It’s a controversial area mainly because of how few people know that there may be a remedy even when their legal rights have run out.
A research article co-authored by a professor and recent graduate of The Australian National University (ANU) College of Law sheds new light on government schemes for extrajudicial compensation.
Professor Greg Weeks, an administrative law expert and deputy head of the ANU Law School, collaborated with former student Sarah Lim (BInfTech ’19, LLB (Hons) ’20) and Nathalie Ng (HWL Ebsworth Lawyers) for the article published recently for the 100th edition special issue of the Australian Institute of Administrative Law (AIAL) Forum.
In this Q&A, Professor Weeks and Ms Lim discuss the paper and how extrajudicial compensation, usually paid on the basis of ‘moral liability’ rather than a claim founded in law, has become an essential part of seeing that justice is done in public law matters.
Professor Greg Weeks
1. What motivated you to explore government schemes for extrajudicial compensation in this paper?
I was approached to contribute an article for the special 100th edition of the AIAL Forum by Emerita Professor Robin Creyke AO, who was a little like the magician who asks you to pick any card knowing that you’ll choose the card she wants you to. In fact, I had written about compensation schemes before and Robin and I agreed that I was the right person to contribute a piece on that subject which would round out the special issue.
2. How did your collaboration with Sarah and Nathalie come about for this project, and what was that experience like?
It was wonderful to have two such talented co-authors. Nathalie and I have worked together before – she is the case notes editor on the Australian Journal of Administrative Law. Sarah was my student and also my research assistant and is someone I hold in very high esteem. It was a pleasure to work together with both Nathalie and Sarah on this article.
3. Does this paper build on any of your previous research?
It does, but research that appeared as chapters in books I have written: Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, Oxford, 2016); and Government Liability: Principles and Remedies (LexisNexis Australia, 2019) with Drs Janina Boughey and Ellen Rock. It’s an area that has not had much detailed consideration and I thought that this was a good occasion to put my research into an article. It has already been cited by Cavanough J in Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission  VSC 762 at .
4. Does this paper relate to any current courses you are teaching?
There is a class devoted in part to this subject in Advanced Administrative Law (LAWS4262/8462). This year, that class will be taught by The Hon Justice John Griffiths – something I am looking forward to.
5. What are some of the debates or controversial issues surrounding extrajudicial compensation in Australia?
It’s a controversial area mainly because of how few people know that there may be a remedy even when their legal rights have run out. In addition, extra-judicial remedies are always a little contentious if, as here, they indicate that the law doesn’t have the answer to every legal problem.
6. How does it relate to other current projects you are working, on either solo or collaborating with ANU/international colleagues?
It relates strongly to the issue of soft law, which is a research area to which I have returned on several occasions. The gist of it is that there are norms outside the formal part of the law which have the power to control and regulate behaviour. Extrajudicial compensation is an interesting example of that phenomenon.
Sarah Lim (BInfTech ’19, LLB (Hons) ’20) is currently undertaking her summer clerkship at Clayton Utz. Photo: Tom Fearon/ANU
1. What were your first thoughts when Professor Weeks approached you to collaborate on this project?
Excitement and apprehension. Nathalie and Greg are both very knowledgeable and across the current research, and at times I felt like an intellectual amoeba in comparison.
2. What do you enjoy most about Administrative Law and how did your ANU studies nurture this as a passion?
I didn't expect to enjoy Administrative Law and I (probably) wouldn't have pursued further studies or a career in Administrative Law if not for Greg's excellent teaching and mentoring.
3. Why is your research into government schemes for extrajudicial compensation important and/or timely?
The research is important as there are limited mechanisms to challenge decisions made under extrajudicial compensation schemes and these mechanisms are not necessarily well known. This article serves the dual purposes of raising awareness of extrajudicial compensation schemes and assessing their efficacy.
4. Does this paper build on any of your previous research?
Not particularly! Most of my research until this point has focussed on automation and government decision-making.
5. Finally, can you tell us a bit about your current role at Clayton-Utz and what it involves? Is there any intersection between your work and the subject explored in your research paper?
Until recently, I worked as a paralegal in the Public Sector Litigation team at Clayton Utz. During my time as a paralegal, I had the opportunity to draft preliminary briefs and decisions under the Compensation for Detriment caused by Defective Administration (CDDA) Scheme for a government department. There was a large intersection between this work and the subject explored in the research paper, and my work at Clayton Utz helped me understand some of the practical issues for claimants and the ways in which extrajudicial schemes can be improved.
I am currently a summer clerk at Clayton Utz and have rotated through the Major Projects & Construction and Workplace Relations, Employment & Safety teams.