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

42 Pages Posted: 6 Aug 2013

See all articles by Janina Boughey

Janina Boughey

University of New South Wales (UNSW) - Faculty of Law

Greg Weeks

ANU Law School

Date Written: July 1, 2013

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

Suggested Citation

Boughey, Janina and Weeks, Greg, 'Officers of the Commonwealth' in the Private Sector: Can the High Court Review Outsourced Exercises of Power? (July 1, 2013). University of New South Wales Law Journal, Vol. 36, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2306306

Janina Boughey

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Greg Weeks (Contact Author)

ANU Law School ( email )

Canberra, Australian Capital Territory 0200
Australia
6125 5420 (Phone)

HOME PAGE: http://https://law.anu.edu.au/people/greg-weeks

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