought or the legal system. In turn, concepts are likely to float more freely between formerly distinct fields, and satisfactory and workable solutions to contemporary problems are unlikely to be found by applying the lens of solely public law or private law, administrative law or contract law, and so on.

II.Structure and Chapters

The book is in four Parts. The chapters in each Part address a particular frontier of public law: public law and international law (Part 1); public law and the law relating to Indigenous peoples (Part 2); public law and other domestic fields of law, specifically criminal law and private law (Part 3); and public law and public administration (Part 4). While this structure has been adopted for organisational purposes, there are multifarious interconnections between the chapters in different Parts, so that the divisions are porous rather than impermeable. The different Parts should be read as being in conversation with one another.

Part 1:Public Law and International Law

Part 1 considers new and emergent issues at the intersection of public law and international law. A common thread is the influence of the domestic on the international. The following are a particular focus: (i) ideas and concepts associated with domestic public law, such as constitutionalism and administrative law, gaining traction in the global sphere, and also the resilience of domestic law and politics in the face of globalisation; (ii) new governmental techniques prevalent in domestic public administration, such as soft law, being increasingly mobilised in the context of international law and relations; and (iii) the impact of domestic politics on the supranational or international stage, and the ‘feedback effects’ this has on domestic public law.

In regard to (i), Cheryl Saunders (chapter 2) explores the phenomenon of global constitutionalism, examining from the perspective of domestic constitutions the apparent gap between certain claims made in relation to global constitutionalism and realities on the ground. The chapter scopes the field, disaggregating different strands of global constitutionalism. The heart of the chapter is a detailed consideration of two foundational dimensions of constitutional law, constitution-making and change, and constitutional adjudication, in order to gauge the effects of globalising forces domestically. The studies reveal a mixed picture, including the considerable resilience of domestic constitutional law and theory, despite the global context in which they operate, but also scope for better responses to issues raised by that global context within the domestic public law order.

Moving from constitutional to administrative law, Benedict Kingsbury (chapter 3), a founder of the field of global administrative law (GAL), considers the field’s frontiers as it moves into the 2020s. The chapter offers an account of GAL as a set of mechanisms, principles and practices that promote or otherwise affect the accountability of global administrative bodies. It charts the piecemeal and incremental development of GAL within a plurality of contexts in the global space, and with variable normative content. Kingsbury considers concepts and methods central to understanding of the field, including ‘law’, ‘administration’, ‘distributed administration’ and ‘private governance’. Importantly, the chapter explains the interdependence of GAL and changes in global political, economic and social orders, examining reasons for the rise of GAL and its prospects going forward in a context of shifting responses to globalisation that increasingly strai...