Rock, Ellen --- "Fault and Accountability in Public Law" [2018] UTSLRS 5; Jason Varuhas and Shona Wilson Stark (eds) The Unity of Public Law (Hart Publishing, 2018)

Last Updated: 21 September 2020

This is a pre-publication copy of a chapter appearing in Mark Elliot, Jason Varuhas and Shona Wilson Stark (eds), The Unity of Public Law (Hart Publishing, 2018)

Fault and Accountability in Public Law

ELLEN ROCK^[*]

I. INTRODUCTION

There are few who would deny that accountability is a core value that underpins our public law system. However, there are equally few who have explicitly explored the manner in which public law contributes to government accountability. On closer analysis, it is clear that while public law makes a number of important contributions to government accountability, the remedial limitations of public law prevent us from describing it as a comprehensive accountability regime. In the context of public governance, accountability can be understood as a set of four interrelated objectives. The first is to provide transparency in government decision-making. The second is to control the exercise of public power and ensure that it stays within legal bounds. The third is to punish abuse of power, and the fourth is to restore interests that are affected as a result. Public law supports the first two of these objectives, however it fails to provide any meaningful contribution to the latter two; public law remedies do not punish or restore.
This raises somewhat of a predicament. How can accountability be a core public law value, on the one hand, but not be adequately reflected in our public law principles, procedures and remedies, on the other? Is accountability simply a rhetorical aspiration, rather than a concrete objective of public law? Are there fundamental or pragmatic reasons why accountability cannot or does not apply in a comprehensive way in the public law sphere? The purpose of this chapter is to commence a dialogue about whether public law is capable of operating as a comprehensive accountability regime. This is not intended as a proposal for law reform, but rather to stimulate discussion about how and why public law has developed in the way that it has, and what this might say about the place of public law as an accountability mechanism within our system of governance. In the context of this discussion there are a whole host of valuable issues that warrant consideration, to which the present chapter offers insufficient space to do justice. Instead, this chapter kick-starts the proposed dialogue by focussing on just one issue: are the norms that are enforced via public law consistent with the punitive and restorative objectives of accountability?
In answering this question, the first issue to consider is when the punitive and restorative objectives of accountability might be relevant. Though there might be a number of ways of approaching this issue, one possibility is to take the lead from those who have identified a close connection between the concepts of accountability and responsibility. Based on this close connection, one way of giving shape to these objectives is to adopt a personal responsibility-based approach, in which punishment and restoration are viewed as functions of culpability. The notion of fault would play an important role in a culpability-driven accountability regime; if we wish to hold officials accountable outside cases of intentional wrongdoing, we would need to identify a justification for doing so.
The position adopted in this chapter is that in searching for this justification, we might adopt a different approach for each of accountability’s objectives. The control objective arguably supports a strict liability approach, wherein regulatory orders are justified irrespective of fault. This is because control is about policing the boundaries of public power, a goal that could not be achieved if we could only intervene where a boundary was knowingly or negligently transgressed. At the other extreme, punishment would only be justified when an official acts in a subjectively faulty way (for example, intentionally causing harm). This is because the punitive objective of accountability is concerned with condemning reprehensible conduct, a goal that would be undermined if innocent excesses of power attracted punishment. Finally, accountability’s restorative objective is concerned with putting wrongs right for the purpose of supporting the legitimacy of government. If legitimacy is threatened, we can justify reparative remedies outside cases of fault. However, at least in relation to the exercise of discretionary powers, the most coherent approach would be to limit the obligation to restore to cases where an official acts in an objectively faulty way (for example, falling short of a prescribed standard of reasonableness). To summarise, in a culpability-focussed accountability regime, we can likely justify imposing regulatory orders on a strict liability basis. However when it comes to punishment and restoration, liability in such a regime would depend on whether an official’s contravention is accompanied by the relevant degree of fault that engages those remedial responses: subjective fault for punishment and objective fault for restoration.
We tend not to think about public law in terms of fault. Indeed, in many ways we think about public law as being a style of strict liability regime, in which public law norms might be contravened irrespective of an official’s actual degree of knowledge or intention. This might lead us to wonder whether our public law principles are capable of working within the accountability regime outlined above. If public law is not a fault-based regime, how could it accommodate a remedial framework that hinges off concepts of fault? This chapter explores the generally uncharted fault-based foundations of public law, concluding that two of our core grounds of judicial review can be understood as ‘benchmarks’ of fault. Bad faith stands as a benchmark of subjectively faulty behaviour, capturing conduct that rises to an unacceptable level of dishonesty or malice. 'Legal unreasonableness', which has taken the place of the traditional Wednesbury unreasonableness test in Australian law,^[1] stands as a benchmark of objective fault, capturing conduct that falls short of an objective measure of reasonableness and rationality in government decision-making. This analysis demonstrates that, at least insofar as accountability is dependent on notions of fault, our public law norms are consistent with the punitive and restorative objectives of accountability.
The purpose of this analysis is to demonstrate the value in using accountability as a ‘lens’ through which to analyse the makeup of our public law system. We are prompted to think about public law in new ways, and to recognise features of our current system that we might previously have taken for granted. As demonstrated in this chapter, one thing that the accountability perspective shows us is that public law is not the strict liability regime that we often treat it as. Rather, there are shades of fault-based liability that are bound up in our public law grounds of review. We can therefore conclude that to the extent that accountability requires a fault-based assessment of government decision-making, our public law principles are well adapted to this purpose. This argument does not go so far as to state that we should therefore be comfortable in expanding our public law remedies to serve the neglected punitive and restorative objectives of accountability: that is a much wider question of law reform than is considered here. Rather, it shows us that if there are good reasons for public law’s failure to provide punitive and restorative contributions to government accountability, these reasons do not lie in any inconsistency between our grounds of review and the fault-based foundations of accountability.

II. AN ACCOUNTABILITY FRAMEWORK

I have written elsewhere about the concept of accountability, and its place within the public law sphere.^[2] A brief summary of that argument is set out here for convenience. In the context of public governance, I have argued that accountability is regarded as a core public law value, tied to our rule of law and separation of powers principles. One of the overriding purposes of accountability is to support the broader legitimacy of government, which it does through the pursuit of four objectives. The first objective of accountability is to provide transparency in government operations, by facilitating public scrutiny. In some cases, the transparency achieved through this process may be an end in and of itself, revealing sound administrative procedures and rigorous adherence to principles of good decision-making. However, in cases where transparency exposes a breach of norms of good administration, we must turn to the remaining three results-oriented objectives of accountability: to control public power, to punish abuse of power, and to restore interests affected as a result.
The control objective of accountability is best understood by viewing accountability as a principal-agent relationship. The ability to control one’s agent is a fundamental feature of an agency relationship, enabling a principal to ensure that the agent acts not out of self-interest, but in pursuit of the best interests of their principal. This control may be manifested in a number of different ways, but the key characteristic is coercion; control is not merely a matter of influence, but instead enables the principal to compel their agent to comply with prescribed norms. The punitive objective of accountability serves a different purpose. It is concerned with condemning reprehensible conduct; a ‘tar and feather’ response to wrongdoing. This objective of accountability serves an essentially expressive purpose, though some suggest that punishment may also serve as a deterrent against future transgressions.^[3] If the punitive objective of accountability is focussed on the actions of the wrongdoer, the restorative objective is more concerned with the effects of those actions on others. The obligation to repair harm is an important way in which accountability reinforces the legitimacy of government, providing the assurance that where the government causes harm as a result of its wrongdoing, that harm will not go unremedied.
In a practical sense, each of the four objectives of transparency, control, punishment and restoration are supported through the procedures and mechanisms that make up our system of public governance. For example, when we think about the legal system as a whole, we can see that a range of court procedures contribute to transparency, including various evidentiary procedures, trial procedures and even the open nature of the court forum itself. The remaining three results-oriented objectives are in turn supported through the different types of remedies that might be awarded by the courts: regulatory orders (such as injunctions) to provide control, punitive sanctions (such as fines) to provide punishment, and reparative remedies (such as compensation) to provide restoration. When viewed as a whole, then, the legal system contains a number of mechanisms and procedures that are capable of supporting the four objectives of accountability.
I have argued, however, that public law does not make full use of the arsenal of accountability mechanisms that make up our legal system.^[4] When an official’s compliance with public law norms is in question, proceedings for judicial review may play a role in securing transparency by compelling the official to justify his or her conduct in an open public forum. However, if it is discovered that the official has in fact breached norms of good administration, the available public law remedies are inherently regulatory in nature, supporting only the accountability goal of control. Along with injunctive and declaratory relief, the writs of certiorari, prohibition and mandamus are essentially limited to policing the boundaries within which public power can be exercised. These remedies play no meaningful role in punishing abuse of power. In some cases, an applicant might derive a restorative advantage from these remedies (eg where the court quashes a decision to revoke a benefit, the effect of that remedy is to restore the benefit). However, such advantages are largely a matter of co-incidence rather than design. These advantages do not reflect the true character of the remedy, which is to contain public power within defined limits. This all leads to the conclusion that public law is not a comprehensive accountability regime, as it fails to contribute to two of the core objectives of accountability: punishment and restoration.

III. A VALUABLE THOUGHT EXERCISE

Before launching into the argument addressed in this chapter, it is useful to set out a hypothetical scenario. This not only provides us with a concrete way to explore the arguments presented, but also gives us an idea of what might be at stake. This hypothetical is one that I have used before,^[5] though for present purposes we can embellish it with a little colour. Imagine that Odette is an official with the local planning authority, and one of her responsibilities is to determine whether applications for proposed new developments should be approved or rejected. Odette has just been handed a new file relating to a particular development. She reviews the file and decides to reject the application on the basis that the applicant has not provided sufficient supporting evidence. As it transpires, the applicant, Alex, phoned the planning authority last week to inform them that he had just put some additional supporting documents in the post.
There are three alternate scenarios that help us to better understand the accountability framework that is considered in this chapter. In the first scenario, assume that the administrative assistant who took Alex’s call recorded the filenote on the wrong file, meaning that Odette was unaware that Alex was sending further evidence when she made her decision. In the second scenario, the filenote has been correctly recorded on Alex’s file. However, when Odette reads this note, she decides that Alex has had plenty of time to get his evidence in: ‘enough is enough!’ Accordingly, she decides to reject the application before the additional evidence arrives. In the final scenario, Odette is a little more underhanded. On reviewing the file, she recognises Alex’s name as one of her neighbours, with whom she is involved in an ongoing dispute. She accordingly decides to reject the application out of spite.
Under our current public law regime, Alex could bring proceedings for judicial review to challenge the legality of Odette’s decision. In all three scenarios, the claim might be based on allegations of denial of procedural fairness, or failing to take into account relevant considerations. The decision in the second scenario may also be framed as one that is legally unreasonable: Odette’s decision not to wait for the additional evidence may be characterised as arbitrary, as in Minister for Immigration and Citizenship v Li.^[6] In the third scenario, the decision may also be framed as one made in bad faith. Irrespective of which ground Alex stakes his claim on, the available remedies are limited to the prerogative writs and injunctive and declaratory relief. Public law cannot punish Odette, nor can it repair any harm suffered by Alex as a result of her conduct. While the retaking of the decision might have the effect of remedying losses in some cases, there are limitations as to what this might achieve. Most significantly, if Odette ultimately re-decides the matter in Alex's favour, this will not repair any of the harm that Alex has suffered in the meantime.
If accountability demands punishment and restoration in appropriate cases, and if we assume that this is a case in which those responses might be appropriate, what do these shortcomings in our public law system tell us?Are we simply wrong when we describe accountability as a core public law value? Or are we wrong to assign it punitive and restorative functions? Neither of these explanations for the limitations of public law is particularly compelling. There is much to be said for treating accountability as a core public law value. The concept has close ties to our constitutional principles of rule of law and separation of powers, and there are convincing arguments to the effect that accountability is critical to secure the legitimacy of government.^[7] There is also much to be said for treating punishment and restoration as core objectives of accountability. Though some might express doubt about whether both of these features are essential in an accountability regime,^[8] there is something very hollow in the idea of an accountability regime which is designed simply to expose wrongdoing, or to limit the possibility of future infractions. If we discover that an official has engaged in a flagrant abuse of public power, would we say that they have been held accountable simply by reason that their wrongdoing has been unmasked and that they have been told not do it again? In appropriate cases, accountability demands that wrongdoers be punished, and their wrongs put right.
If we accept that accountability is a core public law value, and that it demands punishment and restoration in appropriate cases, what then can we make of the lack of punitive and restorative remedies in public law? It is my argument that we have much to gain from exploring whether there are fundamental or pragmatic reasons why public law cannot or does not perform a punitive or restorative role in securing government accountability. By investigating these reasons, we may ultimately conclude that there is a valid explanation for why our public law regime does not comprehensively reflect one of its core values. However, whether or not we manage to resolve that question, using accountability as a lens through which to explore our public law principles, procedures and remedies provides us with an opportunity to better understand the makeup of our public law system and why it might have developed in the way that it has.
Bearing this goal in mind, there are a number of potential explanations for the limitations of public law that we might explore through accountability ‘spectacles’. I have briefly canvassed two such possible explanations elsewhere.^[9] The first is that Australia’s separation of powers framework renders public law an unsuitable vehicle to impose accountability via punitive and restorative remedies. This is an idea that is sometimes implicit in arguments against the adoption of a public law remedy in damages.^[10] The separation of powers concerns that underlie this position might stem, for example, from concerns about whether the award of damages moves the courts into the impermissible field of 'merits' review, or perhaps from more general concerns that this involves the courts in decisions about the distribution of public funds that are more appropriately assigned to the elected branches of government.^[11] A second possibility is a more pragmatic one: that the remedial limitations of public law are overcome through alternate judicial and non-judicial mechanisms that provide punishment and restoration in cases of government wrongdoing (eg liability in tort, liability under the criminal law, and ex gratia compensation schemes, amongst others).
This chapter is concerned with a third possible explanation: that the principles making up our public law system are incompatible with the objectives of punishment and restoration, thereby making it unfeasible to use public law to pursue these objectives. In other words, is public law capable of performing the theoretical acrobatics necessary to allow the courts to perform a robust accountability-enforcing role in public law cases? For instance, is there something in the nature of punitive and restorative remedies (eg awards of punitive and compensatory damages) that is fundamentally inconsistent with the structure and functions of public law? Is public law capable of dealing with questions of causation that must naturally arise in determining whether an official has caused harm so as to be responsible to repair it? Are our public law standing tests sufficiently well adapted to confine the availability of any punitive or restorative public law remedies to those who ought to be entitled to obtain them? Are the procedural aspects of our public law system (eg evidentiary procedures and the burden of proof) compatible with the determination of claims involving punishment and restoration? All of these questions offer interesting opportunities to explore and better understand our public law system. In order to demonstrate the value of this thought exercise, this chapter focusses on just one question: are our public law grounds of review capable of supporting the fault-based analysis that might be required within a comprehensive accountability regime?

IV. FAULT AND ACCOUNTABILITY

Some take the view that accountability is closely tied to the notion of responsibility.^[12] This chapter takes the lead from these authors, looking at the potential shape of an accountability regime that is framed by reference to notions of personal responsibility. Fault would stand as a starting point in such a regime, requiring us to identify justifications for holding a person accountable for unintentional conduct. Before going on to outline the potential justifications that might be relevant in the context of government accountability, it is necessary to expand on what we mean when we speak about ‘fault’.

A. What is Fault?

The concept of fault plays an important role in criminal and civil law. With some exceptions, it plays a far less important role in public law. The notion of fault captures a range of factors relating to an individual’s state of mind, including intention, motive, knowledge and belief. Intention refers to the degree of deliberateness attaching to a person’s conduct, being intentional, reckless, or negligent. Intentional conduct involves a deliberate choice to act. A person may act deliberately with a view to achieving a particular outcome, or may act deliberately with no awareness of what the results of their conduct might be.^[13] Recklessness, while also deliberate in nature,^[14] sits one step behind intention, involving ‘awareness of a risk that certain consequences will result from conduct, and indifference to that risk’.^[15] In this context, it is important to distinguish between ‘not caring’ whether a risk may eventuate, and the legal notion of recklessness, which is more properly characterised as ‘deliberately taking a known risk’.^[16] Negligence, though sometimes thought about in terms of ‘inadvertence’ or ‘inattention’,^[17] is more appropriately described as a failure to adhere to a prescribed standard.^[18] In other words, the intentionality of a defendant’s conduct is irrelevant to the enquiry, as they can be equally accountable for an oversight as for an intended act.
Motives are also often relevant in the assessment of fault. In simple terms, motivation refers to a person’s reason for doing something. While related to the concept of intention, the two terms are not synonymous. For example, a person may drive over the speed limit with a murderous desire to harm others, or out of a desire to experience the thrill of driving fast, or out of a desire to race an ill child to the hospital. In each case the conduct of driving over the speed limit is deliberate (intentional), but the motive for that intentional conduct differs. The consequences of that conduct (eg injuring a pedestrian) may therefore correlate with intention (as with a murderous motive), or may be an unintended side effect. This example also says something about the character of motives that may underlie a person’s behaviour. Good motives (such as racing an ill child to seek medical care) may in certain circumstances justify otherwise blameworthy conduct.^[19] ‘Bad’ motives may be further divided into intrinsically malicious and collaterally malicious categories.^[20] Intrinsically malicious motives are those which are inherently reprehensible, such as wanting to injure others. Other such motives would include spite, or wanting to gain at another’s expense. Collaterally malicious motives are those which, while not intrinsically bad, are not authorised in the circumstances. The thrill-seeking desires of our dangerous driver might fall into this category, as would acting for personal gain or some other goal which, while acceptable in some situations, would not be allowed in the circumstances.
A person’s knowledge is a further state of mind that contributes to their degree of fault. There are a number of observations that we can make about a person’s knowledge. First, the fact that a person turns out to have been wrong about what they thought they knew is not determinative of fault. To take an example, a person may set fire to a house believing it to be inhabited. If the house is in fact inhabited, we can say that the wrongdoer ‘knew’ of it. If it transpires that the inhabitants were not home, we cannot say that the wrongdoer ‘knew’ them to be inside, but instead that the wrongdoer ‘believed’ them to be inside. In either case, we are generally concerned with attributing fault based on the wrongdoer’s state of knowledge or belief, rather than the empirical correctness of their state of knowledge or belief.^[21] Secondly, there are varying degrees of knowledge that may be relevant in determining fault. For instance, we may define fault by reference to a wrongdoer’s actual, subjective knowledge or belief. Or we may extend fault to also capture knowledge that has been wilfully disregarded, in the sense that a wrongdoer has ‘shut their eyes’ to information, in the manner of recklessness as discussed above. We may further extend fault into an objective enquiry, so as to capture information that we say a wrongdoer ‘ought to have known’, or further, by imputing a wrongdoer with information.^[22]
Taking these various ideas as a whole, we can view fault as an amalgam of various enquiries into a wrongdoer’s mind. We might pull together these ideas to describe three categories of fault, as follows. The first category, subjective fault, would capture conduct that is inherently wrongful. Drawing from the three states of mind, this category might include intentional conduct undertaken out of an inherently wrongful motive, such as spite, or desire to harm, or to seek personal gain in circumstances where that would be inappropriate. Irrespective of motive, we might also include intentional or reckless conduct undertaken in the belief that harm would, or was likely to, arise. The second category, objective fault, would not be concerned with subjective intention, motives and knowledge. Instead, it would be focussed on what a person ought to have done, desired or known. Liability within this category of fault involves an implicit judgment that a person ought to have acted differently, or ought to have appreciated that their conduct was likely to have certain consequences. While it uses the label ‘fault’, what we are really dealing with here is a failure to comply with a standard of conduct.^[23] The final category, being strict liability, is not a quality of fault, but instead reflects the notion of liability irrespective of fault. In this category, a wrongdoer’s degree of intention, motives and knowledge are irrelevant, as is the question of whether the wrongdoer has failed to meet an objective standard. All that matters is whether a wrongdoer has committed a prohibited act or produced a prohibited result. Therefore, this category is capable of attaching liability to innocent as well as malicious breaches. It is important to note that these three categories of fault are not mutually exclusive. For example, a strict liability provision may make it an offence to cause water pollution. If a person deliberately pollutes a river out of a desire to damage a neighbour’s property, we may not only conclude that they have contravened the strict liability provision, but also that their actions are intentionally malicious (subjective fault), and that they ought to have acted differently (objective fault).

B. Why is Fault Relevant in the Context of Accountability?

Having identified the different qualities of fault that might attach to conduct, the next important question to ask is why should we be concerned with fault in the context of accountability? This chapter considers the potential shape of an accountability regime if it were informed by notions of personal responsibility.^[24] There are close ties between the concepts of responsibility and accountability, to the extent that they are sometimes treated as synonymous.^[25] Relevantly for present purposes, there are some who would view the concept of ‘responsibility’ as referring to the normative aspects of ‘accountability’.^[26] On this view, responsibility involves being a responsible person,^[27] while accountability involves the external process of being held to account. A failure to act responsibly is what exposes a person to an accountability process, and being held accountable can be seen to reinforce the underlying norms of responsibility going forward. Though accountability and responsibility are best not reduced to synonyms, there are clear symbiotic elements to the relationship between the two concepts. If we take the approach that accountability has its basis in notions of personal responsibility, what might this tell us about when and how it is appropriate to hold government officials accountable?
Fault is a recurring theme in the literature on responsibility. Many explanations of responsibility employ as their starting point the idea that a person should only be held responsible in circumstances where they are culpable, and that a person can only be culpable in circumstances where they possess a requisite level of mental engagement (usually that their conduct was intentional and the resulting consequences were intended, or at least foreseen).^[28] At its core, the idea of restricting responsibility (or accountability) to cases in which a person acted intentionally is bound up in the notion of choice: it is appropriate to hold people accountable for the consequences of the choices that they have made.^[29] For this reason, we have little difficulty holding a person responsible (or accountable) if they have acted on the basis of subjective fault, out of a desire to cause harm, or foreseeing but not caring that they will cause harm. The rationale becomes more tenuous the further we move away from deliberate choice, or subjective fault.^[30] On what basis can we impose liability where a person has not actually averted to the possibility of harm in any subjective sense? Three possible justifications are the theories of unexercised capacity, outcome-responsibility, and relational responsibility.
The idea of unexercised capacity informs Hart’s justification for criminal punishment in the absence of subjective fault. The crux of the theory is that a person might be held responsible not only for their deliberate conduct, but also for failing to exercise ‘the capacities and powers of normal persons to think about and control their conduct’.^[31] In other words, if a person could have acted differently, we can justify holding that person responsible for their choice not to have done so. This enquiry becomes one part objective and one part subjective: we ask whether a person has failed to meet an objective standard, and then ask whether that person was in fact capable of meeting that standard.^[32] It is in this respect that the unexercised capacity theory falls short of offering a complete explanation for responsibility in absence of deliberate wrongdoing. Asking what an individual could have done differently is a subjective enquiry into their available alternatives. But the objective fault criteria considered in this chapter go further, asking what a reasonable person in the circumstances (not the individual in question) might have done differently. In this sense, when we say that a person ought to have acted differently, it is not a complete answer to say that factors outside the person’s control influenced their ability to meet the relevant standard. Therefore, the idea of unexercised capacity does not take us much further than liability based on subjective fault.
Outcome-responsibility, as posited by Honoré, provides a second possible justification for responsibility in absence of subjective fault. For Honoré, the notion of responsibility cannot be explained solely by reference to a person’s behaviour, or fault, or choices.^[33] Rather, a person can also take on responsibility voluntarily,^[34] or it may be imposed through societal norms.^[35] Irrespective of its source, responsibility for Honoré ‘involves a combination of actual or assumed control and risk’, and within that frame it is appropriate that a person who can take the credit arising from their conduct is also subjected to the blame (or ‘discredit’).^[36] Honoré employs this notion of a credit-discredit balancing act to argue that when applied consistently over time, imposing responsibility derives overall benefit for individual members of society.^[37] However, he distinguishes between the idea of outcome-responsibility and liability: some ‘extra element’ is needed to superimpose a legal sanction.^[38] Beyond cases of fault, Honoré suggests that legal sanctions may be appropriate where the wrongdoer’s conduct ‘carries with it a special risk of harm’.^[39] Again, this theory does not take us much further in our accountability analysis. The attribution of responsibility for outcomes does not of itself extend to imposing sanctions, and the search for Honoré’s ‘extra element’ leads us into a circular quest for the elusive justification for strict liability.
The third theoretical justification holds more promise. This view, proposed by Cane, relies on the relational nature of responsibility to justify remedial responses outside cases of fault.^[40] Unlike the unexercised capacity and outcome-responsibility theories, which are essentially focussed on the wrongdoer, Cane’s argument is that responsibility is a two-sided affair that should take into account not only the wrongdoer, but also the interests of the victim and society more generally. Through a distributional analysis, a balance is struck between the interests of the parties, in some cases supporting the imposition of obligations to repair in absence of fault.^[41] In other words, a person might be held responsible beyond cases of subjective fault by virtue of burdens inherent in the relationship between the parties. These observations take on particular significance in the context of accountability, which is by definition a relational concept. There is much to be said for the view that an accountability mechanism should strike a balance between the interests of the two parties to that relationship, which in some cases may justify remedial responses beyond cases of subjective fault.

C. How Would a Comprehensive Accountability Regime Approach Fault?

We can adapt the foregoing analysis to ask how fault might determine the availability of remedial responses in a comprehensive public law accountability regime. To reiterate the conclusions drawn earlier in this chapter, once transparency has exposed a breach of obligations, the three results-focussed objectives of accountability are to control the exercise of power, punish excess of power, and restore interests affected as a result. The current public law regime serves the accountability objective of control through regulatory orders. Fault presently plays very little part in determining whether or not an official has contravened a public law norm, or in selection of the appropriate public law remedy. In essence, liability under the current regime is strict, and the available remedies are regulatory. In a comprehensive accountability regime, it is appropriate that regulatory orders continue to be available irrespective of fault. Accountability’s control objective is concerned with policing the boundaries of public power. We could not achieve this goal if only faulty excesses of power were the subject of a remedy, and so we would have little concern about maintaining a strict liability approach to the award of regulatory orders. The current regime effectively serves the objective of control, but how might it operate in the context of punishment and restoration?
The accountability objective of punishment, served by way of punitive sanctions, is concerned with public condemnation of inherently wrongful conduct. It is this condemnatory character of punishment that might lead us to confine punishment to cases of subjective fault, in line with the choice theory. Where a person has acted maliciously, or knowing they are likely to cause harm, accountability may demand a sanction that signifies the inherent wrongfulness of their conduct. Returning to the earlier hypothetical, Odette’s spiteful conduct in the third scenario may be of such a character as to warrant condemnation via punitive sanctions. However, if we were to go further and extend the reach of punishment into objectively faulty and unfaulty conduct (as in the first two scenarios), we risk undermining this primary condemnatory characteristic of the sanction. For this reason, we might conclude that there is merit in restricting the punitive objective of accountability to cases of subjective fault.
Turning to the restorative objective of accountability, served by reparative remedies, different considerations apply. These remedies do not bear the same stigma of condemnation as punitive sanctions, and so we might have fewer concerns about moving beyond the limits of subjective fault. Having removed this ideological roadblock, it is necessary to identify what quality of fault best supports the restorative function of accountability. In this respect, Cane’s relational justification for responsibility is of assistance.^[42] The relational approach, as framed in this chapter, sees accountability as a relationship in which the interests of each party must be balanced against one another, so as to appropriately distribute losses between them. The starting point in any such balancing exercise must be to identify the relevant interests at stake, and in this respect it might be tempting to turn to concepts of individual or constitutional rights. However, this would be an unnecessary complication. The relevant standards that are enforced via public law are not determined primarily by the failure to respect or protect individual rights and interests, but relate more generally to proper administration of public power. As Varuhas notes, these norms are concerned with ensuring that ‘public powers are exercised properly... and in the public interest’, and to the extent that they operate to the benefit of individuals, this is a ‘subsidiary’ rather than ‘primary’ function of the law.^[43] Bearing this in mind, it is necessary to identify the quality of fault that best balances the interests of the government against those of the individual who has been harmed as a result of the relevant ‘public wrong’.^[44]
It may be that there are certain public law norms that justify a strict liability approach in respect of the obligation to restore. For instance, accountability might be thought to demand the restoration of taxes to individuals who pay pursuant to an invalid demand, irrespective of the degree of fault accompanying that demand. The nature of the public wrong in such a case (taxation without parliamentary approval) might be thought sufficiently fundamental that to limit restoration only to cases of intentional or negligent wrongdoing might threaten the legitimacy of government. Accordingly, we might reach the view that it is appropriate to expand reparative remedies (here, restitution) to such cases on a strict liability basis, consistently with the approach adopted by the House of Lords in Woolwich.^[45] There may be other public law norms that would justify a strict liability approach to the obligation to restore, however we can leave the task of identifying these for another day. This chapter is concerned with fault, and a fault-based approach to liability is appropriate in at least one key area of government activity: the exercise of discretionary powers.
Where Parliament confers discretionary powers on an official, a more finely tuned approach to the restorative objective is required. In deciding when the obligation to restore might be enlivened in such cases, we must ask: what is the minimum degree of liability necessary to maintain public confidence in our system of government? The blanket adoption of either strict liability or subjective fault represents extreme alternatives, neither of which seems advisable. Limiting reparative remedies to cases of intentional misuse of discretion fails to provide accountability in cases of wrongful (but not intentional) excess of power. For instance, an official might unknowingly exercise their powers in a manner that we might describe as extremely unreasonable and arbitrary. We might be justifiably concerned about the legitimacy of our system of government if individuals who suffer harm as a consequence of such an exercise of power are left to bear their own losses. Accordingly, limiting reparative remedies to the subjectively faulty exercise of discretionary power would not further the important objectives of accountability. But does accountability demand that we make reparative remedies available for all reasoning errors that may arise in an official's exercise of discretion (strict liability)? Or only those which fall short of an acceptable standard of reasonableness (objective fault)? While a valid case might be made for the former argument, the position adopted in this chapter is that in the context of discretionary powers, the more cohesive approach is to adopt objective fault as the relevant criterion for the availability of reparative remedies. This approach represents a 'middle ground', drawing a distinction between those public law contraventions that demand restoration and those that do not, while taking into account the interests of both parties in the accountability relationship. This approach also conforms to the modern Australian understanding of unreasonableness, as is drawn out in the following section.
To summarise, then, in an accountability regime that is informed by notions of personal responsibility, the concept of fault might be used to define the circumstances in which it is appropriate to engage each of the three results-focussed objectives of accountability. Control via regulatory orders would be appropriate on a strict liability basis, punishment via punitive sanctions would be appropriate in cases of subjective fault, and, at least in connection with the exercise of discretionary powers, restoration via reparative remedies would be appropriate in cases of objective fault. Keeping this framework in mind, we can turn to consider whether our public law system is compatible with this approach.

V. FAULT IN PUBLIC LAW

Judicial review grounds are not traditionally thought about in terms of fault, and indeed, are often treated as forming a largely strict liability regime.^[46] While it is correct that fault is not determinative of contravention of the majority of the grounds of judicial review, on closer analysis we can see that issues of intention, motive, knowledge and belief do play an important role in public law. In particular, we can see that the judicial review grounds establish benchmarks of subjective fault (in the form of bad faith) and objective fault (in the form of legal unreasonableness). The argument drawn out in this chapter is that there is therefore no inconsistency between public law and the punitive and restorative objectives of accountability, at least insofar as the concept of fault is concerned.

A. Fault in Judicial Review Grounds

When we look at the grounds of judicial review, we can see that two of the grounds of review entail a finding of fault: bad faith and legal unreasonableness. Other grounds also invite an assessment of an official’s knowledge, intention and motives, though not necessarily leading to a conclusion of fault.

(i) Bad Faith: Subjective Fault

The ground of bad faith invites a direct fault-based assessment of an official’s conduct. ‘There is no such thing as... constructive bad faith’,^[47] and so determining contravention of this standard is an inherently subjective enquiry. An official will contravene this ground if they act ‘in a way that [they] actually knew was wrong’,^[48] or if they are ‘reckless as to whether [the exercise of power] was in a manner required by law’.^[49] Though there are many types of behaviour which might amount to bad faith, dishonesty and acting for an improper purpose are most typical.^[50] Returning to the language of fault adopted above, bad faith will invariably amount to subjective fault on the part of an official, capturing intentional or reckless conduct engaged in for malicious or prohibited ends. Accordingly, we can conclude that the bad faith ground entails a finding of subjective fault.

(ii) Legal Unreasonableness: Objective Fault

Another ground of review that might be thought to entail fault is that of unreasonableness. Until recently in Australia, this ground was identified by the well-known (and often pilloried)^[51] verbal formula derived from the Wednesbury decision, which provides a basis to challenge an exercise of power that is so unreasonable that no reasonable official might have adopted that same course.^[52]
Taken at face value, the wording of the Wednesbury formulation reflects the notion of objective fault, in the sense that it requires evaluation of an official’s failure to adhere to a prescribed standard of conduct.^[53] However, this raises two related difficulties. The first is whether it is possible for the Wednesbury formula to simultaneously operate as a test of invalidity and fault. For instance, we might wonder whether this touches on the well-canvassed debate around the interaction between public and private law concepts of reasonableness.^[54] The supposed movement towards ‘convergence’ of public and private law standards of reasonableness has many detractors.^[55] However, it is unnecessary to enter into the merits of this debate here. The present question is not whether public law unreasonableness can be equated with private law understandings of fault, but whether public law unreasonableness is, in its own right, indicative of fault. This chapter has framed the concept of objective fault in terms of failure to adhere to a prescribed standard of conduct, involving a judgment that a person ought not to have acted as they did. It is difficult to see how the Wednesbury test of unreasonableness is not an objective standard of this nature. The task undertaken by the court is to evaluate an official’s conduct by reference to an external standard.^[56] If the official’s conduct falls short of this standard, it is beyond power. In this respect, it is neither here nor there that public law unreasonableness is not solely concerned with individual interests (as is the focus for private law unreasonableness).^[57] Rather, the public law norm represents an objective standard of reasonable decision-making, breach of which is objectively faulty, irrespective of whether it relates to a failure to respect or protect individual interests.
The second difficulty is whether it is still possible to equate Wednesbury unreasonableness with objective fault following recent moves to define it as a dynamic, rather than fixed, standard in Australian law.^[58] In Li,^[59] the Australian High Court adopted a new formulation of ‘legal unreasonableness’, indicating that Wednesbury should not be treated as either the ‘starting point’ or the ‘end point’ in determining the relevant standard.^[60] Instead, it was to ‘be the standard indicated by the true construction of the statute’.^[61] The implication to be drawn from these statements is that unreasonableness may mean different things in different contexts, a move which has been described as having robbed the standard of ‘any meaningful content’.^[62] For the purpose of this chapter, what is critical to note is that (whatever its content) the Li unreasonableness test remains an objective standard.
The effect of the Li decision was to alter the source or content of the standard, not its nature as a yardstick by which government conduct can be measured. So much is evident in the Full Federal Court’s subsequent description of the test as a ‘standard of legal unreasonableness [to] apply across a range of statutory powers’, with its ‘indicia to be found in the scope, subject and purpose of the particular statutory provisions’.^[63] In a more recent Australian Federal Court decision, Manousaridis J emphasised that legal unreasonableness remains an external standard.^[64] For Manousaridis J, to say that an official must act reasonably ‘presupposes the formulation of a rule of conduct that [an official] must have been obliged to follow’,^[65] meaning that there can be no conclusion on reasonableness until after determining the content of the relevant standard.^[66] In Manousaridis J’s view, to conflate the two enquiries (being determination of the relevant standard and evaluation of unreasonableness) increases the risk that the courts will simply adopt their own view of reasonableness, rather than measuring the conduct against an objective standard.^[67] This must be correct. In reaching a view that a decision is ‘arbitrary’, ‘capricious’, ‘lacking in evident or intelligible justification’ or any of the various other verbal formulae used to describe unreasonableness,^[68] the court must determine and apply an objective standard in order to avoid encroaching on the merits of the decision.
Therefore, even if the source of the reasonableness standard has shifted in Australian law, the underlying task remains the same; the role of the courts is to determine whether an official has failed to adhere to an objective standard of conduct, failing which the official will have exceeded the scope of their powers. In this sense, the Wednesbury formula provides a basis to conclude that an official’s exercise of discretion is objectively faulty.

(iii) Other Grounds of Review

A number of the remaining grounds of review invite assessment of an official’s subjective intention, motives, knowledge and belief, though not necessarily for the purpose of determining fault. The first such ground is that of improper purpose, which involves a direct enquiry into an official’s motives in exercising a power. However, unlike the ground of bad faith, conduct that contravenes the improper purpose ground will not necessarily amount to subjective fault. For instance, an official might refuse an import licence out of a desire to harm the applicant, or with seemingly good intentions, such as desiring to promote the interests of local goods over imported goods. While both purposes might be improper in light of the terms of the statute, only the former would amount to subjective fault. In this way, the improper purpose ground involves analysis of an official’s intention and motives, without signifying a particular type of fault. Failure to exercise discretion involves a similar analysis,^[69] as while the court enquires into whether an official was motivated by the desire to simply rubber stamp a policy or to exercise independent judgment, a finding of contravention does not necessarily equate to a particular degree of fault.
Actual bias is another ground of review that falls into this category. At first glance, this ground may appear to be tied to the notion of subjective fault. An official will contravene this ground if they make a decision in circumstances where they have an interest in the outcome, bear personal ill-will, or have already reached a decision before hearing the evidence. Actual biases are clearly a subjective matter, in the sense that we are enquiring into an official’s actual mindset in determining whether the standard has been contravened. However, it is doubtful that this ground will always involve subjective fault. Many biases may be subversive in nature, with the effect that an official may not even be aware of their predisposition. For example, a racist official may treat one visa applicant’s application more favourably than another based their bias. If the official is aware of their bias, and acts on it knowingly, this would be a clear case of subjective fault. On the other hand, if the official is unaware of their bias, can we say that they have acted in a subjectively faulty way? Answering this question would draw us into theoretical disputes as to the blameworthiness of particular character attributes^[70] that are beyond the scope of this chapter. What we can say, however, is that actual bias may rise to the level of subjective fault in some cases, and may constitute a lesser degree of fault in others.
Issues of intention, motives and knowledge are irrelevant in relation to the remaining grounds of review. For instance, it is no defence to an allegation of taking into account irrelevant considerations to say that the official did not appreciate the irrelevance of the information. Similar observations might be made with respect to the grounds of procedural fairness, no evidence, uncertainty, and reasonable apprehension of bias.^[71]

(iv) Summary

The foregoing analysis demonstrates that at least two of the judicial review grounds are directly tied to concepts of fault, as bad faith equates to subjective fault and legal unreasonableness equates to objective fault. The remaining grounds, some of which invite assessment of an official’s intention and motives, may be contravened deliberately, negligently or innocently, with the effect that we cannot describe conduct contravening these grounds as necessarily entailing fault of a particular quality. This tells us that public law can certainly be understood as involving some assessment of an official’s degree of fault. But can we go further so as to link these fault-based assessments to the accountability framework set out above?

B. Benchmarks of Subjective and Objective Fault

As framed in this chapter, a comprehensive accountability regime would provide for control by issuing regulatory orders irrespective of fault, punishment by issuing punitive sanctions in cases of subjective fault, and (at least in relation to the exercise of discretionary powers) restoration by issuing reparative remedies in cases of objective fault. The following discussion shows that our public law grounds of review are in fact compatible with this framework, as we can view bad faith as a benchmark of subjective fault, and legal unreasonableness as a benchmark of objective fault.
Contravention of the judicial review ground of bad faith will invariably involve subjectively faulty conduct, as it is tied up in the concepts of intentional or reckless pursuit of malicious or prohibited motives. This is not to say that other grounds of review may not also be contravened accompanied by a subjectively faulty mindset. For example, it would be a subjectively faulty contravention of the improper purpose ground for an official to act out of a desire for personal gain. It is difficult to see, though, how such subjectively faulty behaviour would not also contravene the ground of bad faith. In this way, we can view bad faith as a benchmark of subjective fault in public law. The accountability framework set out in this chapter is directed at punishing precisely the type of conduct that is encompassed by this benchmark, and accordingly we might take the view that it would be consistent with the objectives of accountability to allow the courts to impose punitive sanctions where an official’s conduct rises to the level of bad faith.
Turning to accountability’s restorative objective, it was suggested above that in the exercise of discretionary powers, reparative remedies might be engaged where conduct exceeds a minimum threshold of objective fault. In the public law context, subjectively faulty conduct (that is, conduct rising to the level of bad faith) will naturally go beyond these limits. However, the critical question for present purposes is where to set the minimum threshold of objective fault in public law. It was concluded above^[72] that legal unreasonableness can be viewed as equating to objective fault, being an external yardstick against which an official’s exercise of discretion can be measured, and found wanting. It is possible to think about this ground as setting a benchmark of objective fault in public law, as other types of errors can be made in a way which rises to the level of unreasonableness or irrationality reflected in the standard. This is perhaps implicit in the Australian High Court’s description of unreasonableness in Li. The plurality indicated that unreasonableness may either be a conclusory label applied to other errors in reasoning,^[73] or a conclusion to be drawn where, despite no identifiable error, the decision ‘lacks an evident and intelligible justification’.^[74] If ‘legal unreasonableness’ is an umbrella-style concept that reflects the minimum requirements of reasonableness and rationality in the exercise of public power, it can be employed as a benchmark against which particular errors in reasoning can be measured. In this way, it is possible to think about legal unreasonableness as a benchmark of objective fault in public law.
Drawing these ideas together, we can start to see that public law is indeed compatible with a fault-based assessment of liability for punitive and restorative remedial responses. Though we ordinarily think about public law standards of conduct (and accompanying exposure to regulatory orders) as strict liability in nature, our grounds of review are well-adapted to the fault-based analysis contemplated in this chapter. Restoration might be relevant where an official exercises their discretionary powers in an objectively faulty way, by exceeding the generous limits of rationality and reasonableness offered by the legal unreasonableness standard, while officials who act in a subjectively faulty way, as typified by the bad faith ground, might be liable for punishment. The use of 'might' in each of these instances is deliberate, as any discussions around, in particular, restoration, must go on to address questions of causation and loss.

VI. CONCLUDING REMARKS

If we return to the hypothetical set out at the beginning of this chapter, we can start to see that the public law grounds of review are in fact quite cohesive with the fault-based accountability framework set out above. Odette’s conduct in each scenario could be characterised as a breach of a range of different public law norms. In all three scenarios, she has failed to accord procedural fairness, or perhaps to take into account relevant considerations. However, both the second and third scenarios go beyond procedural breaches, expanding into faulty conduct. In the second scenario, Odette has exercised her discretion in an arbitrary way that might characterise her decision as legally unreasonable, while in the third scenario her decision was motivated by spite, and was therefore made in bad faith.
If we were concerned with approaching these breaches of public law norms from the perspective of enhancing government accountability, the type of breach would be indicative of the accountability objective that might be relevant in each scenario, and the character of the remedies that might be thought appropriate to serve those objectives. The control objective of accountability would be engaged in all three scenarios, and would be supported by the raft of regulatory orders that are already available in public law cases. The restorative objective of accountability, as understood in this chapter, is engaged in cases where an official’s exercise of discretion is objectively faulty, as measured against the standard of legal unreasonableness. Odette’s conduct in both the second and third scenarios falls short of this standard, and so restoration (via reparative remedies) might potentially be relevant in both of those scenarios.^[75] The punitive objective of accountability is engaged where an official acts in a subjectively faulty way, rising to the level of bad faith. Only Odette’s conduct in the third scenario satisfies this criterion, and so punishment (via punitive sanctions) could only be relevant in that context.
Of course, reparative remedies and punitive sanctions do not presently form part of the court’s public law arsenal, and so Alex cannot rely simply on breaches of public law (however faulty) in order to avail himself of remedies that serve these functions. The purpose of this chapter is not to suggest that this shortfall in public law reflects an ‘accountability gap’ that ought immediately to be filled through the creation of public law remedies that perform punitive and restorative roles.^[76] There are a whole host of important matters that would need to be considered in the context of such discussions, including valid concerns regarding how the courts might go about determining causation in public law cases, and the impact that this might have on the separation of powers. This is particularly so in Australia, which maintains a strict distinction between legality and merits review. Further, it might validly be argued that there are other mechanisms outside public law that are well-adapted to performing these roles, perhaps to better effect than the courts.
As was noted at the outset, the purpose of this chapter is not to suggest any immediate campaign for law reform centred around increasing government accountability. Rather, its primary purpose is to demonstrate that focussing on government accountability can allow us to better understand the principles that make up our system of public law. In this chapter the ‘lens’ of accountability has shown us that if the punitive and restorative objectives of accountability require an assessment of an official’s degree of fault, there is nothing in our public law principles that is necessarily inconsistent with such an approach. On the contrary, our public law grounds of review already embody the types of enquiries that such an approach might demand. This all tells us that if there are good reasons for public law’s failure to hold the government accountable through restorative and punitive mechanisms, these reasons do not lie in the public law’s inability to embrace a fault-based analysis of the exercise of public power.

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^[*] I am grateful to the participants at the Unity of Public Law Conference for their valuable feedback, as well as to Peter Cane for his, as always, insightful comments on earlier drafts. My thanks also to the editors of this collection for their comments and advice. All errors remain my own. This research is supported by an Australian Government Research Training Program (RTP) Scholarship.
^[1] The label ‘legal unreasonableness’ was adopted by the High Court of Australia in place of the traditional ‘Wednesbury unreasonableness’ label in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332. The implications of the Li decision are detailed in the text accompanying n 58 below. This case represents a move away from the strictness of the Wednesbury formula and towards a variable content standard of reasonableness in Australia. However, there remain doubts as to whether this might open the door to variegated intensity review underpinned by rights-consciousness as has been developed in other jurisdictions: see eg L McDonald, ‘Rethinking Unreasonableness Review’ (2014) 25 Public Law Review 117, 132; M Barker and A Nagel, ‘Legal unreasonableness: life after Li’ [2015] AIAdminLawF 1; (2015) 79 AIAL Forum 1, 9; G Weeks, Soft Law and Public Authorities: Remedies and Reform (Oxford, Hart Publishing, 2016) 154. Therefore comments on the legal unreasonableness ground must be read within the context of that Australian limitation, though many of the broader themes explored in this chapter are common to other jurisdictions.
^[2] E Rock, ‘Accountability: A Core Public Law Value?’ (2017) 24(3) Australian Journal of Administrative Law 189.
^[3] For an overview of theorists who adopt this stance, along with an opposing view, see N Hanna, ‘Facing the Consequences’ (2013) 8(3) Criminal Law and Philosophy 589.
^[4] Rock (n 2) 198-200.
^[5] ibid 189-90.
^[6] Li (n 1).
^[7] I have expanded on these ideas in an earlier article: Rock (n 2) 190-92.
^[8] See eg C Harlow and R Rawlings, ‘Promoting Accountability in Multilevel Governance: A Network Approach’ (2007) 13 European Law Journal 542, 545; M Philp, ‘Delimiting Democratic Accountability’ (2009) 57 Political Studies 28, 30.
^[9] Rock (n 2) 201.
^[10] See eg Administrative Review Council, Federal Judicial Review in Australia (2012) 180–81.
^[11] The first of these concerns is of particular relevance in the Australian jurisdiction, in which the orthodox position is that the courts are confined to reviewing the legality, rather than the merits, of administrative action: Attorney-General v Quin (1990) 170 CLR 1, 35-36. The latter concern is perhaps of broader interest to those in other jurisdictions.
^[12] See text accompanying n 25 below.
^[13] P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533, 535–36.
^[14] ibid 536.
^[15] ibid 535.
^[16] P Cane, Responsibility in Law and Morality (Oxford, Hart Publishing, 2002) 80.
^[17] ibid 79.
^[18] Cane (n 13) 536.
^[19] See eg ibid 541.
^[20] This is the terminology proposed by Cane: ibid 539.
^[21] Note, however, that this is not always the case. The criminal law sometimes distinguishes between these two states of mind in punishing attempts less severely than completed crimes.
^[22] eg a minister may be taken to have constructive knowledge of information contained in a relevant departmental file: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 31.
^[23] See eg Cane (n 13) 536.
^[24] Note, a responsibility-based approach is not the only possible way to understand accountability. This chapter is concerned with exploring what might follow from adopting this approach, and different conclusions would be drawn if a different premise were adopted.
^[25] See generally R Mulgan, ‘“Accountability”: An Ever-expanding Concept?’ (2000) 78 Public Administration 555, 557–58; J Koppell, ‘Pathologies of Accountability: ICANN and the Challenge of the “Multiple Accountabilities Disorder”’ (2005) 65 Public Administration Review 94, 98; M Dubnick, ‘Accountability and the Promise of Performance: in Search of the Mechanisms’ (2005) 28 Public Performance & Management Review 376, 380; M Bovens, T Schillemans and PT Hart, ‘Does Public Accountability Work? An Assessment Tool’ (2008) 86 Public Administration 225, 227; C Harlow, ‘Accountability and Constitutional Law’ in M Bovens, R Goodin and T Schillemans (eds), The Oxford Handbook of Public Accountability (Oxford, OUP, 2014) 195, 197–98.
^[26] See eg Mulgan (n 25) 558.
^[27] These are ‘the “internal” functions of personal culpability, morality and professional ethics’: ibid 558.
^[28] HLA Hart, The Concept of Law (Oxford, Clarendon Press, 1961) 173, cited in Cane (n 16) 95. Lord Bingham expresses a good example of this view in R v G [2003] EWHC 1507; [2004] 1 AC 1034: ‘It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if ... one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment’ (at [32]).
^[29] Cane (n 16) 95.
^[30] ibid 95.
^[31] HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd edn (Oxford, OUP, 2008) 140.
^[32] Such an approach excuses those who were unable to meet objectively established standards by reason of physical or mental incapacity, for example, and has been described as the ‘individualisation of the negligence standard’: see eg M Moore and H Hurd, ‘Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence’ (2011) 5 Criminal Law and Philosophy 147, 151.
^[33] T Honoré, Responsibility and Fault (Oxford, Hart Publishing, 1999) 126.
^[34] As may be the case where a political leader assumes responsibility by taking on that role.
^[35] Such as the responsibility owed to one’s family: Honoré (n 33) 126.
^[36] ibid 130.
^[37] ibid 26–27.
^[38] ibid 27.
^[39] ibid 27.
^[40] Cane (n 16) 108.
^[41] ibid 108–09.
^[42] ibid 108–09. Discussed above.
^[43] JNE Varuhas, ‘Against Unification’ in H Wilberg and M Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford, Hart Publishing, 2015) 91, 101.
^[44] ibid 108.
^[45] Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70. A further factor that may support the imposition of an obligation to restore in such cases is that the applicable remedy (restitution) is less intrusive than compensatory remedies: see eg P Cane, ‘The Constitutional Basis of Judicial Remedies, in Public Law’ in P Leyland and T Woods (eds), Administrative Law Facing the Future: Old Constraints and New Horizons (London, Blackstone Press, 1997) 242, 257.
^[46] See eg Cane (n 16) 270.
^[47] Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, [8].
^[48] SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377, [33].
^[49] ibid. Cited with approval in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, [48].
^[50] SBAP v Refugee Review Tribunal [2002] FCA 590, [49].
^[51] Usually on the basis that it is tautological and vague: See eg McDonald (n 1) 124.
^[52] The original formulation was set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230: ‘so unreasonable that no reasonable [official] could ever have come to it’. Note also that the Australian courts have drawn a distinction between the application of the ground to reasoning processes (irrationality review) and to the exercise of discretion (unreasonableness review): see eg M Aronson and M Groves, Judicial review of administrative action (5th edn, Pyrmont, Thomson Reuters, 2013) 284. There remain reasons to maintain the distinction between the two ideas: see eg G Airo-Farulla, ‘Reasonableness, rationality and proportionality’ in Matthew Groves and HP Lee (eds), Australian administrative law: Fundamentals, principles and doctrines (Cambridge, Cambridge University Press, 2007) 212, 215. Nothing much turns on this distinction for the purpose of this chapter.
^[53] See eg P Cane, ‘Fault and Strict Liability for Harm in Tort Law’ in W Swadling and G Jones (eds), The Search for Principle: Essays in Honour of Lord Goff of Chieveley (New York, OUP, 1999) 171, 178–79; Cane (n 16) 271. Harlow wonders whether it might be described as an ‘objective bad faith standard’: C Harlow, State Liability: Tort Law and Beyond (Oxford, OUP, 2004) 130.
^[54] See eg P Craig and D Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ [1999] Public Law 626, 648; TR Hickman, ‘The Reasonableness Principle: Reassessing its Place in the Public Sphere’ (2004) 63 CLJ 166; R Bagshaw, ‘Monetary Remedies in Public Law—Misdiagnosis and Misprescription’ (2006) 26 Legal Studies 4, 15–23.
^[55] See eg Bagshaw (n 54) 15–23.
^[56] Airo-Farulla (n 52) 226.
^[57] This was one of the criticisms of the convergence theory raised by Bagshaw: Bagshaw (n 54), 17–18. Varuhas makes a similar point in reference to the suggested convergence of administrative law and human rights law: Varuhas (n 43) 105–08.
^[58] As noted at n 1, there remain doubts as to whether this movement towards a dynamic standard of reasonableness in Australia potentially represents a broader movement towards variegated intensity review or perhaps ‘anxious scrutiny’ in cases where rights are at stake, an approach which has been developed in other jurisdictions: see eg M Taggart, ‘Proportionality, deference, Wednesbury’ (2008) New Zealand Law Review 423, 433-435. At the very least, there would be serious questions as to how such an approach might be realised in Australia, which lacks the ‘normative hierarchy established by rights’ against which the approach in other jurisdictions is anchored: McDonald (n 1) 132.
^[59] Li (n 1).
^[60] ibid [68]. Further implications of the Li decision are discussed below. Note however that Gageler J applied Wednesbury in the traditional sense of a generic, externally defined standard of reasonableness (at [124]).
^[61] ibid [67].
^[62] McDonald (n 1) 130.
^[63] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, [48].
^[64] SZVMG v Minister for Immigration and Border Protection [2016] FCCA 631, [18].
^[65] ibid.
^[66] ibid.
^[67] ibid [19]. See also Airo-Farulla (n 52) 226.
^[68] A catalogue of descriptions was referred to in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158, [65].
^[69] Incorporating the grounds of acting under dictation or the inflexible application of policy.
^[70] See eg Moore and Hurd (n 32).
^[71] Unlike actual bias, apprehended bias may be made out irrespective of whether the official was actually biased or entirely innocent. All that is relevant for the purpose of determining breach of this ground is external appearances.
^[72] See section V.A.ii above.
^[73] eg ‘having... given disproportionate weight to some factor or reasoned illogically or irrationally’: Li (n 1) [72] (Hayne, Kiefel and Bell JJ).
^[74] ibid [76] (Hayne, Kiefel and Bell JJ).
^[75] As noted above, the use of ‘might’ here is deliberate; any discussion around reparative remedies must address important issues of causation and loss which are not considered in this chapter.
^[76] One remedy that may be viewed as performing a dual role in this context is an award of damages, which is able to take compensatory or punitive form.