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We consider the ways in which ‘future proofing’ legislation can encourage greater flexibility in regulation, lower compliance burdens and reduce legal obscurities.

One may be surprised to learn that a person in Western Australia who possesses more than 50kg of potatoes may be contravening Section 22 of the Marketing of Potatoes Act 1946 (WA). That extra mash could come at a cost of between $2,000 and $5,000.1

While Western Australia’s regulation of bulk potato purchases may at first appear bizarre, it becomes more understandable when viewed in its historical context as a means to address post-war food security issues. Indeed, at the height of the COVID-19 pandemic in 2020, it is conceivable that many Australians may have been in favour of a comparable law imposing limits on toilet paper purchases. Undoubtedly, in years to come, should such legislation have been implemented, it would likely attract the same chuckle that follows a reading of the Marketing of Potatoes Act today.

COVID-19 has highlighted law-makers’ ability to swiftly implement legislative changes – in New South Wales alone, 40 legislative changes have occurred in light of the pandemic.2 While our governments should be applauded for their responsiveness in this time of crisis, it may be preferable to ensure (to the greatest extent possible) that legislation itself can be flexible, without the need for regular human intervention.

So, how can legislation be future-proofed, to ensure we are not burdened with dated provisions that bear little relevance to evolving community expectations?

The benefits of future proofing

Complex legislative and regulatory frameworks underpin many aspects of our lives. For governments, tangible costs ensue from inefficient and burdensome regulation. The NSW Treasury’s Report ‘Regulating for NSW’s Future’, which sought to detect ‘unfit-for-purpose’ regulations, estimates that regulatory compliance costs the State between $11 and $87 billion every year – reflecting almost 14% of the State’s Gross Product.2 The Report identified that rapid technological changes exacerbate the already challenging role of regulators, with unanticipated innovation immediately putting regulators on the back foot.2

Similarly, swift societal developments can leave behind legislation that was enacted for a specific, prescribed purpose. This can make a person susceptible to committing an offence without realising or having an intent to act unlawfully. Take for example the fact that a New South Wales driver, who pulls over and allows the vehicle engine to idle, could be fined up to 20 penalty units.3 Or consider that South Australian parents, accompanying their children during Halloween festivities, could face charges for unlawfully ringing doorbells – punishable by a fine of $250.4

Beyond its practical benefits, which can include reduced compliance burdens, cost savings, and greater assurance of legislations’ sustained relevance, future proofing can promote innovation. For Australian businesses, this means an increase in productivity and the ability to implement new technology, without fear of onerous permission-seeking processes or the need to navigate extensive ‘red tape’.

The Federal Government has acknowledged the advantages of embracing flexibility in law-making.5 A commitment to shifting away from reactionary law-making, although not easy, is essential to building greater agility into our legislative frameworks.

How future proofing can be achieved

Future proofing means more than simply replacing references to ‘telegram’ with ‘Instagram’, or ‘cassette’ with ‘iTunes’. In our experience, future proofed legislation typically displays four key attributes:

1. Flexibility in definitional drafting and approach to future scenarios

Legislation that uses current trends as a springboard for forecasting the demands of future legislation is more likely to maintain pace with rapid societal changes. For example, in 2014, the Victorian Parliament passed the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014, introducing a risk management model, which identified various risks to critical infrastructure, including terrorism and climate change. By recognising the inherent unpredictability of such risks, frequent reviews and legislative updates have ensured the Act’s enduring relevance.

2. A technology neutral design

Technology neutrality means legislation refrains from prescribing specific technologies for its implementation. Adopting a technology neutral approach means that technological advancements are embraced, rather than hindered and frequent revisions are avoided, as legislation is capable of application in all technical environments. For example, the Australian Law Reform Commission (ALRC) has considered the merits of a technology neutral Privacy Act 1998 (Cth), to reflect that most information is handled in an electronic form.6 The ALRC’s proposal garnered strong support, with Optus suggesting that a ‘…principles based, technology neutral regime provides a powerful framework on which to base privacy requirements when assessing new and emerging technology.’6

3. Built-in legislative review mechanisms

The Department of the Prime Minister and Cabinet’s Legislation Handbook suggests that in developing new legislation and amending existing legislation, the inclusion of a review mechanism should be considered. Such a provision could mandate a regular review cycle and specify the matters for examination.7 For example, section 65 of the Future Drought Fund Act 2019 (Cth) says the responsible Ministers must cause a review of the Act’s operation before its tenth anniversary.

4. A focus on outcomes

Outcomes-focused legislation replaces prescriptive obligations with upfront clarity as to its desired objectives and considers the broader regulatory environment.8 For example, the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) highlights its desired outcomes as safety, value and choice. Previous prescriptive rules, such as specifications on the size and age of taxis, have been removed. This approach means service providers are empowered to adopt flexibility in how they approach business while also ensuring regulatory outcomes are achieved.

Advancing legislative reform

The next step towards future proofing the next generation of Australian legislation will require Governments to identify pressing areas for reform. The ALRC has offered it suggestions9, including the need for legislative review to modernise, rationalise and simplify financial services regulations and the Commonwealth’s Model Defamation Provisions, while the recent Aged Care Royal Commission’s Interim Report conceded that the sector’s historically piecemeal and prescriptive legislative framework should be overhauled in favour of a more innovative regulatory approach.10

The task of ensuring that future proofing becomes a priority in Australian law-making will require implementing a consistent regime for reviewing and evaluating the flexibility of existing legislation to ensure its enduring relevance, as well as a genuine commitment by Federal, State and Territory Governments to look beyond the ‘current state’ when formulating legislative frameworks.

If you have any comments or questions regarding the content of this article please contact us.

We thank Harriet Wilson, Consultant, for assisting in the preparation and research of this article.

Sources

  1. Marketing of Potatoes Act 1946 (WA), section 22 (8).
  2. NSW Treasury, Regulating for NSW's Future (PDF 5.7MB), July 2020.
  3. Road Rules 2014 (NSW), Regulation 291-1.
  4. Summary Offences Act 1953 (SA), Section 50.
  5. Commonwealth, Parliamentary Debates, House of Representatives, 15 June 2020, 4367-4368 (Scott Morrison, Prime Minister and Minister for the Public Service).
  6. Australian Law Reform Commission, Should the Privacy Act be technology neutral?, 16 August 2010.
  7. Department of the Prime Minister and Cabinet, DPMC Legislation Handbook (PDF 1MB), February 2017.
  8. NSW Government – Finance, Services & Innovation, Guidance for regulators to implement outcomes and risk-based regulation (PDF 1.9MB), October 2016.
  9. ALRC, The Future of Law Reform: A Suggested Program of Work 2020-25 (PDF 1.3MB), December 2019.
  10. Royal Commission, Royal Commission into Aged Care Quality and Safety, 31 October 2019.

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