A government has many objectives … but how does it achieve them? Many people would give the response - “by legislation”. Well, yes, legislation is often part of the mix. However, there are many forms of legislation, and not all of them comprise just prohibitions and mandates.

With these thoughts, we turn to comments by the Financial Services Minister Stephen Jones (reported in the Australian Financial Review 9 November 2022) in relation to “meddling” in superannuation fund management. He stated that the government would seek to devise “a common, agreed objective” of superannuation, and added that (to quote the AFR report):

“a legislated objective was necessary before the government considered curtailing the generous super tax concessions for wealthy people …”

As we have often commented, legislation provides a voice for government, and can be considered to be an expression of government policy with teeth (by which we mean sanctions). But where are the teeth with “legislated objectives”?

A commentator, one Jeremy Cooper, is reported to support the idea of a “legally enshrined mission statement” (AFR, 23 November 2022). How effective would it be? Mr Cooper saw “a legislated objective as key to fostering policy stability.” This was so even though it would not bind future governments:

“… it would create guardrails and make any future changes politically difficult if they were inconsistent with superannuation’s legislated objective.”

Governments have many objectives. Some apply to specific sectors (such as improved public transport), some apply to the whole of government (such as transparency and accountability of government).  Often objectives are set out in Acts. Legislation is, after all, a voice of government - it is the creation of the legislature. In recent years Australian Acts have been increasingly explicit in identifying government objectives - whether in recitals, introductory sections enumerating the “purposes” of legislation or in the objectives, powers and functions of public authorities.

How are those objectives to be achieved?  Government services are often provided by the private sector, for example in waste collection, education and transport sectors.  When governments engage private service providers, how can they be confident that the services provided will assist in the achievement of government objectives?

Private contractors, for their part, have to make considered assessments before entering into contracts.  Before they can offer a price, they need to know what it is they are expected to do.  They need to assess certainty and risk.  The key document is their contract with the government.

Statutes and contracts.  How do they relate to each other?  Who has the responsibility for ensuring alignment between statutory objectives and contract outcomes?

In our March 2023 newsletter we consider these questions, and venture opinions as to how abstract concepts can be used to produce concrete outcomes.

The common law has always existed, at least since the French invaded England in 1066. The High Court spends its days discovering and applying it.

Much the same might be said of the English language. On reading High Court judgements one finds odd terms used as though they were always part of the legal lexicon, no explanation needed. From time to time they pop up in the depths of judgments, leaving readers to work out their meaning from context. Then they disappear again. Who could forget, for example, this splendid line from the Bank Nationalisation case …

“Very conflicting views of the meaning of this placitum were there expressed.”*

Others might have been content to say They couldn’t agree on the meaning of the paragraph.

The term placitum has gone the way of majority (now known as plurality). But onwards, the discovery of words which always existed (even if they were never used) continues. The latest is chapeau, as in:

“… the requirement of “intentionally”, as expressed in the chapeau to the sub-section, imports a necessity of consciousness … [etc, etc] ” **

Others might have been content to refer the introductory words to the sub-section.

Modern legislative drafting frowns on the use of words to follow a series of paragraphs, so it is unlikely that the High Court will need to make reference to top hats and tails. As for the use of the French language, William the Conqueror would be proud.

* Bank of NSW v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at para. 19 (referring to an earlier case).

** The Queen v Tang [2008] HCA 39 at para 108. Or should I say placitum 108?

Don’t just do something, stand there
Acting when inaction would be the better option. Inappropriate activity is a common problem among those who want to leave a paper trail of having been busy. Commonly seen in regulatory impact statements which forget to include the do nothing option.

Decision-based policy
The practice of developing policy to justify decisions which have been made.*

[* With thanks to a paper by Banks G, 2009, “Evidence-based policy making: What is it? How do we get it?” ANZOG/ANU Public Lecture Series, Canberra.]

Laws have a normative effect: most people like to comply with the law. There are incentives to do so. Companies have reputations to establish, auditors to respond to and regulators to deal with. People have peer group pressure, children to instruct, parents to please and neighbours to live with.

Complying with the law can be described as doing the right thing. If one is to do the right thing it is first necessary to know what the right thing is.

Media concern with the extraordinary obligations imposed during the current pandemic lock-down in Melbourne are understandable and proper. Commentators ask, how will some of these limitations be enforced? How will anyone know whether you have been shopping twice in a day (when the limit is once per day)?

The Premier typically responds with calls to common sense. He might more accurately have said that the restrictions are normative - they identify actions which constitute good behaviour. If laws are well publicised and explained (“socialised”) a high level of compliance can be achieved. Laws do not rely entirely on courts and infringement notices (though enforcement has to be part of the mix - for those who do not choose to comply).

Legal obligations are set out in laws, right? Ultimately they are. However many obligations are made contingent on decisions made by government officials.

In some legislation it is an offence to fail to comply with a direction by a government official. An example is section 76A of the Domestic Animals Act 1994 (Vic) under which an authorised officer is empowered to issue a notice to comply if the authorised officer believes on reasonable grounds that the person has committed an offence. It is an offence to fail to comply with the notice. In NSW a local government officer can “order” a person to do or refrain from doing a specified activity.

To use some Latin, the issuing of the notice or the making of the order is part of the factum of the offence.

A variant on this theme is a permit system. Under this approach, it is an offence to conduct an activity without a permit. If an activity occurs in accordance with a permit (including its “conditions”) the activity is lawful. If the activity occurs without a permit, or in breach of a permit condition, an offence is committed.

Even more simply, legislation can require “prior approval” for an activity (s 68 of the Local Government Act 1993 (NSW)).

Don’t do it unless I say you can!

Figures have a precision which words sometimes lack. It has been asserted (in several jurisdictions) that 82.5% of road collisions or thereabouts are caused by driver error. One enthusiastic administrator planned to write a thesis on this theme.

Life is rarely this simple, and legislation cannot be reduced to formulas and figures. If it could there would be no need for modern legislation to set objectives, require consultation or to require reporting on organisational performance.

Road safety requires the active participation of multiple agencies - sometimes of an agency performing multiple functions. There are resource and capability issues which add to the complexity of the task for administrators. To take the example of road collisions, some causes which should be addressed are:

• road infrastructure - is it adequate, is it safe?

• driver training and driver experience - if lax licensing processes develop it can be expected that drivers - novice drivers in particular - will lack necessary skills;

• enforcement - important requirements such as helmet and seat belt wearing are of little benefit if there is lax enforcement. It is not just a police issue - administration supporting enforcement officials is important (to ensure that there are appropriate penalties and to make a demerit point system work);

• law reform - laws need constant revision. Prescriptive legislation of old should be reviewed and replaced by legislation which enables agencies to do their jobs effectively.

Another Victorian Local Government Bill has fallen by the wayside. The DELWP Local Government Act Review website advises that:

The review resulted in the Local Government Bill 2018 being introduced into Parliament on 23 May 2018.

All parliamentary proceedings have since come to an end in the lead up to the State election. This means that the Bill has lapsed, and the Local Government Act 1989 continues to form the basis of the legal framework for the constitution, role and governance of Victorian councils.

It is not the first time that a Local Government Bill has failed to produce an Act. The 1989 Act came along after three Bills had been introduced:

• one was withdrawn;

• a second lapsed when Parliament was prorogued;

• the third, after amendment, became the Local Government Act 1989 which continues in force thirty years later.

Bonne courage to those who are now back at the drawing board.