In earlier times, the pouring of oil into the sea is said to have been done deliberately in order to forestall rough seas. Although oil may be highly effective at calming troubled waters, we know that seafarers would not rely on this ancillary technique alone. Instead, they tried to engineer strong ships capable of breaking waves on their own. In Australia, there are two distinct types of remedies available to a litigant when seeking judicial review through constitutional means. First, the writs of mandamus, certiorari and prohibition which are called ‘constitutional writs’. Second, injunctions and declarations which are ‘equitable remedies’. The constitutional writs are often criticised for being only obtainable through archaic processes and governed by technical rules. Accordingly, equitable remedies, which are available in the field of public law precisely because of the inadequacies of the constitutional writs, have played a critical part in shaping modern Australian administrative law. However, mainly due to their different historical backgrounds, the constitutional writs and the equitable remedies operate in a fundamentally different manner. It has been proposed by some Australian legal minds that equitable remedies will have a “knock-on” effect for the other remedies by refocusing judicial review. However, it will be suggested by the author of this text that administrative lawyers should not rely too heavily upon the capacity of equitable remedies to become the forefront of judicial review. Instead of trying to pour oil on troubled waters, focus should be shifted to the constitutional writs, which have the innate potential of fulfilling the constitutional mandate of Section 75(v) as intended.
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"Pouring oil on troubled waters: The use of equitable remedies in judicial review,"
Bond University Student Law Review: Vol. 4
, Article 1.
Available at: http://epublications.bond.edu.au/buslr/vol4/iss1/1