We found ourselves in a room full of legislative drafters at the PCC/CALC Pacific Regional Conference “Drafting for the 21st Century” held in Canberra in April 2018. Undaunted, we presented a paper. The CALC (Commonwealth Association of Legislative Counsel) Newsletter of September 2018 includes a succinct summary of it, as follows:

In the last session of the conference, Campbell Duncan (Consultant) spoke about what legislation is good for. He outlined the many purposes of legislation, which include to establish norms, command or control action, confer, refer or cede power and operate on other legislation.

The ensuing question and answer session strayed a little off the topic, but raised interesting issues about the drafting and management of legislation in developing countries.

Parliament legislates, judges judge, the executive administers … thus is the constitutional division of powers. The concept is useful, but should not be seen as being particularly accurate …

• Parliament oversees the executive;

• the executive legislates (albeit with “secondary” legislation), makes decisions which affect the operation of legislation, and even sometimes over-rides Parliamentary legislation using Henry VIII clauses;

• and the courts …? They make court rules and interpret legislation, not always in predictable ways.

Our theme in this blog is executive legislation, so think here of regulations, rules (including court rules!), local laws and, in the university area, statutes (as distinct from Acts). They are all legislation - they create norms and obligations. And, like Acts, they are supported by all manner of administrative instruments - guidelines, codes, standard operating procedures and ordinary old procedures. But why use words when a picture will do …

Laws are words on a page - or on a computer screen. What happens in practice? Is administrative practice aligned with applicable regulatory requirements? Several factors operate to cause misalignment, including:

• the difficulty of changing laws and the legislative instruments made under them. This can be the result of limited skills within the sectoral agency or the complication caused by division of responsibilities between agencies;

• lengthy time frames. This is particularly a factor when amendment to primary legislation (an Act, Ordnance or Law made by the Parliament) is necessary. In practice many agencies prefer to devise work-arounds in which decisions are made on the basis of strained interpretation of laws, in disregard of laws, or in reliance on lower-level legislative instruments (regulations, guidelines and directives) which are themselves of doubtful legal validity;

• lack of administrative and political will to bring laws into alignment with good administration (remembering that executive government is able to initiate law reform). Examples of this are excessively harsh penalties and regulatory requirements which are unnecessary and selectively enforced. Legislative over-reach of this type produces, over time, a tangle of legal requirements which are opaque and oppressive, and which bring the legal system - and public administration - into disrepute.

The three phases of consultation

The development of new legislation often proceeds through three phases - collection of information, preparation of proposals and, thirdly, development of consensus. This third phase often involves a workshop with stakeholders.

To the left is a photograph of Campbell Duncan at a workshop in Cambodia (September 2018). With him, also striding forth with a cup of tea, is Gordon Chakaodza, Head of Vicroads International.

Road Safety Legislation

Campbell Duncan recently (November 2020) completed an online Road Safety Legislation Course provided by the Johns Hopkins International Injury Research Unit in conjunction with the World Health Organization. It was a useful exercise. We have practical experience with roads legislation in many jurisdictions, so it was interesting to compare the theory with the practice.