15/08/2013 - 15:49

Less is more when it comes to the law

15/08/2013 - 15:49

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A stable society is not served by galloping growth in laws, according to one of the country’s senior judicial figures.

Less is more when it comes to the law

A stable society is not served by galloping growth in laws, according to one of the country's senior judicial figures.

FROM what I can tell, High Court of Australia Chief Justice Robert French sits comfortably in the relative centre of the political spectrum.

A former Liberal candidate for the seat of Fremantle, he went on to be appointed to the federal court by Labor prime minister Bob Hawke and then to his present position by another Labor PM, Kevin Rudd.

Yet reading his keynote speech from a recent public event entitled ‘Law – Complexity and Moral Clarity’, I was interested to see how much this experienced member of the judiciary had in common with those of typically more conservative views, who believe that our society is overburdened by regulation and laws.

In summary, Justice French’s view appeared to be that democracy was better served by reducing complexity in our legal system.

In part, he said complexity was driven by too many laws, which were individually too detailed, overly prescriptive, and involved inaccessible language. In other words, there was a double layer of complexity driven by volume and overwhelming detail.

Justice French highlighted what he described as the “galloping growth in regulation” driven by a more complex society with a greater diversity of interests, which expects more of the governments that serve them.

But, and you can’t be more damning than this, he added: “Governments want to be seen to have a legislative program and to be doing things. A new law is an achievement.”

Justice French proceeded to detail the exponential growth in the number of pages of legislation passed as Australia has matured since federation.  

“The total number of pages of legislation passed in the first decade of Federation were 1,072,” Justice French reported.

“In the first six years of the 21st century there were 40,266 pages of statute law enacted.

It is an argument regularly raised by conservatives against the rising tide of red tape.

Justice French was not just talking about the burden being a cost, however, even though he acknowledged more complex laws required more expensive expertise to interpret them.

He stated complexity led to doubts about democratic legitimacy, reduced public confidence in the law, created more uncertainty for those affected by the law and, perhaps more disturbing of all, led to the growth of a “less visible, soft law”.

That latter phrase referred to guidelines that were provided to public officials administering the law to help them overcome its complexity.

“Those administrative guidelines may become, for all practical purposes, the real law so far as many people are concerned,” Justice French said.

The thought of this is frightening – a kind of shadow law that most of us accept because we don’t know any better, or we can’t easily understand the law ourselves.

“We have more laws, and more technical and detailed laws. Their volume and complexity tends to diminish their moral clarity,” Justice French said.

Reflecting on the detailed categories provided for in tax legislation, for example, Justice French goes on further to suggest that democracy may well be a victim of itself.

He highlighted the “arid intellectual exercise” of determining whether an office chair could be used for household purposes, as he had been required to deliberate over under the old sales tax laws. More recently he recalled the legal argument around the GST as to whether a mini-ciabatte was a biscuit.

“I suspect, but do not know, that the creation of many of the categories and the interpretive difficulties to which they give rise are responses to particular interest groups,” he stated.

“That is no doubt part of the democratic process.

“But when a legislative purpose cannot be discerned, interpretation is difficult and the outcome unpredictable.”


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