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You searched for +publisher:"University of New South Wales" +contributor:("Aronson, Mark, Law, Faculty of Law, UNSW"). Showing records 1 – 2 of 2 total matches.

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University of New South Wales

1. Weeks, Greg. Australian public authorities which breach their soft law : remedies and suggested reforms.

Degree: Law, 2013, University of New South Wales

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 of soft law, either in order to grant a procedural remedy or to compel the public authority to perform in substance what its soft law had promised. It concludes that other countries, such as the UK, provide some hope for people who have relied upon soft law to their detriment. Australian jurisprudence, by contrast, offers little scope for a person so affected to obtain a judicial review remedy, either procedural or substantive. The most that the Australian cases have offered is that soft law is not meaningless, even where it is unenforceable.Chapter 4 examines the capacity to obtain a money remedy based upon establishing invalidity. This could either be through a damages remedy being included in judicial review for ultra vires acts or in restitution. Public law damages is a remedy whose time has not yet come. It has been firmly rejected in Australian courts and, in the UK, a Law Commission recommendation in favour of such a remedy was firmly rejected by the government. … Advisors/Committee Members: Aronson, Mark, Law, Faculty of Law, UNSW, Roux, Theunis, Law, Faculty of Law, UNSW.

Subjects/Keywords: Remedies; Administrative Law; Soft Law

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Weeks, G. (2013). Australian public authorities which breach their soft law : remedies and suggested reforms. (Doctoral Dissertation). University of New South Wales. Retrieved from http://handle.unsw.edu.au/1959.4/53033 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:11711/SOURCE01?view=true

Chicago Manual of Style (16th Edition):

Weeks, Greg. “Australian public authorities which breach their soft law : remedies and suggested reforms.” 2013. Doctoral Dissertation, University of New South Wales. Accessed April 13, 2021. http://handle.unsw.edu.au/1959.4/53033 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:11711/SOURCE01?view=true.

MLA Handbook (7th Edition):

Weeks, Greg. “Australian public authorities which breach their soft law : remedies and suggested reforms.” 2013. Web. 13 Apr 2021.

Vancouver:

Weeks G. Australian public authorities which breach their soft law : remedies and suggested reforms. [Internet] [Doctoral dissertation]. University of New South Wales; 2013. [cited 2021 Apr 13]. Available from: http://handle.unsw.edu.au/1959.4/53033 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:11711/SOURCE01?view=true.

Council of Science Editors:

Weeks G. Australian public authorities which breach their soft law : remedies and suggested reforms. [Doctoral Dissertation]. University of New South Wales; 2013. Available from: http://handle.unsw.edu.au/1959.4/53033 ; https://unsworks.unsw.edu.au/fapi/datastream/unsworks:11711/SOURCE01?view=true


University of New South Wales

2. Blayden, Lynsey. Conceptions of democracy and the administrative state in the shaping of Australian judicial review of administrative action.

Degree: Law, 2020, University of New South Wales

In recent decades Australian judicial review of administrative action has been characterised as having taken a different shape to review in countries with a similar common law heritage. One explanation given for this difference is an attachment to what has been called ‘formalism’ or ‘legalism’ in Australian judicial doctrine. This thesis argues that instead, the source of the difference lies in the different normative institutional values of the Australian system of law and government. This thesis is divided into two parts. Part I sketches the contemporary framework of judicial review of administrative action in Australia. It looks at three defining features of it, the constitutional separation of judicial power, the distinction between merits and legality and the concept of jurisdictional error. This part of the thesis draws out the ways in which these features can be recognised as the product of a notion of judicial power which is responsive to institutional context. Part II of the thesis turns to a consideration of the normative values that have shaped conceptions of institutional power in Australia. This part of the thesis argues that, owing to the period in which the Australian Constitution was adopted, and certain aspects of Australian history, the Australian conception of government is characterised by what can be termed ‘new liberalism’ or ‘progressivism’, giving what can be recognised as a ‘functionalist’ character to Australian public law. A key tenet of new liberalism was that freedom was to be achieved through the state. A further tenet was that the people should be ‘self-governing’. Both ideas can be distinguished from the classical conception of liberalism at the centre of the traditional Diceyan conception of constitutionalism. This thesis argues that the presence of these ideas in the decades before and after Federation can be regarded as having helped to shape a concept of judicial power, which operates to prevent arbitrary state action and protect the overall health of the constitutional system itself, but otherwise leave questions of public policy or morality for resolution by the people themselves through the political process. Advisors/Committee Members: Aronson, Mark, Law, Faculty of Law, UNSW, Appleby, Gabrielle, Gilbert + Tobin Centre of Public Law, Faculty of Law, UNSW, Burton-Crawford, Lisa, Gilbert + Tobin Centre of Public Law, Faculty of Law, UNSW.

Subjects/Keywords: Judicial review; Constitutional law; Administrative law; Australian political theory

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APA · Chicago · MLA · Vancouver · CSE | Export to Zotero / EndNote / Reference Manager

APA (6th Edition):

Blayden, L. (2020). Conceptions of democracy and the administrative state in the shaping of Australian judicial review of administrative action. (Doctoral Dissertation). University of New South Wales. Retrieved from http://handle.unsw.edu.au/1959.4/66850

Chicago Manual of Style (16th Edition):

Blayden, Lynsey. “Conceptions of democracy and the administrative state in the shaping of Australian judicial review of administrative action.” 2020. Doctoral Dissertation, University of New South Wales. Accessed April 13, 2021. http://handle.unsw.edu.au/1959.4/66850.

MLA Handbook (7th Edition):

Blayden, Lynsey. “Conceptions of democracy and the administrative state in the shaping of Australian judicial review of administrative action.” 2020. Web. 13 Apr 2021.

Vancouver:

Blayden L. Conceptions of democracy and the administrative state in the shaping of Australian judicial review of administrative action. [Internet] [Doctoral dissertation]. University of New South Wales; 2020. [cited 2021 Apr 13]. Available from: http://handle.unsw.edu.au/1959.4/66850.

Council of Science Editors:

Blayden L. Conceptions of democracy and the administrative state in the shaping of Australian judicial review of administrative action. [Doctoral Dissertation]. University of New South Wales; 2020. Available from: http://handle.unsw.edu.au/1959.4/66850

.