Tidying our house of law: bringing the Marie Kondo philosophy to the Commonwealth statute book
Nicholas Simoes da Silva and William Isdale
16.02.2022
Last year marked the 120th anniversary of the Commonwealth statute book – an anniversary that offers an opportunity to reflect on the house of law we have built. There is much to be proud of: a house constructed from the timbers of Parliamentary sovereignty, with strong constitutional foundations.
However, since its initial construction, we have increasingly filled our house with statutes. Lawyers are understandably scared of opening the cupboards. Things will fall out, or be near impossible to find. We have stuffed things in every nook and cranny for years, only rarely bothering to clean our house out.
The accretion of over 1,220 principal Acts (containing more than twenty million words) and 24,000 in force legislative instruments (containing millions more), stands as a testament to the increasing complexity of our society and economy, and to the growing demands we have placed upon our government. As Isdale and Ash observed on this blog last year, the voluminous production of statute law is now a ‘central feature of our governance, and shows no signs of slowing’ (see Figure 1 below). However, a more complex society and economy do not justify a house as sprawling and disordered as the one we inhabit today.
In their post last year, Isdale and Ash argued that the current state of our statutory law poses a real threat to the rule of law, particularly its requirement that the law be ‘accessible in its coherence and writing’. That post drew on scholarly work by Crawford and Appleby & Howe, in particular, in arguing that the length and location of statute law (increasingly, in delegated legislation) are of particular concern. It was suggested that a less prescriptive (and more principles-based) approach to legislative drafting may be part of the solution. But that alone will not be enough.
In this post we identify two additional areas that should be a priority in any attempt to tidy up our house of law. In doing so, we draw inspiration from the popular organising consultant, author and TV star, Marie Kondo. First, we suggest that we need to identify and repeal ‘dead law’ – statutory detritus akin to empty pizza boxes. Second, we need to shine light on ‘dark law’ – delegated legislation that currently hides under our metaphorical sofa, but which should be labelled and put in drawers. We conclude by arguing for a more rigorous process of post-legislative review, that works holistically rather than through ad-hoc inquiries, to keep our law in proper order.
Figure 1: Commonwealth Act pages receiving Royal Assent per year to 31 Dec 2020
Dead law
A visitor to our house of law might hope that every word and page of our statutes remain relevant. Surely, they might think, this house would see no space given over to an inoperative or redundant provision. But more often than not they will stumble upon provisions that speak to the 1990s, or the early 2000s, or possibly earlier. We call these provisions ‘dead law’.
A perfect example of dead law is s 78(1) of the Competition Policy Reform Act 1995 (Cth), which provides that for:
the period of 5 years after the commencement of section 59, a government coal-carrying service is not a service for the purposes of Part IIIA of the Principal Act.
It has been more than 21 years since that provision ceased to have practical effect.
Unfortunately, many Commonwealth statutes are full of ‘dead law’. It may not be realistic to remove it all, but the problem is its current volume and extent. For example, in 2004–5, the Board of Taxation published a review of inoperative provisions in income tax legislation. The Board identified over 2,000 pages of redundant law. Having lifted the rug, the Treasury and the ATO stumbled on approximately a further 2,000 pages. In an (unfortunately rare) instance of substantial tidying-up, the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 (Cth) removed 4,100 pages from the Commonwealth statute book.
Emptying long-closed cupboards, and cleaning under the rugs, can bring real benefits, because dead law is a significant contributor to legislative complexity. As the Explanatory Memorandum to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 explained, there is:
a cost associated with retaining inoperative material in the law because, to know that a particular provision is inoperative, at least involves reading it and … that can take some time.
And as Isdale and Ash have observed more generally:
Complexity matters because it makes the law difficult to understand. In turn, this makes it harder for consumers and their advocates to know their rights and be able to exercise them; for practitioners to be able to advise their clients confidently; for regulated entities to know how to comply with the law; and for regulators to enforce the law.
We all bear the costs of our messy house of law, including the expenses incurred as lawyers wade through dead law – resulting in more expensive products and services – and in the taxes we pay to maintain our house, as judges and regulators stumble through the rooms and seek to make sense of what is dead and what is alive.
Unfortunately, determining what is dead law, and what is alive, is no small task. Redundant provisions can appear to remain relevant at first glance. For instance, in its recent report published as part of its Financial Services Inquiry, the Australian Law Reform Commission identified 11 terms that are defined in the Corporations Act 2001 (Cth) but not used, and recommended their repeal. The ALRC also identified a further 15 terms that are defined but used just once. A person seeking to understand the use of these terms in the Act would find them either useless or near useless – but wouldn’t know this unless they undertook a thorough search.
At first glance, it might seem necessary to keep provisions of a transitional nature on the statute book, so as to preserve their effect. However, there are two reasons why maintaining redundant provisions (including many transitional and savings provisions), is not legally necessary:
First, because of the presumption against the retrospective operation of legislation (a component of the principle of legality). This presumption means, for example, that repealing a provision that exempted someone from an obligation does not retrospectively impose that obligation (absent a clear intention to do so). Likewise, the repeal of an Act that granted a right is presumed not to extinguish that right.
Second, because of s 7 of the Acts Interpretation Act 1901 (Cth). This provision effectively codifies and extends the presumption against retrospective legislation as it applies to repealed Acts. Section 7 limits the effect of repealing an Act or provision of an Act in a range of ways, including by providing that repeal does not ‘affect the previous operation of the affected Act or part’ (s 7(2)(b)) (absent the expression of a contrary intention – per s 2(2)). Section 7 is broader than the general presumption because it also provides that any ‘investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended’ (s 7(2)).
However, although it may not be legally necessary, such ‘redundant’ provisions should be retained for so long as their inclusion is useful to a sufficiently large number of users of legislation. A broad-reaching exemption that expires on 1 January should not necessarily be repealed on 2 January, given the high likelihood that people will still need to access the provision to understand their rights and obligations. Nonetheless, the need for such a provision to remain in the statute book generally diminishes quickly thereafter. Such provisions could be subject to automatic sun-setting and removal after a period of say, one year, subject to a view being formed about the utility of their remaining in the statute. Those who continue to need to consult such provisions after this time (in increasingly rare circumstances) can find them in historical versions of the statute published on the Federal Register of Legislation.
In summary, departments, agencies, and Parliament should open the cupboards and lift the rugs, to remove some of the detritus that constitutes ‘dead law’. Doing so would mean that lawyers, judges, policymakers, and litigants are less likely to trip over the remnants of long-dead legislative initiatives.
Dark law
Dark law presents a very different problem to dead law. Despite its near invisibility, dark law is very much alive. By ‘dark law’ we mean the mass of delegated legislation that modifies primary legislation by way of legislative instrument (sometimes called ‘notional amendments’, although the changes made are anything but ‘notional’). The proliferation (and scattering) of such instruments throughout our legislative house has rendered the law deeply inaccessible, and requires readers to search high (above cupboards) and low (under beds). As Appleby and Howe have observed, ‘[t]he existence of a number of delegated instruments makes it difficult for individuals to even locate the law’.
A disturbing aspect of ‘dark law’ is that, unlike ordinary textual amendments – which appear in compilations published on the Federal Register of Legislation – notional amendments do not appear in the text of the legislation they amend (ie, they are not reflected in legislative compilations, despite their amending effect). As Isdale and Ash observed, ‘[t]here is no publicly available version of the law that annotates the existence of these instruments, let alone compiles their import to reveal the law as modified.’ They nonetheless have the same legal effect as a textual amendment.
This is no small problem. Data published by the Australian Law Reform Commission in November 2021 shows that, as at 1 July 2021, 359 instruments and Acts have been registered as modifying another Act without textually amending it (including instruments no longer in force). The use of notional amendments also appears to have gained popularity since COVID-19, perhaps because of the perceived need for urgent changes to the law (although such a rationale does not account for the vast majority of dark law). For example, important amendments to the Social Security Act 1991 (Cth) (to provide for the payment of benefits following the COVID-19 pandemic), were implemented through notional amendments. Similarly, exemptions from waiting periods for Austudy and Jobseeker payments were implemented through notional amendments in instruments such as the Social Security (Coronavirus Economic Response—2020 Measures No. 16) Determination 2020. But a person reading these principal Acts (including citizens, regulators, and judges) would have no idea that subsections had been omitted or replaced, or that entirely new provisions had been added, thereby affecting the circumstances in which a person may be entitled to a payment. Some commercial publishers or government departments provide annotated versions of the law, but these often simply note the existence of amending instruments (rather than consolidate the law), and are often incomplete.
Notional amendments are hidden in darkness (buried among the 24,000 legislative instruments currently in force – discoverable only by wending your way through several tabs on the Federal Register of Legislation for each Act). Because users of legislation must ‘piece together the rules’ from a variety of sources (as Van Geelen notes), notional amendments are an affront to the rule of law principle that: ‘[t]he law must be accessible and so far as possible intelligible, clear and predictable’ (as Lord Bingham expressed it).
Dark law is generally made by ministers, departments, or agencies through delegated legislation, via provisions which allow the amendment of an Act by the executive. Accordingly, dark law also raises important questions about parliamentary sovereignty and democratic legitimacy (as previously highlighted by Neudorf on this blog). Although it is generally accepted that Parliament can delegate certain law-making functions to the executive, the current scope of some amendment powers (such as those in the Corporations Act) means that changes can be made by the executive which entirely over-ride or contradict the primary law. Changes made in this way generally also receive less public and Parliamentary scrutiny than they would if made by primary legislation. Although delegated legislation may be scrutinised by Parliamentary committees, it has been observed that much depends on the ‘individual will of parliamentarians to make themselves aware of the potential impact of tabled delegated legislation’.
The power to make amendments to Acts via legislative instrument may be justified on the basis of the flexibility and adaptability they facilitate, but we agree with Sir Jonathan Jones KCB QC that ‘there is a strong case for a kind of reset’. In particular, the exercise of any such powers should be subject to some constraints. For example, Sir Jonathan has suggested that, in the United Kingdom, the making of delegated legislation (in general) should be constrained by:
‘tighter scrutiny of the scope of powers, the purposes for which they are granted, and the parliamentary procedures which apply to their exercise’;
‘clearer protocols for the publication and accessibility of secondary legislation, especially when (exceptionally) it is necessary for instruments to come into force very quickly’; and
‘more systematic consideration of publishing a consolidated amended version of the law when [a legislative instrument] amends previous legislation’, thereby greatly aiding the ‘transparency and comprehensibility of the law’.
In the context of its Financial Services Inquiry, the Australian Law Reform Commission has also suggested that part of the solution may lie in a more principled legislative hierarchy. On the ALRC’s suggested model, an Act could be expressed at a higher level of generality, with exclusions, exemptions, and rules consolidated in thematic legislative instruments that are much more navigable than they are at present (including because they would not involve the making of ‘notional amendments’ to the Act) (see Chapter 10 of the ALRC’s Interim Report A).
In summary, we urgently need to shine a light on dark law. At present, a visitor to our house of law is attempting to find what they need by scouring the basement without a light on, while various instruments are strewn all over the floor and hidden beneath the sofa. It’s time to install some lighting and arrange our legislative instruments in proper shelving.
The need for post-legislative review / conclusion
The Commonwealth statute book has become a sprawling manor house. It has its charms and its beauty. But a house of this age needs constant care, lest lawyers, judges, policymakers, or litigants be crushed beneath a poorly maintained colonnade. As we move beyond 120 years since its establishment, it’s time to consider how we can make the place more liveable.
Both authors of this post work at the Australian Law Reform Commission, which we believe plays a crucial role in maintaining our house of law. But the ALRC are like cleaners that visit briefly every few months. In a house of this size, it’s not enough. In our view, it is time to explore mechanisms that allow for rigorous, and more frequent, post-legislative review. A number of jurisdictions have implemented such mechanisms – a topic explored at length in a recent book published by de Vrieze and Norton.
Post-legislative review is founded on the principle that Parliament’s responsibility for statutes continues beyond their enactment. In other words, Parliament must retain a key supervisory role over legislation which it permits to be amended by the executive – including by ensuring any changes are permissible only within reasonable limits, and that the law remains accessible, coherent and effective.
Post-legislative review shifts the focus back to Parliament, and away from the executive, which historically ‘introduces a bill fully drafted, drawn up by the Office of Parliamentary Counsel acting on instructions from the relevant Government department’ (as de Vrieze notes). As the Law Commission of England and Wales has observed, ‘the huge and increasing amount of legislation enacted every year, much of which does not, due to practical constraints, receive the fullest scrutiny during the legislative process’, is suggestive of a need for greater post-legislative review.
As Figure 1 in this blog post illustrates, the need for constant care and review of the Commonwealth statute book is more urgent than ever, with the annual volume of new law growing rapidly over the past 50 years. Post-legislative review can embed processes that ensure the cupboards are regularly opened and the hallways regularly swept. In doing so, it can contribute to a house of law that is more navigable and accessible, and to laws more likely to achieve the objects that Parliament intended. While our house of law may never ‘spark joy’ (as Marie Kondo might aspire), we can at least make it more inviting for all those who are required to inhabit it.
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Nicholas Simoes da Silva and William Isdale are both Senior Legal Officers at the Australian Law Reform Commission. The views expressed here are their own, and not necessarily those of their employer.
Suggested citation: William Isdale and Nicholas Simoes da Silva, ‘Tidying our house of law: bringing the Marie Kondo philosophy to the Commonwealth statute book’ on AUSPUBLAW (16 February 2022) <https://www.auspublaw.org/blog/2022/02/tidying-our-house-of-law-bringing-the-marie-kondo-philosophy-to-the-commonwealth-statute-book>