The constitutional division of powers - legislative, executive, judicial - is a useful concept. It is not perfect. The executive government has delegated legislative powers - that is, the power to make regulations and other statutory instruments. Parliaments, correspondingly, have executive functions. These are more than just the function of running themselves, for example managing court libraries. They have, or should have, capacity to manage legislative schemes:

• Parliamentary oversight over the implementation of Acts;

• review and disallowance of regulations;

• oversight of other legislative instruments such as guidelines and codes.

The term “government” has various meanings. The government is the constellation of bodies which govern us, but those are not all the same. Even if executive government is distinguished from the legislature (parliament) and the judicial (courts) complexity remains. One concept, however, holds universally true - statutory authorities are not the same as private corporations, even not-for-profit corporations. The distinction is not in the profit motive or the management structure: it is in the accountability of the entity. The line of accountability, through the Ministry and its Minister, is to Parliament.

The organisational objectives of a statutory authority should align with its place as a component of government. And, certainly, they should be consistent with the authority’s constituting Act and with any formal directives issued by the Minister.

Government approval requirements are sometimes pejoratively described as tape - red tape. Incoming politicians frequently want to remove it, or at least say they do.

The tape metaphor sometimes mixes with others. Thus (Research & Policy Briefs, “The Fight against Corruption: Taming Tigers and Swatting Flies”, World Bank, Malaysia Hub, No. 27, January 2020):

“Bureaucracy and layers of red tape not only frustrate citizens hoping to receive government services but also create rent-seeking opportunities [for] those who function as gatekeepers.”

No doubt. But is deregulation the answer? If the provision of government services is not regulated how are scare resources to be allocated?

At the heart of the issue are administrative discretions. It can suit administrators (for a variety of reasons) to say “no, we have no discretion.” The absence of discretion can put a stop to further discussion with an angry stakeholder standing at the counter. It can open the door to corrupt behaviour.

Administrative discretions, coupled with administrative guidelines and transparency of administration, provide a pathway to good quality administration. If only this could be reduced to a three word slogan.

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.

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.