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Outsourcing to Not-for-Profits: Can Judicial Enforcement of Charity Law Provide Accountability for the Performance of ‘Public’ Functions?


Ian Murray and Murray Wesson

Governments increasingly rely on charities to provide services on behalf of government. Decisions on outsourced functions can relate to the distribution of public resources, such as the provision of housing, education or legal assistance. Accordingly, such decisions can be contentious and outsourcing potentially places that contention in the private sphere rather than the public sphere. This article examines the extent to which outsourcing service delivery to charities affects the ability of current or potential service recipients to hold decision-makers accountable. It argues that outsourcing government functions to charities will often place such functions beyond the scope of public law judicial review. However, charity law contains accountability mechanisms that have the potential to fill the gap. These mechanisms are identified and then compared with the availability of judicial review for government decisions by reference to scope, grounds, standing, time limits and remedies. This article finds that in many circumstances there should be no diminution of legal accountability. Nevertheless, charity law is less tested than administrative law, is not as effective in dealing with service decisions made by front line employees and does not as readily guarantee procedural fairness. Balanced against this, charity law may provide more generous time limits and better enable systemic issues to be addressed.

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(2020) 43(4) UNSWLJ 1309: