Soft law and public authorities : remedies and reform / Greg Weeks.
2016
KU2450 .W44 2016 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Title
Soft law and public authorities : remedies and reform / Greg Weeks.
Published
Oxford ; Portland, OR : Hart Pubishing Ltd, 2016.
Call Number
KU2450 .W44 2016
ISBN
9781782256885 (hardback)
1782256881 (hardback)
1782256881 (hardback)
Description
xxxiii, 280 pages ; 25 cm.
System Control No.
(OCoLC)927192085
Note
Based on the author's thesis (doctoral - University of New South Wales, 2013), issued under title: Australian public authorities which breach their soft law : remedies and suggested reforms.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Foreword
v
Acknowledgements
ix
Table of Cases
xv
Table of Legislation
xxix
1.
Introduction
1
pt. I
RISE OF SOFT LAW: DEFINITIONS AND ISSUES INTRODUCTION
8
2.
Defining Soft Law
13
A.
Types of Soft Law
17
B.
Discretionary Power
25
(i).
Diceyan View
25
(ii).
Perils of Skeletal Legislation
27
(iii).
Confining and Structuring Discretion
30
(iv).
Alternative Approaches
36
3.
Regulatory Purpose of Soft Law
41
4.
Regulatory Effect of Soft Law
47
A.
`Hardening' of Soft Law
47
B.
Two Examples of the Regulatory Effects of Soft Law
53
C.
Conclusion
59
pt. II
COURT-BASED REMEDIES INTRODUCTION
62
5.
Remedies Premised on Invalidity: The Province of Judicial Review
63
A.
Judicial Review and the Rule of Law
68
(i).
Purdy v DPP
76
(ii).
Lumba v Home Secretary
84
(iii).
Kambadzi v Home Secretary
88
B.
Does Judicial Review Civilise Law or Power?
90
(i).
Can Judicial Review Assert Jurisdiction Over Soft Law?
94
(ii).
Must Parliament have a Role?
97
C.
Constitutional Limits to Australian Judicial Review
101
(i).
Constitutional Requirement of a `Matter'
102
D.
Influence of Soft Law on Judicial Review Proceedings
107
(i).
Plaintiff M61 v Commonwealth (`The Offshore Processing Case')
107
(ii).
Khan v Minister for Immigration and Citizenship
112
(iii).
Davies v HMRC
116
6.
Procedural Judicial Review Remedies
119
A.
Possible Grounds of Judicial Review
120
(i).
Improper Fettering of Discretion
120
(ii).
Procedural Fairness
124
(iii).
Mandatory and Forbidden Considerations
128
(iv).
Unreasonableness and Irrationality
136
B.
Judicial Review's Traditional Remedial Scope
141
7.
Substantive Judicial Review Remedies
146
A.
Contrasting Remedial Mechanisms
146
(i).
Public Law Estoppel
146
(ii).
Proportionality
148
(iii).
Consistency
155
B.
Substantive Enforcement of Legitimate Expectations
157
(i).
English Developments
159
(ii).
Responses in Canada and South Africa
165
(a).
Canada
165
(b).
South Africa
168
(iii).
Australian Resistance to the Development of Substantive Fairness
171
C.
Money Remedies for Invalidity
178
8.
Court-based Remedies: Compensation not Premised on Invalidity
180
A.
Can Public Authorities Ever be Liable in Tort?
182
B.
Can Public Authorities Ever be Liable in Tort Where Individuals Would Not Be?
186
C.
Can Public Authorities be Liable for Both Acts and Omissions in Breach of Common Law Duty?
190
D.
Can Public Authorities be Liable in Equity Where an Estoppel is Raised?
194
9.
Private Law Liability: Example 1
197
A.
Would a Clear Statutory Duty to Act Expose the Officers to Tort Liability?
199
B.
Is a Mere Statutory Power to Act Sufficient to Impose a Duty of Care on the Officers?
201
C.
Can a Provision in the Police Manual Assist the Plaintiff in Establishing that the Officers Owed him a Common Law Duty of Care?
201
D.
What Would be the Result if the Police Manual were Available to the Public, and the Plaintiff was Aware of its Terms?
205
E.
What Would be the Result if the Police Manual were Available to the Public, But the Plaintiff had no Subjective Knowledge of its Terms?
207
10.
Private Law Liability and Remedies: Example 2
214
A.
Preliminary Comments on Private Law Liability for Reliance-Based Loss
215
B.
Tort Liability
216
C.
Equitable Remedies
220
D.
Conclusion
231
pt. III
NON-JUDICIAL REMEDIES INTRODUCTION
234
11.
Ombudsman
235
A.
Dual Roles and Constitutional Location of the Ombudsman
235
B.
Ombudsman and the Rule of Law
242
C.
Ombudsman's Functions and Remedial Capabilities
244
(i).
Ombudsmen can Recommend Things Courts Cannot Order
245
(ii).
Ombudsmen have the Discretion to Decline to Investigate Matters
246
(iii).
Ombudsmen's Recommendations are Usually Effective
248
D.
Ombudsman's Capacity to Review Maladministration
249
12.
Discretionary Payments
252
A.
Practical Remedies
252
B.
Legal Basis of Discretionary Compensation Schemes
258
C.
Challenging Decisions Under Discretionary Compensation Schemes
263
D.
Conclusion
266
13.
Conclusions
268
A.
Themes
268
(i).
Soft Law Must Mean Something
268
(ii).
Legal Responses are Limited to Inadequate `Work-arounds'
270
(iii).
Most Effective Current Controls on Soft Law are `Soft'
271
B.
Future Directions
272
Index
275