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Monash University Handbook 2011 Undergraduate - Unit

6 points, SCA Band 3, 0.125 EFTSL

Refer to the specific census and withdrawal dates for the semester(s) in which this unit is offered.

FacultyFaculty of Law
OfferedPrato Trimester 2 2011 (Day)


The traditional line between public and private law used to be drawn between constitutional, criminal and administrative law as public law, and subjects loosely associated around the laws of obligations; contract, tort and restitution. Alternatively, laws that govern the relationship between citizen and state, is public law, and laws governing the relationship between two actors, is private law. Both approaches no longer adequately describe the relationship between public and private. Increasingly, the state is resorting to private law to create and enforce social policy. Similarly, courts are being asked to give what are traditionally associated as private law remedies to public law claims. Courts are also engaging through enforcement of private law litigation a regulatory role that transcends the immediate interests of the litigants. This course explores the increasingly blurred relationship between public and private law. Our course draws on experiences from a variety of jurisdictions. Our account is episodic; we do not have any ideological position on the material we will present. Some topics to be covered include the following:

  • Jurisprudential Accounts of Public and Private Law
  • A vision of multiculturalism
  • Privatizing criminal law
  • Damages as a Constitutional Remedy
Permanent Injunctions as Constitutional Remedies - Structural Injunctions
  • Interlocutory Injunctions in Constitutional Settings
Conceptions of Privacy and Enforcement
  • Class Actions and Behavioural Modification
  • Tobacco and other vices
  • The Enforcement of Morality
  • Public Impediments to reforming Tort Law
  • The place of an apology in law


On completion of the unit a student should:

  • have gained an understanding of different approaches to selected rights and remedial issues engaged with enforcement;
  • understand the complex relationship between public and private rights and how remedies are critical to the expression of those rights;
  • understand the wider context of law and society, and in particular the relationship between rights and remedies and how social policy goals are asserted through various legal doctrines;
  • have a critical appreciation of different conceptions of public and private rights and the remedies problems experienced in a number of common law countries; and
  • have developed the ability to independently research and write a minor memorandum on a remedies topic.


Class participation 10%, research memorandum 30% (1500 words), and two hour examination for 60%.

Chief examiner(s)

Dr Heli Askola