March 16, 2006

Categories of Legislation (warning – legal theory)

Posted in Uncategorized at 7:39 pm by thelawthoughts

My Corps class was incredibly boring today, and when I was thinking about how we might classify the Corporations Act in terms of types of legislation. It occurred to me that we can categorise pieces of legislation according to how much they might be altered in future. I am unsure to what end I am thinking about this, but in any case, here is my categorisation of types of legislation:

1. Settled

No surprises here, but this is legislation that is very rarely, if ever, altered. Laws like the Property Law Act, the Instruments Act, the Judiciary Act (Cth) and the Trade Practices Act all spring to mind. Rules of civil and criminal procedure are in this category also. Every hundred years or so, we revisit the fundamental principles on which these laws are based. Otherwise, we leave these pieces of law alone.

2. Progressive – Permanent

These are laws which are revised incrementally in one direction only. By this, I mean laws which are slowly moved towards a particular state, and which no government will ever roll back. I see laws like anti-tobacco laws and food labelling laws in this category. They are laws for which society has chosen a direction, but cannot go the whole hog at once. If, for example, governments attempted to outlaw tobacco, outrage would ensue. However, it seems to me that, as a society, we have decided people should smoke as little as possible. Therefore, legislators push against dissenting opinion very slowly. Having said that, I cannot see any future government suddenly allowing people to smoke on train platforms again. Once a state has been reached, legislators move on to the next incremental stage of reform until the laws have reached the point at which ‘society’ deems them to be best extended.

3. Progressive – Temporary

In the same way, I see laws which are incrementally revised in a direction, but which are subject to governmental roll back every now and then. The position society has decided best is not as clear cut as with ‘Progressive-Permanent’. Therefore, laws are moved until, say, a new government attempts to rebalance the law in accordance with its views. They do not, however, overturn the law entirely. I see the Retail Leases Act, competition laws and Financial Services Reforms in this category. These ‘progressive’ categories seem to me to often be about consumer protection. Generally, we move towards more consumer protection, until we overbalance and regress the law a certain amount.

Incidentally, case law fits into this category somewhere, where precedent is incrementally progressed until a superior court either confirms or rolls back lower court precedent.

4. Fluctuating

These are laws which can be altered backwards and forwards with much regularity according to public opinion, changing technology or shifts in general societal requirements. I see taxation law and intellectual property law in this category. Constantly shifting, open to review, often subject to Parliamentary inquiry. Essentially, these laws are fluid enough to take into account what people think from time to time, and should reflect their changed opinion, with some time lag.

As I say, I am not sure why I thought up this little framework in a Corps class. I suppose it is because when we are making laws, we should ask ourselves why we are doing so. Are we tampering with a law which is settled and should only be overturned with great care? Are we moving society in a direction it seems to want to go by incremental reform? Or are we rolling back previous incremental change? Should we do either? Are we making law that is reflecting changed opinion, or do we just think we are in touch with that opinion?

A little thought before passing a law probably does a lot of good, beyond just thinking about the political consequences for legislators.

What do people think of my categories? Have I missed something?


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