The Chief Justice of the High Court, Murray Gleeson, was bemoaning regulatory overload this week. He cited the Corporations Law, which had increased tenfold in the past 20 years. My guess is the volume of various taxation Acts would have gone up perhaps twenty-fold in that time.
”We have a constant problem in the High Court, for example, with identifying the statute that’s relevant to the case that we have to decide because these statutes are amended so often,” Gleeson said. ”If you compare the amount of legislative output of a modern parliament with the legislative output of 100 or 50 years ago, the change is extraordinary.”
Indeed it is. I did the comparison. In 1955 the Commonwealth Parliament passed a single volume of legislation of 580 pages. In 2005 it passed seven volumes of legislation. It was not even courageous enough to number the pages. The numbering begins afresh with each Act. There were at least 4000 pages in 2005.
The Commonwealth is passing more Acts and the average length of them is increasing. Last year it passed 210 Acts. The federal, state and territory parliaments churn out legislation at an absurd rate. NSW was the worst offender last year. It passed 250 Acts; the Feds 210, Victoria 180, the ACT and Queensland 60 each, and Tasmania 50. I am rounding these off, and as some legislation comes into force a year after it is enacted they may not be completely accurate. You could add at least another 100 for Western Australia and South Australia. Time prevents me from extracting a more precise number of Acts from those states. In all, more than 800 Acts were
passed by Australian Parliaments last year, say 200,000 pages. Sure, quite a few were amending Acts. Precious few were repeals at least without longer and more detailed versions being enacted in their place. Mercifully, in this electronic age, fewer people and institutions are buying the printed versions or we would have no forests left. We have about 1500 consolidated federal Acts in force about 30,000 pages. You can treble that if you add the states’ and territories’ legislation. But wait. There’s more. I haven’t even counted the regulations made under these Acts. Often the regulations are longer than the Acts they are made under. You wouldn’t mind so much if it did some good. But all the evidence points the other way. Take the tenfold increase in Corporations Law mentioned by Gleeson, for example. We still got HIH, the biggest corporate collapse in Australia’s history, which made the 1960s Reed Murray and the Poseidon nickel collapses of the
1960s look like minor clerical errors. The hectares of tax law do not seem to have prevented endemic tax evasion. Every year some overseas or agricultural scam is revealed. And when all is said and done, Commonwealth revenue remains at roughly the same proportion of GDP as when the tax legislation was a tenth of its present size. Similarly with planning and building legislation. For all the hundreds of pages of legislation, is the built form any better now than it was in the 1960s? Arguably all the improvements can be put down to technology and better building techniques; all the planning legislation has done is add cost and delay. And speaking of costs and delay, Gleeson pointed out that the increased legislation has required more judges. Thirty years ago, Australia had 587 federal, state and territory judges and magistrates. Today it has 957. That is an increase of 90 per cent. The population has increased by 45 per cent, or half that rate.
He said in his twice-yearly state of the judicature address that litigation was getting longer and more expensive.
”Litigation is a perfect example of Parkinson’s law: work expands to fill the available time,” he said.
The emphasis on written submissions rather than oral advocacy had lengthened cases, contrary to what had been intended. Indeed, that is what happens with a lot of legislation.
I’ll finish with a couple of quick examples. The ACT Parliament’s insistence that everyone selling an established house get an energy- efficiency rating burns more fossil fuel in getting the rating than it saves because you cannot do much about a house once it is built and what you can do does not require an inefficient, legislatively mandated visit from an efficiency rater.
The damn-fool anti-gazumping law in most states and the ACT allows for a cooling-off period. But it can be waived if the buyer gets a certificate from a solicitor. The net result has been that every seller demands a waiver. So buyers have to pay for more solicitors’ work (and, quite reasonably, they charge for everything) with no net gain. The law also requires mountains of reports on the property. It means, of course, buyers have greater knowledge of a property and are therefore in a better position to overbid an earlier buyer. Arguably the anti-gazumping law is delivering the opposite of its intended effect.
There are probably thousands of other examples of legislatures seeking to save the world and charge like Don Quixote at the immutable windmill of human nature. No one seems to revisit this rubbish. They just keep piling ever more legislation upon us. Perhaps every time they want to impose some more legislation they should be required to repeal an equivalent amount. If the Chief Justice feels swamped, what hope have the rest of us got? Crispin Hull is a Canberra writer.