Remedies for Government Liability: Beyond Administrative Law

Abstract

Given the degree of power wielded by Australian government officials and entities, it is unsurprising that government decisions and conduct frequently impact on individuals, ranging from minor inconveniences to more significant financial, physical and mental losses and intrusions. A wronged individual looking for a remedy will quickly come to realise that ‘government liability’ is a deceptively simple label that wraps up a complex range of rules and remedies.

The means by which government conduct and decisions can be challenged derive from a number of sources, including the Constitution, statute, common law and administrative regimes. In order to make choices about the most appropriate way to resolve a particular case, practitioners must be able to work across the traditional legal ‘silos’, drawing on public and private law principles as well as appreciating the important, and often under-valued, roles played by non-legal accountability mechanisms.

This article was developed in the process of writing Janina Boughey, Ellen Rock and Greg Weeks, Government Liability: Principles and Remedies (LexisNexis Australia, 2019).

Our book is the first in Australia to draw together the principal means of challenging and remedying harm caused by government decisions and conduct. It includes chapters designed to familiarise readers with some of the complexities underpinning this area, as well as dedicated coverage of public law remedies (judicial review), private law remedies (tort, contract, equity and restitution), and statutory remedies (merits review, human rights legislation, ombudsmen, investigative agencies and discretionary compensation regimes).

This article considers the themes of the book, including that the liability of government and public authorities is not simply a matter of administrative law. Many aspects of such liability demand a knowledge of private law doctrines and the specific ways that they interact with government. Public law remains an important aspect of government liability and its doctrines are also considered in detail.

Keywords: government, liability, administrative law, remedies, public law, private law

JEL Classification: K10, K11, K12, K13, K23