'Officers of the Commonwealth' in the Private Sector: Can the High Court Review Outsourced Exercises of Power?

Abstract

The prevalence of public powers and functions being outsourced by government to private actors has been an established fact for upwards of three decades and has created a huge literature, even if one considers only pieces which address the issue from an administrative law perspective. In particular, there has been a significant quantity of Australian responses to R v Panel on Take-overs and Mergers; ex parte Datafin plc [1987] 1 QB 815. Many responses have been generally passionate, other (particularly judicial) responses have been markedly cautious. Few have assessed in detail what connection Datafin has to section 75(v) of the Australian Constitution which specifies that certain administrative law remedies will be available against an ‘officer of the Commonwealth.’ In this paper, we argue that this provision is wholly inconsistent with the reasoning in Datafin but nonetheless set out to demonstrate that there is scope within section 75(v) to cover some examples of outsourcing, although not all (correctly, in our view).

Keywords: Australia, Constitution, state liability, Datafin, private actors