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Suppose a Public Servant states in correspondence, "This legislation requires..." and then incorrectly stipulates an action that is not in the law.

I assume that most constitutions set out how legislation is implemented .

Therefore has the Public Servant acted contrarily to the constitution? Or is the Public Servant immune to such mistakes?

My specific interest is in relation to Australian Law for a Federal Government Department, although I am interested in the generic question.

  • @feetwet thanks for the edit, that is a lot clearer. Although I have doubts as to whether ... is not required by the law is accurate. Rather that, in this scenario, there is nothing in the law that permits the action. – MikeT Feb 19 '16 at 19:48
  • I guess you should clarify which scenario you are asking about. If the executive asserts "this law permits this office to xxx" that's a little different from "this law requires this office to xxx." There are laws of both types. In the latter case there is a presumption of no discretion granted to the executive w.r.t. enforcement/implementation. In the former case, action may be "permitted" under all sorts of theories, and perhaps the executive cited an incorrect authorization but the action could still be permitted under a different source or theory. – feetwet Feb 19 '16 at 19:53
  • @MikeT I'm very confused about your example. You quote something, but you don't explain how it relates to the employee's actions, or what statute you think should have been controlling the situation. "In short a gross payment of $200,000 taxed according to taxation legislation, increased to $260,000 when considered by the Social Services department." - I don't know what that means. But, maybe that's okay. Maybe I'm just not familiar enough with the terms of art in this area. Somebody else might understand what you're talking about. – user3851 Feb 19 '16 at 20:37
  • @feetwet. requires was definitely used. (and it was actually a legal professional who stated this) – MikeT Feb 19 '16 at 21:12
  • @feetwet the public servant's action in Social Services was to look at the $200,000 redundancy payment and say that legislation requires this to be considered as $260,000 (actual wording was along the lines of requires net-income to be grossed up). Grossing-up using the taxation tables (as was applied ie basically the 30% increase) is only within taxation legislation. (just so happens that nearly 30 years ago this department was in taxation department). – MikeT Feb 19 '16 at 21:20
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Since you say this question is general, I'll give an example from the U.S. (However, I explain below that some of your assumptions about how constitutions and legislation interact are flawed.)

In Heien v. North Carolina, the US Supreme Court ruled that seizures (such as a traffic stop) can be justified by reasonable mistakes of law.

The Fourth Amendment prohibits unreasonable searches and seizures. The court emphasised that the "touchstone of the Fourth Amendment is reasonableness".

Because the officer's mistake of law was reasonable, there was no violation of the Fourth Amendment.


The above was an example where a mistake of law was claimed by the defendant to result in a constitutional violation.

In general, constitutions do not say how particular statutes are to be interpreted. They may put constraints on what legislation may be passed. Courts may default to interpret statutes in ways that do not conflict with the constitution when there are several reasonable interpretations.

But, just because somebody in the executive branch erroneously interprets a statute does not mean that the constitution is implicated.

If a person seeking some benefit is being asked to comply with a condition that is not required by statute, they may sue to get the courts to make a holding about how to interpret the statute. Before jumping to that extreme measure, there might be some lower-cost ways to challenge the individual public servant's interpretation (talking to a supervisor, a within-department appeal process, tribunals, etc.)

  • I can understand what you have said about reasonable interpretation. However in this scenario the action taken was not in the legislation at all. I will try to amend the question to add more detail. – MikeT Feb 19 '16 at 19:51
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    @MikeT Well, Heien v. NC will definitely not apply in any example you give, because it relates to a particular clause in the US Constitution. It was just an example of a situation where mistakes of law have been found allow for reasonable seizures that are otherwise prohibited by the constitution. My main point still stands: that erroneous interpretation of statute does not necessarily implicate the constitution at all. – user3851 Feb 19 '16 at 20:02
  • @MikeT Edited to remove what is now an obviously unrelated example. – user3851 Feb 19 '16 at 20:35
  • I've updated the question which is more specific in regards to the action taken. I don't see this as an erroneous interpretation rather deliberately applying other legislation. The public servant in question was actually an associate i.e. a legally qualified person contracted to perform duties. – MikeT Feb 19 '16 at 20:41
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    @MikeT I'm in chat. --- edit Oh, I realize you can't join until 20 rep. Never mind :) Even if there was a constitutional implication, the remedy would be via the courts. I don't see how a mistake of law not implicating the constitution makes it any more difficult to pursue a remedy than if a mistake of law does implicate the constitution. – user3851 Feb 19 '16 at 21:39
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I don't know about Australia, but I'll answer for the United States.

If a public servant, acting in the capacity of his office, tells you to do something, and it's wrong, the public servant is usually shielded from the consequences, unless the errant recommendation was "egregiously" wrong. (A public servant cannot get away with telling you to commit "murder," either literally or figuratively.)

On the other hand, you are shielded (if you save the documentation or other evidence) from the consequences of your resulting actions, if you relied in good faith on the public servant's errant (but good faith) recommendation, to your detriment.

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