The legislation cycle
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:
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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);
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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.
Objectives of reviewing legislation - subordinate legislation
In our analysis of the legislation cycle, the review of a law leads to development of policy proposals which, in time, are developed into new law. It should be recognised that there are other reasons for reviewing laws – these are not inconsistent with review as part of the legislation cycle, though they can affect the timing and emphasis of a review.
One important reason is to ensure that subordinate legislation is consistent with the primary legislation under which it is made, and does not infringe important constitutional principles. A publication prepared for USAID in 2008 tabulates administrative law mechanisms and applications as including “Review of general agency rules and regulations” as a mechanism for the limitation of agency discretions. The publication (“Using Administrative Law Tools and Concepts to Strengthen USAID Programming: A Guide for USAID Democracy and Governance Officers”, February 2008, review publication produced by M. Russell-Einhorn and H. Fenton), lists the applications of this mechanism as follows:
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“Is [a] central element of [the] separation of powers
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Permits court review for consistency with statute and intent of legislature
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May be provided by legislature or legislative committee and/or executive review body
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Operates as a restraint on executive branch exercise of arbitrary or unauthorised power.”
A review of this type need not await the implementation of a law, and indeed can be the catalyst for intervention (as discussed above) even before the law comes into opreation.