Sovereignty's Promise by Fox-Decent Evan

Author:Fox-Decent, Evan
Language: eng
Format: epub
Publisher: OUP Oxford
Published: 2011-03-14T16:00:00+00:00

6.7 THE EMERGENCE OF PUBLIC FIDUCIARY DUTIES

The connection of fiduciary doctrine to public law has attracted the attention of judges and legal scholars from numerous jurisdictions. Sir Anthony Mason, former Chief Justice of the High Court of Australia, has observed in his extra-judicial writing that modern administrative law ‘from its earliest days has mirrored the way in which equity has regulated the exercise of fiduciary powers’.40 Building on this idea, a majority of the High Court of Australia found that judicial review remedies, such as injunction and declaratory relief, originated in courts of equity, and that, as in equity, public interest litigants do not have to establish a proprietary interest in the subject matter of their litigation.41

Spigelman AC, Chief Justice of the High Court of New South Wales, draws the comparison between equity and public law in the following sharp terms42:

In both cases something like what equity calls ‘fraud on a power’ is involved. In both public law and equity, powers granted for a particular purpose can only be exercised for that purpose and not to achieve some collateral purpose. Also, in both cases, powers must be exercised bona fide for the persons or objects for whom or which the power was conferred. Finally, in both cases powers must be exercised rationally, without reference to irrelevant considerations and within the bounds of reason.

Spigelman AC calls for the development of ‘institutional law’.43 Institutional law would be thematically unified through recognition of general fiduciary principles applicable to private and public institutions alike, such as corporations and administrative agencies.

In Israel, the Supreme Court has long held that public authority, even in its business dealings, is ‘a trustee with regard to the public and as such is bound to treat equals in an equal manner’.44 In Peretz a local council refused to rent a hall to an unpopular religious minority. The Supreme Court held that this decision was indefensible on the basis of freedom of contract because the council was a public trustee. As such, the relationship between the council and the petitioners was not that of contracting strangers, so the council could not exercise its public power to the detriment of a religious minority. Daphne Barek-Erez describes Peretz as ‘fundamental’ in Israeli public law because it lays down the principle that ‘also in their business actions public authorities are bound to follow their public law duties’.45 As we shall see in the next two chapters, the Supreme Court of Canada resists this principle in Dunsmuir v New Brunswick.46

An emerging and international scholarly literature is starting to grapple systematically with the idea of the state as fiduciary and its implications for public law. In the United Kingdom, Dawn Oliver has argued against a conceptual division between exercises of judicial supervision of discretionary decision-making in public and private spheres of law.47 She suggests that review in each sphere is justifiable as a legal check on power over vital interests and that it operates on the basis of general principles common to both.48 Matthew Conaglen pursues

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