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The use and Enforcement of Soft Law by Australian Public Authorities

Published online by Cambridge University Press:  01 January 2025

Greg Weeks
Greg Weeks*
Affiliation:
Faculty of Law, University of New South Wales.
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Abstract

Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many other jurisdictions. This article will not focus on the regulatory aspects of soft law, but will examine the capacity of individuals to obtain remedies where public authorities fail to adhere to the terms of their published soft law. The available judicial remedies apply in very limited circumstances, both in private law actions (in tort or equity) and public law (judicial review) actions. Ultimately, the most effective ways to remedy breaches of soft law appear also to be ‘soft’, such as recommendations of the Ombudsman and discretionary schemes for ex gratia payments.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 1 , March 2014 , pp. 1 - 37
Copyright
Copyright © 2014 The Australian National University

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Footnotes

This article is an edited version of the paper presented to the Practice and Theory of Soft Law Academic Symposium, Peking University Soft Law Centre, 9 July 2011. My thanks are due to Mark Aronson, Leah Grolman, Matthew Groves and Theunis Roux for their comments and advice, as well as to this journal's two anonymous reviewers. Any errors are mine alone.

References

1 This recognition is usually traced back to a short piece in the Law Quarterly Review by Robert Megarry: R E Megarry, ‘Administrative Quasi-Legislation’ (1944) 60 Law Quarterly Review 125.

2 Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th ed, 2012) 15 (emphasis in original).

3 See, eg, Julia, Black, ‘Constitutionalising Self-Regulation’ (1996) 59(1) Modern Law Review 24; Julia Black, Rules and Regulators (Oxford University Press, 1997)Google Scholar.

4 (2005) 221 CLR 99 ('Tang’).

5 Stephen, Argument, ‘Quasi-legislation: Greasy Pig, Trojan Horse or Unruly Child?’ (1994) 1(3) Australian Journal of Administrative Law 144, 144 (emphasis in original)Google Scholar.

6 Christine M, Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International and Comparative Law Quarterly 850, 850Google Scholar.

7 See, eg, John, Houghton and Robert, Baldwin, ‘Circular Arguments: the Status and Legitimacy of Administrative Rules’ [1986] Public Law 239, 240–5Google Scholar; Charles A Breer and Scot W Anderson, ‘Regulation Without Rulemaking: The Force and Authority of Informal Agency Action’ (Paper presented at the Rocky Mountain Mineral Law Foundation Annual Institute Proceedings, 2001) [5.5]–[5.13]; Lorne Sossin and Charles W Smith, ‘Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government’ (2003) 40 Alberta Law Review 867, 871; Administrative Review Council, Administrative Accountability in Business Areas Subject to Complex and Specific Regulation No 49 (2008) (Complex Regulation Report), 5.

8 Michelle Cini, ‘From Soft Law to Hard Law?: Discretion and Rule-Making in the Commission's State Aid Regime’ (Paper presented at the Robert Schuman Centre for Advanced Studies European Forum: ‘Between Europe and the Nation State: the Reshaping of Interests, Identities and Political Representation’, January 2000) 4.

9 Argument, above n 5, 144. See those listed in Mark Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1, 3.

10 See Pearce and Argument, above n 2, 16. Writing from a British perspective, Aileen McHarg included constitutional conventions which lack legislative force within the definition of soft law: Aileen McHarg, ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’ (2008) 71(6) Modern Law Review 853.

11 Robin, Creyke and John, McMillan, ‘Soft Law versus Hard Law’ in Linda, Pearson, Carol, Harlow and Michael, Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing, 2008) 377, 380Google Scholar.

12 Ibid. This was also the guiding principle behind the Legislative Instruments Act 2003 (Cth).

13 An example of the sometimes elusive nature of soft law can be observed in the UK Supreme Court's recent decision in Bank Mellat v Her Majesty's Treasury (No 2) [2013] 3 WLR 222, in which HM Treasury was empowered by statute to make directions by means of a statutory instrument in response to risks ‘arising from terrorist financing, money laundering [or] nuclear proliferation’ (223 [4] per Lord Sumption). Ordinarily, an instrument made under direct statutory authority would automatically be classified as hard law, but the Supreme Court seemed to view the order as something out of the ordinary, a ‘hybrid’ instrument over which Parliament exercised significantly reduced oversight: 242 [48] (Lord Sumption), 246 [61] (Lord Reed), 265 [134] (Lord Hope). Nothing came directly from the Supreme Court's suspicion that the relevant instrument was not hard law of the usual sort, the case being determined in Bank Mellat's favour, by majority, on other grounds. However, it is salutary to note this case as an example of the point that identifying soft law based upon set categories of instruments is ultimately, at best, a limited approach to the issue.

14 Robert, Baldwin, Rules and Government (Oxford University Press, 1995) 60–80Google Scholar.

15 Ibid 80. It must be said that this formulation rather begs the question of when legislation will fail to amount to delegated or secondary legislation as ‘usual’.

16 Legislative Instruments Act 2003 (Cth). This Act has been described as the ‘single most important development in delegated legislation for at least half a century’: Stephen Argument, ‘Delegated Legislation’ in Matthew Groves and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 134, 135.

17 Pearce and Argument, above n 2, 31–2. This has the effect that much of the debate that previously surrounded the difference between secondary and tertiary legislation is now moot.

18 Legislative Instruments Act 2003 (Cth) s 5(2).

19 Ibid s 6. Certain categories of instrument have also been expressly declared not to be legislative instruments under the Act: at s 7.

20 Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press, 3rd Ed, 2009), 196.

21 H W Arthurs, ‘Without the Law’: Administrative Justice and Legal Pluralism in Nineteenth-Century England (University of Toronto Press, 1985) 137.

22 Ibid.

23 Megarry, above n 1, 125–6.

24 Ibid 126. See also Pearce and Argument, above n 2, 15. For examples of ‘codified discretion’ from even earlier than this, see Arthurs, above n 21, 136; Edward Page, Governing By Numbers: Delegated Legislation and Everyday Policy-Making (Hart Publishing, 2001) 13. For an account of the history of rule-making in the USA, see Cornelius M Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy (CQ Press, 2nd ed, 1999) 7–22. For an account of the history of rule-making in the UK, see Paul P Craig, Administrative Law (Sweet & Maxwell, 7th ed, 2012) 434–7.

25 Megarry, above n 1, 126.

26 The traditional Diceyan approach to the administrative state was typified by Lord Hewart CJ, who considered the rise of the administrative state to be diametrically opposed to the imperatives of the rule of law: Baron Gordon Hewart, The New Despotism (E Benn, 1929) 37. See also F A Hayek, The Road to Serfdom (Routledge and Kegan Paul, 1944). These followers of the theories of A V Dicey would not likely have been prepared to concede any positive aspects to guidelines being issued by executive agencies, regardless of their benign intention or positive effect.

27 Megarry, above n 1, 127. See Justice, Alan Robertson, ‘Nothing Like the Curate's Egg’ in Neil, Williams (ed), Key Issues in Judicial Review (Federation Press, 2014), 165Google Scholar.

28 Megarry, above n 1, 126.

29 In this sense, Megarry did reflect a concern with the damage done to the ‘symmetry’ of the law that is reminiscent of Dicey, although no less valid for it. Dicey took the view that judges ‘are much more concerned than Parliament to maintain ‘the logic or the symmetry of the law’': H W Arthurs, ‘Rethinking Administrative Law: a Slightly Dicey Business’ (1979) 17(1) Osgoode Hall Law Journal 1, 15. Arthurs was quoting A V Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (Macmillan, 2nd ed, 1962) 364.

30 Administrative Review Council, Administrative Accountability in Business Areas Subject to Complex and Specific Regulation, Report No 49, (2008), 19–21.

31 Kerwin, above n 24, 28. A recent example of government contracting being used as a form of legislation was the subject of the litigation in Williams v The Commonwealth (2012) 248 CLR 156. The High Court held that the Commonwealth lacked contractual power equivalent to its legislative capacities under s 51 of the Constitution and denied that it had all the powers of a natural person. It held invalid the arrangements under which the Commonwealth had entered into contracts for the provision of chaplaincy services and spent money to perform its obligations under those contracts.

32 Administrative Review Council, above n 30, 14. This analogy is imperfect, mainly due to the fact that, although the SCT obtains jurisdiction by consent, this is at the option of the trustee of a superannuation fund rather than the beneficiary who will bring a complaint to the SCT; see Greg Weeks, ‘Superannuation Complaints Tribunal and the Public / Private Distinction in Australian Administrative Law’ (2006) 13(3) Australian Journal of Administrative Law 147; Gail Pearson, Financial Services Law and Compliance in Australia (2008) 490. Additionally, as a majority of the High Court noted in obiter dicta in Breckler, while the trustees of the relevant fund in that matter elected to submit to the jurisdiction of the SCT, they were left with no practical option to do otherwise and that ‘cases may be readily imagined where it would be a breach of trust not to exercise the election so as to obtain the revenue benefits which follow’: Attorney-General (Cth) v Breckler (1999) 197 CLR 83, 111 [44] ('Breckler’).

33 The issues which arise from this point, while important, are beyond the scope of this article.

34 Soft law was the subject of a government report some 14 years ago: Commonwealth Interdepartmental Committee on Quasi-regulation, Grey-letter law: Report of the Commonwealth Interdepartmental Committee on Quasi-regulation (1997) (Grey-letter Law Report). It then remained largely unconsidered in Australia until the publication of Aronson, above n 9. This led to Professor Aronson being described as soft law's ‘Australian Prince Charming’: Creyke and McMillan, above n 11, 377.

35 (2005) 221 CLR 99.

36 Ibid 131 [91] (Gummow, Callinan & Heydon JJ).

37 See the sources cited in Aronson, above n 9, 2–3; Justice P A Keane, ‘Judicial Review: the Courts and the Academy’ (2008) 82(9) Australian Law Journal 623, 625.

38 Aronson, above n 9, 23.

39 In which sense the Queensland legislation was relevantly identical to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’)..

40 Griffith University was established under the Griffith University Act 1998 (Qld).

41 See Keane, above n 37, 632–3; Chief Justice Patrick Keane, ‘Democracy, Participation and Administrative Law’ (Speech delivered at the AIAL National Lecture, 2011 National Administrative Law Conference, Canberra, 21 July 2011). It is noteworthy, for example, that Ms Tang's legal representatives did not seek to argue her case under the common law, given that common law judicial review remedies and actions have effectively been preserved by Part 5 of the Judicial Review Act 1991 (Qld). This case is not an isolated example of failing to seek common law judicial review in the alternative where a statutory judicial review scheme is in place; see, eg, King v Director of Housing [2013] TASFC 9.

42 A legal limit and its judicial supervision are frequently linked; see Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) 114–15. This is subject to the power in question being justiciable.

43 Reform of the ADJR Act has been proposed; see Administrative Review Council, Federal Judicial Review in Australia, Report No 50, (2012), [4.11]–[4.21]. So far, it has come to nothing.

44 Such arrangements are said to be consensual, rather than resulting from an exercise of public power: Tang (2005) 221 CLR 99. However, the Tang majority's binary distinction between ‘power’ on one hand and ‘consent’ on the other is deeply unsatisfying. Their Honours failed to engage with the debate about whether public power can ever be exercised by a private body, which lent their ultimate reasoning a somewhat unreal air.

45 See the discussion of the law relating to the requirement that, to be reviewable in Australia's statutory judicial review jurisdiction (ADJR Act), a decision must be made ‘under an enactment’: Aronson and Groves, above n 42, 91–101. The ADJR Act is notable for restricting review to exercises of statutory power only, and in this regard has failed to keep pace with developments as old as Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, ('GCHQ Case’). See generally Mark Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2004) 15(3) Public Law Review 202.

46 Aronson, above n 9, 23.

47 But see John McMillan, ‘Re-thinking the Separation of Powers’ (2010) 38(3) Federal Law Review 423.

48 It is not hard to think of examples of circumstances which are consensual in a formal sense but where one party has little to no power. Standard form contracts for the provision of utility services are an obvious example.

49 Likewise, there is no doubt that Ms Tang could have challenged the University's decision on the ground of procedural unfairness, either at common law or under statutory judicial review, if the relevant soft law instruments had been delegated legislation: Aronson, above n 9, 15; Aronson and Groves, above n 42, 91.

50 For an overview of the Australian judicial review system, see Administrative Review Council, Judicial Review in Australia, Consultation Paper (2011) 35–50.

51 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6 ('Quin’).

52 For a summary, see Stephen Gageler, ‘Administrative Law Judicial Remedies’ in Groves and Lee, above n 16, 368.

53 See Janina, Boughey and Greg, Weeks, ‘‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Journal 316Google Scholar.

54 Constitution s 75(v). Jurisdictional error is not required where the remedies of injunction or declaration are sought; an error of law will suffice.

55 In practice, it is often exercised by the Federal Court of Australia pursuant to a statutory grant of jurisdiction: Judiciary Act 1903 (Cth) s 39B.

56 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, ('Plaintiff S157’). Kirk extended the importance of jurisdictional error to the Supreme Courts of each of the Australian States and means that their jurisdiction to award certain remedies inherent to their status at the time that they were formed cannot be excluded by legislation: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, ('Kirk’).

57 ADJR 1977 (Cth).

58 Ibid s 5.

59 Ibid s 16(1).

60 Aronson and Groves, above n 42, 805.

61 Ibid 775.

62 See Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 ('Onus v Alcoa’).

63 See Gageler, above n 52, 371; Aronson and Groves, above n 42, 911.

64 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, ('Aala’).

65 Aronson and Groves, above n 42, 777. Certiorari will also lie to quash an impugned decision for non-jurisdictional error of law on the face of the record, a remedy usually relevant only to review of the decisions of inferior courts: Craig v South Australia (1995) 184 CLR 163, 175–6, 180–3 ('Craig’).

66 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581 ('Ainsworth’). See generally Aronson and Groves, above n 42, 881.

67 See Aronson and Groves, above n 42, 18; Craig (1995) 184 CLR 163, 177–8; Kirk (2010) 239 CLR 531, 573 [71].

68 These terms are often used interchangeably; see eg, Craig, above n 24, 542.

69 See British Oxygen Co Ltd v Ministry of Technology [1971] AC 610, 625 (Lord Reid) ('British Oxygen’).

70 See Peter Cane and Leighton McDonald, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2nd ed, 2012) 145–6. This principle shares much common ground with the authorities, discussed below, which have heavily contrained the availability of public law estoppel in Australia.

71 R v London County Council; Ex parte Corrie [1918] 1 KB 68, ('Ex parte Corrie’); Green v Daniels (1977) 13 ALR 1.

72 R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407, 496–7 (Lord Browne-Wilkinson) ('Ex parte Venables’); MLC Investments Ltd v Commissioner of Taxation (2003) 137 FCR 288, 300–2 [43]–[49] (Lindgren J) ('MLC Investments’).

73 This passage owes a debt to Chapter 3 of Aronson and Groves, above n 42. See also Emily Johnson, ‘Should ‘Inconsistency’ of Administrative Decisions Give Rise to Judicial Review?’ (2013) 72 Australian Institute of Administrative Law Forum 50.

74 (1979) 2 ALD 634 ('Drake (No.2)’).

75 Aronson and Groves,above n 42, 159–60 (citation omitted).

76 See Robin, Creyke and John, McMillan, Control of Government Action: Text, Cases and Commentary (LexinNexis Butterworths, 3rd ed, 2012) 827Google Scholar.

77 Aronson and Groves, above n 42, 292–3.

78 Some consideration is given to this point in Johnson, above n 73.

79 (2003) 137 FCR 288. Aronson and Groves use this case as the archetype of situations in which consistency and the rule against fettering are in direct tension: Aronson and Groves, above n 42, 160 (n 336); 293 (n 115).

80 MLC Investments (2003) 137 FCR 288, 295 [20] – 297 [21].

81 Here in relation to ADJR Act s 5(2)(f). The result would have been the same at common law.

82 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151–4 [39]–[44] (Gleeson CJ, Gummow, Kirby & Hayne JJ) ('Enfield Corporation’).

83 By which I mean accepting explicitly. There is already plenty of implicit suggestion from courts that soft law must mean something; see, eg, Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319, ('Plaintiff M61’). By way of contrast, English case law has moved decisively to the position of accepting that soft law has an effect which has legal meaning; see, eg, R (Purdy) v Director of Public Prosecutions [2009] 1 AC 345, ('Purdy's Case’); R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.

84 See British Oxygen [1971] AC 610.

85 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325, 334 (Deane J) ('Nevistic v MIEA’). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420–1 (Bowen CJ & Deane J) ('Drake's Case’).

86 Drake (No.2) (1979) 2 ALD 634, 639 (Brennan J).

87 Where the relevant body is not ‘public’ in the relevant sense, an applicant may struggle to prove that the matter is justiciable in the first place; see Cameron v Hogan (1934) 51 CLR 358; Jackson v Bitar [2011] VSC 11.

88 Craig, above n 24, 545–7.

89 See, eg, Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121, 131–2 (Pincus J) ('Sunshine Coast Broadcasters’).

90 The Wednesbury standard has traditionally applied in Australia only to the most absurd exercises of discretion, although the High Court signalled that it would apply a more relaxed version of the Wednesbury ground in future in Minister for Immigration and Citizenship v Xiujuan Li (2013) 87 ALJR 618.

91 See McMillan, above n 47. This possibility will be examined in Part IV.

92 (2011) 192 FCR 173 ('Khan v MIAC’).

93 The manager had advised DIAC that Mr Khan had ceased employment as a result of the allegations set out in his letter to DIAC, although the Full Federal Court inferred that Mr Khan was informed of that fact by neither DIAC nor his employer: Ibid 176 [7] (Buchanan J).

94 Buchanan J noted that ‘Mr Khan was misinformed about the nature (and impliedly the content) of the advice received by [DIAC]. … There was no mention in the delegate's decision of the accusations made against Mr Khan by the manager.’: Ibid 177 [11] (Buchanan J).

95 Ibid 178 [15] (Buchanan J). The Minister's discretion to cancel a visa arises, inter alia, if he or she is satisfied that ‘any circumstances which permitted the grant of the visa no longer exist’: Migration Act 1958 (Cth) s 116(1)(a): at 191 [70] (Flick J).

96 Ibid 191 [71] (Flick J).

97 Ibid 178 [15] (Buchanan J).

98 Ibid 189 [57] (Buchanan J).

99 Migration Act 1958 (Cth) s 116(3). The Migration Regulations are delegated legislation made under the authority of the Migration Act 1958 (Cth).

100 Khan v MIAC (2011) 192 FCR 173, 189 [59] (Buchanan J).

101 Ibid 189 [61] (Buchanan J); 191 [75] (Flick J).

102 Ibid 189-90 [60]–[61] (Buchanan J); 192-3 [71] (Flick J).

103 Ibid 189-90 [61] (Buchanan J).

104 Ibid 190 [62] (Buchanan J).

105 Aronson and Groves, above n 42, 274.

106 Craig (1995) 184 CLR 163, 177 (emphasis added).

107 ‘The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision’: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (original emphasis) ('Peko-Wallsend’).

108 Aronson and Groves, above n 42, 275.

109 Khan v MIAC (2011) 192 FCR 173, 191 [72] (emphasis added). To the same effect, his Honour referred approvingly to the judgment of Spender, Emmett and Jacobson JJ in Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115, ('Hneidi v MIAC’).

110 To the extent that this is the case, Flick J is in the minority, given that Yates J agreed with the reasons of Buchanan J: Khan v MIAC (2011) 192 FCR 173, 195-6 [87]–[88] (Yates J).

111 Ibid 192 [74] (Flick J). The relevant passage from Peko-Wallsend states that ‘where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.’: Peko-Wallsend (1986) 162 CLR 24, 39–40 (Mason J) (emphasis added).

112 Flick J further commented that ‘as acknowledged in the Manual, the “circumstances in which the ground for cancellation arose” should have been expressly addressed by both the delegate and the [MRT]. Irrespective of the Manual, those circumstances were in any event considerations that had to be taken into account when exercising the power conferred by s 116.’: Khan v MIAC (2011) 192 FCR 173, 194-5 [82] (Flick J).

113 Ibid 193 [75] (Flick J) (emphasis added).

114 Ibid 195 [84] (Flick J).

115 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 ('Lam’).

116 Peko-Wallsend (1986) 162 CLR 24, 39–40 (Mason J). See Aronson and Groves, above n 42, 275.

117 Subsequent to the High Court's decision in Peko-Wallsend, Davies J stated that ‘even if non-statutory rules do not, of themselves, have binding effect, the failure of a decision-maker to have regard to them or his failure to interpret them correctly may amount to an error of law justifying an order of judicial review.’: Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1, 15 (Davies J) ('Gerah Imports’).

118 It is beyond the scope of this article to attempt to unravel the Australian jurisprudence on whether a decision-maker empowered by statute is obliged to give effect to Ministerial policies or directions. See the conflicting judgments in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 ('Ipec-Air’); Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 ('Ansett’).

119 Holden Ltd v Chief Executive Officer of Customs (2005) 141 FCR 571, 583 [38] (RD Nicholson, Weinberg & Selway JJ) ('Holden v Customs’); cf Minister for Immigration & Ethnic Affairs v Conyngham (1986) 11 FCR 528, ('Conyngham’).

120 ‘Where the parliament has conferred wide discretions on an official decision-maker, particularly in relation to high volume decision-making, it is entirely consistent with the legislative intention in conferring such a discretion that its exercise will be guided by administrative policies. Indeed, it may be inferred that the creation of such policies is contemplated by the legislature when it confers such discretions.’: BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149, 171 [103] (French J) ('BHP v Duffus’).

121 This is a reference to a previous comment of the Full Federal Court that a public ruling issued by the Federal Commissioner of Taxation ‘operates as if it is the statutory basis upon which tax is to be levied. No question arises as to whether it is or is not relied upon.’: Bellinz and Others v Commissioner of Taxation (1998) 84 FCR 154, 169 (Hill, Sundberg & Goldberg JJ) ('Bellinz’). See BHP v Duffus (2007) 99 ALD 149, 171 [102].

122 See Greg, Weeks, ‘Estoppel and Public Authorities: Examining the Case for an Equitable Remedy’ (2010) 4(3) Journal of Equity 247Google Scholar; Greg, Weeks, ‘Holding Government to its Word: Legitimate Expectations and Estoppels in Administrative Law’ in Matthew, Groves (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014)Google Scholar.

123 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, ('MILGEA v Gray’).

124 Ibid 211 (emphasis added).

125 Aronson and Groves, above n 42, 158.

126 AB v Minister for Immigration and Citizenship (2007) 96 ALD 53, (Tracey J) ('AB v MIAC’).

127 Ibid 62 [25]. Tracey J was prepared to distinguish MILGEA v Gray in order to find that an international treaty which had not been incorporated into Australian domestic legislation could not form the basis of a mandatory relevant consideration: at 63 [27]. His Honour noted that French J had himself reached the same conclusion in the earlier case of Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875, [61]–[66] (French J) ('Le v MIMIA’).

128 See Aronson and Groves, above n 42, 15; Mark Aronson, ‘Jurisdictional Error Without the Tears’ in Groves and Lee (eds), above n 16, 330.

129 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 316 (McHugh J) ('Teoh’); Project Blue Sky v Australian Broadcast Authority (1998) 194 CLR 355, 392 [96] (McHugh, Gummow, Kirby & Hayne JJ) ('Project Blue Sky’).

130 The conclusion of the High Court that the appellant Minister was obliged to consider the ‘most recent and accurate information … at hand’ (at 44 per Mason J) made a mockery of the process of public consultation that had preceded the recommendation by the Aboriginal Land Commissioner to the Minister that land be granted to Aborigines since Peko only revealed important information about the location of certain valuable uranium deposits after the Commissioner had reported and had misled the Commissioner (at 34–5 per Mason J): Peko-Wallsend (1986) 162 CLR 24. How can the implied mandatory consideration of the most recent information be reconciled with the statutory powers and duties of the Commissioner when the result is that Peko was allowed to withhold evidence to be presented to the Minister alone? See also Aronson and Groves, above n 42, 279–80.

131 Re Tracey [2011] NSWCA 43.

132 Chris Hilson, ‘Judicial Review, Policies and the Fettering of Discretion’ [2002] Public Law 111.

133 Most famously in R v North and East Devon Health Authority; Ex parte Coughlan [2001] 3 QB 213; [2000] 3 All ER 850 ('ex parte Coughlan’). See Weeks, ‘Estoppel and Public Authorities’, above n 122, 260–7.

134 South Africa is an intriguing example. That country's Constitution specifically promises that administrative action which is procedurally fair: Constitution of the Republic of South Africa 1996 s 33. This promise is effected by the Promotion of Administrative Justice Act 2000 (SA). Furthermore, there is a long-standing recognition of the procedural aspects of legitimate expectations: Administrator of the Traansvaal v Traub [1989] 4 All SA 924 (AD), ('Traub's Case’). Recently, some courts have attempted to give substantive enforcement to legitimate expectations: Eastern Metropolitan Substructure v Peter Klein Investments (Pty) Ltd 2001 (4) SA 661 (W), ('Peter Klein Investments’). However, this trend appears to have been halted, at least for the time being, by the decision of the Supreme Court of Appeal in Duncan v Minister of Environmental Affairs and Tourism 2010 (6) SA 374 (SCA) ('Duncan's Case’). See generally Cora Hoexter, Administrative Law in South Africa (Juta, 2nd ed, 2012).

135 Aronson and Groves, above n 42, 156. See Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, ('Haoucher’); Lam (2003) 214 CLR 1..

136 This amounts to a representation as to how the decision-maker will exercise his or her discretion. See Aronson and Groves, above n 42, 443.

137 Gerah Imports (1987) 17 FCR 1.

138 Lam (2003) 214 CLR 1, 12 [34] (Gleeson CJ).

139 Ibid 34 [105] (McHugh & Gummow JJ); 35–6 [111] (Hayne J); 48–9 [149]–[151] (Callinan J).

140 Gleeson CJ did state expressly that the ‘content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed’: Lam (2003) 214 CLR 1, 12 [34].

141 Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane & Dawson JJ) ('Stead’).

142 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, ('SAAP v MIMIA’). See Greg Weeks, ‘The Expanding Role of Process in Judicial Review’ (2008) 15(2) Australian Journal of Administrative Law 100, 105.

143 As in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, ('NAFF v MIMIA’).

144 Stewart v Deputy Commissioner of Taxation [2011] FCA 336, [29].

145 Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 609 (Brennan CJ, Dawson & Toohey JJ) ('Darling Casino’). See Aronson and Groves, above n 42, 441.

146 (2005) 148 FCR 46, (Gray J) ('Applicants M16’).

147 See Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190, 199 [38] (Branson J) ('Khawar v MIMA’).

148 Applicants M16 (2005) 148 FCR 46, 50–1 [13].

149 Ibid 51 [15]. Ultimately, the court did not decide whether there had been a breach of procedural fairness by the Minister's delegate, noting that such a breach could in any event have been cured before the RRT: at 58 [46].

150 Ibid 56 [37].

151 Ibid 56 [35].

152 See also Stewart v Deputy Commissioner of Taxation [2011] FCA 336, [48]; cf R (BAPIO Action Limited) v Secretary of State for the Home Department [2008] 1 AC 1003 ('BAPIO Action’).

153 Applicants M16 (2005) 148 FCR 46, 60 [52].

154 This would be most unlikely in circumstances where the gender guidelines were issued by the Minister: Drake (No 2) (1979) 2 ALD 634.

155 The first Crown Proceedings Act was passed in South Australia in 1853, followed by New South Wales and Queensland. For a brief overview of this early legislation, see Mark Leeming, ‘The Liability of the Government under the Constitution’ (1998) 17(3) Australian Bar Review 215, 217–19; Nick Seddon, ‘The Crown’ (2000) 28(2) Federal Law Review 245, 257; Mark Aronson, ‘Government Liability in Negligence’ (2008) 32(1) Melbourne University Law Review 44, 44.

156 Although, Jaffe noted that ‘the expression “the King can do no wrong” originally meant precisely the contrary to what it later came to mean. “[I]t meant that the king must not, was not allowed, not entitled, to do wrong …”.’: Louis L Jaffe, ‘Suits against Governments and Officers: Sovereign Immunity’ (1963) 77(1) Harvard Law Review 1, 3–4 (footnotes omitted). This was misinterpreted by common law courts for many years, see, eg, Tobin v The Queen (1864) 16 CB (NS) 310; Feather v The Queen (1865) 6 B&S 257. That misinterpretation is now recognised: Mulcahy v Ministry of Defence [1996] QB 732, 740 (Neill LJ).

157 The current State and Territory legislation is: Crown Suits Act 1947 (WA); Crown Proceedings Act 1958 (Vic); Crown Proceedings Act 1980 (Qld); Crown Proceedings Act 1988 (NSW); Crown Proceedings Act 1992 (SA); Crown Proceedings Act 1992 (ACT); Crown Proceedings Act 1993 (Tas); Crown Proceedings Act 1993 (NT).

158 Judiciary Act 1903 (Cth) s 64 (emphasis added). The form of the qualification ‘as nearly as possible’ is not precisely consistent across every Australian jurisdiction. The NSW, Queensland and Victorian legislation each uses the words ‘as nearly as possible’, as does s 64 of the Judiciary Act, but these words are not found in the relevant sections of the legislation in the other Australian jurisdictions. See generally Susan Kneebone, ‘Claims Against the Commonwealth and States and Their Instrumentalities in Federal Jurisdiction: Section 64 of the Judiciary Act’ (1996) 24(1) Federal Law Review 93; Bradley Selway, ‘The Source and Nature of the Liability in Tort of Australian Governments’ (2002) 10 Tort Law Review 14, 19–20.

159 His Honour was discussing the NSW legislation: Crown Proceedings Act 1988 (NSW) s 5.

160 ‘That formula reflects an aspiration to equality before the law, embracing governments and citizens, and also a recognition that perfect equality is not attainable. Although the first principle is that the tortious liability of governments is, as completely as possible, assimilated to that of citizens, there are limits to the extent to which that is possible. They arise from the nature and responsibilities of governments. In determining the existence and content of a duty of care, there are differences between the concerns and obligations of governments, and those of citizens.’: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 556 (citation omitted) ('Graham Barclay Oysters’).

161 See generally R P Balkin and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) Part III.

162 Stuart v Kirkland Veenstra (2009) 237 CLR 215, 259 [129] (Crennan & Kiefel JJ) ('Stuart’).

163 East Suffolk River Catchment Board v Kent [1941] AC 74 ('East Suffolk v Kent’).

164 Robert, Stevens, Torts and Rights (Oxford University Press, 2007) 221Google Scholar; cf Tom, Cornford, Towards a Public Law of Tort (Ashgate, 2008) 131Google Scholar.

165 In any event, it is an accurate statement of the law relating to public authorities in the UK following Stovin v Wise [1996] AC 923 ('Stovin’).

166 I use ‘reasonable’ in its negligence law sense, rather than the public law sense of Wednesbury unreasonableness. The relevance of the latter standard in tort law is discussed in Elizabeth Carroll, ‘Wednesbury unreasonableness as a limit on the civil liability of public authorities’ (2007) 15(2) Tort Law Review 77; Aronson, above n 155, 44; Greg Weeks, ‘A Marriage of Strangers: the Wednesbury Standard in Tort Law’ (2010) 7(8) Macquarie Journal of Business Law 131. In this regard, the ramifications of the High Court's judgment in Minister for Immigration and Citizenship v Xiujuan Li (2013) 87 ALJR 618 are uncertain.

167 Scott Wotherspoon, ‘Translating the Public Law “May” into the Common Law “Ought”: the Case for a Unique Common Law Cause of Action for Statutory Negligence’ (2009) 83(5) Australian Law Journal 331, 334–5. By contrast, foreseeability of harm and capacity to prevent it are insufficient bases for finding that a duty of care is owed by a private actor, who would in any case generally have the right to refuse assistance.

168 (1985) 157 CLR 424 ('Sutherland SC v Heyman’).

169 Ibid 458 (Mason J). See also at 467–8 (Mason J). Note that the plaintiff in Heyman was unsuccessful in establishing a common law duty of care on the part of the Council on either basis, and also that the existence of a statutory power or duty per se is insufficient to create a common law duty of care.

170 [1964] AC 465, 486 (Lord Reid); 502–3 (Lord Morris); 514 (Lord Hodson); 528–9 (Lord Devlin); 539 (Lord Pearce) ('Hedley Byrne’). See also Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556, 621 (Owen J) ('MLC v Evatt’).

171 MLC v Evatt 571. The decision of the High Court was overturned by a bare majority in the Privy Council: Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1970) 122 CLR 628, ('MLC v Evatt (PC)’). The High Court was no longer bound by the Privy Council's decision when it later heard L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225, ('Shaddock’). In that case, Mason J, with whom Aickin J agreed, expressly stated that the reasons of Barwick CJ should be preferred to the speech of Lord Diplock for the majority in the Privy Council: Shaddock (1981) 150 CLR 225, 251. Gibbs CJ and Stephen J, by contrast, distinguished the Privy Council's decision but specifically declined to overturn it. Murphy J delivered a brief judgment in which he stated that ‘there is no justification for adhering to the error expressed by the Privy Council’ but did not specifically approve the approach which had been taken by Barwick CJ in the High Court: Shaddock (1981) 150 CLR 225, 256. The head note to Shaddock in the Commonwealth Law Reports notes only that the Privy Council's decision was ‘considered’: Shaddock (1981) 150 CLR 225, 226. However, the decision of Barwick CJ in MLC v Evatt was said to have ‘regained vitality’ by Gleeson CJ, Gummow & Hayne JJ in Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 16 [47] ('Tepko’). It was also approved in Tepko by Gaudron J (at 23 [75]) and now represents the orthodox view.

172 San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340, 356 (Gibbs CJ, Mason, Wilson & Dawson JJ) ('San Sebastian’).

173 See, eg, CPT Manager Ltd v Broken Hill City Council [2010] NSWLEC 69 [128]. In that case, Craig J considered the effect of a soft law Code which was subject to a legislative provision which read: ‘Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, but nothing in this section affects rights or liabilities arising apart from this section.’ His Honour held that the terms of the Act prevented even an inference of fact being drawn from the defendant's failure to adhere to the Code. With respect, this construction seems difficult to justify, given that it renders the existence of the Code otiose.

174 This point was alluded to by Lockhart J in Unilan Holdings Pty Ltd v Kerin (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993) (‘Unilan Holdings’).

175 Shaddock (1981) 150 CLR 225.

176 Tepko (2001) 206 CLR 1.

177 Ibid 15 (Gleeson CJ, Gummow & Hayne JJ).

178 San Sebastian (1986) 162 CLR 340.

179 Unilan Holdings, (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993)

180 San Sebastian (1986) 162 CLR 340, 374 (Brennan J). A similar view was expressed in that case by the plurality: San Sebastian (1986) 162 CLR 340, 360 (Gibbs CJ, Mason, Wilson & Dawson JJ). In San Sebastian, the Court did not express this in terms of the policy / operational distinction used in Anns v Merton Borough Council [1978] AC 728 (and later in Heyman) because the same work can be done by the existing concept that a misrepresentation is not actionable in negligence unless the plaintiff's reliance upon it is reasonable.

181 ADJR Act s 3(1).

182 Legislative Instruments Act 2003 (Cth) s 5(1)(a).

183 (2001) 113 FCR 185 ('RG Capital Radio’).

184 Ibid 194 [40].

185 A disclaimer will usually be effective to eliminate liability for negligent misrepresentations: Hedley Byrne [1964] AC 465.

186 (1986) 162 CLR 340, 349.

187 San Sebastian (1986) 162 CLR 340, 359. Brennan J, by contrast, did not address the issue of whether the alleged representation had in fact been made. Rather, his Honour held that if a representation was made at all, it was merely implied from the fact that the instrument and supporting documents were said to have been ‘expertly prepared’. This was too ‘limited’ a representation to ground a duty of care to the appellants: San Sebastian (1986) 162 CLR 340, 373 (Brennan J).

188 (Unreported, Federal Court of Australia, Lockhart J, 5 February 1993).

189 Ibid. This is the reason why s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of The Australian Consumer Law, which is in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) has always been pleaded so frequently in commercial litigation: in most business contexts, it completely supersedes the effect of Hedley Byrne [1964] AC 465.

190 See, eg, Green v Daniels (1977) 13 ALR 1.

191 Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610; [1937] 1 All ER 748 ('Maritime Electric’); Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211–16 ('Kurtovic’); K R Handley, Estoppel by Conduct and Election (Sweet and Maxwell, 2006) 22–3.

192 Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 ('Southend-on-Sea’).

193 Weeks, ‘Estoppel and Public Authorities’, above n 122, 270–87.

194 Enid Campbell, ‘Estoppel in Pais and Public Authorities’ (1998) 5(3) Australian Journal of Administrative Law 157, 167.

195 Ibid 166.

196 In Crabb v Arun, Scarman LJ stated that courts ‘have to determine not only the extent of the equity, but also the conditions necessary to satisfy it’: Crabb v Arun District Council [1976] Ch 179; [1975] 3 All ER 865, 880 ('Crabb v Arun’). The reasoning of Scarman LJ was subsequently approved by a majority of the High Court in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 404 (Mason CJ & Wilson J); 425 (Brennan J); 460 (Gaudron J) ('Waltons v Maher’). However, it received detailed consideration only from Brennan J, who articulated a reliance-based approach to remedying the breach of a legal obligation owed to the representee in circumstances where the conditions for an equitable estoppel are met: Waltons v Maher (1988) 164 CLR 387, 416. Notwithstanding this, Robertson has noted that, in the years immediately following Commonwealth v Verwayen (1990) 170 CLR 394 ('Verwayen’), courts almost universally satisfied equitable estoppels by granting expectation-based relief: Andrew Robertson, ‘Satisfying the Minimum Equity: Equitable Estoppel Remedies after Verwayen’ (1996) 20 Melbourne University Law Review 805, 829.

197 In cases including Waltons v Maher (1988) 164 CLR 387; Foran v Wight (1989) 168 CLR 385; Verwayen (1990) 170 CLR 394,. Handley, above n 191.

198 See, eg, Ian E Davidson, ‘The Equitable Remedy of Compensation’ (1982) 13 Melbourne University Law Review 349, 370–2.

199 I developed in greater detail the argument in favour of revitalising the remedy of equitable compensation in response to an estoppel being raised in Weeks, ‘Estoppel and Public Authorities’, above n 122, 282–6. Likewise, I see no difficulty in an equitable remedy being available in circumstances where liability in negligence cannot be made out; see Weeks, ‘Estoppel and Public Authorities’, above n 122, 273.

200 Waltons v Maher (1988) 164 CLR 387, 404–5 (Mason CJ & Wilson J). See also Verwayen (1990) 170 CLR 394, 501 (McHugh J).

201 Query whether it would provide a meaningful remedy in most cases, for example where the failure to provide a benefit under a soft law scheme is wrong under the scheme's terms, but the putative claimant is unable to prove his loss beyond the scope of the thrown away costs of the application.

202 One potential area in which it may apply is where the inducement to rely on soft law to the plaintiff's detriment was not the result of negligence but of a deliberate act of an officer of the relevant public authority; see New South Wales v Lepore (2003) 212 CLR 511.

203 This example is not limited to Australia; see J M Keyes, Executive Legislation (2nd ed, 2010) 55.

204 Freedom of Information Amendment (Reform) Act 2010 (Cth).

205 See Creyke and McMillan, above n 76, 1018–19.

206 FOI Act s 3(3).

207 For many years, ‘open government’ had been something of a punchline, on the basis that ‘you can either be open, or have government’ or that government should be open ‘but not gaping’: A Jay and J Lynn, The Complete ‘Yes, Minister': The Diaries of a Cabinet Minister (HarperCollins, 1988) 27. The changes to Part II introduced by the Freedom of Information Amendment (Reform) Act 2010 (Cth) are intended to secure political and Public Service support for open government in an unprecedented fashion.

208 John McMillan, ‘Freedom of Information Reform - The Australian Government’ (2011) 65 Australian Institute of Administrative Law Forum 31, 33–4.

209 Office of the Australian Information Commissioner, Guide to the Freedom of Information Act 1982 (2011), 64–7 <http://www.oaic.gov.au/images/documents/migrated/oaic/repository/publications/agency_resources/guide_freedom_of_information_act_1982.pdf>.

210 FOI Act s 8A(1).

211 FOI Act s 10. The relevant legislation in Queensland, NSW and Victoria each features an equivalent provision; see Creyke and McMillan, above n 76, 672–3.

212 In this regard, it cannot be said to have the same effect as Drake (No.2) (1979) 2 ALD 634 has on decisions in the AAT.

213 (2005) 221 CLR 99.

214 Joseph Richard Bryant v Deputy Commissioner of Taxation (1993) 25 ATR 419, [8] (Whitlam J) ('Bryant v DCT’). See Weeks, above n 142, 102–3.

215 Ian Duncan v Chief Executive Officer, Centrelink (2008) 244 ALR 129, 135 (Finn J) ('Duncan v Centrelink’). This would, of course, depend on such a person being able to establish that they had standing to challenge in court proceedings the failure of the agency to produce its soft law instruments.

216 Aronson and Groves, above n 42, 77–8; Duncan v Centrelink (2008) 244 ALR 129, 137. In Duncan, Finn J exercised his discretion to deny the applicant declaratory relief, holding that it would provide no ‘real practical consequences’: Duncan v Centrelink (2008) 244 ALR 129, 138.

217 This is a principle which has been recognised for 120 years in England in legislation which requires the publication of every statutory instrument. From 1946, the legislation was expanded to cover the ‘flood tide of rules and regulations which arrived with the welfare state’: HWR Wade and C Forsyth, Administrative Law (10th ed, 2009) 760.

218 L L Fuller, The Morality of Law (Yale University Press, 1964) 50.

219 R (Lumba) v Secretary of State for the Home Department; R (Mighty) v Secretary of State for the Home Department [2012] 1 AC 245, ('Lumba v Home Secretary’). The policy at issue in this case was not one with which the claimants were able to comply actively, but the application of which merely affected them. This distinction was not considered to be of any consequence to the Supreme Court.

220 McMillan, above n 47, 423. As to the Ombudsman's Constitutional position in the Australian government framework, see Creyke and McMillan, above n 76, 220–3.

221 Chief Justice James Spigelman, ‘The Integrity Branch of Government’ (2004) 78(11) Australian Law Journal 724, 729; Chief Justice James Spigelman, ‘The Integrity Branch of Government - The First Lecture in the 2004 National Lecture Series for the Australian Institute of Administrative Law’ (Speech delivered at the AIAL National Lecture Series, Sydney, 29 April 2004). This concept has been picked up by others; see Anita Stuhmcke, ‘Ombudsmen and Integrity Review’ in Linda Pearson, Carol Harlow and Michael Taggart (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing, 2008) 349, 349.

222 Creyke and McMillan, above n 76, 202.

223 Spigelman, above n 221, 724.

224 Chief Justice James Spigelman, ‘Judicial Review and the Integrity Branch of Government’ (Speech delivered at the World Jurist Association Congress, Shanghai, 8 September 2005).

225 Cf Stuhmcke, above n 221, 354. Whether or not the Ombudsman is ‘central’ to integrity review, it is certainly ‘a central component of administrative justice’: Harlow and Rawlings, Law and Administration (Cambridge University Press, 3rd ed, 2009) 480.

226 Spigelman, above n 221, 729.

227 Stuhmcke, above n 221, 353–4.

228 Ibid 354-6.

229 Stuhmcke, above n 221, 365; John McMillan, ‘Future Directions 2009 - The Ombudsman’ (2010) 63 Australian Institute of Administrative Law Forum 13, 14–15.

230 Creyke and McMillan, above n 76, 209. The Commonwealth Ombudsman has an unreviewable discretion to refuse to investigate a complaint: Ombudsman Act 1976 (Cth) s 6. In 2008, the Commonwealth Ombudsman's office investigated only one in every nine complaints: McMillan, above n 229, 14.

231 Stuhmcke, above n 221, 355-6.

232 An example is the Administrative Review Council (ARC), which is established under the Administrative Appeals Tribunal Act 1975 (Cth). The ARC has published a report on soft law issues: Administrative Review Council, Complex Regulation Report (2008).

233 McMillan, above n 229, 18.

234 Ibid 14.

235 Professor McMillan defined these as court or tribunal orders which quash erroneous decisions, substitute fresh decisions, restrain unlawful conduct, mandate lawful action or declare the law which is to be applied: McMillan, above n 229, 17.

236 McMillan, above n 229, 17. Groves, too, doubted that having determinative powers would improve the effectiveness of the Ombudsman and suggested that they would cause the Ombudsman's office to foreshorten its investigative role in many instances: Matthew Groves, ‘Ombudsmen's Jurisdiction in Prisons’ (2002) 28 Monash University Law Review 181, 202. See also Creyke and McMillan, above n 76, 217–8.

237 Aronson, above n 9, 14–15.

238 Ibid 14.

239 Ombudsman Act 2001 (Qld) s 6(b)(i). ‘Agencies’ were defined to include public authorities: Ombudsman Act 2001 (Qld) s 8(1)(c).

240 Ombudsman Act 2001 (Qld) s 9(1)(a).

241 It is commonplace for Australian courts to extend judicial review principles, particularly those of procedural fairness, to some private institutions regardless of whether they exercise public power; see, eg, Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; cf Hinkley v Star City Pty Ltd [2010] NSWSC 1389, [114]–[183] (Ward J). This extended coverage does not include judicial review's remedies: see generally Aronson and Groves, above n 42, 486–9.

242 The High Court has left open ‘the question whether a party identified as “an independent contractor” nevertheless may fall within the expression “an officer of the Commonwealth” in s 75(v) [of the Constitution] in circumstances where some aspect of the exercise of statutory or executive authority of the Commonwealth has been “contracted out’’’: Plaintiff M61 (2010) 243 CLR 319, 345 [51]. This may suggest that the Court is at least open to the possibility that the jurisdiction under s 75(v) attaches to an exercise of power rather than a certain individual; see Boughey and Weeks, ‘‘Officers of the Commonwealth’ in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Journal 316.

243 Groves, ‘Ombudsmen's Jurisdiction in Prisons’ (2002) 28 Monash University Law Review 181, 202–3.

244 McMillan, above n 229, 17.

245 Creyke and McMillan, above n 76, 218.

246 Auckland Harbour Board v R [1924] AC 318, ('Auckland Harbour’).

247 And unreviewable under the ADJR Act: Smith v Oakenfull (2004) 134 FCR 413.

248 The CDDA Scheme is administered under the terms of Commonwealth Department of Finance and Deregulation, (2009) ‘Discretionary Compensation and Waiver of Debt Mechanisms', (Finance Circular No. 2009/09). This circular replaced Finance Circular No. 2006/05 (which in turn replaced Finance Circular No. 2001/01). See also Financial Management and Accountability Act 1997 (Cth) s 33.

249 Finance Circular No. 2009/09, Attachment D.

250 McMillan, above n 229, 17.

251 See Commonwealth Ombudsman, Putting Things Right: Compensating for Defective Administration, Investigation Report No 11/2009 (2009) ('Putting Things Right’).

252 The CDDA Scheme guidelines give the following example of the possible misunderstandings that can be made in regard to the requirement that financial detriment be consequent on defective administration: ‘Financial detriment should be distinguished from financial disappointment. … An applicant does not suffer financial detriment merely because he or she was not granted a benefit after being advised he or she was entitled to that benefit.’: Commonwealth Department of Finance and Deregulation, ‘Finance Circular No. 2009/09: Discretionary Compensation and Waiver of Debt Mechanisms’ (2009/09, 2009), Attachment A, [47].

253 The Commonwealth Ombudsman has a record of recommending a remedy of some sort in the majority of cases which it investigates; see most recently Commonwealth Ombudsman, Annual Report 2012-13, (2013), 129-30 <http://www.ombudsman.gov.au/pages/publications-and-media/reports/annual/ar2012-13/pdf/ombudsman_annual_report_2012_2013.pdf>.

254 Legislative Instruments Act 2003 (Cth) s 31. See also Argument, above n 16, 138.