Convenor of the Public Law Research Community at the Adelaide Law School, Dr Gabrielle Appleby attempts to answer the question of what makes law ‘public’?
As the convener of the Public Law Research Community I have often been asked what is ‘public law’. My response is that I have always thought of public law broadly, not limited to the traditional conception of constitutional and administrative law that is usually covered in courses on the area. I start from the fundamental conception that public law looks at the relationship between the government and the governed. Private law, in contrast, concerns the relationships between individuals within a community.
Public law looks at the responsibility of the government to the governed because of their position as custodians of public power. The concern of public law is therefore to ensure that this power is exercised in a way that pursues the public good.
Public law so defined will often transcend the purely legal and enter the realm of policy. However, its political aspect should not be confused with partisan concerns. Public lawyers look at how policy can achieve community and individual benefit. This is likely to be influenced by the philosophical perspective of the scholar, but this is a far cry from influence by party political positions. Scholars chose their positions based on faithfulness to a particular conception of the public good, and the role of government in society, and reason from this to conclusions on particular policy. Importantly, although public law scholars may be influenced by different understandings of public law, they advocate for positions based on principle and reasoning, and not to further the interests of a constituency. Party political debate is often not grounded in theory, or required to take a consistent approach. Indeed, often the role of the public law scholar is to identify the underlying understandings of public law that are being relied upon and used as justifications for policy, pointing out their historical origins, and their theoretical influences. An important role of public law scholars is to point out the diverse influences drawn upon by government and courts, and sometimes to identify incoherence and inconsistency in the use of these influences.
Public law has an inherently different quality to private law, although the distinction is not always maintained. Sometimes, for example, the government will intervene in the legal relationships between individuals – such as the Commonwealth’s recent reform agenda in contract law. Thus, private law may ultimately be regulated by the government and the form of regulation may be influenced by what is in the best interests of the community. Nonetheless, it remains fundamentally about resolving disputes between individuals (whether they are natural persons or corporations). Sometimes, of course, the government becomes involved in transactions like those entered into by individuals and will become party to these disputes. The public nature of the government changes these disputes – public law enters the arena of private law – in ways such as the model litigant principle.
So where does that leave my answer to what disciplines would fall within public law? I do not deny that questions about the accountability of power – as are traversed in constitutional and administrative law – are at the heart of public law. Human rights and anti-discrimination law is also concerned with questions about the accountability of public power when exercised against the individual and naturally fall within the purview of public law. There are often international dimensions and influences in these areas of law, and to that extent, public international law must fall within the concept of public law.
In days past, the private sphere was much larger than it is today. Services and activities previously considered exclusively in within the domain of the individual are now regulated and overseen by government. Anti-discrimination legislation, for example, now applies in private as well as public workplaces.
Criminal law, and the role of the state in policing and prosecuting crimes within society on behalf of the community, is an obvious addition to the public law field. Migration and refugee law and the role of the State in defining who we are, through citizenship, and therefore defining the ‘Other’ and prescribing how the ‘Other’ is to be dealt with, is also an important part of public law.
Environmental and planning laws have an important public dimension. Planning controls and environmental protection measures are implemented and executed by the government on behalf of the community. The government’s actions in this area are therefore an important concern of public law. Related but separate to these areas is the field of native title law, which also falls within the purview of public law. Because of the nature of native title in Australia and its extension to Crown lands only, the government is always important party in the determination of native title claims and therefore native title law concerns the relationship between the government and the government.
A large number of other subject areas involve questions about what is the proper role of government in the regulation of the conduct of individuals and the government’s role in overseeing and intervening in these areas. Labour law and the extent to which the government ought to regulate and oversee industrial relations is an important and often controversial part of public law. The FairWork Ombudsman is a statutory authority with the responsibility to oversee and investigate compliance with these regulations. Another is competition law and the protection of consumers against unregulated market practices. In competition law, the Parliament has created a government watchdog, the ACCC, to police and enforce the regulation it has imposed. This is also the case in the corporate and financial sectors. While these areas now have a distinct public aspect to them, they remain predominantly areas of law concerned with the relationships between individuals.
In an earlier post, one of my colleagues Dr John Gava asked whether the distinction between public and private law served any purpose. I think it remains an important distinction, useful because it emphasises the different nature of power that is involved and therefore the interests of the community in its proper exercise and bringing it to account. While, for example, contract law may from time to time be the subject of government intervention to change the rules, it is not the subject of ongoing government oversight and therefore responsibility. Its enforcement remains a question between individuals. In contrast, the enforcement and compliance with public law is a question that concerns the whole community.
 I would like to acknowledge and thank my colleague Alex Reilly for assisting me to elaborate and elucidate the role of the public lawyer in policy debate.