WRITTEN BY KIT WILLIAMS AND Heidi Ruckert
WHAT IS public law?
Public law can be described as the body of legal principles that apply to public power. Public law principles limit the scope of public power and which is fundamental to the operation of Australia’s legal and political system. In Australia, public law is understood as an umbrella concept covering laws, institutions, structures, systems, principles and processes that govern the relationship between the State and its citizens. It concerns the powers and procedures of the legislative, executive and judicial organs of government and how they are regulated and controlled by "the rule of law". Public law can be contrasted to private law which focuses upon relations between individuals.
Nick Shying
Legal Advisor, Department of Premier and Cabinet
Nick is a Legal Adviser in the Office of the General Counsel (OGC) at the Department of Premier and Cabinet (DPC). He works in the public law team, which provides legal advice to the Premier and DPC on administrative, constitutional and parliamentary matters.
INTERVIEW
Can you describe your journey to your current position as a legal advisor in a government department?
I started practising law as a Legal Adviser in OGC at DPC earlier this year, but I have a varied public sector background. I started my professional career as a Maritime Warfare Officer in the Royal Australian Navy. I completed six months initial officer training at HMAS Creswell and six months posted to the warship HMAS Parramatta.
While I thoroughly enjoyed the Navy, I left to study a Bachelor of Laws (Honours) and Bachelor of Arts (International Relations) at Monash University. While completing my studies, I undertook internships at the Department of the Prime Minister and Cabinet, the Australian Parliament, DPC, the Victorian Government Solicitor's Office (VGSO) and with a sole practitioner solicitor.
When I finished my Arts degree, I joined DPC as a Policy Adviser, first in the Veterans Branch and then in the Economic Development and International Branch. I also worked as an Aide to the Governor, before returning to DPC as a Senior Policy Adviser. While working, I completed my Law degree, a Graduate Diploma of Legal Practice at the Australian National University, and was admitted to practice.
As a Senior Policy Advisor in the International Engagement team, I worked closely with OGC on Victoria’s compliance with Australia’s Foreign Relations (State and Territory Arrangements) Rules 2020 (Cth). Later, I saw a role advertised in OGC and decided to apply. Six months in and I’m thoroughly enjoying it!
What made you realise that Public Law was the main area of law you wished to practise in?
Public service has been a consistent theme across my career to date. Like most people who choose a public service career, I am drawn to the idea of contributing to my community and the public good. I also gravitated towards public law subjects during my studies. These factors influenced my interest in public law.
My role as a Policy Adviser exposed me to what it would be like to work as a Legal Adviser in DPC. I thought it sounded interesting and would allow me to draw on skills and knowledge that I had already developed within policy roles, while also putting my legal training to use.
“Like most people who choose a public service career, I am drawn to the idea of contributing to my community and the public good.
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What advice would you give students who are unsure of which area of law they would like to practise in?
It’s difficult to know what area of law you want to practise in until you are experiencing it. From my experience, I would suggest seeking as many opportunities as you can during your studies to try out different areas. That advice is not particularly ground-breaking but seeking any internship or clerkship opportunities would be a good start. Similarly, graduate programs are great in the sense that they give you rotations through different practice areas.
I am fortunate to work in a role that is broad and involves a range of issues. For example, I am gaining exposure to planning and environment law, energy regulation, freedom of information, royal commissions, parliamentary processes, and constitutional matters. This is helping me to work out what areas of law and types of matters interest me.
How do you maintain a work-life balance?
I'm fortunate that the Victorian Public Service has a strong emphasis on work-life balance. I have worked at times under significant pressure and in difficult circumstances, but in my current role, I am not generally expected to work late or on weekends. If there is a need to work longer hours, that is recognised through time off in lieu.
The COVID-19 pandemic has made work-life balance particularly challenging. Some of my colleagues have children at home or extra caring responsibilities. I have found my workplace to be really supportive and understanding of those needs. They encourage people to look after themselves, recognising that if they feel supported in their personal lives they are likely to be more engaged in their work.
Which areas within public law do you work on the most?
As a central agency, DPC “shadows” other departments that lead on policy development and service delivery. There are branches covering social policy, economic policy, Aboriginal affairs, digital transformation, and governance. OGC acts like an in-house legal advisory service for these other branches, so our work is very broad. We are often engaged to provide advice on a legal issue relating to the consideration of a decision, for example, by Cabinet. A consistent element of our work would be statutory interpretation. For example, if the Government is making a decision we may need to advise on legislative requirements for that decision to be made in a valid way.
Another example of our work is our role coordinating the Government’s response to Parliamentary Orders for the production of documents. A bit like freedom of information, Parliament can order the Government to produce documents on a particular matter. Our role is to coordinate with relevant departments and agencies to search for and collate documents. It could also include seeking legal advice from the VGSO on executive privilege. We are then involved in briefing the Government’s response to the Order and tabling documents in Parliament.
“As a central agency, DPC “shadows” other departments that lead on policy development and service delivery. There are branches covering social policy, economic policy, Aboriginal affairs, digital transformation, and governance.”
How much of what you do is statutory interpretation and what challenges does this present?
A significant percentage of my work involves statutory interpretation. The challenge is identifying legislation relevant to the client’s question. Legal research is particularly challenging when you are working in a generalist capacity – it can be difficult knowing where to look and when you have looked far enough. The databases and search tools are great, but it is up to the individual to use their judgement to be confident that they have captured everything relevant to the advice.
The other challenge is presenting the information to the client. You need to apply the legislation to the issue and provide a clear answer to the extent possible. If there are nuances, it is important to clearly articulate the risks associated with different options.
What is one piece of advice you would give yourself back in university?
I found university to be quite a shock, perhaps because I had been working in a professional setting beforehand. To go from a professional environment to university felt like I was back in high school. I realised I was at a different stage in terms of what I was looking for and I missed having responsibility. That led me to be very career focused from the outset. While that has helped me with my career to date, part of me thinks I could have been more relaxed and enjoyed my university experience more.
In school it was all about getting the ATAR and getting into the degree, and then when you are at university it is all about getting the job. It’s not sustainable to always be seeking that next step because you forget to enjoy the journey along the way. That would be the advice I would give myself. Enjoy those moments and don’t worry so much about what’s coming next.
“In school it was all about getting the ATAR and getting into the degree, and then when you are at university it is all about getting the job. It’s not sustainable to always be seeking that next step because you forget to enjoy the journey along the way.”
A concept that arises often in public law is the rule of law. What does the rule of law mean to you and how does adherence to it affect your work?
My understanding of the rule of law is probably the same as yours – it’s the idea that no one is above the law. It’s important in the context of my work as a legal adviser and public servant. In particular, I think about my obligations under the Solicitor’s Conduct Rules and the Victorian Public Service Code of Conduct. In providing legal advice and carrying out my work, I need to act consistently with those duties and obligations.
More broadly, our advice often concerns legal obligations in relation to government decision-making. My role provides me with the opportunity to assist government decision-makers to act in accordance with the law. This helps to ensure that government decisions are valid and the Government is modelling best practice.
What is the most rewarding part of your job?
It is a privilege to work on significant policy issues and play a small part supporting the Government to deliver positive outcomes for the community. I also feel that I have had the opportunity to work on complex and interesting matters and have responsibility and autonomy as a junior. Being a relatively small legal branch, there is a focus on taking initiative and being proactive. I feel fortunate to have had that opportunity in the early stages of my career.
Are there any extra curricular activities or volunteering which you would recommend to students if they are interested in pursuing public law?
As a student, it can feel like there are less opportunities to gain experience in public law. But there are a range of things that you can do to put yourself in a good position for the future. For example, volunteering at a community legal centre will help you to develop core legal skills, including stakeholder engagement, document review, legal analysis, and professional writing. I think it also demonstrates an interest in public service and that you have been engaged in supporting the community.
Obviously there are clerkships, although there are less than in the private sector. I personally completed a clerkship at the VGSO. DPC also has summer and winter internships, which are akin to a clerkship, so there are opportunities out there. I also think participating in university competitions such as mooting or choosing to study subjects like public or international law electives is a consistent way to build your interest and your knowledge.
I have done a lot of non-legal work which has given me great insight into the way government works and is structured. There are opportunities within the Monash Arts faculty to undertake an internship with the Victorian Parliament. I personally completed one at the Australian Parliament through the Australian National University. Packaging together public service opportunities with other legal experiences can create both a compelling case for you to apply for a public sector role, but also give you better insight into government and whether that is something that interests you.
“Packaging together public service opportunities with other legal experiences can create both a compelling case for you to apply for a public sector role, but also give you better insight into government and whether that is something that interests you.”
Suggested Electives/activities:
Students interested in pursuing a career in Public Law would benefit from engaging with the following Monash units/electives and opportunities.
Units/Electives:
Public Law and Statutory Interpretation (LAW1112)
Administrative Law (LAW4331)
Constitutional Law (LAW2111)
Advanced Constitutional Law (LAW4112)
International Human Rights (LAW4155)
International Law (LAW4122)
Mooting and Advocacy Competition (LAW4805)
Gibbs Constitutional Law Moot
Administrative Appeals Tribunal Moot
Experience/Activities:
Volunteering at Community Legal Centres
Summer and Winter Internship at DPC
Clerkship at VGSO (penultimate students only)
WIL Arts Internship (available only through the Arts Faculty)
IN THE NEWS
LAW FIRM CONSIDERING LEGAL CHALLENGE TO FEDERAL RULES LIMITING WHO CAN DEPART AUSTRALIA (THE GUARDIAN, 2021)
Recent changes to regulations on expats who live overseas have left many fearing they won’t be able to leave Australia if they come back.
"The Australian government’s new regulations barring expats who temporarily return home from leaving again could face a constitutional legal challenge.”
“It is a significant additional restriction on the generally assumed freedoms of Australian citizens, including the right of return.”
HUMAN RIGHTS AND TRADE UNION GROUPS SUPPORT NEW BILL (LAWYERS WEEKLY, 2021)
A number of organisations have supported the Australian Senate in passing a new bill that means goods made with forced labour cannot be imported into the country.
"The vote by the senate today is a great step towards ending forced labour and ensuring that no Australian companies profit from slavery anywhere around the world. Senator Patrick showed important leadership in bringing this bill forward, and we thank him for his work on this issue.”
“The organisations are also calling on the government to implement additional accompanying measures to ensure the ban can be robustly enforced, including investigative powers and resourcing for Australian Border Force, an open referral mechanism, publication of customs data and a presumption of goods being detained where evidence indicates forced labour.”
Accountability, discretion and the rule of law: Issues in pandemic policing (AUTRALIAN PUBLIC LAW ORGANISATION, 2020)
This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic.
"In response to the COVID-19 pandemic, governments in Australian jurisdictions have declared public health emergencies and introduced restrictions on movement and assembly by executive action.”
“I raise two key points of concern as to how the orders have been enforced: inconsistency and disproportionality. With respect to inconsistency – the vagueness of the orders created a great deal of confusion. Just as with offensive language and other public order provisions, the ‘wide discretion that police officers are afforded… carries a risk of inconsistent application’. Inconsistency in the exercise of discretion was pronounced. ”
“The approach that has been taken to enforcing COVID-19 public health orders undermines the rule of law.”
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