Public Trusts, Public Fiduciaries

Published date01 September 2010
Date01 September 2010
Subject MatterArticle
Paul Finn*
In 1995 I wrote a short piec e entitled 'The Forgotten "Trust": The People and the State'. 1
Its pr emise was the si mple 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 in tend 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 enforcea ble standards of conduct on
public officers and agencies. The second was how trust and fiduciary ideas have been,
and could be, invoked to circ umscribe 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 w hich he believed I was
misguidedly lured.
I begin with the commonplace observation that we live in the age of statutes and of
government under statutes. It is in this statutory domain a complex and burge oning
one that the issues of channelling and controlling the exercise of public power now
characteristically arise. It is this which explains the foc us upon statutory interpretation
and judicial review in what follows.
It needs to be acknowledged at the outset that there clearly are circumstances in
which the Crown, or a public agency can be so circumstanced relative to particular
property or to particular persons (almost invariably today as a consequence of a
relationship created by or under statute)2 as properly to require that it be chara cterised
as a trustee of that property,3 or as in a fiduciary relationship with those persons. 4 I
will suggest though that at least in statutory settings we should be slow to embrace
expansively pr inciples drawn from the law of trusts and from fiduciary law so as to
channel and control official decision making. My reasons for taking this view are
* A Judge of the Federal Court of Australia.
1 Paul Finn, 'The Forgotten "Trust": The People and the State' in Malcolm Cope (ed), Equity:
Issues and Trends (1995) ch 5.
2 Cf Aboriginal Development Commission v Treka Aboriginal Arts and Crafts Ltd (1984) 3 NSWLR
502 where no trust was found.
3 See, eg, Registrar of the Accident Compensation Tribunal v Commissioner of Taxation (Cth) (1993)
178 CLR 145; cf Authorson v Attorney-General (Canada) (2002) 215 DLR (4th) 496 which the
relationship found was properly characterised as fiduciary only, in the circumstances; see
also Swain v Law Society [1983] 1 AC 598.
4 See, eg, Cubillo v Commonwealth (2001) 112 FCR 455, [460].
336 Federal Law Review Volume 38
threefold. First, I consider that our principles of statutory construction are now
sufficiently robust, our principles of judicial review sufficiently adaptable, to render
resort to trust and fiduciary law for grounds of review largely unnecessary. Second,
those latter grounds of review can in quite obvious ways necessitate judicial
usurpation of officia l decision making in settings where judicial competence and
legitimacy to decide is almost certainly lacking. Third, contrary to my intimations in
'The F orgotten Trust', I consider it unlikely that the characterisation of the State as a
trustee of its powers of government for the people a trust founded upon the
proposition that 'the powers of govern ment belong to, and are derived from … the
people'5 will provide workable criteria upon which to found judicial review of
official decision making, save perhaps in bleak, almost unthinkable circu mstances.6 It
is too abstract for everyda y use. This said, I do not re sile from the view tha t that
characterisation is fundamental to an understanding of the contemporary legitimacy and
authority of our constitutional arrangements.7 It embodies what should now be
acknowledged as a 'fundamental [principle] of [our] common law'.8
Before enlarging upon this I should, for contextual reasons, begin with a brief
comment on the imposition of standards of conduct on public officials.
Though this function of the common law has clear medieva l antecedents,9 it is
sufficient to commence note of it after the tumultuous constitutional ev ents of 17th
century in England. The medieval 'King's officer' had by then become the 'public
officer'. Public offices were perceived to be ones of 'public trust and confidence',10 a nd
in time came to be defined by reference to the 'public's interest' in their exercise, hence
the accepted modern definition that '[a] public officer is an officer who discharges any
duty in the discharge of which t he public are interested'.11 By the end of the 18th
century there was a large and well developed body of primarily c ommon law doctrine
5 Nationwide News Pty Ltd v Wells (1992) 177 CLR 1, 72 (Deane a nd Toohey JJ). See als o Paul
Finn, 'A Sovereign People, A Public Trust' in Paul Finn (ed), Essays on Law and Government
(1995) vol 1, 1; popular sovereignty, a powerful fiction, can be regarded as a vehicle for
sustaining the government of the man y by the few: see generally Edmund Morgan,
Inventing the People: The Rise of Popular Sovereignty in England and America (1988); see also
Edmund Morgan, American Heroes: Profiles of Men and Women Who Shaped Early America
(2009) ch 15.
6 Finn, 'The Forgotten "Trust": The People and the State', above n 1, 141.
7 See Stephen Gageler, 'Beyond the Text: A Vision of the Structure and Function of the
Constitution' (2009) 32 Australian Bar Review 138; Harley Wright, 'Sovereignty of the People
the New Constitutional Grundnorm?' (1998) 26 Federal Law Review 165. I am aware that
the proposition I have stated is not uncontentious: see Geor ge Winterton, 'Popular
Sovereignty and Constitutional Continuity' (1998) 26 Federal Law Review 1.
8 Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507 , [58] (French CJ,
Gummow, Hayne, Crennan and Kiefel JJ).
9 See, eg, the extortion provisions of the Statute of Westminster The First 1275, 3 Edw 1, c 5,
which influence the common law to this day; see, eg, James Lindgren, 'The Elusive
Distinction between Bribery and Extortion: From the Common Law to the Hobbs Act'
(19871988) 35 University of California at Los Angeles Law Review 815.
10 R v Bembridge (1783) 22 State Tr 1, 1556.
11 R v Whitaker [1914] 3 KB 1283, 1296.

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