Commentary

Legal research – one thing leads to another, to another, to another

Legal research is easy, or difficult, depending on the question asked.  It is increasingly easy if the question is:

“what legislation applies to this issue?”

The research task is difficult, and increasingly complex, if the question is:

“what obligations are imposed by legislation in relation to this issue?”

Finding the legislation

At the top level, an Act of Parliament is a law made by a Parliament (although it often requires activation by the executive government before it comes into effect).

Acts generally deal with issues at a quite conceptual level, setting out policies which the Parliament wishes to have implemented.  For this to occur, it is common for implementing regulations to be made.  The regulations are made “under” the Act, that is, under authority of the Act.  The relationship is often apparent from similarity of names.  There are other forms of subordinate legislation as well, such as court rules – but the difference between regulations and rules is not much more than one of terminology.

These instruments (Acts and regulations) are legislation.  So, in a sense, the task of finding legislation is quite simple.  It has been made simpler in recent years by publication of Acts and regulations on government websites.

Finding out what obligations are imposed by legislation

Often it is not possible to discover what obligations are imposed by legislation by merely reading the legislation.   There are several possible reasons for this, including–

1. administrative discretions: a law might, for example, require members of the public to “comply with a direction” given by a police officer.   If so, the obligations imposed on members of the public depend on what directions have been given by police officers;
2. delegated power to create instruments.  For example, a law might require permit applicants to use an application form provided by a government agency.  If so, obligations imposed by members of the public depend on what questions have been included in the form;
3. referenced documents: an example would be a law requiring that buildings be constructed in compliance with technical standards devised by a building industry technical body.  If so, obligations imposed on members of the public who construct buildings depend on what technical standards have been devised by the industry body;
4. judicial decisions: in common law countries many legal obligations are determined by rules made by the judges, based on earlier court decisions.

Who drafts what, and why, for the Australian Parliament?

The April 2010 issue of Legislation Newsletter (#4), analyses data provided by the Australian Office of Parliamentary Counsel.  In 2008-9 the number of Private Members Bills drafted by OPC reached rock bottom — none were drafted.  The count on Parliamentary amendments was not much higher – 3.2% of the amendments drafted were non-Government amendments.

External intervention

Our model of the legislation cycle shows processes of a government.  The processes involve many interactions between Government agencies such as the sectoral agency (in Indonesia, the instansi) and the Department with responsibility for setting criminal law sanctions.

Sometimes external intervention can occur, often soon after the making of the law (as shown in the following graphic):

Two examples of external intervention are:

• intervention by the courts.  This occurs where a court — typically, but not always, a constitutional court — declares the law to be invalid.  A declaration such as this is made in relation to a law as made, and not in relation to a proposed law. For this reason the intervention necessarily occurs after the law is made (as indicated in the graphic above);

• intervention by another government.  This arises where a national or (in Australia) a state government has power to anul a law made by a local government.

Intervention of this type is inevitably disruptive.  For this reason, local governments generally seek to obtain early intelligence as to the likelihood of intervention during the “test and amend” proposals stage.

Analysis and consulation before laws are made

The law making process at the State level in Victoria has undergone many changes in recent years, and more are in prospect.

The most striking changes relate to the analysis and consultation which is required to occur before a law is made:

• consideration must be given to any human rights implications of the proposal.  Cabinet submissions must contain sufficient information to demonstrate that any human rights implications have been (or will be) identified, assessed and addressed. Almost inevitably, this requires at least internal Government consultation.  The key requirements are set out in the Charter of Human Rights and Responsibilities Act 2006;

• when regulations providing for infringement notices are being prepared there must be consultation with the Department of Justice. This is to be verified by a “certificate of consultation”.  The key requirements are set out in section 6A of the Subordinate Legislation Act 1994;

• a regulatory impact statement must be prepared for a statutory rule (with some exceptions). If this occurs, the Minister must ensure that the proposal is publicised and that public comment is invited. The key requirements are set out in section 11 of the Subordinate Legislation Act 1994.