This essay addresses two related questions: is participation by citizens in administrative decision-making constitutionally regulated? And if so, to what extent and in what circumstances? Obviously, answers to these questions may vary from one constitutional system to another. The limited aim of the essay is briefly to survey some of those answers and suggest how they might be explained. I will not attempt to state comprehensively the relevant law of any jurisdiction, but I will draw illustrations and examples from several. Nor (for reasons of space) will I tackle any of the underlying theoretical, empirical and practical questions about the functions, effects, costs and benefits of participation and its constitutional regulation. Nevertheless, the essay’s modest objective is worth pursuing in order to provide a clear analytical framework for consideration of such questions. Much of the very large literature on participation does not expressly advert to its constitutional regulation.

In 1995 I wrote a short piece entitled ‘The Forgotten “Trust”: The People and the State’. Its premise was the simple proposition that the most fundamental of fiduciary relationships in our society is that which exists between the State (and its officers and agencies) and the community (the people). I do not intend here to revisit the justifications for that proposition. My primary concern when I wrote was with two quite different legal manifestations of that proposition. The first was its use in informing and justifying the imposition of legally enforceable standards of conduct on public officers and agencies. The second was how trust and fiduciary ideas have been, and could be, invoked to circumscribe and channel the exercise of public power for the benefit or protection of the public or a section of it. It is the second – and much more problematic – of these that I wish to revisit in this article. I do so not simply to satisfy Leslie Zines that I have reconsidered a ‘heresy’ into which he believed I was misguidedly lured.

Although the basic test for apprehended bias is now well-established in Australian law, its application continues to present difficulties. The basic test is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial or administrative decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand. It is equally well-established that, while the same objective test applies to judges as to tribunal members and other public decision-makers, the application and content of that test varies depending on the context, including differences in decision-making roles, functions, powers and processes.

The application of the test can be problematic and somewhat unpredictable. For example, despite the unqualified terms of the relevant parts of the High Court’s decision in Ebner, it now appears that, at least in the context of curial decision-making, the Ebner two-step test is not universal in its application.

The well known writings and other contributions of Professor Zines on the High Court's interpretation of Australia’s Constitution and public law generally have justly earned him the admiration and deep respect of eminent jurists both within Australia and abroad. His interests extended to courts in other western liberal democracies.

In a book based on a series of lectures delivered at the University of Cambridge under the auspices of the Smuts Memorial Fund, Professor Leslie Zines ventured into a comparative study of, inter alia, the role of the courts in the United Kingdom, Canada, Australia and New Zealand. He noted that Canada, Australia and New Zealand share the common feature of the perplexing difficulty of pin-pointing an exact date when these countries obtained their independence from Britain. In other countries which were former British colonies, the date of independence could largely be identified by the date when the Union Jack was lowered and a new national flag was unfurled.

It is a great pleasure to contribute to a festschrift devoted to celebrating the 80th anniversary of our friend and colleague, Emeritus Professor Leslie Zines. His contribution to the study of Australian constitutional law is too well known to require any reinforcement from us. It spans a period of five decades. His principal book The High Court and the Constitution has been and continues to be at the forefront of constitutional scholarship since it was first published. That book and his other writings represent the distilled essence of much of his valuable and incisive understanding of the way the High Court interprets and should interpret, the Constitution – something which has held a life-long fascination for him. In his publications as in his many years of teaching, he displays not only a mastery of the technical and analytical aspects of public law, but a social and functional awareness that goes well beyond deriving the meaning and application of many provisions of the Constitution by the mere contemplation of the language used or by the canons of construction.

Constitutional theory and doctrine are important to our understanding and experience of government. No description of Australian government is complete without reference to representative democracy, responsible government, separation of powers and the rule of law. Those and other theories also have substantial practical impact. Courts refer to them in developing legal principle and deciding cases. Legislators are reminded of them in framing laws. They structure transactions between the different institutions of government. The community is also influenced by them in evaluating the performance of the institutions of government.

The most important doctrine in analysing government legal accountability is the separation of powers. The essence of the doctrine is that parliament makes law, the executive administers it and the judiciary – in the context of adjudicating individual disputes – decides whether the law has been correctly construed and applied. This three-way division of functions avoids the undue concentration of power in any one branch of government, enables each branch to counterbalance the others, and ensures that legal disputes about government power are conclusively resolved by an independent judiciary.

The rule of law is fundamental to our society. Certainty about what the law is, is important to the rule of law.

Those whose activities may be affected both by Commonwealth laws and by State laws need certainty about whether the Commonwealth law overrides, or is subject to, State law. Those who administer Commonwealth law or State law need certainty about the relationship between the two. To participate in law-making on an informed basis, law-makers need certainty about what will be the legal effect of legislation which they enact.

The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. This area of law has recently undergone an extensive restatement by the American Law Institute (‘ALI’) and been the subject of legislative attention in all Australian states. In the light of these developments this essay sketches some essential issues relevant to factual causation which apply not only to the tort of negligence but throughout the law.

Reflecting on the involvement of High Court judges in extra-judicial activity, former Chief Justice Murray Gleeson recently observed that ‘[w]ar seems to create special cases’. The historical record confirms this assessment. While High Court judges have, in peacetime, periodically engaged in government work outside the courtroom, most instances of extra-judicial service by our top judges have occurred during war. Thus, it is only during World War I that members of the Court have conducted Royal Commissions. In 1915, Justice George Rich inquired into the controversy – long forgotten today, but a source of much public concern at the time – over conditions at the Liverpool Military Camp, near Sydney. More surprisingly, in 1918 – only months after the Australian people had, for the second time in little over a year, rejected conscription at referendum – Chief Justice Sir Samuel Griffith inquired into the recruitment levels needed to sustain the Australian Imperial Force. By contrast, between the wars, the Court received many requests from the Commonwealth Government for a judge to serve as Royal Commissioner. These requests were uniformly refused.