The use and Enforcement of Soft Law by Australian Public Authorities
| Date | 01 March 2014 |
| DOI | 10.22145/flr.42.1.8 |
| Published date | 01 March 2014 |
| Subject Matter | Article |
THE USE AND ENFORCEMENT OF SOFT LAW BY
AUSTRALIAN PUBLIC AUTHORITIES
Greg Weeks*
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 article will not focus on the
regulatory a spects of soft law, but will ex amine the capacity of individuals to obtain
remedies where public authorities fa il to adhere to the terms of their published soft
law. The available judicia l remedies apply in very limited circumstances, both in
private la w 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.
INTRODUCTION
'Soft law' sounds distinct ly like an oxymoron: if it is soft, how can it be law? Yet, it has
been understood for decades
1
that instruments which are not legal in the formal sense
may nonetheless be powerful because they are commonly treated like law. Soft law
instruments often ‘go by the name “quasi-legislation,” on the basis that they are almost
laws’.
2
Soft law is used frequently as a regulatory tool because it is immensely effective
as a means of regulating conduct. This article will feature no analysis of how and why
that is the ca se — others have performed that task far better than I could.
3
Rather, this
article is written from the point of view of those who are subject to public soft law
regulation. It is focused on the re medies available in Australia to indiv iduals who have
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* Lecturer, Faculty of Law, University of New South Wales. This article is an edited version
of the paper presented to the Practice and Theory of Soft Law Academic Symposium,
Peking University Soft Law Centre, 9 July 2011. My thanks are due to Mark Aronson, Leah
Grolman, Matthew Groves and Theunis Roux for their comments and advice, as well as to
this journal's two anonymous reviewers. Any errors are mine alone.
1
This recognition is usually traced bac k to a short piece in the Law Quarterly Review by
Robert Megarry: R E Megarry, 'Administrative Quasi-Legislation' (1944) 60 Law Quarterly
Review 125.
2
Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis
Butterworths, 4th ed, 2012) 15 (emphasis in original).
3
See, eg, Julia Black, 'Constitutionalising Self-Regulation' (1996) 5 9(1) Modern Law Review 24;
Julia Black, Rules and Regulators (Oxford University Press, 1997).
2 Federal Law Review Volume 42
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relied on soft la w issued by a public authority, upon which that authority then refuses
to act.
I have divided the article into four major parts. Part I looks at the phenomenon of
soft law in Australia from the point of view of those being regulated and introduces
the case of Griffith University v Tang.
4
Part II looks at public law judicial remedies and
Part III at private law judicial remedies. Part IV then examines non-judicial re medies.
Each part considers, either explicitly or implicitly, the difficulties that arise when soft
law is treated as 'law' b y the people to whom it is directed, but merely as 'soft' by the
repositories of discretionary power who have the power to make decisions about its
application. The asymmetrical operation of soft law is, in this sense, its defining feature
and the chief concern of this article.
I: WHAT IS SOFT LAW?
Soft law means different things to different people. Stephen Argument has noted that
‘one of the most difficult issues in dealing with quasi-legislation is to w ork out exactly
what sort of creature qua si-legislation is’.
5
Indeed, as a generic term, there is an
argument that 'soft law' conceals as much as it reveals, making it at best unhelpful and
at worst a ‘misleading simplification’.
6
Many attempts to classify soft law have been compelled simply to list various typ es
of soft law instruments.
7
This approach, while instructi ve, does not lead to a definition
since soft law instr uments occupy a broad section of the spectrum between
unstructured discretion and legislation.
8
A s time has gone by, the problem has been
one of ascertaining which of this ‘wide variety of instruments’
9
are included within the
broad term 'soft law'.
It is interesting to note that attempts to define soft law by listing its varieties serve
mainly to nominate instruments which could be either delegated legislation on one
hand or soft law on the other, depending on whether their creation has bee n expressly
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4
(2005) 221 CLR 99 ('Tang').
5
Stephen Argument, 'Qua si-legislation: Greasy Pig, Trojan Horse or Unruly Child?' (1994)
1(3) Australian Journal of Administrative Law 144, 144 (emphasis in original).
6
Christine M Chinkin, 'The Challenge of Soft Law: Development and Change in
International Law' (1989) 38 International and Comparative Law Quarterly 850, 850.
7
See, eg, John Houghton and Robert Ba ldwin, 'Circular Arguments: the Status and
Legitimacy of Administrative Rules' [1986] Public Law 239, 240–5; Charles A Breer and Scot
W Anderson, 'Regulation Without Rulemaking: The Force and Authority of Informal
Agency Action' (Paper presented at the Rocky Mountain Mineral Law Foundation Annual
Institute Proceedings, 2001) [5.5]–[5.13]; Lorne Sossin and Charles W Smith, 'Hard Choices
and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating
Government' (2003) 40 Alb erta Law Review 867, 871; Administrative Review Council,
Administrative Accountability in Business Areas Subject to Complex and Specific Regulation No
49 (2008) (Complex Regulation Report), 5.
8
Michelle Cini, 'From Soft Law to Hard Law?: Discretion and Rule-Making in the
Commission's State Aid Regime' (Paper presented at the Robert Schuman Centre for
Advanced Studies European Forum: ‘Between Europe and the Nation State: the Reshaping
of Interests, Identities and Political Representation’, January 2000) 4.
9
Argument, above n 5, 144. See those listed in Mark Aronson, 'Private Bodies, Public Power
and Soft Law in the High Court' (2007) 35 Federal Law Review 1, 3.
2014 Use and Enforcement of Soft Law by Australian Public Authorities 3
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authorised by Parliament. Codes of practice, guidance, guidance notes, circulars, policy
notes, development br iefs, practice statements, tax concessions, codes of conduct,
codes of ethics and c onventions will all gener ally fall into the latter category.
10
However, listing different soft law instruments is a n unsatisfactory manner in which to
define soft law, with such lists te nding ‘to be over-inclusive, while not giving sufficient
information to enable a classification to be made’.
11
Such lists must therefore be seen
as providing examples of what soft law includes instead of being definitive of what soft
law is. As Creyke and McMillan have warned, ‘it is what an instrument does, not what
it is called, that is important’.
12
Nonetheless, the types of instrument included within
the term 'soft law' remain elusive.
13
The definition of soft law in Australia is generally best expressed negativel y or, in
other words, by w hat it isn't. It i sn't primary legislation, which is enacted by
Parliament. Nor is it delegated (or 'secondary') legislation,
14
which is made subject to
the express authority of Parliament. These are forms of 'hard' law. Robert Baldwin
described what is left as 'tertiary' legislation, which he defines as ‘usually ’ being made
without an express power to legislate conferred by an Act of Parliament, without
which there is no, or at lea st unclear, statutory authorisation ‘to make directly
enforceable rules ’.
15
At Commonwealth level in Au stralia, this debate has been
subsumed into the threshold issue under the Legislative Instruments Act
16
of what
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10
See Pearce and Arg ument, above n 2, 16. Writing from a British perspective, Aileen
McHarg included constitutional conventions which lack legislative force within the
definition of soft law: Aileen McHarg, 'Reforming the United Kingdom Constitution: Law,
Convention, Soft Law' (2008) 71(6) Modern Law Review 853.
11
Robin Creyke and John McMillan, 'Soft Law versus Hard Law' in Linda Pearson, Carol
Harlow and Michael Taggart (eds), Administrative Law in a Changing State: Essays in Honour
of Mark Aronson (Hart Publishing, 2008) 377, 380.
12
Ibid. This was also the guiding principle behind the Legislative Instruments Act 2003 (Cth).
13
An example of the sometimes elusive nature of soft law can be observed in the UK
Supreme Court's recent decision in Bank Mellat v Her Majesty's Treasury (No 2) [2013] 3 WLR
222, in which HM Treasury was empowered by statute to make directions by means of a
statutory instrument in r esponse to risks ‘arising from terrorist financing, money
laundering [or] nuclear proliferation’ (223 [4] per Lord Sumption). Ordinarily, an
instrument made under direct statutory authority would automatically be classified as
hard law, but the Supreme Court seemed to view the order as something out of the
ordinary, a ’hybrid’ instrument over which Parliament exercised significantly reduced
oversight: 242 [48] (Lord Sumption), 246 [61] (Lord Reed), 265 [134] (Lord Hope). Nothing
came directly from the Supreme Court's suspicion that the relevant instrument was not
hard law of the usual sort, the case being determined in Bank Mellat's favour, by majority,
on other gr ounds. However, it is salutary to note this case as an example of the point that
identifying soft law based upon set categories of instruments is ultimately, at best, a limited
approach to the issue.
14
Robert Baldwin, Rules and Government (Oxford University Press, 1995) 60–80.
15
Ibid 80. It must be said that this formulation rather begs the question of when legislation
will fail to amount to delegated or secondary legislation as ’usual’.
16
Legislative Instruments Act 2003 (Cth). This Act has been described as the ‘single most
important development in delegated legislation for at least half a century’: Stephen
Argument, 'Delegated Legislation' in Matthew Groves and H P Lee (eds), Australian
Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press,
2007) 134, 135.
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