The Use of Soft Law by Australian Public Authorities: Issues and Remedies

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 paper 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.