Duncan Lawyers



Primary and Secondary Legislation: A Functional Difference, or Just the Outcome of Process?

1st International Conference on Law, Regulations and Public Policy (Singapore, 2012) GSTF Journal of Law and Social Sciences, Vol 2, No 1, Dec 2012

This article considers whether there is a coherent theoretical or functional explanation for the difference division of content between primary and secondary legislation within a given legislative scheme.It is suggested that the allocation of provisions is largely driven by cost-benefit considerations, including financial cost, delay, risk and political reward.

Some considerations tend to pull legislative provisions towards a location, others tend to push provisions by making one location or another less attractive.

Accordingly, the placement of legislative material in primary or secondary legislation is more pragmatic and less principled or systematic than is commonly assumed.

Stakeholder Consultation in Road Administration: A Legal Perspective

12th World Conference on Transport Research (Lisbon, 2010) Selected Papers ISBN 978-989-96986-1-1

Roads are more than just part of a transportation network: they are land that is open to and used by the public for a variety of purposes.  Not all uses are lawful, and not all stakeholders are organised, vocal or articulate, particularly in developing countries.
Road administration is a complex function.  Good quality decisions are most likely to occur in a regulatory environment which mandates participatory decision-making – a process in which stakeholders are identified and consulted and their views are taken into account.

Planning & Development Victoria

The Law Book Co. (two volume, loose leaf subscription service) 1999 346.945045

Planning & Development Victoria was designed to provide practitioners, councils and planners with the legislation necessary to practice in this area of law. It was also designed to assist practitioners in the interpretation of legislation by the inclusion of commentary, case law annotations and an alphabetical listing of planning issues.

Other publications:

The arrival of VCAT – A judicially assisted Tribunal (1998) 3 LGLJ (page 4).  The appeal system – and particularly the planning appeal system – relies heavily on council participation. The article considers the structure of the new Civil and Administrative Tribunal and the role of professional advocates.

Legislation Review and Local Government — Another Year 2000 Compliance issue (1998) 3 LGLJ (page 19).  Victoria’s local laws are the creation of local government, and for that reason the legislation review requirements under National Competition Policy apply to local councils … NCP reviews will require councils to revisit such diverse issues as itinerant traders, A-frame advertising signs and siting of clothing bins.

Current Issues in Special Rating in Victoria (1997) 3 LGLJ (page 22).  The special rating and special charging provisions of the Local Government Act 1989, after five years of operation, had provided the legal basis for numerous schemes. Those schemes often combine funding from various sources.  Although the principles applying to these schemes were established, new issues were emerging. These included questions about how many properties should be included in schemes, exclusions from schemes and the relevance of how the land was developed.

National Competition Policy in Victoria (co-authored with H. Proctor and K Sykes) (1996) 2 LGLJ (page 104).  National Competition Policy has implications for local government throughout Australia.  In Victoria it is only one of several developments affecting the context in which councils undertake market activities.  In this critical appraisal of the Victorian government’s 1996 statement of the application of the principles to local government, the authors considered the interaction of these developments as well as issues which were not dealt with, or were dealt with inadequately, in the Victorian Statement.

Legal Restrictions on the Exercise of Council Powers (1995) 1 LGLJ (page 35).  As council activities broadened during the middle decades of the twentieth century the authorising legislation remained heavily prescriptive and limiting.  In recent years the States had moved to rectify this problem by enacting general enabling legislation, providing councils with power to do what they consider to be appropriate for their communities.