¹ It is remarlcable how small the mental shift appears to be!

² Cynics might say that in the nineteen eighties the selfishness of the “me generation” was justified and celebrated by economists and philosophers performing their time honoured role of dipping into ancient texts to ease the consciences of the currently powerful. But who would admit to such cynicism - even in a footnote?

³ It is not necessary to define institutions for the purposes of this paper as the lcinds of institutions which I will be discussing easily fall within most definitions. However, I continue to adopt the sense in which I used the term in The Disorder of Law: “the web or matrix of social relations between a set of persons in closer, more frequent and more intense interaction with other members of the set than with non-members Corporations, government depanments, couns, prisons, trade unions, political panies and individual families are examples” C Sampford, The Disorder of Law (1989) 194, and see discussion 193-203). This use is to be distinguished from “the institution of marriage” or “the institution of wage labour” which refer to a panicular set of social relations often found between pairs of people. There is, however, one potential point of definitional disagreement. Many would seek to limit the use of the term “institution” and would prefer to use only the term “organisation” to refer to individual corporations etc. Eg Klaus Ziegen objected at the ALTA plenary session to which this paper was first delivered that he would only use the term “institution” if the organisation performed an agreed social function. The problem with this is that social functions are inherently controversial in that there will be dispute about the nature of the function and indeed whether it does or should serve any social function at all. On this basis there would be no institutions at all and I use the term “institution” for those organisations where there is debate about the social function. For this reason I adopt the above definition. One of the consequences is that most human organisations can be characterised as institutions with the corollary that the word organisation could be just as easily be substituted. I suppose that one of the reasons for preferring the word institution is that it does keep the social effects of human organisations at the forefront - something I have to admit causes me no disquiet!

⁴ How many of us have not complained bitterly about the failings of universities in the las month, week, thiny minutes? Yet how many of us do not still believe that universities car achieve far more than the aggregate of our individual and isolated efforts outside of such ar institution?

⁵ Each one is insufficient, leading to failure and despairing resignation when attempted by itself If we just pass laws, there is the lament that law is insufficient to produce behavioural change If we suggest improvements to ethical standards, the reply is that this only creates a knaves charter. However, even the best combination of laws and ethical standards will be defeate< by an institutional environment which is not conducive to legal and ethical compliance.

⁶ See Klare, K, “The Public/Private Distinction in Labor Law” (1982) 130 Uni Pennsylvania L Rev 1358CrossRefGoogle Scholar; Freeman, A Mensch, E, “The Public-Private Distinction in American Law and Life” (1987) 36 Buffalo L Rev 237Google Scholar; Mnookin, R, “The Public/Private Dichotomy: Political Disagreement and Academic Repudiation” (1982) 130 Uni Pennsylvania L Rev 1429CrossRefGoogle Scholar; Turlcel, G, 'The Public/Private Distinction: Approaches to the Critique of Legal Ideology” (1988) 22 Law & Soc Rev 801Google Scholar; F Olsen, “The Family and the Marlcet” (1983) 96 Harvard L Rev 1497; D Kennedy, “The Stages of the Decline of the Public/Private Distinction” (1982) 130 Uni Pennsylvania L Rev 1349; Horwitz, M, “The History of the Public/Private Distinction” (1982) 130 Uni Pennsylvania L Rev 1423CrossRefGoogle Scholar.

⁷ See P Brest, “State Action and Liberal Theory: A Casenote on Flagg Brothers v Brooks” (1982) 130 Uni Pennsylvania L Rev 1296, 1296 and F Goodman, “Professor Brest on State: Action and Liberal Theory, and a Postscript to Professor Stone” (1982) 130 Uni Pennsylvania, L Rev 1331. Ironically Marxists have been accused of making the same mistake (see H J Collins, Marxism and Law (1982) 78) insofar as they believe that the economic relationships of the Base could exist, or even be described, independently of superstructural law they' determine. This point is developed further in C Sampford, “Dworkin's Claim to a Socialist Inheritance” commissioned for Economy and Society.

⁸ Despite this, some critical legal scholars feel the need to construct such theories in order to pin down their targets - at the cost of creating theories which are unrecognisable by their supposed adherents. One such example can be found in Dworkin's non-plussed reaction to, CLS exposition of liberal theory in Law's Empire (1986) 27S. Many liberals just do not recognize themselves or their fellow travellers in CLS renderings of “liberal theory”. This is panly because sympathetic reconstruction is rarely on the CLS agenda which is still heavily committed to “trashing”, and panly because their targets would greatly refine and distinguish, their ideas if they engaged in the process of theory building in order to avoid the absurd results that half baked ideas would produce. The point is that most of their targets do not engage in: such theory building, thus allowing fairly simplistic ideas to continue to influence their thinking. However, the fact that CLS versions of liberal philosophy do not readily relate to the theories of thinking liberals like Dworkin is a problem. There may be no injustice to Dworkin given his treatment of legal positivists which he goes so far as to rename “semantic theorists”. However, the problem with unsympathetic construction is that you will fail to get to grips with, the strengths of rival theories as well as losing any chance of wooing those who are attracted to those rivals.

⁹ Apparently Stone's euphemism for rhetoric.

¹⁰ Stone, C, “Corporate Vices and Corporate Virtues: Do Public/Private Distinctions Matter?” (1982) 130 Uni Pennsylvania L Rev 1441, 1442CrossRefGoogle Scholar.

¹¹ As Klare, K, supra n 6, 1361Google Scholar puts it: 'There is no 'public/private distinction' ... The law contains a set of imageries and metaphors, more or less coherent, more or less prone to conscious manipulation, designed to organize judicial thinking according to recurrent, value-laden patterns.”

¹² Klare, K, Supra n 6, 1417Google Scholar. The distinction between the public which is subject to legal regulation and the private which is not is not the son of distinction for application in a coun of law, but a division that is intended to remove one from legitimate purview by the court.

¹³ ''The right to privacy is the right of the individual to decide for himself how much he will share with others his thoughts, feelings and the facts of his personal life” (Report of the US President's Office of Science and Technology quoted in R Scruton, A Dictionary of Political Thought (1983) 375).

¹⁴ Jardins, J des, “Privacy in Employment” in G Ezorsky (ed), Moral Rights in the Workplace (1987) 127Google Scholar. This tendency for privacy to be seen in terms of a right to be left alone is discussed in McOoskey, J, “The Political Ideal of Privacy” (1971) 21 Philosophical Quarterly 303, 305CrossRefGoogle Scholarff.

¹⁵ Private property is seen as “a shield against public power which can create for the owner the benefits of a physical and psychological zone of privacy” (Klare, K, supra n 6, 1369)Google Scholar. “Property has also been defended as the bastim of an individual's liberty: property defines and protects the “moral zone” [Nozick] within which an individual may exercise his will with full sovereignty and discretion, unperturbed by the need to account to either government authorities or to other individuals for his wishes, tastes, and choices.” (M Dan-Cohen, Rights, Persons and Organisations (1986) 87).

¹⁶ “Property is but the periphery of my person extended to things.” (R von Jhering as cited by M' Dan-Cohen, id). “It is the shrine within which personhood may flourish and a medium through1 which a person's will can effectively express itself in the world” (Radin, M, “Property and Personhood” (1982) 34 Stanford L Rev 957CrossRefGoogle Scholar).

¹⁷ According to “public choice” theory that coercion is itself the result of pressure from well organised but unrepresentative groups whose ability to affect the outcome of elections is1 disproportionate to their size and who are thus able to extract more than their fair share from1 govemrnenL See McAuslan, P, “Public Law and Public Oioice” (1988) 51 Mod L Rev 681CrossRefGoogle Scholar.

¹⁸ R Mnoolcin shows that the association works in the other direction as well - because individuals have human rights, there are limits to the power of governments over individuals and hence there must be a sphere outside the scope of public control (supra n 6, 1429).

¹⁹ M Dan-Cohen, supra n 15, 60.

²⁰ R Scruton, supra n 13,375.

²¹ See G Turkel, supra n 6 and D Kennedy, supra n 6.

²² For Wittgenstein even our innermost thoughts are public - because the language in which we express them can only be intelligibly understood according to public criteria.

²³ R Scruton, supra n 13,375.

²⁴ R Mnookin, supra n 6, 1431-3.

²⁵ By including property within the private sphere, property regains a place in human rights talk. Early liberals were wont to demand rights to propeny in the same breath as rights to libeny and democracy. Despite the effons of Ayn Rand, Roben Nozick, and their followers, those who would defend propeny directly usually do so in terms of utility rather than fundamental rights. However, including private propeny in the private sphere allows it to be defended indirectly, by making limitations on property appear as attacks on privacy (thus rules requiring disclosure of directors' remuneration to shareholders and disclosure of bank balances to the Australian Taxation Office are widely attacked on the basis that they pry into “private matters”). I have elsewhere argued that propeny cannot be the subject of a human right (“Ethics, Rights and Taxation” in W Sadurski, (ed) Ethical Dimensions of Legal Theory forthcoming, Rodopi, Amsterdam). I will not develop the argument beyond repeating the following. (i) It is difficult for propeny rights to be human rights because propeny is held in such different quantities; and (ii) any propeny over the minimum accorded to all by vinue of their citizenship should be interpreted as a privilege rather than a righL As such it cannot b justified in the same way as a right - that it provides some benefit to the holder. Privileges ca: only be justified by the benefits that accrue to non-holders. This does not rule out th justification of private property and its protection by law. But uneven distributions of privat property are only justified to the extent that they ca:n and do contribute to the welfare of thos, who have less.

²⁶ This may be lent plausibility by the way that 1980s consumerism dominated politics and too on religious fervour and doctrinal certitude.

²⁷ T Campbell, “Public and Private in Criminal Law” September 1990, paper presented to the ALTA Conference, Canberra.

²⁸ Or to paraphrase Campbell: there are a number of public/private distinctions that are analytically defensible and morally neither covert nor culpable.

²⁹ 29 It was the basis on which I initially dismissed Kennedy's concept of “loopification” (supra n 6). Kennedy represents this diagrammatically by linking activities in a circle and arguing that it is possible to move around to the point where one staned and yet have the feeling that one is always moving in the direction of greater privateness. The series of steps in the loop are: legislators, judges, executives; local government with home rule; school boards; port authorities; public utilities; labour unions, lawyers/doctors; very large corporations; small businesses; individual workers; consumers, investors, tenants, clients; churches; married persons; parents. My response was that at each stage Kennedy was relying on a different distinction. Cane argues that these criticisms miss the point (“Public Law and Private Law: A Study of the Analysis and Use of a Legal Concept”, in J Eekelaar and J Bell Oxford Essays in Jurisprudence, Third Series (1987)). He sees the public/private distinction as a normative one and the key question is whether different rules should apply. However if there is nothing to hang the distinction on then there is no justification for differential normative judgemenL In fact, this defence seems to reflect the CLS criticism.

³⁰ Likewise, I would agree that there are a large number of actions that might be in a sense “outwith the scope of state regulation without identifying those things with what is done in private or done by so-called 'private' corporations or individuals” (T Campbell, supra n 27). Where I would disagree is that there is any utility in calling this a “private” sphere. It is either a contingent list of those actions not currently subject to legal regulation (to the extent that such a concept makes sense) or is a statement of those things that the subject should not regulate. In the former case there is no sphere but merely a list. In the latter case, the unifying factor would be the scope of human or natural rights claims.

³¹ I know not why lawyers are so upset by illegitimate waterworks but it would make an interesting study for a genuinely amateur psycho-analyst like Jerome Frank. I should also point out that, ever since the invention of the plug, the dangers of babies being lost with the bathwater has been greatly exaggerated.

³² I do not think there is much difference between Campbell and I on this - I merely think tha the terms public and private are ready for retirement to be replaced by new words whic express the variety of distinctions that have been run under the banner of “public/private”.

³³ A Freeman and E Mensch, supra n 6, 238-9, 245, 253.

³⁴ J McOoskey, supra n 14, 313.

³⁵ Mnookin,supra n 6, 1437-8.

³⁶ See K Klare, supra n 6, 1363-4.

³⁷ “By insisting that the family should not be subject to state regulation, men have been able to retain their excessive power [over women and children)” (F Olsen, supra n 6, 1510).

³⁸ I would see this as literally an unequal right because it is a right to different quantities of things. Some might interpret the right so that it was, formally at least, put in equal terms - it is a right to enjoy whatever is privately owned. Even put in these terms, the unequal value of the right is clear. At the very least, it is a right of fundamentally unequal value.

³⁹ Alternatively, there may be some rights that can only be exercised in private. Here privacy is effectively a territorial limitation on the right itself.

⁴⁰ Sampford, C, “The Dimensions of Rights and their Statutory Protection” in C Sampford and D J Galligan (ed), Law, Rights and the Welfare State, (1986) 174-175Google Scholar.

⁴¹ Campbell, T, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights (1983)Google Scholar.

⁴² See C Sampford, supra n 40, esp 172-179.

⁴³ This value may have many justifications. Rawls and Dworlcin justify it on the basis of respect for persons as moral agents. Others base it on respect for their happiness, an intuitive or emotive outrage at certain kinds of human suffering and deprivation, a belief in the goal seeking nature of human beings or a belief that making life plans and following them is a rewarding experience in practical reason.

⁴⁴ Note that because the cost of the resources necessary to exercise many of the traditional negative rights are considerable, the list will be smaller, but it will be enjoyed by more. Egalitarianism is not something added to liberalism but synthesized to provide genuinely usable equal rights for all.

⁴⁵ Interestingly this reverses the role of property in privacy rights. Instead of the citizen's property extending or restricting the extent of their effective privacy rights, the rights on which claims to privacy are based include a right to the property on which to exercise these rights. Property does not so much include the right to privacy as privacy includes the right to property!

⁴⁶ See n 51 infra.

⁴⁷ A fourth suggested distinction, that public bodies are derived from statute (to which would have to be added exercises of the prerogative), is quickly dispatched by Beatson. Public law applies to some organisations created by contract and some companies are regulated by statute. J Beatson, “Public” and “Private” in English Administrative Law"(1987) 103 LQR 34, 47-49.

⁴⁸ Supra n 10, 1447-1448. Note that even here the “traditional” notion of land development was generally dependent on the provision of public services without which the land would not have increased nearly as much in price. Indeed it is only the proximity to other people, quintessentially public, even “civic” in fact, that has that effect. Thus the most important parts of the “development” are irreducibly public!

⁴⁹ No doubt cynics would claim that it was traditional to take out long leases on judges in some Australian jurisdictions.

⁵⁰ A Berle and G Means, TM Modern Corporation and Private Property (revised ed, 1968).

⁵¹ Although some praise the anglophone economies (England, USA, Australia, Canada and New Zealand) as the most advanced in the capitalist world and praise the sophistication of the financial markets which made it all possible, these economies did not flourish relative to the rest of the advanced capitalist world where more corporatist, even communitarian approaches to institutions remained (eg Japan and the EEC). In 1990 we can appreciate that the entrepreneurs of the 1980s were a throwback to a more primitive form of capitalism, a form that no longer works, and one that does great damage to the economies which it diverts (not to mention the institutions it destroys). For a further discussion of this point, see C Sampford, “Dworlcin's Claim to a Socialist Inheritance” supra n 7.

⁵² One of the most important reasons for this is the paradox that those who establish institutions to further desired ends must give institutions resources with which to achieve them. However, in handing over these resources, they simultaneously provide the resources with which an independent power base may be established; see C Sampford, The Disorder of Law (1989) 120-128 and 193-200.

⁵³ C Stone, supra n 10, 1446-7.

⁵⁴ M Dan-Cohen, supra n 15, 186.

⁵⁵ As the New Zealand government did when it “privatised” its telephone company.

⁵⁶ D Kennedy, supra n 6.

⁵⁷ Id.

⁵⁸ Indeed the term is often claimed by those that are neither large nor prestigious.

⁵⁹ As eleven private boys schools in Victoria like to call themselves.

⁶⁰ The term is chosen in preference to Galbraith's term “primitive” capitalism (See Guardian Weekly, 4 February 1990, 10) not only for its pejorative value but to highlight the parallels. Both vulgar capitalism and vulgar Marxism make claims to be a science and to have discovered laws governing behaviour and the operation of society - vulgar Marxists on the basis of class and economic determinism of the base, vulgar capitalists on that one dimensional stick figure homo economicus. The Marxist pseudo science went so far as to predict the imminent end of history. That has now been outbid by the claim that history has already ended! Both vulgar capitalism and vulgar Marxism tend to compare the idealised version of their own system with the actual and imagined workings of their opponents. For a further discussion of these and other similarities, see C Sampford, “Dworlcin's Claim to a Socialist Inheritance” supra n 7.

⁶¹ This is not to say that the tenets of “public choice” theory should be dismissed out of hand. It would certainly seem that business and banks have gained much for themselves over the last few years at the expense of the less organised individual citiz.ens.

⁶² No doubt when people think about specific examples of large commercial corporations they would see them as institutions. However, when people theorise about the private sphere, they tend to revert to thinking based on the individual model.

⁶³ Although it was not so long ago that the state was also personified. Even now several theories of law get into trouble because they postulate that law should be seen as if it were the commands, reasons or principled justifications of a single individual (see C Sampford, The Disorder of Law, supra n 52).

⁶⁴ J Raz, The Authority of Law (1979) 61, 72, 75-77.

⁶⁵ ' See, for example the contributions of Sharman, Warden and Galligan/Uhr to the forthcoming book of essays edited by Brian Galligan Australian Democracy: Political Theory and Constitutional Design (1991) Canberra, Centre for Research into Federalism. Even those who take a more moderate line, such as H Woolf (“Public Law - Private Law: Why the Divide? A Personal View” (1986) Public Law 220) still define public law as the protection of individual, from the activities and inactivities of public bodies. Although this clearly acknowledges tha the state may be a benefit as well as a threat to the citizen it still sees the law's role as tht protection of the citizen.

⁶⁶ Eg Geoffrey de Q Walker asserts that “[i)n their pure form, power and law are polal opposites, the former standing for arbitrary might, the latter for a system in which power it checked by institutions or individual rights ...” (The Rule of Law (1988) I). For a discussion ol the flaws in this position see my review of his book in (1989) 17 Melb UL Rev 174.

⁶⁷ P McAuslan, “Administrative Law, Collective Consumption and Judicial Policy” (1983) 4t Mod L Rev 1, 11: “My basic contention is that, as a matter of procedure, the judges see issue! brought before them in terms of individuals versus the bureaucracy; equally they think in tht same way substantively, ie that issues which to the outside world appear to involve clashes ol policy or ideology between different agencies of the state, in fact can on “proper lega analysis” be reduced to issues of the individual versus the bureaucracy. Furthermore, thii reductionism is in fact part and parcel of their general preference - their ideologica preference - for the individual as opposed to the collective”.

⁶⁸ If there is an exception among Australian public lawyers, I am not he.

⁶⁹ This is not to say that it provides an explanation of how these institutions arose.

⁷⁰ It should never be forgotten that state action may enhance human rights by contributing towards their protective, positive and psychological dimensions.

⁷¹ One constitutional lawyer once attempted to argue that this was no different from the traditional approach. To determine the limits of state power is to simultaneously detennine its extent (and, he might have added, vice versa). However, this does not get away from the bias involved in seeing the role of public law as the limitation of state power. This is to look at it from the point of view of those who want to limit it and sees public law as operating only in a single direction. In so doing it fails to acknowledge the existence of the other point of view and the existence of reasons for giving the state power in the first place. In a sense there should be no real debate here. Except for the odd anarchist and extreme libertarian (who would say that the only justifiable ends of government are negative - ie preventing the coercion of one citizen by another), public lawyers will readily agree that there are some positive ends that the state can achieve and that this is indeed the point of having a state in the first place. All that is necessary is to make our conception of public law reflect it.

⁷² Note that there is a temptation to regard governments as inevitable and part of the natura order of things. However, there should be no temptation to say the same thing abou corporations which are very much a creation of law and have only played a dominant role ii economic life over the last 120-150 years. However, there was a far greater tendency to trea corporations as natural and be uncritical of their structure and operation during the 1980s.

⁷³ Of course, some would say that government is a necessary evil and should be curtailed a much as possible - and others would say the same about corporations. However, even then w, would want to say what the necessary evil is and say that public law and corporate law ar, designed to ensure that those functions which make each necessary are fulfilled. It could b countered that these institutions will perform those functions without any assistance from th, law. However, few would really hold that view of either institution.

⁷⁴ A Touraine as cited by H Collins in “Against Abstentionism in Labour Law”, in J Eekelaar an1 J Bell, Oxford Essays in Jurisprudence, Third Series (1987), 92.

⁷⁵ I used to call it the “privatisation of power,” while I still found the public/private distinctio more helpful than misleading.

⁷⁶ See discussion of “Rights” in the next section.

⁷⁷ Benn and Gaus see this as by analogy. However the analogy is a forced one as all institutions are, in a sense public: S I Benn and G F Gaus, “The Liberal Conception of the Public and the Private”, in SI Benn and G F Gaus Public and Private in Social Life, (1983) 31-65, 39.

⁷⁸ M Dan-Cohen, supra n 6, 17.

⁷⁹ As M Dan-Cohen sees it (id), externally they are viewed holistically as if they were individual persons: while internally they are viewed atornistically as aggregations of persons. See also I M Ramsay, “Company Law and the Economics of Federalism”, (1990) 19 Fed L Rev 169, 180, and S Bottomley, “Taking Corporations Seriously: Some Considerations for Corporate Regulation”, (1990) 19 Fed L Rev 203, 213-214. These articles include excellent discussi of the relevant theories.

⁸⁰ See H LA Hart, The Concept of law (1961) 19lff. The other Hurnean conditions of limit altruism and limited understanding and strength of will are difficult to apply to institutions. the extent that analogous characteristics can be ascribed to institutions, they would hard justify rights giving them the benefit of natural law rights.

⁸¹ This is informed by the distinction M Dan-Cohen, (supra n 6, 19) makes between the derivative rights of institutions and the original rights of natural persons (and also reflects the mode of justification for those benefits which only a few enjoy, “privileges”). However, I cannot agree with the importance he gives to the limited one-dimensional notion of “autonomy rights” and the inclusion among them of property rights.

⁸² This bears out a point made earlier about the care with which we must construct purported rights. It is important that the right of privacy is not conceded to too many interests lest the claim be devalued by being spread too thinly, limiting the legitimate claims of individuals while bolstering the claims of corporations, possibly at the fonner's expense.

⁸³ M Dan-Cohen, supra n 6, 12.

⁸⁴ Blau and Scott, cited by M Dan-Cohen, supra n 15, 37.

⁸⁵ See C Sampford, The Disorder of Law, supra n 52. esp sections 5.4, 5.5, and Ch 8.

⁸⁶ M Dan-Cohen, supra n 15, 19.

⁸⁷ Over the long term, universities provide an even better example. The intellectual ferment that was ultimately produced by the concentration of teachers in universities could hardly have been foreseen by their mediaeval founders.

⁸⁸ This placed “the private bureaucracy, like private bedroom, beyond the public view and reach” (C Stone, supra n 10, 1453).

⁸⁹ The criticism in this section is the opposite to that which Dicey levelled. He complained that the law was too kind to state institutions because they were not subject to some of the constraints faced by private individuals. The criticism made here is that the law is too kind to non-state institutions. The difference is that Dicey did not take into account the different laws that constrained state institutions (perhaps in part because he did not acknowledge them!), laws that have certainly grown in impact since Dicey's time.

⁹⁰ H Collins, supra n 7, and H Woolf, supra n 65, who raises then dismisses it on inadequate. grounds.

⁹¹ This reverses Friendly's question by which he seeks to ridicule the doctrine of state action in the USA which has interpreted a state contract with a corporation which violates cenain rights, as state action contrary to the 14th amendment. He asks why an employer should have to give' his employees due process because he leases state-owned propeny. The question becomes, why should an institution be able to ignore due process simply because it is not a government body. Compare H Friendly, “The Public-Private Penumbra - Founeen Years Later” (1982): 130 Uni Pennsylvania L Rev 1289, 1294.

⁹² In my naughtier moments I wonder whether public choice theory might yet have a very fruitful application to public companies. These tend to be taken over by interest groups thai span management and shareholders that operate according to their own agendas and seek tc benefit at the expense of the majority of shareholders.

⁹³ 93 HJ Collins, in Eekelaar and Bell, supra n 74, 82. In public law, the couns forge standards of rationality and respect for individual rights on which to test the legitimacy of acts of the executive. These standards reflect a concern for the rule of law and fairness. In the context of private bureaucratic power, standards of rationality should require that the exercise of power be shown to further the economic interests of the organisation. Decisions or rulet which derogate from the efficiency of the enterprise should be vulnerable to attack. Eg if an employer cannot demonstrate the rational case for a particular policy on demotions and dismissals that policy should be treated as an abuse of power (supra n 74, 96). Similar caset might be made with respect to policies concerning promotions and the allocation of tasks especially unpleasant ones.

⁹⁴ When Elders complained that infonnation uncovered by a tax audit was used as an example in an ATO argument in a way that would have allowed it to be identified, it had a point within the existing legislation. However, there is a much more basic point raised by this issue - did the public have a right to the infonnation anyway? Alternatively, did the government have a right to the infonnation on any basis other than a confidential one?

⁹⁵ C Stone, supra n 10, 1483.

⁹⁶ There was, of course, a lot of hypocrisy by those who insisted on more scrutiny and restriction on government institutions while deregulating non-government ones. But the character of the arguers do not invalidate the arguments.

⁹⁷ Beatson notes the increasing awareness by judges that the wide powers of review developed since World War II could, if used extensively, hamper the orderly administration of the country (supra n 47, 41).

⁹⁸ Something whose importance for social animals descended from social primates should not be missed by liberals and nee-classical economists whose ideological stick figures of contracting autonomous beings could never capture the meaning of social interaction.

⁹⁹ In a very real sense modem society is characterised by an organisation and coordination of labour rather than simply a division of it. The ideal of a division of labour is an excessively individualistic notion. It conceives of individual workers with their different skills joining; together, by contract, to complete tasks more efficiently. This contract model was more sustainable in the late eighteenth century during the first phase in which individual mill owners employed large numbers of individuals to work.

¹⁰⁰ Interestingly enough, one of the aberrations of the 1980s share boom was an obsession with cash flow that saw many improving cash flow and apparent profitability by ignoring depreciation and forgoing investment.

¹⁰¹ As Hugh Stretton points out, sadly this is a reason why even dedicated administrators of government-owned enterprises are willing to support privatisation - to protect their institutions from being eaten away by the discriminatory treatment. They are, of course joined by “those public managers [who] will ask to be privatized because the public managers who support privatisation before hand are the ones who will survive it to keep their jobs, double their pay, and get their share options and BMWs” ('The Theory and Practice of Privatisation and the British Experience, HV Evatt Fo1U1dation (1986) 6).

¹⁰² Seen 51 supra.

¹⁰³ As suggested in C Sampford, supra n 7, even if it did represent an endorsement of one of the competing models, their lack of knowledge of those models would give it minimum persuasive value (indeed no more persuasive an endorsement than the 1960s advocacy of Maoism by radical students).

¹⁰⁴ Those who attack the State Banlc of Victoria and its Tricontinental subsidiary as the failure of state owned enterprises should remember that its failure depended on the failure of non-state enterprises.

¹⁰⁵ Indeed the general thrust of the argument owes much to Dworkin's arguments about the necessity for judges to justify the institutions of which they are a part (R Dworkin, “Hard Cases″ in Taking rights Seriously (1977) and subsequent work) - although there are many points at which I take issue (see The Disorder of law, supra n 52, ch 4)

¹⁰⁶ A union with 1,000 members covers the same proportion of the Australian workforce as a company worth $22m does of Australia's neu income earning assets (based on neu personal wealth of Australians of $227 billion not including owner occupied dwellings - as calculated by Mintel and reported in the Financial Review on 14 June 1988).

¹⁰⁷ This does not prevent the manufacture of purported justifications for institutions - indeed it wil stimulate them. However, the citing of a justification always raises the question of it adequacy and it is always harder to defend an institution on the basis of principle than on th, unquestioning assumption that it is a natural, inevitable part of the society.

¹⁰⁸ As justifications tend to be of what the institution could be rather than is, this will be, particularly common.

¹⁰⁹ As has been demonstrated by those corporations which appear to have been established am run in order to channel wealth to their entrepreneurial owners.

¹¹⁰ Eg address by D McCaughey to the John Henry Newman Centenary Seminar, University of Melbourne, 1 September 1990.

¹¹¹ I would not want to imply that this tendency to externalise costs is confined to western commercial corporations. Economic enterprises in communist countries have been among the worst polluters anywhere in the world. In our country, every liberal health plan since 1975 has attempted to reduce the cost to government but has or would have done so by imposing extra costs on the public in excess of the government saving.

¹¹² Note that the mere fact that the claimed benefits of institutions are indirect, does not avoid the issue. Where the action complained of directly reduces that which it is expected to enhance,the indirect benefit does need to be demonstrated in practice rather than in theory.

¹¹³ As the latter technically involves the takeover of a local company by a foreign entity it ought to be a proper subject for the Foreign Investment Review Board.

¹¹⁴ Another example is provided by the suggestions that Telecom's community service obligations and support for local manufacturing industry could be provided by regulation. There are problems in taking an institution that has several goals and replacing it with an institution that has one (profit maximisation) and laws and institutions to ensure that the others are achieved. This generates a conflict between the purposes of the institution and the purposes that now appear alien and forced upon it. This creates a temptation to avoid the latter purposes rather than balance and reconcile them. There will be many cases where a good bit of institutional design will do a better job.

¹¹⁵ Note that democratising institutions might mean that administrative law remedies might be bott less necessary and more acceptable. reducing their effective “burden” on institutions so i, would no longer be true that no institution could efficiently operate with the kind of regulation inherent in the new administrative law.

¹¹⁶ Eg H Collins, supra n 7.

¹¹⁷ Both Oxford and Harvard have extremely “flat” career structures and neither have the si: levels of academic appointment we have in Australia.

¹¹⁸ Oxford is the collegiate university par excellence and although Harvard has more powerful and appointed Deans, the autonomy of academics in Ivy League universities is very strong.

¹¹⁹ J Matthews, The Age of Democracy (1989).

¹²⁰ P Hirst, After Thatcher (1989).

¹²¹ O'Neill, O, “The Great Maxims of Justice and Charity” in MacConnick, N Bankowski, Z (eds), Enlightenment, Rights and Revolution (1989)Google Scholar.