Monetary Awards for Public Law Wrongs: Australia's Resistant Legal Landscape

29 Pages Posted: 25 May 2018 Last revised: 26 Mar 2019

See all articles by Ellen Rock

Ellen Rock

University of Technology Sydney (UTS)

Greg Weeks

ANU Law School

Date Written: May 16, 2018

Abstract

The idea of introducing a monetary remedy for harm arising out of the misdirected exercise of public power has waxed and waned in popularity in Australia over the years. Though few would dispute the intuitive appeal of the sentiment that ‘wrongs should not go unremedied’, the question of why this is so and how harm arising from maladministration could, or should, be repaired remains unresolved. This article canvasses a number of the potential justifications for the creation of such a remedy, before noting the various avenues the Australian courts have considered, and closed down, which might otherwise have led in that direction. These rejected opportunities have included the expansion of existing tort actions (eg misfeasance in public office and breach of statutory duty), the creation of new causes of action in tort (eg the Beaudesert tort and constitutional torts), and the interpretation of statutory remedial powers (eg the power to ‘do justice between the parties’ pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth)). Whatever the virtue of a remedy on this front, it is clear that it will need to be a matter of legislative, rather than judicial, intervention.

Keywords: Administrative Law, Torts, Damages, Remedies

JEL Classification: K10, K13, K19

Suggested Citation

Rock, Ellen and Weeks, Greg, Monetary Awards for Public Law Wrongs: Australia's Resistant Legal Landscape (May 16, 2018). (2018) 41 University of New South Wales Law Journal 1159; ANU College of Law Research Paper No. 19.5. Available at SSRN: https://ssrn.com/abstract=3179194

Ellen Rock

University of Technology Sydney (UTS) ( email )

15 Broadway, Ultimo
PO Box 123
Sydney, NSW 2007
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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