See and Avoid : the Contribution of Lawyers in Government Practice to Value-Laden Policy Debates

  • Jenny Duxbury

    Student thesis: Doctoral Thesis

    Abstract

    How do the lawyers who advise public officials contribute to the policy process? Conventional explanations assume that there is only one acceptable role for lawyers: to provide advice to officials that guides the legally accountable decision-maker to act within the bounds of the law. Yet these accounts rest on a rational model of the policy process that requires lawyers to remain above policy and politics and ignores the extent to which choices about values priorities are a pervasive characteristic of government decision-making. Drawing on constructivist approaches to public policy as well as theories from law and social psychology, this study analyses how lawyers in government practice frame the choices of values positions that underlie government decisions.
    This lens is developed through a case study of a group of lawyers, including the author of this thesis, who advised Airservices Australia during a controversy around the National Airspace System reform program, introduced by the Howard Government in 2002. The second stage of the reform agenda included proposed new rules that reduced Air Traffic Control of aircraft flying in significant areas of Australian airspace, introducing a ‘see and avoid’ principle of air traffic management.
    Airservices Australia was at the centre of the controversy since its Board’s decision brought the changes into effect. The ‘see and avoid’ principle represented a shift in favour of the goal of giving private pilots greater freedom to navigate the airways without being directed by air traffic controllers. At the very heart of the controversy was a rhetorical struggle amongst competing interests about the safety of ‘see and avoid.’ Underlying this struggle was a conflict about whether government decisions about airspace regulation should prioritise the value of self-direction (individual freedom) or the value of security (protection of individuals and the community from harm).
    The case study suggests that lawyers can shape the political dynamics of the policy process when there is values disagreement amongst the principal actors in a policy arena that makes it hard for officials to choose a ‘right’ course of action. Initially, the lawyers in the case sought to act as technical arbiters of the legality of the see and avoid changes. As happened with the advice of other technical experts advising the Agency, the lawyers’ advice conveyed value judgements that became entangled with the political argument about the fate of the reform. In practice, the legal advice was used by other actors, both within and outside the bureaucracy for political advocacy. As the decision-making environment became saturated with conflicting information and ‘analysis paralysis’ set in, the lawyers increasingly performed the role of team-players by working closely with the Agency’s technical experts to re-frame the decision-making process.
    In an environment where the Agency’s Board was threatened with litigation, the lawyers had an advantage in re-framing the problem situation, using the language of legal principles. The legal frame enabled the directors to make and justify their decision in August 2004 to return all aircraft to higher levels of Air Traffic Control in significant tracts of airspace.
    While the study highlights how the role of the lawyers in the case was contingent on variables in the political context, it raises questions that apply more broadly to government legal practitioners. This finding is supported by an analysis of data from interviews the author conducted with 50 lawyers and officials with experience of federal government legal practice. The study concludes with a discussion of how the analytic lens might be used in professional legal education and some proposals for future research.
    Date of Award2020
    Original languageEnglish
    SupervisorLinda Botterill (Supervisor), Maree Sainsbury (Supervisor), Gary Rumble (Supervisor) & Alan Fenna (Supervisor)

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