The Rule of Law in the Age of Statutes

Abstract

This article provides an empirical analysis of the legislative practice of the Australian Parliament and considers its implications for the rule of law. Federal legislation is so voluminous, complex and changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to know. This could be potentially ameliorated by Australian courts embracing Chevron-style deference, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More broadly, the article comments upon the way in which the rule of law and legislation should be understood in a modern administrative state.

I Introduction

It is trite to say that we now live in an ‘age of statutes’.¹ But ‘casual reference’ to the age of statutes,² without more, does little to clarify what is new or noteworthy about the contemporary statute book. While there is considerable anecdotal evidence that statutes have increased in number and complexity, there is relatively little empirical research substantiating or clarifying those claims, especially in Australia, which is the focus of this article.³ And while commentators in many jurisdictions have noted the explosion of statute law, there are undoubtedly differences in the way that various legislatures legislate. The implications of these legislative practices, be they positive or negative, will also vary depending on the constitutional arrangements and prevailing doctrine of the legal system in question.

The purpose of this article is thus threefold. The first is to empirically analyse the legislative practice of the Australian Parliament, and how it has changed over time. The second is to examine the implications of the trends revealed by the empirical analysis for the rule of law. In order to do so, I thirdly consider whether the age of statutes requires us to rethink our fundamental public law principles, along the lines suggested by theorists such as Edward Rubin.⁴ In particular, do the problems apparently posed by the proliferation of complex legislation dissolve if we readjust our understanding of the rule of law, and the way in which legislation figures in it?

The empirical analysis confirms that the number of statutes enacted by the Australian Parliament each year has increased dramatically since Federation. The volume of legislation presently in force is now significantly greater than in the past. Equally if not more important is the character of the legislation being enacted. Many federal statutes are prolix, complex and unstable. Sometimes, they stipulate rights, powers and obligations with great specificity; at other times, they confer ostensibly open-ended discretionary powers on the executive branch, including the power to make further legislation.

In a modern administrative state such as Australia, it would be unrealistic to expect that the statute book should be short and simple, or that the ordinary member of the public could form an understanding of the law by reading it. Yet, few would be willing to abandon the more fundamental rule of law principle, that in a healthy legal system the law should be knowable. This seems to be a proposition that we can all accept, even though the concept of the rule of law is notoriously complex and contested.

The first reason for this is a pragmatic one: if the people who are supposed to be bound by the law cannot know what it is, then they are less likely to follow it.⁵ The second is a point of principle. Law is a tool of governance which is—or at least, should strive to be—distinct from coercion or brute force.⁶ Governing through law acknowledges that the people are autonomous agents who are entitled to know what the law is, and choose whether or not to obey it. Not every law will be just or fair, no matter how clear and accessible its content. But every unknowable law is unjust in a particular way: it fails to treat its subjects as agents deserving of respect as such.

The ‘subjects’ of the law are many and varied. The previous passage refers to ‘the people’. It is equally important that the law be known to those who are required to implement it—that is, the executive branch—without overreaching its boundaries. It is less common to consider the extent to which the law must be known to Parliament, given its primary role is that of lawmaker. Yet, we expect Parliament to act rationally. We see legislation as worthy of our respect because it represents a decision to change the law for what our elected representatives consider to be good reasons.⁷ If Parliament changes the law without a clear understanding of the laws already in existence, it may enact inconsistent or overlapping legislation, which further diminishes the accessibility of the law. Indeed, it may enact legislation which serves no useful purpose at all. Finally, the courts must be capable of ascertaining the law, especially so that they may determine whether the other branches of government have acted within the legal parameters of their powers.

I argue that contemporary legislative practice makes the law difficult to know, in each of the ways articulated above. The Australian public can no longer look (if it ever did) to statutory texts to form a clear understanding of their legal rights and obligations. It must look elsewhere. While the executive branch of government continues to play the core role of implementing legislation, it performs another. This is a communicative one: executive actors explain the content of the law, and provide guidance as to how it will apply in particular cases, to the public at large and to groups affected by particular legislative regimes. Yet, this fact creates its own challenges, for the courts still treat statutory texts as the definitive statement of the law, and their interpretation of those texts will always trump that of the executive should it come to contest. The ordinary member of the public may therefore be caught between conflicting public statements of the law and will receive little protection from the courts if she is. She is not the only one who may struggle to ascertain the law. Some—though of course, not all—pieces of legislation would also test the comprehension skills of the executive actor responsible for implementing it, the legal advisor, or indeed the courts. Federal legislation now forms such a complex web that Parliament may sometimes struggle to form a sensible view of when and how to change it. Hence the volume and complexity of federal legislation ought to be still regarded as a potential problem for the rule of law, even if we adjust our understanding of that concept in order to accommodate the realities of the administrative state. More broadly, we see a divergence between legislative and executive practice on the one hand, and public law doctrine on the other.

This article takes the rule of law as its focus for two reasons. The first is that, while complex and contested, the rule of law is a fundamental public law ideal of near-universal appeal. It is undoubtedly a core value of Australian constitutional law.⁸ The second is that the proliferation of complex statutes seems to pose a patent rule of law problem, along the lines outlined above. But the legislative dynamics described here clearly raise other important issues, which I cannot hope to address.⁹ Two limitations of this study are particularly noteworthy. First, I do not attempt to explain the causes of the legislative dynamics that I identify. Secondly, I do not purport to offer solutions to the potential problems that they pose. The analysis presented here lays the necessary foundations for future research on these and other topics.

More broadly, I hope that this article will spark debate, and do not suppose that it will represent the final word. I would welcome rejoinders from those who believe that the legislative dynamics identified in this article do not pose a problem, whether for the rule of law or otherwise. In debating the point, we might elucidate the qualities which we do and do not expect our legislation to have; the boundary between the active style of legislating that is necessary—indeed, desirable—in a healthy administrative state and pathological styles of legislating which risk diminishing fundamental public law principles and values such as the rule of law. Moreover, this would serve my broader aim of contributing to a more rigorous body of literature on the ‘age of statutes’ and its implications.

II The Age of Statutes in Australia

I begin with an empirical analysis of federal legislation. This information is primarily gleaned from the statistical information published by the Australian Parliament on the work of each House.¹⁰ For this reason, it focuses on the work of the House of Representatives, for which the records are more complete. It also focuses on primary legislation, first and foremost to contain the study, and secondly because the proliferation of delegated legislation raises its own particular concerns.

The number of statutes enacted by the Australian Parliament has fluctuated from year to year, but generally increased since it first sat in 1901. In its first decade, the Parliament enacted an average of 23.2 Acts per year. By the 1940s, that number had risen to 72.5 Acts per year. The following decades saw the most dramatic increase in the rate of legislating: in the 1970s, an average of 173.4 Bills received royal assent each year. The rate has not continued to increase. Indeed, it has since diminished somewhat, to an average of 159.1 statutes per year in the 2000s. Even so, the rate of legislating in the 2010s was still 6.8 times as great as it was in Australia’s first decade. The federal Parliament enacted 8401 statutes in the 50-year period between 1967 and 2017, compared to 2656 between 1901 and 1951, which represents a more than threefold increase. The largest number of Acts enacted in a given year was 264, in 1992.

These figures only pertain to federal statutes. One might wonder if their proliferation has been accompanied by a reduction in the number of state statutes. This would be a reasonable hypothesis, given broader developments which have seen the federal legislature move into areas of government activity historically viewed as the domain of the states,¹¹ and state legislatures vacate others.¹² However, there is little evidence that this is the case. The rate at which the Parliaments of the Australian States legislate has remained relatively constant in the past several decades. In particular, the rate at which State legislatures enacted legislation did not noticeably decrease in the period between 1940 and today, which is when the rate of federal legislating so rapidly rose.¹³ This is noteworthy, for it suggests that the dynamics described above are largely confined to the federal sphere. It also suggests that the proliferation of federal statutes cannot be explained away on the basis that state statutes are in decline.

The rate at which legislation is enacted informs the time that can be spent perfecting the content of a bill, and the quality of deliberation which can take place before it is enacted as law.¹⁴ While there are significant fluctuations, the average number of sitting hours per year for the federal House of Representatives has basically remained constant since 1901, notwithstanding the dramatic increase in its workload. By comparing the number of sitting hours with the number of statutes enacted in any given year, we can form a rough picture of the amount of time devoted to each statute by Parliament. Based on the figures for the 20-year period between 1980 and 2000, each statute enacted by the federal Parliament could have received no more than 3.6 hours of the House of Representatives’ attention.¹⁵ The precise amount is likely to be much lower: it would depend on what proportion of sitting hours was devoted to discussing Bills as opposed to other parliamentary business,¹⁶ the number of other Bills discussed in that year but not enacted and the extent to which debate of particular Bills stretched across parliamentary years. These figures only pertain to the time spent considering legislative proposals on the floor of Parliament. A huge amount of work is of course done ‘behind closed doors’—for example, by parliamentary committees. Yet, it is questionable whether such closed-door deliberation by select groups is an ample substitute for open parliamentary debate.

In his critique of the age of statutes, Calabresi argued that the primary problem posed by the proliferation of statute law was obsolescence: legislatures were generally unwilling to repeal existing legislation, and hence obsolete statutory provisions remained in force, crowding the statute books.¹⁷ Many have noted that this is a problem in the national security context, where ‘emergency’ measures have a tendency to normalise and remain on the statute books long after the emergency has passed.¹⁸ Undoubtedly, examples of other obsolete statutes could be found. But as a general proposition, the Australian statute book is far from static. Federal legislation is frequently amended—sometimes with astonishing speed.

A sample of federal statutes reveals that, in the decade between 2007 and 2017, many were amended at least once a year. Some were amended more frequently. For example, in the five years between 1 January 2013 and 31 December 2017:

the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) was amended 16 times, an average of 3.2 times per year;

the Corporations Act 2001 (Cth) was amended 18 times, an average of 3.6 times per year;

the Migration Act 1958 (Cth) (‘Migration Act’) was amended 33 times, an average of 6.6 times per year or approximately every 1.8 months;

the Social Security Act 1991 (Cth) was amended 53 times, an average of 10.6 times per year, or almost once a month; and

the Income Tax Assessment Act 1997 (Cth) was amended 93 times, an average of 18.6 times per year, or approximately every 2.8 weeks.

Granted, many of these amendments may be relatively minor. Furthermore, a degree of legislative change is healthy and desirable, especially in a complex administrative state.¹⁹ A legislature which frequently amends the statute book might be commended for keeping abreast of social, technological or other changes, or simply striving to continually improve the law. On the other hand, it might be criticised for unnecessarily ‘tinkering’, perhaps to please particular interest groups or fill gaps in the law better left to the executive or judicial branch. One cannot take a firm view on the substantive merits or demerits of frequently amending legislation without knowing more. Yet, from a rule of law perspective the problem is tolerably clear. For one cannot deny that it is difficult to know the content of a statute which changes every month or two—especially when that statute is long and complex, as so many are.

Reading through the list of amendments made to various federal statutes, it was striking that so many of the amending Acts have no patent connection to the subject matter of the principal Act. For example, the Social Security Act 1991 (Cth) is amended by the Passports Legislation Amendment (Integrity) Act 2015 (Cth), the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) and the Minerals Resource Rent Tax Repeal and Other Measures Act 2014 (Cth). This reveals the complex web of federal legislation, in which few statutes are self-contained; rather, most Acts will interact with several others. This means that legislative change is necessarily more complex and more apt to lead to confusion; each amending Act has numerous ‘knock-on’ effects, each of which must be considered in order to form a proper understanding of the change, some of which may be difficult to foresee. I return to this point below.

The Australian Parliament does not publish statistics on the total volume of legislation in force at any given point in time. What is available, however, are the four reprints of federal legislation, printed in 1913, 1932, 1952 and 1974. These printed volumes contain the primary legislation at force at a given point in time. Comparing the sizes of these volumes provides an insight into how the volume of legislation in Australia has increased over time. The 1913 edition runs to 1037 pages; the 1932 edition runs to 2959 pages; the 1952 edition is 4927 pages long. At the last reprint in 1974, the total volume of legislation ran to 11 670 pages. There has been no reprint since, but there now appear to be more than that number of pages in three federal statutes: the Social Security Act 1991 (Cth), the Corporations Act 2001 (Cth) and the Income Tax Assessment Act 1997 (Cth).²⁰ There is undoubtedly some imprecision in comparing the length of digital files with the hard-copy reprints of the past. Yet, this increase seems too great to be explained away by this methodological deficiency.

Many individual statutes are increasingly lengthy, too. The Migration Act (which presently runs to 1042 pages) is a notorious example, though the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (1117 pages), Fair Work Act 2009 (Cth) (1018 pages) and Competition and Consumer Act 2010 (Cth) (1581 pages) are on par, and the Social Security Act 1991 (Cth) (2887 pages) and Corporations Act 2001 (Cth) (3584 pages) are even longer. At present, the Income Tax Assessment Act 1936 (Cth) is 2022 pages long, and the Income Tax Assessment Act 1997 (Cth) an eye-watering 5458 pages. These ‘super-statutes’ are not the only statute in the relevant field. For example, there are numerous other statutes that pertain to taxation in addition to the voluminous Income Tax Assessment Acts,²¹ and several other statutes that pertain to migration besides the Migration Act.²² This does not include the regulations made pursuant to these Acts.²³

The preceding examples are extreme. Yet, it is now not unremarkable for a statute to run to several hundred pages. In 2016, the Office of Parliamentary Counsel reported that ‘[t]here are 26 Acts on the Commonwealth statute book with substantive text over 500 pages’.²⁴ Examples of other lengthy statutes include the Aboriginal and Torres Strait Islander Act 2005 (Cth) (252 pages), A New Tax System (Goods and Services Tax) Act 1999 (Cth) (737 pages), Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (402 pages), Bankruptcy Act 1966 (Cth) (732 pages), Australian Securities and Investments Commission Act 2001 (Cth) (435 pages), Copyright Act 1968 (Cth) (690 pages), Family Law Act 1975 (Cth) (797 pages), Health Insurance Act 1973 (Cth) (570 pages) and Native Title Act 1993 (Cth) (608 pages). Individual provisions may run to several pages. For example, s 273 of the Commonwealth Electoral Act 1918 once occupied 11 pages of statutory text and included 33 subsections.²⁵

Caution is required when considering the length of individual statutes, and the statute book as a whole. Length does not necessarily equal complexity. The inclusion of more detail may make the statute clearer. On the other hand,

clarity can be impaired by too much specificity—in law as in other communicative endeavours. Expressive acts flout norms of communicative rationality when they multiply detail needlessly: an audience has finite time to read and listen and limited capacity to remember.²⁶

There are also some relatively benign reasons why the volume of legislation may have increased. For example, it appears contemporary statutes are laid out so as to include more ‘white space’, in an attempt to make them more visually accessible. Some statutory provisions are only transitional: that is, they only apply during a particular period of time, or to facts that arose during a particular period of time, typically so as to ease the transition from one set of statutory rules to another. For example, the Aged Care (Transitional Provisions) Act 1997 (Cth) provides particular rules for persons who entered a residential aged care facility before 1 July 2014, whereas those who entered aged care after this date are subject to rules found in the Aged Care Act 1997 (Cth); we may assume that at some point in the future, the former will become redundant. Some statutory provisions are contingent: that is, they only take effect if some other statute or statutory provision is enacted as law. In order to determine whether a contingent provision does in fact have legal force, one would have to inquire into the fate of the other legislative proposal. Hence not every part of the statute book will have legal force at a given time, and more legislative provisions do not necessarily mean more law.

Nonetheless, the use of transitional and contingent provisions highlights the broader complexity of the statute book, and the compounding nature of the dynamics discussed thus far. I have noted that when there are many interwoven statutes, the amendment of any one will likely have consequences for several others. When these amendments are so frequent, Parliament may be minded to adopt some device for easing the transition between statutory rules, or be forced to stipulate how one proposal for legislative change informs another. It may be wise for it to do so—for example, transitional provisions are generally seen as fair—but this further complicates the web of federal legislation, and introduces another layer of complexity for those required to ascertain the law.

The task of navigating individual statutes can also sometimes be a challenge, due to the complex way in which they are drafted. Defined terms are common,²⁷ though the differences between the concepts they denote may be difficult to discern. For example, as the Office of Parliamentary Counsel observed, the Telecommunications (Interception and Access) Act 1979 (Cth) at one point contained the following:

6 definitions of ‘member of the staff of X body’;

a definition of ‘member’ in relation to a criminal organisation;

definitions of ‘member of a police force’, ‘member of the Australian Crime Commission’ and ‘member of the Australian Federal Police’;

a definition of ‘staff member’ in relation to the Australian Federal Police; and

a definition of ‘staff member of ACLEI [that is, the Australian Commission for Law Enforcement Integrity]’.²⁸

Dense cross-referencing is also common, whether to other provisions in the Act, to provisions in the accompanying regulations, or to other Acts.²⁹ Consider, for example, the Biosecurity Act 2015 (Cth), s 9 of which contains the following definitions:

acceptable ballast water exchange has the meaning given by section 275

…

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution

…

administration of a vessel has the same meaning as in the Ballast Water Convention

…

Australian vessel means a vessel that: (a) has Australian nationality under section 29 of the Shipping Registration Act 1981….

The meaning of terms that are defined by reference to other Acts is ambulatory: it would assumedly change if the meaning of the section in the other Act changed, whether due to formal legislative amendment or a decision of a court.

The challenges that can arise when one statute ‘picks up’ terms or concepts from another were highlighted in the litigation culminating in Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross. ³⁰ The case concerned s 198D(1) of the Legal Profession Act 1987 (NSW), which limited the amount of legal costs that could be claimed as part of a ‘claim for personal injury damages’, except in certain circumstances. Section 198C(1) of the Legal Profession Act relevantly provided that ‘personal injury damages has the same meaning as in the Civil Liability Act 2002 [NSW]’. The Civil Liability Act defined ‘personal injury damages’ to mean ‘damages that relate to the death of or injury to a person caused by the fault of another person’, but other provisions of that Act excluded injuries of certain kinds—for example, injuries resulting from intentional acts.

The respondents sought compensation for injuries suffered as a result of being assaulted by hotel staff. Was this a claim for ‘personal injury damages’ within the meaning of the Legal Profession Act? The answer turned on whether, in stipulating that ‘personal injury damages’ had ‘the same meaning as in’ the Civil Liability Act, the Legal Profession Act simply picked up the statutory definition of that term, or whether it incorporated the statutory definition together with the other provisions of the Civil Liability Act which limited the concept. At first instance, Garling DCJ held the former. The NSW Court of Appeal then unanimously held the latter.³¹ The High Court upheld the appeal against the decision of the Court of Appeal by a majority of three to two—French CJ, Hayne and Kiefel JJ concluding that the Legal Profession Act only picked up the statutory definition from the Civil Liability Act, Crennan and Bell JJ the opposite.

It is important to note that the drafting style of federal legislation is not uniform. Rather, there is an interesting mix.³² Some statutes stipulate rules in excruciating detail, employing technical concepts which only an expert in the relevant field would understand. The parts of the Migration Act dictating which courts and tribunals do, and which do not, have jurisdiction to review decisions made under that Act provides an example, as Flick J highlighted in Minister for Immigration v ARJ17. ³³ His Honour observed:

The outline of written submissions filed on behalf of the respondent contends that the ‘critical question for present purposes is whether, in determining the present matter, the Federal Court would be exercising jurisdiction “in relation to a non-privative clause decision”’. The respondent contends that the Court would not be doing so but ‘would be exercising jurisdiction in relation to a purported non-privative clause decision, and a purported non-privative clause decision is not a “migration decision”’. To an applicant seeking to invoke the jurisdiction of this Court, especially those not fluent in English, it would be difficult to devise a greater barrier to an informed decision being made as to the selection of the Court with jurisdiction to resolve the claim. The question as formulated by the respondent, and necessarily so framed by reason of the manner in which the legislation is drafted, is as clear as mud. Even to an experienced migration practitioner, the question is only slightly more comprehensible.³⁴

Others confer expansive powers on the executive branch, in fairly sparse terms. Consider, for example, particular provisions of the Migration Act that govern the granting of protection visas in certain circumstances.³⁵ The relevant provisions state that a person is not permitted to apply for a protection visa unless the Minister permits them to so apply. But this is a discretionary power: the Minister need not give them permission to apply. Indeed, the Minister need not consider whether to give them permission to apply. Thus the Minister has discretions upon discretions, the performance of none of which can be compelled by a court.³⁶ Sometimes, the discretionary powers conferred by the Act are bound only by the requirement that they be exercised in the ‘national interest’.³⁷ Where this style of drafting is used, the legislation functions as a kind of normative superstructure (some might say, a shell).

Each style of drafting arguably creates complexity, albeit of a different kind. The detailed statute is complex on its face. It is difficult to ascertain the law that it creates for the simple fact that it is difficult to navigate and comprehend. The sparsely worded statute provides limited patent guidance as to the content of the law. Its ultimate effect will depend upon the regulations and policies that may be created to fill the spaces left by the statutory text, and what, within its broad discretion, the repository of the power chooses to do—as well, of course, as any constraints that the court ‘finds’ hidden in its terms.

It is important to note that the complexity of federal legislation has not gone unnoticed. There have been various attempts from within government to simplify and streamline the statute book.³⁸ It is beyond the scope of this article to meaningfully assess the impact of those measures. Clearly, federal legislation is complex despite them.

III The Initial Rule of Law Objection

I argue that the style of legislating described above poses a potential problem for the rule of law. But before articulating why that is so, it is useful to sketch and then discount another perhaps more intuitive rule of law objection. The first reason for doing so is to move us beyond antiquated objections to the growth of statute law, which may amount to little more than objections to the administrative state. The second is to avoid that superficial and ultimately unsatisfying device, of treating the rule of law as a checklist of legislative virtues supposedly derived from Fuller or Raz. The third is to clarify how legislation is used as a tool of government in a modern administrative state.

For some, the growth of statute law is of inherent concern because legislation is a less desirable source of legal norms than, for example, the common law;³⁹ because it is inherently antithetical to the rule of law.⁴⁰ This often seems to stem from the belief, justified or not, that courts are a superior source of legal norms to legislatures; that judges are an altogether wiser and more trustworthy set of lawmakers than the average Parliament. In broad brush strokes, Parliament may be painted as a chaotic institution, its members self-serving, corruptible and reactionary, and the common law courts as the bastions of logic, principle and justice.⁴¹ This is in no small part because influential theories of the common law tend to downplay the agency of the individual judge altogether, portraying the common law as an autonomous body of slowly evolving rules grounded in reason, rather than the product of those people who happen to hold judicial office.⁴² By contrast, legislative action is plainly ‘brazen’; in making legislation, ‘[t]he legislature has the impudence to say: ‘Forget what the law may have been all along. This is what it shall be now’’.⁴³ While the language and procedures of the common law tend to obscure the agency of the individual men and latterly women who act as judges, in the case of legislation, the human agency is laid bare.⁴⁴ This highlights a paradox at the heart of the rule of law: that while we aspire to a system of government of laws and not of men, laws are inevitably man-made.⁴⁵ As this suggests, some objections to the growth of statute law often turn out to be grounded in idealised conceptions of the rule of law which have little purchase in a contemporary legal system—a point I return to below.

Given the realities of the Australian legal system, it would be quixotic (to say the least) to propose abandoning legislation. Here, as elsewhere, legislation is the constitutionally prescribed tool that Parliament must typically deploy to empower the executive branch to implement government policy. Beyond the narrow realm of the prerogative, the government cannot act without legislative authority.⁴⁶ The more we expect the government to do, the more legislation we must have. Of course, there are those who do not want the government to do all these things. I do not seek to enter a debate about the proper ambit of the state here. But in order to avoid significant amounts of legislation, the state would need to be very small indeed.⁴⁷ While I will assume, therefore, that a substantial amount of legislation is unavoidable in a legal system such as Australia, it may be still possible to criticise the extraordinary amount presently in place, and its more particular features.

The proliferation of statute law then appears to pose a more specific threat to the rule of law, in the sense that the concept is typically understood by lawyers. In light of the influential accounts of Fuller⁴⁸ and Raz,⁴⁹ the rule of law is said to require that the law be clear, accessible and relatively stable. More particularly, it is often assumed that the law must be clear and accessible to the ordinary member of the public. This assumption may be traced to the framing of Fuller’s account, which tells the story of the hapless King Rex who tries and fails to make law in a way that his people can understand and obey. If this is what the rule of law requires, then it would appear to have all but failed in modern-day Australia. Legislation is perhaps more accessible today than in the past, given the prevalence of online databases. But while the ordinary member of the public may be able to access the law to which she is subject, she could not possibly understand it. There is too much; it is too complex; it changes too frequently.

Though intuitively appealing, this objection rests on a series of flawed assumptions. First, it approaches the rule of law in an ‘anatomical’ way, on the assumption that this complex goal can be achieved by mechanically ticking off a laundry-list of individuated legal requirements.⁵⁰ The constant repetition of that list in legal commentary causes these individuated requirements to take on a life of their own, disconnected from the broader ideal they are said to serve. They are seen as legislative virtues in their own right, rather than means of solving more fundamental problems.⁵¹ For Raz, the more fundamental problem was how to ensure that law served its defining purpose of guiding human conduct, while also guarding against some of the dangers that law and legal systems tend to pose.⁵² His ‘requirements’ of clarity, predictability and so forth were probable means of solving that problem because they made the law knowable, and unknowable law could not guide. Like Raz, Fuller thought that compliance with the individuated requirements of the rule of law produces law of such a kind that a person can know what it requires of her and choose to act accordingly. That in turn enables the law to achieve whatever end its makers choose; again, these could be good or bad, though Fuller asserted that the former was more likely. But for Fuller, this did serve a particular moral good: law that was clear, predictable and so forth respected the dignity of the legal subject, by treating her as a moral agent who can know and choose, rather than an object to be coerced or compelled. So understood, these qualities distinguish government by law from government by force.

Once this rule of law scholarship is understood as an attempt to articulate means of solving problems, we see the folly of focusing on the means and forgetting their intended ends. As Raz emphasised, his ‘list’ of the rule of law requirements should not be taken as the final word on the matter. There may be other equally or more effective ways of solving the problems to which it was addressed. They are likely to vary, depending on the legal system in question, and with time. Furthermore, both Fuller and Raz were concerned with the desiderata of law, and more broadly of a legal system. Neither professed to provide a list of the requirements that individual statutes ought to satisfy.⁵³

The initial rule of law objection also rests upon the assumption that legislation must do the work of making the law knowable. Relatedly, it assumes that the purpose of a statute is to communicate legal norms to the ordinary member of the public. Thus, it assumes that complex legislation diminishes the rule of law, because it is not accessible to the people who are bound by it. But as Rubin argued, these assumptions reflect an antiquated understanding of the nature of legislation which has little purchase in a modern administrative state.

There are clearly statutes which directly regulate the public, and these may be drafted in a style that makes some attempt to ‘speak’ to those people—criminal statutes being the obvious example.⁵⁴ But many statutes do not do this. They do not directly affect the legal rights or obligations of the ordinary member of the public. They do not create legal norms, in the ordinary sense of directing someone to do or to not do something;⁵⁵ rather, they create new entities, confer new powers or allocate resources. In short, many statutes do not ‘speak’ to the people at all.⁵⁶ As Rubin argued:

Modern legislation in its essence is an institutional practice by which the legislature, as our basic policy-making body, issues directives to the governmental mechanisms that implement that policy…legislation consists of the initiation of governmental policies or programs, that is, the mobilization of governmental power to achieve particular results, ranging from securities regulation to public welfare to environmental protection.⁵⁷

In other words, Rubin argues, the bulk of legislation in a modern administrative state is more accurately understood as ‘a set of internal government instructions’.⁵⁸ Instructions are needed because the legislature is constitutionally incapable of implementing its policies itself. The ‘implementation mechanisms’ are typically executive or administrative actors, not the courts.

If we accept that legislation is often not designed to speak to the people, then some of our aversion to impenetrable legislation may fall away. The fact that a statute is incomprehensible to a layperson does not necessarily represent a failure of legislative design. Likewise, Rubin argues, this reorientation of thinking should resolve the objection to unstable (that is, frequently amended) legislation, or legislation that confers broad powers on the executive branch.⁵⁹ Once we realise that most statutes are a kind of internal government instruction, Rubin argues, then these concerns should dissolve, for we see that the legislature is simply instructing the relevant implementation mechanism to act with varying degrees of specificity. The appropriate degree of specificity is for the legislature to decide, depending on all the circumstances and the purpose which the statute is meant to achieve. When the area of government activity is complex, technical or rapidly evolving, legislation may likewise need to change with speed, or confer broad discretionary powers on the specialised implementation mechanism in question. This may mean that the ordinary member of the public is unable to form a clear understanding of her legal position from attempting to read the statute book, but she is not supposed to do so.

To be clear, Rubin does not deny the more fundamental proposition that the public should be able to know its legal position. Rather, he argues that it is mistaken to suppose that the public should be able to form this knowledge from reading legislative texts. As he explains it:

The ongoing relationship between these agencies and the public forms a dense fabric of examples, informal statements, subtle signals and generalized understandings that constitutes the real way that most people learn the content of an applicable statute.⁶⁰

Therefore, Rubin argues, our norms of fairness need not be located at the legislative level, but can be shifted to the point at which the rights and interests of the public are most likely to be affected: the interaction between the public and the executive branch.⁶¹ If the legislature ‘wants people to understand the statute, it should direct the agency to make use of’ the devices listed above,⁶² and ‘place positive obligations on administrative agencies to inform the populace of applicable legal rules’.⁶³

A Applying Rubin’s Theory to the Australian Context

Rubin provides a useful theoretical framework for understanding the way in which legislation functions in the Australian legal system—but only to a certain point. Many of the statutes discussed in Section II do not directly regulate the public, in the sense of imposing legal norms that members of the public must obey. Rather, they create executive agencies and direct them, with varying degrees of specificity, to operate various parts of the administrative state. Their drafting often makes no pretence that the public should be able to understand them. As the Office of Parliamentary Counsel observed:

It is unrealistic to assume that complex subject and policy areas that are regulated by legislation can be reduced to rules that can be understood by the public generally. Instead, complexity should be judged by reference to the standards of the intended audience of legislation: employees with responsibility for corporate compliance, professional advisers in the area, administrators, judges, instructors and drafters themselves.⁶⁴

It is also clear that in Australia the executive plays an important communicative role, in addition to its core function of implementing the law. These communications take various forms. They range from general information about the content of the law to guidance about how the powers it confers may be exercised (often, in the form of policy statements). The executive actors responsible for implementing some of the most complex federal statutes commonly provide detailed and formal advice to the people whose rights and interests they are apt to affect. Often, this is done at the direction of the legislature.⁶⁵

For example, pt II of the Freedom of Information Act 1982 (Cth) requires agencies to publish information about (among other things) their structure and functions. Section 28 of the Competition and Consumer Act 2010 (Cth) states that Australian Competition and Consumer Commission is

to make available to persons engaged in trade or commerce and other interested persons general information for their guidance with respect to the carrying out of the functions, or the exercise of the powers, of the Commission under this Act;…[and] to make known for the guidance of consumers the rights and obligations of persons under provisions of laws in force in Australia that are designed to protect the interests of consumers.

In other contexts, the executive provides more formal and detailed guidance, not just about the content of the law but how it is likely to be applied in particular cases. For example, the Australian Securities and Investments Commission (‘ASIC’) publishes an extensive catalogue of ‘regulatory guides’, the stated purpose of which is to ‘explain…when and how ASIC will exercise specific powers under legislation (primarily the Corporations Act)’, ‘how ASIC interprets the law’ and ‘the principles underlying ASIC’s approach’, as well as to ‘giv[e] practical guidance (for example describing the steps of a process such as applying for a licence or giving practical examples of how regulated entities may decide to meet their obligations)’.⁶⁶ Currently, over 200 guides have been published on ASIC’s website.

In a similar vein, the Australian Taxation Office provides extensive guidance to the public about the substance of those laws, from general information on the Office’s website to calculators that enable users to estimate the amount of tax they owe. Most importantly, the Taxation Administration Act 1953 (Cth) (‘Taxation Administration Act’) establishes a formalised system of taxation law rulings. The legislation empowers the Commissioner to make public and private rulings, stating their interpretation of particular parts of the taxation legislation and their view on how it applies to a class of entities, or individual taxpayer.⁶⁷ Since 1992, the legislation has stated that these rulings are legally binding:⁶⁸

[A] ruling binds the Commissioner in relation to you (whether or not you are aware of the ruling) if:

the ruling applies to you; and

you rely on the ruling by acting (or omitting to act) in accordance with the ruling.

The Taxation Administration Act indicates that the only occasion on which the Commissioner may depart from a ruling is if they subsequently form the view that the relevant legislation actually provides a more favourable outcome for the taxpayer than the ruling.⁶⁹ As the Court observed in Bellinz v Commissioner of Taxation, a ruling ‘operates as if it is the statutory basis upon which tax is to be levied’.⁷⁰

This is undoubtedly a good system. A scheme which permits the public to apply for binding rulings from the Commissioner is altogether more feasible than expecting members of the public to form a view of their taxation obligations from reading the relevant statutes themselves. The scheme ameliorates the substantial unfairness that would undoubtedly arise if taxpayers were penalised for failing to comply with legislation that is utterly unknowable. As the Taxation Administration Act itself states:

The object of [the rulings system] is to provide a way for you to find out the Commissioner’s view about how certain laws administered by the Commissioner apply to you so that the risks to you of uncertainty when you are self assessing or working out your tax obligations or entitlements are reduced.⁷¹

Yet, there is a profound disjuncture between the practical operation of this scheme and prevailing public law doctrine. And for this and other reasons, I argue that there is still cause for concern about the legislative trends identified in Section II.

IV The Refined Rule of Law Objection

Thus far, we have seen that the fact that many federal statutes may be unclear (to a lay audience), unstable and so forth does not necessarily pose a problem for the rule of law. Without more, that argument rests on a series of unsustainable assumptions about the nature of statutes and an unsatisfying conception of the rule of law. Yet, few would deny that the law should be accessible to those who are subject to it. It is more difficult (as with most things related to the rule of law) to articulate how this goal should be achieved.

Stripped of nuance, Rubin’s argument is that we should not expect legislative texts to do the work of making the law knowable. This is so: first, because in a modern administrative state legislation is not necessarily a tool to communicate legal norms to the public; second, because there are other and better sources of information to which the public and other legal actors should look—especially statements made by the executive branch.

However, this argument does not hold, or at least not for Australia. Rubin does provide a fairly apt description of contemporary legislative and executive practice, but Australian public law doctrine still treats statutory texts as the definitive source of legal norms. Hence, executive statements are afforded little legal weight despite the important role they play. Further, the state of the federal statute book is now such that the three branches of government may struggle to understand it, too. This diminishes the rule of law in other ways, as the following sections explain.

A Executive Statements about the Law

There are many practical and political reasons why the government may consider itself bound to do what it has led the public to believe it will do. As Aronson, Groves and Weeks put it, ‘[b]reaking promises…is not a good look, especially when government is the promisor’.⁷² There are also distinctions to be drawn between the form of statement in question. As explained above, certain kinds of executive guidance, such as tax rulings, are very formal, and are apparently treated as if they were binding on the executive branch. At the other end of the spectrum, executive actors may be more willing to depart from general policy statements or casual representations made to the public. While these distinctions are important,⁷³ there is also a common thread. Executive statements, whatever their form, carry little weight in Australian law.

Like other jurisdictions, Australia has no doctrine of public law estoppel.⁷⁴ There may be some consequences in administrative law for departing from a promise, policy or prior practice, but it remains unclear exactly what they might be. In many cases, there will be no legal consequences at all. For example, it is not generally unlawful for an executive actor to tell a member of the public that a decision will be made in a certain way and then decide otherwise.⁷⁵ Indeed, an executive actor may be found to have unlawfully ‘fettered’ their discretion if they rigidly apply a policy or guideline.⁷⁶ In many cases, a court might conclude that a decision-maker is legally required to consider policies that pertain to the power in question.⁷⁷ It is also generally presumed that statutory powers must be exercised reasonably.⁷⁸ Yet, neither principle would necessarily prevent a decision-maker from departing from a stated policy or a prior course of action, provided that the policy has been taken into account and the decision has some intelligible justification.⁷⁹ In doing so, it might be said that the executive actor fails to treat like cases alike, and there is some limited support for the idea that this is per se unlawful⁸⁰—but also cases that point in the opposite direction.⁸¹ In short, we might summarise that the scope of executive power is determined by the empowering statute, and cannot be altered by the things that the executive says or does.

This position is sometimes justified on the basis of policy concerns which reveal the kind of antiquated understanding of statute law criticised above: namely, that holding an executive actor to their word might save a particular individual from injustice, but to the detriment of everyone else who is assumed to have relied upon the statutory text.⁸² It is more securely rooted in constitutional principle, for in a legal system in which all are bound by Parliament’s laws, the scope of statutory executive power cannot be allowed to depend upon the actions of the executive branch.⁸³ Relatedly, it is said to be an exclusively judicial function to decide the legal meaning and effect of a statute.⁸⁴ Thus Australian courts implicitly reject any notion of deference to the executive’s interpretation of the law, deeming it antithetical to the constitutionally mandated separation of powers.⁸⁵ Assuming then, as is often the case, that the statements made by the executive do not take the form of a legislative instrument and are not otherwise given some legal force, the view of the law expressed therein is always liable to be overturned by a court.

As a result, members of public who rely on executive guidance find themselves in a fairly precarious legal position. They will receive limited protection from the courts if this works to their disadvantage.⁸⁶ More broadly, we see a divergence between legislative and executive practice on the one hand, and public law doctrine on the other. Given the nature of contemporary statutes, it will often be the guidance given by the executive branch that ‘counts’ in public life. Yet, the courts continue to treat statutory texts as the definitive statement of the law—as, perhaps, they must.

This is demonstrated by the judicial treatment of the Regulatory Guides published by ASIC, which were discussed in Section III. These are a crucial source of information about the meaning of the Corporations Act and the likely way in which it will be implemented, undoubtedly relied upon by those subject to this legislative regime. But these Guides are not recognised as having any legal force, and if a court subsequently finds that the Guides are inconsistent with the legislation, then ASIC is bound to follow the latter and not the former.⁸⁷ It would not seem to matter, as a point of constitutional law, if the executive is providing guidance at the direction of the legislature. If an executive actor is constitutionally incapable of conclusively deciding the legal meaning of a statute, then this is a function that Parliament cannot give it. There are questions to be raised, for example, about whether the taxation ruling system is consistent with this constitutional principle. As explained above, the Taxation Administration Act indicates that these rulings are effectively binding. They are treated as such in practice. But assuming that a ruling is strictly speaking a kind of policy as opposed to some instrument with legal force, then it would seem that the Commissioner of Taxation must be free to depart from it if they subsequently form the view that it is inconsistent with the legislation, or if she is told it is so by a court.⁸⁸

To many, that would appear as a victory for the rule of law. If the executive has misinterpreted the legislation, then it must yield; were it otherwise, the executive could elevate itself above the law. Yet, it is certainly not the best means of making the law knowable. Given the quantity of federal statutes, and the innumerable decisions made and actions taken under those statutes each day, it is inefficient and implausible to expect those who are subject to the law to approach the courts in order to find out what it means. That is especially so, given Australian courts have no advisory jurisdiction. That is, they cannot be called upon to advise on the ‘correctness’ of the executive’s publicly stated interpretation of the law. This question can only be answered once the law is administered in a particular case.⁸⁹ Thus the executive—and the public—must wait until (potentially unlawful) action is taken, before the meaning and effect of the law can be conclusively determined.

B The Role of the Courts

Before considering the way in which legislative complexity may compromise the work of the courts, it is important to consider the role of legal advice. It is an open question whether the demands of the rule of law are satisfied if, notwithstanding the layperson would have little chance of understanding the law on their own, they could do so with the assistance of a lawyer. It may be naive to expect the former. At the same time, there is danger in placing too much emphasis on the availability of legal advice. This raises obvious equity issues, for legal advice will be more readily accessible to the wealthy and well-connected than the impoverished or powerless.

Furthermore, there is suggestion that at least some pieces of federal legislation are so complex that even legal experts struggle to ascertain their meaning. This point was made clear in the passages of ARJ17 discussed in Section I, where the Federal Court observed that the relevant provisions of the Migration Act were difficult for even experienced migration practitioners to comprehend.⁹⁰ Writing extra-curially, Sir Anthony Mason described the Corporations Act as ‘indigestible and incomprehensible’.⁹¹ In Wilson v Anderson, Kirby J called the legislation pertaining to native title an ‘impenetrable jungle’ that had become ever denser with time.⁹² And the Tax Institute has acknowledged that ‘the entire tax system, not only the law, was so complicated that it was difficult for many tax accountants and lawyers—let alone most taxpayers—to understand it’.⁹³ Some might think that this exaggerates the point, but it does not seem fantastical given the empirical research presented in Section II. It indicates that the level of legal assistance required to navigate some of our most complex statutes would be great—and hence come at great cost.

And while (as Rubin notes) courts do not play a central, implementing role in the modern administrative state,⁹⁴ they do continue to perform the key function of constitutional and administrative review.⁹⁵ These processes will likewise be slowed by complex legislation, and the increased risk of legal error that it poses.⁹⁶ In time, they may be frustrated in more fundamental ways. There is surely a point at which the complexity of legislation becomes so great that courts will struggle to ascertain its meaning—and in turn, whether legislative or executive action is within power.⁹⁷ At the least, if the commands of the law are too difficult to understand then they may become underenforced, as those with viable matters fail to appreciate that fact or simply conclude that the prospect of judicial relief is not worth the resources that would be expended in order to get it. We may see practices spring up in the shadow of the law, whereby people or particular industries develop their own norms of conduct, which may or may not be consistent with the legislation.

The pragmatist may be happy with this solution. For many, it would represent a diminution of the rule of law.⁹⁸ To be clear, I do not claim that the Australian legal system has already reached this point. The aim is to highlight the directions in which the style of legislating described in Section II may lead, and the problems which cannot necessarily be ameliorated by adjusting our conceptions of legislation, or the rule of law, along the lines that Rubin describes.

The foregoing may lead some to argue that public law doctrine should change, such that the guidance given by the executive is afforded greater legal weight, if not binding force. As foreshadowed above, there are many doctrinal devices through which the courts could do so. This would be one means of acknowledging the epistemic limitations of the courts, and perhaps ameliorate some of the unfairness to the public that the present system permits. One may simply argue that, given many federal statutes are designed to speak to the executive branch, Parliament patently intends for it to have final say about what a statute means in the case of any ambiguity. This is the basis of the Chevron doctrine in the US, according to which courts will defer to the executive’s interpretation of legislation in certain circumstances.⁹⁹ But as explained above, Australian courts maintain that this is a function which Parliament cannot validly confer on the executive branch.

I do not challenge that assumption here. Nonetheless, there is clearly room for further inquiry into whether and why the Australian Constitution forbids deference of the kind sometimes displayed by US courts. Both US and Australian courts profess that it is ‘emphatically the province and duty of the judicial department to say what the law is’¹⁰⁰—and yet the former are willing to defer to the executive, and the latter are not. The divergence seems to rest on more specific disagreements about what statutory interpretation and the separation of powers entail. In the US, the disambiguation of statutes is said to involve questions of policy and not law. As Pierce explains it:

When Congress drafts a statute that does not resolve a policy dispute that later arises under the statute, some institution must resolve that dispute. The institution called upon to perform this task is not engaged in statutory interpretation. It is engaged in statutory construction. It is not resolving an issue of ‘law’. Rather, it is resolving an issue of policy.¹⁰¹

That argument may be met with scepticism by an Australian audience, though as Vermeule explains:

[I]t would itself be a misunderstanding of the constitutional scheme to require the legislature to fill in every detail necessary to carry its chosen policies into execution and to adjust those details as circumstances over time. To require that would equally confound legislative power with executive power, just in the opposite direction…the power to fill in the details is an indispensable element of what ‘executive’ power means, that to execute a law inevitably entails giving it additional specification, in the course of applying it to real problems and cases. General legislative lawmaking can never go all the way down, as it were, to the actual facts of particular cases.¹⁰²

While the basis of the Australian position is, therefore, neither entirely clear nor incontrovertible, it would require a fairly profound reorientation in constitutional thought to accommodate Chevron-style deference in Australian law.

This brackets the broader question of whether this would be desirable. In this regard, it is important to note that while Chevron deference is common in the US, it has not always been applied consistently, and it remains contentious.¹⁰³ Some judges and academic commentators continue to express great unease with deference: a strong sense that something crucial is lost if courts no longer have final say about the meaning of statutes, especially when the actor which is given final say is the very one whose powers are in question.

Perhaps that unease is irrational; a romantic remnant of a forgotten (or imagined) age in which statutes laid down straightforward commands for the courts to enforce. Perhaps it reflects nothing more than the judiciary’s desire to remain relevant despite the changes occurring around it. But it also suggests that theoretical solutions to the problems posed by the administrative state and the proliferation of statute law within it are not easily implemented in practice, and that the solutions which may work for one legal system may be incapable of being transplanted into another.

In the end, the matter may turn on how much trust we are willing to place in the executive branch—especially vis-à-vis the courts. Rubin’s theory is clearly one that places great faith in administrative agencies, or at least acknowledges the value of allowing them to ‘get on with’ the job of translating government policy into practice. There are passages of Australian case law which likewise recognise the relative competencies of the executive branch.¹⁰⁴ But there are many canonical statements to the effect that the executive cannot be trusted: that judicial review is the indispensable means of upholding the rule of law and hence that there must be no ‘islands of power immune from judicial supervision and restraint’.¹⁰⁵ Of course, one of Rubin’s primary aims is to make us rethink what the rule of law entails. But his theory is an imperfect fit for a legal culture where judicial control over statutory meaning—and in turn, executive power—is so prized. If this is something that we are not willing to sacrifice, then we must instead look to ways to reduce the complexity of legislation.

C Other Challenges for the Legislative and Executive Branches

Even if we accept that (in many instances) the requisite degree of legislative clarity should be assessed from the perspective of the expert agency to which the relevant statute speaks, contemporary legislation may still fall short. Indeed, we may question the underlying assumption that these actors are expert. Undoubtedly, there are those within the executive branch who have worked at the coalface of the relevant sphere of government activity for many years. The legislation that governs that field may have incorporated the technical language and concepts that these actors work with every day (but which may be incomprehensible to a judge or generalist lawyer). But the now corpulent administrative state is surely also staffed, in no small part, by low-grade and transitory staff who have no great expertise in the field of government activity in which they are involved.

As this suggests, even if the ordinary member of the public is not the intended audience of many statutes, their complexity inevitably has consequences for her. The executive actors who implement the legislation must devote more time and resources to deciphering the legislation and keeping up to date with its ever-changing content. This inevitably slows administrative decision-making, and increases public costs.¹⁰⁶ That assumes that the relevant government actors are minded to do so. There may come a point where executive actors no longer strive to ascertain the letter of the law, preferring instead to act in accordance with their own policies or guidelines.

Parliament may also struggle under the enormity of the task which it has, to some extent, created for itself. The legislature is not omniscient and cannot be expected to predict all the legal consequences of the legislation it enacts. On the other hand, we would surely not accept legislation enacted in substantial ignorance, with little understanding of how it will affect the complicated web of legislation already in place. Ekins describes ‘rational lawmaking’ as ‘action to change the law in specific ways for (what the legislature takes to be) good reasons’.¹⁰⁷ And this would seem to require a decent understanding of how the law is going to be changed.

Kirby J captured the risk well in the case of R v Hughes. ¹⁰⁸ I explained in Section II that it is now common for federal statutes to cross-reference each other. This case concerned complex legislative arrangements whereby state statutes ‘picked up’ provisions of federal legislation, making them directly enforceable in those states, in an attempt to circumvent constitutional constraints and create a national system of corporation law. Kirby J described this legislative scheme as ‘nearly incomprehensible’.¹⁰⁹ He continued:

Courts, including this Court, regularly speak in terms of the ‘intention’ of the legislature when interpreting particular legislation. This polite but unacceptable fiction has never been shown in starker relief than in the present case. So complex is the interlocking legislation, with fiction piled upon fiction, that it must be doubted whether any of those presenting and enacting it were truly aware of precisely what they were doing. It may be hoped that this and other recent decisions, together with the great national importance of the subject matter of the legislation, will encourage its early reconsideration and the adoption of a simpler constitutional foundation to reduce the perils that are otherwise bound to recur, possibly with serious results.¹¹⁰

It is not unreasonable to suppose that, given the number and complexity of statutes, Parliamentarians will fail to notice inconsistencies between them, or between provisions in the one statute. The assistance of expert drafters may mitigate some of this risk. The courts can also go some way towards solving these problems. For example, a new statute may be treated as implicitly repealing an older statute if the two are inconsistent, though one must wait for judicial guidance before knowing which of these two public statements of law is binding and effective.¹¹¹ In cases where there is an ostensible inconsistency between two statutory provisions, the High Court tells us we should read each in light of the other until the inconsistency is resolved.¹¹² But once again, these are devices that would require the affected parties to wait until the legislation is implemented and then go to court in order to obtain clarification. They are justified on the basis that statutes are presumed to serve coherent ends and should always be read as a whole—a claim which seems difficult to sustain, given statutes now commonly run to several hundred, if not several thousand, pages.

We may also see a degree of duplication, whereby statutes appear to make similar provisions in subtly different ways. The Senior Assistant Parliamentary Counsel provides an example. Walsh explains that for many years there were several pieces of legislation in force which dealt with essentially the same issue, albeit in different, specific contexts: that is, executive powers of search and seizure. She explains:

Despite the fact that we were all using fairly common precedents, each time a legislative counsel used a precedent they would ask key policy questions as if they had never been asked before. Policy officers, often inexperienced in implementing policy through legislation, would then answer those questions as if they had never been answered before. The amount of variation on a theme generated in this way is not surprising. It is probably inevitable. Once Bills were drafted, they were then referred to other agencies (such as the Attorney-General’s Department) for scrutiny. During that process, each suite of provisions was often scrutinised as if it had never been seen before. Given the frequency with which the officers scrutinising the provisions changed, they were often being scrutinised by officers who had never seen them before. While there are some benefits in this, it also generates frequent variation on the theme. Despite the use of guides and other materials, this problem just seemed to recur over and over again. Finally, the bills would be scrutinised by the Senate during the Parliamentary process. The political process often produced changes to respond to a particular issue. Those changes were sometimes also promoted in later bills, even if the context did not justify them there.¹¹³

Parliament eventually responded to this problem by enacting the Regulatory Powers (Standard Provisions) Act 2014 (Cth) which ‘houses suites of standard provisions dealing with monitoring, investigation, civil penalty provisions, infringement notices, enforceable undertakings and injunctions’,¹¹⁴ but the example plainly demonstrates that a crowded statute book may lead to duplication. Statutes which contradict or overlap with others diminish the accessibility of the law. The enactment of several subtle legislative variations of the same legislative theme not only creates uncertainty for those expected to implement the law, but may enable them to pick and choose between multiple sources of power, to the point where they are not constrained by law in the same meaningful way.¹¹⁵ Of course, if the matter were taken to court, it might conclude that there is really no such overlap; that only one power is available in one set of circumstances, and the other in another. But once again, it is not desirable for government or the public to be forced to seek judicial intervention in order to ascertain the basic limits of executive power.

Other problems may arise, not due to the sheer quantity of legislation being enacted, but the style in which it is drafted, and the underlying culture which sees constant legislative action as the norm. Rares J provides the example of

the recently introduced s 23 EJ(2) of the Federal Court of Australia Act 1976 (Cth). It is a legislative instruction to judges in these remarkably informative terms: ‘(2) A juror is taken to be discharged if the juror dies.’ The most worrying lesson from that section is that someone felt that they needed to put this into an Act.¹¹⁶

Arguably, Rares J assumes that this was a ‘problem’ that the courts should have been left to solve. As I explained in Section III, it is my aim to identify problematic styles of legislating that transcend preferences for judge or Parliament-made law, and not my aim to explain why there is now so much legislation. To that end, three points can be made.

The first is that the mix of legislative styles deployed by the Australian Parliament further demonstrates that Rubin’s theory is an imperfect fit for this legal system. While there are federal statutes in Australia which confer open-ended discretionary powers on the executive branch, there are also pernickety statutes which purport to ‘micromanage complex subject matters’—a style of legislating which Rubin condemned.¹¹⁷ Secondly, the enactment of provisions of this kind suggests the proliferation of statute law cannot be entirely attributed to the growth of the administrative state. Rather, it suggests that other dynamics are at play: here, the desire to extirpate judicial discretion. Thirdly, whether or not we agree that s 23EJ(2) of the Federal Court of Australia Act is pointless, prescriptive drafting may compound the dynamics described in Section II. A Parliament committed to stipulating the precise rule to be applied in every particular case will have to constantly amend its statutes in order to fill the gaps that are inevitably discovered when it is implemented. This will require more and more frequent legislative amendments, and more and more law. In other words, there is a kind of path-dependency, whereby prescriptive drafting becomes increasingly prescriptive, increasingly complex—and perhaps, eventually, pointless.¹¹⁸

V Conclusion

There is much loose talk about the age of statutes. Rubin rightly challenges us to move beyond conceptions of legislation and the rule of law that are now clearly outdated—if, indeed, they were ever fit for purpose. It would be quixotic to now call for the abolition of the administrative state, and illogical to decry the prevalence of statutes within it, especially in legal systems such as Australia where statute is the principal and constitutionally prescribed tool by which the government can act. That is especially so, if one now expects government to do a lot more than it did in the past.

Nonetheless, I argue that there is still cause for concern about the character of legislation being enacted by the Australian Parliament. The empirical analysis presented here has confirmed, with greater clarity, what has so far been a matter of only anecdotal evidence. That is, there is now more legislation, some of which changes with astonishing frequency, and which is drafted in a way that is difficult to navigate—not simply for laypeople, but for Parliament, the executive and the courts. Of course, not every individual statute suffers from these flaws. And yet, individual statutes now form such a complex web that anyone would struggle to form a clear picture of the whole. In short, contemporary legislative practice makes the law difficult to know. This risks diminishing the rule of law, notwithstanding the adjustments we may be prepared to make in order to accommodate the realities of the administrative state.

This is in part because Australian public law remains wedded to a particular conception of statute law and the role of the executive branch. Some might argue that this represents a romantic remnant of a forgotten (or imagined) age. But it also suggests that theoretical solutions to the proliferation of statute law are not easily implemented in practice, and that the solutions which may work for one legal system may be incapable of being transplanted into another—if indeed, one is willing to describe doctrinal tools such as Chevron-style deference as a ‘solution’. As noted at the outset, then, much work now remains to be done, first in diagnosing the causes of the problematic style of legislating described here, and secondly in identifying solutions that will fit the Australian constitutional framework.