Australian public authorities which breach their soft law : remedies and suggested reforms

Abstract

This thesis considers the phenomenon of soft law. The very name 'soft law' sounds like an oxymoron: if law is soft, is it not therefore prevented from being law? There is some force to that objection, but only in a purely formalist sense. More practically, lawyers have understood for at least seventy years that public authorities are able to issue certain communications in a way that causes them to be treated like law, even though these are neither legislation nor subordinate legislation. Importantly for soft law as a regulatory tool, people tend to treat soft law as binding even though public authorities know that it is not. It follows that soft law's 'binding' effects do not apply equally between the public authority and those to whom it is directed. Consequently, soft law is both highly effective as a means of regulation, and inherently risky for those who are regulated by it. Much has been written about using soft law in regulation, but that is not the concern of this thesis. Soft law plays a vital part in administrative law. It manages the tension between decision-makers having the flexibility to decide individual matters on their merits on one hand, and, on the other, the expectation that like issues will broadly be decided consistently with each other. That tension is central to the rule of law. Soft law cannot resolve the tension between flexibility and consistency, but it does provide a mechanism which can guide decision-makers towards consistency without binding them to certain outcomes. Chapter 2 deals extensively with issues that arise from soft law's role in managing this tension. The focus of the remaining chapters is on people who are regulated by soft law and, more specifically, what happens when a public authority breaches its own soft law upon which people have relied. Where people in that circumstance suffer loss as a consequence of their reliance on soft law, this thesis asks what remedies might lie to assist them. Chapter 3 looks at whether judicial review can be extended to cover exercises ...