Remedies for Government Liability: Beyond Administrative Law

Australian Institute of Administrative Law
Publication Type:
Journal Article
AIAL Forum, 2019, 97 pp. 57 - 74
Issue Date:
Full metadata record
Control of government power is traditionally regarded as the province of administrative law. To the extent that other causes of action (such as claims in equity, contract and tort) can be brought against government, such claims are typically treated as a secondary, rather than primary, function of the law. The topic of government liability outside traditional public law parameters is in turn treated as something of a specialist topic, rather than a core area of legal doctrine. Placing the law into spheres of ‘public’ and ‘private’ — and the further subcategorisation of causes of action within those spheres — offers the promise of neat categories that can be deployed to study legal doctrine in the abstract. However, legal practitioners, particularly those involved in litigation, learn quickly that clients are rarely interested in the intricacies of legal doctrine that might be thrown up by their case. Lawyers are interested in the law; clients want to know about outcomes: what remedy they might get, their chances of getting it and what seeking it will cost them. On that reckoning, there are few things as useful for a practitioner to know in detail as the various remedies that might assist their clients. Where the case is one that involves harm occasioned by a government defendant, one unfortunate symptom of academic attraction to ‘public’ and ‘private’ law categories is to obscure the many and varied ways in which the law might respond to that harm. Approaching legal doctrine through this dichotomous lens is not only a limitation from a practical perspective. Rather than treating government liability as a specialist topic, there is much to be gained from gathering together the various ‘public’ and ‘private’ claims that can be made against government. By adopting a wholesale view of the field of ‘government liability’, we are better able to identify common themes and connections between areas of law. While it is true that the capacity to obtain remedies against government is full of specialist doctrine that does not apply directly to private bodies, we can learn much about these general doctrines by painting a comprehensive picture of government liability across the realms of public and private law. This article explores the main public and private law ‘remedies’ available against governments, their benefits and limitations, and the links between them.
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