Creating the regulatory framework
The process of drafting primary legislation (Acts) is not always transparent. Freedom of information legislation generally exempts documents created during this process from public scrutiny - thus draft legislation and supporting documents submitted to Ministers (in Australia to the “cabinet” of Ministers) are often headed Cabinet in Confidence. All of this is long accepted, perhaps because the law-making process in Parliament is open to the public. By that stage the draft Act (“Bill for an Act”) has already been drafted and can only be amended or rejected.
Secondary (subordinate) legislation, though, is different. It is confined by the policy of the Act under which it is made, and is largely intended to give effect to the Act. It can be scrutinised by Parliament, but it is not made by Parliament. In many places it can be made only after its regulatory impact is identified and analysed.
The process of adding the final bricks to the wall of regulatory controls is not always transparent. It might seem obvious that it should be transparent - but it can be useful to be a bit more specific than this. Why should it be transparent? With this question in mind we recently read with interest a working paper prepared for the Asian Development Bank Institute “Regulatory Frameworks for Reform of State-Owned Enterprises in Thailand and Malaysia” (Wisuttisak P and N B A Rahman, ADBI Working Paper 1122, April 2020). Referring to “regulatory frameworks” they state that “the regulatory process from drafting, passing and implementing should be under public scrutiny.” They recommend the use of regulatory impact assessments, and conclude “with clarity and transparency, the regulatory framework for the reform will be recognised and accepted by the wider public.”
Our comment: process and outcomes are not the same thing. Acts and regulations, once made, are usually available to all stakeholders. Their administration is of critical importance. Laws and administration, together, make up a regulatory system. The wider the administrative discretions the more important it is that government administration be transparent, coherent and untainted.
Stakeholder consultation - process and outcomes
Legislation is inherently hierarchical: Parliamentary Acts establish policy which the executive government should find ways to implement. Much of this work is best described as administrative - Parliament legislates and the executive administers.
This seems tidy - but it is not. Executive government also legislates - it makes subordinate (secondary) legislation. It also makes various other instruments, described in some jurisdictions as legislative instruments. Certainly it must be within the scope of Parliament’s legislation (Acts), but almost always there are alternatives.
How do Ministers and their agencies decide? That is where stakeholder consultation comes in. We wrote about this in our Singapore paper, Primary and Secondary Legislation: A Functional Difference, or Just the Outcome of Process?
Legislative lexicon
Legislation provides Parliament (and the executive, for subordinate legislation) with a means of establishing and enforcing policy decisions. Statutory interpretation is the task of discerning the underlying policy so that it can be given effect.
Interpretation is not a technical exercise, and words do not have a fixed meaning. Words, however, are the building blocks of legislation. Our legislative lexicon page provides some insight into the meaning of words used in legislation - as interpreted by the courts.