Units

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Sample subject outline - Semester 2 2012

Note: Subject outlines often change before the semester begins. Below is a sample outline.

Rationale

The purpose of this unit is to examine and understand the role of public law in relation to contemporary government practices including commercialisation, outsourcing and corporatisation. These practices mean that is often difficult to identify an exercise of public power or an area of public responsibility for the purposes of determining the reach of public law remedies - that is, remedies relating to the control and accountability of government and public bodies and officials, mostly under the realm of administrative law (including judicial review, tribunal and ombudsman review and freedom of information.)
A notable feature of modern government is the extent to which it has shifted responsibility to the private sector for many of the functions which were traditionally the sole domain of the public sector. Governments have increasingly contracted out ('outsourced') the delivery of services (many of them 'core' government services, once regarded as 'public utilities', such as gas, water etc).
At the same time, governments have also re-structured existing units of public administration along the lines of private sector corporations ('corporatisation') - establishing, for instance, government business enterprises. These 'corporatised' government entities enjoy a far greater degree of autonomy from central executive control than 'conventional' statutory authorities. Finally, in what can be viewed as the 'end game' in this process, governments have engaged in 'privatisation' by selling off to the private sector both the infrastructure and entitlements associated with a function previously performed by government
These changes represent a radical departure from the traditional way in which governments have operated and it is therefore important to understand the driving forces behind them, which, for the most part, lie in the pursuit of economic efficiency goals and the implementation of national competition policy.
Conformity by government with national competition policy also allows the private sector to operate in areas previously the monopoly of government. This means that where a private sector provider begins to offer a service in competition with an existing government provider, it is often necessary to establish a new regulatory framework which is 'at arms length' from the government provider. Regulatory reforms over the last decade in relation to the Australian telecommunications industry is one example.

Aims

The aims of this unit are:

• To examine and analyse the role and application of public law in areas such as outsourcing, corporatisation and government commercialisation generally.


• To identify, examine and predict the reach of public law remedies in relation to activities resulting from practices such as outsourcing or corporatisation.


• To explore and consider the appropriate role and function of public law, bearing mind its traditional focus and the changing nature of government.


• To identify, from a law reform perspective, existing deficiencies and limitations in public law remedies, as well as the relationship between public and private law remedies and to consider possible reforms.


• From a broader, theoretical perspective - to critically analyse the concept of public power and responsibility; the role of government and the rationale of public law.

Objectives

On completion of the course, you should be able to demonstrate an ability to pursue research at a postgraduate level which reveals:
1.An understanding of the manner in which public law remedies apply in areas involving outsourcing, corporatisation, de-regulation and privatisation.
2.An ability to isolate key issues and contemporary problems relating to the subject matter of this unit and to critically evaluate reform proposals.
3.An ability to analyse critically, conceptual issues relating to the idea of public power and the role of public law.

Content

• Introduction: The identification of public law remedies - the historical development of judicial review; the emergence of other administrative law remedies and the conventional boundaries of public law.


• Changing government practices and the reach of public law remedies - an examination of de-regulation, government engagement in commercial activity and the manner in which courts have sought to identify an exercise of public power for the purposes of public law remedies.


• Corporatisation - the establishment of corporatized government business enterprises or government owned corporations; the basis of the power they exercise and the reach of public law remedies.


• Government and the concept of 'Crown immunity' from statute - government engagement in commercial activities and the boundaries of the limited immunity under the Trade Practices Act (Cth.) in relation to 'carrying on a business.'


• Government outsourcing - the reach of public law remedies.


• Law reform - the role of public law in relation to government practices and the identification of common or underlying themes between existing public and private law remedies.

Approaches to Teaching and Learning

The unit is taught in block mode in 2012. The material outlined in the Study Guide for each Topic is presented by way of a Powerpoint-linked seminar comprising a summary and interactive discussion of the key issues relating to the relevant Topic.
Students are encouraged to consult regularly with the unit coordinator during the teaching period.

Assessment

Formative assessment will be given to you through feedback from the lecturer in class discussions, which will assist your learning and preparation for other assessment in this unit. You will also receive formative assessment through your first research paper.
You are also required to submit by a specified date following the end of the teaching period a one-page point-form outline of your plan for writing the major research paper. (research paper 2)..
Research paper 1 and 2
Both research paper 1 and 2 must comply with the rules for the presentation of research papers and projects in the section on 'Guidelines for Presentation of Research Papers and Research Projects' in the Postgraduate Student Information Booklet. The School of Law has produced its own citation guidelines which are accessed at: http://www.citewrite.qut.edu.au/QUT-Legal-Reference-Style-Guide.pdf . Other citation guides may be used, after written approval to do so from the unit coordinator or supervisor.

Assessment name: Research Paper 2
Description: 6,000 word paper on a topic approved by the unit coordinator.
Relates to objectives: 1-3
Weight: 80%
Internal or external: Internal
Group or individual: Individual
Due date: 6 Wks after Intensiv

Assessment name: Research Paper 1
Description: 1500 word research paper on a specified topic
Relates to objectives: 1-3
Weight: 20%
Internal or external: Internal
Group or individual: Individual
Due date: 1 Wk after Intensive

Academic Honesty

QUT is committed to maintaining high academic standards to protect the value of its qualifications. To assist you in assuring the academic integrity of your assessment you are encouraged to make use of the support materials and services available to help you consider and check your assessment items. Important information about the university's approach to academic integrity of assessment is on your unit Blackboard site.

A breach of academic integrity is regarded as Student Misconduct and can lead to the imposition of penalties.

Resource materials

There is no set textbook for the unit. To begin with, students needing to refresh their understanding of basic principles of administrative law should consult one of the standard texts - eg. Lane & Young "Administrative Law in Australia (Lawbook Co. 2007). Beyond this, the items, listed below, are useful background to the specific material listed later in each Topic of the Study Guide:
(a) Some useful reference texts
Seddon, N. Government Contracts (Federation Press, 3nd ed.)
Horrigan B. (ed) Government Law and Policy: Commercial Aspects (Fed Press, 1998)
Graham C. & Prosser, T. Privatising Public Enterprises (Clarendon & Oxford, 1991)
Picciotto, S., McCahery J. & Scott C. (eds), Corporate Control and Accountability
(1993) esp. Privatisation, Control and Accountability
Prosser, T. Nationalised Industries and Public Control (Blackwells, Oxford, 1986)
(b) Some useful preliminary articles
Freeman J: Extending Public Law Norms through Privatisation (2003) 116 Harv. LR 1302
Freeman J: The Private Role in Public Governance (2000) 5 New York Univ. L R 543
C Sampford, Law, Institutions and the Public/Private Divide (1991) 20 FLR 185
G Airo-Farulla, 'Public' and 'Private' in Australian Administrative Law (1992) 3 PLR 186
M Allars, Private Law but Public Power; Removing Administrative Law Review from Government Business Enterprises (1995) 6 PLR 44
P MacAuslan, Public Law and Public Choice (1988) 51 MLR 681
H Woolf, Public Law - Private Law; Why the Divide? (1986) PL 220
M Freedland, Government by Contract and Public Law (1994) PL 86
Howse, Prichard, Trebilcock, Smaller or Smarter Government? (1990) 40 UTLJ 498

Risk assessment statement

There are no out of the ordinary risks associated with this unit

Disclaimer - Offer of some units is subject to viability, and information in these Unit Outlines is subject to change prior to commencement of semester.

Last modified: 29-Aug-2012