Duncan Lawyers

Current topics

Current topics

Don't just stand there, do something!

The functions of legislation

Our July 2018 Newsletter examines the functions and purposes of legislation.  The list is not exhaustive.  One purpose that might be added is: legislation which addresses a political issue of the day, whether or not it is needed.  We would provisionally categorise this as Don't just stand there, do something! legislation.

We do not support such legislation. Neither, it seems, did the Royal Commission on Banking and Financial Services in its interim report (28 September 2018):

“Passing some new law to say, again, ‘Do not do that’, would add an extra layer of legal complexity to an already complex regulatory regime. What would that gain?”

Primary and Secondary legislation

Paper presented in Singapore

What is the difference between primary and secondary legislation — is there a functional difference or is the allocation of provisions between the two just the outcome of process?   One can’t always generalise, but that didn’t stop us trying at a conference in Singapore (2012).  More about this on our publications page.

Competition policy and competitive tendering

The governments of Australia agreed in 1995 to introduce a set of reforms to improve market competition.  They included:

  • extension of trade practices laws prohibiting anti-competitive activities to government businesses;

  • competitive neutrality requirements to ensure that government-owned businesses competing for work would do so on the same basis as private competitors;

  • legislation review – the review and where appropriate reform of all laws that restrict competition (unless the benefits of the restriction outweigh the costs, and the objective of the law can be achieved only by restricting competition).

At about the same time, the Victorian State Government introduced compulsory competitive tendering.  This required councils to procure a large part of their needs using a tendering process.  Council business units were allowed to compete for this work, subject to governance requirements.

Campbell Duncan provided advice and training to government about introduction and implementation of these reforms.

Policy objectives, regulatory controls

Land use planning is an issue of public policy, and the application of that policy to land generally – including privately owned or occupied land.  The policy may be to allow, and even to encourage land to be used or developed in a particular way.  It may be to restrict uses or developments, or even prohibit some uses or developments.

Government has available to it several regulatory tools to help it to implement its policy.  These include economic incentives (such as provision of infrastructure and even financial support) and economic disincentives (such as taxation).  Government might take action to sweep away barriers to appropriate land use or development, for example by consolidating land titles and removing unwanted private planning controls such as restrictive covenants.  Land use planning laws are one, but only one, of the only regulatory tools available to government.

Avoiding over-regulation

Many controls apply, or might be made to apply, to the use and development of land.  It is an area which can easily become a regulatory mess. Potential regulatory hazards are:

  • building controls – if a building is to be constructed technical approval should be required, to ensure that the building complies with construction requirements. However, building controls drift into land use planning regulation if they extend to requiring that a building in a particular location be of a particular type, for example, residential or commercial;

  • private planning – land owners often seek to control the use to be made of land by occupiers or subsequent owners. A technique which is available in some jurisdictions is creation of a covenant – an agreement which restricts use and development of land by the parties to the agreement and subsequent owners and occupiers. The regulatory force given to agreements, by courts or legislation, operates as another form of land use planning.

Land use planning