‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power

42 Pages Posted: 22 Sep 2013 Last revised: 25 Jun 2014

See all articles by Janina Boughey

Janina Boughey

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

Greg Weeks

ANU Law School

Date Written: September 10, 2013

Abstract

This article analyses the options available to the High Court in defining the phrase 'officer of the Commonwealth' in the context of modern mixed administration. The various tests used in Australian administrative law are explored, with a focus on the "public function" test developed in Datafin. We argue that these administrative law tests are largely unhelpful and inappropriate for defining the scope of section 75(v) of the Constitution. Instead, we suggest that the High Court could find inspiration for the most appropriate and adapted solution from an unlikely place: Canadian human rights law. We argue that by adapting the 'control' used by Canadian courts to determine the scope of Canadian Charter of Rights and Freedoms, the Australian High Court could find an appropriate balance for reviewing the actions of private sector actors, while simultaneously achieving consistency with existing precedent.

Suggested Citation

Boughey, Janina and Weeks, Greg, ‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power (September 10, 2013). University of New South Wales Law Journal, Vol. 36, No. 1, 2013; UNSW Law Research Paper No. 2013-57. Available at SSRN: https://ssrn.com/abstract=2329246

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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