Soft Law and the Liability of Public Authorities

Greg Weeks

    Research output: Contribution to conferencePaper

    Abstract

    Soft law is a pervasive phenomenon which is highly effective as a means of regulation in Australia, as it is in many jurisdictions. The term soft law refers to domestic, non-legislative instruments which are designed to influence, modify or otherwise affect conduct. Importantly, soft law relies for its capacity to have this effect on the fact that people generally will assume that it is hard law, which requires them to act and has immediate legal effect. Where this assumption is mistaken, individuals will generally be unable to obtain remedies if 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. This paper will examine reliance on soft law and its diverse forms, focusing on those which operate within New South Wales although not exclusively. It will consider which remedies are available where an individual suffers loss as a result of relying on soft law and will ask whether and how the separation of powers doctrine can be updated to attach legal significance to the proliferation of soft law.
    Original languageEnglish
    PagesN/A
    Publication statusPublished - 2017
    EventNew South Wales Supreme Court Annual Conference - Blue Mountains, NSW
    Duration: 1 Jan 2017 → …

    Conference

    ConferenceNew South Wales Supreme Court Annual Conference
    Period1/01/17 → …
    Other25-26

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