Misfeasance in Public Office: Some Unfinished Business

Aronson, Mark

doi:10.2139/ssrn.2652056

Cited by 2 publications

(2 citation statements)

References 6 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…This applies to public officials guilty of 'conscious maladministration', which involves 'abuses of power by public officers who either knew they were breaking the law or recklessly decided that this might be so'. 142 The elements of the tort are (1) the defendant being a holder of public office, (2) exercising power that was an incident of that office, (3) the exercise of power must be unlawful or invalid and (4) the exercise of power must be made in bad faith, that is, with malice or reckless indifference to the likelihood of harm to the plaintiff. However, several essential elements of the tort are not made out in the circumstances of Ministers deciding grant applications in a partisan fashion.…”

Section: Rectification Remedies and Sanctions: Legal Challenge Of Gov...mentioning

confidence: 99%

Regulating the Rorts: The Legal Governance of Grants Programs in Australia

2023

Federal Law Review

View full text Add to dashboard Cite

Numerous recent scandals have surfaced relating to the Australian government allegedly engaging in ‘pork barrelling’, that is, the partisan channelling of grants funding to government electorates, instead of merit-based allocation. Yet the probity of the use of public money is crucial towards preserving public trust in Australian democratic institutions. This article will critically analyse the legal accountability mechanisms for grants funding through public finance legislation, ‘soft law’ such as grants guidelines and ministerial standards, and the availability of legal redress. It will also examine political accountability mechanisms, including the operation of parliamentary committees, the Auditor-General and the Ombudsman. The author argues that although political regulation provides transparency in the government’s use of public funds, it remains ineffective to combat the government’s deeply entrenched incentives to allocate grants in a partisan manner. As such, it is contended that stronger legal accountability in terms of enforceable rules and regulations is required to reform grants regulation towards improving the probity and accountability of the use of public funding.

show abstract

Section: Rectification Remedies and Sanctions: Legal Challenge Of Gov...mentioning

confidence: 99%

Regulating the Rorts: The Legal Governance of Grants Programs in Australia

2023

Federal Law Review

View full text Add to dashboard Cite

show abstract

“…124 After all, as Aronsen observes: "while abuse of public power has long been the over-arching theme of judicial review… compensation is not in the suite of judicial review remedies". 125 The sibling torts of abuse of process and malicious prosecution can equally be seen in terms of the abuse of a power that exists for a particular public purpose: the furtherance of the rule of law. Joseph Raz has certainly argued that access to justice is integral to the rule of law.…”

Section: Bmentioning

confidence: 99%

Malice as an Ingredient of Tort Liability

Murphy¹

2019

C.L.J.

View full text Add to dashboard Cite

This article is concerned with the question of whether malice is an appropriate touchstone of liability in tort law. It begins by identifying four torts in which malice may properly be regarded as an ingredient of liability (distinguishing various other torts, such as private nuisance and defamation, in which malice plays a merely secondary and contingent role). Having identified these four torts – namely malicious prosecution, abuse of process, misfeasance in a public office and lawful means conspiracy – the article then seeks to identify a common juridical thread which links them together. So doing serves to rebut the allegation, often made in respect of all them, namely, that they are anomalous actions. It then concludes by considering the individual worth of these torts, bearing in mind the important difference between not being anomalous on the one hand, and being positively meritorious on the other. It concludes that a respectable defence of each of the four torts can be made even though malice is an atypical touchstone of liability.

show abstract

Misfeasance in Public Office: Some Unfinished Business

Cited by 2 publications

References 6 publications

Regulating the Rorts: The Legal Governance of Grants Programs in Australia

Regulating the Rorts: The Legal Governance of Grants Programs in Australia

Malice as an Ingredient of Tort Liability

Contact Info

Product

Resources

About