Aronson, Mark --- "Private Bodies, Public Power and Soft Law in the High Court" [2009] UNSWLRS 46

University of New South Wales Faculty of Law Research Series

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Private Bodies, Public Power and Soft Law in the High Court [2009] UNSWLRS 46 (22 November 2009)

Last Updated: 4 December 2009

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Citation

This article was published in [2007] FedLawRw 1; (2007) 35 Federal Law Review 1.

Abstract

This article will argue that the pessimism about the sustainability of some of the 'core' achievements of judicial review in the last 30 or so years has missed the mark. Specifically, there is no clear and present danger to Australia's expansionist cases regarding standing to sue and the expansion of natural justice beyond the realm of strict legal rights. Pessimism on those scores is misplaced. Secondly, however, this article will argue that the recent cases will make it very difficult for those seeking some purchase out of the internal guidelines, rule books and practice manuals of both public and private authorities. These are the 'soft laws' that abound in both public and private spheres 'rules' with neither statutory nor contractual force. Australia's version of the rule against fettering statutory discretions has led its courts to decline to enforce soft law as such, whether overtly or via natural justice principles.

Speaking very broadly, the critical issue for Australia concerns judicial review's adaptability to the changing forms of public power. This article would not advocate following all of the English developments. Our courts should nevertheless recognise that public power is increasingly exercised from places within the private sector, by non-government bodies, and according to rules found in management manuals rather than statute books. If judicial review is about the restraint of public power, it will need to confront these shifts in who exercises public power, and in the rules by which they exercise it.