National Uniform Legislation 9811932913, 9789811932915

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Guzyal Hill

National Uniform Legislation

National Uniform Legislation

Guzyal Hill

National Uniform Legislation

Guzyal Hill Asia Pacific College of Business and Law Charles Darwin University Darwin, NT, Australia

ISBN 978-981-19-3291-5    ISBN 978-981-19-3292-2 (eBook) https://doi.org/10.1007/978-981-19-3292-2 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Foreword to National Uniform Legislation

The political scientist William Riker defined a constitution as ‘federal’ if two levels of government rule the same land and people; each level of government is autonomous in certain areas of action; and that autonomy is subject to constitutional guarantee by the assignment of powers. The Australian federal system conforms to that definition, and indeed most large democracies are now constitutionally federal. What that means, relevantly, in the Australian context is that the states exercise inherent rather than delegated legislative powers, some of which are exclusive and create areas of activity which are not subject to central government control. In addition to the constitutional status of the states, the Australian Parliament has created two self-governing territories with plenary legislative authority which, although conferred by statute, is of the same quality as that enjoyed by the states. Federalism as a system of government has both advantages and disadvantages. The advantages include the protection of liberties through the division of powers; the accommodation of regional preferences and diversity; and the right of choice, in that multiple subnational governments simulate the structure of a free market to enhance the quality of governance. However, these features of federalism are not necessarily and solely advantageous. One commonly cited example of inter-­ governmental competition was the migration of affluent elderly people to Queensland following the abolition of death duties in that jurisdiction, thereby inducing other states to do the same. Although constructive in one sense, the states thereby lost access to a source of revenue requiring the imposition of higher rates of other taxes. Another feature, which has been characterised as both an advantage and a disadvantage, is what the British constitutional scholar James Bryce described as the opportunity federalism affords for experimentation in legislation and administration by individual polities within the federation. While this has been said to afford a choice between alternatives in the different approaches taken by state laws to social or economic issues, it will also often result in higher transaction costs from diversity and fragmentation in rules and regulations. The obvious and stated purpose of national uniform legislation is to achieve, as far as possible, consistency and harmonisation in common functional areas throughout Australia. That has been achieved using a number of different methodologies, v

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Foreword to National Uniform Legislation

including the enactment of legislation in one jurisdiction which is applied by other participating jurisdictions, the enactment of model legislation by each participating jurisdiction, and the referral of legislative power to the Commonwealth pursuant to s 51(xxxvii) of the Constitution. To this orthodox taxonomy, the learned author of this text adds ‘hybrid’ structures in which a scheme is achieved by a combination of these methodologies. Examples of this fourth category include the scheme for the conferral of powers on the Australian Crime Commission and road transport rules. Although the adoption of uniform legislation by the different subnational polities comprising the Australian land mass is not a new development, and in fact predated Federation, schemes of this nature have been enacted far more frequently in recent times. This development has been driven by the imperatives of microeconomic reform and cooperative federalism. The learned author of this text has undertaken, amongst other things, an informative study of the historical development of national uniform legislation in Australia. National, or at least multi-jurisdictional, schemes are now in place in a number of functional areas, including business names, competition policy, consumer credit protection, the governance of corporations, the admissibility and use of evidence in court proceedings, personal property securities, and occupational health and safety. National initiatives are notoriously difficult to implement because of the complexity of the federal bureaucracy, and because different levels of stakeholders have distinct constituencies, interests and perspectives. The recent proliferation of uniform schemes notwithstanding, this text is the first to conduct a data-based analysis of the processes by which national uniform legislation has been developed in the past, and how that development process can be improved to ensure a high level of uniformity, or at least to create a policy, operational and bureaucratic environment in which uniformity is more likely to be achieved. Central to that analysis is the identification and examination of the four (not necessarily mutually exclusive) models by which the 85 sets of uniform legislation which form the database for this text were developed and implemented, viz iterative development, the confluence of problem, policy and politics, pragmatic federalism, and the coalition of advocates with a shared policy belief. That analysis is illustrated by various case studies, and the treatment of each model concludes with guidance for law reformers, policymakers and legislative drafters. The learned author of this text is to be congratulated for approaching the analysis of national uniform legislation in a manner not previously undertaken. The analysis is not one limited to statutory interpretation or a simple enquiry into whether uniform legislation is interpreted uniformly in the various jurisdictions, although the case study involving the uniform evidence legislation suggests that true uniformity might be chimerical in that field. This analysis is a more ambitious undertaking in public policy theory, and will no doubt be of invaluable assistance to all of those involved in the development and implementation of uniform schemes. Chief Justice of the Northern Territory  The Hon Michael Grant AO Supreme Court Darwin, Australia April 2022

Foreword from the Parliamentary Counsel

Australia’s federal constitutional and political system means that there is a range of areas where States and Territories, sometimes in conjunction with the Commonwealth, enact national uniform legislation. The need for national uniform legislation ebbs and flows depending on a number of factors, including the political and legal environment and the needs of, and views expressed by, stakeholders and the broader community. However, since federation, the volume and complexity of national uniform legislation has evolved and continues to grow. At the beginning of federation, there were several sets of national uniform Acts. Now, the number of uniform legislative schemes approaches a hundred. As an example of the growth in volume and complexity of national uniform legislation, at the time of its enactment in 2001 the Corporations Act 2001 (Cth) comprised 4 volumes and totalled 1855 pages. In 2022, it comprises 7 volumes and has grown to 3948 pages. Given these circumstances, it is important to develop a common understanding of how to work with this legislation and to ensure the preparation and implementation of national uniform legislation underpinning national policy reforms achieves best practice, involving transparent, effective and efficient decision-making by all involved in these complex reforms. The Australasian Parliamentary Counsel’s Committee and legislative drafters generally are at the forefront of ensuring national uniform legislation is drafted in accordance with the Australian Constitution and the principles of Australian federalism. Policymakers, law reformers and legislative drafters must navigate ever-­ increasing complexity and uncertainty in the issues being examined and addressed, while engaging with a wide range of stakeholders, to ensure uniformity in the policy and legislative approach taken to national uniform legislation. They must also respond to the demands of a multifaceted debate among parliamentarians and other stakeholders with divergent perspectives, responding to diverse and sometimes irreconcilable differences between these stakeholders. The challenges involved in the development, implementation and interpretation of national uniform legislation means more work is required to assist all those involved in this work: whether for policymakers; lawyers, including legislative drafters; judges; and other stakeholders. This book is an important aid to those vii

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Foreword from the Parliamentary Counsel

working with or otherwise interested in national uniform legislation through providing definitions, conceptualising the practice, drawing models, discovering patterns and applying underlying theories. This is the first book to consider national uniform legislation as a body of law, a piece of research that has long been missing in today’s academic literature. NSW Parliamentary Counsel, Secretary Annette O’Callaghan Australasian Parliamentary Counsel’s Committee  Sydney, NSW, Australia First Parliamentary Counsel  Meredith Leigh Forrest, ACT, Australia

Contents

1

 Introduction to National Uniform Legislation��������������������������������������    1 1.1 Introduction��������������������������������������������������������������������������������������    1 1.2 Significance��������������������������������������������������������������������������������������    3 1.3 Practical and Conceptual Problems in the Light of Proliferation����������������������������������������������������������������������������������    7 1.4 Law-as-Data Methods for Examining the Database ������������������������    9 1.5 Introduction of the Main Models������������������������������������������������������   13 1.6 Structure of This Book����������������������������������������������������������������������   16 1.7 Conclusion����������������������������������������������������������������������������������������   17 References��������������������������������������������������������������������������������������������������   17

2

Definitions and Structures����������������������������������������������������������������������   23 2.1 Introduction��������������������������������������������������������������������������������������   23 2.2 Harmonisation and National Uniform Legislation ��������������������������   24 2.2.1 Terminology��������������������������������������������������������������������������   24 2.2.2 Definition of Harmonisation ������������������������������������������������   25 2.2.3 Definition of National Uniform Legislation ������������������������   28 2.3 Primary Structures����������������������������������������������������������������������������   30 2.3.1 Referred Legislation��������������������������������������������������������������   31 2.3.2 Applied Legislation��������������������������������������������������������������   32 2.3.3 Mirror Legislation����������������������������������������������������������������   33 2.3.4 Hybrid Structures������������������������������������������������������������������   35 2.4 Conclusion����������������������������������������������������������������������������������������   35 References��������������������������������������������������������������������������������������������������   36

3

 Historical Development of National Uniform Legislation��������������������   41 3.1 Introduction��������������������������������������������������������������������������������������   41 3.2 First Sets of Uniform Acts����������������������������������������������������������������   42 3.3 National Reforms Before and After the Second World War ������������   43 3.4 The Golden Era: The Rise and Transformation of Institutional Support for National Uniform Legislation ��������������   44 3.5 Bushfires and the COVID-19 Pandemic ������������������������������������������   51 ix

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3.6 Conclusion����������������������������������������������������������������������������������������   54 References��������������������������������������������������������������������������������������������������   55 4

Cooperative Federalism��������������������������������������������������������������������������   61 4.1 Introduction��������������������������������������������������������������������������������������   61 4.2 Distribution of Powers and Areas of the Law Requiring National Uniform Legislation ����������������������������������������������������������   62 4.3 Australian Federalism and Cooperative Federalism Theory������������   67 4.4 Conclusion����������������������������������������������������������������������������������������   71 References��������������������������������������������������������������������������������������������������   72

5

 Slow and Steady Uniform Legislation����������������������������������������������������   77 5.1 Introduction��������������������������������������������������������������������������������������   77 5.2 Iterative Developments ��������������������������������������������������������������������   78 5.3 Examples of Achieving Uniformity Through Iterative Developments������������������������������������������������������������������������������������   80 5.3.1 Corporations��������������������������������������������������������������������������   81 5.3.2 Business Names��������������������������������������������������������������������   83 5.3.3 Other Examples��������������������������������������������������������������������   84 5.4 Lessons for Law Reformers, Policymakers and Legislative Drafters ��������������������������������������������������������������������������������������������   88 5.4.1 No Haste�������������������������������������������������������������������������������   88 5.4.2 No Ultimate Uniformity��������������������������������������������������������   90 5.4.3 Differences Are Not a Failure of Harmonisation Attempts��������������������������������������������������������������������������������   91 5.5 Conclusion����������������������������������������������������������������������������������������   92 References��������������������������������������������������������������������������������������������������   93

6

 Fast and Furious Uniform Legislation ��������������������������������������������������   97 6.1 Introduction��������������������������������������������������������������������������������������   97 6.2 Multiple Streams Framework������������������������������������������������������������   98 6.3 Case Studies and Examples of Focusing Events������������������������������  100 6.3.1 Unplanned Focusing Events: Counterterrorism Legislation����������������������������������������������������������������������������  101 6.3.2 Semi-Planned Focusing Events: Elections and International Obligations������������������������������������������������  103 6.3.3 Flow-On Effects from Court Decisions or Legislation Changes ��������������������������������������������������������  105 6.4 Lessons for Law Reformers, Policymakers and Legislative Drafters ��������������������������������������������������������������������������������������������  105 6.4.1 Necessity and Urgency���������������������������������������������������������  106 6.4.2 Policy Vulnerabilities and Importance of National Regulators����������������������������������������������������������  106 6.4.3 National Regulators for Sustaining Uniformity and Refining Policies������������������������������������������������������������  107 6.5 Conclusion����������������������������������������������������������������������������������������  108 References��������������������������������������������������������������������������������������������������  109

Contents

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7

Pragmatic National Reforms������������������������������������������������������������������  113 7.1 Introduction��������������������������������������������������������������������������������������  114 7.2 Pragmatic Federalism������������������������������������������������������������������������  114 7.3 Examples of the Pragmatic Approach����������������������������������������������  115 7.3.1 Conferral of Jurisdiction ������������������������������������������������������  116 7.3.2 Skeletal Legislation��������������������������������������������������������������  116 7.3.3 Legislation for Resolving Isolated Problems������������������������  117 7.3.4 Constitutional Settlements����������������������������������������������������  118 7.3.5 Mutual Recognition��������������������������������������������������������������  119 7.4 Lessons for Law Reformers, Policymakers and Legislative Drafters ��������������������������������������������������������������������������������������������  121 7.4.1 Pragmatic Solution Must Be Agreed by All Parties��������������  121 7.4.2 Avoid Skeletal Legislation����������������������������������������������������  122 7.4.3 Pedantic Attention to Ensuring Sovereignty Is Not Encroached����������������������������������������������������������������������������  122 7.5 Conclusion����������������������������������������������������������������������������������������  123 References��������������������������������������������������������������������������������������������������  123

8

Ever-Failing Uniformity��������������������������������������������������������������������������  127 8.1 Introduction��������������������������������������������������������������������������������������  127 8.2 Advocacy Coalition Theory��������������������������������������������������������������  128 8.3 Examples of Harmonisation Attempts Heavily Affected by Advocacy Coalitions��������������������������������������������������������������������  130 8.3.1 Uniform Succession Laws: Cooperative Efforts with a Bottom-Up Design ����������������������������������������������������  131 8.3.2 Defamation: Unwillingness to Use a Top-Down Approach������������������������������������������������������������������������������  132 8.3.3 Unachievable Uniform Regulation of Road Rules and Surrogacy Provisions�����������������������������������������������������  133 8.4 Lessons for Law Reformers, Policymakers and Legislative Drafters ��������������������������������������������������������������������������������������������  135 8.4.1 Area of Law and Previous History����������������������������������������  135 8.4.2 Dual Positions Are the Hardest for Harmonisation Effort����  136 8.4.3 Electronic Registers as a Harmonisation Tool����������������������  137 8.5 Conclusion����������������������������������������������������������������������������������������  139 References��������������������������������������������������������������������������������������������������  140

9

 Judicial Interpretation of National Uniform Legislation ��������������������  145 9.1 Introduction��������������������������������������������������������������������������������������  145 9.2 The Main Rule: Desirability of Uniform Interpretation ������������������  146 9.3 Tribunals and Specialist Courts��������������������������������������������������������  150 9.4 Desirable Uniform Sentencing for Federal Offences������������������������  151 9.5 Slavishly Following the Precedent����������������������������������������������������  151 9.6 Precedent: Where the Decision Is ‘Plainly Wrong’��������������������������  152 9.7 Case Study: Divergent Interpretations of the Uniform Evidence Acts, Section 137 ��������������������������������������������������������������  155 9.8 Conclusion����������������������������������������������������������������������������������������  157 References��������������������������������������������������������������������������������������������������  158

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Contents

10 Conclusion  – Future National Reforms in the Age of Artificial Intelligence, Pandemics and New Federalism ��������������������������������������  161 10.1 Introduction������������������������������������������������������������������������������������  161 10.2 The Future – Covid, Intergovernmental Reforms and Technology ������������������������������������������������������������������������������  162 10.3 Beyond the Model – Catalysts for Future Harmonisation��������������  165 10.4 Conclusions������������������������������������������������������������������������������������  168 References��������������������������������������������������������������������������������������������������  169 Annexure – List of Acts ����������������������������������������������������������������������������������  171

About the Author

Dr Guzyal Hill  is a Senior Lecturer, Charles Darwin University, Australia. Guzyal brings a unique perspective as a researcher and legislative drafter. The impetus for this book stems from the experience of legislative drafting problems related to national uniform legislation. Guzyal researches and publishes in the areas of national uniform legislation, harmonisation in federation, federalism, law reform and ‘law as data methods’ in the context of legislation. Dr Hill is contributing to the ANZSOG/National Regulators Community of Practice as an Academic Adviser – ECR on the National Steering Committee.

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Abbreviations and Acronyms

ACCC ASIC AustLII Australian Constitution COAG EU PCC PCC Protocol UNCITRAL WW2

Australian Competition and Consumer Commission The Australian Securities and Investments Commission Australasian Legal Information Institute Constitution of the Commonwealth of Australia Council of Australian Governments European Union Parliamentary Counsel’s Committee Parliamentary Counsel’s Committee, Protocol on Drafting National Uniform Legislation (4th ed., 21 February 2018) United Nations Commission on International Trade Law World War II

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List of Figures

Fig. 1.1 Model linking national uniform legislation and public policy and federalist theories. The model was first published in Hill (2020) – copyright permission granted. This model represents updated model with the most up to date sets of uniform Acts published by the Australasian Parliamentary Counsel’s Committee�������������������������  14 Fig. 1.2 Model linking national uniform legislation and public policy and federalist theories with schematic representation of the path. The model was first published in Hill (2020) – copyright permission granted. This model represents redrawn model with the most up to date sets of uniform Acts published by the Australasian Parliamentary Counsel’s Committee (Constructed by author)������������������������������������������������������������������  15 Fig. 2.1 Concept map of harmonisation and national uniform legislation����������������������������������������������������������������������������������������  28 Fig. 2.2 Structures of national uniform legislation. (The model was first published in (Hill, 2019) – copyright permission granted. This model represents updated model with the most up to date sets of uniform Acts published by the Australasian Parliamentary Counsel’s Committee)�������������������������������������������������������������������������������������  30 Fig. 5.1 Increasing uniformity of corporations legislation through spontaneous harmonisation and three structures. (Constructed by the author)������������������������������������������������������������  83 Fig. 5.2 Typical trajectory of consecutive harmonisation through spontaneous harmonisation and two structures. (Constructed by the author)������������������������������������������������������������  85

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List of Figures

Fig. 10.1 Catalysts for change and the four paths to uniformity. The model was first published in Hill (2020) – copyright permission granted. (Constructed by author)����������������������������������  166

List of Table

Table 4.1 Distribution of sets of uniform Acts by area of law in LawLex Index�����������������������������������������������������������������������������  66

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Chapter 1

Introduction to National Uniform Legislation

Abstract National uniform legislation underpins major national reforms in Australia, such as the development of a national regime to aid victims of domestic violence, elder abuse and defamation, child protection and counterterrorism protection legislation, to name but a few. Generally, these reforms involve the modernisation of legislation in each Australian jurisdiction and harmonisation of laws across the Australian federation. Reforms of substantive law are contested, difficult and complex. Although national uniform legislation, as a complex legal phenomenon, has both advantages and disadvantages, it has become an inevitable occurrence in today’s federal legal landscape. The proliferation of national uniform legislation also means that more policymakers and legislative drafters will need to determine what ensures best practice, transparent, effective and efficient responses. It means that more policymakers and legislative drafters will need to establish the processes surrounding national reforms. Therefore, it is necessary to build a common conceptual understanding of these processes and to share this knowledge with those who will be involved in developing, drafting and interpreting legislation at various stages of complex national reforms. Public policy theories can assist in understanding how uniformity has been achieved with the goal of strengthening Australian cooperative federalism.

1.1 Introduction The avenue of uniform law has now been laid out … In the years ahead, it may well come to be the main traffic artery of Australian law. (Leach, 1963, p. 223)

National uniform legislation connects the federal distribution of powers enshrined in the Australian Constitution in 1901 (the Commonwealth of Australia Constitution Act, 1901) and the challenges and opportunities encountered by Australia today. Since the Australian federation, uniformity has only been achieved and sustained through constant debates regarding almost every national reform. National uniform legislation is now growing rapidly and underpins major national reforms in Australia, © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_1

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for example, developing a national regime for helping victims of domestic violence, money laundering, elder abuse, defamation and counterterrorism protection legislation. The reforms of substantive laws are contested, difficult, multifaceted and complex. Due to the complexities involved, developing national uniform legislation for federal political systems has been described as the ‘art of the impossible’ (Standing Committee on Legal and Constitutional Affairs [SCLCA], 2006, p. vii). This book aims to demystify these complexities and develop a conceptual framework for analysing new and existing national reforms in Australia. The ideas in this book build on and extend prior research conducted by the author (Hill, 2019, 2020, 2021, 2022). The most critical contemporary challenges do not respect the boundaries between federal jurisdictions. In Australia, the bushfires do not halt at the Western Australian border, the hackers do not limit their activities to the Northern Territory, and the social media posts published by New South Wales (NSW) residents do not affect only those residing in NSW (Chester, 2020). These are just several examples. There have been already calls for a national approach regarding the COVID-19 pandemic (Maloney & Maloney, 2020). During the pandemic, Australians witnessed the first border closures by state and territory governments in history. The High Court of Australia supported legitimacy of these closures (Palmer v Western Australia, 2021). However, there are now laudable calls for a national approach and principle-based policy under which jurisdictions can ‘slam the door’ (The AFR View, 2021) to visitors from other jurisdictions due to social, economic and, at times, physical interconnectedness (For example, the border town of Albury–Wodonga where the border between New South Wales and Victoria runs through the town). Similarly to other federations, Australia encounters many emerging policy challenges that require a national rather than state-based approach. Due to the growing volume and complexity of national uniform legislation, law reform agencies, the federal, state and territory governments and policy institutions have more, rather than less, to do. They are required to respond to debates between parties from divergent geographical, commercial and ideological backgrounds, who sometimes demonstrate irreconcilable differences in values and perspectives. Despite the significance of national uniform legislation and constant calls for evidence-­based policies and legislation, no critical examination of national uniform legislation in Australia has been conducted from the perspective of what works, rather than what does not work, when attempting to achieve a harmonised approach to regulations. There are close to 100 sets of uniform Acts. This includes 85 sets of uniform Acts comprising the database of the Parliamentary Counsel Committee’s discussed in Sect. 1.4 and other sets of uniform Acts that were either predecessors of those Acts or were not included in the database. As the body of cases, legislation and legal knowledge has grown and access to this knowledge has improved. A new imperative has emerged: to classify and organise this knowledge to achieve some clarity within the complex body of the law. This monograph aims to address this imperative. Thus, the key principles that have previously been subject to assumptions can be articulated with precision and expressed using models. This chapter introduces national uniform legislation as the product of the most significant national reforms and establishes national uniform legislation as a

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growing trend. It is likely that national uniform legislation will continue growing; this is clear, regardless of whether this growth can be attributed to the driving forces identified in Chap. 1 or the growth of legislation in general. This examination is conducted through ‘law-as-data’ methods. Uniform legislation is not a panacea for all the legal challenges currently encountered by federations. However, this book takes a step towards demystifying the many confusing factors that have obscured the underlying general principles. A working theory of ‘federal harmonisation’ enables ‘the art of the impossible’ to become a practical reality to strengthen Australian cooperative federalism (Wanna et  al., 2009). Unique insights derived from this research will offer the chance to achieve national reforms and sustain the achieved uniformity in more effective, efficient, transparent and evidence-based ways.

1.2 Significance Because of the tension between the need for a national response to a growing number of challenges and the need to respect the constitutional separation of legislative powers between the Australian, state, and territory jurisdictions, a study of national uniform legislation is significant today. National uniform legislation covers a wide range of topics, including cancer research, anti-doping cooperation in sports, and surrogacy laws. These are only a few of new developments that the Australian Federation’s founders were unaware of. Policymakers, legislators, and law reformers must, however, operate within the constraints of the Constitution, which divides law-making authority between the Australian and the states and territory parliaments. As a consequence, current challenges are addressed by regulations adopted through national uniform legislation. The seemingly impossible has been achieved through collaborative efforts between the Australian, state and territory governments, thanks to legislation that is ‘neither state nor federal but simply Australian’ (Dixon, 1965, p. 201). For instance, corporations legislation, in general, and director duties provisions, in particular, set trends in Australia, Singapore and Malaysia (Spamann, 2009, p. 1843). The single Australia-wide business names register has resulted in more than $300 annual savings for each Australian business (with ‘benefits of up to $1.5 billion over eight years to business, government and consumers’ (Australian Government, Treasury, 2012)) and has ensured a single, simple register that is easily accessible for all Australians; and Australian business owners do not have to manage numerous registers with varying level of security, transparency and quality of digital infrastructure. National uniform legislation is vital for achieving ‘objects that could be achieved by neither [jurisdiction] acting alone’ (R v Duncan, 1983, pp. 557–558). The advancement of the Australian federation would have been impeded without national uniform legislation (Hill, 2019, p. 82). Despite the fact that national uniform legislation ‘predates federation’ (Saunders, 2005, p.  296), a new impetus continues to grow due to the rapid technological

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changes, military and foreign influences threats, increased interconnectedness and fragility, globalisation of laws, economic integration, knowledge transfer and climate change. Within the globalised market, reforms and national answers to local and global challenges have been developed and reformed (Valotti & Turrini, 2013, p. 42). The wide range of purposes and goals of various sets of uniform Acts make it impossible to capture every specific advantage. The general benefits, however, can be contemplated. One of the main benefits of national uniform legislation is the logical convenience of having a single set of rules for the same processes throughout the entire country. Nonetheless, it also has a number of other advantages: a single set of rules for a homogeneous population; increased conformity to the rule of law; uniting legal talent in one pool; detailed scrutiny; and a uniform economic policy, which in Australia has been credited for prosperity and economic growth. Indeed, national uniform legislation has a number of benefits: reducing compliance costs and difficulties for businesses and individuals navigating the legal system, removing impediments for economic growth and cooperation, greater certainty for individuals and businesses with reduced costs, greater consistency across jurisdictions, more streamlined regulation (Standing Committee on Legal and Constitutional Affairs, 2006, pp. 5–8). Thus, it seems the consensus is ‘that there is a strong economic and “equality” case for regulatory uniformity … [which is], if anything, growing stronger’ (Edwards, 2014, p.  111). In addition to mitigating costs, uniform regulation can spread the benefits to the population equally. For example, Section 3 of the National Environment Protection Council (New South Wales) Act 1995 (NSW) states that the objective of the Act is to ensure that ‘people enjoy the benefit of equivalent protection from air, water or soil pollution and from noise, wherever they live in Australia’. Thus, by applying the same laws throughout all jurisdictions, uniform legislation can result in the equal distribution of benefits and the removal of obstacles for a mostly homogenous Australian population. Yet another benefit of harmonisation and national uniform legislation has been greater conformity to the rule of law, flowing from the predictability and coherence that national uniform legislation offers. Opeskin described it this way: All things equal, a greater degree of conformity to the rule of law is preferable to a lesser degree of conformity because it enables people to better plan their lives. It is for this reason that attempts to unify the substantive law and choice of law rules…. ought not to be disparaged. In particular, subject areas, individuals are able to make their plans in the knowledge that stable and predictable laws will apply to their actions, wherever a subsequent dispute might be litigated. (Opeskin, 1994, p. 18)

When laws are harmonised, the jurisdictions can speak with one voice in preparing materials to explain them to their citizens. With the information overload experienced by individuals and companies today, compliance with the law would have been facilitated by clearer legislation (Weaver, 2014). The development and drafting of centralised policies not only benefit from harmonisation but from the legal talent of various jurisdictions being brought together. This undoubtedly saves time and cost, given that legal reform and modernisation are generally immensely

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complicated and expensive, especially when carried out on a local level. Uniformity brings fairness and equality because each State receives a complete and high-quality legal text, regardless of its own resources and drafting talent. Also, flowing from uniformity is the benefit of additional resources being available to aid in the interpretation and application of legislation. For instance, there are numerous resources on the Internet explaining the harmonisation of Work Health and Safety laws, which can be accessed by all jurisdictions enacting these laws. In this case, national uniform legislation allows each State and Territory to tap into a larger resource base for interpreting and implementing the concepts expressed in the legislation. As Twomey and Withers observed, national policy requires intra-jurisdictional discussion, and that means the resulting policy receives ‘a great deal more scrutiny’ (2007, p. 15). Although, regardless of the extent of the parliamentary scrutiny, if legislation is technically deficient, any improvement would be difficult to achieve. Hypothetically, scrutiny should result in a better policy for the jurisdictions involved. As it allows a greater pool of talent to work towards legislation with a higher quality outcome that is up to date and modern. National uniform legislation has been credited with contributing to the high level of prosperity and economic growth that Australia has achieved over the past few decades (there are certainly other contributing factors like global growth, bank lending practices, political stability and others). In particular, the Business Council of Australia has connected the current prosperity of Australia with the national reforms of early 1980 (Brown, 2007). The majority of these reforms were achieved through national uniform legislation. In this sense, it has been possible to improve the efficiency of regulation through harmonisation. Similarly, ACCC Chairman, Rod Sims, in his speech outlining the benefits of competition policy reforms, related the wider relevance of these national reforms (made possible through national uniform legislation) to the economic development of Australia (Sims, 2013). These benefits come with initial costs of harmonisation. The common criticism of national uniform legislation includes the difficulties of harmonisation: (1) the jurisdictions might settle for the ‘lowest common denominator’ to ensure similarity, or vice versa (2) strive to an unachievable ‘high water mark’ that might not be suitable for an individual jurisdiction at the time. In addition, the future of harmonisation is never certain, one or more jurisdictions might decide to not enact legislation irrespective committing to the intergovernmental agreement and, thus, defeat its operation. Additionally, Parliaments might deny introducing the bill, as intergovernmental agreements are ultimately political pacts as examined in Sect. 4.3. Additionally, there are difficulties in achieving and sustaining harmonisation due to ‘erosion of harmonisation over time due to legislative divergence among jurisdictions’ (Standing Committee on Legal and Constitutional Affairs, 2006, pp. 9–10). As noted by the New Zealand Government: Differences between the legal systems of Australia and New Zealand are not a problem in themselves. The existence of such differences is the inevitable product of well-functioning democratic decision-making processes in each country, which reflect the preferences of stakeholders, and their effective voice in the law-making process.

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1  Introduction to National Uniform Legislation …identical or unified laws are not a goal in themselves. But where differences cause significant costs, and in particular where they hinder trade and commerce or impair the effectiveness of regulatory regimes, options for coordination to address those concerns need to be considered, and the benefits weighed against the associated costs. (NZG, Submission No. 23, pp. 2, 6 quoted in Standing Committee on Legal and Constitutional Affairs, 2006, p. 12)

In this context, national uniform legislation in Australia has become an imperative (Hill, 2019, p. 82) with the trend for proliferation (Hill & Garrick, 2021). In 1957, Chief Justice (CJ) Dixon observed: ‘In all or nearly all matters of private law there is no geographical reason why the law should be different in any part of Australia’ (Dixon & Shatwell, 1957, p. 340). Similarly, the benefit of harmonisation has been analysed as follows: ‘the costs and distress resulting from legal conflict can be mitigated by reducing differences in legal systems, so that the same or similar “rules of the game” apply to all participants regardless of physical location’ (Picker & Seidman, 2016, p.  39). Before the border closures due to pandemic, Australia used to be a ‘highly geographically mobile population’ (Hugo et al., 2016, p. 333), which was estimated to be the highest ‘residentially mobile’ nation in the world (Hugo et al., 2011, p. 11). There is an expectation that once the pandemic passes, the mobility will return to its normal – high level. Technological progress has expanded information sharing across the states and territories, contributing to a rise in the ‘national conscience’ (Australian Law Reform Commission [ALRC], 1979, p. ix). Yet, the states and territories gained a new power in managing the pandemic, changing the course away from previous centralisation forces (Hill & Garrick, 2022). Australia has also encountered a myriad of emerging policy challenges requiring a national approach. These have ranged from day-to-day personal security issues regarding domestic violence (Department of Human Services, 2016; Finance and Public Administration References Committee, 2015) to issues of national security relating to counterterrorism legislation (Australia New Zealand Counter-Terrorism Committee, 2017). The decision about harmonisation of each set of uniform Acts will be always made on its merits, taking into consideration the advantages and disadvantages of each harmonisation effort: Ultimately, the question of whether to harmonise or not to harmonise should be approached on a case-by-case basis and will always require a careful evaluation of the need, potential benefits, costs, and potential disadvantages. No single formula seeking to prescribe the appropriate conditions for legal harmonisation will be adequate for all situations, and the mechanism of harmonisation to be employed will also depend upon the particular circumstances at hand. (Standing Committee on Legal and Constitutional Affairs, 2006, p. 12)

The drafting of national uniform legislation has been referred to as ‘the art of the impossible’ (Standing Committee on Legal and Constitutional Affairs [SCLCA], 2006, p. vii), the question is – will it become even more impossible going forward or is it possible to predict and alleviate some practical and conceptual problems before embarking on the path of harmonisation?

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1.3 Practical and Conceptual Problems in the Light of Proliferation Harmonisation is not a new phenomenon. Rather, attempts at harmonisation ‘precede federation’ (Saunders, 2005, p. 296). One of the first examples occurred during the 1890s with the passing of the mirror standard time acts in NSW, Queensland and Victoria (1894), Tasmania and Western Australia (1895) and South Australia (1898) (Standard Time legislation, see Annexure). At that stage, Australia was borrowing extensively from the UK.  Fast-forward to today, and ‘the growth of legislation appears to have reached almost exponential levels’ (McHugh, 1995, p. 37). Crawford (2020) provided strong evidence for the growth of legislation in the ‘age of statutes’ (p. 1). Thus, faced with the pressures of the modern world, Australia will encounter more problems on a global scale. Australia is likely to respond to those challenges with more reforms on the national level, which means that more national uniform legislation will be developed and drafted. The growth of national uniform legislation means that the problems that occurred on a smaller scale (when there was less national uniform legislation) will also occur on a larger scale with more sets of national uniform Acts. Due to the inevitability of national proliferation of uniform legislation as a powerful tool for future harmonisation and law reform, the government, businesses and individuals will have to find ways to work with it on a deeper level. The proliferation of national uniform legislation also means that more policymakers and legislative drafters will need to determine what ensures transparent, effective and efficient responses consistently with best practices. It also means that more policymakers and legislative drafters will need to establish the processes surrounding national reforms. The way to do this is by building a common conceptual understanding of these processes to share with those who will be involved in developing, drafting, enforcing and interpreting legislation at various stages of complex reforms. Additionally, developing national uniform legislation has never been the sole responsibility of a single party, institution or jurisdiction. Thus, it is important to understand the broad framework of sustainable uniform legislation to deliver optimal policy outcomes (Brown, 2012, 2016). Developing and drafting sustainable national uniform legislation requires sharing different expert, technical and community knowledge and experiences. There is a need to build a common understanding and create opportunities to overcome knowledge deficiencies and institutional silos (Brown & Bellamy, 2007, p. 26). The inherent complexity surrounding national uniform legislation and its sustainable uniformity requires a conceptual simplification to guide research, enable communication among scholars and practitioners and develop effective decision-making strategies. The development and drafting of national uniform legislation are riddled with practical and conceptual problems, requiring an enormous effort. Windholz (2013) warned that ‘harmonisation initiatives are complex, highly contested and, as with all areas of social regulation, involve difficult trade-offs between competing social and economic values and interests producing both winners and losers’ (p. 1). However,

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even if national uniform legislation is drafted, it is not always guaranteed that all jurisdictions will implement the legislation or that it will remain uniform into the future. The stated objective of national uniform legislation is clear. Nevertheless, there are multiple factors that make it difficult to achieve and sustain uniformity. Although intergovernmental agreements can secure national uniform legislation, these agreements do not assure sustainable uniformity, timely enactment or even enactment at all. Ultimately, the principle of parliamentary supremacy allows the states and territories to amend and repeal legislation, including national uniform legislation. For example, notwithstanding the signed intergovernmental agreement on Workplace Health and Safety harmonisation, Victoria refused to enact the legislation (Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, 2008). On 23 May 2012, the Victorian Assistant Treasurer, Rich-Phillips, announced in Parliament: ‘We will not implement the model the Commonwealth is proposing. We have what is recognised as a best practice here in Victoria, and we will stay with best practice’ (Victoria, 2012, p. 2619). Initially, there were also doubts about whether Western Australia would support harmonisation, contrary to the intergovernmental agreement. However, after conducting its own impact assessment, Western Australia confirmed its commitment to implementing these reforms 5 years later, in July 2017 (Johnston, 2017). With the Work Health and Safety Act 2020 (WA) now enacted and set to come into effect in 2022. In Victoria, there were no effective legal mechanisms to enforce the state’s obligations under the intergovernmental agreement because parliamentary supremacy allowed the states and territories to implement (or not implement) their own legislation, including national uniform legislation. Intergovernmental agreements are not enforceable as a matter of law (South Australia v The Commonwealth, 1962; PJ Magennis Pty Ltd v The Commonwealth, 1949, p. 409). In 1977, the Australian Law Reform Commission (ALRC) (1977) recommended. harmonising the regulation of human organ donation. Its report contained the model law. As a result of this recommendation, the states passed the model human tissue acts over the next decade (Human tissue legislation, see Annexure). However, foregoing the opportunity for uniformity, Western Australia chose not to include one of the ALRC’s central recommendations concerning the definition of death. During the next few years, the differences between the legislation of the different states multiplied and became so significant that the ALRC once again recommended that the area be harmonised (ALRC, 2003, Recommendations 19–1 and 19–2, p. 524). This book does not attempt to argue that uniformity is normatively beneficial under all circumstances. However, achieving and sustaining uniformity is vital to maintaining congruent national policies. The reasons for sustaining uniformity may be divided into two categories. The first is the effectiveness and efficiency of government actions. Achieving uniformity in a federation requires major government resources, including extensive research, protracted negotiations, fierce lobbying and legislative drafting and enacting (That is not to say that in unitary States, government reforms can avoid overlap and duplication. As Carter warns, in New Zealand,

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if law reform is non-systematic and uncoordinated, it can also lead to overlap and duplication between the reform agencies (Carter and Burrows, 2021, p. 47). Thus, there is value in achieving longstanding and stable legislation that can be maintained at a pace commensurate with the accelerated changes in society. The second reason relates to the sound benefits of national uniform legislation and, more specifically, each set of uniform Acts. The benefits derived from the Acts are individual, but they can quickly dissipate when uniformity is lost. For example, for construction security of payments legislation, harmonisation reduces ‘the cost of businesses moving between jurisdictions and operating in different jurisdictions’ (Cole & Royal Commission into the Building and Construction Industry [RCBCI], 2003, p. 255). This can minimise duplication and mean that ‘the costs of building are not inflated in those states or territories where there is a higher risk that subcontractors will not get paid’ (Cole & RCBCI, 2003, p. 255). For work health and safety legislation, harmonisation establishes fair and equal protection for workers across Australia. With electronic commerce law reforms, the benefits of harmonising include improving accessibility and certainty, enabling the ‘simplification and removal of technicality’, ‘setting standards for an appropriate conduct’, ‘supporting innovation’, ‘maximising participation in the digital economy’, ‘increased protection for small and medium businesses’, ‘increased trade between the states and territories’ and ‘bringing contract law in line with international norms’, thereby removing barriers to international trade (Cole & RCBCI, 2003, pp. 36). Therefore, the sustainable uniformity of national uniform legislation is an important consideration. Thus, national uniform legislation is an important aspect of the federation, but harmonisation, as a process within the federation (and national uniform legislation as a result), is often complex and riddled with uncertainty. Sometimes, controversial topics lead to unsustainable national uniform legislation. Without a clear understanding of the major factors involved with sustaining uniformity, key problems are likely to continue and curtail government efforts to sustain the results of valuable national reforms. Therefore, there is a need for critical academic attention focused on understanding how uniformity is achieved and sustained. Greater understanding should clarify the processes of harmonisation. The inherent complexity of developing and drafting national uniform legislation and its sustainable uniformity requires conceptual simplification to guide research, enable communication among scholars and practitioners and develop effective decision-making strategies.

1.4 Law-as-Data Methods for Examining the Database Public policy and federalist theories study the way governments operate and what happens before and after legislation is introduced to parliaments, viewing legislation in a macro system. In contrast, lawyers are considering legislation through doctrinal methods, section by section, dissecting the meaning through almost micro analysis.

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The link between the macro-approaches to national uniform legislation as studied with in those theories and a micro approach that is more familiar to legislative drafters and policymakers working with a particular set of uniform Acts is missing. This field needs to be adequately analysed. Accordingly, one must determine what factors affect sustainable uniformity in national uniform legislation and whether federalist and public policy theories can explain why uniformity is achievable for some sets of uniform Acts and not others. This book contends that although every set of national uniform legislation is unique, the sets of uniform Acts have some common factors that affect achievement of this uniformity. Identifying these factors and applying federalist and public policy theories to explain how sustainable uniformity can be achieved offers valuable insights. These insights are expected to help policymakers, law reformers and legislative drafters overcome the uncertainty of sustaining uniformity and developing strategic directions for harmonisation. They are important for three principal reasons: (1) they are adding certainty to complex decisions regarding the sustainable uniformity of future national uniform legislation through evidencebased policy; (2) they are contributing to the effectiveness, efficiency and, most importantly, transparency of national reforms; and (3) they are allowing jurisdictions to learn from the harmonisation processes of close to 100 sets of uniform Acts. These insights are useful for existing harmonisation projects and harmonisation in novel areas of the law or the regulation of novel phenomena. Decker (2014) stressed that modern governments are in the ‘midst of [a] data tsunami in public management’ (p. 258). In 1897, Holmes predicted that ‘for the rational study of the law, the black-letter man [sic] may be the man of the present, but a man of the future is the man of statistics and the master of economics’ (Wendell, 1897, p. 469). In Australia, however, legal experts have mainly neglected the intersection between law and statistics. Even as technological changes have ‘invigorated the formerly dormant field’ (Katz, 2013, p. 936). Changes to information and technology have produced a renascence of empiricism in social science, and data analytics has been widely used in business (Schoenherr & Speier-Pero, 2015), health research (Alemayehu & Berger, 2016; Van Poucke et al., 2016) and emergency responses (Fosso Wamba et al., 2012). Lawyers, particularly policymakers and legislators, can take advantage of these developments (Jarmin & O’Hara, 2016; Lane, 2016) by incorporating technology to assist in making complex decisions (Hill, 2021). Introducing evidence into the decision-making process partially resolves the issues related to the ‘inherently fluid and ambiguous’ (Adams et al., 2015, p. 107) policymaking system. Head (2015) noted that ‘policy-driven evidence is an inevitable part of democratic debate’ (p. 475). However, policymakers usually make decisions under uncertain and ambiguous circumstances, basing their decisions on the currently ‘available evidence’ (Head, 2015, p.  474). Thus, although the literature supports evidence-­ based policymaking, De Marchi et al. (2016) indicated that it is not an easy task, asserting that ‘supporting the design, implementation and assessment of public policies is such a hard problem’ (p.  15). Despite these difficulties, there have been demands for a greater emphasis on evidence-based substantive policymaking (Banks, 2009). Banks (2009) observed that ‘without evidence, policymakers must

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fall back on intuition, ideology, or conventional wisdom, or at best, theory alone, and many policy decisions have indeed been made in those ways’ (p. 110). Even though evidence-based knowledge and decision-making are finally being applied to policy content (Alemayehu & Berger, 2016), empirical research on the process of implementing policies is still lacking. As a result, there is a knowledge vacuum regarding evidence-based methods to harmonisation. Recent advances in law-as-data technologies have opened a new era of governing based on evidence. The national reform and harmonisation processes in Australia are yet to benefit from this new development. Policymakers are likely to benefit from this development because even with the most experienced professionals, the ‘ability to make sound judgments takes years of practice to develop and a lifetime to master’ (Stevenson & Wagoner, 2015, p. 1345) and even after the years of experience, the judgment can be obscured or skewed by the relentless changes of the seemingly familiar terrain. The evidence-based approach to the process of harmonisation can help turning ‘data into insights for better’ decision-making (Dargam et al., 2015, p. 3). The law-as-data movement invites ‘lawyers to make a fundamental change[s] in their approach to the law itself by looking to statistical patterns, predictors, and correlations’ (Stevenson & Wagoner, 2015, p. 1342). Stevenson and Wagoner (2015) concluded that ‘considering what is at stake, it seems imprudent to rely on experience, intuition, or instinct alone in predicting the path of the law … however, lawyers are not entirely to blame’ (p. 1347). In other words, complex decisions must not be subjected to a process of trial and error. Australia currently offers a unique environment in which such studies can be conducted empirically. Just a few several years ago, this kind of study (and, more specifically, this book) would not have been possible. With advances in technology, the increased availability of data and the incredible work of the Parliamentary Counsel’s Committee (PCC), law reform commissions, Productivity Commission and other bodies, this research can now be carried out. Decision-making in federations has been criticised for its ‘opaque’ qualities (Phillimore & Arklay, 2015). Saunders highlighted the need for transparency, emphasising the harm caused by the ‘opaque intergovernmental decision-making processes’ in which transparency and accountability are diminished (Saunders & Crommelin, 2015; Saunders & Foster, 2014). Evidence-based models can add objectivity through numbers and have the potential to bring transparency into decision-­making. There is a counterargument about the appropriateness of basing new decisions on past evidence or precedents. However, even if the future does not depend on the past, when the complexity of a phenomenon ‘outruns [the] brain’s capacity’, ‘model-based knowing’ can be a reliable tool (Weinberger, 2014, p. 130). Chapter 2 demonstrates that there is no straightforward answer to what constitutes and does not constitute national uniform legislation. Therefore, the research for this book relied on the work conducted by the Parliamentary Counsel’s Committee which includes Protocol on Drafting National Uniform Legislation (the Protocol) (PCC, 2018) and the database of national uniform legislation. The database first appeared as an Appendix to the first edition of the Protocol (PCC, 2007).

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The current database of national uniform legislation is contained in Table 1 titled ‘Australian national uniform law schemes and associated legislation of participating jurisdictions’ as updated in November 2020 (PCC, 2020) on PCC website. When the database contained old and new scheme of the same uniform Acts, these occurrences were merged and counted as one. The scheme relating to unexplained wealth was excluded due to insufficient data. This resulted in examination of 85 sets of uniform Acts and grouping those sets into categories to discover the links with the relevant public policy and federalism theories. Others have compiled various sets databases of uniform Acts in several publications (Department of the Prime Minister and Cabinet, 2014, Appendix C; SCLCA, 2006; TimeBase, n.d.). However, none of these compilations has matched the breadth, recency and accuracy of the PCC’s database of national uniform legislation. For scientific rigour, it must be mentioned that although the database is comprehensive, it is not exhaustive. The PCC has a specific procedure for adding the Acts into the Protocol, and some earlier Acts were not included, for example, the sale of goods, partnership, commercial leases legislation, Acts interpretation and Torrens title Acts (see Annexure). Nevertheless, the early manifestations of national uniform legislation were harmonised. This was not due to the Attorney-Generals of the different states or similar bodies reaching a consensus or agreeing on a national approach, which is how national uniform legislation is currently developed and drafted. Rather, a national uniform approach was implemented based on the pragmatic political realities of the time. In some cases, this meant the UK’s model was implemented with a certain level of uniformity as a consequence (See Chap. 3 for examples of using UK models in Australian legislation). A major benefit of the law-as-data methods is that they provide convenience ‘in simplifying and reducing large amounts of data into organised segments’ (Marvasti, 2004, p. 91). The advantages of obtaining a larger picture of harmonisation were, to an extent, at the expense of some nuances. This loss of depth was addressed by supplementing the findings with case studies where relevant. Nevertheless, some factors might have been unidentified and not measured. This creates new opportunities for future research on this topic. The approach taken in this book generalises the data from 85 sets of uniform Acts by identifying the common themes and patterns and drawing conclusions from the observations. The database model was developed through content analysis and law-as-data methods. Content analysis was used for data collection, and statistical analysis of simple frequencies was used to analyse the results (Hill, 2020). However, the data collection and initial data analysis were inductively treated because it is important to interpret data with as few preconceived ideas as possible to allow the ‘data to speak for itself’ (Stevenson & Wagoner, 2015, p. 1352). The public policy theories were then applied to the data. This approach has the benefit of being grounded in empirical evidence from the first study of the database of national uniform legislation as a body of law. The limitation of

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reductivism is that a complex reality is addressed through an abstract model. Therefore, there is a degree of reductivism in this study. The model is not allencompassing but rather a tool from the empirical data and analysis. The limitations are not unique to this specific model but are more generally central to academic, public policy and legal inquiries (Geyer & Cairney, 2015). The use of multiple data collection methods supplemented by case studies adds to the depth and credibility of the findings. Inductive and deductive analyses were conducted using a theoretical framework to organise the data.

1.5 Introduction of the Main Models The model depicted in Fig. 1.1 will be examined in detail throughout this book. For the purposes of introducing the model, it is important to note that the macro-­ approach of law-as-data for analysing 85 sets of uniform Acts has helped identify four discernible links with theory to explain achieving and sustaining uniformity through national uniform legislation: (1) the ‘incrementalism and policy cycle’ model explains harmonisation that may take decades because policies are developed incrementally with each cycle, bringing increased sustainable uniformity (30 sets of Acts); (2) the ‘multiple streams’ framework applies where legislation emerges as sustainably uniform from the outset due to an ‘open policy window’ that allows problem, policy and political streams to merge (18 sets of Acts); (3) ‘pragmatic federalism’ solutions, such as skeletal legislation and the conferral of powers, are developed during interjurisdictional negotiations when uniformity is required but particularly difficult to achieve (14 sets of Acts); and (4) the ‘advocacy coalition’ framework, which explains situations where jurisdictions hold firm views about retaining diversity, effectively blocking sustainable uniformity with unilateral amendments (23 sets of Acts). National uniform legislation can be complex and technical because it is required to address national reforms. Therefore, it is important to use multiple theoretical lenses for the super-synthesis, complementary and contradictory approaches to studying public policies (Cairney, 2013, pp. 14–15). Additionally, a new body of research is emerging, connecting three frameworks discussed in this book (Howlett et al., 2014, p. 101). Howlett et al. (2014) argued that the ‘combination of elements from each model can advance’ policy thinking (p. 67). The suggestion is that there is a possibility for a conceptual convergence (John, 2012; Howlett et  al., 2017), combining the frameworks when ‘suitable and appropriate, rather than seeing them as mutually exclusive’ (Howlett et al., 2014, p. 431), while warning us that it is not a ‘formal model of everything’ (Howlett et al., 2014, p. 432). However, this theory of convergence is equivocal and has not yet been sufficiently developed and tested to be of use in this research. There is some criticism stating that producing a theory

1  Introduction to National Uniform Legislation

14

Iteractive Cyclic Development (30 sets)

Multiple Streams Framework (18 sets)

National Uniform Legislation

Pragmatic Federalism (14 Sets) Advocacy Coalition Framework (23 sets)

Fig. 1.1  Model linking national uniform legislation and public policy and federalist theories. The model was first published in Hill (2020) – copyright permission granted. This model represents updated model with the most up to date sets of uniform Acts published by the Australasian Parliamentary Counsel’s Committee

applicable to public policies as a whole is not an exercise that should be attempted because the reality is too complex with many exceptions that do not allow for a parsimonious explanation (see Smith & Larimer, 2009, pp.  15–17). Cairney and Heikkila (2014, p. 363) argued there is some value in at least comparing the frameworks and theories that have been developed independently and at times contradict each other. They warned that ‘theoretical consolidation is in its infancy and may yet be subject to tantrums and teething troubles’ (Cairney & Heikkila, 2014, p. 363). Therefore, this research works within three separate frameworks to examine multiple perspectives and the Australian federal reality of cooperative federalism with some pragmatic tendencies.

1.5  Introduction of the Main Models

15

The model depicted in Fig. 1.2 depicts the practical implications for the theoretical links by schematically representing the path that awaits legislation that is linked to a particular theory. This book has considered the meaning of successful national uniform legislation by synthesising the findings and adopting Rutter et al.’s (2012, p. 7) definition of successful policy. The most successful sets of uniform Acts have been identified as those that are enacted by all or the vast majority of Australian jurisdictions and that can survive a change of government in their uniform, not identical, form with subsequent refinements and policy developments or those that ‘remove the issue from the policy agenda’ by resolving the legal problem the legislation intended to address.

National Uniform Legislation

Decades Through Iterative Cyclic Development

Elevation to Uniformity Multiple Streams Framework

Shortcut Due to Pragmatic Solutions

Unsustainable Uniformity Due to Advocacy Coalitions

Fig. 1.2  Model linking national uniform legislation and public policy and federalist theories with schematic representation of the path. The model was first published in Hill (2020)  – copyright permission granted. This model represents redrawn model with the most up to date sets of uniform Acts published by the Australasian Parliamentary Counsel’s Committee. (Constructed by author)

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1.6 Structure of This Book Rather than focusing on why an individual set of uniform Acts has not achieved a high level of uniformity or has diverged through unilateral amendments, this book examines national uniform legislation by analysing the relevant factors. This approach allows the common patterns affecting uniformity to be identified. Such work has not been previously conducted in Australia. By transforming a vast quantity of complex data into better-understood categories of uniform Acts, this book is useful for policymakers, reformers, legislative drafters, students and the wider audience of legal practitioners working with harmonised legislation in federations. This book also offers practical outcomes. It develops several models that focus on ‘how to’ rather than ‘black-letter’ legal approaches to particular Acts. Therefore, this book will be the first to critically examine the process by which national uniform legislation has been developed in the past – across various areas of law – and how this process can be improved in the future. The key conceptual barrier to understanding uniformity and national uniform legislation is the diverse associated terminology. This creates the problem of identifying what national uniform legislation is and is not. Therefore, Chap. 2 clarifies the definition of national uniform legislation. Chapter 3 focuses on the historical development of harmonising legislation. Chapter 4 provides the rationale for the necessity of national uniform legislation through federalist theories and seeking a national response to a growing number of challenges while respecting the constitutional separation of legislative powers between the Australian, state and territory governments. Chapters 5, 6, 7, and 8 detail the three main directions for achieving national uniform legislation and one direction that blocks the development of national uniform legislation. Slow and steady national uniform legislation is the most common category of uniform Acts. Legislation in this category underwent iterative development through cycles of harmonisation, as examined in Chap. 5. However, studies have suggested that, during crisis, political or economic upheaval or other ‘grand opportunities’, incremental policy development cannot be applied. Thus, the main argument in Chap. 6 is that in these cases, Kingdon’s multiple streams framework presents an appropriate fit. Third path to achieving national uniform legislation can be impacted by ‘pragmatic federalism’ where the problem, rather than an underlying theory, shapes the national uniform solution, as discussed in Chap. 7. In some cases, regardless of how much effort has been exerted to create uniformity, all attempts fail after the lower levels of uniformity have been achieved and that is explained by strong advocacy coalitions in Chap. 8. Ultimately, national uniform legislation is interpreted by the courts. Chapter 9 analyses the cases of judicial interpretation. The main principle of judicial interpretation of national uniform legislation is based on the desirability of preserving the uniformity of judicial interpretation. Several High Court decisions have stressed the importance of this principle, which has been reiterated numerous times by the supreme courts of various jurisdictions.

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The trends of future national reforms in the age of artificial intelligence (AI), pandemics and new federalism are explored in Chap. 10. Overall, as stressed in Chap. 10, the book aims to build a common understanding and create opportunities to overcome knowledge deficiencies and institutional silos. The inherent complexity surrounding national uniform legislation requires a conceptual simplification to guide research, enable communication among scholars and practitioners and develop effective decision-making strategies. This book simplifies and gives meaning to the general principles and underlying theory of national uniform legislation.

1.7 Conclusion As with any complex phenomena, harmonisation and national uniform legislation can be considered negatively or positively. The discussion must concern a specific set of Acts and can be progressed only to a certain limit if discussed in abstract terms. In summation, national uniform legislation is not perfect or fundamentally flawed. There have been cases where the need for consistency throughout the country has outweighed the need for diversity. There have been other cases where innovation and the simultaneous development of novel legal regimes should have been encouraged locally. It is difficult to quantify the price of harmonisation vis-a-vis the price of non-harmonisation. When a legal area is proposed for harmonisation, harmonisation must be effective and efficient to produce sustainable uniformity. There is a need for an empirically tested framework to help understand the factors affecting sustainable uniformity. The benefit of using these methods includes transparency, with a solid grounding in evidence and objectivity. The limitation includes the loss of detail to gain a bigger picture. This limitation is addressed by supplementing the book with case studies where relevant. This research can enable transparent, evidence-based decisions in a federation’s harmonisation to progress regulatory best practices and achieve more reliable and sustainable results. It provides a plausible explanation and gives meaning to past and current events and factors. It helps identify the factors that indicate the prospects for the success of national reforms. National uniform legislation should be assessed through objective parameters, considering finite government resources. However, the first task is to define what national uniform legislation is and how it is distinguished from harmonisation.

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Chapter 2

Definitions and Structures

Abstract  The key conceptual barrier to understanding uniformity and national uniform legislation is the diverse terminology. This creates the problem of identifying exactly what national uniform legislation is and is not. National uniform legislation is alternatively defined as either: (1) legislation drafted as agreed on by a ministerial council or terms of an intergovernmental agreement or (2) a product of harmonisation or legislation developed and drafted in substantially similar terms. However, the term ‘harmonisation’ is ambiguous. What is considered ‘uniform’ is similarly ambiguous and amorphous. Thus, this chapter defines the terms ‘national uniform legislation’ and ‘harmonisation’; and provides some delineation between the levels of uniformity applicable to national uniform legislation through a model. The main distinction lies in delineation of ‘intended harmonisation’ as a deliberate process through which Australian jurisdictions achieve uniformity as agreed upon by a ministerial council or according to the terms of an intergovernmental agreement and ‘spontaneous harmonisation’, in contrast, as a process through which Australian jurisdictions, in a voluntary, unprompted and uncoordinated way, harmonise the legal rules. This chapter also provides definitions of the primary structures of national uniform legislation: mirror, applied and referred. If required, legislation can be implemented with different structures across jurisdictions, forming a hybrid structure.

2.1 Introduction The conceptual barrier to understanding harmonisation in a federation and national uniform legislation is its diverse terminology and the ambiguity of existing definitions. This leads to the problem of identifying what harmonisation and national uniform legislation is and is not. What is considered ‘uniform’ is ambiguous and amorphous. This chapter reconciles the controversial definitions of harmonisation and national uniform legislation to simplify and clarify these fundamental aspects and build a conceptual map for understanding the interrelation between legal

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diffusion, spontaneous harmonisation, intended harmonisation and national uniform legislation. After identifying a definition of national uniform legislation, this chapter examines the primary structures of national uniform legislation: referred, applied and mirror. These structures can be used by jurisdictions as a single structure across several jurisdictions or can be developed as a hybrid, with some jurisdictions drafting legislation in one structure and others in another. Policymakers, law reformers and legislative drafters cannot be mistaken—a referred structure does not imply absolute uniformity, and a mirror structure does not mean that legislation is low in uniformity.

2.2 Harmonisation and National Uniform Legislation 2.2.1 Terminology The first conceptual complexity encountered by policymakers, law reformers and legislative drafters is the diverse terminology used to identify national uniform legislation. The following terms have been used in the literature: ‘uniform law’, ‘uniform legislation’, ‘national law’ (e.g., the Education and Care Services National Law Act 2010 (Vic), n.d.), ‘Commonwealth–state cooperative schemes’, ‘national laws schemes’ (Jacobs, 2011) and ‘national scheme legislation’ (Soundias, 2008). This research does not use ‘national uniform law’ to avoid ambiguity because the word ‘law’ can also refer to common law, not just legislation. The High Court of Australia proclaimed that ‘there is but one common law in Australia’ (Lange v Australian Broadcasting Corporation, 1997, p. 563). Thus, the question of uniformity is less relevant within Australia’s common-law domain, as discussed in Chap. 9.The terms ‘national uniform legislation’ and ‘national laws schemes’ or ‘national scheme legislation’ have been used interchangeably. For instance, the Standing Committee on Uniform Legislation and Statutes Review (2011) of the Legislative Council of Western Australia defined ‘uniform legislation’ as ‘bills that ratify or give effect to a bilateral or multilateral intergovernmental agreement’ intended, because of ‘its subject matter, [to] introduce a uniform scheme or uniform laws throughout the Commonwealth’ (p.  12). Ledda (2001) used the term ‘Commonwealth–state cooperative schemes’ to describe ‘a scheme in which each participating jurisdiction promulgates legislation to facilitate the application of a standard set of legislative provisions in that jurisdiction to regulate a matter of common concern’ (p. 2). According to these definitions, both have the same meaning. However, there is an important distinction between the terms. A ‘uniform scheme’ is a framework that includes policies, intergovernmental agreements and other components that allow several jurisdictions to enact national uniform legislation. The word ‘scheme’ may include national uniform legislation, but not necessarily. For example, a scheme may involve introducing road rules or a construction code that

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only involves delegated legislation. In this context, the term ‘national uniform legislation’ is narrower than the word ‘scheme’ and more precise for this research, which only examines primary legislation. Therefore, the term ‘national uniform legislation’ is adopted for this book.

2.2.2 Definition of Harmonisation The term harmonisation ‘is used very loosely’ (Bartel & Stone, 2011, p. 308), ranging from unification to being completely identical (Goldring, 1978) to ‘legislative similarity or complementarity’ (Cuming, 1985, p. 2). There is also a humorous yet realistic definition of harmonisation: ‘it means what governments like it to mean’ (Farrar, 1989, p. 446). When Boodman (1991) attempted to define harmonisation in the Canadian context, he came to the following conclusion: ‘the striking feature of these descriptions of harmonisation is their utterly flexible and indeterminable nature’ (p. 706). There is a perspective that the ambiguous definitions of harmonisation are intentional and must be given a broad and all-inclusive meaning. Collinge justified ambiguity, asserting that it allows ‘significant discretion’ for people and courts to interpret ‘what harmonisation requires in each particular situation’ (Collinge, 1987, p. 61). Opeskin (1998, p. 338) opined that the term ‘unification’ was historically used to reflect a striving for unity, whereas ‘harmonisation’ is the term currently used to reflect the unattainable nature of complete uniformity, reflecting the less ambitious goals of the process. He concluded that although the use of the two terms was debatable, in his discussion of public health law reform, he used ‘harmonisation’ to describe ‘any measure that promotes the legal integration of processes for the unification of law, but also includes processes that hinge on legislative complementarity and coordination rather than on legislative identity’ (Opeskin, 1998, p.  339). However, for this research, ambiguity is not acceptable, and some clear boundaries must be delineated. In addition to the ambiguous definition of harmonisation, there is no clear definition of the relationships between harmonisation and national uniform legislation. In some cases, the two notions are equated. In a report issued in 2004, the Standing Committee on Uniform Legislation and General Purposes of the Western Australian Legislative Council treated harmonisation and uniform legislation as synonymous: ‘some collaborative arrangements may not necessarily involve identical (Farina, 2004, p. 1) or even common legislative elements at all. Indeed, it has been suggested that the phrase “harmonisation in law” is also an appropriate description of uniform legislation’ (pp.  9–10). Adopting this view would have been confusing. A more plausible approach is to view harmonisation as a dynamic process resulting in the uniformity of legislation, standards or other policy types. This view is also more prevalent. Andersen (2007) defined the uniformity of laws and the harmonisation of laws. She defined harmonisation as ‘a collective descriptor in legal disciplines for all attempts to bring about some form of legal similarity, including uniformity’ and

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uniform laws (Andersen, 2007, p.  15). Andersen (2007) concluded that ‘uniform law’ is a goal and ‘harmonisation is a process’ (p. 15). Laws that have a ‘high degree of similarity in the effect that they produce on a given legal phenomenon could be labelled “uniform” ’. Glenn (2003) made the same conclusion, stating that the harmonisation process is evolutionary, resulting in ever greater levels of law uniformity. Thus, harmonisation is the process, and national uniform legislation is the result of this process.To conclude, ‘harmonisation’—in a narrow sense—is a process that brings either uniformity, in the context of national uniform legislation, or similarity, in a wider sense. Similarity refers to the outcome of bringing systems together or eliminating differences. It may result in uniform codes or administrative practices— not legislation—or a regime with mutual recognition. Thus, harmonisation is a wider concept than just a process producing national uniform legislation. The following question arises: in what situations can it be said that the phenomenon taking place cannot be called harmonisation and that the law is not uniform? Some academics have contrasted harmonisation with legal convergence or diffusion. Twining (2004) wrote that ‘the study of [the] diffusion of law has proceeded under many labels including reception, transplants, spread, expansion, transfer, exports and imports, imposition, circulation, transmigration, transposition and transfrontier mobility of law’ (pp. 4–5). In addition to these terms, scholars have used ‘convergence’ (van den Berghe, 2002, p. 1) and ‘approximation’ (Kerameus, 2003, p. 443) in the same context. It is suggested that, unlike the intentional effort associated with harmonisation, the main trait of legal convergence or diffusion is voluntariness. Garoupa and Ogus defined convergence as ‘the coming together of legal systems, concepts, principles, or norms’(Garoupa & Ogus, 2006, p.  341). Mistelis described it as ‘the phenomenon of similar solutions in different legal systems … a natural phenomenon … [that is] voluntary’ and occurs due to ‘indirect influence through the activity of formulating agencies or in the form of [the] approximation of laws’ (2000, p. 1069). Overall, it can be concluded that harmonisation can be both a deliberate and spontaneous process, regardless of the deliberate effort. That is, to draw clearer boundaries, harmonisation can be treated as a process that occurs both spontaneously and intentionally, as agreed upon by a ministerial council or according to the terms of an intergovernmental agreement. The Australian literature regarding spontaneous harmonisation is sparse. For example, spontaneous harmonisation has not been considered concerning work health and safety legislation. The focus has been on intended harmonisation from the outset (Bluff & Gunningham, 2012; Windholz, 2010). Similarly, in discussing federalism, the emphasis has been on the centralistic movements of the Australian Government, particularly its attempts to impose national uniform legislation on the states and territories (Wiltshire, 2008). Only intended harmonisation has been explored in publications specifically focused on harmonisation and national uniform legislation (Fenna, 2007; Wiltshire, 2008). Both processes work on vertical (top-down) harmonisation initiated by the Australian Government and horizontal (bottom-up) harmonisation initiated by the state and territory governments. It is important to appreciate this because intended harmonisation can be bottom-up and top-down; for example, the states and

2.2  Harmonisation and National Uniform Legislation

27

territories directed the harmonisation of succession laws. What distinguishes spontaneous harmonisation from intended, bottom-up harmonisation is its unprompted and evolutionary character. Jurisdictions appear to gravitate towards one or the other when developing or drafting legislation. It is possible that spontaneous harmonisation has not been explored because the degree of harmonisation achieved spontaneously has not been sufficient. Nevertheless, it would be almost impossible to discuss intended harmonisation without understanding its predecessor (spontaneous harmonisation). That is why this research must fill the gap in the literature. This research draws on the spontaneous harmonisation studies conducted in the United States of America (USA) and European Union (EU). Although it would be impossible to fully apply the USA or EU definitions in the Australian context, this discussion might offer some insights into spontaneous harmonisation in Australia. Scholars from the USA and EU have developed the following definitions of spontaneous harmonisation: (1) uncoordinated, that is, ‘not centrally controlled, agreed or fostered’ and trending ‘towards the adoption of the rules that have been successfully applied in a different jurisdiction’ or ‘a combination of rules introduced by the major, more efficient, more reputed, or simply more audacious jurisdictions’ (Gómez & Ganuza, 2012, p. 484); harmonising the ‘rules of the member states following the example of comparable rules in the [EU] without any express harmonising activity of that union’(Vedder, 2004, p.  5) as opposed to ‘intended harmonisation’ (Vedder, 2004, p.  7); (3) harmonising legislation where no legal obligation to harmonise has been imposed (Kowalik-Bańczyk, 2014, p. 149), that is, where ‘there is a clear and deepening trend to converge national legal solutions, stemming first and foremost from the free will of national legislators (spontaneous harmonisation) who are imitating the solutions adopted by the European Commission’ (Kowalik-Bańczyk, 2014, p.  157); and (4) ‘uniformity that arises without the efforts of an agency … dedicated to [the] enactment of uniform laws’ (Kobayashi & Ribstein, 1999). However, Hayek (2012), a Nobel Prize winner, noted that spontaneous order ‘does not mean that … the law may not develop in very undesirable directions’, and when this occurs, ‘correction by deliberate legislation may be the only practicable way out’ (p. 84). This leads to a position where both spontaneous and intended harmonisation must be used to develop the most effective and efficient laws. The following definitions are adopted, drawing on the definitions provided in the literature and considering the Australian context. ‘Intended harmonisation’ is a deliberate process through which Australian jurisdictions achieve uniformity as agreed upon by a ministerial council or according to the terms of an intergovernmental agreement. Conversely, ‘spontaneous harmonisation’ is a process through which Australian jurisdictions harmonise their legal rules in a voluntary, unprompted and uncoordinated way. The mention of legislation termed ‘followed’ in the PCC Protocol, could refer to the process of spontaneous harmonisation. This would explain why the list of national uniform legislation does not contain any acts in the ‘followed’ structure, whereas the structure is mentioned in classification. Therefore, harmonisation is a process, and national uniform legislation is the result of that

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n io

Int

Leg al Di f S

ts an pl ns

ergence & L onv eg C al n, o Tr i s a u f Harmo nis eous at an t n io o n p Harmon ed isa d t en

National Uniform Legislation

Fig. 2.1  Concept map of harmonisation and national uniform legislation

process. National uniform legislation has not always been the goal of harmonisation. Some harmonisation efforts have aimed to develop common standards; for example, the harmonisation of occupational health and safety (OHS) regulations during the 1990s or common policies, practices and rules, such as similar court rules in different jurisdictions. The discussion in Sect. 2.2.2 is represented schematically in Fig. 2.1.

2.2.3 Definition of National Uniform Legislation National uniform legislation is alternatively defined: (1) legislation drafted as agreed upon by a ministerial council or terms of an intergovernmental agreement, where the legislation is considered first and presented in the list of national uniform legislation compiled by the PCC; and (2) ‘legislation which is the same, or substantially the same, in all or a number of jurisdictions’ (Sampford, 2007, p.  1). The

2.2  Harmonisation and National Uniform Legislation

29

problem with the first definition is the fact that intergovernmental agreements are notoriously difficult to find. The inability to locate them has been characterised as extremely problematic: ‘no jurisdiction keeps reliable track of intergovernmental agreements’ (Saunders, 2008, p.  25). Therefore, the only reliable source for a national uniform legislation list is the database kept by the PCC with legislation concerning more significant areas of uniform legislation. The PCC table contains 85 sets of uniform Acts and is regularly updated, with the most recent update in November 2020. However, the database is not exhaustive (see Sect. 1.4). The second definition is also problematic. If national uniform legislation means the legislation that ‘is the same, or substantially the same, in all or a number of jurisdictions’ (Sampford, 2007, p.  1), then what is the meaning of ‘substantially the same’? Similar to the definition of harmonisation, there may be room for intentional ambiguity in defining uniformity. Therefore, rather than defining the term using a dictionary, a classification is proposed based on the degree of uniformity.The following definition is proposed to reconcile both definitions and provide conceptual clarity: ‘national uniform legislation’ is the result of intended harmonisation with a degree of uniformity across several jurisdictions. Several scholars have defined the degree of uniformity. In 1987, Collinge, the Chairperson of New Zealand’s Commerce Commission, identified four possible meanings of harmonisation: (1) full uniformity (where ‘maximum or minimum standards are required to be observed’); (2) flexible complementary legislation; (3) working towards a ‘reduction in [the] difference of laws’; and (4) mutual recognition schemes (1987, p. 61). In 1997, Ziegel examined the meaning of harmonisation within a federation. He noted that harmonisation is a concept with ‘considerable elasticity’ and that in its ‘most complete sense it means absolute uniformity’ (p. 133) of goals, policies and enforcement methods and a ‘continuing willingness to agree on future changes in the uniform legislation and not to adopt unilateral changes in the mean- time’ (p. 134). For clarifying and understanding the second part of this research, it is proposed that the degree of uniformity be classified as follows: (1) ‘almost identical’, that is, legislation where all provisions or nearly all provisions are uniform (minimal differences, for instance, relating to the drafting style, gender-neutral language, fines or order of provisions); (2) ‘substantially uniform’, that is, legislation where the majority of provisions are uniform; (3) ‘partially uniform’, that is, largely consistent legislation with distinct differences between jurisdictions; and (4) ‘some similarities’, that is, legislation with only some similar provisions or uniformity in principle only (Hill, 2020). Therefore, as the product of intended harmonisation, national uniform legislation can be dynamic and sufficiently versatile to include sets of uniform Acts with high uniformity and legislation with only some similarity in its provisions.

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2.3 Primary Structures The definition of national uniform legislation can be extended through structures: referred, applied and mirror. By the end of the twentieth century, with increased interjurisdictional ‘range and variety’ (Saunders, 2002, p.  71), parliaments and other bodies developed classifications for national uniform legislation. After a close examination of the classification systems developed by several bodies (SCLCA, 2006; Standing Committee on Uniform Legislation and General Purposes, 2004; Standing Committee on Uniform Legislation and Intergovernmental Agreements, 1995; Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia, 1996), three main structures emerged: referred, applied and mirror legislation. A detailed discussion of the historical and theoretical underpinnings was provided by Hill (2019). Figure  2.2 depicts the primary structures of national uniform legislation.

Fig. 2.2  Structures of national uniform legislation. (The model was first published in (Hill, 2019) – copyright permission granted. This model represents updated model with the most up to date sets of uniform Acts published by the Australasian Parliamentary Counsel’s Committee)

2.3  Primary Structures

31

This depiction is not to scale, as mirror legislation represents majority of sets of unform Acts. Numerically, out of 85 sets of uniform Acts in the database, 47 are in mirror structure, 17 are in applied structure, 15 are in referred structure and 6 are in hybrid structure. However, it does not mean uniformity of these sets of uniform Acts can be assessed by structure only, as examined further.

2.3.1 Referred Legislation The Australian Government drafts referred legislation, and the states and territories refer to their legislative powers regarding certain subject matters pursuant to section 51(xxxvii) of the Constitution. This structure is highly uniform and rigid (Hill, 2019, p. 99). This structure eliminates the need for multiple regimes and duplication: [Referral of powers] is a much simpler mechanism for harmonising laws. It does not rely on a complex patchwork of complementary Commonwealth, State and Territory laws and has significant advantages of administrative efficiency. It is also easier for those to whom the law applies. (Standing Committee on Legal and Constitutional Affairs, 2006, p. 18).

However, achieving legislation in this structure requires extensive ‘political lobbying and negotiation’ (Carney, 2002, pp. 1–2). Several examples of legislation in the referred structure include consumer credit, corporations and counterterrorism legislation (the sets of uniform Acts are listed in the Appendix). An example of business names legislation is examined to illustrate how referred legislation works in practice, the detailed examination is provided in Sect. 5.3.2. In the 1960s, the first wave of intended harmonisations produced mirror legislation with states and territories administering the legislation and being responsible for eight different registers held within jurisdictions. On 3 July 2008, the Council of Australian Governments (COAG) agreed to develop a single national system for registering and regulating business names as a part of the government’s seamless national economic reforms (Explanatory Memorandum, 2011, p. 3). The states and territories referred the matters to the Australian Government, with the view for the Australian Government maintaining a seamless, online registration for Australian business numbers and names. Instead of the eight different registered, one register is now being administered by the Australian Securities and Investments Commission (ASIC). All jurisdictions have made the referral (business names – referred legislation, see the Appendix). Currently, this register allows businesses to register once for all jurisdictions and identify a unique business name that can be used to build a brand throughout Australia. The benefits of maintaining a single register include cutting red tape for businesses, simplicity and the unforeseen benefit of ease when tracing illegal phoenix activity. To clarify, Phoenix practices occur when the business of one company is transferred to the newly established company, but the debts remain with the old (in most cases insolvent) company. However, the enactment of legislation in a referred structure does not imply absolute uniformity. There is evidence to support the illusory nature of ultimate

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uniformity. As further examined in Sect. 5.3.1, despite a strong grounding from spontaneous harmonisation, in corporations legislation, full uniformity has not been achieved almost 60 years after the initial intended harmonisation attempt. Bathurst (2013) noted that the enactment of the Corporations Act 2001 (Cth) (n.d.) did not result in ‘a fully unified system’. Although Australia has come a long way, it has ‘not reached and will probably never reach a point of perfectly harmonised uniformity’ (Barret, 2012, p. 159). Examples of divergence include Tasmanian legislation, where additional preclusions were added for appointing an auditor. Specifically, an auditor could be anyone other than a particular office-holder (Irrigation Company Act 2011 (Tas)). Another example is the NSW legislation allowing court proceedings against a company in liquidation when a leave to proceed has not been granted under the Corporations Act 2001 (Cth) (n.d.) (Dust Diseases Tribunal Act 1989 (NSW)). Additionally, due to the insertion of Part 1.1A, ‘Interaction between corporations legislation and state and territory laws’, in the Corporations Act 2001 (Cth) (n.d.), sections of the Act can be excluded from operation in a state or territory. The inclusion of these rollover provisions has affected uniformity.There are also unclear differences between jurisdictions resulting from disparate drafting style manuals, naming protocols of the uniform Acts and references to other legislation in the enacting legislation. Even in cases where the legislation is identical, the interpretation of a set of uniform Acts can be subject to local Acts Interpretation Acts (see the Appendix), the absence or existence of human rights legislation (see the Appendix) and differences in the criminal laws (although these differences relate more to applied rather than textual uniformity and are beyond the scope of this book). Additionally, legislation from each jurisdiction must correspond to its own legislative drafting manual and statute book. This is so even when drafting national uniform legislation for a referred structure. Therefore, while a referred structure provides a uniform regime, the legislation is not identical, and the enactment of legislation in a referred structure does not imply absolute uniformity.

2.3.2 Applied Legislation An applied structure allows for the adoption or application of laws enacted in other jurisdictions (PCC, 2018, p. 1). Applied structures can be ‘extremely complicated’ (Edwards, 2014, p. 96) due to the variety of ways in which jurisdictions can ‘apply’ the law. Acts are usually composed of two parts. The first is jurisdiction-specific, and the second (usually in the appendix or schedule) is the applied law. From the policy development and drafting perspective, there is also an option to ‘adopt as amended from time to time’ or apply on an ‘as is’ basis where future amendments must be enacted separately. It is also possible that after the lead jurisdiction drafts a bill, some jurisdictions will ‘apply’, and others will ‘adopt’ it. The Health Practitioner Regulation National Law Act 2009 (Qld) (n.d.) was an example of this process. Queensland Parliamentary Counsel drafted this legislation as the leading jurisdiction. The Northern Territory adopted the Act by passing an

2.3  Primary Structures

33

adoption Act (Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT), n.d.). Section 4 of the Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT) (n.d.) provides for the Queensland Act to be adopted as amended in the future. Although this type of action is quite uncommon, it provides for automatic implementation of revisions across jurisdictions. Thus, any amendments to the Queensland Act are adopted in the Northern Territory. Western Australia, on the other hand, adopted the Queensland Act by enacting the Health Practitioner Regulation National Law Act 2010 (WA) (n.d.). Thus, a separate Act would have to be passed by both houses of the Parliament of Western Australia before any amendments could be implemented. The flaw of the Northern Territory position is in potential encroachment on parliamentary sovereignty, while the flaw of the Western Australian position is in the potential delays or even omission of introduction of subsequent amendments to legislation.The key issue has been that sovereignty is affected when legislation is ‘adopted as amended from time to time’ (Hill, 2021, p. 41). Parliaments have become weary of these arrangements, as noted by Criddle, a member of the Legislative Assembly of Western Australia: ‘I am not in favour of falling into line with other states in matters that are ticked off by the ministerial council’ (Western Australia, 2003, p.  9042). Therefore, the applied structure may be less uniform than the referred structure, while it still incorporates options for uniform amendments. The structure’s complexity operated as a deterrent in the past and might operate as a deterrent in the future.

2.3.3 Mirror Legislation Mirror legislation is the most versatile structure, offering states and territories the most flexibility in implementing this structure of national uniform legislation. Mirror legislation is drafted by one jurisdiction as a model for other jurisdictions to follow (PCC, 2018, p. 1), alternatively jurisdictions model existing legislation of a particular jurisdiction. In the academic literature and government reports, mirror legislation and model legislation have been used interchangeably (Nerenberg, 2011, p. 13). However, ‘model’ has sometimes been used to describe a model draft bill centrally drafted by the PCC or developed by one of the jurisdictions (Hill, 2019, p.  99). Consequently, this book uses the term ‘mirror’, to avoid any misunderstanding. In the mirror structure, any jurisdiction can repeal its legislation without any consequences for the other participants or, theoretically, it can make further amendments to the legislation that extinguish similarities with other jurisdictions. The mirror structure has the least controllable uniformity but it does not mean the mirror structure is the least uniform; the structure is versatile, ranging through all four degrees of uniformity (almost identical, substantially uniform, partially uniform and some similarities) as discussed in Sect. 2.2.3. An example of the recent major harmonisation is work health and safety legislation. The model bill was based on the decisions of the Workplace Relations Ministers’ Council regarding the findings of

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the review (which had been conducted during the first stage). Consultation on the bill was extensive; for example, SafeWork Australia received 480 submissions concerning the bill (SafeWork Australia, 2022). The PCC finalised the drafting of the model bill in 2011. The model bill was proposed, allowing the incorporation of core and non-­core provisions. The ability to choose gave jurisdictions a strong framework, enabling them to manoeuvre and accommodate the views of their local groups to retain the universal structure and principles of the Act throughout all jurisdictions. The jurisdictions implemented the bill; however, there were some major and minor differences between the bills across the jurisdictions, and one jurisdiction refused to enact it. Specifically, ‘the Victorian Government … stated that it [would] not be adopting the model work health and safety laws in their current form’ (WorkSafe Victoria, n.d.). However, because the Victorian legislation was used as the model, this development did not affect the overall uniformity of the legislation. Indeed, a ‘substantially uniform’ level was achieved despite the jurisdictional differences (SafeWork Australia, 2022). On 20 February 2020, the Western Australian Legislative Assembly passed the bill and referred the Work Health and Safety Bill (2019) to the Legislative Council. The Act is set to be in force in 2022. This recent development shows that harmonisation in a federation is a long-term process and not a project that can be completed by requiring jurisdictions to pass legislation within a set deadline.Cases of very high uniformity in mirror legislation can be explained by the conferral of jurisdiction through mirror legislation. The conferral of power in the context of national uniform legislation can be classified into two large groups: the conferral of power on a state or territory official through the Australian Government’s legislation or the conferral of power by a state or territory on an Australian Government official through national uniform legislation (Hill, 2019). The prisoners international transfer, national environment protection and cross-vesting sets of uniform Acts (see the Appendix) are examples of conferral Acts or Acts with some elements of conferral. The conferral of power through the Australian Government’s legislation received judicial interpretation in the consolidated case of O’Donoghue v Ireland; Zentai v Republic of Hungary; Williams v USA (2008). It was held that the conferral of power under section 19 of the Extradition Act 1988 (Cth) (n.d.) was valid because it did not impose a duty but conferred the power of the Australian Government on state and territory magistrates. In contrast, some sets of uniform Acts within the mirror structure fall into the category of ‘some similarities’. These sets of uniform Acts include the following examples: child protection (offender prohibition orders and offender registration, see the Appendix), parentage presumptions and surrogacy (see the Appendix). The sets of Acts regulating sex offender registration have minimal textual similarities. The legislation was based on the NSW model with minor changes (Victorian Law Reform Commission [VLRC], 2011, p.  11). The Australasian Police Ministers' Council approved it on June 30, 2004. The purpose of these uniform Acts was to make sex offenders register with the police and disclose information about their whereabouts inside Australia and overseas on a regular basis in order to lessen the likelihood of re-offending. Some jurisdictions enacted two sets of uniform Acts, but

2.4 Conclusion

35

others enacted a single piece of legislation that contained all of the requirements. As a result of differing criminal law regimes across eight jurisdictions and the jurisdictional amendments, the Acts governing sex offender registration have only minor linguistic similarities. Indeed, one of the main disadvantages of mirror structure is the potential of unravelling uniformity over the years: one of the limits on this type of scheme is the risk of the scheme unravelling with the lapse of time. Even if underpinned by an intergovernmental agreement and with Ministers committed to introducing a model bill in their own State, by the time the provisions have been through State and Territory Cabinets and Parliaments differences are likely to emerge and the legislation is likely to diverge (Standing Committee on Legal and Constitutional Affairs, 2006, p. 17).

In summary, mirror legislation is the most versatile structure of national uniform legislation, but this does not mean that legislation in this structure is the least uniform. However, mirror legislation can be amended by jurisdictions at any stage with the consequences of the loss of uniformity over the years.

2.3.4 Hybrid Structures While the referred, applied and mirror structures are predominant, none of them exist in a vacuum. Any structure may be enacted in combination with others to obtain the best outcome in a specific circumstance if necessary. An example of legislation in a hybrid form with a referred and applied structure is consumer credit legislation (see Appendix). Examples of hybrids in the applied and mirror structure include legislation governing the Australian Crime Commission, gene technology, road transport (road rules) and water efficiency (see the Appendix for the list of individual Acts) (Hill, 2019, pp.  114–117). In other words, hybrid legislation is enacted in circumstances when some jurisdictions wish to add flexibility to the policy or cannot enact legislation in a specific structure due to some internal reasons.

2.4 Conclusion It is important to overcome the conceptual barrier of national uniform legislation in terms of the divergent and ambiguous terminology. Therefore, this book proposed the term ‘harmonisation’ (in a narrow sense) to represent the process that brings uniformity (for achieving uniform laws or national uniform legislation in the context of this research) or similarity (in a wide sense). Similarity can be in the form of bringing systems together or eliminating differences. Harmonisation is a wider concept. It is more than a process that produces national uniform legislation. It can include intended and spontaneous harmonisation. Intended harmonisation is a deliberate process through which Australian jurisdictions have achieved uniformity through intergovernmental agreements or the decisions of ministerial councils.

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Conversely, spontaneous harmonisation is a process through which Australian jurisdictions have harmonised their legal rules in a voluntary, unprompted and uncoordinated way. The term ‘national uniform legislation’ refers to the results of in- tended harmonisation—such as giving effect to an intergovernmental agreement or a decision of a ministerial council—with a degree of uniformity across several jurisdictions. Rather than defining the degree of uniformity, this book proposes to use the classification of sets of uniform Acts that are ‘almost identical’, ‘substantially uniform’, ‘partially uniform’ or have ‘some similarities’. The classification of national uniform legislation is based on primary structures: referred, applied and mirror. Structures have an important role. Legislation in referred and applied structures can achieve high, albeit not identical, levels of uniformity. Mirror legislation is the most versatile structure. If required, legislation can be implemented with different structures across jurisdictions, forming a hybrid structure.

References Andersen, C. B. (2007). Defining uniformity in law. Uniform Law Review, 12(1), 5–54. Barret, R. I. (2012). Towards harmonised company legislation—‘Are we there yet’? Federal Law Review, 40(2), 141–159. http://classic.austlii.edu.au/au/journals/FedLawRw/2012/6.html Bartel, R., & Stone, C. (2011, June 24). Lessons for environmental harmonisation: A rising tide that lifts all boats [Paper presentation]. 9th International Conference on Environmental Compliance and Enforcement, Whistler, British Columbia, Canada Bathurst, T. F. (2013, September). The historical development of corporations law [Speech text]. Francis Forbes Society for Australian Legal History: Introduction to Australian Legal History Tutorials. http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/ Pre-­2015%20Speeches/Bathurst/bathurst_20130903.pdf Bluff, E., & Gunningham, N. (2012). Harmonising work health and safety regulatory regimes. Australian Journal of Labour Law, 25(2), 85–106. Boodman, M. (1991). The myth of harmonization of laws. The American Journal of Comparative Law, 39(4), 699–724. https://doi.org/10.2307/840738 Carney, G. (2002). Uniform personal property security legislation for Australia: A comment on constitutional issues. Bond Law Review, 14(1). https://doi.org/10.53300/001c.5389 Collinge, New Zealand Law Conference, ‘Business Sessions: Abstracts and Topics’ (Paper presented at Christchurch, New Zealand, 1–5 October 1987). Corporations Act 2001 (Cth). (n.d.). https://www.legislation.gov.au/Details/C2017C00328 Cuming, R.  C. C. (1985). Perspectives on the harmonization of law in Canada. University of Toronto Press. Education and Care Services National Law Act 2010 (Vic). (n.d.). https://www.legislation.vic.gov. au/in-­force/acts/education-­and-­care-­services-­national-­law-­ act-­2010/013 Edwards, J. (2014). Applied law schemes and responsible government: Some issues. In G. Patmore & K.  Rubenstein (Eds.), Law and democracy: Contemporary questions (pp.  85–114). ANU Press. Explanatory Memorandum, Business Names Registration Bill 2011 (Cth). Extradition Act 1988 (Cth). (n.d.). https://www.legislation.gov.au/Details/C2018C00197 Farina, A. (2004, August). Uniform legislation and supporting documentation (Report No. 19) Parliament of Western Australia, Legislative Council Standing Committee on Uniform Legislation and General Purposes. https://www.parliament.wa.gov.au/Parliament/com-

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mit.nsf/(Report+Lookup+by+Com+ID)/30 56C1595E4B8C1548257831003E9600/$file/ ug.iga.040823.rpf.019.xx.a.pdf Farrar, J. H. (1989). Harmonisation of business law between Australia and New Zealand. Victoria University of Wellington Law Review, 19, 435–463. http://www.austlii.edu.au/au/journals/ VUWLawRw/1989/25.pdf Fenna, A. (2007). The division of powers in Australian federalism: Subsidiarity and the single market. Public Policy, 2(3), 175–194. https://search.informit.org/doi/10.3316/ INFORMIT.664669071745541 Garoupa, N., & Ogus, A. (2006). A strategic interpretation of legal transplants. The Journal of Legal Studies, 35(2), 339–363. Glenn, H. P. (2003). Harmony of laws in the Americas. The University of Miami Inter-American Law Review, 34(2), 223–246. https://repository.law.miami.edu/umialr/vol34/iss2/2 Goldring, J. (1978). “Unification and harmonisation” of the rules of law. Federal Law Review, 9(3), 284–325. https://doi.org/10.1177/2F0067205X7800900302 Gómez, F., & Ganuza, J.-J. (2012). How to build European private law: An economic analysis of the lawmaking and harmonization dimensions in European private law. European Journal of Law and Economics, 33(3), 481–503. https://doi.org/10.1007/s10657-­011-­9282-­3 Hayek, F. A. (2012). Law, legislation and liberty: A new statement of the liberal principles of justice and political economy. Routledge. Health Practitioner Regulation (National Uniform Legislation) Act 2010 (NT). (n.d.). https:// legislation.nt.gov.au/Legislation/HEALTH-­PRACTITIONER-­REGULATION-N ­ ATIONAL-­ UNIFORM-­LEGISLATION-­ACT-­2010 Health Practitioner Regulation National Law Act 2009 (Qld). (n.d.). https://www.legislation.qld. gov.au/view/pdf/inforce/current/act-­2009-­045 Health Practitioner Regulation National Law Act 2010 (WA). (n.d.). https://www.legislation. wa.gov.au/legislation/statutes.nsf/main_mrtitle_12107_homepage.html Hill, G. (2019). Referred, applied and mirror legislation as primary structures of national uniform legislation. Bond Law Review, 31(1), 81–117. https://blr.scholasticahq.com/article/10865-­ referred-­applied-­and-­mirror-­legislation-­as-­primary-­structures-­of-­national-­uniform-­legislation Hill, G. (2020). How does the area of law predict the prospects of harmonisation? Adelaide Law Review, 41(1), 267–312. https://law.adelaide.edu.au/system/files/media/documents/2020­0 8/How%20Does%20the%20Area%20of%20Law%20Predict%20the%20Prospects%20 of%20Harmonisation.pdf Hill, G. (2021). Avoiding a ‘catch 22’: Major lessons from a meta-analysis of reports of the parliament of Western Australia on threats to sovereignty by National Uniform Legislation. Bond Law Review, 33(1), 37. https://blr.scholasticahq.com/article/19356-­avoiding-­a-­catch-­22-­major-­ lessons-­from-­a-­meta-­analysis-­of-­reports-­of-­the-­parliament-­of-­western-­australia-­on-­threats-­to-­ sovereignty-­by-­national-­uniform-­legislation Jacobs, R. (2011, August 3–5). National applied laws schemes—A WA perspective [Paper presentation]. 6th Australasian Drafting Conference, Adelaide. Kerameus, K.  D. (2003). Some reflections on procedural harmonisation: Reasons and scope. Uniform Law Review, 8(1–2), 443–451. https://doi.org/10.1093/ulr/8.1-­2.443 Kobayashi, B. H., & Ribstein, L. E. (1999). Uniformity, choice of law and software sales. George Mason Law Review, 8(2), 261–306. https://heinonline.org/HOL/LandingPage?handle=hein. journals/gmlr8&div=15&id=&page= Kowalik-Bańczyk, K. (2014). Ways of harmonising Polish competition law with the competition law of the EU. Yearbook of Antitrust and Regulatory Studies, 7(9), 141–159. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Ledda, J. The Drafter’s guide to cooperative schemes. (Paper presented at the drafting forum, Melbourne, 2001, August 1–3). Mistelis, L.  A. (2000). Regulatory aspects: Globalization, harmonization, legal transplants, and law reform—Some fundamental observations. The International Lawyer, 34(3), 1055–1069. https://www.jstor.org/stable/40707576

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Nerenberg, K. (2011). Dialogues on intergovernmental relations in federal systems (Vol. 8). McGill-Queen’s Press. O’Donoghue v Ireland; Zentai v Republic of Hungary; Williams v United States of America (2008) 234 CLR 599. Opeskin, B.  R. (1998). The architecture of public health law reform: Harmonisation of law in a federal system. Melbourne University Law Review, 22, 337–369. https://doi.org/10.2139/ ssrn.1416481 Parliamentary Counsel’s Committee. (2018, February 21). Protocol on drafting national uniform legislation (4th ed.). https://pcc.gov.au/uniform/Uniform-­drafting-­protocol-­4th-­edition.pdf SafeWork Australia. (2022). History of the model WHS laws. https://www.safeworkaustralia.gov. au/law-­and-­regulation/history-­model-­whs-­laws Sampford, K. (2007). National scheme legislation (Research Brief No. 27). Parliamentary Library, Queensland Parliament. Saunders, C. (2002). Collaborative federalism. Australian Journal of Public Administration, 61(2), 69–77. https://doi.org/10.1111/1467-­8500.00274 Saunders, C. (2008). The constitutional, legal, and institutional foundations of Australian federalism. In R.  Carling (Ed.), Where to for Australian federalism (pp.  15–26). The Centre for Independent Studies. Soundias, J. (2008, July 23–25). National scheme legislation: National gas experience [Paper presentation]. 5th Australasian Drafting Conference, Brisbane. Standing Committee on Legal and Constitutional Affairs. (2006, November). Harmonisation of legal systems within Australia and between Australia and New Zealand. The Parliament of the Commonwealth of Australia. https://www.aph.gov.au/parliamentary_business/committees/ house_of_representatives_committees?url=laca/harmonisation/report.htm Standing Committee on Uniform Legislation and General Purposes. (2004, November). The work of the committee during the second session of the thirty-sixth parliament—August 13 2002 to November 16 2004 (Report No. 23). Western Australia Legislative Council. https://www. parliament.wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by+Com+ID)/F57B187898C BE05D48257831003E9622/$file/ug.ses.041118.rpf.023.pdf Standing Committee on Uniform Legislation and Intergovernmental Agreements. (1995). Scrutiny of national scheme legislation and the desirability of uniform scrutiny principles (Report No. 10). Parliament of Western Australia. https://www.parliament.wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by+Com+ID)/33A6358960C74BAC48257831003E9440/$file/ No_10.pdf Standing Committee on Uniform Legislation and Statutes Review. (2011, June). Information report: Scrutiny of uniform legislation (Report No. 63). Western Australia Legislative Council. https://www.parliament.wa.gov.au/parliament/commit.nsf/(Report+Lookup+by+Com+ID)/3C A3042E89A0B47E482578BE0030A8B6/$file/us.all.110630.rpf.063.xx.pdf Twining, W. (2004). Diffusion of law: A global perspective. The Journal of Legal Pluralism and Unofficial Law, 36(49), 1–45. https://doi.org/10.1080/07329113.2004.10756300 van den Berghe, L. (2002). Corporate governance in a globalising world: Convergence or divergence? A European perspective. Springer US. Vedder, H. (2004). Spontaneous harmonisation of national (competition) laws in the wake of the modernisation of EC competition law. Competition Law Review, 1(1), 5–21. Victorian Law Reform Commission. (2011, June 1). Sex offenders registration: Information paper. https://www.lawreform.vic.gov.au/project/sex-­offenders-­registration/ Western Australia, Parliamentary Debates, Legislative Council, 2003, June 24, 9042 (Murray Criddle). Wiltshire, K. (2008). Australian federalism: The business perspective. University of New South Wales Law Journal, 31(2), 583–616. https://www.unswlawjournal.unsw.edu.au/wp-­content/ uploads/2017/09/31-­2-­2.pdf

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Windholz, E. (2010). Evaluating the harmonisation of Australia’s OHS laws: Challenges and opportunities. Asia Pacific Journal of Public Administration, 32(2), 137–162. https://doi. org/https://doi.org/10.1080/23276665.2010.10779371 Work Health and Safety Bill. (2019). https://www.parliament.wa.gov.au/parliament/bills.nsf/BillP rogressPopup?openForm&ParentUNID=8F320741B83643A8482584BF000CF89B Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia. (1996, October). Scrutiny of national schemes of legislation: Position paper. https://www.aph. gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Legislative_Scrutiny_ Resources/~/media/Committees/Senate/committee/scrutiny/natschem/nat_schemes.ashx WorkSafe Victoria. National harmonisation of work health and safety laws. http:// www.worksafe.vic.gov.au/laws-­and-­regulations/occupational-­health-­and-­ safety/ national-­work-­health-­and-­safety-­reform Ziegel, J. S. (1997). Harmonization of private laws in federal systems of government: Canada, the USA, and Australia. In R. Cranston (Ed.), Making commercial law: Essays in honour of Roy Goode. Clarendon Press.

Chapter 3

Historical Development of National Uniform Legislation

Abstract  National uniform legislation predates federation with early example of mirror legislation – the Standard Time legislation – dating to the 1890s. The key stages of historical development include (1) sets of uniform Acts before federation and during the establishment of the federation; (2) national reforms before and after WW2; (3) the golden era of national uniform legislation. The historical examination demonstrates  – national uniform legislation is a growing trend. With the rise of Australian national consciousness, prompt knowledge transfer, technology development, international threats, common natural disasters defying the interstate borders and, not the least due to the proliferation of legislation in general, the trend of national uniform legislation proliferation is expected to continue. Several institutions have developed and drafted national uniform legislation consistent with the cooperative federalism theory, including the National Cabinet (formerly COAG), ALRC and PCC. In 2020, for the first time since the first days of federation, the trend for centralisation of power towards the Commonwealth has been altered. Despite the promise of National Cabinet, there still appears to be no secure or consistent national approach to the law reforms that became or remain important for further development of Australia.

3.1 Introduction National uniform legislation predates federation with early examples of mirror legislation dating back to the 1890s. The main stages of the historical development of national uniform legislation can be arranged in the following order: (1) pre-­ federation and the first sets of uniform Acts within the federation; (2) national reforms before and after the Second World War (WW2); (3) the golden era of national uniform legislation from 1970 to 2015 followed by the current events of the emergencies from 2020 onwards, including bushfires and the COVID-19 pandemic. This historical examination demonstrates that national uniform legislation is growing. There are several drivers for this proliferation, including the prompt dissemination of information, connectivity, the globalisation of laws, an increased need for © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_3

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3  Historical Development of National Uniform Legislation

international and inter-federal cooperation, knowledge transfer, technology development (Hill & Garrick, 2021), the proliferation of legislation in general (Crawford, 2020) and common threats and natural disasters. The trend for the proliferation of national uniform legislation is expected to continue. However, the growth trend has been affected by the COVID-19 pandemic in terms of the necessity of emergency responses within jurisdictions with peripheral attention to long-term strategic harmonisation reforms and major reforms of institutions for intergovernmental cooperation, including the abandonment of COAG and establishment of the National Cabinet.

3.2 First Sets of Uniform Acts During the first stage, Australia was borrowing extensively from the UK. Goldring (1977) highlighted that ‘as the colonies achieved self-government, legislation drafted in Britain was no longer enacted in the colonies, [and] there was a strong tendency to copy important British acts’ (p.  86). In the commercial sphere, the Partnership Act 1890 (UK), Arbitration Act 1889 (UK) and Sale of Goods Act 1893 (UK) were introduced by each state, whereas the Bills of Exchange Act 1909 (Cth) had ‘virtually identical terms to the UK Bills of Exchange Act 1882’ (Goldring, 1977, p. 86). This legislation was based on the Imperial Bills of Lading Act 1855 (UK). In commercial arbitration, the Arbitration Act 1902 (NSW), along with similar acts in other jurisdictions, was based on the UK model of the English Arbitration Act 1979 (UK) (now replaced by the English Arbitration Act 1996 (UK)). Other examples of early manifestations of legislation that predates federation and continues in mirror structures today are the standard time Acts, Acts interpretation Acts and legislation regulating companies (see the Appendix) Undoubtedly, these sets of uniform Acts underwent multiple amendments to stay current. One example of legislation that was not borrowed from the UK but was based on the modern developments in the UK at the time can be illustrated by the introduction of the Torrens title legislation. Sir Robert Richard Torrens, the Registrar-­ General of Deeds, introduced the system of ‘title by registration’ in South Australia (Bahr v Nicolay, 1988, p. 613). The purpose of the Act was to simplify the law to prevent frauds and injustices, and the rationale for introducing the system was stated in the preamble of the Real Property Act 1858 (SA): WHEREAS the inhabitants of the Province of South Australia are subjected to losses, heavy costs, and much perplexity, by reason that the laws relating to the transfer and encumbrance of freehold and other interests in land are complex, cumbrous, and unsuited to the requirements of the said inhabitants, it is therefore expedient to amend the said laws. (Preamble)

The system existing in the UK at the time was in an unsatisfactory state and was described by Lord Chancellor Westbury (as quoted in Offer, 1981) as ‘difficult to read, impossible to understand and disgusting to touch’ (p.  21). Thus, the South

3.3  National Reforms Before and After the Second World War

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Australian Act was an original model, influenced but not borrowed from the UK acts. To an extent, the Act was influenced by the UK’s 1857 Royal Commission report and the system of the central London registry and district offices to enable buyers and sellers ‘to deal with land in as simple and easy a manner … as they can now deal with moveable chattels or stock’ (Report of the Commissioners on the Registration of Title with reference to the Sale and Transfer of Land, 1857, p. 187). After a series of amending and replacing acts, the 1886 legislation has remained in force. Harrison (1962) examined the adoption of the South Australian model by other jurisdictions. Queensland was the first jurisdiction to model the Real Property Act 1861 (Qld) as ‘a close copy’ of the South Australian 1860 Act (Harrison, 1962). Tasmania, Victoria and NSW modelled their acts on the 1861 Act (Harrison, 1962). The NSW Act was modelled on the Victorian Act ‘and so only indirectly on the 1861 South Australian Act’ (Harrison, 1962). Later, Western Australia modelled the Transfer of Land Statute 1866 (Vic), ‘which had replaced the original Victorian Real Property Act’ (Croucher, 2009). Legislation now exists in a uniform but not identical manner to the legislation regulating real property and title registrations (see the Appendix). The first stage, post-federation, was characterised by borrowing from the UK.

3.3 National Reforms Before and After the Second World War There were further developments of national uniform legislation during the years before and immediately after WW2. This period resulted in a higher level of uniform legislation, with some of it still copied from English statutes (Mason, 1971; Piesse, 1939) and with the emergence of the first ministerial council to discuss and develop national uniform legislation. During this time, uniform legislation started taking more sophisticated forms of applied and mirror structures already familiar to jurisdictions. An example of this applied structure was when in 1937, NSW, Queensland, Western Australia, South Australia and Tasmania passed laws applying the Air Navigation Act 1920 (Cth) (see the Appendix). This Act had to be introduced in Australia after the First World War when aeroplanes were used for the first time. The Convention Relating to the Regulation of Aerial Navigation 1919 was signed when regulating air navigation emerged as a problem in Australia. Following strong lobbying by the military, it was decided that the Australian Government would be the most appropriate jurisdiction to regulate airspace (Clark, 1986). In May 1920, a conference was held, and on the motion of the Prime Minister, the jurisdictions referred the matter for control over civil aviation to the Australian Government. The legislation was drafted using UK legislation as a model (Emmerson, 2014), and uniform Acts were enacted by the jurisdictions (see the Appendix).

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The economy needed to recover during the post-war years, which is why harmonisation was pursued in the company, hire-purchase and consumer credit legislation. Legislation regulating companies underwent further harmonisation. Initially, the acts were borrowed from the UK in the 1800s, when most Australian jurisdictions had enacted company legislation based on the UK model: the Companies Act 1862 (UK) (companies Acts 1800s, see the Appendix). From 1960 to 1969, each jurisdiction enacted uniform legislation in mirror structures (companies Acts 1960s, see the Appendix) because the Australian Government ‘could not or would not sponsor a uniform Commonwealth companies bill’ (Ford, 1961, p. 166) in a referred structure. The legislation was not modelled entirely on the UK or US approaches but included the Australian context (Sawer, 1963) and, in terms of uniformity, ‘the securing of [an] agreement … between the Commonwealth and the states on a form of uniform companies measure [was] a considerable achievement … [that provided] commerce with a much more efficient legal process’ (Ford, 1961, p. 166). Ford (1961) observed that the successful harmonisation of companies legislation ‘has improved the climate of thought for uniform laws’ (p. 134) in other areas. Hire-purchase legislation was the ‘first national scheme of uniform legislation developed through interjurisdictional cooperation between the Commonwealth and the states’ (Scrutiny of Acts and Regulations Committee, 1996, para 2.3). In the 1950s, the premier of NSW prepared a draft Uniform Hire-Purchase Act and convened a meeting of all state governments to discuss it. Between 1958 and 1962, all states adopted the act, with minor variations. These acts have now been repealed, with this area regulated by consumer credit and consumer protection legislation. However, the successful cooperation in this area and the Uniform Companies Act is reported to have led to the establishment of the Standing Committee of Attorneys-­ General (Duggan et al., 1989, p. 27). The ministerial council was originally called the Standing Committee of Commonwealth and State Ministers to Consider Uniform Law Proposals (Bowen, 1971), and it has changed names on numerous occasions. It is currently known as the Meeting of Attorneys-General. The establishment of this ministerial council led to further developments in the institutional support of interjurisdictional cooperation that occurred during the golden era.

3.4 The Golden Era: The Rise and Transformation of Institutional Support for National Uniform Legislation The period from the 1970s to 2015 may be considered the golden era of national uniform legislation in Australia. During this period, there was a proliferation of national uniform legislation and a simultaneous decline in copying UK legislation (Goldring, 1977, p.  86). The latter occurred when the UK’s laws and economy became more integrated with the EU. It is possible that this trend may change with the Brexit (Gant, 2020; Spigelman, 2018); however, that is something to be assessed

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in the future. As Sect. 3.3 examined, interjurisdictional cooperation intensified from the 1960s onwards. The establishment of the Standing Committee of Commonwealth and State Ministers to Consider Uniform Law Proposals marked an era of increasing intergovernmental cooperation in which more ministerial councils were established. In 2010, their number exceeded 40; however, it later dropped to 11 due to reforms (Lundie, 2011). Further reforms established the National Cabinet in 2020 (see Sect. 3.4). The growth of national uniform legislation at this stage was significant. As evidence of this growth, 84 out of 85 sets of uniform Acts contained in the Protocol were developed or significantly reformed during this period. The Protocol lists 85 sets of the most significant sets of uniform Acts (PCC, 2018, p. 2). Therefore, after examining several examples of harmonisation in this era, the analysis will focus on the institutions that developed and drafted national uniform legislation rather than the individual uniform Acts. Some examples of the 85 sets of uniform Acts that were drafted or significantly reformed during this era are now discussed briefly (Hill, 2020). National uniform legislation for criminal law included the enactment of anti-­ terrorism legislation. On 5 April 2002, the heads of the Australian Government, states and territories agreed ‘to take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power so that the Commonwealth may enact specific, jointly-agreed legislation’ (COAG, 2004, Recital 1). It was also agreed that any amendments to the Australian Government’s legislation would be subject to consultation between the jurisdictions. For corporate and commercial law, legislation regulating corporations and business names was reformed from a mirror structure to a referred structure. The legislation regulating corporations changed structures from mirror to applied and then to the most rigid structure, referred (corporations legislation, see the Appendix). Similarly, business names legislation (see the Appendix) progressed from the mirror to referred structure. For transport law, ‘in a major step forward in improving the efficiency of transport regulation’ (COAG, 2011), COAG approved three intergovernmental agreements regarding heavy vehicles, rail and maritime safety. For industrial and employment law, the work health and safety legislation went through a substantial harmonisation effort. By the time the most recent round of harmonisation occurred, according to the First Report (National Review into Model Occupational Health and Safety Laws, 2008), all states and territories had achieved uniformity via a ‘principal OHS Act codifying common law duties of care, supported by detailed regulations and codes of practice, and a system of education, inspection, advice, compliance activities and, where appropriate, prosecution’ (p. ii). The major differences between jurisdictions were in the ‘duty holders and duties, defence mechanisms and compliance regimes’ (National Review into Model Occupational Health and Safety Laws, 2008, p. ii). The model bill was drafted with core and non-core sections. Now, all jurisdictions, except Victoria, have enacted legislation in the mirror structure (work health and safety Acts, see the Appendix).

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For energy and resources legislation, the energy market reforms were implemented and overseen by the COAG Energy Council. These included the sets of uniform Acts regulating national resources, including the national electricity laws (see the Appendix), national gas laws (see the Appendix), national energy retail laws (see the Appendix) and water resources as part of COAG’s National Water Initiative (Australian Energy Market Commission, 2017; Australian Energy Market Commission, n.d.; Australian Energy Regulator, 2016). These examples provide some context for discussing the institutions important for national uniform legislation. Ultimately, national uniform legislation is enacted by the respective parliaments, therefore, the parliamentary scrutiny is very important. Particularly, the Western Australian Parliament has specifically established standing committee of the Legislative Council-Standing Committee on Uniform Legislation and Statutes Review. In some jurisdictions, such as Australian Capital Territory and South Australia, the scrutiny is conducted through the generic Standing Committee on Justice and Community Safety (Legislative Scrutiny Role) and Senate Standing Committee for the Scrutiny of Bills respectively. These committee are particularly important for ensuring non-encroachment on sovereignty (Hill, 2021) and are paramount for protection of human rights (Grenfell & Moulds, 2018). In addition to the parliamentary committees, the main bodies include the ALRC, PCC and COAG (now the National Cabinet). The areas of the law requiring national uniform legislation are quite diverse; thus, national uniform legislation can be developed by specialised bodies established for developing a particular set of uniform Acts. An examination of the database disclosed that some regulators were established by national uniform legislation, for instance, the Australian Crime Commission (now the Australian Criminal Intelligence Commission – see the Appendix). In contrast, some national regulators were established to facilitate the harmonisation process, for example, the Australian Registrars’ National Electronic Conveyancing Council and SafeWork Australia. SafeWork Australia was established to harmonise work health and safety regulation and as a national regulator. The PCC finalised the drafting of the model bill in 2011. In other cases, an existing federal body was entrusted with overseeing national uniform legislation, for example, the ASIC for business names. The highest levels of uniformity were observed in specifically established national regulators that implemented harmonisation and federal bodies acting as regulators. National regulators are discussed further as mechanisms for ensuring sustainable uniformity and refining policy in Sect. 6.4. National regulators are usually focused on a specific set of uniform Acts, while combination of institutional support from the National Cabinet, ALRC and PCC support the development and drafting of numerous sets of uniform Acts. Therefore, further analysis will continue in terms of examination of these major institutions. In 1974, the ALRC was established under the Law Reform Commission Act 1973 (Cth). Pursuant to section 21(1) of the Australian Law Reform Commission Act 1996 (Cth), law reform projects involving federal, state and territory issues considered by the ALRC are also considered for harmonisation. This Act was later

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superseded by the Australian Law Reform Commission Act 1996 (Cth) with the similar relevant section. Predominantly, the ALRC and PCC have prepared the centrally developed drafts of national uniform legislation. Since 1975, the ALRC has developed drafts of national uniform legislation as part of its reports. Examples of specific model bills prepared by the ALRC include: • the Model Debts Repayment Bill 1978, which was included in the ALRC’s (1977) Insolvency: The Regular Payment of Debts report. • the Model Evidence Bill 1987, which was included in the ALRC’s (1987) Evidence report. • the Law Reform (Miscellaneous Provisions) Amendment Bill 1989 (ACT), Medical Practitioners (Informed Decisions) Amendment Bill 1989 (NSW) and Information on Medical Procedures Bill 1989 (Vic), which was included in the ALRC’s (1989) Informed Decisions about Medical Procedures report. • the Model Children’s Evidence (Closed Circuit TV) Bill 1992 (ACT), which was included in the ALRC’s (1992) Children’s Evidence: Closed Circuit TV report. The first review of the ALRC’s performance, structure and overall method of operation was conducted by the Standing Committee on Legal and Constitutional Affairs of the House of Representatives of the Commonwealth Parliament in 1994. In a chapter related to the accepted practice of the ALRC in which it provided drafts of legislation at the end of its reports, Recommendation 38 suggested directing a draft bill to the PCC ‘to determine resource availability’ (SCLCA, 1994, p. 120). After implementation of this decision, the national uniform legislation models are mostly drafted by the PCC and published on their website. The PCC’s work is analysed below. Through 136 reports and 87 discussion paper reports, the ALRC has advised the government regarding major harmonisation reforms and proposed solutions to overcome the inconsistencies in regulations (The number of reports and discussion papers is based on figures in February 2022). The ALRC has always been in a precarious position when references for inquiries and the implementation of reports have been the responsibility of the Australian Government (ALRC, 2017). However, in 2014, the ALRC was in a particularly vulnerable position. During the significant budget cuts across the Australian Government, the continued operation of the ALRC was reviewed (Croucher, 2018). The ALRC’s budget was cut to the point of having ‘no further capacity to reduce expenditure’ (ALRC, 2011, para 58). However, unlike the COAG Reform Council, it remained functional. Nevertheless, the risk of losing expert knowledge and institutional support for major harmonisation efforts seems to be a very real possibility. Given the growth of legislation and the need to further develop harmonised legislation, it is understandable that the budget cuts have led to an Australian Senate inquiry (Hogg, 2011) and have considered a sign that ‘independent legal advice is not valued by the government’ (Ayers, 2013, p. 41). This development is troubling because ALRC has been a key institution for national reforms. Nonetheless, the ALRC is continuing and took an innovative approach to strategic planning the

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national reforms. An additional illustration of the importance of planning was the plan for reforms developed by the ALRC at the end of 2019 in The Future of Law Reform: A Suggested Program of Work 2020–25 report (ALRC, 2019). The project was built on cooperation between the legal profession and academia, with the objectives including ‘efficiency, proactivity, and inclusiveness’ (ALRC, 2019, p.  9). Unlike other reports, the report has been an initiative of the ALRC and was not produced in response to the terms of references by the Australian Government. The report lists the following areas as the priorities for national reforms: automated. administrative decision-making, principle-based regulation of financial services, defamation legislation, press freedom and public sector whistleblowers and legal structures for social enterprises (Hill & Garrick, 2022). Since the 1994 recommendations, the PCC has managed most legislative drafting of national uniform legislation. The PCC has provided a forum for discussing and drafting national uniform legislation and other activities that are less relevant to this thesis; for example, a forum for discussing the development of legislation in general, management of drafting offices, IT support for drafting practices and legislation databases (Hill & Garrick, 2022). Although the heads of the legislative offices have always been in contact with each other, the earliest recorded meeting of the PCC occurred from the 20 to 25 February 1970 (PCC, 2018, Appendix 2). Currently, the PCC comprises the heads of the following offices: the Australian Capital Territory (ACT) Parliamentary Counsel’s Office, Australian Government Office of Parliamentary Counsel, NSW Parliamentary Counsel’s Office, New Zealand Parliamentary Counsel Office, Northern Territory Office of the Parliamentary Counsel, Queensland Parliamentary Counsel, South Australia Office of Parliamentary Counsel, Tasmania Office of Parliamentary Counsel and Western Australia Parliamentary Counsel’s Office. The value of the PCC’s work on national uniform legislation has been commended as ‘useful’, as reflected in the following statement: Members of the Committee are well known to each other, and legislative matters are discussed in a friendly and frank way, with the application of the highest drafting principles. There can be no doubt that the work of the Committee has made a major contribution to Australian legislation. (PCC, 2018, p. 17)

Since 2002, the PCC has drafted the following national uniform legislation bills: Child Protection (International Measures) Bill 2002, Health Practitioner Regulation National Law Bill 2009, Model Defamation Provisions 2005, Personal Property Securities (Commonwealth Powers) Bill 2009, Commercial Arbitration Bill 2010, Model Work Health and Safety Regulations 2014 and Succession Amendment (International Wills) Bill 2012 (the list is non-exhaustive). In addition to developing the central drafts of national uniform legislation, the ALRC and PCC have been at the forefront of conceptualising national uniform legislation. The ALRC has provided important insights into harmonisation through its reports. For example, Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC, 2003) highlighted the importance of harmonising anti-discrimination, forensic procedures and health privacy legislation between Australian jurisdictions,

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simultaneously identifying the gaps in fragmented regulations. As already stated, the PCC also developed the Protocol. The PCC’s budget is less defined than the ALRC’s budget. The PCC does not have direct funding. Instead, shared resources and collegiate funding are used for its work (Hill & Garrick, 2022). The sole purpose of COAG, now the National Cabinet, was to promote intergovernmental cooperation and national reforms. COAG was established in 1992 as a forum for debating and coordinating activities between the three tiers of government: the federal government, state and territory governments and local government (it must be noted, the National Cabinet comprises the Prime Minister, Premiers and Chief Ministers, local government is included in other structures). Therefore, COAG’s effects on national uniform legislation have been instrumental, historically. The ‘nation’s peak intergovernmental body’ (Davis & Silver, 2015, p. 467), as it has been called, was a revival of the 1855 Federal Council of Australasia. The members of COAG were the prime minister, state premiers, chief ministers of the territories and the president of the Australian Local Government Association. COAG was a forum ‘for high level discussion of matters of strategic national importance that can only be solved by cooperation and collaboration’ (Department of the Prime Minister and Cabinet [DPMC], 2015). During the 2000s, national uniform legislation became an imperative and was raised to a government priority level through the COAG Reform Agenda. The goal was to improve the wellbeing of all Australians: to raise living standards, boost productivity, boost economic and social participation, establish a strong national economy, make Australia sustainable and liveable, provide a sustainable health system and services and close the gap on the disadvantage experienced by Indigenous Australians (COAG, 2018). One of the most prolific areas for national uniform legislation has involved creating a seamless national economy and a single Australian market (COAG Reform Council, 2012). In November 2008, 27 areas of regulatory reform were prioritised and, together with eight competitive reforms, were reflected in the preparation of the National Partnership Agreement to Deliver a Seamless National Economy, ratified in February 2009. The Reform Agenda was extremely ambitious. The COAG Reform Council’s Chairman, McClintock (2013), remarked: ‘collectively, [these reforms] have huge potential to boost our economic output and our competitive advantage regionally and globally’ (p.  71). McClintock (2013) highlighted the importance of these reforms, stating that ‘given the now urgent and sustained attention needed on productivity, the COAG Reform Agenda is more important than ever’ (p. 71). While the managerial aspects of the Reform Agenda can be criticised, in retrospect, the agenda may have been the most powerful tool of intergovernmental national reforms in Australia. In 2014, however, the COAG Reform Council was disbanded. It is also important to note that COAG and its Reform Agenda (including the seamless economy stream) have been criticised and supported. The forum is closed – Saunders and Foster (2014, p. 90) referred to COAG as the institution fostering centralisation. Anderson described COAG as an institution promoting

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executive federalism and supporting centralisation within the federation (2008, p.  506). Similarly, Griffith (2009, p. i) emphasised the managerial function of COAG, criticising its pragmatic character and indifferent attitude to ‘the proper distribution of powers within a federal structure’. COAG has also been criticised for being ‘overloaded and ineffective’ (‘COAG Is Broken, Time to Trade It In’, 2013). There has been some criticism in the literature related to how decisions have been made in COAG (Griffith, 2009; Kildea & Lynch, 2011; Veronesi et al., 2014), particularly the centralism trend and powers of the legislature being absorbed by the executive. Additionally, COAG was in a precarious position because it was not a permanent body and depended heavily on the government of the day, predominantly the Commonwealth government. Despite this criticism, COAG has also been a powerful intergovernmental forum with a strong effect on national uniform legislation (Hill & Garrick, 2022). Accordingly, the criticism has been countered by COAG supporters, who have stated that ‘COAG decisions are commonly the result of long-term debate and consultation, including through policy communities and networks’ (Menzies, 2012). Thus, although the role of COAG and the COAG Reform Agenda might have been contested, it is evident that it has played an important role (Hill & Garrick, 2022). To counter the criticism, the suggestions on improving COAG to stop ‘muddling through’ included introducing a new architecture to support cooperative federalism (Select Committee on the Reform of the Australian Federation, 2011). Saunders and Crommelin (2015, p.  12) proposed new forms of intergovernmental institutions, suggesting that the Federal Council and the Federation Commission could be revived. Anderson proposed a National Cooperation Commission (Anderson, 2008). The point is that any architecture should include a national forum for discussion and decision-making, such as that proposed in the final report from the Australia 2020 Summit. This involved the COAG, Integrated Planning Framework, Federation Commission and Constitutional Convention (DPMC, 2008). A combined effort is more likely to be conducive to fostering the principles of cooperative federalism. These suggestions were not implemented as the 2020 bushfires and COVID pandemic have marked the transformation of COAG into the National Cabinet (examined in the next section). The growth of national uniform legislation through this golden era stage has been significant and accompanied by accusations of the threats to the parliamentary sovereignty and centralisation, as stressed by a position paper of the Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia (1996, p. v): Effective parliamentary scrutiny has been threatened because of the rise of national schemes of legislation which emerge from such bodies as the Council of Australian Governments and various Ministerial Councils. Expressed at its simplest level, such councils agree to uniform legislation, usually in closed session, and then proceed through the participating Ministers to sponsor Bills through individual Parliaments, often with the message that the Bills cannot be amended for fear of destroying their uniform nature.

These concerns were valid in the circumstances of the rise and rise of the national uniform legislation but have now been replaced by the concerns of the missing

3.5  Bushfires and the COVID-19 Pandemic

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institutional support for meaningful law reform, given the budget implications and further development. Overall, the ALRC, PCC and COAG (now the National Cabinet) are instrumental to national uniform legislation in Australia. For centrally developed and drafted legislation, their work has included significantly more projects than any other body. However, the position of these bodies is not stable. In 2014, the COAG Reform Council was disbanded. In the same year, the position of the ALRC was considered but remained unchanged, although its budget allocation was reduced in the 2011–2012 financial year. The PCC’s work currently relies on shared resources and collegiate budget allocations. Under these circumstances, the foundations these bodies rely on are, at times, challenging, given the important functions these bodies fulfil. These institutions and circumstances have been challenged further with the emergencies of 2020.

3.5 Bushfires and the COVID-19 Pandemic The debate regarding interjurisdictional cooperation and appropriate institutional support intensified in 2020 due to the bushfires, floods and COVID-19 pandemic. Consequently, COAG was supplanted by a new institution: the National Cabinet. These emergencies demonstrated that coordination is vital for the Australian federation, but if coordination is required during the crisis, it must be planned before any possible crisis (Hill et al., 2021). Coordination can still occur when responding to crises but only on a superficial level because jurisdictions must respond to local urgent issues. It is also likely that challenges will affect jurisdictions differently due to variations in climate, geographical conditions and population densities. The bushfires in early 2020  in Australia were unprecedented in their size and multitude during a single fire season. These bushfires affected all states, burning ‘bushland in Queensland, [NSW], Victoria, South Australia, Western Australia and Tasmania’ (Bowman & Bradstock, 2020). Constitutionally, and historically, responsibility for response to natural emergencies has been in the remit of the states and territories. There is no Commonwealth civil national emergency response team. In these circumstances, the federal government supports the jurisdictions through additional funding for fire extinguishing and recovery, sending the Australian Defence Force personnel and using the national aviation program. However, due to an extraordinary scale, an extraordinary step was taken by gathering ‘3,000 Australian Defence Force reservists and mobilising navy ships and military bases to aid the emergency response’ (Dominey-Howes, 2020). In retrospect, this was insufficient in the circumstances, and more will be demanded from the federal government in the future: ‘future disaster management will require Australia to step up’ (Dominey-Howes, 2020). Due to the seriousness of the threats, as Australia is prone to the natural emergencies, the Royal Commission into National Natural Disaster Arrangements (2020) was appointed to focus on improving coordination, preparedness and response, as well as, analysis of the legal framework for federal involvement in responding to national emergencies and how that works with state and

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territory legal frameworks (Royal Commission into National Natural Disaster Arrangements, 2020, p. 19). The main findings of this Royal Commission related to the necessity of better cooperation not only among all government levels but with additional focus on whole-of-nation cooperation, i.e.: Whole-of-nation’ effort and cooperation is necessary to make Australia more resilient to natural disasters. This calls for action, not only by governments and individuals, but also by industry, businesses, charities, volunteers, the media, community groups and others. (Royal Commission into National Natural Disaster Arrangements, 2020, p. 32)

As the floods of early 2022 demonstrated, the whole of nation approach was still difficult to achieve. As for the response to the COVID-19 pandemic, the Australian federation’s respond efficiency and level of cooperation varied depending on the pragmatic consideration of the governments working in a crisis regime on both levels. Policy-­ making during crises is characterised by ‘uncertainty, ambiguity, complexity and urgency’ (Wenzelburger et al., 2019, p. 97). The new body, the National Cabinet, has been established to respond to COVID-19 challenges and comprises state premiers and territory chief ministers ‘to lead the national response at a government level’ (Morrison, 2020b). The establishment of the National Cabinet was accompanied by the partnership agreements on a COAG level. On 13 March, COAG adopted a National Partnership on COVID-19 Response (COAG, 2020) and a National Partnership of Disaster Risk Reduction (COAG, 2020). The National COVID-19 Coordination Commission has been established to ‘coordinate advice to the Australian Government on actions to anticipate and mitigate the economic and social effects of the global coronavirus pandemic’ (Morrison, 2020a). There have been early indications for the National Cabinet to continue permanently after the pandemic is over, effectively replacing COAG. On 14 April 2020, Prime Minister Morrison stated: ‘the processes we’ve established for the National Cabinet may prove to be a better way for our federal system to work in the future, but this will be a matter for another time’. In an interview with a newspaper, he also noted that ‘[t]he national cabinet process has removed the political boundaries that can hamper COAG’ (‘PM Weighs Permanent National Cabinet’, 2020). The 2020 Review of COAG Councils and Ministerial Forums has recognised that ‘Australia’s federal structure, built upon financial, legislative and policy responsibilities, requires intelligent cooperation on issues of strategic national significance’ (Conran, 2020). A new structure of federal cooperation includes the National Federation Reform Council (NFRC) and National Cabinet, supported by the Council of Federal Financial Relations (CFFR) and National Cabinet Reform Committees consisting of committees in six priority areas: rural and regional, skills, infrastructure and transport, population and migration, energy and health and assisted by expert advisory groups. The National Cabinet is a forum for the Prime Minister, Premiers and Chief Ministers to meet and work collaboratively. In contrast with the COAG, the President of the Australian Local Government Association is not on the National Cabinet, but on the National Federation Reform Council. The National

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Federation Reform Council is a forum for the ‘leaders and treasurers across the Commonwealth and states and territories to focus on priority national federation issues’ and comprises the Prime Minister, State Premiers and Territory Chief Ministers, Treasurers from each jurisdiction and the President of the Australian Local Government Association (Australian Federal Relations Architecture, n.d.-b). The Reform Council has five committees: rural and regional Australia, skills, energy, infrastructure and transport and health; additionally, the Council on Federal Financial Relations (comprising treasurers of nine jurisdictions with the Commonwealth treasurer chairing the Council) is responsible for reforms in the following areas: tax, deregulation, housing and population planning, with an initial focus on deregulation (Australian Federal Relations Architecture, n.d.-c). It ‘meets on a similar basis as the National Cabinet’ under its terms of reference (CFFR, 2021). In addition, the National Federation Reform Council established three taskforces on women’s safety, Indigenous affairs and veterans’ wellbeing (Morrison, 2020c). As opposed to the COAG’s ministerial councils and ministerial forums, the current intergovernmental work and cooperation is steered through Ministers’ Meetings. The Minister’s Meetings are conducted as regular and time-limited meetings. The regular Meetings are conducted in the following areas: data and digital, disability reform, education, energy, emergency management, environment, health, Murray Darling basin, skills and transport and infrastructure. The time-limited Meetings consist of the following: agriculture, Attorneys-General, AUS-NZ food regulation, building, community services, gene technology, Northern Development, planning and Redress Scheme Governance Board (Australian Federal Relations Architecture, n.d.-a). In accordance with the guidance for intergovernmental meetings, the ongoing meetings must meet three objectives: enabling ‘national cooperation and consistency on enduring strategic issues’, addressing ‘issues requiring cross border collaboration’ and performing ‘regulatory and policy and standard setting function’ (Department of the Prime Minister and Cabinet, 2020b, p. 4). If a minister wishes to establish a time-limited meeting, the minister has to ‘set out the purpose, outcomes and duration of the group, demonstrating that it does not overlap with the work of existing meetings and that there is broad support from relevant ministers in other jurisdictions (as appropriate) for its establishment’ (p. 4). The time limit for these meeting is 12 months. The meetings should be conducted online with the face to face meetings capped to one or two a year (p. 6). Decision making during the meetings is based on consensus (p. 8). The secretariat functions of these meetings are carried out by the relevant Commonwealth Department (p. 7). One of the meetings that is most relevant for this research is the Meeting of Attorneys-General (MAG). In 2021, the MAG agenda consisted of three national priorities: (1) Protecting Older Australians – National Register of Enduring Powers of Attorney, (2) Model Defamation Reform; and (3) Family Violence  – National Information Sharing Framework;. At the Meeting of Attorneys-General (MAG) in November 2021, participants agreed that the work program priorities for 2022 will comprise the following: (1) Enduring Powers of Attorney; (2) Model defamation provisions; and (3) Access scheme for digital records after death or incapacity.

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(Commonwealth Attorney General’s Department, n.d.) Therefore, two of the priorities remained unchanged while work on information sharing network is now assigned to the Office of the Information Commissioner. The Office will conduct a review into the information sharing scheme in 2021–22 and 2024–25 (Australian Government, 2021). With the increased requirements for cooperation and subsequent growth of national uniform legislation, the institutional support for this development has continued to change. Despite the profound importance of drafting and developing national uniform legislation in the Australian federation, no specific body has been dedicated to the task. Even the recent reform to intergovernmental architecture did not produce a clear institutional path for developing and drafting national uniform legislation (Hill & Garrick, 2022). This contrasts with the Uniform Law Conference of Canada and the Uniform Law Commission of the USA. Developing policies and drafting national uniform legislation has historically been performed by the ministerial councils (including the National Cabinet, former COAG), ALRC, PCC and other bodies, such as state and territory law reform bodies, respective parliamentary committees, specifically established bodies and other ad hoc bodies (Barnett, 2011, p. 192). Because no single institution manages most sets of uniform Acts, there is a dependence on cooperation between jurisdictions and institutions (see Sect. 4.2). Therefore, developing a common understanding and knowledge (including conducting this research) is even more important for filling the gaps in asymmetrical knowledge to achieve effective and efficient national reforms when required.

3.6 Conclusion The main stages of the development of national uniform legislation in Australia can be divided as follows: (1) sets of uniform Acts before federation and during the establishment of the federation; (2) national reforms before and after WW2; (3) the golden era of national uniform legislation with increased interjurisdictional cooperation and proliferation of national uniform legislation as a consequence; (4) the emergencies that occurred in 2020 – bushfires across several jurisdictions and the COVID-19 pandemic with the substantial reform to the intergovernmental cooperation. Unlike its predecessor, COAG, the National Cabinet meets monthly (Department of the Prime Minister and Cabinet, 2020a). All other intergovernmental bodies are encouraged to replicate the National Cabinet’s best practice ‘guidance for meetings – both strategically and administratively’ (DPMC, 2020b, p. 2). In 2020s, the challenges have intensified with the international threats and foreign influences, intra-state national disasters, pandemic with shadow pandemic of domestic violence, substance abuse and mental health concerns. These events bring new challenges and opportunities for emerging and longstanding national reforms. These challenges change the perspective forcing governments and citizens to reconsider the principles, architecture and tools for developing and drafting national

References

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uniform legislation, while highlighting the gaps in architecture and institutional support. Several institutions have developed and drafted national uniform legislation consistent with the cooperative federalism theory, including the National Cabinet (formerly COAG), ALRC and PCC.  In some cases, the specialised institutions have been established to work with a particular set of uniform Acts; for example, SafeWork Australia was established for work health and safety legislation, and the ACCC and ASIC were established for consumer and corporation legislation, respectively. This choice of institution affects the uniformity of legislation and is examined in Chap 6.

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Hill, G., & Garrick, J. (2022). A critical review of Australian law reform architecture for developing National Uniform Legislation: Reinvent, create or strengthen? Australian Law Journal, 96(4), 256–272. Hill, G., Garrick, J., & Barton, N. (2021). Faultlines of federation: Australia’s intergovernmental cooperation and human rights during the pandemic. Journal of Transnational Law and Policy, 30, 119–150. [3]. https://heinonline.org/HOL/P?h=hein.journals/jtrnlwp30&i=127 Hogg, J. (2011, March 31). Inquiry into the Australian Law Reform Commission: Interim report. Standing Committee on Legal and Constitutional Affairs, The Senate, Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Legal_and_Constitutional_Affairs/Completed_inquiries/2010-­13/lawreformcommission/ interimreport/index Imperial Bills of Lading Act 1855 (UK). https://www.legislation.gov.uk/ukpga/Vict/18-­19/111/ contents Information on Medical Procedures Bill 1989 (Vic). Kildea, P., & Lynch, A. (2011). Entrenching ‘cooperative federalism’: Is it time to formalise COAG’s place in the Australian federation? Federal Law Review, 39(1), 103–129. https://doi. org/10.22145/flr.39.1.4 Law Reform (Miscellaneous Provisions) Amendment Bill 1989 (ACT). https://www.legislation. act.gov.au/a/1982-­95// Law Reform Commission Act 1973 (Cth) (repealed). https://www.legislation.gov.au/Details/ C2004C05075 Lundie, R. (2011, March 8). Reform of ministerial councils. Parliament of Australia. http:// www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/ FlagPost/2011/March/Reform_of_Ministerial_Councils Mason, A. F. (1971). Law reform in Australia. Federal Law Review, 4(2), 197–217. http://classic. austlii.edu.au/au/journals/FedLawRw/1971/16.html McClintock, P. (2013). COAG’s reform agenda, the seamless national economy and accountability for outcomes. Australian Journal of Public Administration, 72(1), 66–72. Medical Practitioners (Informed Decisions) Amendment Bill 1989 (NSW). Menzies, J. (2012). Executive federalism and accountability—A workable system [Paper presentation]. COAG Reform Council: Seminar on Accountability for Specific Purpose Payments, Sydney, Australia. Model Children’s Evidence (Closed Circuit TV) Bill 1992 (ACT). Model Debts Repayment Bill 1978 Model Defamation Provisions 2005 Model Evidence Bill 1987. Model Work Health and Safety Regulations 2014. Morrison, S. (2020a, March 25). National COVID-19 coordination commission [Media release]. Prime Minister of Australia. https://www.pm.gov.au/media/ national-­covid-­19-­coordination-­commission Morrison, S. (2020b, March 29). National cabinet statement [Media statement]. Prime Minister of Australia. https://www.pm.gov.au/media/national-­cabinet-­statement Morrison, S. (2020c, December 11). National Federation Reform Council statement [Media statement]. Prime Minister of Australia. https://www.pm.gov.au/media/ national-­federation-­reform-­council-­statement National Review into Model Occupational Health and Safety Laws. (2008, October). First report. Australian Government Attorney-General’s Department. https://www.ag.gov.au/industrial-­ relations/publications/national-­review-­model-­occupational-­health-­and-­safety-­laws-­first-­report Offer, A. (1981). Property and politics, 1870–1914: Landownership, law, ideology, and urban development in England. Cambridge University Press. Parliamentary Counsel’s Committee. (2018, February 21). Protocol on drafting national uniform legislation (4th ed.). https://pcc.gov.au/uniform/Uniform-­drafting-­protocol-­4th-­edition.pdf Personal Property Securities (Commonwealth Powers) Billboard 2009. Piesse, E. (1939). Uniformity of state laws: A proposal for action. Australian Law Journal, 13, 176.

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PM weighs permanent national cabinet. (2020, April 14). The Canberra Times. https://www.canberratimes.com.au/story/6721545/pm-­weighs-­permanent-­national-­cabinet/?cs=14231 Real Property Act 1858 (SA). https://www.legislation.sa.gov.au/LZ/C/A/REAL%20 PROPERTY%20ACT%201886/CURRENT/1886.380.AUTH.PDF Report of the Commissioners on the Registration of Title with Reference to the Sale and Transfer of Land (CP 2215, 1857—Session 2) para XL cited in Gray, K.  J., & Gray, S.  F. (2009). Elements of land law. Oxford University Press. Royal Commission into National Natural Disaster Arrangements. (2020, October 28). Report. Commonwealth of Australia. https://naturaldisaster.royalcommission.gov.au/publications/ royal-­commission-­national-­natural-­disaster-­arrangements-­report Saunders, C., & Crommelin, M. (2015). Reforming Australian federal democracy (Research Paper No. 711). University of Melbourne Legal Studies. https://papers.ssrn.com/sol3/papers. cfm?abstract_id=2616590 Saunders, C., & Foster, M. (2014). The Australian federation: A story of the centralization of power. In D.  Halbertsam & M.  Reimann (Eds.), Federalism and legal unification: A comparative empirical investigation of twenty systems (1st ed., pp. 87–102). Springer. https://doi. org/10.1007/978-­94-­007-­7398-­1_3 Sawer, G. (1963). Federal–state cooperation in law reform: Lessons of the Australian Uniform Companies Act. Melbourne University Law Review, 4(2), 238–253. http://classic.austlii.edu. au/au/journals/MelbULawRw/1963/23.html Scrutiny of Acts and Regulations Committee. (1996, December). Review of redundant and unclear legislation: Review of the Hire-Purchase Act 1959 (Report No. 31). Parliament of Victoria. https://www.parliament.vic.gov.au/papers/govpub/VPARL1996-­98No31.pdf Select Committee on the Reform of the Australian Federation. (2011, June). Australia’s federation: An agenda for reform. Commonwealth of Australia. https://www.aph.gov.au/ Parliamentary_Business/Committees/Senate/Former_Committees/reffed/reffed/report/index Spigelman, J. (2018). An Australian perspective on Brexit. Quadrant, 62(3), 22–29. Standing Committee on Legal and Constitutional Affairs. (1994, May). Law reform—The challenge continues: A report of the inquiry into the role and function of the Law Reform Commission of Australia. House of Representatives, Parliament of Australia. https://www.aph. gov.au/parliamentary_business/committees/house_of_representatives_committees?url=repo rts/1994/1994_pp89report.htm Succession Amendment (International Wills) Bill 2012. Veronesi, G., Harley, K., Dugdale, P., & Short, S. D. (2014). Governance, transparency and alignment in the Council of Australian Governments (COAG) 2011 national health reform agreement. Australian Health Review, 38(3), 288–294. Wenzelburger, G., König, P. D., & Wolf, F. (2019). Policy theories in hard times? Assessing the explanatory power of policy theories in the context of crisis. Public Organization Review, 19(1), 97–118. https://link.springer.com/article/10.1007/s11115-­017-­0387-­1

Chapter 4

Cooperative Federalism

Abstract  This Chapter provides a broader theoretical framework of federalism within which national uniform legislation exists. Ultimately, federalism is a power sharing mechanism. National uniform legislation is the product of this power sharing distribution and exists due to the blurred lines of shared federal responsibility. National uniform legislation is required in cases of novel phenomena or areas of the law requiring modernisation for intersecting, conflicting areas that overlap with state and territory powers. This book builds on the cooperative federalism theory while recognising more critical views related to federalism, in particular, its pragmatic tendencies. An examination of sections 51 and 52 of the Constitution and the database of national uniform legislation (LawLex) clarified the areas of the law where national uniform legislation is required, including the areas of traditional state jurisdiction and novel areas that did not exist in 1901. National uniform legislation does not fit in neatly into categories, pointing to complexity and complicated responses required for its development and drafting.

4.1 Introduction National uniform legislation relates to many aspects of society, such as searching for cancer cures, counterterrorism cooperation, surrogacy and pandemic regulation. These are just some of the challenges the founders of the Australian federation knew nothing about. However, policymakers, legislative drafters and law reformers must work within the confines of the Constitution and its distribution of legislative powers between the federal, state and territory governments. Thus, it is important to understand the broad legal framework to deliver optimal policy outcomes (Brown, 2007, 2016; Deem et al., 2015). This chapter critically analyses federalism in the context of national uniform legislation and examines the federal distribution of powers, areas of law requiring national uniform legislation and the federalism theory. Australian federal system allows national policy to reflect common social and communal values of people and allow for diversity in policy where required. Federalism also recognises that states © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_4

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and territories may best be able to solve problems in different ways. Thus, this chapter examines the Constitutional basis for distribution of legislative powers and the theoretical underpinnings of cooperative federalism.

4.2 Distribution of Powers and Areas of the Law Requiring National Uniform Legislation National uniform legislation has usually been used to establish national coherence in areas where the Australian federal Government has limited or no powers to legislate under the Constitution. In this sense, uniform legislation is a by-product of the federal system and the Constitution. Without federation or specific distribution of legislative powers, national uniform legislation would not exist. The Constitution (ss 51, 52) lists most of the Australian Government’s legislative powers. Australian Constitution 51. Legislative powers of the Parliament The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) Trade and commerce with other countries, and among the States; (ii) Taxation; but so as not to discriminate between States or parts of States; (iv) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) Borrowing money on the public credit of the Commonwealth; (v) Postal, telegraphic, telephonic, and other like services; (vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; (vii) Lighthouses, lightships, beacons and buoys; (viii) Astronomical and meteorological observations; (ix) Quarantine; (x) Fisheries in Australian waters beyond territorial limits; (xi) Census and statistics; (xii) Currency, coinage, and legal tender; (xiii) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) Weights and measures; (xvi) Bills of exchange and promissory notes; (xvii) Bankruptcy and insolvency; (xviii) Copyrights, patents of inventions and designs, and trade marks; (xix) Naturalization and aliens;

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(xx)  Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) Marriage; (xxiv) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) Invalid and old-age pensions; (xxiiiA) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; (xxvi) The people of any race for whom it is deemed necessary to make special laws; (xxvii) Immigration and emigration; (xxviii) The influx of criminals; (xxix) External affairs; (xxx) The relations of the Commonwealth with the islands of the Pacific; (xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) Railway construction and extension in any State with the consent of that State; (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii)  Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States,15 but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix)  Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

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Australian Constitution 52. Exclusive powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i)  the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; (ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament. The states and territories regulate everything that falls outside these powers. Sections 106, 107 and 108 of the Constitution preserve the constitutions, parliaments and laws of the jurisdictions. Thus, Australian federalism is characterised by duality, concurrency and ‘divided sovereignty’ (Parkin & Summers, 2006, p. 102). The duality arises because the state, territory and federal governments Act as agents for the people simultaneously and, at times, in the same fields. Consequently, there is a need for both a ‘delegation of powers to a higher level and [the] devolution of other powers to the local level’ (Wilets, 2010, p. 819) and ‘concomitant centrifugal and centripetal forces of state dissolution and reformulation’ (Wilets, 2010, p. 821). Thus, ‘federalism balances the interests of the nation as a whole with the rights of the states by dividing power between the two levels of government in accordance with local and national issues’ (Evans, 2010, p. 34). Section 109 of the Constitution deems state laws invalid if they are inconsistent with federal laws. Thus, if the area of the law falls under any legislative power stated in sections 51 or 52 of the Constitution, no national uniform legislation is required. National uniform legislation is required in cases of novel phenomena or areas of the law requiring modernisation for intersecting, conflicting areas that overlap with state and territory powers or have an ambiguous overlap. The theoretical and conceptual underpinnings of federalism are vital to this book. However, there are also dangers of adhering too vehemently to any single theoretical model in the changing world. There is a necessity for an empirically tested framework to improve the functions of Australian federalism, thereby generating and sustaining substantial future benefits for the Australian community. Therefore, this section will now examine the areas of the law that have the highest number of national uniform legislation. The resolution of this research sub-question was hindered by the difficulty of finding a set classification for areas of the law. After some consideration, LawLex by SAI Global was identified as the most suitable database. It has an intuitive index and provides an open access system specifically designed to work with legislation. The LawLex subject index (the first level) (LawLex, n.d.) contains legislation relating to the following categories of the law: • banking and finance • business, trades and professions • commercial and corporate

4.2  Distribution of Powers and Areas of the Law Requiring National Uniform…

• • • • • • • • • • • • • • • • • • • • • • • • • •

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criminal culture and recreation education, training and research employment and industrial energy and resources environment family and relationships government government financing health human rights immigration and citizenship Indigenous Australians insurance intellectual property international legal system media and communications primary industry privacy property, housing and development social services superannuation taxation transport wills and estates.

The research for this book followed a simple classification protocol based on the LawLex data. Once an Act was found in the database, the area listed by LawLex was adopted. For example, agricultural and veterinary legislation (see the Appendix) was indexed by LawLex under ‘primary industries’. The work health and safety legislation (see the Appendix) was indexed under ‘employment and industrial law’. Uniform evidence Acts (see the Appendix) were indexed under ‘legal systems’. A simple frequency statistical analysis was used to identify how many sets of uniform Acts belonged to certain areas of the law. The findings indicate that in some areas, the need for national uniform legislation is more notable. Data from all 85 sets of uniform Acts were used. Table 4.1 shows that most national uniform Acts fall within the following categories of the law: criminal (n = 13), commercial and corporate (n = 10), legal systems (n = 9), transport (9), energy and resources (n = 7) family law and relationships (n = 6), government (n = 7) and health (n = 5). Additionally, Table  4.1 demonstrates that certain areas of the law have fewer national uniform Acts or have no national uniform legislation. This might be due to the lower necessity for cooperation in these areas of the law or other factors. Table 4.1 depicts the areas of the law with the highest frequencies of national uniform legislation. If the content of this table and sections 51 and 52 of the Constitution

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Table 4.1  Distribution of sets of uniform Acts by area of law in LawLex Index Area of law Criminal law Commercial and corporate law Legal systems Transport Energy and resources Family law and relationships Government Health Business, trades and professions Employment and industrial law Property, housing and development Education, training and research Environment Taxation Immigration and citizenship Indigenous Australians Media and communications Primary industry Wills and estates

Number of sets of uniform Acts 13 10 9 9 7 6 6 5 3 3 3 2 2 2 1 1 1 1 1

Source: Constructed by the author first published (Hill, 2020b), updated in line with the database updated in November 2020. Permission granted

are overlayed, it would be difficult to draw any clear lessons or clear lessons on when exactly national uniform legislation would be required. For example, long-­ needed reforms to domestic violence legislation across legislation do not fit in in any of the areas listed in the Constitution, and fall somewhere in between criminal law and family law of the above table. This creates a difficult problem. Indeed, at times, ‘institutional and political forces create strong inertial pressures that make updating legislation a difficult task’ (Eyal-Cohen, 2021, p. 1193). with some of this inertia being coalition-driven act of preserving the status quo. When Croucher was discussing the family violence reform  – ‘The first family violence inquiry was one of the biggest challenges for the ALRC to date, given its incredibly complex nature. There are many involved in trying to find the way out of this particular maze. The challenge is that it does not end up like a children’s swimming party—lots of arms and legs and much thrashing in the water—with so many inquiries going on almost simultaneously. It is a metaphor that may also be applied to the contrasting, even clashing, and possibly contradictory, way in which the various laws concerning family violence operate in Australia. The goal is that we should end up as Olympic-level synchronised swimmers.’ (Croucher, 2014, p.  213). Further analysis of this table is provided in Chaps. 5, 6, 7, and 8 of this book.

4.3  Australian Federalism and Cooperative Federalism Theory

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4.3 Australian Federalism and Cooperative Federalism Theory With the rapidly changing modern reality compared to when the Constitution was enacted, national uniform legislation cannot be treated as a mechanism that is harmful to federalism. In essence, national uniform legislation is a product of federation. This book draws on cooperative federalism theory (Appleby et al., 2012; Kildea & Lynch, 2011; Twomey, 2007b; Wanna et al., 2009) to examine the balance for the distribution of powers (including legislative powers). The classic definition of federalism is ‘the method of dividing powers so that the general and regional governments are each within a sphere, co-ordinate and independent’ (Wheare, 1963, p. 10). More blunt and recent definition simply states that federalism is a ‘power-sharing mechanism’ (Petkova, 2022). The definition of federalism most relevant to the notion of national uniform legislation is ‘an aspiration and purpose simultaneously to generate and maintain both unity and diversity’ (Elazar, 1987, p.  64).Current beliefs and circumstances are different from the past when the Constitution was enacted. Fysh made the historical argument that ‘every member of the electorate must know that, in connection with the various developments of his [or her] own province, there can be no interference by an executive [who] will sit 1,000 miles away’ (Official Record of the Debates of the Australasian Federal Convention, 1891, 1:42). Fysh’s concerns might have been less potent today in the world that includes the internet, mobile technology, social media and distance being shortened by satellite technology (with the future developments forthcoming in drones and high-speed driverless transportation). Relentless changes have been fundamental: advances in science, artificial intelligence, social media and terrorism are just some of the challenges that the founders of the Australian federation could not have predicted. Nevertheless, today’s policymakers and legislative drafters must work within the constitutional powers established over a century ago. This underscores the need for cooperation between jurisdictions to enable the federation to manage these new realities (Painter, 2009, p. 2; Grant et al., 2016; Zimmermann & Finlay, 2011). It is critical to remember that early judgments on the distribution of federal and state powers were influenced by the circumstances and ideas of the time. In the absence of constitutional amendments, the parties will have to cooperate within the existing framework. Fenna (2009) opined that ‘Australia … is a federation in the privileged position of not needing federalism’ (p. 155). Brown (2012) conducted the largest empirical study in Australia on the value of federalism and found that the ability of federalism to be responsive and deliver required outcomes was important rather than the pure idea of federalism:While a strong majority of Australians can be seen as supporting federalism in principle … a major lesson of the Australian experience is the need for adaptability in the way in which institutions are configured to serve their communities if federal goals of unity with diversity are to be properly realised.

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Similar findings were confirmed in further research (Brown, 2013, 2016). Drummond developed this argument further by estimating the cost of federalism with the results of this calculations indicating that the ‘the Regional States or National–Local models could deliver greater decentralisation while saving over $20 billion per annum compared to the present system’ of the Australian federalism (Drummond, 2002). The fundamental change to the Australian federation is highly improbable: ‘reforming Australia's federation is a critical but elusive goal’. (Deem, 2021, p. 613). Livingston contended that ‘federalism is a function not of constitutions but of societies’ (Livingston, 1952, p. 88). This suggests the need for balance and, in part, reflects La Nauze’s (1972) explanation for how people of the 1840s under- stood federation: ‘a system of government in which central or “general” legislature made laws on matters of common interest, while the legislatures of the member’s states made laws on matters of local interest’ (p. 4). In other words, ‘federalism balances the interests of the nation as a whole with the rights of the states by dividing power between the two levels of government in accordance with local and national issues’ (Evans, 2010, p. 34). Scholars of the federalism have stated that the term ‘federalism’ (as intended by the founders of Australia in the Constitution) refers to the states being ‘equal partners with the new national government’ (Wiltshire, 2008, p. 76). This ‘equal partners’ perspective has tended to reflect the historical debate. Its adherents have urged the federal government to ‘keep out of areas that belong to states according to the Constitution’ (Gibbs, 2005, Appendix 2), with the national government maintaining a narrowly defined list of exclusive powers (mainly found in the Constitution, ss 51, 52). However, more recently, there has been an increasing tendency for matters of national concern to depend on cooperative efforts, with proponents of this perspective holding that states’ rights have not been declining but rather changing in nature. Indeed ‘there are some areas where cooperation tends to transcend competition because we recognise there is a need for harmonised laws’ (Williams, 2010, p. 15–16). In a world where ‘cross-border data flows transcend sovereign jurisdictions’ (Bello, 2016, p. 133), the states and territories have adapted by cooperating. The objectives have been the optimal distribution of resources for harmonisation (or where distinctive laws have been required) and to ‘enable rapid response to international [and local] threats or opportunities’ (Bello, 2016, p. 135).Hill (2019, 2020a) summarised that several theories of federalism characterise the relations between jurisdictions, including: • ‘competitive federalism’, where the states and territories compete for better outcomes to attract more citizens—‘policy diversity among the states means that people are presented with meaningful choices if they decide to relocate and indicates that federalism is generating governments that respond to the particular needs of local communities’ (Stephenson, 2014, p. 714; see also Kasper, 1994). • ‘dual federalism’, where there is ‘the need to safeguard and foster the distinctiveness to preserve the separate systems of democratic accountability embodied in dual government’ (Painter, 1998).

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• ‘collaborative’ or ‘cooperative federalism’, where jurisdictions cooperate to reach common goals (Painter, 1996; Saunders, 2012; Wanna et al., 2009). • ‘organic’ or ‘integrated’ federalism (Sawer, 1976, p. 64), where centralisation is strong and regions lose their bargaining capacity: the centre has such extensive powers and gives such a strong lead to regions in the most important areas of their individual as well as their cooperative activities, [the] organic stage begins to develop as the regions lose any substantial bargaining capacity in relation to the centre (Sawer, 1976, p. 104).

• ‘opportunistic federalism’, where the central government uses opportunities to usurp more power (Conlan, 2006; Twomey, 2007a). • ‘coercive federalism’, where the federal government is ‘unduly authoritarian’ –– towards the states and territories (Griffith, 2009; Wise, 2011). • ‘administrative federalism’, which has a ‘tendency toward[s] increased Commonwealth power … combined with bursts of [intergovernmental] activity …, assisted by financial sweeteners’ (Phillimore & Fenna, 2017, p. 600). • ‘managerial federalism’, where the executive branch of power dictates the legislative branch (Griffith, 2009). • ‘pragmatic federalism’, which is shaped by the immediate problem rather than an underlying theory (Hollander & Patapan, 2007)—it revolves around a problem-­ solving orientation rather than one that is ‘principles-centred’ (Hollander & Patapan, 2007) and is a practical approach to achieving public policy goals, such as national uniform legislation (Deem et  al., 2015) (e.g., a pragmatic practice might include achieving sustainable uniformity by drafting skeletal sets of Acts [see Chap. 7]). • ‘dynamic federalism’ where federalism, internationally, demonstrates an ever-­ growing realm with many combinations between varying level of autonomy (self-rule and shared rule), tradition (mature and emerging), cohesion (full-­ fledged and quasi) and distribution of powers (symmetric and asymmetric) multi-tiered systems (Popelier, 2021). • ‘data federalism’ that concerns intergovernmental exchange of personal data, in the context of ‘federalism that is always evolving: in the powers it distributes, in the ways it facilitates cooperation and incites conflict, and in the tools it provides our governments to jointly address common problems.’ (Fahey, 2022, p. 1080). This book draws on cooperative federalism theory (Henrÿ, 2012; Opeskin, 2001; Painter, 2009; Saunders, 2012; Twomey, 2007b; Wanna et al., 2009) while acknowledging a more critical perspective of pragmatic federalism. However, ‘cooperation’ is not a sterile and rational exercise in a laboratory setting (Hill, 2019). There are also conflicts, hard partisan stances and complex political challenges (Hanson & Zeemering, 2021). This cooperative federalism is best conceptualised as a policy development ‘dance’ consisting of ‘seemingly random movements rather than choreographed order’ (Althaus et  al., 2012, p.  41). Cooperation is invariably

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characterised by complexity, contested choices, unexpected events and competing roles (Edwards, 2002, p. 424–425). The centralisation tendencies of Australian federalism are evident (Phillimore & Fenna, 2017) and recognised by this book. Phillimore stated that ‘state governments are part of a federation in which the Commonwealth government is fiscally dominant and has greatly expanded its policy ambition and reach over the past century’ (Phillimore & Arklay, 2015, p. 87). There is tension between the need for a national response to a growing number of challenges and the need to respect the constitutional separation of legislative powers between the federal, state and territory jurisdictions. Cooperation must consider the rights and relative power and resources of the participants (i.e., of the federal, state and territory and local governments). The High Court considered intergovernmental agreement as largely political in nature and was reluctant to treat these agreements as creating rights and duties enforceable in courts. For example, in the case of railway standardisation, the then Chief Justice, Sir Owen Dixon, stated: The agreement now in question certainly contains provisions which no court could undertake specifically to enforce, that is by detailed specific relief, yet in general terms what each government undertakes to do is defined or described with sufficient clearness, and, in the case of some provisions, on fulfilment of the work undertaken on one side there can be little doubt that the financial responsibilities on the other side would be considered legal obligations capable of enforcement by any judicial remedy available in the case of a government liability. Enough has been said to show that in the first place, to generalize about the operation of the agreement in question must be unsafe and misleading and that in the second place, it could only be in respect of some definite obligation the breach of which is unmistakably identified that a court can pronounce a judicial decree in a case such as this. It is only in this way that the necessary distinction can be maintained between, on the one hand, the exercise of the jurisdiction reposed in the Court, and on the other hand, an extension of the Court's true function into a domain that does not belong to it, namely, the consideration of undertakings and obligations depending entirely on political sanctions. (South Australia v The Commonwealth (1962) 108 CLR 130, at p. 141)

Indeed, as argued by Cranston, there are at least two solid reasons for supporting the view that intergovernmental agreements are not subject to adjudication: the Australian government must retain control over its public expenditure. The viability of a particular project may change, the overall economic situation may demand a reduction in government expenditure, and a change in government may produce a reversal of policy. Perhaps an even more important reason why the High Court should not regard intergovernmental agreements as enforceable is that it is desirable that it should abstain from interfering in any disputes if there is a good chance the matter can be settled in the political arena even though this may take some time. (Cranston, 1979, p. 125).

Although the agreements are not legally enforceable and theoretically any parliament can amend or reject national uniform legislation, the agreements are usually observed with some rare exceptions, for instance Victoria did not participate in Work Health and Safety harmonisation after signing the intergovernmental agreement as discussed in Sect. 1.3. As has been stated by the member of parliament, Mr Bowen: ‘once a decision is made [by the ministerial council], we are duty bout to

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abide by it and duty bound to introduce it here.. but not duty bound to pass it and not duty bound to oppose disallowance’. (Bowen, Hansard, 1987, p. 221). Historically, intergovernmental agreements are filling the constitutional void of lack of mechanisms for intergovernmental cooperation in Australian federation, while also being developed in a manner that lacks in observing the principles of responsible and parliamentary government (Howard et al., 1982, p. 42). In addition: [T]he appearance of responsible government is a superficial one. No real degree of responsibility to any single parliament can exist where the decision-making body represents seven [now eight] governments. For example, in view of the requirement of a simple majority for most resolutions passed by the Ministerial Council, it is possible for an individual Minister to be answerable to his parliament for a decision to which he is in fact opposed (Howard et al., 1982, p.27).

This important tension is the central idea of responsible government where the executive is responsible to the Parliament (Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia, 1996, p. 7). In the context of national uniform legislation, it means the ministers cannot through an intergovernmental agreement ‘force’ a uniform Act onto the respective parliaments. In other words, ‘notwithstanding the possible value of uniform legislation, it should not be achieved by circumventing the accepted lawmaking process’ (Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia, 1996, p.  12). Respective scrutiny and non-encroachment on parliamentary sovereignty must be observed (Hill, 2021). However, following COVID-19, new insights about the future of national uniform legislation have been discerned because state resurgence has challenged the concept of an over-centralised federation with the significant and often effective role of the states and territories during the pandemic (Hill et  al., 2021; Hill & Garrick, 2021). Cooperation must also consider the widening scope of issues of national concern and accept that the delineation between the powers of the states and the federal government has become problematic.

4.4 Conclusion This Chapter has provided a broader framework of federalism within which national uniform legislation exists. This book builds on the cooperative federalism theory while recognising more critical views related to federalism, for instance, its pragmatic tendencies. An examination of sections 51 and 52 of the Constitution and the database of national uniform legislation (LawLex) clarified the areas of the law where national uniform legislation is required, including the areas of traditional state jurisdiction and novel areas that did not exist in 1901.

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References Althaus, C., Bridgman, P., & Davis, G. (2012). The Australian policy handbook. Allen & Unwin. Appleby, G., Aroney, N., & John, T. (Eds.). (2012). The future of Australian federalism: Comparative and interdisciplinary perspectives. Cambridge University Press. Barnett, L. (2011). The process of law reform: Conditions for success. Federal Law Review, 39(1), 161–193. http://classic.austlii.edu.au/au/journals/FedLawRw/2011/6.html Bello, P. (2016). Security and international cooperation dominate today’s cyber policy landscape. Journal of Cyber Policy, 1(1), 133–138. https://doi.org/10.1080/23738871.2016.1166255 Bowen, House of Representatives, Hansard, 1987, February 18, at p. 221. Brown, A.  J. (2007). Reshaping Australia’s federation: The choices for regional Australia. Australasian Journal of Regional Studies, 13(3), 235–253. https://www.anzrsai.org/assets/ Uploads/PublicationChapter/209-­Brown.pdf Brown, A. J. (2012). Measuring the mysteries of federal political culture in Australia. In P. Kildea, A.  Lynch, & G.  Williams (Eds.), Tomorrow’s federation: Reforming Australian government (pp. 310–331). Federation Press. Brown, A.  J. (2013). From intuition to reality: Measuring federal political culture in Australia. Publius, 43(2), 297–314. Brown, A. J. (2016). Federalism in Australia revisited: Political history and culture as forces for stasis and change. In W. H. E. Tayao (Ed.), Federalism and decentralization: Perceptions for political and institutional reforms. Konrad-Adenauer-Stiftung. Commonwealth of Australia Constitution Act, 1901. https://www.legislation.gov.au/Details/ C2013Q00005 Conlan, T. (2006). From cooperative to opportunistic federalism: Reflections on the half-century anniversary of the commission on intergovernmental relations. Public Administration Review, 66(5), 663–676. https://doi.org/10.1111/j.1540-­6210.2006.00631.x Council of Australian Governments. (n.d.). COAGs reform agenda. https://www.coag.gov.au/ reform_agenda Cranston, R. (1979). From co-operative to coercive federalism and back? Federal Law Review, 10(2), 121–142. Croucher, R.  F. (2014). Family law: Challenges for responding to family violence in a federal system. In Families, policy and the law: Selected essays on contemporary issues for Australia (pp. 207–214). Australian Institute of Family Studies. Deem, J. (2021). Federal reform: The case for supportive subsidiarity in Australia. The University of New South Wales Law Journal., 44(2), 613–636. Deem, J., Hollander, R., & Brown, A.  J. (2015). Subsidiarity in the Australian public sector: Finding pragmatism in the principle. Australian Journal of Public Administration, 74(4), 419–434. https://doi.org/10.1111/1467-­8500.12175 Department of the Prime Minister and Cabinet. (2015, February). Reform of the federation white paper: COAG and federal financial relations (Issue Paper No. 5). Commonwealth of Australia. https://apo.org.au/sites/default/files/resource-­files/2015-­02/apo-­nid56126.pdf Drummond, M. (2002). Costing constitutional change: Estimating the cost of five variations on Australia’s Federal System. Australian Journal of Public Administration, 61(4), 43–56. Edwards, M. (2002). The policy making process. In J. Warhurst (Ed.), Government, politics, power and policy in Australia (7th ed., pp. 165–185) Pearson Longman. Elazar, D. J. (1987). Exploring federalism. University of Alabama Press. Evans, M. (2010). Rethinking the federal balance: How federal theory supports states’ rights. The Western Australian Jurist, 1, 14–56. https://walta.net.au/wajurist/vol1/ rethinking-­the-­ federal-­balance-­how-­federal-­theory-­supports-­states-­rights/ Eyal-Cohen, M. (2021). Unintended legislative inertia. Georgia Law Review, 55(3), 1193–1276. Fahey, B. A. (2022). Data federalism. Harvard Law Review, 135, 1007. Fenna, A. (2009). Federalism. In R. Rhodes (Ed.), The Australian study of politics (pp. 146–159). Palgrave Macmillan.

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Gibbs, H. (2005). Australia Day message, 26 January, 2004. In Upholding the Australian constitution: Vol. 2. Proceedings of the Seventeenth Conference of the Samuel Griffith Society. The Samuel Griffith Society. https://www.samuelgriffith.org/papers Grant, B., Ryan, R., & Kelly, A. (2016). The Australian Government’s “white paper on reform of the federation” and the future of Australian local government. International Journal of Public Administration, 39(10), 707–717. http://hdl.handle.net/10453/36285 Grenfell, L., & Moulds, S. (2018). The role of committees in rights protection in federal and state parliaments in Australia. The University of New South Wales Law Journal, 41(1), 40–79. Griffith, G. (2009). Managerial federalism: COAG and the states (Briefing Paper No. 10/09). NSW Parliamentary Library Research Service. https://www.parliament.nsw.gov.au/researchpapers/Documents/managerial-­federalism-­coag-­and-­the-­states/BP%2010-­09%20COAG%20 and%20States.pdf Hanson, R.  L., & Zeemering, E.  S. (Eds.). (2021). Cooperation and conflict between state and local government. Rowman & Littlefield. Henrÿ, H. (2012). Basics and new features of cooperative law—The case of public international cooperative law and the harmonisation of cooperative laws. Uniform Law Review, 17(1–2), 197–233. https://doi.org/10.1093/ulr/17.1-­2.197 Hill, G. (2019). Referred, applied and mirror legislation as primary structures of national uniform legislation. Bond Law Review, 31(1), 81–117. https://blr.scholasticahq.com/article/10865-­ referred-­applied-­and-­mirror-­legislation-­as-­primary-­structures-­of-­national-­uniform-­legislation Hill, G. (2020a). Categories of the ‘art of the impossible’: Achieving sustainable uniformity in harmonised legislation in the Australian federation. Federal Law Review, 48(3), 350–381. https:// doi.org/10.1177/2F0067205X20927808 Hill, G. (2020b). How does the area of law predict the prospects of harmonisation? Adelaide Law Review, 41(1), 267–312. https://law.adelaide.edu.au/system/files/media/documents/2020­0 8/How%20Does%20the%20Area%20of%20Law%20Predict%20the%20Prospects%20 of%20Harmonisation.pdf Hill, G. (2021). Avoiding a ‘catch 22’: Major lessons from a meta-analysis of reports of the Parliament of Western Australia on threats to sovereignty by national uniform legislation. Bond Law Review, 33(1), 37–66. https://blr.scholasticahq.com/article/19356-avoiding-a-catch-22-­ major-­lessons-­from-­a-­meta-­analysis-­of-­reports-­of-­the-­parliament-­of-­western-­australia-­on-­threats-­to-­sovereignty-­by-­national-­uniform-­legislation Hill, G., & Garrick, J. (2021). The power of national uniform legislation: What is its rate of proliferation and what factors are driving it? Australian Law Journal, 95(4), 286–291. http://sites. thomsonreuters.com.au/journals/2021/04/09/australian-­law-­journal-­update-­vol-­95-­pt-­4/ Hill, G., Garrick, J., & Barton, N. (2021). Faultlines of federation: Australia’s intergovernmental cooperation and human rights during the pandemic. Journal of Transnational Law and Policy, 30, 119–150. https://heinonline.org/HOL/P?h=hein.journals/jtrnlwp30&i=127 Hollander, R., & Patapan, H. (2007). Pragmatic federalism: Australian federalism from Hawke to Howard. The Australian Journal of Public Administration, 66(3), 280–297. https://doi. org/10.1111/j.1467-­8500.2007.00542.x Howard, C., Saunders, C., & Crommelin, M. (1982). The co-operative companies and securities scheme. Intergovernmental relations in Victoria program. Law School, University of Melbourne. Kasper, W. (1994). High on the reform agenda: Competitive federalism. Policy: A Journal of Public Policy and Ideas, 10(3), 10–14. Kildea, P., & Lynch, A. (2011). Entrenching ‘cooperative federalism’: Is it time to formalise COAG’s place in the Australian federation. Federal Law Review, 39(1), 103–129. https://doi. org/10.22145/2Fflr.39.1.4 La Nauze, J. A. (1972). The making of the Australian Constitution. Melbourne University Press. LawLex. (n.d.). Browse legislation. SAI Global. https://lawlex.com.au/Legislation/Browse Livingston, W.  S. (1952). A note on the nature of federalism. Political Science Quarterly, 67(1), 81–95.

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Official Record of the National Debates of the Australasian Federal Convention, Sydney, 1891, March 4, 1:42 (Philip Oakley Fysh). Opeskin, B. R. (2001). Mechanisms for intergovernmental relations in federations. International Social Science Journal, 53(167), 129–138. https://doi.org/10.1111/1468-­2451.00301 Painter, M. (1996). The Council of Australian Governments and intergovernmental relations: A case of cooperative federalism. Publius, 26(2), 101–120. https://doi.org/10.2307/3330674 Painter, M. (1998). Public sector reform, intergovernmental relations and the future of Australian federalism. Australian Journal of Public Administration, 57(3), 52–63. https://doi. org/10.1111/j.1467-­8500.1998.tb01281.x Painter, M. (2009). Collaborative federalism: Economic reform in Australia in the 1990s. Cambridge University Press. Parkin, A., & Summers, J. (2006). The constitutional framework. In A.  Parkin, J.  Summers, & D. F. Woodward (Eds.), Government, politics, power and policy in Australia (8th ed.) Pearson Australia Group. Petkova, B. Federalism in 2030 (2022, January 26). Graz Law Working Paper No 01–2022; C Bezemek, Constitutionalism 2030 (2022), Available at SSRN: https://ssrn.com/ abstract=4018512 Phillimore, J., & Arklay, T. (2015). Policy and policy analysis in Australian states. In B. Head & K. Crowley (Eds.), Policy analysis in Australia (pp. 87–104). Policy Press. Phillimore, J., & Fenna, A. (2017). Intergovernmental councils and centralization in Australian federalism. Regional and Federal Studies, 27(5), 597–621. https://doi.org/10.1080/1359756 6.2017.1389723 Popelier, P. (2021). Dynamic federalism: A new theory for cohesion and regional autonomy. Routledge. Saunders, C. (2012). Cooperative arrangements in comparative perspective. In G.  Appleby, N. Aroney, & T. John (Eds.), The future of Australian federalism: Comparative and interdisciplinary perspectives. Cambridge University Press. Sawer, G. F. (1976). Modern federalism (2nd ed.) Pitman Australia. Sims, R. (2013, April 23). Australia’s experience driving economic growth through competition policy reforms [Speech text]. World Bank Forum—Making Markets work for development: A reform agenda on competition, Poland. Australian Competition & Consumer Com- mission. https://www.accc.gov.au/speech/australia%E2%80%99s-­experience-­driving-­economic-­ growth-­­through-­competition-­policy-­reforms South Australia v The Commonwealth (1962) 108 CLR 130. Stephenson, S. (2014). Federalism and rights deliberation. Melbourne University Law Review, 38(2), 709–754. http://www5.austlii.edu.au/au/journals/MelbULawRw/2014/26.html Twomey, A. (2007a). Aspirational nationalism or opportunistic federalism? Quadrant, 51(10), 38–43. Twomey, A. (2007b). Federalism and the use of cooperative mechanisms to improve infrastructure provision in Australia. Public Policy, 2(3), 211–226. Wanna, J., Phillimore, J., Fenna, A., & Harwood, J. (2009, May). Common cause: Strengthening Australia’s cooperative federalism. Final report to the council for the Australian Federation. Council for the Australian Federation. https://www.caf.gov.au/documents/fp3%20-­%20 final.pdf Wheare, K. C. (1963). Federal government. Oxford University Press. Wilets, J. D. (2010). Unified theory of international law, the state, and the individual: Transnational legal harmonization in the context of economic and legal globalization. University of Pennsylvania Journal of International Law, 31, 753–825. https://scholarship.law.upenn.edu/ jil/vol31/iss3/3 Williams, Foundation Director, Gilbert and Tobin Centre for Public Law, Committee Hansard, 2010, December 2, pp. 15–16.

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Wiltshire, K. (2008, August 22–24). Chariot wheels federalism. In Proceedings of the Twentieth Conference of the Samuel Griffith Society August 2008, Vol. 20. Upholding the Australian constitution (pp. 213–260). Wise, T. (2011). Coercive federalism, COAG and uniform legislation: A lethal mix for the states? Working Party of Representatives of Scrutiny of Legislation Committees throughout Australia. (1996, October). Scrutiny of national schemes of legislation: Position paper. https://www.aph. gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Legislative_Scrutiny_ Resources/~/media/Committees/Senate/committee/scrutiny/natschem/nat_schemes.ashx Zimmermann, A., & Finlay, L. (2011). Reforming federalism: A proposal for strengthening the Australian federation. Monash University Law Review, 37(2), 190–231.

Chapter 5

Slow and Steady Uniform Legislation

Decades Through Iterative Cyclic Development

Abstract  When national reform is proposed, it is common to hear aspirations of complete uniformity among jurisdictions. Such aspirations form part of political discourse, rather than reflecting the reality. This chapter presents relevant quantitative and qualitative data analyses and reports key findings on uniformity. The proposition of incremental harmonisation is supported by policy cycle and Lindblom’s theory of incrementalism, which treats policymaking as an iterative process involving small incremental adjustments to existing policies, based on feedback, rather than a practice that institutes sweeping policy changes. Thus, the main lessons for law reformers, policymakers and legislative drafters working with national uniform legislation include: (1) the patient and methodical approaches to achieving uniformity without opportunistic attempts to include financial measures to ‘speed up’ the process (contrary to the pragmatic category of sets of uniform Acts); (2) the recognition that 100 per cent uniformity might never be achieved; and (3) appreciation objective differences without labelling those differences as a failure of harmonisation attempt.

5.1 Introduction Slow and steady national uniform legislation is the most common category of uniform Acts. Legislation in this category underwent iterative development through cycles of harmonisation. Lindblom’s theory supports incremental harmonisation. This theory explains policymaking as an iterative process that is slow and steady © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_5

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with incremental adjustments to existing policies based on feedback from previous changes (Lindblom, 1959, 1979; Lindblom & Woodhouse, 1993). Therefore, time must be accompanied by constant, consecutive harmonisations for this category of uniform Acts. Harmonising legislation can take decades. The history of harmonising corporations legislation predates the establishment of the Australian federation. The initial harmonisation of the legal profession took around 20 years. Harmonising the law of evidence took more than 30 years to create a substantially uniform set of Acts. Work health and safety harmonisation took decades, with constant administrative reforms and further reforms on strengthening still continuing through 2020s. The general rule for legislation in this category has been the constant search for consensus and refinement of policies through cooperative federalism with adequate institutional support rather than the opportunistic use of institutions or incentive measures to gain consensus. This chapter is divided into the following sections: analysis of iterative development based on incrementalism, evaluation of the Corporations Act 2001 (Cth) (n.d.) as an example of several waves of consecutive harmonisation and lessons for law reformers, policymakers and legislative drafters working with legislation in this category.

5.2 Iterative Developments Laswell was the first to consider policymaking a cycle (Laswell et  al., 1951). According to Laswell, policymaking is characterised by a sequence of actions. These actions can be divided into the following stages of policymaking: intelligence, recommendation, prescription, invocation, application, appraisal and termination (Laswell et al., 1951). The well-recognised Australian policymaking cycle explains the stages of public policy in similar terms (Althaus et al., 2020 p. 49). The Australian version of the cycle ‘brings a system and a rhythm to a world that might otherwise appear chaotic and unordered’ (Althaus et al., 2020, p. 32); ‘the Australian experience suggests a policy cycle is likely to begin with issue identification, and then proceed through policy analysis, policy instruments, consultation, coordination, decision, implementation and evaluation’ (Althaus et al., 2020, p. 48). Although the cycle was initially developed as a practical guide for practitioners, it is also applied as a theory (Bridgman & Davis, 2003). The policy cycle is now recognised for serving both theoretical and practical approaches (Colebatch, 2005). In applying and developing the cycle as theory, some researchers focused on continuing cycle with a further stage that follows the evaluation stage; this stage has been termed ‘reformulation’ (Wallace et al., 2015, p. 81) or ‘maintenance, succession and termination’ (Cairney, 2011, p. 40; Hogwood & Gunn, 1984, p. 4). This additional maintenance stage is characterised by an ongoing assessment or appraisal on whether to continue, amend or terminate legislation (Nagel, 2002, p.  29). Therefore, decisions made in the past affect future decisions (Jensen, 2006). In the

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context of national uniform legislation, the most common decision of this stage is an amendment, as termination has been rare and has only been encountered once (occupational licensing, see the Appendix). The cycle as theory is not all-comprehensive, as any other model, it does not fully explain the reality and the stages of the policy cycle do not follow in a neat and ordered fashion (John, 2012, p. 154). Indeed, the cycle provides almost an idealistic illustration of the policy process (Sabatier, 1991). In reality, the stages are not linear but fluid—in line with the dynamic nature of policymaking (Brewer & DeLeon, 1983)—and occur out of order or in no particular order (Parsons, 1995, pp. 79–81). However, the model is a useful practical and theoretical tool if its limitations are appreciated and policymaking is understood as an iterative process of policy refinement. This cyclical, dynamic and fluid nature of the policy cycle is important for incorporating the feedback processes (Brewer & DeLeon, 1983) and understanding development and drafting of national uniform legislation.Understanding the policy as a cycle is complemented by Lindblom’s incrementalism theory, which explains policy changes as an iterative process with small incremental adjustments to existing policies based on feedback (Lindblom, 1959, 1979; Lindblom & Woodhouse, 1993). Policymakers are limited by the decisions made in the past, rendering this approach more ‘efficient and less dispiriting’ (Cairney, 2011, p. 7). The implication is that by paying attention to changes, the focus is directed to parts of a policy, ‘inheritance before choice’, rather than the policy in its entirety (Hill, 2020, p. 356). The researchers supporting this approach emphasise its realistic qualities as an alternative to the ‘futile attempt at superhuman comprehensiveness’ (Cairney, 2011, p. 88). Lindblom (1959) summarised that incremental development should be used as a strategy to avoid lasting mistakes: Making policy is at best a very rough process. Neither social scientists, nor politicians, nor public administrators yet know enough about the social world to avoid repeated error in predicting the consequences of policy moves. A wise policy-maker consequently expects that his [or her] policies will achieve only part of what he [or she] hopes and at the same time will produce unanticipated consequences he [or she] would have preferred to avoid. If he [or she] proceeds through a succession of incremental changes, he [or she] avoids serious lasting mistakes (p. 86).

Because policymaking is a costly process that is unpredictable and riddled with uncertainty, policymakers are more likely to react favourably to incremental changes to events or solve the problems of previous policies than devote time to designing major new policy initiatives (Cairney, 2011, p.  99). Indeed, Lindblom (1959) emphasised that many attempts at policymaking might ‘miss the mark’ or even ‘worsen the situation’, which is why policymakers prefer that ‘the political system act[s] on the elements one at a time. Not that errors will be avoided, but that each element will consequently receive greater attention and will be more carefully watched for feedback and correction’ (p. 521). Hill (2020, p. 358) explained that Lindblom’s incremental theory does not imply that the policy changes in this framework are small. Changes can be significant (e.g., changing the structure from mirror to applied) but not radical and in line with the former policy direction. The difference between radical and iterative changes is that iterative changes rationally and logically flow from the existing policy

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(Lindblom, 1979, p. 517). Lindblom (1979) also noted that major changes could be achieved through cumulative, iterative changes: ‘A fast-moving sequence of small changes can more speedily accomplish a drastic alteration of the status quo than can an only infrequent major policy change’ (p. 520). Many cycles towards uniformity in corporations legislation have produced legislation that is an example of utmost uniformity and has been trendsetting for Australia, Singapore and Malaysia (Spamann, 2009, p. 1834). The incremental theory does not explain radical changes and societal innovations (Etzioni, 1967). Therefore, any understanding of uniformity must be supplemented by other frameworks allowing for explanation of calamities, innovation and sudden changes (see Chaps. 6, 7 and 8).

5.3 Examples of Achieving Uniformity Through Iterative Developments This section applies the data from 85 sets of uniform Acts to national uniform legislation in all four structures: referred, applied, mirror and hybrid. The findings from Hill (2020) show that 17 cases of national uniform legislation increased in uniformity and changed structure, either from mirror to applied or from mirror to referred. In several cases, the legislation increased in uniformity without changing structure. This book uses the term ‘consecutive harmonisation’ to refer to an ongoing harmonisation effort with or without a structural change. In all cases, consecutive harmonisation of national uniform legislation produced higher levels of uniformity and sustainability to the legislation. Hill (2020, p. 359) reported that the sets of uniform Acts that have gone through an iterative development cycle and consecutive harmonisation with a change of structure include: • the National Registration Scheme for Agricultural and Veterinary Chemicals (mirror to applied) • the Australian Crime Commission (mirror to hybrid) • business names legislation (mirror to referred) • the censorship and classification of films and computer games (mirror to supporting mirror) • consumer credit legislation (applied to referred) • consumer protection legislation (mirror to applied) • corporation law (mirror to referred) • electricity laws (mirror to applied) • energy retail legislation (mirror to applied) • food protection legislation (mirror to hybrid) • gas laws (mirror to applied) • health practitioner regulations (mutual recognition to applied) • legal profession laws (mirror to applied) • trade measurement legislation (mirror to clearing the field and federal regulation) • water laws (mirror to referred)

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• water efficiency labelling laws (mandatory scheme to hybrid). • Hill (2020, pp. 359–360) demonstrated that the sets of uniform Acts that have gone through an iterative development cycle and consecutive harmonisation without a change of structure include: • commercial arbitration • competition policies • cooperative • domestic, commercial vessel • electronic transaction • evidence • national environment protection • price exploitation • professional standards • rail safety • road and rail (dangerous goods) • standard time • therapeutic goods and poisons • vocational education and training • work health and safety. Sections below present the case studies to illustrate how consecutive harmonisation works. First, harmonising corporations legislation, and second, harmonising business name registrations. Section 5.2.3 provides some other examples of harmonisation.

5.3.1 Corporations Over the years, corporations’ legislation’s uniformity has increased significantly: from spontaneous harmonisation to a mirror structure; from mirror to an applied structure; from applied to a referred structure. Corporate laws went through the stages of spontaneous uniformity during the 1800s when most Australian jurisdictions enacted company legislation based on the transplant borrowed from England: the Companies Act 1862 (UK) (n.d.) (companies-1800s legislation, see the Appendix); ‘each colony adopted its own Companies Act, modelled on the English legislation of 1862 which was, in turn, an extension of the Joint Stock Companies Act 1856 (UK)’ (Barret, 2012, p. 141). This spontaneous harmonisation predates federation and occurred when the jurisdictions were in the process of harmonising rules in a voluntary, unprompted and uncoordinated way (see Sect. 2.2.3). The efforts of intended harmonisation followed later in 1960s when the tension within the federal system has accumulated to the maximum: ‘Lawyers concerned with the formation and operation of trading companies in Australia have had for a long time a task which was rendered unnecessarily complex by the disparity between the company laws of the various States’ (Ford, 1962, p. 461).

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From 1960 to 1969, each jurisdiction in Australia enacted uniform mirror legislation (corporations – mirror legislation, see the Appendix). Victoria was the trailblazing jurisdiction by enacting the Companies Act 1958 (Vic). According to Barrett, some important reforms were achieved then and are almost taken for granted now, for instance, prohibition of benefiting from the position of a director, imposition of director duties of honesty and diligence, granting the members power to remove a director by resolution and employees’ priority for annual and long service leave provisions (Barret, 2012, p. 148). More uniformity was required with calls for referred structure. In 1987, the view of the Confederation of Australian Industry during the scrutiny of the proposed scheme, was that greater uniformity can be ensured by referring the matter to the Commonwealth Parliament, i.e. referred legislation: ‘The present system of State and Federal co-operation on company regulation has now proven its limitations and should be abolished. Instead, the Federal Government should use its powers in this area to enact national legislation which would result in a better and more efficient system.’ (Senate Standing Committee on Constitutional and Legal Affairs, 1987, p. 65) The same has been reiterated later in the report: ‘We need one piece of legislation on a national basis. We have the power to enact such legislation’ (p.69). With many differences still in place, later, in 1980s, an applied structure was implemented to gain higher uniformity, with the state and territory jurisdictions applying the Corporations Act 1989 (Cth) (n.d.) and conferring powers on the Australian Securities and Investments Commission. This conferral became subject to judicial review. Two court decisions were crucial for the structure of corporations legislation. First, in Re Wakim; Ex parte McNally (1999), it was ruled that cross-­ vesting arrangements purporting to confer jurisdiction for the corporate laws of a state to federal courts are unconstitutional. Second, R v Hughes (2000) cast doubts on the constitutional validity of jurisdictions conferring power on federal officers. The Corporations Act 2001 (Cth) (n.d.) superseded the Corporations Act 1989 (Cth) (n.d.), with state and territory jurisdictions referring their powers to the Australian Government (corporations – referred legislation, see the Appendix). Thus, corporations legislation has developed over time through spontaneous to intended harmonisation, and its uniformity has increased from mirror structures to applied and then referred. However, the change to the referred structure does not reflect an intention for reaching higher legislative uniformity because the uniformity of corporations legislation was very high when it had an applied structure. In particular, the amendments made by the Commonwealth automatically applied in the jurisdictions with only one jurisdiction applying amendments independently – the Australian Capital Territory. Rather, the shift was almost solely the result of decisions by the High Court of Australia. It must be noted, however, that the set of uniform Acts is not identical and there are still differences between jurisdictions: Australia’s companies legislation and corporate regulation have come a very long way since the days of multi-colony incorporations and doubts about the true status of a company incorporated somewhere in our continent beyond an invisible line in the desert. But we have not reached and will probably never reach a point of perfectly harmonised uniformity. (Barret, 2012, p. 159).

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Referred Structure Applied Structure Mirror Structure

Spontaneous Harmonisation

Fig. 5.1  Increasing uniformity of corporations legislation through spontaneous harmonisation and three structures. (Constructed by the author)

Figure 5.1 demonstrates the growth of uniformity.

5.3.2 Business Names Typically, the trajectory of consecutive harmonisation includes fewer stages than in the example with the corporations legislation: spontaneous harmonisation, a mirror structure and then either an applied or referred structure. Business name legislation has undergone several waves of harmonisation The first wave of intended harmonisation during the 1960s produced mirror legislation based on a model bill developed by the Standing Committee of Attorneys-General (business names – mirror legislation, see the Appendix). Up to 2011, the business name registration was governed by the states and territories and controlled by the laws of the relevant jurisdiction. The businesses had to register their business names and pay the requisite fees in each state or territory in which they wished to trade, if it was more than one jurisdiction than this fee was paid more than once. On 3 July 2008, COAG agreed to the development of a single national system for registering and regulating business names as a part of the ‘seamless national economy’ reforms (Explanatory Memorandum, 2011). According to this intergovernmental agreement, A. The parties agree to establish a national system for business name registration to be implemented by Commonwealth legislation, supported by State text-based referrals of certain matters to the Commonwealth Parliament, in accordance with paragraph 51(xxxvii) of the Commonwealth Constitution.

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5  Slow and Steady Uniform Legislation B. The Legislative Assembly of the Australian Capital Territory and the Legislative Assembly of the Northern Territory have legislative powers in relation to business names and the registration of business names under Commonwealth self-government legislation, and therefore the Australian Capital Territory and the Northern Territory are parties to this agreement, but, having regard to paragraph 51(xxxvii) and section 122 of the Commonwealth Constitution, they will not make a referral. C. The Commonwealth will introduce legislation to establish a national system for the registration of business names.

In addition, according to subclause 1.1(2) the Intergovernmental Agreement also stated: The purpose of this Agreement is to endorse a national business names registration scheme that will allow businesses to register once, regardless of how many State/Territory jurisdictions those businesses operate in. The national business names registration scheme will form part of a range of measures that will, in addition to business names registration, provide a variety of on-line services to businesses. The parties agree that the levels of service provided by the Commonwealth's national business names registration scheme will not be less than the levels of service currently provided in the State/Territory systems.

The states and territories referred the matter to the federal government, which now maintains a seamless, online registration for Australian business numbers and names. All jurisdictions have made the referral (business names – referred legislation, see the Appendix), and the Australian Securities and Investments Commission now administers the register. Similar two-stage trajectory of consecutive harmonisation can be observed in the following sets of uniform legislation: Australian Crime Commission (mirror to hybrid); rail safety (mirror to applied); domestic, commercial vessels (mirror to referred); consumer credit (applied to referred). Figure 5.2 illustrates the typical trajectory of the growth of uniformity in this category – from spontaneous harmonisation and two structures. Consecutive harmonisation has generally produced greater uniformity, indicating the iterative nature of harmonisation in Australia (Hill, 2020, p. 359). However, as Gillooly (2006) reflected on the harmonisation of defamation law, ‘model legislation is not the end, it is only [the] beginning of the reform’ (p. 311). For this category of legislation, harmonisation and national uniform legislation can be considered a staged process, where each attempt creates a higher level of uniformity.

5.3.3 Other Examples The COAG Reform Agenda (administered by the COAG Reform Council and now disbanded) included 12 out of the 17 sets of uniform Acts that have been subjected to consecutive harmonisation. This indicates the powerful role of the former COAG, now National Cabinet, in consecutive harmonisation cases. The findings suggest that COAG has directly affected the overall uniformity of national uniform legislation and had a dominant role in the subsequent harmonisation of pre-harmonised legislation. This confirms previous research, emphasising that COAG has continued to be the key forum driving national harmonisation (DPMC, 2015). Although the role of

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OR

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Applied Structure

Referred Structure

Mirror Structure

Spontaneous Harmonisation

Fig. 5.2  Typical trajectory of consecutive harmonisation through spontaneous harmonisation and two structures. (Constructed by the author)

COAG might be considered controversial in some cases, ‘it has certainly facilitated ongoing exchange between governments’ (Tiernan, 2015). This ongoing exchange has led to the increased uniformity of national uniform legislation through consecutive harmonisation.While the National Cabinet (formerly COAG) is important for developing national uniform legislation and will probably continue achieving the majority of national reforms, other institutions for interjurisdictional cooperation may also have important roles. For example, the Law Council of Australia, in conjunction with the Standing Committee of Attorneys-General, prepared the model legal profession bill during the 2000s. Work on the bill included consensus-building that started with harmonising the education and training requirements for legal practitioners. Thereafter, it followed the Blueprint for the Structure of the Legal Profession: A National Market for Legal Services (Law Council of Australia, 1994). Between 2004 and 2006, all jurisdictions except South Australia incorporated the model (Robertson, 2015). These acts can be classified as ‘substantially uniform’. Since then, an attempt at further harmonisation has been undertaken by NSW and Victoria. The Legal Profession Uniform Law (Victorian Legal Services Board and Commissioner, 2015) and Legal Profession Uniform Law 2015 (NSW) (n.d.) were enacted to replace the Legal Profession Act 2004 (Vic) (n.d.) and Legal Profession Act 2004 (NSW) (n.d.), respectively. In February 2009, COAG appointed the National Legal Profession Reform Consultative Group to make recommendations and propose draft legislation. The group’s goals included achieving uniformity and enhancing clarity and accessibility to consumer protection (National Legal Profession Re- form Consultative Group, 2009). On 13 February 2011, COAG ‘agreed in

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principle to settle reforms to legal profession regulation by May 2011 (with the exception of Western Australia and South Australia)’ (COAG, 2011). These reforms offered ‘the prospect of significantly reduced interstate barriers to seamless national legal practice, while improving consumer protections and safeguarding an independent legal profession’ (Victorian Legal Services Board and Commissioner, 2015). However, they did not receive wide support from the jurisdictions.In 2011, it was reported that Tasmania and the ACT had reservations regarding the scheme. On 3 October 2012, the Attorney-General of Queensland announced that Queensland would not participate in the reforms. On 5 December 2013, the NSW and Victorian governments executed an intergovernmental agreement continuing the harmonisation effort and formalising their joint participation in the new scheme (Upton, 2015). Subsequently, although the level of uniformity post-­harmonisation has been at an ‘almost identical’ level, the level of implementation has been low for this reform. The initiative has not received much attention from the other jurisdictions, and only NSW and Victoria have implemented the scheme. The legislation has all the factors needed to achieve a high level of uniformity, and it has achieved an extremely high level of uniformity and sustainable uniformity. The weakness of this consecutive harmonisation effort is not that it is low in uniformity but that it lacks implementation by other jurisdictions. NSW and Victoria have argued that approximately threequarters of Australian lawyers are now regulated by this uniform legislation (Rogers et al., 2017, p. 222). Nevertheless, the Australian regime is fractured, with two jurisdictions following one set of regulations and six jurisdictions following another.In 2018, the reforms progressed without pressure from COAG.  In June 2018, the Government of Western Australia, supported by the Law Society of Western Australia, announced its intention to join the Legal Profession Uniform Law (Queensland Law Society, 2018). The Queensland Law Society (2018) stated that ‘there are hopes that South Australia will follow the lead of Western Australia during the next year. However, there is still limited enthusiasm for the national scheme in Queensland, the third-largest jurisdiction, with almost 13,000 lawyers’. This shows that pressuring jurisdictions into implementing legislation rarely works, even in cases where the legislation is ‘good law’, ‘eases the regulatory burden’ (Boucher, 2016) and protects consumers. In 2020, Western Australia has introduced enabling legislation into the State Parliament. After passing the Legislative Assembly and reaching the Legislative Council, the Bill was discharged and referred to the Standing Committee on Uniform Legislation and Statutes Review in 2021. The Standing Committee on Uniform Legislation and Statutes Review tabled Report No. 136 reporting on some clauses that encroach on sovereignty of the Western Australian Parliament and recommending necessary amendments to the Bill (Hill, 2021a). Although uniformity has improved in two jurisdictions, uniformity has diminished for the Australian federation because there are two distinct regimes rather than one. With Western Australia set to join Victoria and NSW, however, it remains unclear whether other state and territory jurisdictions will follow. Therefore, the effects of this development on further development of uniformity are unknown. In this regard, institutional support from the Law Council of Australia has produced longstanding results. The continued involvement of the council in the national

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regulation of the legal profession is apparent in its recent review of the Australian Solicitors Conduct Rules (Law Council of Australia, 2018). However, these rules are ethical and self-regulating, and this book’s focus is primary legislation. The findings regarding consecutive harmonisation explain the typical iterative nature of sustainable uniformity development in which each harmonisation attempt creates a higher level of uniformity and sustainable uniformity, with or without a change of structure. Section 5.2.3 has examined the effects of consecutive harmonisation with a change of structure. It will now investigate the effects of consecutive harmonisation in cases where structures have not changed and remained mirror. In these cases, uniformity has also increased, even when COAG has not been involved. Standard time legislation has achieved a ‘substantially uniform’ level; however, it took decades to reach a uniform position. Standard time legislation dates back to 1892 when the jurisdictions enacted uniform legislation related to standard Greenwich Mean Time. At that stage, the legislation and regulations were consistent, which continued until the daylight savings debate commenced. Daylight savings was first considered at the Premiers’ Conference in May 1915 (Pearce, 2017). During the First World War and WW2, national daylight time operated in Australia. Tasmania and Victoria introduced daylight savings in 1916. In Tasmania, the Act was repealed by the Daylight-Saving Repeal Act 1917 (Tas) (n.d.). In 1967, Tasmania again introduced daylight savings. By 1990, the jurisdictions had changed the dates for introducing daylight savings, and their positions were not uniform. Senator Calvert described the ‘maze of different times’ as a ‘shackle on the economy, as well as causing interruptions to work and family balance’ (Farr, 2005). Starting on 1 September 2005, all jurisdictions adopted the Coordinated Universal Time standard, and, following long deliberations, in April 2007, they agreed on a uniform start and end date for daylight savings. However, Queensland, Western Australia and the Northern Territory have not implemented daylight savings. The sets of uniform Acts now fall under the ‘substantially uniform’ level. Uniformity is high because the legislation initially had a mirror structure and only some changes have been required; however, it has taken decades to convince the jurisdictions to reach a consensus. Similarly, electronic transaction legislation (see the Appendix) has been enacted in ‘substantially uniform’ terms by all jurisdictions. State and territory legislation has been modelled on the Electronic Transactions Act 1999 (Cth) (n.d.), which has mostly adopted the international benchmark, the United Nations Commission on International Trade Law’s (UNCITRAL) Model Law on Electronic Commerce. The legislation aims to facilitate electronic transactions and has been developed as a national scheme. Several years after its enactment, the set of uniform Acts underwent a second wave of harmonisation without any structural changes. In 2011, Australia acceded to the United Nations Convention on the Use of Electronic Communications in International Contracts. During the debate about the bill, Mischin (quoted in Western Australia, 2011) urged that:

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5  Slow and Steady Uniform Legislation the bill strengthens our existing regime by recognising the use of automated message systems in contract formation and clarifying the rules in relation to invitations to treat the determination of a party’s location in an electronic environment, the time and place of dispatch and receipt of electronic communications and electronic signatures … The present bill will not significantly change Western Australia’s electronic transactions regime. However, the bill will ensure that our laws keep pace with developments in this rapidly evolving area of law. (pp. 907b–909a).

However, this does not mean that sustainable uniformity cannot be achieved initially, especially under crisis conditions (see Chap. 6). Nevertheless, planning for typical implementation through a staged approach to harmonisation is desirable, especially in cases where sustainable uniformity is the goal. Therefore, harmonisation and national uniform legislation are best considered a ‘staged’ iterative process where each consequent effort creates a higher level of uniformity, with rare exceptions during times of upheaval (political, economic or social).

5.4 Lessons for Law Reformers, Policymakers and Legislative Drafters Lessons can be drawn from theory and practice to help law reformers, policy-­makers and legislative drafters working with national uniform legislation. The iterative development category can be determined by consecutive harmonisation efforts (with or without change of structure). In these cases, legislation undergoes lengthy incremental developments, which can take decades. The literature usually reflects this process, using terms such as the ‘long and winding road to harmonisation’, ‘muddling through’ and ‘harmonisation has achieved only modest results’. Thus, usually, an additional harmonisation attempt is proposed based on some level of existing uniformity. The main lessons when working with the legislation undergoes iterative developments include: (1) acknowledging the staged development; (2) recognising that 100 per cent uniformity may be an unachievable goal contrary to the best intentions; and (3) knowing that some differences in regulations do not mean that harmonisation attempts have failed.

5.4.1 No Haste While initial harmonisation attempts usually take some time to develop, it must be remembered that, in most cases, legislation has already undergone the stages of spontaneous harmonisation. The stages of developing legislation can be observed in corporations legislation, which underwent spontaneous harmonisation from mirror to applied and referred structures (see Sect. 5.2). Thus, while certain momentum is required to initiate a cycle of subsequent harmonisation efforts, it must also be acknowledged that a barrier to iterative sustainable uniformity developments has

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been the approach that treats sustainable uniformity as an ad hoc project with certain measurable outcomes. The practical reality is that harmonisation is subject to resource availabilities and budgets, and it is a project in that sense. However, it is also a consensus-seeking process, refining policies and negotiating solutions for policy developments that must undergo consultations, approvals and, ultimately, scrutiny by the parliaments of various jurisdictions. In this context, strict deadlines, deadlock positions and hard incentive measures are counterproductive. If harmonisation is treated as a project with a finite date and budget, then there is an obvious failure to understand the iterative nature of harmonisation. That situation occurred with the occupational licensing reforms. A national occupational licensing system (see the Appendix) was planned to regulate entry requirements for trades. The foundation for reform was supported by the National Partnership Agreement to Deliver a Seamless National Economy and financial incentives for meeting or penalties for missing progressive milestones (Council of Australian Governments Business Advisory Forum Taskforce, 2013). The initial regulatory area was quite diverse, with all states and territories developing licensing requirements in cooperation with local businesses, occupational bodies and consumers. Diversity has remained substantial, with jurisdictions ‘taking pride’ in the developed regulatory regime (Tyson, 2016). This diversity has also been quite problematic in the context of Australia’s skills shortage. The ‘tyranny of diversity’ has included more than 27 licensing regimes, little consistency in training requirements and almost no unifying themes for fees (Tyson, 2016). During the second reading speech for the Northern Territory bill, Lawrie stated that ‘there are currently 800 licence types … This COAG reform will make it easier for occupational licensees to operate across state and territory borders … This will benefit the Territory in attracting skilled labour’ (Northern Territory, 2010). Reform progress has been riddled with difficulties. Nevertheless, a bill was produced even after the continued lack of support and inability to reach a consensus between jurisdictions. It received strong criticism for being ‘underdeveloped’ and putting ‘more detail into regulations than would be normal’ (Farina, 2011). As a result, regardless of the strong need for a consistent national regime, a consensus has not been achieved and occupational licensing legislation (see the Appendix) has become the only example of recent national uniform Acts to be scheduled for intentional winding down. One former official remarked that ‘in short, an unlikely unity ticket between those who wanted no change and those who wanted maximum, rapid change won the day and killed off the steady progress option’ (Sutton, 2014). COAG decided to discontinue the proposed reform in December 2013 (COAG, 2013). The NSW Minister, Ajaka, stated the reasons for its discontinuation during the second reading speech of the Occupational Licensing National Law Repeal Bill 2015 (NSW): the bill ‘gives effect … to the decision of the [COAG] to terminate the national occupational licensing reform in favour of jurisdictions minimising licensing impediments to labour mobility’ (NSW, 2015, p. 5169). Thus, rather than continuing with harmonisation that established a national regime for regulation, the jurisdictions

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continued with harmonisation that minimised the differences. As a result, work on the set of uniform Acts was discontinued. It must be noted, however, the occupational licensing reforms is the only example of discontinued national reforms in the database out of close to one hundred uniform Acts. If there is no deadline or budget, there is also a danger of beginning a process that does not finish. The balance must be sought between the managerial approach to intergovernmental cooperation and laisse free approach that do not build sufficient momentum for harmonisation.

5.4.2 No Ultimate Uniformity When national reforms are proposed by politicians, aspirations for complete uniformity among jurisdictions are common. These aspirations are part of political discourse rather than a reflection of reality. It is important to note that, as demonstrated by Hill (2021b), achieving 100 per cent similarity is impossible (see, Sect. 5.3.2). In practice, legislation does not have to be identical to be uniform, and it is almost impossible to reach a level of total uniformity. Some evidence supports the illusory nature of ultimate uniformity. For example, despite strong grounding from spontaneous harmonisation, full uniformity has not been achieved in corporation legislation almost 60 years after the initial intentional harmonisation attempts. Bathurst (2013) noted that the enactment of the Corporations Act 2001 (Cth) did not result in ‘a fully unified system’ (p. 18). Barret (2012) agreed with Bathurst, acknowledging that although Australia has progressed substantially, it has not reached and ‘will probably never reach a point of perfectly harmonised uniformity’ (p. 159). Examples of divergence include Tasmanian legislation, where additional preclusions were added for appointing an auditor. Specifically, under the Irrigation Company Act 2011 (Tas), an auditor could be anyone other than a particular office-holder. Another example is the NSW legislation (Dust Diseases Tribunal Act 1989 (NSW)) allowing court proceedings against a company in liquidation when leave to proceed has not been granted under the Corporations Act 2001 (Cth) (n.d.). Additionally, due to the insertion of Part 1.1A, ‘interaction between corporations legislation and state and territory laws’, in the Corporations Act 2001 (Cth) (n.d.), sections of the Act can be excluded from operation in a state or territory. The inclusion of these rollover provisions has affected uniformity. There are also non-obvious differences between jurisdictions resulting from disparate drafting style manuals, naming protocols for the uniform Acts and references to other legislation in the enacting legislation. Even in cases where legislation is identical, the interpretation of a set of uniform Acts can be subject to local Acts interpretation Acts, the absence or existence of human rights legislation and differences between the criminal laws (although these differences relate more to applied rather than textual uniformity and are beyond the scope of this book). In some cases, the impossibility of achieving full uniformity has been due to variations in drafting styles between jurisdictions. Specifically, each jurisdiction’s

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legislation must correspond to its own legislative drafting manual and statute book. This is so even in cases of drafting national uniform legislation or referred structure with the greatest uniformity. The preliminary and concluding parts of the acts can be different in each jurisdiction. Thus, style is one way that full uniformity has been prevented. For example, the concluding part of an Act from NSW is usually entitled ‘Historical Notes’. In Western Australia and Queensland, it is referred to as the ‘Notes’. In the ACT, Northern Territory, Queensland and Victoria, it is drafted as the ‘Endnotes’. In South Australia, it is labelled the ‘Legislative History’, and in Tasmania, it is called the ‘Table of Amendments’. In the federal act, it is described as the ‘Notes to the Specific Act’.Some states and territories have included a ‘Table of Provisions’ at the beginning of an Act (e.g., the Northern Territory); in other cases, no table of contents has been included. Some states, such as Western Australia and Victoria, have published reprints, but others have not. The same has applied to definitions. In some jurisdictions, acts have included a dictionary incorporated at the end of the text. In other jurisdictions, the dictionary has been placed at the beginning of the act. Western Australia provides an index of defined terms, while other jurisdictions do not provide an index. Differences between drafting styles do not affect the uniformity of substantive provisions but relate to the style of a particular jurisdiction. These differences add to the textual divergence. Therefore, stylistic differences need to be disregarded, or sets of uniform Acts must be brought into stylistic harmony. This can be achieved by providing a template for future legislation. A precedent exists, but only for applied structures (see PCC, 2018, Appendix 5). Further, this precedent only pertains to the ‘front end’ of legislation: the provisions related to implementing an applied Act within a jurisdiction. No particular template is used for mirror or referred legislation. In some cases, a template may be suggested by a body proposing a model or centrally developed by the PCC. However, that does not mean that the model will be adopted because the drafting style set by each enacting jurisdiction will be consistent with the local drafting manual, with no specific allowances for national uniform legislation.

5.4.3 Differences Are Not a Failure of Harmonisation Attempts Montesquieu et al. (1977) stated: ‘and does not the greatness of genius consist rather in knowing in which cases there must be uniformity and in which differences’ (p. 378). In essence, the value of uniformity is associated with the legitimacy of differences, and if the cost of harmonisation exceeds its value, then, logically, the differences must prevail (Leebron, 1996, p.  92). However, it is not a simple linear assessment. Differences between laws might exist due to ‘natural, ethical or accidental’ (David, 1971, p. 27) reasons. In this light, some differences are welcome; for instance, differences that consider the geographical, biological or climate conditions across the states and territories. Australia is situated in two climatic zones (tropical and temperate). It has a diverse terrain, from tropical rainforests to deserts,

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offering unique landmarks, such as Uluru and the Great Barrier Reef (Australian Bureau of Statistics, 2012). Given the vast differences in geographic and climate conditions between jurisdictions with unique ecosystems, prima facie cases for the divergence of uniform legislation would include regulating activities or industries based on these differences.The simplistic explanation is that the differences between unique conditions and pseudo differences between jurisdictions are an objective nature of the differences or subjective nature of the pseudo differences. The unique differences can be related to geography and population. The pseudo differences usually include the opinions of individual commentators or groups of commentators. Therefore, unique conditions specific to local phenomena, populations, activities or industries warrant unique regulations. One example is regulating the spread of an invasive weed (Gamba grass, Andropogon Gayanus) in some jurisdictions (Head & Atchison, 2015, p. 225). Specific activities might include controlled burns in a particular region, such as in the Mount Lofty Ranges, South Australia (Bardsley et al., 2015). The Productivity Commission (2016) noted that ‘each jurisdiction faces a unique set of considerations when regulating pastoral land[s], such as environmental factors and the prevalence of native title claims’ (p. 74). Another example is regulating remote work, which is an important feature in the Northern Territory due to the long distances and limited human capital; however, the same will not be as important in Victoria. Therefore, activities related to construction and building must be flexible to allow for these differences. Another example is regulating government, commercial and residential buildings responsively to the geographic and cultural differences in the remote communities of Queensland, Northern Territory and Western Australia (Freeman et  al., 2014; Habibis et  al., 2013). Therefore, a strictly uniform approach in a scenario with different climate, geographic and cultural conditions is not warranted and may be harmful.

5.5 Conclusion This chapter has focused on the most common category of national uniform legislation—that which has grown in uniformity through iterative developments. This category requires patience for its development and acknowledging the necessity to allow time for the growth of uniformity. This book builds on cooperative federalism theory. Therefore, this cooperation, while not sterile, must also recognise that ultimate uniformity might be an elusive goal; however, the fact that 100 per cent uniformity has not been achieved does not mean that harmonisations exercises have failed. The nuanced approach is the key. Thus, the main lessons for law reformers, policymakers and legislative drafters working with national uniform legislation include: (1) the patient and methodical approaches to achieving uniformity without opportunistic attempts to include financial measures (contrary to the pragmatic category of sets of uniform Acts); (2) the recognition that 100 per cent uniformity might never be achieved; and (3) appreciation objective differences without labelling those differences as a failure of harmonisation.

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Lindblom, C. E., & Woodhouse, E. J. (1993). The policy-making process (3rd ed.) Englewood Cliffs. Montesquieu, C.-L. D. S. D., Carithers, D. W., & Nugent, T. (1977). The spirit of laws: A compendium of the first (English edition). University of California Press. Nagel, S. S. (2002). Contemporary policy evaluation. Nova Science Pub Incorporated. National Legal Profession Reform Consultative Group. (2009, August 4). Background paper. https://www.justice.nsw.gov.au/Documents/LPR_Documents/pdf/Consultative_Group_ Paper_Background_Information.pdf New South Wales, Parliamentary Debates, Legislative Council, 2015, October 28, 5169 (John Ajaka). Northern Territory, Parliamentary Debates, Legislative Assembly, Second Reading Speech, Occupational Licensing (National Uniform Legislation) Bill 2010 (Delia Lawrie). Parliamentary Counsel’s Committee. (2018, February 21). Protocol on drafting national uniform legislation (4th ed.). https://pcc.gov.au/uniform/Uniform-drafting-protocol-4th-edition.pdf Parsons, W. (1995). Public policy: An introduction to the theory and practice of policy analysis. Edward Elgar. Pearce, C. (2017). The great daylight saving time controversy. Australian eBook Publisher. https:// books.google.com.au/books?id=kpmbDgAAQBAJ Productivity Commission. (2016, November 15). Regulation of Australian agriculture: Productivity commission inquiry report (Report No. 79). Commonwealth of Australia. https://www.pc.gov. au/inquiries/completed/agriculture/report/agriculture.pdf Queensland Law Society. (2018, June 13). Western Australia to join legal profession uniform law scheme. http://www.qls.com.au/About_QLS/News_media/News/ Western_Australia_to_join_Legal_Profession_Uniform_Law_scheme R v Hughes (2000) 202 CLR 535. Re Wakim; Ex parte McNally (1999) 198 CLR 511. Robertson, D. (2015). An overview of the legal profession uniform law (pp. 36–41). Bar News. https://nswbar.asn.au/docs/webdocs/BN032015_uniform.pdf Rogers, J., Smith, D. K., & Chellew, J. (2017). The large professional service firm: A new force in the regulative bargain. University of New South Wales Law Journal, 40(1), 218–261. https:// www.unswlawjournal.unsw.edu.au/wp-­content/uploads/2017/09/40-­1-­7.pdf Sabatier, P.  A. (1991). Toward better theories of the policy process. PS: Political Science and Politics, 24(2), 147–156. https://doi.org/10.2307/419923 Senate Standing Committee on Constitutional and Legal Affairs (1987). The role of parliament and the National Companies Scheme, Canberra. Spamann, H. (2009). Contemporary legal transplants: Legal families and the diffusion of (corporate) law. BYU Law Review, 2009(6), 1813–1877. https://digitalcommons.law.byu.edu/ lawreview/vol2009/iss6/11/ Sutton, J. (2014, February 26). Productivity? Who cares, as national licensing trashed by COAG. The Fifth Estate. https://www.thefifthestate.com.au/columns/spinifex/ productivity-­who-­cares-­as-­national-­licensing-­trashed-­by-­coag Tiernan, A. (2015). Reforming Australia’s federal framework: Priorities and prospects. Australian Journal of Public Administration, 74(4), 398–405. https://doi.org/10.1111/1467-­8500.12180 Tyson, J. (2016). ANZSOC case program: The national occupational licensing project. Australia and New Zealand School of Government. https://www.anzsog.edu.au/preview-­documents/ case-­study-­level-­1/930-­national-­occupational-­licensing-­project-­the-­nola-­a-­2016-­177-­1/file Upton, G. (2015, July 1). New era for legal services in NSW & Victoria [Media release]. NSW Government. https://www.justice.nsw.gov.au/Pages/media-­news/media-­releases/2015/New-­ era-­for-­legal-­services.aspx Victorian Legal Services Board and Commissioner. (2015, October 16). Legal profession uniform law. http://lsbc.vic.gov.au/?page_id=568 Wallace, H. S., Pollack, M. A., & Young, A. R. (2015). Policy-making in the European Union. Oxford University Press. Western Australia, Parliamentary Debates, Legislative Council, 2011, 23 February, 907b–909a (Michael Mischin).

Chapter 6

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Elevation to Uniformity Multiple Streams Framework

Abstract  Incremental policy development theories cannot be used amid crises, political or economic upheaval, or other ‘great chances.’ Therefore, Kingdon’s multiple streams framework provides more appropriate lenses. The importance of this framework for comprehending uniformity is that it emphasises the elusiveness of logic and rationality. From the first days of policy development, drafting of legislation and implementation, there is an element of risk (opportune moment, chance or coincidence) involved in achieving uniformity. Policymaking can be as much an accidental as a rational process. Therefore, the main lessons for law reformers, policymakers and legislative drafters working with national uniform legislation in this category include: (1) an awareness that the policy window is usually open for approximately 2 years and that the model must already exist within Australia or a similar jurisdiction because there is not enough time to develop a completely new policy; and (2) an appreciation of the vulnerability of policies rather than the uniformity of introduced legislation because uniformity is usually secured through referred or applied structures, national regulators, or both.

6.1 Introduction In special circumstances, uniformity can be achieved very quickly. The general rule is that uniformity can only be achieved through iterative developments unless a policy opportunity arises that combines three separate streams: problems, policies © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_6

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and politics. The confluence of these three streams can result in a fast rise to uniformity. This chapter examines how the multiple streams framework can be applied to cases where sets of uniform Acts achieve uniformity from the outset in a seemingly ‘overnight’ fashion. According to public policy research, in crises, political or economic upheavals or other ‘grand opportunities’, incremental policy developments cannot occur (Boin et al., 2009; Howlett & Cashore, 2009). Generally, for legislation in this category, a strong event or crisis has raised the national conscience to the maximum level, creating sufficient momentum to develop national policies (Hill, 2020). The framework most relevant to this category is Kingdon’s (2014) multiple streams framework. The value of this framework for understanding uniformity lies in highlighting the elusiveness of rationality (Kingdon, 2014). There is an element of chance involved when attempting to achieve uniformity from the first days of implementation. Indeed, policymaking is as much an accidental process as it is a rational process (Cairney, 2011, p. 233). Consistent with Kingdon’s multiple streams framework, a radical move to uniformity occurs due to a ‘focusing’ event. This allows the multiple streams of problems, policies and politics to converge, resulting in a national solution to a national problem. The most remarkable examples falling into this category of legislation from the PPC database include counterterrorism, fair work and native title legislation.This chapter is divided into the following sections: analysis of the multiple streams framework; evaluation of counterterrorism and fair work legislation as examples of merging the multiple streams; and lessons for law reformers, policymakers and legislative drafters working with legislation in this category.

6.2 Multiple Streams Framework Kingdon’s multiple streams framework explains why in some cases, policy and legislation innovations result from the confluence of various streams (problems, policies and politics) through policy entrepreneurs and the opportunity that arouse, i.e. opening of a policy window (Kingdon, 1984, 2014). Kingdon’s (2014) inquiry focused on the ‘process by which agendas and alternatives are specified’ (p. 17). However, the theory was later used more widely to explore the implementation stages (Howlett et al., 2017 p. 68). The framework explains situations where there is an ‘idea whose time has come’ (Howlett et al., 2014, p. 421). The multiple streams framework explains cases in which national uniform legislation propels to high levels of uniformity without incrementally progressing from structure to structure. The focusing events can be quite different (Birkland, 1997). The policy window may open because of a focusing event, such as a terrorist attack resulting in counterterrorism regulations, an election resulting in fair work legislation, a High Court of Australia case resulting in native title legislation or a royal commission finding resulting in a national redress scheme. An element of chance (opportune moment or coincidence) is involved from the first days of implementation when attempting to achieve uniformity (Hill, 2020, p. 361). Consistent with Kingdon’s (2014) multiple streams framework, a radical

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move to uniformity occurs due to a ‘focusing’ event. This allows the problem, policy and political streams to converge, resulting in a national solution to a national problem. The problems are defined as ‘policy issues that require attention’ (Birkland, 1997). There are no independent rational criteria to establish which problems have more merit, deserve attention more than others or have to be prioritised (Majone, 1989). Hill (2020, p. 361) demonstrated that understanding what constitutes a policy within the framework rests on three premises: (1) policy ideas exist in the ‘policy primaeval soup’ and can arise from many sources that are hard to control or predict because ‘nobody really controls the information system’ (Kingdon, 2014, p. 78); (2) policies take time to develop because policy specialists have established views and must be ‘softened up’ to new ideas (Kingdon, 2014, p. 18); and (3) only some policies survive by adapting to meet the criteria or ‘technical feasibility’, ‘value acceptability’, tolerable costs, public acceptability and receptivity among the elected members (Kingdon, 2014, pp. 131–146). The third stream (politics) depends on ‘swings of national mood, vagaries of public opinion, election results, changes of administration … [and] interest group pressure campaigns’ (Kingdon, 2014, p.  19).In the right conditions, the three streams can converge and open a policy window resulting from a focusing event. Unexpected crises or disasters (Birkland, 1997), as well as an expected institutional event, such as an election (Rüb, 2016, p. 64), can serve as focusing events. Focusing events ‘simply bowl over everything standing in the way of prominence on the agenda’ (Kingdon, 2014, p. 96). A focusing event may emphasise a problem ‘already in the back of people’s minds’, reframe old issues in a new light or shift the scale of a problem (Kingdon, 2014, p. 103). The paradigm proposed by Kingdon (2014) explains why models from other jurisdictions are employed in these circumstances: When the time for action arrives, when the policy window … opens, it is too late to develop a new proposal from scratch. It must have already gone through this process of consideration, floating up, discussion, revision and trying out again (p. 149).

In contrast with the slow and steady uniform legislation, the policy that is expecting an opportune moment has to be already prepared and ready because the reality is that: advocates lie in wait in and around government with their solutions at hand, waiting for problems to float by to which they can attach their solutions at hand, waiting for a development in the political stream they can use to their advantage (Kingdon, 2014, pp. 165–166).

The ‘policy windows, the opportunities for action on given initiatives, present themselves and stay open for only short periods’ (Kingdon, 2014, p. 174). Opportune moments are the primary explanation in these circumstances: An idea’s time arrives not simply because the idea is compelling on its own terms, but because opportune political circumstances favour it. At those moments when a political idea finds persuasive expression among actors whose institutional position gives them both the motive and the opportunity to translate into policy—then, and only then, can we say that an idea has found a time (Lieberman, 2002, p. 709).

Everything depends on the ‘mix of elements [being] present and how the various elements are coupled’ (Kingdon, 2014, p. 174). The electorate may not fully know what they need, and governments may make election promises to solve problems ‘they do

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not fully understand’ (Cairney, 2011, p. 239). However, decisions are made, problems are framed, and policies are implemented (Zahariadis, 2003, p. 1) and national uniform legislation is drafted as examined in the case studies in the next section.

6.3 Case Studies and Examples of Focusing Events The multiple streams framework (Kingdon, 2014) explains the changes that go ‘beyond narrow issue areas and incremental adjustments’ (Keeler, 1993, p.  436) because the opportunity is the primary focus of the framework. Everything depends on the focusing event. Therefore, further discussion progresses from the point of analysing these focusing events. Unlike other countries, in addition to crises and elections, focusing events in Australia can include national legislative changes that create intended or unintended flow-on consequences at the state and territory levels. These changes may include decisions of the High Court of Australia with consequences for all jurisdictions or amendments to federal legislation that may affect the legislation of the states and territories. Hill (2020, p.  362) demonstrated that high levels of uniformity have been achieved from the outset in the following sets of uniform Acts: • • • • • • • • • • • • • • • •

air navigation (applied) children (i.e., education and care services) (applied) civil aviation (i.e., carriers liability) (applied) coastal waters (mirror/‘almost identical’) federal places (i.e., mirror tax) (mirror/‘almost identical’) electronic conveyancing (applied) crimes at sea (mirror/‘almost identical’) de facto financial matters (referred) gene technology (hybrid, i.e., mirror and applied) industrial relations (i.e., fair work) (referred) intergovernmental agreements on federal–state financial relations (mirror/‘almost identical’) national redress schemes (referred) offshore minerals (mirror/‘substantially uniform’) personal property (referred) sports drug testing (applied) counterterrorism (referred). Typically, the problem quickly captures national attention in these circumstances, and uniformity is discussed through forums such as a National Cabinet (formerly COAG) and secured by a referred (sometimes applied) structure. Subsequent uniformity is secured through a national regulator. The national regulator ensures the streamlined refinements of policies that are usually required in these circumstances.

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Subsequent sections provide examples based on different types of focusing events, such as an unplanned crisis caused by an overseas terrorist attack resulting in counterterrorism legislation, a semi-planned election promise resulting in work choices legislation and the flow-on effect of decisions resulting in the enactment of other legislation or a decision of the High Court of Australia.

6.3.1 Unplanned Focusing Events: Counterterrorism Legislation Section 51 of the Australian Constitution does not expressly empower the Commonwealth to legislate criminal law matters. Therefore, criminal law has traditionally been the remit of the states and territories. The Commonwealth’s criminal law legislation is mostly ancillary to other heads of power under section 51, with the Crimes Act 1914 (Cth) regulating offences against the Commonwealth. Criminal law is particularly difficult to harmonise (Hill, 2020). The single exception is counterterrorism legislation, which was implemented in the most rigid, referred structure and is an example of the most uniform approach to Australian criminal law. This unprecedented harmonisation was achieved in record time due to the paramount external shock of the 9/11 attacks. This unexpected and shocking event changed the long-held views of the advocacy coalitions interested in retaining the status quo. Prior to 2002, anti-terrorism legislation was mainly based on state and territory criminal laws, with the underlying idea that the Australian government could depend on criminal laws of broad application, such as those governing murder or severe bodily harm. (Cornall, 2007). The problem stream was elevated to the national agenda after the terrorist attacks in the USA on September 11, 2011. The Australian Government commissioned the (then) Secretary of the Attorney-General’s Department, Robert Cornall, to lead a review of counterterrorism arrangements (the Cornall Review) and ensure that Australia had sufficient capabilities to respond to a terrorist threat (Williams, 2001). Notably, the multiple streams framework argues that individuals are more likely to risk policy changes when the problems are framed as losses rather than gains; loss aversion allows the streams to couple with intensity (Sabatier & Weible, 2007, p. 78). The politics stream merged on 5 April 2002, when the heads of the federal, state and territory governments agreed ‘to take whatever action is necessary to ensure that terrorists can be prosecuted under the criminal law, including a reference of power so that the Commonwealth may enact specific, jointly-agreed legislation’ (COAG, 2004). Due to the prompt development of the policy that was typical of the multiple streams framework, the policy had to be modelled after another jurisdiction. Most Australian bills had been modelled on UK legislation, with some modifications (Jaggers, 2008; Lynch, 2008; Senate SCLCA, 2002). The focusing event mentioned in the second reading speech was the coordinated terrorist bombings of a train system in Spain, which killed around 193 people. However, the initial

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focusing event of the September 11, 2001, attacks was also mentioned in the speech by Ruddock (Commonwealth, 2004). The first bill was passed in 2002 with further progressive legislation to follow (see, Criminal Code Amendment (Anti-Hoax and Other Measures) Act 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth); Security Legislation Amendment (Terrorism) Act 2002 (Cth); Australian Security Intelligence Organisation (Terrorism) Act 2002 (Cth); Anti-Terrorism Act 2004 (Cth); Anti-Terrorism Act (No 2) 2004 (Cth); Anti-­ Terrorism Act (No 3) 2004 (Cth); Anti-Terrorism Act 2005 (Cth); Anti-Terrorism Act (No 2) 2005 (Cth)).This sequential introduction of bills is considered a successful practice for policy entrepreneurs working in crisis conditions and is referred to as the ‘salami tac- tic’ (Sabatier & Weible, 2007, p. 199). The tactic involves ‘the strategic manipulation of sequential’ decision-making; thus, the set of uniform Acts involves a series of distinct stages presented sequentially to policymakers as separate bills. The standalone Anti-Terrorism Act 2004 (Cth) ensures that the states and territories refer certain matters related to counter-terrorism Acts (see the Annexure) to the Parliament of Australia under the Constitution (s 51(xxxvii)). It was also agreed that any amendments to the federal legislation would be subject to consultation between the jurisdictions (Counter-terrorism Laws, (Intergovernmental Agreement, 25 June 2004).) The action was prompt, and sustainability was secured by both the referred structure and a national regulator: the ACIC.Counterterrorism legislation is somewhat controversial, giving wide powers of detention and questioning to the enforcement agencies (Head, 2004). The cooperation of jurisdictions to prevent terrorist attacks has nevertheless been agreed to, with the implementation of counterterrorism legislation being quite effective. The Attorney-General’s Department (n.d.) stated that ‘effective laws are a critical component of Australia’s response to threatened or actual terrorist acts’. However, further harmonisation of the criminal laws affixed to counterterrorism cooperation has been criticised. To counter that, the then prime minister, Turnbull (as quoted in Massola, 2017) urged: ‘It’s vital that we have nationally consistent terrorism laws. I’m asking state and territory leaders to work with me to deliver safety and security’. He also asserted that: people who are using the internet to spread terrorist propaganda and instructions will be tracked down and caught … We need nationally consistent pre-charge detention laws so that those who seek to do us harm can be held to account no matter where they are (as quoted in Massola, 2017).

The idea of toughening counterterrorism laws currently appears to be supported by the jurisdictions (‘Leaders Vow to Toughen Anti-Terror Laws’, 2017), with concerns regarding the threats to multiculturalism fading. In 2017, the Prime Minister’s Office conducted an independent review ‘to provide a pathway to an even higher level of collective performance’. Four priority areas were identified, including further streamlining of legislation across jurisdictions – the other three include: improving coordination between existing structures, developing funding mechanism, strengthening the trust between agencies and community (L’Estrange & Merchant, 2017, p. 6). Thus, a review of the relevant legislation was recommended to ensure that regulations would be ‘clear, coherent, and

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[contain] consistent protections for Australians’ (L’Estrange & Merchant, 2017, p.  19). The review supported further streamlining because risks to intelligence would likely intensify with competition between countries, ‘the new frontiers of data-rich intelligence and the risks to comparative technical advantages’ (L’Estrange & Merchant, 2017, p.  6). The review’s key recommendation was to establish an Office of National Intelligence in the Prime Minister’s portfolio (L’Estrange & Merchant, 2017, p. 5). Recommendation 3 provided that the primary role of this office would be to facilitate ‘closer coordination, evaluation, and integration across national counterterrorism intelligence activities as a whole’ (L’Estrange & Merchant, 2017. p. 14). Considering this, it is unlikely that the policies will change or uniformity will be reversed based on the arguments raised by opponents to the policy. The multiple streams framework (Kingdon, 2014) explains precisely how uniformity has been promptly achieved in this area due to a shocking focusing event potentially threatening the safety of all Australian jurisdictions.

6.3.2 Semi-Planned Focusing Events: Elections and International Obligations An example of a semi-planned focusing event can be an election. For example, election of Julia Gillard as the Prime Minister of Australia, allowed the streams to merge, resulting in the work choices legislation (Workplace Relations Amendment (Work Choices) Bill 2005 (Cth), n.d.) being superseded by the fair work Acts (see the Appendix). Uniformity was quickly brought to a traditionally fragmented area of industrial relations. For over a century, the Australian industrial relations system relied on the concurrent operations of the nine jurisdictions. This situation existed because the Constitution gave the primary responsibility for regulating industrial relations to the states, retaining limited law-making power in the federal parliament (Roth, 2010). Hill (2020, p. 364) explained that the problem and policy solution streams were the responsibility of the then Prime Minister, John Howard. Some commentators said that the work choices legislation was the ‘culmination of a twenty-year campaign by John Howard and his supporters to re-regulate workplace relations’ (Stewart, 2006, p. 25). Multiple streams theory suggests that policies often chase problems and opportunities; policymakers may not ‘discover issues’ but ‘elevate issues’ (Kingdon, 2014, p. 31). A Senate inquiry summarised the problem: ‘Australia currently has over 130 different pieces of employment-related legislation, over 4,000 different awards … There are too many rules … There is also too much red tape, too much complexity, and too much confusion’ (Explanatory Memorandum, 2005, p.  4). The federal government created a policy that established a national system of workplace relations, relying on the corporations power of the Constitution. The policy, found in the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) n.d., represented ‘a radical departure from the constitutional basis upon which

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the previous industrial relations statutes were based’ (Explanatory Memorandum, 2005, p.  4) and was ‘a fundamental shift in workplace relations’ (Barnett, 2006, p. 126). The election win allowed the policy window to open. Policy windows can be ‘an opportunity for advocates of proposals to push their pet solutions, or to push attention to their special problems’ (Kingdon, 2014, p. 165).It took decades to bring industrial relations into a ‘single set of national laws’ (Howard, 2005, p. 8). However, once the goal was achieved, fair work legislation overturned work choices legislation in a single reform (Hill, 2020, p. 364). Gillard celebrated: ‘With the introduction today of the fair work bill, work choices is tantalisingly close to being gone forever’ (Commonwealth, 2008, p. 11189). This dramatic shift in policy following uniformity demonstrates the vulnerability of the policy rather than uniformity in cases where the jurisdictions have referred the matter to the Australian Government under the Constitution (s 51(xxxvii)). The harmonisation of commercial arbitration laws is a good example of developing national uniform legislation through the obligations created by international treaties. At first, harmonisation development was incremental. Then, commercial arbitration mirror legislation (see the Appendix) replaced the old legislation. For example, the Commercial Arbitration Act 1984 (NSW) (n.d.) replaced the Arbitration Act 1902 (NSW) (n.d.), which had been in force for 80 years. After this, it was another 20 years before newer national uniform legislation was implemented (international arbitration legislation, see the Appendix). Spigelman (2009) recounted that in relation to the old legislation on commercial arbitration: ‘Our uniform legislative scheme for domestic arbitration is now hopelessly out of date and requires a complete rewrite … The delay with respect to the reform of the commercial arbitration Acts is now embarrassing’ (p. 52). The replacement of the old regime with the new was implemented without changing the structure (it is still mirror legislation). The old scheme was based on the model Arbitration Act 1979 (UK) (n.d.) (now replaced by the Arbitration Act 1996 (UK), n.d.). The new mirror legislation is based on the provisions of the 2006 UNCITRAL Model Law on Electronic Commerce, ‘the current international benchmark for arbitral laws’ (Miles et  al., 2011).Commercial arbitration reforms have been swift due to the pressure generated and potential for Australia to become the leader of international arbitration in the Asia-Pacific region: ‘Australia offers the world a seat for arbitration that is neutral, safe, and critically, willing to learn from leading centres around the globe’ (Kitharidis, 2011; Warren, 2017). An early indication of an ‘overhaul’ of the commercial arbitration system was announced by the attorney-general at COAG in November 2009 (McClelland & Hatzistergos, 2009). In May 2010, the Standing Committee of Attorneys-General agreed to implement a model commercial arbitration bill to harmonise domestic arbitration laws with the international model. This model regulates international arbitration. International arbitration in Australia has been the remit of the Australian Government and regulated under the International Arbitration Act 1974 (Cth) (n.d.), which was amended in 2010 to align with the UNCITRAL Model (n.d.). Between 2010 and 2013, all jurisdictions, except the ACT, implemented the new regime (see the Appendix).

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6.3.3 Flow-On Effects from Court Decisions or Legislation Changes The enactment of legislation and its unintended consequences can also create a focusing event. This happened in the case of the de facto financial matters set of uniform Acts. The set of uniform Acts was enacted in a referred structure. The referral of powers over property rights had been on the political agenda since 1976 when it was raised in the Australian Constitutional Convention. The time for referral came when the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) (n.d.) was enacted, allowing the distribution of superannuation for married couples. This resulted in uncertainty regarding superannuation splitting orders for de facto couples across jurisdictions. Hatzistergos characterised the problem stream: Under the present regime, de facto couples in different states may have their property treated differently for no good reason. Even if states intend to enact and maintain uniform legislation, process delays can result in legislative anomalies. Such an approach would be highly complex, time-consuming, and impracticable (NSW, 2003).

As a result, the policy stream included a set of acts in referred structures to refer these matters for regulation by the Australian Government, particularly parenting and financial matters under the Family Law Act 1975 (Cth) (n.d.). The legislation was enacted in a referred structure from the outset by all jurisdictions. Western Australia had some differences because it is the only jurisdiction with a state jurisdiction family court; however, the current legislative regime has been characterised by sustainable uniformity.

6.4 Lessons for Law Reformers, Policymakers and Legislative Drafters When legislation achieves high levels of uniformity from the first days of its existence, the multiple streams framework is more appropriate for informing policy developments. In these situations, sustainable uniformity is achieved very quickly, generally within two or three years. When the multiple streams framework is applied, achieving sustainable uniformity is ensured by an applied or referred structure and a national regulator. Harmonisation in these cases does not take long because the three streams (problem, policy and politics) promptly merge with the implemented legislation. However, certain conditions must be met for this to happen. First, the problem must be national to reach the national agenda. These situations concern the entire nation; they are not just local phenomena. Second, the policy may be controversial and require a period of testing and refinement. Third, the political forces among the jurisdictions must be aligned. When the multiple streams framework is applied, action must be prompt and the policy prepared in advance. The policy must be ready

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to attach to the problem being brought to the national agenda. The policy window can close as quickly as it opens. Therefore, prompt action and tested policies are essential. The referred structure and national regulator help sustainable uniformity withstand periods of criticism and refinement.Lessons can be drawn from the theory and practice to help law reformers, policymakers and legislative drafters working with national uniform legislation. The main lessons in this category of legislation include the necessity for a pre-prepared model and awareness of the vulnerability of the policy rather than uniformity itself.

6.4.1 Necessity and Urgency The case studies have demonstrated that the policy window for national uniform legislation can open and close very quickly. An approximate estimate of the Australian reality is two, maximum three, years. Due to these time constraints, a model policy or pre-prepared draft must exist. The model can be borrowed from a comparable international jurisdiction or even a local state jurisdiction—that is when the legal scholar make an argument about usefulness of states or other countries as laboratories to test policies within a particular jurisdiction before introducing the policy on a larger scale. For example, the model for counterterrorism legislation was borrowed from the UK. Most legislative drafters understand that it takes close to a year to develop a draft of substantial legislation after the drafters receive instructions from the policy officers. Similarly, it takes at least one year for policy officers to prepare good quality instructions for legislative drafters regarding substantial legislation. Therefore, if law reformers, policy officers and legislative drafters are working with uniform legislation that falls into the multiple streams category, the model will be probably borrowed from the existing model in one of the Australian jurisdctions, or a comparable international jurisdictions such as UK, US or Canada and the urgency will probably lead to overtime work and possibly some errors, which will have to be addressed post-enactment.

6.4.2 Policy Vulnerabilities and Importance of National Regulators Once the national consciousness rises about the necessity for a uniform approach to a problem, uniformity is usually not difficult to achieve. In these cases, sustainable uniformity is not vulnerable because it is usually ensured by the relevant structure (referred or applied) and a national regulator. The vulnerable factor is the policy itself. There is a potential for the policy to be overturned entirely, as occurred with the fair work legislation overturning the work choices reforms once the legislation was harmonised across the jurisdictions. Therefore, national regulators have a key role in refining policies.

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Sometimes, national uniform legislation is specifically drafted to establish a national regulator, for example, Australian Crime Commission legislation (see the Appendix). In other cases, the establishment of the national regulator is included in other substantive provisions (for example, See, e.g., Personal Property Securities Act 2009 (Cth) s 194). Some regulators have been established by national uniform legislation, for instance, the Australian Crime Commission (now the ACIC). In contrast, some national regulators have been established to facilitate the harmonisation process, for example, the Australian Registrars’ National Electronic Conveyancing Council and WorkSafe Australia. In other cases, an existing federal body has been entrusted with overseeing national uniform legislation, for example, the ASIC for business names. The highest levels of uniformity have been observed in legislation resulting from specifically established national regulators that have implemented harmonisation and federal bodies acting as regulators. A high level of cooperative effort is required to establish a national regulator, which, in turn, indicates a higher initial consensus resulting in high uniformity and sustainable uniformity. Thus, national uniform legislation in which a national regulator has already been established can achieve higher levels of commitment and consensus between jurisdictions. In a report prepared for the Australian Government Department of the Environment, GHD (2015) stated that the existence of a national regulator ‘extends the focus from achieving legislative or regulatory consistency to consistency in implementation and enforcement, with distinct administrative challenges’ (p. 4). In other words, in terms of sustainable uniformity, the national regulator is responsible for current regulations and future reforms and is more likely to propose future reforms that involve all jurisdictions.

6.4.3 National Regulators for Sustaining Uniformity and Refining Policies A typical example of a national regulator can be found in the regulation of gene technology (see the Appendix). The set of uniform Acts regarding gene technology is in the hybrid structure, with some jurisdictions enacting either mirror or applied legislation. The objective of the regulation is ‘to protect the health and safety of Australians and the Australian environment by identifying risks posed by or as a result of gene technology, and to manage those risks by regulating certain dealings with genetically modified organisms’ (National Transport Commission, 2009, Appendix 1). In 2001, the Office of the Gene Technology Regulator was established, comprising approximately 50 scientific, legal, policy, professional and administrative staff. The office supports the gene technology regulator, an independent statutory office-­ holder responsible for administrating legislation. The majority of jurisdictions must agree to the appointment of the regulator. Once an agreement is reached, the governor-­ general appoints the regulator. The regulator is accountable to the Legislative and Governance Forum on Gene Technology (previously Gene

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Technology Ministerial Council). Financial oversight for the Office of the Gene Technology Regulator is the responsibility of the federal secretary of the Department of Health and Ageing (National Transport Commission, 2009, p. 1).A national regulator, whether in the form of a specifically created body or a federal agency, is a powerful mechanism for sustaining the uniformity of national uniform legislation. Although establishing a national regulator has been correlated with higher levels of uniformity and sustainable uniformity, it invariably involves costs. It has been proven that high costs preclude harmonisation. Smits identified that ‘a great amount of uniformity in the law is the least probable where changing the existing law is only possible at the expense of high cost’ (Smits, 2003, p. 7). Crettez et al. (2016, p. 27), through mathematical modelling, arrived at the same conclusion: non-cooperation becomes the best choice for jurisdictions when the costs of coordination are high. These findings suggest that having a national regulator could be conducive to the sustainable development of uniformity in future years. In this sense, national regulators are beneficial for sustaining uniformity, being responsive and adaptable to changes and being a forum for further harmonisation efforts. To summarise, the advantages of national uniform legislation in cases of shared natural resources have included the creation of an ‘even playing field’ (Bluff & Gunningham, 2012) and ‘equality’ for all Australians (Patmore & Rubenstein, 2014, p. 111). Legal talent has been combined from various jurisdictions (Maggs, 1999, p. 281), giving wider relevance to national reforms (made possible through national uniform legislation) for Australia’s economic development (Sims, 2013). However, the costs of such resources have been high for areas of the law that are deemed less essential to the nation as a whole. The findings discussed in Sect. 6.3.3 suggest that national regulators have had the most compelling role considering the other mechanisms that sustain uniformity. However, the findings are equivocal. When there is an isolated problem requiring a resolution, skeletal legislation or legislation subject to consecutive harmonisation, a national regulator has been unnecessary to ensure sustainable uniformity. Alternatively, where an area has traditionally been controversial (e.g., criminal laws or road transport regulations), a national regulator has had limited effects. However, when the database was analysed in full, national regulators ensured the sustainable uniformity of 80 per cent of the other structures and only 25 per cent of the mirror structure cases. Therefore, the sustainable uniformity of structures has mostly been secured by institutional support rather than the form of the legislative drafting alone (i.e., the structures discussed in Chap. 3).

6.5 Conclusion This chapter has applied Kingdon’s (2014) multiple streams framework to sets of uniform Acts that have achieved sustainable uniformity from the outset. Although the focusing events are different, ranging from overseas terrorist attacks to court decisions, the uniting factor is the ability to raise a compelling issue to a national

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agenda. These focusing events have not affected one or two jurisdictions; they have been important to the entire nation. In all circumstances, policies have been promptly implemented after the focusing event, usually within one or two years. These cases are significant due to the rapid responses and achievement of uniformity from the outset. The multiple streams framework applies when there is a radical elevation of legislation to uniformity. In these cases, uniformity is explained by the opening of a policy window, where national policy can be raised to the national agenda by some important event. This occurred in 18 cases in the current database. Therefore, the main lessons for law reformers, policymakers and legislative drafters working with national uniform legislation in this category include: (1) an awareness that the policy window is usually open for approximately two years and that the model must already exist within Australia or a similar jurisdiction because there is not enough time to develop a completely new policy; and (2) an appreciation of the vulnerability of policies rather than the uniformity of introduced legislation because uniformity is usually secured through referred or applied structures, national regulators, or both.

References Arbitration Act 1902 (NSW). (n.d.). https://legislation.nsw.gov.au/view/pdf/asmade/act-­1902-­29 Arbitration Act 1979 (UK). (n.d.). https://www.legislation.gov.uk/ukpga/1979/42/1991-­02-­01/ data.html Arbitration Act 1996 (UK). (n.d.). https://www.legislation.gov.uk/ukpga/1996/23/ section/24/2012-­09-­27 Attorney-General’s Department. (n.d.). Australia’s counter-terrorism laws. https://www.ag.gov. au/national-­security/australias-­counter-­terrorism-­laws Barnett, D. (2006). The corporations power and federalism: Key aspects of the constitutional validity of the Work Choices Act. University of New South Wales Law Journal, 29(1), 91–127. http:// classic.austlii.edu.au/au/journals/UNSWLawJl/2006/7.html Birkland, T.  A. (1997). After disaster: Agenda setting, public policy and focusing events. Georgetown University Press. Bluff, E., & Gunningham, N. (2012). Harmonising work health and safety regulatory regimes. Australian Journal of Labour Law, 25(2), 85–106. Boin, A., Hart, P., & McConnell, A. (2009). Crisis exploitation: Political and policy impacts of framing contests. Journal of European Public Policy, 16(1), 81–106. https://doi. org/10.1080/13501760802453221 Cairney, P. (2011). Understanding public policy: Theories and issues (2nd ed.). Macmillan Science & Education. Commercial Arbitration Act 1984 (NSW). (n.d.). https://legislation.nsw.gov.au/view/whole/html/ inforce/2005-­08-­15/act-­1984-­160 Commonwealth, Parliamentary Debates, House of Representatives, 2004, March 31, 27657 (Philip Ruddock). Commonwealth, Parliamentary Debates, House of Representatives, 2008, November 25, 11189 (Julia Gillard).

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Cornall, R. (2007). The effectiveness of criminal laws on terrorism. In A. Lynch, E. MacDonald, & G. Williams (Eds.), Law and liberty in the war on terror (pp. 50–58). The Federation Press. https://www.ada.asn.au/assets/files/papers/LawandLibertyintheWaronTerror.pdf Council of Australian Governments. (2004, June 25). Agreement on counter-­ terrorism laws. https://www.coag.gov.au/about-­coag/agreements/ intergovernmental-­agreement-­counter-­terrorism-­laws Crettez, B., Deffains, B., & Musy, O. (2016). Convergence of legal rules: Comparing cooperative and non-cooperative processes. Review of Law & Economics, 12(1), 13–35. https://doi. org/10.1515/rle-­2014-­0016 Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005 (Cth). https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r2465_ems_66c6c7e2-­1c06-­ 4074-­8a4c-­dca341dfe1fb/upload_pdf/74998.pdf;fileType=application%2Fpdf Family Law Act 1975 (Cth). (n.d.). https://www.legislation.gov.au/Details/C2019C00101 Family Law Legislation Amendment (Superannuation) Act 2001 (Cth). (n.d.). GHD. (2015, July). Transport and environmental regulation of hazardous waste—Opportunities for harmonisation: Final report. Australian Government Department of the Environment. https://www.environment.gov.au/protection/publications/harmonisation-­study Head, M. (2004). Another threat to democratic rights: ASIO detentions cloaked in secrecy. Alternative Law Journal, 29(3), 127–130. https://doi.org/10.1177/2F1037969X0402900304 Hill, G. (2020). Categories of the ‘art of the impossible’: Achieving sustainable uniformity in harmonised legislation in the Australian federation. Federal Law Review, 48(3), 350–381. https:// doi.org/10.1177/2F0067205X20927808 Howard, J. (2005, May 26). Ministerial statements: Workplace relations reform. https://parlinfo. aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22chamber/hansardr/2005-­05-­ 26/0079%22 Howlett, M., & Cashore, B. (2009). The dependent variable problem in the study of policy change: Understanding policy change as a methodological problem. Journal of Comparative Policy Analysis: Research and Practice, 11(1), 33–46. https://doi.org/10.1080/13876980802648144 Howlett, M., McConnell, A., & Perl, A. (2014). Streams and stages: Reconciling Kingdon and policy process theory. European Journal of Political Research, 54(3), 419–434. https://doi. org/10.1111/1475-­6765.12064 Howlett, M., McConnell, A., & Perl, A. (2017). Moving policy theory forward: Connecting multiple stream and advocacy coalition frameworks to policy cycle models of analysis. Australian Journal of Public Administration, 76(1), 65–79. https://doi.org/10.1111/1467-­8500.12191 International Arbitration Act 1974 (Cth). (n.d.). https://www.legislation.gov.au/Details/ C2011C00342 Jaggers, B. (2008, April 29). Anti-terrorism control orders in Australia and the United Kingdom: A comparison (Research Paper No. 28). Parliament of Australia. https://www. aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/ RP0708/08rp28#_ftn60 Keeler, J.  T. S. (1993). Opening the window for reform: Mandates, crises, and extraordinary policy-making. Comparative Political Studies, 25(4), 433–486. https://doi.org/10.117 7/2F0010414093025004002 Kingdon, J. W. (1984). Agendas, alternatives, and public policies. Little. Kingdon, J. W. (2014). Agendas, alternatives, and public policies (2nd ed.). Pearson Education Limited. Kitharidis, S. (2011). Australia’s reputation as a centre for international arbitration: Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie Sas: Missing a critical opportunity to reverse the Eisenwerk decision. Bond Law Review, 23(1), 102–116. L’Estrange, M., & Merchant, S. (2017, June). 2017 Independent intelligence review (June 2017). Department of the Prime Minister and Cabinet. https://www.pmc.gov.au/resource-­centre/ national-­security/report-­2017-­independent-­intelligence-­review

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Leaders Vow to Toughen Anti-Terror Laws. (2017, June 9). SBS News. http://www.sbs.com.au/ news/article/2017/06/09/leaders-­vow-­toughen-­anti-­terror-­laws Lieberman, R.  C. (2002). Ideas, institutions, and political order: Explaining political change. American Political Science Review, 96(04), 697–712. https://doi.org/10.1017/ S0003055402000394 Lynch, A. (2008, March 10). From Blair’s Britain with love: Control orders in Australia [Paper presentation]. Social-Legal Research Centre, Griffith University, Brisbane, Australia Maggs, P.  B. (1999). The process of codification in Russia: Lessons learned from the Uniform Commercial Code. McGill Law Journal, 44, 281–300. https://lawjournal.mcgill.ca/wp-­content/ uploads/pdf/3474056-­44.Maggs.pdf Majone, G. (1989). Evidence, argument, and persuasion in the policy process. Yale University Press. Massola, J. (2017, October 3). Malcolm Turnbull pushes for law to detain terror suspects for up to 14 days before charges. The Sydney Morning Herald. http://www.smh.com.au/federal-­politics/ political-­news/malcolm-­turnbull-­pushes-­for-­law-­to-­detain-­terror-­suspects-­for-­up-­to-­14-­days-­ before-­charges-­20171003-­gytill.html McClelland, M. P., & Hatzistergos, J. (2009, November 9). Progress on uniform commercial arbitration regulation [Press release]. Miles, C. A., Luttrell, S., & McComsh, S. (2011). A focus on understanding Australia’s new domestic arbitration regime: A comparison of the Australian state commercial arbitration acts and new model commercial arbitration bill. Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, 77(1), 7–32. National Transport Commission. (2009, July). Single, national rail safety regulatory and investigation framework: Regulatory impact statement, Vol. 2. Appendices. https://www.infrastructure. gov.au/rail/files/SingleNatRailSafRegRISVol2Jul09.pdf New South Wales, Parliamentary Debates, House of Representatives, 2003, October 15, 27657 (John Hatzistergos). Patmore, G., & Rubenstein, K. (Eds.). (2014). Law and democracy: Contemporary questions. ANU Press. Queensland, Parliamentary Debates, Legislative Assembly, 1999, May 25, 1823 (David Hamill). Roth, L. (2010, January). Industrial relations update: The referral of powers and the Fair Work Act 2009 [E-brief]. NSW Parliamentary Library Research Service. https://www.parliament. nsw.gov.au/researchpapers/Documents/industrial-­relations-­update-t­ he-­referral-­of-­powe/industrial%20relations%20updateE-­brief.pdf Rüb, F. W. (2016). Agenda-setting and policy-making in time: What the multiple-streams approach can tell us—And what it cannot. In R.  Zohlnhöfer & F.  W. Rüb (Eds.), Decision- making under ambiguity and time constraints: Assessing the multiple-streams framework (pp. 51–70). ECPR Press. Sabatier, P. A., & Weible, C. M. (2007). The advocacy coalition framework: Innovations and clarifications. In P. Sabatier (Ed.), Theories of the policy process (pp. 189–217). Routledge. https:// doi.org/10.4324/9780367274689 Senate Standing Committee on Legal and Constitutional Affairs. (2002, May). Report on the consideration of legislation referred to the committee. Commonwealth of Australia. Sims, R. (2013, April 23). Australia’s experience driving economic growth through competition policy re-forms’ (speech delivered at World Bank forum – Making markets work for development: A reform agenda on competition, Poland). Smits, J. M. (2003). Scotland as a mixed jurisdiction and the development of European private law: Is there something to learn from evolutionary theory? Electronic Journal of Comparative Law, 7(5) https://cris.maastrichtuniversity.nl/ws/portalfiles/portal/534787/guid-­38a64ae3-­30e0-­4667-­ 95b6-­008c16ec1ee5-­ASSET1.0.pdf Spigelman, J. (2009, February 2). Opening of law term dinner [address]. Bar News (Winter), 49–53. http://classic.austlii.edu.au/au/journals/NSWBarAssocNews/2009/16.pdf Stewart, A. (2006). Work choices in overview: Big bang or slow burn? The Economic and Labour Relations Review, 16(2), 25–60. https://doi.org/10.1177/2F103530460601600203

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UNCITRAL Model law on international commercial arbitration (1985), with amendments as adopted in 2006, n.d.. https://uncitral.un.org/en/texts/arbitration/modellaw/ commercial_arbitration Warren, M. (2017). Australia’s place in the world. Brief, 44(3), 30. Williams, D. (2001, December 18). Upgrading Australia’s counter-terrorism capabilities [News release]. Attorney-General. https://parlinfo.aph.gov.au/parlInfo/search/display/display. w3p;query=(Id:media/pressrel/m1n56);rec=0; Workplace Relations Amendment (Work Choices) Act 2005 (Cth). (n.d.). Zahariadis, N. (2003). Ambiguity & choice in public policy: Political decision making in modern democracies. Georgetown University Press.

Chapter 7

Pragmatic National Reforms

Shortcut Due to Pragmatic Solutions

Abstract  National uniform legislation can be affected by ‘pragmatic federalism’ where the problem, rather than an underlying theory, shapes the national uniform solution. Harmonisation is an extraordinarily complex process with often unpredictable outcomes, that is why it might be less resource-intensive to bypass the complexity through a pragmatic solution. This chapter examines 14 cases where jurisdictions have bypassed harmonisation efforts by relying on pragmatic solutions. These solutions have documented constitutional settlement, conferred jurisdiction, provided mutual recognition, included skeletal legislation or resolved an isolated problem. These solutions reflect the pragmatic nature of Australian federalism, which is driven by immediate problems rather than a grand theory. The practicality of these approaches can be an advantage when a pragmatic solution is identified from the outset and caution is used for the technicalities that serve as the foundation for these solutions. One of the main lessons for law reformers, policy officers and legislative drafters – working with legislation falling into this category – is the necessity for pedantic precision when managing technical solutions and caution when these solutions have the potential of infringing the sovereignty of the jurisdictions.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_7

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7.1 Introduction Cooperative federalism in Australia has some pragmatic tendencies (see Sect. 4.1). National uniform legislation can be affected by ‘pragmatic federalism’ where the problem, rather than an underlying theory, shapes the national uniform solution (Hill, 2020, p.  371). Harmonisation is an extraordinarily complex process with often unpredictable outcomes. The results depend on the current government in various jurisdictions, and there is often no single central decision-maker or decision-­ making organisation to resolve harmonisation issues. There are multiple centres of authority that are subject to unpredictable forces and, in some cases, restructuring and institutional change: ‘No single actor has all [the] knowledge and information required to solve complex, dynamic, and diversified problems, … no single actor has sufficient action potential to dominate unilaterally in a particular governing model’ (Kennett, 2008, p. 5; Kooiman, 1993, p. 4). Rather than embarking on harmonisation efforts, the governments, in some cases, create agreements that bypass the complexities and achieve uniformity through pragmatic scenarios, for example, provisions allowing the conferral of jurisdiction, skeletal legislation, resolving isolated problems, constitutional settlements or mutual recognition.This chapter is divided into the following key sections: an analysis of pragmatic federalism, an examination of the five main subcategories of pragmatic scenarios and lessons for law reformers, policymakers and legislative drafters working with legislation in this category.

7.2 Pragmatic Federalism Scholars and practitioners acknowledge the ‘pragmatic tendencies’ in Australian federalism (Colebatch, 2005; Hollander, 2006; Smullen, 2014). Rather than being ‘principles-centered,’ this pragmatism is based on problem-solving; involving national uniform legislation as a practical instrument to achieving public policy goals (Deem et al., 2015). An example of a pragmatic practice is achieving sustainable uniformity by drafting uniform Acts as skeletal legislation (the practice that is now discouraged, as discussed in Sect.7.3.2). Pragmatic federalism has strengths and weaknesses. The significant strengths are that ‘the solutions are designed to fit the problem; change is incremental and therefore capable of correction. Moreover, it is non-doctrinal, it allows flexibility in negotiations and solutions’(Hollander & Patapan, 2007, p. 291). The weakness is ‘the dangers of ad hoc and crisis driven policy formulations, and unintended consequences, such as increasing centralisation’ (Hollander & Patapan, 2007, p. 291). When applied correctly, pragmatic strategy has a better chance of achieving the necessary consensus on the structure, policy and scope of sets of uniform Acts. Hollander and Patapan (2007) defined Australian pragmatic federalism ‘as a federalism shaped by pressing problems, specific policy agendas and the prevailing

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political dynamic, rather than by overarching conceptions of federalism derived from political theory or articulated in party ideology’ (p. 280). This pragmatism is not ‘cutthroat’ or ‘a casual day to day, matter of fact treatment of problems on a “catchpenny” basis’, with an eye only to political advantage, but rather a considered approach informed by common law and a ‘British’ way of thinking (Menzies, 1986, pp. 92–94). Pragmatic federalism manifests as pragmatic solutions when developing and drafting national uniform legislation. Rather than embarking on the path of harmonisation, governments in certain circumstances negotiate agreements that avoid the intricate complexities and achieve consistency through practical scenarios, such as provisions allowing for the conferral of jurisdiction. In these scenarios, decisions are ceded to other jurisdictions. Therefore, uniformity is achieved when the jurisdictions agree to delegate or leave an issue to the discretion of a particular authority. Another approach is to draft skeletal legislation, leaving the details to the regulations. The primary legislation remains sustainably uniform because the regulations (delegate legislation) are amended by jurisdictions as needed; sustainable uniformity is achieved prima facie. Yet another solution is the mutual recognition of regulations in other jurisdictions where jurisdictions enable automatic mutual recognition of qualification or registration in home jurisdiction count as an identical qualification or registration across the jurisdictional border. Jurisdictions ‘agree to disagree’ about specific details of this qualification or registration, but recognise the regulations of the other jurisdictions. The sets of uniform Acts based on pragmatic federalism include: • cross-vesting, prisoners and international transfer (conferring jurisdiction) • bills of lading, financial transaction reports and fines (i.e., reciprocal enforcements against bodies corporate) (skeletal legislation) • Australia acts, cross-border justice, federal courts (i.e., state jurisdiction) and succession (i.e., Crown) (resolving an isolated problem) • coastal waters, crimes at sea and offshore minerals and petroleum (i.e., offshore/ submerged lands) (constitutional settlements) • mutual recognition and trans-Tasman mutual recognition.

7.3 Examples of the Pragmatic Approach When highly uniform legislation in the mirror structure was considered in de- tail, some sets of uniform Acts had high initial uniformity that diverged over the years. Others achieved high levels of uniformity and remained uniform. The reasons why some sets of uniform Acts achieved high uniformity can be separated into five distinct categories: (1) Acts that conferred jurisdiction as examined in Sect. 2.3.3; (2) skeletal legislation; (3) legislation directed at resolving an isolated problem; (4)

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constitutional settlements based on an agreement between jurisdictions; and (5) mutual recognition.

7.3.1 Conferral of Jurisdiction As examined in Sect 2.3.3, conferred jurisdiction in the context of national uniform legislation can be classified into two large groups: (1) the conferral of power on a state or territory official through federal legislation; or (2) the conferral of power by a state or territory on a federal official through national uniform legislation. The following sets of uniform Acts are examples of those that confer jurisdiction or have some elements of a conferral: international transfer of prisoners, national environment protection and cross-vesting (see the Appendix). The international transfer of prisoners sets of acts conferred federal jurisdiction on people authorised by the states under the Prisoners (International Transfer) Act 2000 (WA) (n.d.): A prison officer, police officer and any other person who is authorised for the purposes of the Commonwealth Act may perform any function conferred or expressed to be conferred on him or her— 1. by or under the Commonwealth Act or a corresponding law; or (b) in accordance with an arrangement referred to in section 9 (s 8(1)).

Historically, the cross-vesting set of uniform Acts purported to confer jurisdiction on the federal, family and supreme courts of other states and territories. In the landmark decision of Re Wakim, Ex parte McNally (1999), the High Court of Australia held that conferral of jurisdiction by the states on the Australian Government was invalid. However, the conferral of federal jurisdiction on state courts was left intact. Therefore, the set of uniform Acts was highly uniform because it contained the conferral. For instance, section 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (n.d.) confers jurisdiction in ‘state matters’ on the supreme court of another state or territory or the family court of another state. Thus, sets of uniform Acts that confer jurisdiction have an ‘almost identical’ level of uniformity.

7.3.2 Skeletal Legislation Two sets of uniform Acts with high uniformity have been described as ‘skeletal’. Legislation is ‘skeletal’ when the primary legislation only provides some policy framework (‘bare bones’) and significant details are administratively determined through delegated legislation, usually regulations (Hill, 2020, p. 372). Skeletal legislation was mostly drafted during the 1990s. However, drafting primary legislation as skeletal has been discouraged and mostly discontinued (Hill, 2020, p. 372). The caution has to be exercised, however, when the amendments are implemented; the skeletal legislation should be avoided in developing and drafting of national uniform legislation.

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A primary example of skeletal legislation is bills of lading acts where major policies were included in the regulations instead of the primary Act. In NSW, the Act comprises 14 sections  – in Queensland, 10 sections. This skeletal legislation has replaced the ‘imperial model’, and ‘improved the legal environment for Australia’s international trade and introduced a degree of flexibility to ensure that developments in data transmission are accommodated into the future’ (Legislation and Policy Division of the NSW Attorney-General’s Department, 2004). Thus, the policy of this legislation is not controversial, the process of enactment through skeletal legislation is, however, questionable. Another example is the Financial Transaction Reports Act 1995 (Cth) (n.d.), which resulted from an agreement by the Standing Committee of Attorneys General (predecessor of the Meeting of Attorneys-General) to model state legislation requiring cash dealers to inform state police of offences against state laws. The legislation enacted by the jurisdictions was skeletal, comprising, on average, 12 sections. The Australian Transaction Reports and Analysis Centre (2019) is a financial intelligence agency that identifies threats to the country based on money laundering, organised crime, tax evasion, welfare fraud and terrorism. Sustainable uniformity of this set of uniform Acts has been supported by a strong national regulator and the skeletal nature of regulations by the jurisdictions. Skeletal legislation can be objectionable from the perspective of parliamentary sovereignty (Hill, 2020, 2021) and should be avoided in the future for both primary and amending legisaltion.

7.3.3 Legislation for Resolving Isolated Problems When the purpose of national uniform legislation is a solution of an isolated problem, high and sustainable uniformity can be achieved through mirror legislation. In these cases mirror legislation can attain exceptionally high levels of uniformity due to objective consideration of the legal problem being resolved once and for all. There is no need for jurisdictions to amend legislation or cooperate further for uniform revisions after a legal problem has been resolved in respective manner and national uniform legislation has been enacted. Several examples of this case include the Australia Acts, fines (reciprocal enforcement against bodies corporate), succession to Crown and federal courts (state jurisdictions) Acts; all of these Acts are highly uniform. The Australia Acts (see the Appendix) were related to the monarchy and were simultaneously passed by the Australian and UK parliaments, with the wording of each Act being very similar. According to the Constitution, the Australian parliament does not have the specific power to legislate matters related to the monarchy. This set of uniform Acts was particularly important as the Australian independence was established when the Australia Act 1986 (Cth) (n.d.) came into operation (i.e., 3 March 1986). All Australian jurisdictions had to enact the set of respective uniform Acts. On example of New South Wales, the first step of the reforms the state request for legislation, specifically provided for in section 3 of the Australia Acts

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(Request) Act 1985 (NSW) (n.d.), which stated that ‘the Parliament of the State requests the enactment by the Parliament of the Commonwealth of an Act in, or substantially in, the terms set out in the First Schedule’. Similarly, sections 4 and 5 of the Australia Acts (Request) Act 1985 (NSW) (n.d.) requested and consented to the enactment of the UK and Australian government legislation. The second step of these reforms, beyond national uniform legislation, included the simultaneous enactment of the Australia Act 1986 (Cth) (n.d.) and the Australia Act 1986 (UK) (n.d.). The validity and constitutionality of this legislation have been challenged and withstood the challenge in the High Court of Australia (Attorney-General (WA) v Marquet, 2003; Sue v Hill, 1999). Specifically, the full court in Shaw v Minister for Immigration and Multicultural Affairs (2003) confirmed the validity of the Australia Acts. Another example is fines (reciprocal enforcement against bodies corporate) legislation, which is skeletal and directed at resolving an isolated problem. Essentially, this set of uniform Acts regulates how interstate fines are enforced against a body corporate. It is characterised as skeletal because section 60(1) of the Acts allows for regulations that deal with the detailed prescriptions of the reciprocating states and courts (Fines Penalties and Infringement Notices Enforcement Act 1994 (WA), n.d.). The succession to the Crown Acts in Australia introduced reforms to the rules of royal succession introduced by the Succession to the Crown Act 2013 (UK). These three reforms included: removal of the rule of male preference, removal of the rule barring a person from succeeding to the Crown if they marry a Roman Catholic and limitation of the rule requiring the consent of the Monarch for marriage to the first six people in line to the throne. The Australian legislation (see the Appendix) requested that the Parliament of the Commonwealth, pursuant to section 51 (xxxviii) of the Constitution, enact legislation to ensure these reforms become part of Australian law.The federal courts (state jurisdiction) Acts (see the Appendix) were also aimed at resolving an isolated problem. In Re Wakim, Ex parte McNally (1999), the High Court of Australia held that the states’ conferral of jurisdiction on the Australian Government was invalid. This rendered parts of the cross-vesting legislation (see the Appendix) invalid. The federal courts (state jurisdiction) enacted legislation – see the Appendix – (classified as ‘almost identical’) to address the situation that arose from the High Court of Australia’s decision. These sets of uniform Acts provide that the ‘ineffective judgements of federal courts made in the purported exercise of state jurisdiction are taken to be judgements of the supreme court or the family court’ (Federal Courts (State Jurisdiction) Bill, 1999 (WA)).

7.3.4 Constitutional Settlements The Offshore Constitutional Settlement of 1979 resulted in implementation of several sets of uniform Acts with high levels of uniformity. The settlement was considered a ‘milestone in cooperative federalism’ (Haward, 1989, p. 334) and included a complex division of powers among the jurisdictions. The resulting legislation was

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highly uniform, with coastal waters and crimes at sea falling under the ‘almost identical’ level of uniformity and offshore minerals and petroleum (offshore/submerged lands) falling under the ‘substantially uniform’ level of uniformity (Hill, 2020, p.111). The Constitutional Settlement included other areas like the regulation of fisheries, shipwrecks and the Great Barrier Marine Park. However, these are beyond the scope of this book, as only national uniform legislation in the database is considered After a decade of disagreements relating to the sovereignty between the Australian Government and the states, culminating in the historic High Court of Australia decision in NSW v Commonwealth (1976), this set of legislation signifies the consensus established by Australian jurisdictions on managing offshore territories – the Offshore Constitutional Settlement ‘reinforced shared jurisdiction in offshore areas’ (Haward, 1989, p. 334), aiming to be a cooperative yet practical solution (Attorney-General’s Department, 1980, p. 5): The Commonwealth agreed that the States should be put, so far as possible, in the position they believed they were in before the High Court case. At the October 1977 Premiers Conference, it was agreed that the territorial seas should be the responsibility of the States (Attorney-General’s Department, 1980, Appendix).

The arrangements were extensive and included collaboration of the following authorities in the past: Australian Minerals and Energy Council, Australian Fisheries Council, Australian Environment Council, Council of Nature Conservation Ministers and Standing Committee of Commonwealth, with the state attorneys-­ general overseeing ‘the legal aspects of the exercise’ (Attorney-General’s Department, 1980, p.  4). Haward (1989) recounted that ‘the OCS [Offshore Constitutional Settlement] has been the most ambitious and significant intergovernmental framework for Australian marine resources policy … in both scope and complexity’ (p.  347). Although the approach to implementing the agreement’s components has evolved from being integrated (where some parts of the agreement could not be implemented until others were) to sectoral (where components of the agreement were implemented within sectors) (Haward, 1989), institutional support has allowed high levels of uniformity to be achieved.

7.3.5 Mutual Recognition Mutual recognition is a pragmatic solution because it is a low-cost, decentralised means of dealing with interjurisdictional differences among laws and regulations (Productivity Commission, 2009). Two prime examples of mutual recognition legislation are the mutual recognition and Trans-Tasman mutual recognition sets of uniform Acts. These sets of uniform Acts recognise the regime of certification or registration of goods or occupations (licenses, qualifications) among various national and international (New Zealand) jurisdictions. Rather than attempting to harmonise differing regimes, jurisdictions ‘agree to disagree’ and trust the

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corresponding jurisdictions to regulate goods and professions by relying on their own judgement (Hill, 2020, p.  25). For mutual recognition, jurisdictions allow goods sold in one Australian state or territory to be sold in another without the requirement to meet additional regulatory constraints. For Trans-Tasman mutual recognition, the movement of goods and people with certain occupations and professions is permitted between Australia and New Zealand. The main premise of this arrangements is that any good that may legally be sold in one participating jurisdiction can also be sold in another, similarly, any person registered to practise an occupation in one jurisdiction can practise an equivalent occupation in another. When people in the covered professions decide to cross-jurisdictional borders due to increased mobility, the other jurisdictions can recognise their qualifications as regulated by the initial jurisdiction. Mcgauran (Commonwealth, 1996) stated that the goal of the set of uniform Acts is to ‘establish a protocol for the reciprocal recognition of professional’ standing and promote the objective of closer economic relations in trade agreements with New Zealand (p. 7624). He further explained that, overall, ‘the principal aim of mutual recognition is to remove impediments to TransTasman trade in goods and the mobility of labour caused by regulatory differences among Australian jurisdictions and New Zealand’ (Commonwealth, 1996, p. 7624). The mutual recognition legislation was implemented through ‘a natural extension of the mutual recognition arrangement between the Australian jurisdictions made earlier in 1992’ (COAG, Recital F). The arrangements relating to mutual recognition are aimed at lowering barriers while avoiding a complex harmonisation exercise. These arrangements usually hold a security or commercial character allowing for cooperation, partnership and business continuity without substantial legal reforms. In case of Trans-Tasman mutual recognition, the benefits include simplification of compliance and removal of barriers The benefits of mutual recognition are many, but are hard to quantify. They include a reduction in firms’ compliance costs and workers’ registration costs. In addition to these efficiency gains, closer economic integration drives competition among firms, improved product choice as well as regulatory competition and cooperation between jurisdictions. There are several hundred examples of mutual recognition agreements internationally, but the Australian and New Zealand model of mutual recognition is unique in its scope and decentralised approach to implementation. (Productivity Commission, 2009, p.170).

The mutual recognition can assist in economic reforms: The mutual recognition schemes were one element of a broader microeconomic reform agenda aimed at improving efficiency and competitiveness by removing obstacles to trade and labour mobility within Australia and across the Tasman. In particular, separate and diverse state and territory practices regarding the sale of goods and the registration of occupations had ‘balkanised’ the Australian economy, impacting negatively on economic performance and community wellbeing. (Productivity Commission, 2009, p.3).

Therefore, mutual recognition can help avoid repetitive conformity assessments and are a pragmatic choice for jurisdictions.

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7.4 Lessons for Law Reformers, Policymakers and Legislative Drafters The pragmatic nature of Australian federalism leads to some practical solutions for developing and drafting national uniform legislation. These solutions bypass complexities and allow uniform regulation through a technical resolution of a problem. The main lessons when working with legislation in the pragmatic category include acknowledging the pragmatic nature of the solution, being cautious about attempts to enact skeletal legislation and being extremely cautious with the sovereignty principles of the states.

7.4.1 Pragmatic Solution Must Be Agreed by All Parties Unlike Kingdon’s (2014) multiple streams framework, pragmatic federalism solutions do not always concern matters in the national spotlight. Solutions in this category are usually negotiated within a ministerial council, such as the National Cabinet, or a specialised ministerial council, such as the Meeting of Attorney Generals. Ministers might enter an intergovernmental agreement or understanding to draft a mutual recognition or skeletal legislation or confer jurisdiction. Legislation requiring a pragmatic approach may entail a particularly complex policy in an area characterised by strong advocacy coalitions (hence, the necessity for a pragmatic approach). The policy implication of pragmatic solutions is that consent from all jurisdictions must be obtained. Therefore, the mechanisms must be perceived by the various parties as uncontroversial and negotiated in detail before an agreement can be made. The key is to adopt the least controversial mechanism that disrupts the least number of interconnected policies and allows the required results to be achieved. In this book, mutual recognition and the conferral of jurisdiction are considered the most used mechanisms. Further, they appear to attract the least criticism from the media and various jurisdictions. Once all jurisdictions have consented to a pragmatic solution, the legislation can be a mirror structure. The empirical analysis revealed that designating legislation as mirror legislation does not necessarily mean it is less uniform than applied or referred legislation. This is because mirror legislation offers versatility, ranging through the four levels of uniformity: ‘almost identical’, ‘substantially uniform’, ‘partially uniform’ and ‘some similarities’. A practical implication of this finding is that the focus of law reform agencies and legislative drafters must shift from being ‘structure-centric’ to include other metrics and differing levels of uniformity. Structures remain important for the approach to harmonisation. However, any assumption that structures directly reflect the uniformity achieved may not be valid for mirror legislation. In cases where a mirror set of uniform Acts contains a conferral of jurisdiction or skeletal legislation, the legislation almost reaches the level of

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uniformity of referred legislation. This legislation has a mirror structure but is highly uniform because it involves the conferral of functions on the Australian Government (which is why the acts are very uniform). The conferral of powers in mirror legislation allows a high level of sustainable uniformity across jurisdictions. However, this type of legislation has been rare.

7.4.2 Avoid Skeletal Legislation Generally, the practice of drafting legislation with a skeletal framework has been discouraged (Hill, 2021). Skeletal legislation can be objectionable from the perspective of parliamentary sovereignty. A significant number of commentators have criticised the overuse of skeletal legislation (Argument, 2011; Farina, 2011; Francis, 2009). In preparing regulations, skeletal legislation gives considerable discretion to the executive branch rather than the parliament for scrutinising primary legislation. However, no recent examples of skeletal legislation were found in the PCC’s database of national uniform legislation. This observation indicates that this legislation is a product of the past more than a current, preferred practice.

7.4.3 Pedantic Attention to Ensuring Sovereignty Is Not Encroached All national uniform legislation, especially pragmatic national uniform legislation, must avoid any implication of encroaching upon the sovereignty of the states and territories. Policymakers, law reformers and legislative drafters must navigate a labyrinth of issues and uncertain conditions involving many stakeholders while seeking to increase uniformity. They will also need to respond to a multifaceted debate and meet the demands of parties from divergent ideological backgrounds, who may sometimes have diverse or irreconcilable differences, values or perspectives. The focus on uniformity must be negotiated within the existing constitutional design and the distribution of powers to ensure that the sovereignty of the state and territory parliaments is not affected.Several major threats to sovereignty were identified in relation to numerous pieces of proposed primary national uniform legislation (Hill, 2021). The particular objectionable practices include: ‘fiscal imperatives to pass uniform legislation; limited time frames for consideration of uniform legislation and lack of notice and detailed information as to negotiation’s inhibiting members formulating questions and performing their legislative scrutiny role’ (Farina, 2004, p. 11) This list should not be considered exhaustive. The major categories of threats to sovereignty identified through the research for this book are as follows: (1) the imposition of deadlines for scrutinising legislation and enabling the executive to control commencement dates; (2) limitations on the scrutiny of

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amendments to applied legislation; the inclusion of Henry VIII clauses that enable primary legislation to be amended by subsidiary legislation; (4) drafting skeletal legislation; and (5) a lack of review provisions. By way of explanation, Henry VIII clauses are clauses of an Act of Parliament which enables the Act to be amended by subordinate or delegated legislation. These clauses are objectionable as they: offend the theory of the separation of powers; and give insufficient regard to the institution of Parliament as the supreme Legislature by eroding the sovereign function of Parliament to legislate. (Standing Committee on Uniform Legislation and Statutes Review, 2011, p. 5–6). This means that the capacity of the Parliament to scrutinise Henry VIII clauses is limited … The object of subsidiary legislation is to complement and carry out the objects and purposes of an Act; to fill in the detail. Henry VIII clauses go beyond this by enabling Acts to be amended by subsidiary legislation. (Standing Committee on Uniform Legislation and Statutes Review, 2011, p. 7).

Therefore, focus on uniformity in pragmatic solutions especially must be particularly aligned with the requirements of observing the sovereignty of the state and territory parliaments.

7.5 Conclusion This chapter has demonstrated that there have been 14 cases where jurisdictions have bypassed harmonisation efforts by relying on pragmatic solutions. These solutions have documented constitutional settlement, conferred jurisdiction, provided mutual recognition, included skeletal legislation or resolved an isolated problem. These solutions reflect the pragmatic nature of Australian federalism, which is driven by immediate problems rather than a grand theory. The practicality of these approaches can be an advantage when a pragmatic solution is identified from the outset and caution is used for the technicalities that serve as the foundation for these solutions. One of the main lessons for law reformers, policy officers and legislative drafters in this area is the necessity for pedantic precision when managing technical solutions and caution when these solutions have the potential of infringing the sovereignty of the jurisdictions.

References Argument, S. (2011, July 26–28). ‘Leaving it to the regs’—The pros and cons of dealing with issues in subordinate legislation [Paper presentation] Australia–New Zealand Scrutiny of Legislation Conference, Brisbane, Australia. https://documents.parliament.qld.gov.au/committees/SLC/2011/SLC_Conference/SLCConf-­Sess11-­Argument.pdf Attorney-General (WA) v Marquet (2003) 217 CLR 545.

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Attorney-General’s Department. (1980). Offshore constitutional settlement: A milestone in cooperative federalism. Australian Government Publishing Service. https://www.ag.gov. au/international-­r elations/publications/offshore-­c onstitutional-­s ettlement-­m ilestone-­ cooperative-­federalism Australia Act 1986 (Cth). (n.d.). https://www.legislation.gov.au/Details/C2004A03181 Australia Act 1986 (UK). (n.d.). https://www.legislation.gov.uk/ukpga/1986/2?view=extent Australia Acts (Request) Act 1985 (NSW). (n.d.). https://legislation.nsw.gov.au/view/html/inforce/ current/act-­1985-­109/lh Australian Transaction Reports and Analysis Centre. (2019). AUSTRAC overview. Retrieved February 19, 2019, from http://www.austrac.gov.au/about-­us/austrac Colebatch, H. K. (2005). Policy analysis, policy practice and political science. Australian Journal of Public Administration, 64(3), 14–23. https://doi.org/10.1111/j.1467-­8500.2005.00448.X Commonwealth, Parliamentary Debates, House of Representatives, 1996, December 4, 7624 (Mr Mcgauran). Deem, J., Hollander, R., & Brown, A.  J. (2015). Subsidiarity in the Australian public sector: Finding pragmatism in the principle. Australian Journal of Public Administration, 74(4), 419–434. https://doi.org/10.1111/1467-­8500.12175 Farina, A. (2004, August). Uniform legislation and supporting documentation (Report No. 19) parliament of Western Australia, Legislative Council Standing Committee on Uniform Legislation and General Purposes. https://www.parliament.wa.gov.au/Parliament/commit.nsf/(Report+L ookup+by+Com+ID)/3056C1595E4B8C1548257831003E9600/$file/ug.iga.040823.rpf.019. xx.a.pdf Farina, A. (2011, July 26–28). Bones without flesh—The issues with skeletal legislation [Paper presentation]. Australian–New Zealand Scrutiny of Legislation Conference, Brisbane, Australia. https://documents.parliament.qld.gov.au/committees/slc/2011/slc_conference/slcconf-­sess04-­ honfarina.pdf Federal Courts (State Jurisdiction) Bill 1999 (WA). Financial Transaction Reports Act 1995 (Cth). (n.d.). https://www.legislation.gov.au/Details/ C2018C00115 Fines Penalties and Infringement Notices Enforcement Act 1994 (WA). (n.d.). https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_336_homepage.html Francis, J. (2009, July 6–8). Some accountability issues in scrutinising subsidiary legislation made under skeletal acts [Paper presentation]. Australia–New Zealand Scrutiny of Legislation Conference: Scrutiny and Accountability in the 21st Century, Parliament House, Canberra, Australia. https://www.aph.gov.au/About_Parliament/Senate/Whats_On/Conferences/ sl_conference/papers/francis Haward, M. (1989). The Australian offshore constitutional settlement. Marine Policy, 13(4), 334–348. https://doi.org/10.1016/0308-­597X(89)90018-­3 Hill, G. (2020). Categories of the ‘art of the impossible’: Achieving sustainable uniformity in harmonised legislation in the Australian federation. Federal Law Review, 48(3), 350–381. https:// doi.org/10.1177/2F0067205X20927808 Hill, G. (2021). Avoiding a ‘catch 22’: Major lessons from a meta-analysis of reports of the Parliament of Western Australia on threats to sovereignty by national uniform legislation. Bond Law Review, 33(1), 37–66. https://blr.scholasticahq.com/article/19356-­avoiding-­a-­catch-­22-­ major-­lessons-­from-­a-­meta-­analysis-­of-­reports-­of-­the-­parliament-­of-­western-­australia-­on-­ threats-­to-­sovereignty-­by-­national-­uniform-­legislation Hollander, R. (2006). National competition policy, regulatory reform & Australian federalism. Australian Journal of Public Administration, 65(2), 33–47. https://doi. org/10.1111/j.1467-­8500.2006.00480.x Hollander, R., & Patapan, H. (2007). Pragmatic federalism: Australian federalism from Hawke to Howard. The Australian Journal of Public Administration, 66(3), 280–297. https://doi. org/10.1111/j.1467-­8500.2007.00542.x

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Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). (n.d.). https://legislation.nsw.gov.au/ view/html/inforce/current/act-­1987-­125 Kennett, P. (2008). Governance, globalization and public policy. Edward Elgar. Kingdon, J. W. (2014). Agendas, alternatives, and public policies. Pearson Education Limited Kooiman, J. (1993). Modern governance: New government–society interactions. SAGE Publishing. Legislation and Policy Division of the NSW Attorney-General’s Department. (2004). Report on the statutory of the Sea-Carriage Documents Act 1997. NSW Attorney-General’s Department. Menzies, R. G. (1986). The foundations of Australian liberalism. In Y. Thompson, G. Brandis, & T. Harley (Eds.), Australian liberalism: The continuing vision. Liberal Forum. New South Wales v Commonwealth (1976) 135 CLR 337. Prisoners (International Transfer) Act 2000 (WA). (n.d.). https://www.legislation.wa.gov.au/legislation/statutes.nsf/main_mrtitle_748_homepage.html Productivity Commission. (2009, January). Review of mutual recognition schemes: Productivity Commission research report. Commonwealth of Australia. https://www.pc.gov.au/inquiries/ completed/mutual-­recognition-­schemes-­2009/report Re Wakim, Ex parte McNally (1999) 198 CLR 511. Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. Smullen, A. (2014). Conceptualising Australia’s tradition of pragmatic federalism. Australian Journal of Political Science, 49(4), 677–693. https://doi.org/10.1080/10361146.2014.964660 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western Australia, Personal Property Securities (Commonwealth Laws) Bill 2011 and Personal Property Securities (Consequential Repeals and Amendments) Bill 2011 (Report No 59, March 2011). Sue v Hill (1999) 199 CLR 462.

Chapter 8

Ever-Failing Uniformity

Unsustainable Uniformity Due to Advocacy Coalitions

Abstract  Uniformity may be unachievable or unsustainable, in some cases. These are the cases when the sets of uniform Acts are almost impossible to negotiate but even if enacted, these Acts are subject to frequent unilateral amendments, even if all elements of iterative development are present. Examples include sets of uniform Acts in the areas of criminal law, child protection and regulation of road transport. These difficulties in achieving and sustaining uniformity are explained by presence of strong advocacy coalitions. The key proposition underpinning the framework is that actors, including public servants, ‘always perceive the world through a lens consisting of their pre-existing beliefs’. While that is not to say that uniformity is impossible if the influential advocacy coalitions are present. Rather, law reformers, policymakers and legislative drafters should be aware of influential advocacy coalitions in certain areas of the law and should not attempt to achieve harmonisation through set hard deadlines or monetary incentives in these situations.

8.1 Introduction In some cases, regardless of how much effort has been exerted to create uniformity, all attempts fail after the lower levels of uniformity have been achieved (Hill, 2020a, p.  365). In these situations, the advocacy coalition framework becomes relevant (Jenkins-Smith et al., 2014). The advocacy coalition framework focuses on coalitions of actors from numerous organisations who share policy beliefs (Weible et al., © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_8

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2009, p. 123). These coalitions might resist harmonisation efforts, resulting in inertia and stalling uniformity in a particular area of the law. The main proposition underpinning the framework is that the actors, including government employees, ‘always perceive the world through a lens consisting of their pre-existing beliefs’ (Sabatier, 1998, p. 109). The ability of advocacy coalitions to stall harmonisation and achieving sustainable uniformity can be evidenced by the continuing harmonisation efforts related to succession, defamation and road rules regulation. This chapter is divided into the following sections: an analysis of Sabatier’s (1988) advocacy coalition theory; an examination of the harmonisation of succession and defamation laws as examples of ever-failing uniformity; and lessons for law reformers, policymakers and legislative drafters working with legislation in this category.

8.2 Advocacy Coalition Theory Sabatier’s (1988) advocacy coalition framework focuses on advocacy coalitions and policy subsystems as the primary units of policymaking. The framework examines coalitions of actors from various institutions who share policy beliefs. Competitive teams within each policy subsystem enable stability or changes and influence the policy process. The framework’s logic is that governments manage the complexity of public policymaking by splitting policies into manageable sectors. Thus, decision-­ making is diffused to insulated policy communities (advocacy coalitions) (Sabatier, 1998). An advocacy coalition includes actors from organisations who share policy beliefs (Sabatier, 1998). Sabatier (1988) defined advocacy coalition actors as: people from a variety of positions (elected and agency officials, interest group leaders, researchers) who share a particular belief system—i.e., a set of basic values, causal assumptions, problem perceptions—and who show a non-trivial degree of coordinated activity over time (p. 139).

These coalitions are not ‘iron triangles limited to administrative agencies, legislative committees, and interest groups’; instead, the coalitions must be understood for their complexity, and journalists, scholars and those responsible for policy assessment and dissemination must be included. (Sabatier & Weible, 2007, p. 192). The framework’s main contribution is that actors, including government employees, ‘always perceive the world through a lens consisting of their pre-existing beliefs’ (Sabatier, 1998, p. 109). The following types of beliefs can affect policy outcomes: (1) ‘core’ beliefs are fundamental and unlikely to change (such as religious or political conversions), too broad to guide detailed policies (such as beliefs about human nature) and ‘largely normative issues enculturated in childhood and largely impervious to empirical evidence’ (Sabatier, 1993, pp. 31, 36); (2) ‘policy core’ beliefs are more specific but are still unlikely to change; and (3) ‘secondary aspect’ beliefs relate to implementing policies. The third type of beliefs is the most likely to change. Based on these categories of beliefs, policymakers explain reality using ‘selective perception and partisan analysis’ (Sabatier, 1993, p. 34). Thus, the secondary aspects of a policy can be modified easily, but the core beliefs of the

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policy may only be changed due to external shocks (Hill, 2020a, p. 367). Therefore, some minor amendments to existing policies can be achieved when harmonisation is required; however, amendments threatening the core elements of those policies are almost impervious to change (Hill, 2020a, p.  367). The success or failure of harmonisation efforts depends on ‘the compatibility of the information with existing beliefs, the persuasiveness of the evidence, and the political pressures for change’ (Sabatier, 1993, p. 42). An advocacy coalition can challenge the data and technical information and stall policy innovations for years (Sabatier, 1998, p. 104). In other words, the ‘data may be used as ammunition rather than something to exchange and learn from’ (Cairney, 2011, p. 208). Research and data can be actively appraised via the lens of pre-existing convictions in this situation, and coalitions can employ available resources to influence the policy process and outcomes. Coalition beliefs can be learnt from other coalitions, particularly when their views become ‘too important to ignore’ (Cairney, 2011, p. 208). However, in this context, learning is a political process of finding some consensus rather than ‘a disinterested search for truth’ (Sabatier, 1988, p. 151). This establishment of a consensus can take the form of a battle of ideas due to a coalition’s tendencies to ‘exaggerate the influence and maliciousness of opponents’ (Sabatier & Weible, 2007, p. 199). Even technical information is often used ‘primarily in an “advocacy” fashion’ (Sabatier, 1988, p. 152). In these battles, a dominant coalition can successfully challenge the data supporting policy changes for decades (Sabatier, 1998, p. 104). The advantage of using the advocacy coalition theory for studying national uniform legislation is that it captures the dynamics of policy changes related to stability and continuity. Advocacy coalitions can adapt their policies, but this adaptation occurs through the prism of their policy beliefs. The systems created by advocacy coalitions are stable and can adapt to external shocks by ‘shifting and augmenting resources, tipping the power of coalitions, and changing beliefs’ (Weible et  al., 2009, p. 124). Another advantage of using this framework to examine uniformity within the Australian federation is that it was developed with American federalism in mind. Sabatier observed that ‘a coalition doing poorly in Washington is not helpless but instead can focus its efforts at subnational levels where it is more powerful’ (Sabatier, 1993, pp. 215–216). This book uses the advocacy coalition theory for a specific goal of explaining how advocacy coalitions stall harmonisation efforts. This is not a traditional approach because the theory is more versatile and can explain the achievement of uniformity and stalling of uniformity. However, this application is necessary to demonstrate the contrast of the four categories. If the same theory is applied for all sets of uniform Acts, the ability of demonstration of this contrast would have been impeded. If harmonisation is approached as a rational exercise for policy changes, minimal jurisdictional differences may be considered easier to overcome (Hill, 2020b). However, that is not the case. Minor differences may become a point of dispute due to a ‘fear of insignificance’ (the situation in which jurisdictional differences become a point of identity and minor differences become almost impossible to harmonise) (Hufnagel, 2010, p. 190). In other words, it is ‘the fear of state actors to lose their individual identities in the process of harmonisation’ (Hufnagel, 2010, p. 165) that may prevent harmonisation efforts. Hufnagel interviewed Australian police

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enforcement practitioners from various jurisdictions to gain insights into their views regarding the harmonisation of criminal procedures. According to the interviews, the respondents perceived the development of uniform criminal procedure legislation as an encroachment on their powers (Hufnagel, 2010, p. 170). Additionally, in cases where differences between jurisdictions are not significant, jurisdictions may be less enthusiastic about conducting the negotiation process because they may perceive that there is not much to be gained (Hufnagel, 2010, p. 165). Hill (2020a, pp. 367–368) found that the following sets of uniform Acts belong to this category: • births, deaths and marriages • child protection (international measures, the Hague Convention, offender prohibition orders, offender registration, child protection orders [reciprocal arrangements]) • community-based sentencing orders (transfers) • court information technology (video links) • criminal codes • crown proceedings • defamation • DNA databases • forensic procedures • heavy vehicle registration charges • heavy vehicle regulation • human cloning • human embryo research • parentage presumptions • prisoners and interstate transfers • proportionate liability • road transport legislation (road rules) • succession • surrogacy • workers compensation (cross-border provisions) Despite decades of attempts and repeated requests for harmonisation, these sets of uniform Acts have achieved only modest levels of uniformity.

8.3 Examples of Harmonisation Attempts Heavily Affected by Advocacy Coalitions There might be an element of inertia and resistance from jurisdictions towards changing or harmonising laws. Indeed, it takes many years to craft effective legislation that can withstand the rigour of judicial reviews. In these circumstances, each jurisdiction is likely to prefer their legislation as the model or refuse to harmonise if their legislation is not used as a model. The ability of advocacy coalitions to stall harmonisation and achieving sustainable uniformity can be evidence by the

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continuing harmonisation efforts related to regulating succession, defamation, road rules and surrogacy laws.

8.3.1 Uniform Succession Laws: Cooperative Efforts with a Bottom-Up Design This section considers the harmonisation of succession legislation as an example of multiple advocacy coalitions failing to deliver substantial results in uniformity. During the mid-1990s, the Australian jurisdictions combined their efforts for a joint project conducted by the National Committee for Uniform Succession Laws (NCUSL) with all states and territories under the direction of the Queensland Law Reform Commission (QLRC). In all aspects, this approach has been commended as a ‘useful model of cooperation’ (ALRC, 2017, [8.1]). However, the outcomes of this cooperation have been modest in terms of producing legislation at the ‘some similarities’ level of uniformity. Croucher (2012) stressed that ‘succession law is one of the slower moving waterways of jurisprudence—but also one of the most fundamental and most significant philosophically in relation to property in families’ (p. 27). Given its importance, the low level of uniformity is puzzling, considering that all jurisdictions were involved in the consensus-building exercise and had expressed general support for the reforms (VLRC, 2013, p. ix). Succession law is complex, extremely technical and has been highly divergent between jurisdictions. The legislation must be delicately balanced between the rights of those dying and surviving (Atherton, 1993), highlighting that any practices will be influenced greatly by the existing advocacy coalitions. During the nineteenth century, succession laws were uniform among the Australian colonies. However, during the twentieth century, the jurisdictions began enacting and reforming their own legislation (NSW, 1998, p. 2). The differences between jurisdictions became significant to the extent that it was said that ‘there are no two states or territories in Australia where the succession laws are the same’ (NSW, 1998, p. 2). Australia’s increasingly mobile population has been a major impetus for harmonisation (SCLCA, 2006, p. 11). In October 1991, the then Standing Committee of Attorneys-General agreed that the QLRC would review the existing law. This decision was made because the commission had reviewed wills and estates law in its most recent terms, unlike other Australian jurisdictions (QLRC, 1978). The NCUSL was established to guide the Uniform Succession Laws project (VLRC, 2013). The harmonisation effort was to progress in four areas: wills, family provisions, intestacy and deceased estate administration. The federal government agreed on the need for harmonisation, leaving it as an area for the states and territories and reporting that it would ‘encourage continued efforts towards harmonisation of succession laws’ (SCLCA, 2006, p. 11).The NCUSL included representatives from the law reform agencies of all Australian states and territories under the direction of the QLRC.  The committee produced numerous reports in cooperation with other jurisdictions and without reporting to the Standing Committee of Attorneys General: Report to the Standing Committee of

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Attorneys General on Family Provisions (NCUSL, 1997a); Consolidated Report to the Standing Committee of Attorneys-General on the Law of Wills (NCUSL, 1997a); Family Provision: Supplementary Report to the Standing Committee of Attorneys General (NCUSL, 2004); and Uniform Succession Laws: Family Provision (New South Wales Law Reform Commission [NSWLRC], 2005). Nevertheless, it was found that ‘by any reasonable standard the rate of progress on this reference must be regarded as slow’ (Opeskin, 2001, p. 30). After more than 15 years dedicated to harmonising a complex and technical area of the law in four directions (wills, family provisions, intestacy and deceased estate administration), ‘it was recommended not to pursue the effort further’ (SCLCA, 2006, p. 105). Notwithstanding the articulated support for reforms, the approach did not produce sufficient uniformity. Succession legislation has achieved very modest levels of uniformity and implementation throughout Australian jurisdictions. On the surface, the agreement among the jurisdictions was clearly expressed: ‘state and territory ministers have agreed to adopt the National Committee’s recommendations as the basis for reforming succession laws in their respective jurisdictions with the aim of maximising national consistency’ (VLRC, 2013, p. ix). However, the implementation of this commitment could be regarded as lacking.In addition to being highly technical, succession laws have been subject to most of the unfavourable factors preceding harmonisation. In particular, wills and estates law has not been an area where harmonisation has been easily achieved (Hill, 2020b). The source of regulations has included legislation and common law, with a very modest level of spontaneous harmonisation. Under these circumstances, the decision to focus on four areas of law, although understandable, could be considered too ambitious. In this case, the mechanisms needed to achieve a uniform approach did not include a commitment to an applied or referred structure or establishing a national regulator. However, the architecture for policy development, consisting of the NCUSL, has been commendable. In a recent report, the ALRC commended the design of cooperation as a ‘useful model’ (ALRC, 2017, [8.1]). The requests for harmonisation continue and give hope to the next stage of harmonisation in this area. With the problem of an ageing population, the search for the best practice must be undertaken at the national level (Croucher, 2012, p. 72).

8.3.2 Defamation: Unwillingness to Use a Top-Down Approach The regulations for defamation laws have suffered from ‘harmonisation inertia’ in which jurisdictions have chosen to avoid or delay actions for an extended period rather than antagonise the groups that benefit from the status quo (Armstrong & Kamieniecki, 2017). Initially, inertia occurred when the states and territories were implementing mirror defamation acts. In 2006, the mixture of common law rules and legislation regulating defamation laws (see the Appendix) in Australia was replaced with national uniform legislation, although the need for reforms had been recognised as early as the 1970s (ALRC, 1979; NSWLRC, 1971). The states and territories received a new impetus in July 2004 with the release of the Standing Committee of Attorneys-General’s proposal for uniform defamation laws. In effect,

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this was an ultimatum provided by the Australian Government.The states and territories were critical of the pressure imposed by the federal government, and the federal government was critical of the lack of action during the decades since the ALRC report in 1979. On 17 April 1998, the federal Attorney-General, Williams, issued a media release stating that ‘it is disappointing that the states and territories have again failed to agree to the introduction of uniform defamation laws in Australia’ (Williams, 1998). It was further stated that ‘today’s disappointing lack of will on the part of the states and territories leaves the Commonwealth having to consider ways to minimise differences in laws around Australia’ (Williams, 1998). However, the reform attracted criticism for not achieving sufficient uniformity, which it did not. For example, Rolph (2008) argued that post-reform, ‘the uniformity of the [National Uniform Defamation Law] should not be overstated. There are still substantive and superficial differences, to varying degrees, among the states and territories’ (p. 208). Further, as noted by the federal Attorney-General’s Department (2005), ‘it remains regrettable, however, that differences remain between the jurisdictions in relation to the provision of juries’ (p. 7). The view that defamation laws have not been sufficiently uniform has resulted in requests from both governments and academia for further harmonisation in this area. Gillooly (2006) stressed that the initial achievement of uniformity should serve as a ‘foundation for substantial and principled reform to take place in the future’ (p.  311). In June 2018, the NSW Attorney-General indicated a renewed interest in much-needed reforms in the area, expressing the intent to ‘ask my federal, state and territory counterparts to explore reforms to enable Australian defamation law to upgrade to the cyber-age’ (Whitbourn, 2018). If this harmonisation effort eventuates, it will amount to consecutive harmonisation with or without structural changes.It is reasonable to expect, under these circumstances, that uniformity will increase and sustainable uniformity will be positively affected. Nevertheless, it remains unclear whether the states and territories will respond to the requests for further harmonisation in this area or whether the compromise brokered between the established coalitions will continue in the form of the existing mirror legislation for defamation. In this case, the compromise balances the interests of the opposing advocacy coalitions, such as journalists, lawyers, businesses, public figures, and freedom of speech organisations. In 2021, model defamation reform is on the agenda of the Meeting of Attorneys-General, which might amount to sufficient impetus for the reforms requested during the 1970s.

8.3.3 Unachievable Uniform Regulation of Road Rules and Surrogacy Provisions The advocacy coalition framework can explain the textual differences between the sets of uniform Acts regulating road rules. There has been more than one attempt to harmonise road and rail (dangerous goods) legislation. There have been requests to adopt the Australian Code for the Transport of Dangerous Goods. For international

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consistency, the Advisory Committee on the Transport of Dangerous Goods drafted the code based on the United Nations’ model regulations. However, although the seventh edition of the code was released in 2008, the sixth edition continues to apply. Further, although the legislation has been subject to international harmonisation, it has been controversial since the introduction of the road rules in Australia. Achieving uniform road regulations has been an aspiration for decades; however, it has eluded policymakers in the Australian federation. Although there have been requests for uniformity since the early 1930s, it has continued to be very difficult to achieve, even after the matter was elevated to the COAG Reform Agenda and financial incentives were attached for the jurisdictions. Watson (1933) observed that ‘motoring in Australia is daily taking on more of a national aspect by shedding its earlier parochial garb. Yet there are few fields in which legislative and regulatory inconsistency have freer play than in the Australian motoring world’ (p. 31). This is an area of the law where there has been ‘gradual minimisation of jurisdiction exemptions’ (Shepherd & Calvert, 1999, p. 8). Strong advocacy coalitions can explain this resistance to change. It is highly possible that Australian road rules may remain diverse among the jurisdictions without the effects of a strong external shock. Another set of uniform Acts with low uniformity is the regulation of surrogacy. Although all jurisdictions except the Northern Territory allow altruistic surrogacy and prohibit commercial surrogacy, there have been great variations between the sets of uniform Acts; ‘the disparate nature of surrogacy legislation … does little to assist the many Australians who aspire to be parents. It simply adds to the confusion, lessens the protections available to all parties and creates a culture of “jurisdiction shopping”’ (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2016, p. 6). The existing uniformity is only based on a general principle, characterised by formidable difficulties in application, charactersied by some as an ‘absolute nightmare’ (Plater et al., 2018, p. 46). However, this legislation still be defined as national uniform legislation, in accordance with the PCC database. Most sets of uniform Acts (surrogacy legislation, see the Appendix) have been standalone legislation, although the South Australian provisions are contained in the Family Relationships Act 1975 (SA) (n.d.). The variations between substantive provisions have been quite significant. The ACT allows same-sex couples to become parents of a surrogate child but does not allow single people to become parents. NSW prohibits the advertising of surrogacy arrangements. In Victoria, surrogacy arrangements must be approved by a patient review panel. In South Australia, only married or de facto heterosexual infertile couples can enter recognised surrogacy arrangements. In Western Australia, approval must be granted by the Western Australian Reproductive Technology Council. None of the jurisdictions, except South Australia (with some exceptions) recognise international commercial surrogacy arrangements. This disparity among regulations has been found to cause inequities because the sets of Acts contain discriminatory provisions related to gender, marital status and sexual orientation (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2016, p. 5). Thus, only the general principles of this set of uniform Acts are consistent, and the set itself has ‘some similarities’ despite numerous requests for harmonisation. For instance, The Law Council of

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Australia has stressed the desirability of harmonisation pointing that ‘the differing statutory schemes around the nation for altruistic surrogacy is not ideal’ and ‘supporting a harmonisation of laws as being an optimal outcome, whether that be by referral of powers, some sort of model legislation for consideration by States, or other mechanism creating consistency.’ (Plater et al., 2018, p. 47). Similar calls for harmonisation have been made by the Human Rights Commission. As the book is being written, no substantial steps towards this harmonisation have been made notwithstanding several models that have been proposed.

8.4 Lessons for Law Reformers, Policymakers and Legislative Drafters Lessons can be drawn from the theory and practices to help law reformers, policymakers and legislative drafters working with national uniform legislation. Some sets of uniform Acts are less susceptible to requests for harmonisation. The main lessons when working with the legislation that falls into this category include: (1) acknowledging the historical development of uniformity and the area of law; (2) a cautious approach to delivering uniformity in a situation with dual regulation regimes; and (3) knowing some effective mechanisms that might assist harmonisation efforts, for example, electronic registers.

8.4.1 Area of Law and Previous History Prior research (Hill, 2020b) has shown that the area of law directly affects the volume of national uniform legislation and its level of uniformity. Specific areas of the law were found to be more susceptible to higher or lower levels of uniformity (Hill, 2020b). Whether these were based on a historical position, reflected consensus achieved among the Australian states and territories regarding the need for a national response or were the partial result of the most recent reforms, commercial and corporate, government and energy and resource laws were found to be highly uniform. In energy and resource law, the jurisdictions have only reached a consensus when there has been strong institutional support, with some sets of uniform Acts requiring up to three national regulators. This level of resource provision in the harmonisation effort is extraordinary and would be harder to achieve in other areas of the law. The jurisdictions have preferred to maintain divergent family and relationship regulations unless the Australian Government has taken strong actions. Without a rigid structure of referred legislation enacted from the outset, it is more likely that the regulations will remain at the ‘some similarities’ level in this area of the law. The law of business, trades and professions has required time and a constant consensus-­ seeking effort to reach a higher level of uniformity due to the presence of strong

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advocacy coalitions. Under these circumstances, set deadlines and incentives would not be effective measures.In contrast, family and relationship, road and criminal laws (with the notable exception of counterterrorism legislation) were mostly non-­ uniform and unsustainable, even when some uniformity has been achieved and considerable efforts and resources have been expended on harmonisation. Achieving uniformity in these areas is riddled with difficulties and results in only modest levels of uniformity, notwithstanding iterative developments, numerous requests for harmonisation and, in some cases, the establishment of national regulators. All three areas of the law are also traditional areas of state and territory jurisdiction within the Australian federation. Therefore, the advocacy coalitions in these cases include government employees and institutions at the state and territory level. These institutions may include dominant coalitions that impose their understandings of policy problems and preferred policy solutions on other coalitions (Sabatier, 2006).

8.4.2 Dual Positions Are the Hardest for Harmonisation Effort Probably the hardest area for harmonisation is when jurisdictions are divided into two groups of regulations and retain their views about the advantages of particular regulations compared to the disadvantages of the regulations by their opponents. Harmonisation and reform efforts are currently being debated concerning the security of payments in the construction industry. There is a significant barrier to these efforts because there are two distinct models: the west coast model (Construction Contracts, followed in Western Australia and the Northern Territory (Security of Payments) Act 2004 (NT); Construction Contracts Act 2004 (WA)), and the east coast model, followed by other states and the ACT (Building and Construction Industry (Security of Payment) Act 2009 (ACT); Building and Construction Industry Security of Payment Act 1999 (NSW); Building and Construction Industry Security of Payment Act 2009 (SA); Building and Construction Industry Security of Payment Act 2009 (Tas); Building and Construction Industry Security of Payment Act 2002 (Vic)). The only feasible approach to building uniformity in this area is federal regulations. After examining the possibility of using national uniform legislation (referral and mirror structures) as a harmonisation method, the Society of Construction Law Australia Legislation Reform Sub-Committee (2014) has advocated implementing federal legislation. In particular, the report states: it is unlikely that the issues raised by the legislation are sufficiently significant to attract a referral of powers. Recent experience with the implementation of the new model Commercial Arbitration Act has shown how difficult it is to achieve uniform rapid implementation of new legislation (Society of Construction Law Australia Legislation Reform Sub-Committee, 2014, p. 22).

Recommendation 28 of the report urges the Australian Government to ‘enact national legislation providing for security of payment and access to adjudication

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processes in the commercial construction industry’ (Economics References Committee, 2015, p. 157). Another example of the deadlock position is the Criminal Code because it has a partially uniform mirror structure and it has the lowest uptake. Criminal offences regulation is either common law or code jurisdictions. New South Wales, the Australian Capital Territory, Victoria, and South Australia are ‘common law states’. While the Northern Territory, Western Australia, Queensland, and Tasmania are code jurisdictions. This division in itself produces a number of stark differences. Incredibly influential advocacy coalitions with strong beliefs on the subject are more or less dead-locked with the federal, state and territory governments. Without strong external shocks, criminal law reform is almost a lost cause, exemplifying ‘parochial codiphobia’ (Bronitt, 2017, p. 142) by some coalitions and accusations of centralisation by others. The beliefs are so persistent that they almost carry the nature of tradition or the point of difference. Painter and Peters (2010, p. 3) demonstrated that tradition in public policy can be very persistent.

8.4.3 Electronic Registers as a Harmonisation Tool In some circumstances, the inertia for harmonisation by influential advocacy coalitions can be overcome by introducing an electronic register. Section 8.4.3 examines how the Personal Property Securities Register provided the impetus for harmonisation while the DNA register did not. The Personal Properties Securities Regulations 2010 (Cth) and the relevant state and territory legislation ‘replaced a number of complex and fragmented sets of rules with a single set of rules that apply to security interests in personal property’ (Economics References Committee, 2015, p.  11). The register was implemented through the Personal Property Securities Act 2009 (Cth) (n.d.) and state and territory referral legislation (see the Appendix). The established official government register of the personal securities is an electronic register administered by the Commonwealth agency – the Registrar of Personal Property Securities. The Act adopted a USA transplant, namely, Article 9 of the Uniform Commercial Code (Economics References Committee, 2015, p. 11), as opposed to embarking on a path of harmonising the existing Australian legislation. This key decision of implementing the USA transplant has ensured the utmost uniformity. As noted in the most recent review of the Act, the initial reform ‘replaced a number of complex and fragmented rules that were scattered across more than 70 Commonwealth, state and territory statutes and common law rules’ (Attorney-General’s Department, 2020, p. 4). The reform ensured that legal effects (debts and other obligations) have been based on the ‘underlying commercial substance of the transaction’ rather than the form the parties choose (Economics References Committee, 2015, p. 11). The same position has been recognised as a successful legal transplant in approximately 50 countries (Mills, 2017), including New Zealand Personal (Property Securities

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Act 1999 (NZ)), Papua New Guinea (Personal Property Security Act 2011 (PNG)) and Canada (Wood, 2011). The calls for harmonisation and adoption of the US approach (following Article 9 of the Uniform Commercial Code) were made as early as the 1970s (Molomby, 1972). The recommendations contained in the Law Council of Australia’s 1972 report regarding a national approach to consumer credit laws were implemented. However, secured transaction laws were regulated by the separate jurisdictions (For example, Chattel Securities Act 1987 (Vic)). In the 1990s, the Australian Law Reform Commission and Law Commissions of Victoria, New South Wales and Queensland were given a reference to review personal property securities laws with the expectation of completing a joint report. Unable to reach a consensus, the commissions prepared separate reports (ALRC & NSWLRC, 1992; QLRC & VLRC, 1992). Further on, the topic was elevated to the Standing Committee of Attorneys-­ General (the predecessor of the Meeting Attorneys-General) and the momentum for national reforms was revived following the continued efforts of the late Professor Allen (Economics References Committee, 2015) and several reports (Attorney-­ General’s Department & Standing Committee of Attorneys-General, 2007; Standing Committee of Attorneys-General, 2007; Standing Council of Attorneys-General, 2006). After several reiterations of the consultation draft, exposure draft and revised exposure draft, the bill was passed by the Parliament of Australia in November 2009 (Personal Property Securities Bill 2008 (Cth); Consultation Draft Personal Property Securities Bill 2008 (Cth), November 2008 Exposure Draft; Personal Property Securities Bill 2008 (Cth), March 2009 Exposure Draft). According to the Personal Property Securities Law Agreement (entered into on 2 October 2008), the states enacted legislation (see the Appendix) referring the power under section 51(xxxvii) of the Constitution to the Australian Government. In reviewing the Act, Whittaker noted that ‘there is no one single step that by itself will produce a major improvement to the Act. Rather, improvement needs to come of many small changes’ (Economics References Committee, 2015). In particular, the review recommended simplification of the Act noting some provisions as being overcomplicated. It must be noted that the legislation is in the most rigid – referred structure, that means any refinement of the policy will be implemented through uniform amendments. The set of uniform Acts is under the industry consultation on path to the recommended simplification of the financial products and the Act itself (Attorney-General’s Department, 2020, p. 2). However, this high level of uniformity is not always achievable, even when introducing an electronic register and establishing a national regulator. Advocacy coalitions can be particularly influential on criminal laws in Australia. Section 8.4.3 will now examine the National Criminal Investigation DNA Database (NCIDD) as an example. The initial national regulator was CrimTrac and, subsequently, the ACIC. The NCIDD, the sets of uniform Acts fell within the ‘partially uniform’ level of uniformity. The VLRC characterised the existing regime as ‘by no means uniform, but it is still possible for a law to be prescribed as a “corresponding law” ’ (Victorian Parliament Law Reform Committee, 2004).

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This perspective was probably an anomaly. However, from a criminal law perspective, this was a general rule. It could be explained by the difficulties of cooperation relating to criminal law (Hill, 2020b). Despite that, due to developments in technology and data-sharing between jurisdictions, the lack of uniformity became a serious impediment. Gans (2002) argued that this situation could be dangerous: ‘unless those jurisdictions impose legal barriers on the cross-jurisdictional transfer of DNA profiles, the limits in one jurisdiction could be undermined if those profiles were sent to another jurisdiction whose laws lacked those limits’ (p. 220). Strong controversy had surrounded the intrusive nature of DNA tests (McCartney, 2015; Williams & Johnson, 2005). Thus, with further developments in the technology associated with collecting biometric information, the jurisdictions achieved a faster consensus on sharing biometric information of a less intrusive and controversial nature. In particular, in October 2017, all jurisdictions agreed to biometric information sharing by signing the National Facial Biometric Matching Capability and Intergovernmental Agreement on Identity Matching Services (COAG, 2017). The ACIC operates the NCIDD, with 837,000 DNA profiles as of 18 October 2016 (ACIC, 2018). They stated that ‘the agency works with police agencies to ensure NCIDD operates in accordance with relevant Commonwealth, state and territory legislation that governs the collection and matching of DNA profiles’. This measure has been necessary considering the varying procedures and degrees of protection prescribed by the jurisdictions. Cooperation in this area has also been necessary between the jurisdictions within Australia and internationally. Currently, there are requests to harmonise DNA databases within Australian jurisdictions and internationally (Santos, 2017). In November 2014, the Commonwealth Minister for Justice, Keenan, announced that Australia was entering a pilot program with the UK, the USA and Canada. Under the program, DNA profiles can be shared internationally (Smith & Mann, 2015, p. 1). This development in the international arena may provide the impetus to change the persistent beliefs of advocacy coalitions regarding the value of diversity in regulating this area. Therefore, electronic registers can serve as a powerful tool of harmonisation. In addition to the Personal Property Securities Register, successful harmonisation has been achieved through introduction of registers for electronic conveyancing and business names register examined in Sect. 5.3.2.

8.5 Conclusion This research has used the advocacy coalition theory for a specific goal of explaining how advocacy coalitions have stalled harmonisation efforts. Advocacy coalitions have strong beliefs about policies that cannot be changed by data, facts or cost-benefit analyses. The following types of beliefs can affect policy outcomes: deep core beliefs (e.g., the left- and right-wing divide), policy core beliefs (e.g., the distribution of power in a federal government) and secondary aspects (e.g., funding and delivery) (Cairney, 2011, p. 205). However, that is not to say that uniformity is

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impossible if an influential advocacy coalition is present. Rather, law reformers, policymakers and legislative drafters should be aware of influential advocacy coalitions in certain areas of the law and should not attempt to set hard deadlines or monetary incentives in these areas. A better approach would be a policy shift (as was achieved with Personal Properties Securities Regulations 2010 (Cth)), pragmatic solution or readiness for iterative developments. When sudden shocks occur, the streams may align with Kingdon’s (2014) multiple streams framework, as occurred with counterterrorism regulation.

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Chapter 9

Judicial Interpretation of National Uniform Legislation

Abstract  The main principle of judicial interpretation of national uniform legislation is based on the desirability of preserving the uniformity of judicial interpretation. Several High Court decisions have stressed the importance of this principle, which has been reiterated numerous times by the supreme courts of various jurisdictions. The same can be observed in decisions within tribunals and specialist courts. Legislation and common law in Australia, exist in separate but intertwined plains. Legislation is strictly jurisdictional while common law is hierarchical. The rule of desirability of uniform interpretation of national uniform legislation has been settled in common law. The High Court observed that ‘there is but one common law in Australia’ (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 1997, p.  563), therefore, interpretation of national uniform legislation should be almost straightforward with the main principle of judicial interpretation settled. There were, however, cases when an identical section of uniform Acts received divergent interpretations in Victoria and New South Wales. So, despite the main principle being established, there still can be cases where departure from the uniform interpretation is possible even in cases where legislation is identical. And as has been discussed earlier in this book, legislation is rarely identical, to add to the complexity.

9.1 Introduction Ultimately, national uniform legislation is interpreted by the courts. This chapter analyses the cases of judicial interpretation. The main principle of judicial interpretation of national uniform legislation is based on the desirability of preserving the uniformity of judicial interpretation. Several High Court decisions have stressed the importance of this principle, which has been reiterated numerous times by the supreme courts of various jurisdictions. The same can be observed in decisions within tribunals and specialist courts. Thus, the main principle of judicial interpretation is settled.

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There have been cases when judges have not adhered to this principle; however, these cases have been rare. The divergent interpretation has been preferred in the minority of cases with the decisions that were ‘plainly wrong’. More often, courts have sought to follow the main principle or distinguish cases on the facts. Overall, the main principle seems to be entrenched in the Australian common law system. That is not to say that there are no exceptions. For example, the interpretation of section 137 of the uniform evidence acts remained divergent by the NSW and Victorian jurisdictions for several years until the decision of the High Court confirmed the NSW position. Although the substance of the decision still has some basis for debate, the uniformity of interpretation and conformity to the main rule has been restored in this case. In practice, however, there is a blurred line between where statutes end and the common law begins; this distinction is particularly difficult for national uniform legislation. While national uniform legislation is specific to a State or Territory jurisdiction, the decisions of courts are hierarchical in Australia. The High Court observed that: There is but one common law in Australia which is declared by this Court as the final court of appeal. …the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations. (Lange v Australian Broadcasting Corporation, 1997, p. 563).

Therefore, despite the main principle being established, there still can be cases where departure from the precedent is possible even in cases where legislation is identical. And as has been discussed earlier in this book, legislation is rarely identical, to add to the complexity. Therefore, it is important to further explore the interaction of national uniform legislation and common law.

9.2 The Main Rule: Desirability of Uniform Interpretation Several decisions of the courts, including the High Court, have stressed the importance of consistent and uniform interpretations of national uniform legislation across jurisdictions. The leading case regarding the principle of uniform interpretation is Australian Securities Commission v Marlborough Gold Mines Ltd (1993). The case concerned the question on whether s 411 of the then Corporations Act 1989 (Cth) authorising the making of schemes of arrangement is a proper source of power for a change in status. There were several conflicting decisions, the decisions of the Supreme Court of Victoria and Northern Territory agreeing that section 411 of the then Corporations Act 1989 (Cth) provides such power and decision of the full Federal Court holding there were no such relevant power. In a joint decision, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ stressed that: uniformity of decision in the interpretation of uniform national legislation such as the Law [Corporations Act 1989 (Cth)] is a sufficiently important consideration to require that an

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intermediate appellate court—and all the more so a single judge—should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong (p. 492).

The High Court reiterated the position in almost an identical passage in 1997: ‘This is because in the case of federal or uniform legislation the duty of the courts below is to endeavour to accord such legislation a uniform interpretation’ (Pyramid Building Society (in liq) v Terry, 1997, p.  174). In 2007, the High Court further confirmed this position in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007): Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong (pp. 151–152).

Thus, the main rule of the desirability of preserving uniformity in interpreting national uniform legislation became the ‘soundly established principle’ (Enterra Pty Ltd and Others v ADI Ltd, 2002, p. 522).Undeniably, judges cannot be slavish in applying the main rule of this interpretation and there are certain exceptions and limitations to the main rule. For instance, Leeming J warned about applying the main principle in practice: ‘That is not to say that its operation for practical purposes is identical throughout Australia’ (Leeming, 2015, p. 166). There are certain limitations on the intersection between national uniform legislation and the work of the judicial system. In particular area of defamation, Windeyer J attempted to compare and synthesise the systemic differences between jurisdictions concluding that these differences cannot be answered by reference to common law in case of the regulation of libel among Australian states: The questions that arise are peculiar to [NSW] and those states which inherited the law of [NSW] (as Queensland did) and did not alter it (as Victoria did), or which have adopted a similar rule (as Western Australia and Tasmania have). They are not questions that can be answered by the application of common-law rules (Australian Consolidated Press Ltd v Uren, 1966, p. 205).

This blurred line between where statutes end and the common law begins is particularly difficult for national uniform legislation. Even in Lange v Australian Broadcasting Corporation (1997), where the High Court famously stated, ‘there is but one common law in Australia’ (p. 563), it was later observed that: the critical question in the present case is whether the common law of defamation as it has traditionally been understood, and the [NSW] law of defamation in its statutory form, are reasonably appropriate and adapted to serving the legitimate end of protecting personal reputation without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution (p. 568).

This blurred line and interplay was further emphasised by the High Court in 2021. In Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] High Court of Australia 27 (8 September 2021) the High Court has confirmed the liability of three media companies in Australia, finding that they were the publishers of third-party comments on their Facebook pages for defamation purposes. Justices Gageler and Gordon

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reiterated observation of the Chief Justice Gleeson in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 532 “Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.” In paragraph 57, Justices Gageler and Gordon stated: The two sources of law have been intertwined since the Slander and Libel Act 1847 (NSW) first abolished the common law distinction between libel and slander in New South Wales. They became more intertwined with the enactment of the Defamation Act 2005 (NSW) and legislation in substantially identical form in each other State and Territory. That nationally uniform legislation is expressed “not [to] affect the operation of the general law in relation to the tort of defamation except to the extent that [it] provides otherwise” and to have as an object “to promote uniform laws of defamation in Australia”. A task of the integrated Australian judiciary is to ensure that the nationally uniform statute law of defamation and the nationally uniform common law of defamation fit into a “coherent and interlocking whole”.

Taking into consideration this intertwined natures, the supreme courts of Victoria, NSW, Western Australia and South Australia, Queensland Court of Appeal and Federal Court of Australia have followed the main principle of uniform interpretation. The Supreme Court of Victoria followed the main principle for deciding the choice of law provisions in interpreting uniform Workers Compensation cross-­ border legislation: ‘the legislation is intended to provide uniformity and harmony concerning choice of law rules. Giving effect to that objective is important’ (Di Paolo v Salta Constructions Pty Ltd, 2015, p.  58). The main issue was whether Western Australian (Workers’ Compensation and Injury Management Act 1981 (WA)) or Victorian legislation (Accident Compensation Act 1985 (Vic)) governed the worker’s claim against the two defendants based in Western Australia, as the worker fell from scaffolding and sustained serious spinal and closed head injuries, but legislation in Western Australia excluded the claim. Chernov J expressed a similar view when deciding whether the Supreme Court of Victoria should have jurisdiction over the matter as opposed to cross-vesting jurisdiction to the Federal Court. Chernov J resolved that there were no ‘special reasons’ for leaving the matter to be heard in the Supreme Court of Victoria, thus, the matter should be heard in the Federal Court of Australia because of the issues concerning the Trade Practices Act 1974 (Cth), now the Australian Consumer Law: In my view, the factor which is of significance in the resolution of the present question, is that the Federal Court is in a position to provide a means whereby a degree of uniformity in the interpretation of PtIV of the Trade Practices Act 1974 (Cth) could be achieved on a national basis … This Court should deal with the proceeding … against the background of the statutory intention to which I referred and the circumstances surrounding this case, including the policy of the Federal Court, to provide a degree of uniformity in the interpretation of the relevant legislation (Telstra Corporation Ltd v CXA Communications Ltd, 1998, para. 5).

Similarly, the Supreme Court of NSW follows the main principle and is hesitant to find a decision of an intermediate appellate court ‘plainly wrong’. In Cheikho v Nationwide News Pty Ltd (No 5) (2016), McCallum J considered the meaning of

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‘plainly wrong’ in the context of national uniform legislation, Defamation Act 1974 (NSW) and Defamation Act 2005 (NSW), by considering Farah’s decision and stated: Those words, in terms, suggest that it is open to a trial judge to depart from the decision of an intermediate appellate court in another jurisdiction if convinced that the interpretation is plainly wrong. Accepting (since the High Court says so) that that is right as a matter of strict precedent, it is a course which I would think would rarely be taken by a puisne judge. The conclusion that the intermediate appellate court of another jurisdiction is ‘plainly wrong’ is one more appropriately reserved for an appellate court in a later case (Cheikho v Nationwide News Pty Ltd (No 5), 2016, para. 43).

McCallum J also added: ‘I am fortified in that view by the remarks of Basten JA’ in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014), which included the following note: ‘that was not a course which would normally be available to a trial judge dealing with national uniform legislation’ (para. 80). In the same decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014), Basten JA stated: Nevertheless, it should be accepted that the construction of (largely) uniform national legislation will not generally be affected by earlier legislation operating only in one state. Were that not so, the construction of national uniform legislation would become significantly more complex than it already is (para. 79).

The NSW Court of Appeal reiterated this position regarding interpretations of the Bankruptcy Act 1966 (Cth): Further, even were I of the view that the construction advanced by the appellants of s82 as modified for the purposes of Pt10 was correct, and I am not, this Court as an intermediate appellate court should not depart from an interpretation placed upon uniform national legislation, such as the Bankruptcy Act, by another intermediate appellate court unless convinced that the interpretation so placed is ‘plainly wrong’. That is particularly so where, as here, the interpretation called in question is that of the Full Court of the Federal Court, which court administers the Bankruptcy Act (Gye and Another v Davies, 1995, p. 436).

The full Supreme Court of Western Australia followed the principle in a case involving commercial arbitration legislation. It was stated in Lamac Developments Pty Ltd v Devaugh Pty Ltd (2002) that: the view to which I have come therefore has the advantage of consistency with the decisions of the SA Full Court and the Court of Appeal of Victoria in the context of the application of the uniform national legislative scheme provided by the commercial arbitration acts of the various Australian jurisdictions (para. 55)

Further, ‘the general proposition [is] that, where possible, the provisions of commercial arbitration legislation should receive uniform interpretation across jurisdictions (Lamac Developments Pty Ltd v Devaugh Pty Ltd, 2002, para. 103).In the Tasmanian Court of Criminal Appeal, after citing Australian Securities Commission v Marlborough Gold Mines Ltd (1993) in the context of the uniform evidence acts, it was held that ‘that observation applies to the present circumstances and, consistent with it, in my respectful view, this Court should adopt the effect given to the term “probative value” in Shamouil, [60]–[65], unless convinced that it is plainly wrong’ (KMJ v Tasmania, 2011, p. 218, citations omitted). The Queensland Court

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of Appeal provided another example of following the main principle of interpretation for bankruptcy legislation: The decision in Australian Securities Commission v Marlborough Gold Mines Ltd requires that this court, as an intermediate appellate court, not depart from an interpretation placed on a provision of uniform national legislation by another such court unless convinced that interpretation is plainly wrong (Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd, 2003, para. 60).

Similar conclusions were reached by the Supreme Court of Queensland in interpreting commercial arbitration legislation. In particular, Jackson J stated: The Model Law was first applied in Australia under the International Arbitration Act 1974 (Cth). All of the states and territories followed, applying the Model Law to domestic arbitration and repealing previous legislative regimes. It follows that decisions in the other states and territories and the Federal Court of Australia on indistinguishable provisions are not only persuasive but where they are decisions of an intermediate appellate court they should be accorded the precedential value recognised in Australian Securities Commission v Marlborough Gold Mines Ltd (Mango Boulevard Pty Ltd v Mio Art Pty Ltd, 2018, para. 19).

Finally, the Supreme Court of South Australia, in a recent 2020 decision, followed the established precedent: That decision is binding on a single judge of another court unless that judge is convinced that the decision is plainly wrong. There is no material distinction between joining an additional plaintiff (as in the present case and in Re Spec FS NSW Pty Ltd; (in liq)) and joining an additional defendant as in Greig. I am not convinced that the decision of the Queensland Court of Appeal in Greig is plainly wrong. On the contrary, I consider that it is correct for the reasons given above (citations omitted) (Duncan as Liquidator of WDR Iron Ore Pty Ltd v SMA Industries Pty Ltd, 2020, para. 253).

The Federal Court of Australia reached similar conclusions: ‘I would have to be persuaded that the decision was plainly wrong if I was to depart from it’ (Zhao v Ausin Group (Australia) Pty Ltd, 2020, para. 14; see also Furnell v Shahin Enterprises Pty Ltd, 2021). The examples of when the decision was found plainly wrong are further examined in Sect. 9.5.

9.3 Tribunals and Specialist Courts The rule regarding the ‘desirability of having uniform interpretation of uniform legislation’ has been reiterated in tribunals, including the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal in State Bank of NSW Ltd v FCT (1995): The Tribunal is also much aware of the desirability of having uniform interpretation of uniform legislation. As stated in Faint at 57,492: There are sound reasons in the elaboration of a statute which is uniform as between states for adhering to a common and uniform construction (para. 278). See Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) ASC 55-442 at 56,347; (1985) 3 NSWLR 475 at 478

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per Kirby P; (1995) 1 ACCR 369 at 452; Expo Aluminium (NSW) Pty Ltd v WR Pateman Pty Ltd (1990) ASC 55-978 at 58,884 per Kirby P; Custom Credit Corporation Ltd v Lupi (1991) ASC 56-024 at 56,547 per O’Bryan J and at 56,558 per McDonald J.

More recently, the Land and Environment Court of NSW stated that ‘this principle applies not only to the ratio of decisions of intermediate appellate courts but also to dicta’ (Burwood Council v Pan Pac Investments Pty Ltd (No 2), 2019, para. 15). Therefore, the main principle of the judicial interpretation of national uniform legislation is settled.

9.4 Desirable Uniform Sentencing for Federal Offences While this book focuses on national uniform legislation, it is useful to reflect that the same principles of judicial interpretation have been applied to federal offence cases. For instance, the High Court has reiterated the necessity of uniformity in sentencing even if criminal law is different across jurisdictions (see Chap. 3). Uniform sentencing in this regard is a significant concern for federal offences, as was established in Hili v R (2010) by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: In dealing with appeals against sentences passed on federal offenders, whether the appeal is brought by the offender or by the prosecution, the need for consistency of decision throughout Australia is self-evident. It is plain, of course, that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong. So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong (p. 538).

This position was later confirmed in R v Pham (2015): As Hili v The Queen made clear, where a state court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other states and territories unless convinced that they are plainly wrong (para. 18).

Therefore, sentencing for federal offences in Australia also requires uniformity.

9.5 Slavishly Following the Precedent By no means the general rule of interpretation means, the rule should be followed blindly or slavishly. In Fairfax Media Publications Pty Ltd and Others v Bateman and Another (2015), when considering uniform defamation legislation, the NSW Court of Appeal relied on a decision of the High Court that stated that following the main principle should not be ‘slavish’. Marshall v Director-General, Department of

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Transport (2001) (Marshall) was applied to support this proposition. Later, the High Court applied this decision in Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority (2008). The High Court was concerned with interpreting the statutory text and decisions regarding compensation payable to a dispossessed landowner pursuant to section 20 of the Acquisition of Land Act 1967 (Qld). McHugh J warned the courts that they should not: slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation … that does not, however, preclude the court seeing such decisions as guides to the meaning of legislation in the court’s jurisdiction … Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation (citations omitted) (Marshall, 2001, para. 62).

This passage was referred to in other decisions concerning the interpretation of national uniform legislation (e.g., Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3), 2021; NSW Crime Commission v Pettit, 2021). However, it must be noted that the High Court in Marshall (2001) was comparing Queensland legislation to English legislation and decisions, not legislation or decisions within Australian jurisdictions. While the dicta in Marshall (2001) is important, it is less relevant to cases involving national uniform legislation. However, it is open to the courts to distinguish cases on the facts or not follow the precedent if it is ‘plainly wrong’.

9.6 Precedent: Where the Decision Is ‘Plainly Wrong’ The main rule of uniform interpretation has been predominantly observed, and cases where the courts have found the decision to be ‘plainly wrong’ are quite rare. Glover (2020, p. 851) established that over 25 years, only 20 decisions had deemed the decision to be plainly wrong. According to the empirical analysis, this comprised only 6.2 per cent of all cases considering the interpretation of uniform provisions (Glover, 2020, p. 873). Thus, these decisions have ‘been occasional in NSW, rare in Victorian, Queensland, South Australian and federal courts, and unheard of anywhere else’ (Glover, 2020, p. 887). In most decisions, the judges have noted that they should not follow decisions that are plainly wrong and decide to follow the cited decisions. For instance, in Steen v Senton (2015): This principle is particularly important where the decision concerns the interpretation of provisions that are either uniform or very similar in each state and territory (with the exception that the Civil Law (Wrongs) Act 2002 (ACT) does not have an equivalent of s 5R of the CLA). There is considerable force in the reasons of the majority in Chivas and Cosmidis, and they cannot be considered to be plainly wrong. Accordingly, there is no basis for this Court to depart from the views of the majority (para. 38).

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The same occurred in Minister for Industrial Affairs v Civil Tech Pty Ltd (1997) in the context of commercial arbitration legislation: The Commercial Arbitration Act forms part of a uniform national scheme involving the same or similar legislation in all of the Australian states and territories. An interpretation of that Act by the full court of any of the Australian states should be followed by the courts of the other states unless convinced that that interpretation is plainly wrong (citations omitted) (p. 355).

It was further stated that ‘the decision of the Full Court of Western Australia is plainly wrong, and I decline to follow it (Minister for Industrial Affairs v Civil Tech Pty Ltd, 1997, p. 361). However, in Globe Church Inc. v Allianz Australia Insurance Ltd (2019), it was concluded that: there was no such endorsement and that the intermediate appellate authority in support of the defendants’ position is not plainly wrong and should be followed. In this regard, we consider it important that there be consistency in the construction of indemnity policies of insurance throughout this country (that position being consistent with the position in the United Kingdom) … We are comforted by the fact that as we point out below, the conclusion we have reached is consistent with conclusions reached by the Full Court of the Supreme Court of Western Australia and the Full Court of the Supreme Court of Tasmania. We do not consider these conclusions to be plainly wrong. Indeed, the reasoning which led us to the conclusion which we have reached is consistent with the reasoning in those cases (pp. 500–501).

In the context of corporations’ legislation, the Queensland court in Re Linc Energy Ltd (in liq) (2017) did not follow the precedent from Victoria: In my view, Loo is plainly wrong. The reason is that the court in that case was apparently not informed of and did not consider the effect of s 9(1) of the Corporations (Ancillary Provisions) Act 2001 (Vic), which is the counterpart of the equivalent Queensland provision in s 9 of the Act of 2001. Accordingly, I must depart from Loo and give effect to s 9 of the Act of 2001  in finding that s 5G(3) Item 1 applies s 5G of the CA in the present case (para. 140).

Similarly, in Cargill International SA v Peabody Australia Mining Ltd (2010), in the context of international arbitration, the NSW court stated that the Queensland decision was ‘plainly wrong’: I consider that an agreement by parties to refer any disputes to international arbitration under a particular set of procedural rules (as opposed to an agreement that the lex arbitri should be other than that of the Model Law) does not constitute an implied agreement to opt out of the Model Law for the purposes of s 21 of the Commonwealth Act (and that the decision in Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v Australian Granites Ltd [2001] 1 Qd R 461 to the contrary is plainly wrong and should not be followed) (para. 31).

The full Supreme Court of South Australia in Darwin Food Pty Ltd v Gray (2018, para. 103) found the decision of the Supreme Court of NSW in Proud v Brims Distributors Pty Ltd (1996) to be ‘plainly wrong’: The Court of Appeal did not address the question of whether the guarantee was divisible. If the issue was argued, no reasons are provided for rejecting the argument. Rather Cole JA appears to have operated on the basis that the guarantee was not divisible. If the analysis undertaken earlier in these reasons of the guarantee in the present case is correct, and it is

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divisible, it must follow from the outcome in Foots, Alekozoglou, Gosstray and Gaffney that absent a supply, no obligation exists under the guarantee agreement giving rise to a contingent liability. In the circumstances, respectfully, I conclude that Proud v Brims Distributors Pty Ltd is plainly wrong and decline to follow it.

The Federal Court of Australia also addressed this matter in Wing v The Australian Broadcasting Corporation (2018): ‘I am of opinion that Elliot 37 WAR 387 is plainly wrong and inconsistent with Harrison 149 CLR 293, as well as George v Rockett (1990) 170 CLR 104 and long-established principle’ (para. 43).Other cases provide examples of certain exceptions to the main rule due to some terminology not defined by national uniform legislation. For example, the Federal Court S. Kidman and Co v Lowndes CM and the Director of Public Prosecutions (2016) held that: it is correct to say that the courts have evinced a strong desire for uniform legislation to be interpreted uniformly in the various jurisdictions. Of course, it is one thing to say that analogue legislation should be construed consistently in operation, but quite another to say in the absence of any authority establishing an accepted or uniform construction for a particular provision that a word appearing in the provision—in this case ‘inquiry’—should take its meaning from legislation which does not form part of the uniform scheme—in this case the coroners legislation in other jurisdictions. It may also be noticed in this respect that neither the Explanatory Memorandum for the Model Work Health and Safety Act, nor any other extrinsic materials in relation to the drafting and promulgation of that legislation, suggests that the ambit of the term ‘inquiry’ should be limited in the manner pressed by the appellant … Even if it was permissible to take into account coronial legislation from other Australian jurisdictions for the purpose of construing s 232(1)(b) of the WHS Act, the term ‘inquiry’ is not used with any uniformity in that legislation (pp. 42–43).

Therefore, cases where the precedents of immediate appellate courts are considered ‘plainly wrong’ are rare. However, in CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009), the High Court was critical of the full Supreme Court of Tasmania for not properly assessing whether the NSW Court of Appeal’s decision was ‘plainly wrong’. The High Court appeal involved interpreting the Civil Liability Act 2002 (Tas) regarding whether a hotel owed a duty to take reasonable care to prevent an intoxicated patron from riding a motorcycle while leaving the premises. The Tasmanian court did not follow the decision by NSW in South Tweed Heads Rugby League Football Club Ltd v Cole (2002) without resolving whether the precedent was ‘plainly wrong’: In contrast, the Full Court majority did not say whether it thought the decision of the [NSW] Court of Appeal in Cole’s case was plainly wrong, but it did not follow it. It distinguished it. This was a legitimate course to take, and consistent with the [NSW] Court of Appeal’s approach, if the Full Court majority regarded the present case as ‘exceptional’. Counsel for the Board and Mrs Scott submitted to the Full Court, as they also submitted to this Court, that the present case was exceptional, and that Blow J had erred in not finding that it was exceptional. The Full Court majority did not in terms describe the case as exceptional. Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the [NSW] Court of Appeal was plainly wrong, it was its duty to follow the [NSW] Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the [NSW] Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the [NSW] Court of Appeal. If these appeals had not

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been brought, there would have been an undesirable disconformity between the view of the [NSW] Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best, the Full Court decision would have generated confusion. At worst, it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants.

The High Court was especially critical in these circumstances because civil liability legislation is uniform across most Australian jurisdictions. The circumstances in which a decision can be plainly wrong are necessarily rare but the decided cases establish these circumstances may arise if the appellate court: (1) failed to consider other relevant provisions of the legislation Re Linc Energy Ltd (in liq) (2) failed to consider another key matter, for example, the divisibility of the guarantee in Darwin Food Pty Ltd v Gray; or (3) considered irrelevant material or provisions, for example, S Kidman V CM Lowndes.

9.7 Case Study: Divergent Interpretations of the Uniform Evidence Acts, Section 137 Despite the strong endorsement of the policy of ensuring consistency in the interpretation of interpretation of national uniform legislation, interpretation is not entirely consistent between jurisdictions. In particular, divergent interpretations have occurred in relation to the uniform evidence acts. Examination of the divergent interpretations is instructive because the Uniform Evidence Law initiative included a unique design in which three major law reform commissions cooperated on policy developments. The final report from this review was produced in cooperation with the ALRC, NSWLRC and VLRC (QLRC, 2005). The basis for cooperation was outlined in the section titled ‘Introduction to the Inquiry’: This project was conceived from the outset as a ‘joint venture’ between the ALRC and the NSWLRC. The scope of the project has widened since the publication of IP 28 as a result of the terms of reference received by the VLRC. The three commissions collaborated to produce an agreed set of proposals in DP 69, and have produced agreed recommendations in this report. In addition, an ongoing consultative relationship has been established with the Tasmania Law Reform Institute …, the QLRC, the NTLRC [Northern Territory Law Reform Committee] and the Law Reform Commission of Western Australia… In October 2005, representatives of all of the law reform bodies, with the exception of the QLRC, met at the ALRC offices to discuss and formulate the recommendations contained in this report (ALRC et al., 2005, p. 40).

The responsibilities for particular sections and jurisdiction-specific provisions were divided between the commissions (ALRC et al., 2005, p. 41). The expectation from this cooperative effort was that ‘in the interests of uniformity, … the recommendations will be taken up, where applicable, by other participants in the uniform evidence acts regime’ (ALRC et  al., 2005, pp.  40–41). This expectation has been realised.Given the difficulties with harmonisation in specific areas, such as

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adducing children’s evidence, one of the main strategic decisions for harmonising evidence laws has been maintaining the legislation as an Act of ‘general application’ (ALRC et al., 2005, p. 60). Specifically, as stated in the final report, ‘The uniform Acts should be of general application to all criminal and civil proceedings. The corollary is that the uniform evidence acts should not generally include provisions that apply only to specific offences or categories of witness[es]’ (ALRC et al., 2005, p. 60). This decision has allowed the focus of reforms to be maintained. However, as time has passed, the jurisdictions have made some amendments regarding the privileges of specific categories of witnesses.1 These amendments have been consistent with recommendation 15 of the report, stating that ‘the uniform evidence acts should be amended to provide for a professional confidential relationship privilege’ (ALRC et al., 2005, p. 511). In 2021, the uniform evidence acts2 were classified at a ‘substantially uniform’ level of uniformity. Most states and territories have enacted uniform legislation, whereas South Australia, Queensland and Western Australia have remained common law jurisdictions. Although there has been no indication that Western Australia, South Australia and Queensland will adopt the Uniform Evidence Law in full (Hemming, 2017), there are certainly cases in which elements have been implemented as legislation in these jurisdictions. For example, when the modernisation of the evidence law was considered in South Australia, two of the recommendations from the South Australian Law Reform Institute included following the Uniform Evidence Law for consistency (South Australian Law Reform Institute, 2012).3 In particular, recommendation 2 stated that new provisions related to the facilitation of proof and admissibility of evidence of communications must be modelled on the relevant sections of the uniform evidence acts (South Australian Law Reform Institute, 2012, p. 4). Similarly, recommendation 5 advised replacing Part 6A of the Evidence Act 1929 (SA) dealing with documents to ‘aim for consistency with relevant provisions in the uniform evidence acts to the greatest extent possible’ (South Australian Law Reform Institute, 2012, p. 5). As a result of these recommendations, a bill was introduced and later enacted amending the Evidence Act 1929 (SA).4 The Minister, McLachlan, articulated in the second reading speech that ‘the amendments have been drafted with the aim of

 Evidence Amendment (Journalists Privilege) Act 2011 (Cth); Evidence Amendment (Journalist Privilege) Act 2012 (Vic); Evidence (National Uniform Legislation) Amendment (Journalist Privilege) Act 2018 (NT); See also, the Public Interest Disclosure Act 2010 (Qld) and Evidence and Public Interest Disclosure Amendment Legislation Bill 2011 (WA). 2  Evidence Act 1995 (Cth), Evidence Act 2011 (ACT); Evidence Act 2004 (NI); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). 3  South Australian Law Reform Institute, Modernisation of South Australian Evidence Law to Deal with New Technologies (2012 ). https://law.adelaide.edu.au/sites/default/files/docs/final-report1-evidence-and-modern-technologies.pdf 4  Evidence (Records and Documents) Amendment Act 2015 (SA). 1

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keeping South Australia’s law in this area consistent with the Uniform Evidence Act models’ (South Australia, 2015, p.  2060). Although implementing the Uniform Evidence Law throughout Australia could be unachievable without further harmonisation efforts, the uniform evidence acts prove how effective genuine cooperation with institutional support can help achieve sustainable uniformity. Regardless of this cooperation, the major departure from the general rule of uniform interpretation of national uniform legislation could have been observed in the judicial interpretation of sect. 137 of the Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) in R v XY (2013) and Dupas v R (2012), respectively. Five judges sat on the benches for both cases. However, the divergent interpretations were maintained (Lancaster, 2016). Ironically, the provisions are part of the uniform evidence acts and are identical. In IMM v R (2016), the High Court favoured the NSW interpretation, as observed by Edmond: that when determining the probative value of evidence for the purpose of s 137, the trial judge should take the contested evidence at its highest. In doing so, the trial judge is prevented from considering the reliability of the evidence or the credibility of the witness (Edmond, 2017, p. 106).

With this decision of the High Court uniformity is now reinstated; however, according to Odgers (2017), the position remains unsatisfactory and will likely require further recommendations from the ALRC: The majority judgment in IMM is unpersuasive, incoherent and is likely to result in real confusion at the trial court level for years to come. Given the centrality of the issues that it deals with to the UEL, particularly in criminal proceedings, consideration should be given to again asking the ALRC to review the need for a legislative response (p. 322).

9.8 Conclusion When interpreting national uniform legislation, the inferior courts and trial judges must defer to appellate courts unless the appellate decision is plainly wrong. This is the main rule of interpretation. Glover (2020) found that ‘pan-Australian uniformity on at least law of national operation has become a mainstream judicial norm. Australian courts have become more dependent on each other as Australia has developed as a nation’ compared to other similar federations, such as Canada and the USA (p. 885). The tribunals and specialist courts have also followed the rule. In cases where the legislation is substantially similar but not national uniform legislation, the inferior courts retain greater ability to make their own determinations. There seems to be some willingness by the courts to follow this principle even in cases where similar but not uniform legislation is considered.

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References Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2021] FCA 363. Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185. Australian Law Reform Commission, NSW Law Reform Commission, & Victorian Law Reform Commission. (2005, December). Uniform evidence law: Report (ALRC Report No. 102; NSWLRC Report No. 112; VLRC Final Report). https://www.alrc.gov.au/wp-­content/ uploads/2019/08/ALRC102.pdf Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. Acquisition of Land Act 1967 (Qld). (n.d.). Bankruptcy Act 1966 (Cth). (n.d.). Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369. Burwood Council v Pan Pac Investments Pty Ltd (No 2) [2019] NSWLEC 29. CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390. Cargill International SA v Peabody Australia Mining Ltd [2010] 78 NSWLR 533. Charter Pacific Corporation Ltd v Belrida Enterprises Pty Ltd [2003] 179 FLR 438. Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29. Darwin Food Pty Ltd v Gray (2018) 131 SASR 460. Civil Liability Act 2002 (Tas). (n.d.). Defamation Act 1974 (NSW). (n.d.). Defamation Act 2005 (NSW). (n.d.). Di Paolo v Salta Constructions Pty Ltd [2015] VSC 31. Duncan as Liquidator of WDR Iron Ore Pty Ltd (in liq) v SMA Industries Pty Ltd [2020] SASC 88. Dupas v R (2012) 40 VR 182. Edmond, G. (2017). Icarus and the evidence act: Section 137, probative value and taking forensic science evidence ‘at its highest’. Melbourne University Law Review, 41(1), 106–154. https:// law.unimelb.edu.au/__data/assets/pdf_file/0011/2494325/04-­Edmond.pdf Enterra Pty Ltd and Others v ADI Ltd (2002) 55 NSWLR 521. Evidence Act 1995 (Cth). (n.d.-a). Evidence Act 1995 (NSW). (n.d.-b). Evidence Act 1929 (SA). (n.d.). Evidence Act 2001 (Tas). (n.d.). Evidence Act 2004 (NT). (n.d.). Evidence Act 2008 (Vic). (n.d.). Evidence Act 2011 (ACT). (n.d.). Evidence (National Uniform Legislation) Act 2011 (NT). (n.d.). Evidence (Records and Documents) Amendment Act 2015 (SA). (n.d.). Fairfax Media Publications Pty Ltd and Others v Bateman and Another [2015] 90 NSWLR 79. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. Furnell v Shahin Enterprises Pty Ltd (2021) 386 ALR 245. Globe Church Inc. v Allianz Australia Insurance Ltd (2019) 99 NSWLR 470. Glover, A. (2020). What’s plainly wrong in Australian law?: An empirical analysis of the rule in ‘Farah’. University of New South Wales Law Journal, 43(3), 850–892. Gye and Another v Davies (1995) 37 NSWLR 421. Hemming, A. (2017). Adoption of the uniform evidence legislation: So far and no further? In A.  Roberts & J.  Gans (Eds.), Critical perspectives on the uniform evidence law (pp.  34). Federation Press. Hili v R (2010) 242 CLR 520. IMM v R (2016) 257 CLR 300. KMJ v Tasmania (2011) 20 Tas R 425. Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245.

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159

Lancaster, R. (2016). IMM v the Queen: A response from Richard Lancaster SC. Bar News, Winter, 40–43. https://nswbar.asn.au/docs/webdocs/BN01_2016_probative.pdf Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Leeming, M. (2015). Farah and its progeny: Comity among intermediate appellate courts. The Judicial Review, 12, 166–186. https://nswca.judcom.nsw.gov.au/wp-­content/uploads/2017/04/ leeming20150319.pdf Mango Boulevard Pty Ltd v Mio Art Pty Ltd [2018] 1 Qd R 245. Marshall v Director-General, Department of Transport (2001) 205 CLR 603. Minister for Industrial Affairs v Civil Tech Pty Ltd (1997) 69 SASR 348. New South Wales Crime Commission v Pettit [2021] NSWSC 980. Odgers, S. (2017). Uniform evidence law at 21. Current Issues in Criminal Justice, 28(3), 311–328. https://doi.org/10.1080/10345329.2017.12036077 Proud v Brims Distributors Pty Ltd [1996] NSWCA 439. Pyramid Building Society (in liq) v Terry (1997) 148 ALR 174. Queensland Law Reform Commission. (2005, September). A review of the uniform evidence acts (Report No. 60). https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0003/372531/r60.pdf Re Linc Energy Ltd (in liq) [2017] 2 Qd R 720. R v Pham (2015) 256 CLR 550. R v XY (2013) 84 NSWLR 363. S. Kidman and Co v Lowndes CM and the Director of Public Prosecutions (2016) 305 FLR 327. South Australian Law Reform Institute. (2012, October). Modernisation of South Australian evidence law to deal with new technologies. https://law.adelaide.edu.au/system/files/media/ documents/2019-­01/final-­report-­1-­evidence-­and-­modern-­technologies.pdf South Australia, Parliamentary Debate, Legislative Assembly, 2015, November 17, 2060 (A. L. McLachlan). South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113. State Bank of New South Wales Ltd v FCT (1995) 132 ALR 653. Steen v Senton [2015] 11 ACTLR 95. Telstra Corporation Ltd v CXA Communications Ltd [1998] VSC 72. Trade Practices Act 1974 (Cth) (repealed). (n.d.). Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259. Wing v The Australian Broadcasting Corporation [2018] FCA 1340. Zhao v Ausin Group (Australia) Pty Ltd [2020] FCA 1659.

Chapter 10

Conclusion – Future National Reforms in the Age of Artificial Intelligence, Pandemics and New Federalism

Abstract  Although national uniform legislation is not a universal remedy for all the legal challenges the Australian federation encounters, this book took a step towards better understanding achievement of national response in crises and for long-term substantial reforms. The inherent complexity surrounding national uniform legislation required a conceptual simplification to guide research, enable communication among scholars and practitioners and develop effective decision-making strategies. This book simplified and gave meaning to general principles and the underlying theory of national uniform legislation. The developed models may serve as a practical evaluation tool for law reformers, policymakers and legislative drafters. The unique insights derived from this research will assist in achieving national reforms in a more effective, efficient and transparent manner, in cases where such uniformity is required. Generating political and legal consensus is particularly important in Australian federation that has been changed by recent events with the tensions between the level of governments revealed in a new light. The bushfires of 2020, later COVID-19 pandemic, international confrontations and the urgent need for economic recovery has had a profound effect on the way Australian intergovernmental relations operate, which will be evaluated for decades to come. The federation had to take many unprecedented actions with a significant reform of intergovernmental architecture amidst the crises with a high number of National Cabinet meetings. What will this mean for future coordination and future of Australian federation?

10.1 Introduction The events of 2020 have increased uncertainty regarding the future development of federalism and national reforms in Australia and worldwide (Chattopadhyay et al., 2022). At the time of this uncertainty, as well as times that are less turmoil, national reforms allow federal countries to respond to challenges in a unified manner or serve as laboratories of new policies. This researched focused on the ways the

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2_10

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national consensus can be achieved and sustained through national uniform legislation. The inherent complexity surrounding national uniform legislation required a conceptual simplification to guide research, enable communication among scholars and practitioners and develop effective decision-making strategies. Diverse terminology and asymmetrical knowledge can lead to a distorted understanding and, consequently, the failure of important national reforms. There is a further need to build a common understanding and create opportunities to overcome knowledge deficiencies and institutional silos. This book linked four main paths for achieving national uniform legislation with public policy theories and federalist theory and drew lessons for professionals working in the field. The book simplified and gave meaning to general principles and the underlying theory of national uniform legislation. The unique insights derived from this research will help achieve national reforms in a more effective, efficient and transparent manner when such uniformity is required for each group of professionals involved in developing, drafting and interpreting national uniform legislation.

10.2 The Future – Covid, Intergovernmental Reforms and Technology Predictions in the field of harmonisation have always been difficult; however, following the COVID-19 pandemic, more uncertainty has emerged. Much like other federations, Australia encountered a myriad of emerging policy challenges that required a national rather than state-based approach. These challenges ranged from domestic violence related to the pandemic to national security issues, such as counterterrorism and cybersecurity cooperation from the threats. Initially, the Australian federation has handled the pandemic relatively well (Saunders, 2020; Williams, 2020) and has been commended ‘for the unusually cooperative manner in which it functioned’ (Fenna, 2021, p. 17). There were, however, some serious controversial challenges that involved the frictions in the intergovernmental cooperation; some of these challenges included contentious cases of border closures within Australia, operation of quarantine hotels, mismanagement of pandemic in some aged care facilities and high-profile Novak Djokovic’s 2022 Australian Open debacle involving policy issues of the state and country border control. Other – less contentious but still serious – challenges included frictions between governments in terms of supplies of vaccines and tests. The serious crises, such as pandemic, raise questions about the capacity of the government system and the value of federalism in its core. Overall, ‘in spite of occasional significant policy failures and administrative errors, the Australian response was remarkably effective in controlling the spread of the virus, suggesting the capacity of the Australian federal system to respond to a global crisis in a manner which is both centrally coordinated and regionally differentiated.’ (Aroney & Boyce, 2021, p. 314).

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The architecture of institutions for national uniform legislation is undergoing significant changes, including the reform involving the National Cabinet and innovative steps taken by the ALRC. The COVID-19 pandemic has had profound effects on how intergovernmental cooperation operates in the Australian federation that will be evaluated for decades. In May 2020, COAG was abandoned in favour of the National Cabinet. The bushfires and COVID-19 crises have dramatically demonstrated that coordination is vital for the Australian federation. The creation of the National Cabinet has addressed some of the criticisms of COAG and reformed the work of ministerial councils. The Review of COAG Councils and Ministerial Forums recognised that ‘Australia’s federal structure, built upon financial, legislative and policy responsibilities, requires intelligent cooperation on issues of strategic national significance’ (Conran, 2020, p. 3). A new structure of federal cooperation includes the NFRC and National Cabinet supported by the Council on Federal Financial Relations and the National Cabinet Reform Committees (consisting of committees in six priority areas: rural and regional, skills, infrastructure and transport, population and migration, energy and health) assisted by expert advisory groups. In contrast with its predecessor, COAG, the National Cabinet meets monthly (DPMC, 2020). While the National Cabinet and its architecture were reformed due to pandemic, the full consequences of both pandemic and prompt reforms are yet to transpire as ‘even when a vaccine is widely distributed globally, the economic and political aftershocks will be felt for years’ (Office of the US Director of National Intelligence, 2021, Foreword). The intergovernmental bodies are encouraged to replicate the National Cabinet’s best practice ‘guidance for meetings—both strategically and administratively’ (DPMC, 2020). Some councils have reformed into meetings and have fewer priorities for national reforms. For instance, the three main priorities for the Meeting of Attorneys-General in 2022, formerly the Council of Attorneys-General, include the three areas for national reforms: (1) Enduring Powers of Attorney; (2) Model defamation provisions; and (3) Access scheme for digital records after death or incapacity. (Commonwealth Attorney General’s Department, n.d.). It is unclear how these changes will affect future coordination and cooperation efforts in the Australian federation. There is a reality of differing state and territories’ fiscal and medical capacities that impact the success of their COVID-19 responses with a varying level of involvement from the Commonwealth. The system may be more efficient for delivering national responses, or more reforms may be required in the future.The ALRC (2019) (which usually relies on references for reforms from the Australian Government) has, for the first time, announced planned national reforms in The Future of Law Reform: A Suggested Program of Work 2020–25. The report lists the following priorities for national reforms: automated administrative decision-­ making, principle-based regulations for financial services, defamation legislation, press freedom and public sector whistleblowers and legal structures for social enterprises. Throughout the COVID-19 pandemic, the ALRC has continued to develop links with universities and academics to work on these specific priorities. Thus, it seems that although these priorities might be affected, they will not be halted by the pandemic altogether.

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Technology developments will continue to affect regulations and national reforms (Boughey & Miller, 2021). AI is emerging as both threat and opportunity. In this context, the threats are increasing and response to these threats has to be developed, often through legislation and cooperation. The complexity of both threats and legislation is also growing: ‘the complexity of the threats, their intersections, and the potential for cascading events in an increasingly interconnected and mobile world create new challenges’ (Office of the US Director of National Intelligence, 2021, Foreword). Laws regarding the protection of data have been elevated to the ‘national security concern’ level in the USA (USA Department of Homeland Security, 2017), and similar developments are occurring in Australia (Turnbull, 2017) with the implementation of the cyber security strategy (Australian Government, 2016). Legislation is being amended to protect Australia’s infrastructure and information. In October 2017, the Commonwealth Attorney-General released the Security of Critical Infrastructure Act 2018 (Cth) (n.d.), establishing a non-public register for the interest and control of information and operational information about critical infrastructure assets. When the complexity of a phenomenon ‘outruns [the] brain’s capacity’, advanced technology, including AI, can aid the process of analysing legislation. There is the potential to use AI ethically for harmonising legislation, such as with the Lexis Nexis similar provisions and natural language processing functions and development of ‘machine-consumable’ legislation (Hill, 2021). There is also the potential to further develop thorough rules as code laws. There is a high probability that with the new blockchain technology, there will soon be developments in sustainable uniformity addressing the regulations of affected practices. Future directions in the development of national uniform legislation are likely to reflect the trends in technological developments. Indeed, the deployment of AI is imminent, and, as Rodríguez-Doncel et al. (2016) recently observed, ‘linked data is gaining momentum’ (p. 800). This trend of linked registers is likely to transform national uniform legislation. How interconnected electronic registers and cybersecurity will affect legislation, including national uniform legislation, will be an ongoing challenge for the next generation of legal scholars: ‘Currently, substantial gaps persist with respect to cohesive, contemporary linked data sources supporting quality use of medicines, effectiveness and safety research; exemplified by Australia’s limited capacity to contribute to the global effort in real-world studies of vaccine and disease-modifying treatments for COVID-19.’ (Pearson et  al., 2021, p.13345). What is required now by industry is the robust, real-world linked registers that are synchronised and updated as the events are developing and more evidence transpires. Within the context of this book, rapid technological changes in electronic information exchange can serve as ‘focusing events’, increasing the levels of uniformity for the regulation of interlinked registers. However, not all of the technological developments will be assisting policy officers and legislative drafters, as observed in the US, ‘while democratisation of technology can be beneficial, it can also be economically, militarily, and socially destabilizing’ (Office of the US Director of National Intelligence, 2021, p. 20).

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After substantial international pressure, Australia has now committed to zero emissions by 2050 (Hunter et al., 2021). The policy and initiative that is yet to be supported by legislation. Additionally, the threats and opportunities intertwine adding to further complications. By pushing the increased number of interactions online, Covid-19 accelerated the use of digital technologies adding to social dependence on technology and to growth of ‘echo chambers’ that polarise society even further (Hammond-Errey, 2022). When the natural disasters occurred during pandemic and lockdowns, population was facing conflicting messages: COVID isolation and social distancing policies and the urges to evacuate immediately (Simonovic et al., 2021). Policies for national uniform legislation of tomorrow have to be able to foresee and regulate this complex environment. Therefore, better understanding of the processes behind development and drafting of national uniform legislation became even more significant as technology, pandemic and intergovernmental reforms are changing the landscape and settled dynamics of interaction between the levels of government.

10.3 Beyond the Model – Catalysts for Future Harmonisation This book has used multiple lenses to evaluate the findings of the empirical study. What do these lenses mean in terms of policy implications for the future? How can we predict the potential of harmonisation using this model? The relevant frameworks identified by this research include iterative development, the multiple streams framework and the advocacy coalitions framework. The interpretations of all frameworks are united because certain factors can become catalysts to assist uniformity. For additional discussion of catalysts, see (Hill, 2020). Figure 10.1 shows that uniformity can be achieved through a new wave of harmonisation (if consistent with iterative developments), a focusing event (if considered through the multiple streams framework), an external or internal shock (if considered through the advocacy coalition framework) or a decision by policymakers for a pragmatic solution. These can be achieved through agreements consistent with cooperative federalism with some pragmatic tendencies. The catalysts that ‘grease the wheels of policy change’ can be divided into three groups: external and internal events, policy learning and cooperation and negotiations (Weible et al., 2012, pp. 7–8). External events can include sudden and unexpected events, such as the COVID-19 pandemic or terrorist attacks in London, or expected events, such as international treaties. In several cases (e.g., UNCITRAL), harmonisation within the Australian federation has been aided by international harmonisation. International harmonisation is not a sudden shock like, for instance, a terrorist attack. International harmonisation can be considered an external shock when examined through the lens of the advocacy coalition framework. Conversely, a multiple streams framework requires a focusing event. An international treaty

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Catalysts

National Uniform Legislation

Decades Through Iterative Cyclic Development

Elevation to Uniformity Multiple Streams Framework

Shortcut Due to Pragmatic Solutions

Unsustainable Uniformity Due to Advocacy Coalitions

Fig. 10.1  Catalysts for change and the four paths to uniformity. The model was first published in Hill (2020) – copyright permission granted. (Constructed by author)

could be a focusing event; however, for the legislation studied, internal focusing events, such as election promises, have had more immediate effects than international harmonisation because international treaties generally take years, even decades, to develop. Focusing events, as understood within this framework, cause a sudden shock. According to the advocacy coalition framework, coalitions learn based on the external shocks that change their beliefs. When this happens, an international treaty can actively create the conditions for sustainable uniformity. The extended time required to sign a treaty can allow a smoother for changing beliefs. For the iterative development framework, international harmonisation can be a catalyst for a new cycle of harmonisation, which may occur, for example, with a

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structural change. This happened in the case of trade measurement legislation. However, a new cycle can also occur without an accompanying structural change, for example, in the electronic transactions set of uniform Acts. In both cases, international harmonisation was conducive to higher levels of sustainable uniformity. The effects of the second group of factors—policy learning—are more subjective. A public policy tourism states that information and evidence do not simply translate into policy change. For example, the empirical study conducted for this book did not identify policy learning as a catalyst for change. While policymakers must be involved in policy learning to either achieve sustainable uniformity or resist harmonisation, research demonstrates that evidence must accumulate ‘like sedimentation over long periods of time’ (Weible et al., 2012, p. 8) to sufficiently drive policy changes. This could lead to the conclusion that policy learning is important for iterative developments because jurisdictions accumulate evidence and change their beliefs about policies, forming the impetus for a new round of harmonisation. However, there is also the potential for overcompensating with policy changes after discounting the incoming stimuli (Weible et al., 2012, p. 8). This overcompensation could lead to radical changes consistent with the multiple streams framework to propel policies towards sustainable uniformity. However, advocacy coalitions can also use policy learning to reinforce their cognitive and behavioural aspects and resist harmonisation. Due to the tendency to select, interpret and even distort information, learning could be a process of reinforcement rather than change.The third group of catalysts, negotiation and cooperation, are important to the federation and all frameworks. However, their importance becomes paramount in cases of pragmatic federalism solutions. Shared jurisdiction, the importance of co-operation, the delineation of sovereignty and the framing of these notions are significant considerations in these cases (see Chap. 7). When issues become contested or blurred, jurisdictions can respond with inaction or pragmatic solutions. Figure 10.1 depicts the effects of the catalysts on the four paths to uniformity. Some catalysts, such as events, policy learning and negotiations can lead to uniformity. However, this influence is equivocal. It is unclear when and how a particular catalyst can provide sufficient propulsion to create opportunities, overcome inertia and produce uniformity. It is clear that when viewed through a particular public policy framework and federalist theory, different catalysts can be deployed to initiate policy changes when sustainable uniformity is required. For example, learning is important for iterative development policies, but it must be developed over long periods to accumulate sufficient energy for policy changes. In the multiple streams framework, events have a higher potential to influence policy changes. Advocacy coalitions can use events and policy learning to resist achieving uniformity. Negotiations, as a catalyst, are paramount to pragmatic federalism solutions to reach decisions that lead to sustainable uniformity. This demonstration of catalysts is one of examples how implications can be drawn from this book to the practical results of achieving harmonisation in Australian federation.

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10.4 Conclusions This is the first book to consider national uniform legislation as a body of law. With the increasing volume and complexity of national uniform legislation, law reform agencies, the federal, state and territory governments and policy institutions have more, not less, work to do. Policymakers, law reformers and legislative drafters must navigate a maze of ever-increasing complex issues and uncertain conditions involving a wide range of stakeholders while maintaining a tight focus to build momentum for uniformity in federal country. They must also respond to the demands of a multifaceted debate among parties from divergent ideological backgrounds with diverse and sometimes irreconcilable differences between their values and perspectives with the recent examples of these debates including groups strongly supporting or opposing mandatory vaccines and border closures. The links, definitions and models developed by this book give meaning to past and current events with the purpose to enable transparent, evidence-based decisions for a federation’s harmonisation to progress regulatory best practices and achieve more reliable and sustainable results. With growing complexities in government and fragmented communities of people, simplification is required. This book is the step in this direction. It has comprehensively transformed a vast amount of complex data (derived from close to hundred sets of national uniform Acts) into clearer models for policymakers, reformers and legislative drafters. The book’s unique implications will be relevant to a wide legal audience connected to developing national uniform legislation.Although national uniform legislation is not a panacea for all the legal challenges the Australian federation encounters, national uniform legislation is the product of the national conciseness, national consensus and, at times, compromise. This national consensus is becoming more and more difficult to predict and secure in a polarised environment. Importantly, this book took a step towards a more effective and efficient national response when one is sought by examining the general principles, underlying theories, patterns, trends and seeking some order for what has long been depicted as ‘the art of the impossible’. COVID pandemic necessitated unprecedented levels of intergovernmental interaction and coordination between all levels of government while exposing the tensions that existed since the foundation of federation. These intergovernmental frictions were scrutinised by media and further politicised by social media. Will these federal tensions lead to the future with more planned national reforms, more opportunistic national reforms, more pragmatic national reforms or increased stalling of any national initiatives?

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Turnbull, M. (2017, June 13). National security statement (Transcript ID No. 41012). Department of the Prime Minister and Cabinet. Retrieved 2019, February 19, from https://pmtranscripts. pmc.gov.au/release/transcript-­41012 United States of America Department of Homeland Security. (2017, June 20). The Department of Homeland Security has a vital mission: To secure the nation from combating cybercrime. Retrieved 2019, February 19, from https://www.dhs.gov/cybersecurity-­overview Weible, C. M., Heikkila, T., deLeon, P., & Sabatier, P. A. (2012). Understanding and influencing the policy process. Policy Sciences, 45(1), 1–21. https://www.jstor.org/stable/41487060 Williams, G. (2020, May 11). Co-operation key to the United States of Australia. The Australian.

Annexure – List of Acts

Sets of Acts (both uniform legislation and not, see Chap. 2)a Legislation Acts interpretation Act Interpretation Act 1901 (Cth); Legislation Act 2001 (ACT); Interpretation Act 1987 (NSW); Interpretation Act 1978 (NT); Act Interpretation Act 1954 (Qld); Acts Interpretation Act 1915 (SA); Act Interpretation Act 1931 (Tas); Interpretation of Legislation Act 1984 (Vic); Interpretation Act 1984 (WA). Agvet Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (Code set out in Schedule) and Regulations; Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW); Agricultural and Veterinary Chemicals (Northern Territory) Act 1994 (NT); Agricultural and Veterinary Chemicals (Queensland) Act 1994 (Qld); Agricultural and Veterinary Chemicals (South Australia) Act 1994 (SA); Agricultural and Veterinary Chemicals (Tasmania) Act 1994 (Tas); Agricultural and Veterinary Chemicals (Victoria) Act 1994 (Vic); Agricultural and Veterinary Chemicals (Western Australia) Act 1995 (WA). Air navigation Air Navigation Act 1920 (Cth); Air Navigation Act 1938 (NSW); Air Navigation Act 1937 (Qld); Air Navigation Act 1937 (SA); Air Navigation Act 1937 (Tas); Air Navigation Act 1937 (WA). Australia Acts Australia Act 1986 (Cth); Australia Acts (Request) Act 1985 (NSW); Australia Acts (Request) Act 1985 (Qld); Australia Acts (Request) Act 1985 (SA); Australia Acts (Request) Act 1985 (Tas); Australia Acts (Request) Act 1985 (Vic); Australia Acts (Request) Act 1985 (WA). Australian Crime Australian Crime Commission Act 2002 (Cth); Australian Crime Commission Commission (ACT) Act 2003 (ACT); Australian Crime Commission (New South Wales) Act 2003 (NSW); Australian Crime Commission (Northern Territory) Act 2005 (NT); Australian Crime Commission (Queensland) Act 2003 (Qld); Australian Crime Commission (South Australia) Act 2004 (SA); Australian Crime Commission (Tasmania) Act 2004 (Tas); Australian Crime Commission (State Provisions) Act 2003 (Vic); Australian Crime Commission (Western Australia) Act 2004 (WA). (continued) © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 G. Hill, National Uniform Legislation, https://doi.org/10.1007/978-981-19-3292-2

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172

Annexure – List of Acts

Sets of Acts (both uniform legislation and not, see Chap. 2)a Legislation Business Business Names Act 1963 (ACT); Business Names Act 2002 (NSW); names – mirror Business Names Act 2007 (NT); Business Names Act 1962 (Qld); Business Names Act 1996 (SA); Business Names Act 1962 (Tas); Business Names Act 1962 (Vic); Business Names Act 1962 (WA). Business Business Names Registration (Transition to Commonwealth) Act 2012 names – referred (ACT); Business Names (Commonwealth Powers) Act 2011 (NSW); Business Names (National Uniform Legislation) Request Act 2011 (NT); Business Names (Commonwealth Powers) Act 2011 (Qld); Business Names (Commonwealth Powers) Act 2012 (SA); Business Names (Commonwealth Powers) Act 2011 (Tas); Business Names (Commonwealth Powers) Act 2011 (Vic); Business Names (Common- wealth Powers) Act 2012 (WA). Child sex offender Crimes (Child Sex Offenders) Act 2005 (ACT); Child Protection (Offenders Prohibition Orders) Act 2004 (NSW); Child Protection (Offenders orders and Registration) Act 2000 (NSW); Child Protection (Offenders Reporting and registration Registration) Act 2004 (NT); Child Protection (Offender Prohibition Order) Act 2008 (Qld); Child Protection (Offender Reporting) Act 2004 (Qld); Child Sex Offenders Registration Act 2006 (SA); Community Protection (Offender Reporting) Act 2005 (Tas); Sex Offenders Registration Act 2004 (Vic); Community Protection (Offender Reporting) Act 2004 (WA). Commercial Commercial Arbitration Act 1986 (ACT); Commercial Arbitration Act 1984 arbitration (NSW); Commercial Arbitration Act 1985 (NT); Commercial Arbitration Act 1990 (Qld); Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA); Commercial Arbitration Act 1986 (Tas); Commercial Arbitration Act 1984 (Vic); Commercial Arbitration Act 1985 (WA). Companies Companies Act 1874 (NSW); Companies Act 1863 (Qld); Companies Act acts – 1860s 1864 (SA); Companies Act 1869 (Tas); Companies Act 1864 (Vic). Companies Companies Ordinance 1962 (ACT); Companies Ordinance 1963 (NT); acts – 1960s Companies Act 1961 (NSW); Companies Ordinance 1963 (NT); Companies Act 1961 (Qld); Companies Act 1962 (SA); Companies Act 1962 (Tas); Companies Act 1961 (Vic); Companies Act 1961 (WA). Conveyancing Conveyancing Act 1919 (NSW); Sale of Land Act 1962 (Vic); Civil Law (Sale of Residential Property) Act 2003 (ACT); Land Titles Act 1994 (Qld); Land Title Act 2000 (NT); Real Property Act 1886 (SA); Land Titles Act 1980 (Tas); Transfer of Land Act 1893 (WA). Corporations Corporations (Commonwealth Powers) Act 2001 (NSW); Corporations (Northern Territory Request) Act 2001 (NT); Corporations (Commonwealth Powers) Act 2001 (Qld); Corporations (Commonwealth Powers) Act 2001 (SA); Corporations (Commonwealth Powers) Act 2001 (Tas); Corporations (Commonwealth Powers) Act 2001 (Vic); Corporations (Commonwealth Powers) Act 2001 (WA). (continued)

Annexure – List of Acts

173

Sets of Acts (both uniform legislation and not, see Chap. 2)a Legislation Counter-terrorism Terrorism (Commonwealth Powers) Act 2002 (NSW); Terrorism (Northern Territory) Request Act 2003 (NT); Terrorism (Commonwealth Powers) Act 2002 (Qld); Terrorism (Commonwealth Powers) Act 2002 (SA); Terrorism (Commonwealth Powers) Act 2002 (Tas); Terrorism (Commonwealth Powers) Act 2003 (Vic); Terrorism (Commonwealth Powers) Act 2002 (WA). Cross-vesting Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth); Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT); Jurisdiction of Courts (Cross-­ vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act 1987 (NT); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Cross-­ vesting) Act 1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic); Jurisdiction of Courts (Cross- vesting) Act 1987 (WA). Defamation Defamation Act 2005 (NSW); Defamation Act 2006 (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA). Electronic Electronic Transactions Act 1999 (Cth); Electronic Transactions Act 2001 transactions (ACT); Electronic Transactions Act 2000 (NSW); Electronic Transactions (Northern Territory) Act 2000 (NT); Electronic Transactions (Queensland) Act 2001 (Qld); Electronic Transactions Act 2000 (SA); Electronic Transactions Act 2000 (Tas); Electronic Transactions (Victoria) Act 2000 (Vic); Electronic Transactions Act 2003 (WA). Evidence Evidence Act 1995 (Cth), Evidence Act 2011 (ACT); Evidence Act 2004 (NI); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic). Fair work Fair Work Act 2009 (Cth); Industrial Relations (Commonwealth Powers) Act 2009 (NSW); Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld); Fair Work (Commonwealth Powers) Act 2009 (SA); Industrial Relations (Commonwealth Powers) Act 2009 (Tas); Fair Work (Commonwealth Powers) Act 2009 (Vic). Federal courts Federal Courts (State Jurisdiction) Act 1999 (NSW); Federal Courts (State Jurisdiction) Act 1999 (Qld); Federal Courts (State Jurisdiction) Act 1999 (SA); Federal Courts (State Jurisdiction) Act 1999 (Tas); Federal Courts (State Jurisdiction) Act 1999 (Vic); Federal Courts (State Jurisdiction) Act 1999 (WA). Gene technology Applied: Gene Technology (New South Wales) Act 2003 (NSW); Gene Technology Act (Northern Territory) Act 2004 (NT); Mirror: Gene Technology Act 2003 (ACT); Gene Technology Act 2001 (Qld); Gene Technology Act 2001 (SA); Gene Technology Act 2001 (Tas); Gene Technology Act 2001 (Vic); Gene Technology Act 2006 (WA). Human rights Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld); Charter of Human Rights and Responsibilities 2006 (Vic). Human tissue See, Transplantation and Anatomy Act 1978 (ACT); Human Tissue Act 1983 (NSW); Human Tissue Transplant Act 1979 (NT); Transplantation and Anatomy Act 1979 (Qld); Transplantation and Anatomy Act 1983 (SA); Human Tissue Act 1985 (Tas); Human Tissue Act 1982 (Vic); Human Tissue and Transplant Act 1982 (WA). (continued)

174

Annexure – List of Acts

Sets of Acts (both uniform legislation and not, see Chap. 2)a Legislation International International Arbitration Act 1974 (Cth); Commercial Arbitration Act 2010 arbitration (NSW); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial Arbitration Act 2013 (Qld); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2011 (Tas); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration Act 2012 (WA). International Transfer of Prisoners Act 1997 (Cth); Crimes (Sentence International Administration) Act 2005 (ACT) (part 11.2); International Transfer of transfer of Prisoners (New South Wales) Act 1997 (NSW); International Transfer of prisoners Prisoners (Northern Territory) Act 2000 (NT); Prisoners International Transfer (Queensland) Act 1997 (Qld); International Transfer of Prisoners (South Australia) Act 1998 (SA); International Transfer of Prisoners (Tasmania) Act 1997 (Tas); International Transfer of Prisoners (Victoria) Act 1998 (Vic); Prisoners (International Transfer) Act 2000 (WA). Land titles Land Titles Act 1925 (ACT); Real Property Act 1900 (NSW); Land Tittle Act 1994 (Qld); Land Tittle Act 2000 (NT); Real Property Act 1886 (SA); Real Property Act 1980 (Tas); Transfer of Land Act 1958 (Vic); Transfer of Land Act 1893 (WA). National consumer Applied: National Consumer Credit Protection Act 2009 (Cth); referred credit protection through implementation Consumer Credit (National Uniform Legislation) Implementation Act 2010 (NT); Referred: Credit (Commonwealth Powers) Act 2010 (NSW); Credit (Commonwealth Powers) Act 2010 (Qld); Credit (Commonwealth Powers) Act 2010 (SA); Credit (Commonwealth Powers) Act 2009 (Tas); Credit (Commonwealth Powers) Act 2010 (Vic); Credit (Commonwealth Powers) Act 2010 (WA). National electricity Electricity (National Scheme) Act 1997 (ACT); National Electricity (New South Wales) Act 1997 (NSW); Electricity-National Scheme (Queensland) Act 1997 (Qld); National Electricity (South Australia) Act 1996 (SA); Electricity – National Scheme (Tasmania) Act 1999 (Tas); National Electricity (Victoria) Act 2005 (Vic). National energy National Energy Retail Law (ACT) Act 2012 (ACT); National Energy Retail Law (Adoption) Act 2012 (NSW); National Energy Retail Law (South Australia) Act 2011 (SA); National Energy Retail Law (Tasmania) Act 2012 (Tas). National Environment Protection Council 1994 (ACT); National National Environment Protection Council (New South Wales) Act 1995 (NSW); environment protection council National Environment Protection Council (North- ern Territory) Act 1994 (NT); National Environment Protection Council (Queensland) Act 1994 (Qld); National Environment Protection Council (South Australia) Act 1995 (SA); National Environment Protection Council (Tasmania) Act 1995 (Tas); National Environment Protection Council (Victoria) Act 1995 (Vic); National Environment Protection Council (Western Australia) Act 1996 (WA). National gas National Gas (ACT) Act 2008 (ACT); National Gas (New South Wales) Act 2008 (NSW); National Gas (Northern Territory) Act 2008 (NT); National Gas (Queensland) Act 2008 (Qld); National Gas (South Australia) Act 2008 (SA); National Gas (Tasmania) Act 2008 (Tas); National Gas (Victoria) Act 2008 (Vic); National Gas Access (WA) Act 2009 (WA). (continued)

Annexure – List of Acts Sets of Acts (both uniform legislation and not, see Chap. 2)a Occupational licensing (discontinued)

Partnership

Personal property securities

Real property

Retail leases

Road transport

Sale of goods

Standard time

Status of children

175

Legislation Occupational Licensing (Adoption of National Law) Act 2010 (NSW); Occupational Licensing National Law (Queensland) Act 2010 (Qld); Occupational Licensing National Law (South Australia) Act 2011 (SA); Occupational Licensing National Law Act 2011 (Tas); Occupational Licensing National Law Act 2010 (Vic). Partnership Act 1963 (ACT); Partnership Act 1892 (NSW); Partnership Act 1997 (NT); Partnership Act 1891 (Qld); Partnership Act 1891(SA); Partnership Act 1891 (Tas); Partnership Act 1958 (Vic); Partnership Act 1895 (WA). Personal Property Securities (Commonwealth Powers) Act 2009 (NSW); Personal Property Securities (National Uniform Legislation) Implementation Act 2010 (NT); Personal Property Securities (Commonwealth Powers) Act 2009 (Qld); Personal Property Securities (Commonwealth Powers) Act 2009 (SA); Personal Property Securities (Commonwealth Powers) Act 2010 (Tas); Personal Property Securities (Commonwealth Powers) Act 2009 (Vic); Personal Property Securities (Commonwealth Laws) Act 2011 (WA). Real Property Act 1900 (NSW); Property Law Act 1958 (Vic); Civil Law (Property) Act 2006 (ACT); Property Law Act 1974 (Qld); Law of Property Act 2000 (NT); Law of Property Act 1936 (SA); Conveyancing and Law of Property Act 1884 (Tas); Property Law Act 1969 (WA). Leases (Commercial and Retail) Act 2001 (ACT); Retail Leases Act 1994 (NSW); Business Tenancies (Fair Dealings) Act 2003 (NT); Retail Leases Act 2003 (Vic); Retail Shop Leases Act 1994 (Qld); Retail and Commercial Leases Act 1995 (SA); Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998 (Tas); Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) (cl 6); Road Rules 2008 (NSW) Traffic Regulations1999 (NT) (Schedule 3 – Australian Road Rules); Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld); Road Traffic Act 1961 (SA); Road Rules 2009 (Tas); Road Safety Road Rules 2009 (Vic); Road Traffic Act 1974 (WA). Sale of Goods Act 1954 (ACT); Sale of Goods Act 1923 (NSW); Sale of Goods Act 1972 (NT); Sale of Goods Act 1896 (Qld); Sale of Goods Act 1895 (SA); Sale of Goods Act 1896 (Tas); Sale of Goods Act 1895 (WA). Standard Time and Summer Time Act 1972 (ACT); Standard Time Act 1987 (NSW); Standard Time Act 2005 (NT), Standard Time Act 1894 (Qld), Standard Time Act 2009 (SA), Standard Time Act 1895 (Tas); Supreme Court Act 1986 (Vic) s 43; Standard Time Act 2005 (WA). Parentage Act 2004 (ACT); Status of Children Act 1996 (NSW); Status of Children Act 1978 (NT); Status of Children Act 1978 (Qld) (Part 3); Family Court Act 1997 (WA) (Part 5 Div 11 Subdiv 3); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic); Family Court Act 1997 (WA) (Part 5 Div 11 Subdiv 3). (continued)

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Annexure – List of Acts

Sets of Acts (both uniform legislation and not, see Chap. 2)a Legislation Succession Succession to the Crown Act 2015 (Cth); Succession to the Crown (Crown) request (Request) Act 2013 (NSW); Succession to the Crown (Request) (National Uniform Legislation) Act 2013 (NT); Succession to the Crown Act 2013 (Qld); Succession to the Crown (Request) Act 2014 (SA); Succession to the Crown (Request) Act 2013 (Tas); Succession to the Crown (Request) Act 2013 (Vic); Succession to the Crown Act 2015 (WA). Water efficiency Applied: Water Efficiency Labelling and Standards Act 2005 (Cth); Water Efficiency Label- ling and Standards Act 2005 (ACT); Water Efficiency Labelling and Standards Act 2006 (NT); Mirror: Water Efficiency Labelling and Standards (New South Wales) Act 2005 (NSW); Water Efficiency Labelling and Standards Act 2005 (Qld); Water Efficiency Labelling and Standards Act 2006 (SA); Water-Efficiency Labelling and Standards Act 2005 (Tas); Water Efficiency La- belling and Standards Act 2005 (Vic); Water Efficiency Labelling and Standards Act 2006 (WA). Work health and Work Health and Safety Act 2011 (Cth); Work Health and Safety Act 2011 safety (ACT); Work Health and Safety Act 2011 (NSW); Work Health and Safety (National Uniform Legislation) Act 2011 (NT); Work Health and Safety Act 2011 (Qld); Work Health and Safety Act 2012 (SA); Work Health and Safety Act 2012 (Tas); Work Health and Safety Act 2020 (WA). Not all of these sets of Acts are defined as strictly national uniform legislation, as examines in Chap. 2. In addition to this Annex, please refer to the list of national uniform legislation maintained on the website of the Australasian Parliamentary Counsel’s Committee

a