‘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
Date Written: September 10, 2013
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.
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