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This subject will be delivered online in 2020 over the scheduled dates.
This new subject will consider cutting-edge issues in the law governing the liability of public authorities. Government liability is a field of great practical significance for government and those who interact with government. It also raises difficult issues of theory, lying at the border of public law and private law, and complex policy questions, such as the balance to be struck between interests in individual redress and public interests including the preservation of public finances. The subject will focus on the law of Australia and common law jurisdictions.
The subject will consider significant issues that arise across the major fields of liability. Within the law of torts the course will consider: public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services; misfeasance in public office; malicious prosecution; private and public nuisance; trespassory torts; statutory immunities or defences that provide special protection to public authorities; particular difficulties relating to governments direct and vicarious liability; and issues in the law of damages, including the novel subject of vindicatory damages. Within the law of unjust enrichment, the subject will consider the different grounds on which public authorities can be stripped of unjust gains, and particular issues associated with claims for the return of taxes unlawfully demanded. In the law of contract, the course will consider various special rules that may apply to government contracts including immunities, and will consider the consequences where contracts are entered into without authority. The subject will also consider the history of law reform proposals that seek to make government compensate for ultra vires administrative action, and the role of ex gratia payments.
Principal topics include:
- The law of torts
- Public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services
- Misfeasance in public office
- Malicious prosecution
- Private and public nuisance
- Trespassory torts including false imprisonment
- Vicarious liability of public authorities
- Statutory immunities and special defences for public authorities
- Damages awards against public authorities including vindicatory damages
- The law of unjust enrichment
- Grounds for seeking restitution against public authorities
- Recovery of unlawfully demanded taxes
- Special defences for public authorities
- The law of contract
- Special rules regulating government contracts
- Consequences of ultra vires contracts
- Compensation beyond private law
- Law reform proposals for compensation for ultra vires administrative action
- Ex gratia payments.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the law of civil liability as it relates to public authorities, including recent developments
- Be able to critically examine, analyse, interpret and assess the effectiveness of civil liability rules as they relate to public authorities, and remedial practices of public authorities
- Be an engaged participant in debates on the law, institutions and practices of government liability in the Australian and other common law legal systems
- Have a sophisticated appreciation of the factors and processes that drive common law and legislative change in the liability rules applicable to public authorities
- Have a sophisticated understanding of the interrelationship between civil liability rules and public authorities and public administration
- Be aware, at an advanced level, of the impacts of civil liability rules and damages awards on public authorities
- Have the cognitive and technical skills to generate critical and creative ideas relating to the legal framework of government liability and to critically evaluate existing theories, principles and practices
- Have the cognitive and technical skills to independently examine, research and analyse existing and emerging questions in relation to government liability
- Have the communication skills to clearly articulate and convey complex information regarding the subject to relevant specialist and non-specialist audiences.
Last updated: 11 February 2021