Scales of Justice in Australia, one side balanced, the other shrouded in mist

Soft Law, Hard Realities: Can Australian Citizens Enforce Government Guidelines?

Kai Mendoza in Law & Justice June 2025 • 3 min read.

"Navigating the complex world of soft law and its impact on individual rights in Australia. A guide to understanding your options when government guidelines aren't followed."

In Australia, and many other countries, 'soft law' is a common way to regulate things. Think of it as guidelines or policies that the government puts out. While not strict laws, they often have a big effect on how things are done. The tricky part? What happens when the government itself doesn't follow these guidelines? Can individuals hold them accountable?

This article dives into that question, examining whether people can seek remedies when public authorities in Australia fail to stick to their own published 'soft law.' We'll look at the legal options available, and why they often fall short.

Ultimately, it seems the most effective solutions are often 'soft' as well – things like recommendations from an Ombudsman or using special payment schemes. Let's explore this complex issue and see how Australians can navigate the space between what's expected and what's actually enforced.

What Exactly is 'Soft Law'?

Scales of Justice in Australia, one side balanced, the other shrouded in mist

Defining 'soft law' can be slippery. Unlike legislation passed by Parliament ('hard law'), soft law isn't legally binding in the traditional sense. It includes a range of instruments like codes of practice, policy statements, and guidelines. These documents influence behavior and decision-making, but without the force of a formal law.

One way to think about it is that soft law fills the gap between unstructured discretion and formal legislation. It provides a framework, but allows for flexibility. The challenge, however, lies in its inconsistent application. Public authorities may treat soft law as 'law' for those they regulate, but feel less bound by it themselves.

Codes of Practice: Guidelines for specific industries or activities.
Policy Statements: Official positions on certain issues.
Guidance Notes: Explanations of how to comply with regulations.
Circulars: Directives to government agencies.

The key issue is that what an instrument does is what matters, not what it's called. However, even with that understanding, defining the boundaries of soft law remains a challenge.

The Path Forward: Ensuring Fairness and Accountability

While enforcing soft law through the courts remains a challenge in Australia, alternative avenues like the Ombudsman and ex gratia payments offer a path toward accountability. Ultimately, a multi-faceted approach—combining greater transparency, robust oversight, and a willingness to address injustices—is essential for ensuring that administrative justice is not only a legal concept, but a lived reality for all Australians.

About this Article -

This article was crafted using a human-AI hybrid and collaborative approach. AI assisted our team with initial drafting, research insights, identifying key questions, and image generation. Our human editors guided topic selection, defined the angle, structured the content, ensured factual accuracy and relevance, refined the tone, and conducted thorough editing to deliver helpful, high-quality information.See our About page for more information.

This article is based on research published under:

DOI-LINK: 10.2139/ssrn.2432773, Alternate LINK

Title: The Use And Enforcement Of Soft Law By Australian Public Authorities

Journal: SSRN Electronic Journal

Publisher: Elsevier BV

Authors: Greg Weeks

Published: 2014-01-01

Everything You Need To Know

What exactly constitutes 'soft law' in the Australian context, and how does it differ from traditional 'hard law'?

In Australia, 'soft law' refers to guidelines, policies, and codes of practice issued by the government and public authorities. These are not legally binding in the same way as 'hard law' (legislation passed by Parliament), but they significantly influence how decisions are made and how activities are regulated. Examples include codes of practice for specific industries, policy statements on certain issues, guidance notes for regulatory compliance, and circulars to government agencies. Unlike 'hard law', 'soft law' offers flexibility but this can lead to inconsistent application and challenges in enforcement.

If government guidelines ('soft law') are not legally binding, what recourse do Australian citizens have when public authorities fail to follow them?

While individuals can't typically enforce 'soft law' through the courts in Australia like they can with 'hard law', alternative mechanisms exist. The Ombudsman can investigate complaints and make recommendations. Additionally, ex gratia payments (special payments) can be used to address injustices resulting from failures to adhere to government guidelines. These 'soft' solutions provide avenues for accountability when public authorities don't follow their own published 'soft law'.

How can 'soft law' be made more effective in ensuring fairness and accountability from Australian public authorities, given its non-binding nature?

The effectiveness of 'soft law' hinges on factors like transparency, oversight, and a commitment to addressing injustices. Since 'soft law' instruments such as policy statements and guidance notes lack the binding force of 'hard law', ensuring fairness requires a multi-faceted approach. Public authorities must be willing to be held accountable through mechanisms like the Ombudsman and ex gratia payments. Greater transparency and robust oversight are crucial for making administrative justice a reality.

Why is it so difficult to define the term 'soft law,' and what implications does this ambiguity have for its practical application?

The term 'soft law' is tricky to define because its impact is determined by what it *does* rather than what it's *called*. It encompasses various instruments like codes of practice, policy statements, guidance notes and circulars. While 'soft law' lacks the legally binding nature of 'hard law' (formal legislation), it fills the gap between unstructured discretion and formal legislation, offering a framework with flexibility. The real challenge lies in defining the boundaries of 'soft law' due to its varied forms and applications.

What additional legal strategies might be available to citizens beyond those mentioned, and what are the political implications of 'soft law'?

While the text focuses on avenues like the Ombudsman and ex gratia payments, it doesn't delve into the potential role of judicial review in challenging decisions made based on 'soft law'. Although direct enforcement of 'soft law' might be difficult, individuals could potentially argue that a public authority's failure to follow its own guidelines was unreasonable or procedurally unfair, thus opening the door to judicial scrutiny. The article also doesn't explore the potential for lobbying or advocacy to influence the creation or amendment of 'soft law' policies to better protect citizen's rights.