Modelling sustainable uniformity of the Australian national uniform legislation through ordinal regression

ABSTRACT

National uniform legislation exists in federations to implement national reforms where the central government does not have the direct authority to legislate under the Constitution. The State jurisdictions must work together on legislation to address urgent issues of national concern, national uniform legislation. Developing and drafting national uniform legislation are complicated and complex because they require the cooperation of many units with asymmetrical knowledge, competing priorities, limited budgets and timeframes, and at times irreconcilable differences. Empirical data analysis and statistics could provide an aid for decision-making in these circumstances. On examination of a large body of legal information on the 69 most significant Australian national reforms, this article finds factors that inhibit or promote sustainable uniformity of enacted legislation by using ordinal regression for the first time. This work provides significant evidence-based insights into the process of harmonisation in federations. Overall, our findings contradict the general belief that the uniformity is mostly dependent on structures alone (referred, applied, mirror, and hybrid). If sustainable uniformity is the goal,the decision-makers must allow resources for establishing the national regulator, ensure maximum uptake by the majority of the nine Australian jurisdictions, support the development of national uniform legislation through the National Cabinet, and be prepared for the second wave of national reforms through consecutive reforms. These findings have valuable strategic implications for policymakers, law reform agencies, and legislative drafters who intend to rely on evidence for future decision-making in terms of the most important national reforms. This paper provides recommendations for governments intending to ensure the sustainability of uniformity and adaptability of the Australian legislation for any future changes without losing the important consensus that has been achieved. The findings are also important for other federations seeking to implement harmonised legislation.

KEYWORDS:

• Harmonisation
• legislation
• uniform acts
• factors
• modelling
• ordinal regression
• Australia

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

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2 Legislation that is drafted in substantial terms across several local jurisdictions in Australian or other federation by a ministerial council, national regulator, or a national reform body. Guzyal Hill, National Uniform Legislation (Springer Nature 2022) 29.

3 Ittai Bar-Siman-Tov, ‘Temporary Legislation, Better Regulation, and Experimentalist Governance: An Empirical Study’ (2018) 12 Regulation & Governance 192; Guzyal Hill, ‘Untapped Opportunities for the Use of AI in Comparing Legislation for National Reforms’, in The Automated State: Implications, Challenges and Opportunities for Public Law (Federation Press 2021); Ugo Pagallo, Pompeu Casanovas and Robert Madelin, ‘The Middle-Out Approach: Assessing Models of Legal Governance in Data Protection, Artificial Intelligence, and the Web of Data’ (2019) 7 The Theory and Practice of Legislation 1.

4 Guzyal Hill, ‘Categories of the “Art of the Impossible”: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation’ (2020) 48 Federal Law Review 350.

5 In this article, we are using the terms of uniform legislation and harmonisation interchangeably.

6 Mads Andenas and Camilla Baasch Andersen, Theory and Practice of Harmonisation (Edward Elgar Publishing 2012) xi.

7 The structure of national uniform legislation where jurisdictions model or mirror provisions or Acts of other jurisdictions. Guzyal Hill, ‘Referred, Applied and Mirror Legislation as Primary Structures of National Uniform Legislation’ (2019) 31 Bond L Rev 81, 81.

8 The structure of national uniform legislation where one jurisdiction enacts legislation and other jurisdictions adopt or apply this Act. Ibid.

9 Mix of structures including mirror and applied.

10 Parliamentary Counsel’s Committee, Protocol on Drafting National Uniform Legislation (4th ed, February 2018).

11 These data largely remain unchanged in 2023 due to the fact we are working with the most significant national reforms and large-scale analysis, rather than a detailed study.

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27 Guzyal Hill, ‘Referred, Applied and Mirror Legislation as Primary Structures of National Uniform Legislation’ (2019) 31 Bond L Rev 81, 81.

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32 Ibid, 32.

33 Ibid, 34.

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37 Ibid 148.

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