Fault and Accountability in Public Law
Mark Elliot, Jason Varuhas and Shona Wilson Stark (eds), The Unity of Public Law (Hart Publishing, 2018) 171
29 Pages Posted: 21 Jun 2018
Date Written: June 13, 2018
Accountability is a core public law, if not constitutional, value. It has close ties to the rule of law and separation of powers principles. Despite this status, the Australian public law system presents only a thin reflection of accountability. This is because it provides control of public power, but not restoration or punishment in cases of abuse of power. If accountability were adopted as a unifying theme to support the “thickening” of Australian public law so as to serve these neglected functions, the concept of fault would play a key role. We do not tend to think about public law in terms of fault. However, on closer analysis, it is possible to identify benchmarks of fault within the existing public law grounds of review. By linking these benchmarks of fault to the functions of accountability, punitive remedies might be available for conduct rising to the level of bad faith, and reparative remedies might be available for conduct rising to the level of legal unreasonableness. This approach represents the first step in sketching out the parameters of a public law regime that is underpinned not only by the goal of controlling public power, but by the goal of supporting the broader legitimacy of government through accountability.
Keywords: government accountability; judicial review; bad faith; fault
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