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Australian public authorities which breach their soft law : remedies and suggested reforms

Weeks, Greg, Law, Faculty of Law, UNSW

2013

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  • Title:
    Australian public authorities which breach their soft law : remedies and suggested reforms
  • Author/Creator/Curator: Weeks, Greg, Law, Faculty of Law, UNSW
  • Subjects: Remedies; Administrative Law; Soft Law
  • Resource type: Thesis
  • Type of thesis: Ph.D.
  • Date: 2013
  • Supervisor: Aronson, Mark, Law, Faculty of Law, UNSW; Roux, Theunis, Law, Faculty of Law, UNSW
  • Language: English
  • Print availability: T/2013/296 (Please speak to a staff member at the Library Help Zone)
  • Permissions: This work can be used in accordance with the Creative Commons BY-NC-ND license.
    Please see additional information at https://library.unsw.edu.au/copyright/for-researchers-and-creators/unsworks

  • Description: This thesis considers the phenomenon of soft law. The very name ‘soft law’ sounds like an oxymoron: if law is soft, is it not therefore prevented from being law? There is some force to that objection, but only in a purely formalist sense. More practically, lawyers have understood for at least seventy years that public authorities are able to issue certain communications in a way that causes them to be treated like law, even though these are neither legislation nor subordinate legislation. Importantly for soft law as a regulatory tool, people tend to treat soft law as binding even though public authorities know that it is not. It follows that soft law's ‘binding’ effects do not apply equally between the public authority and those to whom it is directed. Consequently, soft law is both highly effective as a means of regulation, and inherently risky for those who are regulated by it. Much has been written about using soft law in regulation, but that is not the concern of this thesis. Soft law plays a vital part in administrative law. It manages the tension between decision-makers having the flexibility to decide individual matters on their merits on one hand, and, on the other, the expectation that like issues will broadly be decided consistently with each other. That tension is central to the rule of law. Soft law cannot resolve the tension between flexibility and consistency, but it does provide a mechanism which can guide decision-makers towards consistency without binding them to certain outcomes. Chapter 2 deals extensively with issues that arise from soft law's role in managing this tension.The focus of the remaining chapters is on people who are regulated by soft law and, more specifically, what happens when a public authority breaches its own soft law upon which people have relied. Where people in that circumstance suffer loss as a consequence of their reliance on soft law, this thesis asks what remedies might lie to assist them. Chapter 3 looks at whether judicial review can be extended to cover exercises of soft law, either in order to grant a procedural remedy or to compel the public authority to perform in substance what its soft law had promised. It concludes that other countries, such as the UK, provide some hope for people who have relied upon soft law to their detriment. Australian jurisprudence, by contrast, offers little scope for a person so affected to obtain a judicial review remedy, either procedural or substantive. The most that the Australian cases have offered is that soft law is not meaningless, even where it is unenforceable.Chapter 4 examines the capacity to obtain a money remedy based upon establishing invalidity. This could either be through a damages remedy being included in judicial review for ultra vires acts or in restitution. Public law damages is a remedy whose time has not yet come. It has been firmly rejected in Australian courts and, in the UK, a Law Commission recommendation in favour of such a remedy was firmly rejected by the government. Restitution against public authorities has, by contrast, been on a firm footing in the UK for twenty years. Australian courts are yet to adopt the English jurisprudence formally, but there is little stopping them from doing so.Chapter 5 looks at modes of compensation which are not based upon a finding of invalidity, namely tort and equity. Chapter 5 looks at two examples of how this might occur. The first asks whether and when public authorities might owe a duty of care to come to the aid of an individual, and what role a soft law set of instructions might play in deciding such a matter. It is nothing new that tort liability applies to public authorities “as nearly as possible” in the same way that it does to individuals. The key issue here is when a public authority might be required to do more than would be expected of an individual. The second example looks at whether equity has the capacity to provide a compensatory remedy where someone has suffered loss as a result of relying on soft law.As with previous chapters, Chapter 5 concludes that the likelihood of an Australian court providing a remedy in either tort or equity is slender. Chapter 6 argues, however, that challenges to public authorities’ use of soft law outside the scope of the courts are most likely to provide suitable remedies. In particular, the flexibility of the Ombudsman has been used to significant effect in obtaining remedies where people have relied to their detriment on soft law. The conclusion is that, just as the court-based responses to this problem are inadequate, the ‘soft’ controls on soft law are effective.

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