Monetary Awards for Public Law Wrongs: Australia’s Resistant Legal Landscape

Abstract

The idea of introducing a monetary remedy for harm arising out of the misdirected exercise of public power has waxed and waned in popularity in Australia over the years. Though few would dispute the intuitive appeal of the sentiment that wrongs should not go unremedied, the question of how harm arising from maladministration could, or should, be repaired remains unresolved. This article canvasses a number of the potential justifications for the creation of such a remedy, before noting the various avenues the Australian courts have considered, and closed down, which might otherwise have led in that direction. These rejected opportunities have included the expansion of existing tort actions, the creation of new causes of action in tort, and the interpretation of statutory remedial powers. Whatever the merit of a remedy on this front, it is clear that it will need to be a matter of legislative, rather than judicial, intervention.