Categories of the ‘Art of the Impossible’: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation

Published date01 September 2020
Date01 September 2020
AuthorGuzyal Hill
Subject MatterArticles
FLR927808 350..381 Article
Federal Law Review
2020, Vol. 48(3) 350–381
Categories of the ‘Art
ª The Author(s) 2020
Article reuse guidelines:
of the Impossible’: Achieving
DOI: 10.1177/0067205X20927808
Sustainable Uniformity
in Harmonised Legislation
in the Australian
Guzyal Hill*
National uniform legislation links the federal distribution of powers achieved more than 119 years
ago with the challenges and opportunities faced by Australia in an interconnected world. Over this
span of time, developing national uniform legislation has been described as the ‘art of the
impossible’. The main objective of this article is to critically examine the database of national
uniform legislation with a view to applying public policy and federalist theory to explain how
sustainable uniformity has been achieved. Rather than focusing on why an individual set of uniform
Acts has not achieved a high level of uniformity or has diverged through unilateral amendment, this
article examines national uniform legislation by analysing the factors at play. This approach allows
the common patterns impacting sustainable uniformity to be identified. From among 84 sets of
uniform Acts, four discernible links with theory have been found: (1) the ‘incrementalism and
policy cycle’ model—to explain harmonisation that may take decades (31 sets); (2) the ‘multiple
streams’ framework, explaining legislation that emerges as sustainably uniform from the outset due
to an ‘open policy window’ (16 sets); (3) ‘pragmatic federalism’ solutions, such as skeletal legis-
lation and the conferral of powers, which are developed in the course of inter-jurisdictional
negotiations when uniformity is required but is particularly difficult to achieve (14 sets); and (4)
the ‘advocacy coalition’ framework, which in contrast, explains situations where jurisdictions hold
firm views about retaining diversity (23 sets). Developing and drafting national uniform legislation
can become the ‘art of the possible’ with this improved understanding.
* Lecturer in Law, Asia Pacific College of Business and Law, Charles Darwin University. The author may be contacted at I would like to express my sincere gratitude to the supervisors without whom this work would
not be possible: Professor Les McCrimmon, Professor David Price, Professor Ned Aughterson and Dr John Garrick. In
addition, I would like to thank the examiners and the reviewers.1

I Introduction
The main objectives of this article are to critically examine the complexities of national uniform
legislation and to apply federalist and public policy theories to explain how sustainable uniformity
of national uniform legislation is achieved. This article adopts the following foundational assump-
tions: (1) reform of Australian federation progresses as a complex, multifaceted and interdisci-
plinary debate in which the short-term response has been ‘co-ordination and harmonisation of
government action, largely through inter-governmental schemes’,2 including national uniform
legislation; (2) uniformity is not a panacea or good in itself; (3) due to deeper processes taking
place internationally and in Australia, proliferation of national uniformity is a current trend. Thus,
there is an increasing number of cases when the Commonwealth, states and territories work
together on implementing national reforms for common benefit. The drafting of national uniform
legislation has been referred to as ‘the art of the impossible’.3 Once uniformity is lost through the
unilateral amendments of different jurisdictions, however, the benefits dissipate. Despite this
troubling possibility, no critical academic examination of national uniform legislation has previ-
ously been conducted in Australia from the sustainable uniformity perspective. If we do not clearly
understand what is involved with uniformity and how to support it, achieving national responses
may become even more challenging.
Achieving and sustaining uniformity is vital to maintaining a congruent national policy. The
reasons for sustaining uniformity may be divided into two categories. The first is the effectiveness
and efficiency of government actions. It takes major government resources to achieve uniformity in a
federation: extensive research, protracted negotiations, at times fierce lobbying and many other
actions including legislative drafting and enacting.4 Thus, there is value in achieving longstanding
and stable legislation that can be maintained at a pace commensurate with the accelerated changes in
society today. The second relates to the sound benefits of national uniform legislation and more
specifically to each set of uniform Acts. The benefits derived from the Acts are individual, but they
can quickly dissipate when uniformity is lost. For example, in the case of the construction security of
payments legislation, harmonisation reduces ‘the cost of businesses moving between jurisdictions
and operating in different jurisdictions’.5 This can minimise duplication and mean that ‘the costs of
building are not inflated in those States or Territories where there is a higher risk that subcontractors
will not get paid’.6 In the context of work health and safety legislation, harmonisation establishes fair
and equal protection for workers across Australia. With the electronic commerce law reform, the
benefits of harmonising include improving accessibility and certainty; enabling ‘simplification and
removal of technicality’; ‘setting standards for an appropriate conduct’; ‘supporting innovation’;
1. This article is based on the key findings from Guzyal Hill, Achieving Sustainable Uniformity of National Uniform
Legislation (PhD Thesis, Charles Darwin University, 2019).
2. Cheryl Saunders, ‘The Constitutional, Legal and Institutional Foundations of Australian Federalism’ in Robert Carling
(ed), Where to for Australian Federalism (The Centre for Independent Studies, 2008) 15, 25.
3. House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia,
Harmonisation of Legal Systems within Australia and between Australia and New Zealand (Report, November 2006)
4. That is not to say that in unitary states, government reforms can avoid overlap and duplication. As Carter warns, in New
Zealand, if law reform is non-systematic and uncoordinated, it can also lead to overlap and duplication between the
reform agencies: Ross I Carter, Burrows and Carter Statute Law in New Zealand (LexisNexis, 2015) 47.
5. Royal Commission into the Building and Construction Industry (Final Report, February 2003) vol 8, 255.
6. Ibid.

Federal Law Review 48(3)
‘maximising participation in the digital economy’; ‘increased protection for small and medium
businesses’; ‘increased trade between the States and Territories’; and ‘bringing contract law in line
with international trends’, thereby removing barriers to international trade.7
As the Productivity Commission pointed out, ‘national uniformity can deliver economies of scale
for governments and firms, reduce transaction costs and enhance competition within the regulated
industry. However, achieving uniformity requires significant jurisdictional cooperation.’8 The
resulting legislation is not immune to ‘drafting errors, ambiguities, and gaps’. In addition, achieving
uniform amendments is difficult in circumstances when some laws are out of date soon after they
have been adopted. Sustainable uniformity, as discussed in this article, is not intended to be synon-
ymous with ‘unchangeability’. The inability to change can be counterproductive. Sustainable uni-
formity is therefore best understood as the ability to adapt to future change through uniform
amendments, not as the desire to rigidly avoid the making of amendments. Uniform legislation
should not stifle innovation in jurisdictions. Rather, there must be avenues to ensure that amend-
ments are streamlined and not heralded as differences between jurisdictions when they are not.
‘Sustainable uniformity’ is thus defined in this article as substantially uniform national legislation
that is subject to uniform rather than unilateral amendments by jurisdictions. The following types of
actions can be isolated as threatening sustainable uniformity: (1) enactment of a Model Bill with
substantial differences; (2) unilateral amendments to legislation promptly after its enactment; (3)
subsequent unilateral amendments; and (4) not amending when circumstances change.
Rather than focusing on why an individual set of uniform Acts has not achieved a high level of
uniformity or has diverged through unilateral amendment, this article examines national uniform
legislation by analysing the factors at play. The empirical findings are evaluated using public
policy theory frameworks: iterative cyclic development, multiple streams and advocacy coalition.
Iterative cyclic development explains most of the factors impacting sustainable uniformity, with
the remainder explained by the multiple streams and advocacy coalition frameworks. Some find-
ings are also explained by drawing on pragmatic federalist theory. An original model has been
developed to illustrate how the theories help explain and evaluate sustainable uniformity. The
model does not rely on anticipating or second-guessing directions. Rather, it considers the factors
impacting sustainable uniformity.
II Examination of the National Uniform Legislation Database
Due to the proliferation of national uniform legislation, conducting...

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