16.78 Some have called for the creation of a new cause of action for so-called public law wrongs. Aronson explains that because ‘government’s tort liability is usually judged by private law principles, there is no generalised common law right of action for damages for loss caused by invalid administrative action’. Discussing non-judicial review remedies in the UK, Maurice Sunkin concluded:
The absence of a right of damages for losses sustained as a consequence of public law wrongs is widely recognized as being one of the most serious of the remaining gaps in our remedial system. It is a gap that does not exist in more developed systems. This gap has been widely criticised over the years by judges, by legal commentators, and by the Law Commission. This is an issue that now cries out for reform.
16.79 This chapter is largely about statutes that limit executive liability to private law torts. It is another question whether a new cause of action might be needed to allow for the recovery of damages for certain wrongful government conduct for which there is no private law action. Although some have called for the introduction of such an action, others have been critical of the idea.
16.80 In 2001, the ALRC recommended that there be a review of the law relating to claims for compensation for loss arising from wrongful federal administrative action.
Mark Aronson, ‘Misfeasance in Public Office: A Very Peculiar Tort’ (2011) 35 Melbourne University Law Review 1, 2.
Maurice Sunkin, ‘Remedies Available in Judicial Review Proceedings’ in David Feldman (ed), English Public Law (Oxford University Press, 2nd ed, 2009) 820.
The UK Law Commission said the response to its proposed reforms in this area was ‘almost universally negative’ and the Government in particular was ‘firmly opposed’ to its proposals: The Law Commission, Administrative Redress: Public Bodies and Citizen (The Stationery Office, 2010).
Australian Law Reform Commission, The Judicial Power of the Commonwealth—A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001) rec 25–2.