The Rule of Law in the Age of Statutes
| Author | Lisa B Crawford |
| Published date | 01 June 2020 |
| DOI | 10.1177/0067205X20905955 |
| Date | 01 June 2020 |
| Subject Matter | Articles |
Federal Law Review
2020, Vol. 48(2) 159–185
The Rule of Law in the Age
ª The Author(s) 2020
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of Statutes
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DOI: 10.1177/0067205X20905955
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Lisa B Crawford*
Abstract
This article provides an empirical analysis of the legislative practice of the Australian Parliament and
considers its implications for the rule of law. Federal legislation is so voluminous, complex and
changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to
know. This could be potentially ameliorated by Australian courts embracing Chevron-style defer-
ence, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More
broadly, the article comments upon the way in which the rule of law and legislation should be
understood in a modern administrative state.
I Introduction
It is trite to say that we now live in an ‘age of statutes’.1 But ‘casual reference’ to the age of
statutes,2 without more, does little to clarify what is new or noteworthy about the contemporary
statute book. While there is considerable anecdotal evidence that statutes have increased in number
and complexity, there is relatively little empirical research substantiating or clarifying those
claims, especially in Australia, which is the focus of this article.3 And while commentators in
1. There are too many examples to sensibly cite, but see Guido Calabresi, A Common Law for the Age of Statutes (Harvard
University Press, 1982); Andrew Burrows, ‘The Relationship Between Common Law and Statute in the Law of
Obligations’ (2012) 128 Law Quarterly Review 232, 233; Paul Finn, ‘Statutes and the Common Law’ (1992) 22(1)
University of Western Australia Law Review 7; Anthony Connolly and Daniel Stewart (eds), Public Law in the Age of
Statutes: Essays in Honour of Dennis Pearce (Federation Press, 2015). As this range of citations indicates, the
phenomenon is not unique to any one jurisdiction.
2. Mark Leeming, ‘Equity: Ageless in the “Age of Statutes”’ (2015) 9(2) Journal of Equity 108.
3. Research of this kind has been undertaken in some other jurisdictions, but not Australia. For an example which employs
a similar methodology to that adopted here, see Lorne Neudorf, ‘The Supreme Court and Parliament: Evolving Roles
and Relationships’ in Matthew P Harrington (ed), The Court and the Constitution: A 150 Year Retrospective
(LexisNexis, 2017) 3.
* Senior Lecturer, Faculty of Law, University of New South Wales, PhD (Monash), BCL (Oxon), LLB/BA (UWA). The
author may be contacted at l.b.crawford@unsw.edu.au. Previous versions of this article have been presented at numerous
fora, and I am grateful to all those who have commented on it, especially Professor Gabrielle Appleby, Professor Mark
Aronson, Justice John Basten, Dr Janina Boughey, Professor Rosalind Dixon, Justice Mark Leeming, Professor Adrienne
Stone, Professor Anne Twomey and Professor Mark Tushnet, along with the anonymous referees for their most helpful
comments.
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Federal Law Review 48(2)
many jurisdictions have noted the explosion of statute law, there are undoubtedly differences in the
way that various legislatures legislate. The implications of these legislative practices, be they
positive or negative, will also vary depending on the constitutional arrangements and prevailing
doctrine of the legal system in question.
The purpose of this article is thus threefold. The first is to empirically analyse the legislative
practice of the Australian Parliament, and how it has changed over time. The second is to examine
the implications of the trends revealed by the empirical analysis for the rule of law. In order to do
so, I thirdly consider whether the age of statutes requires us to rethink our fundamental public law
principles, along the lines suggested by theorists such as Edward Rubin.4 In particular, do the
problems apparently posed by the proliferation of complex legislation dissolve if we readjust our
understanding of the rule of law, and the way in which legislation figures in it?
The empirical analysis confirms that the number of statutes enacted by the Australian Parlia-
ment each year has increased dramatically since Federation. The volume of legislation presently in
force is now significantly greater than in the past. Equally if not more important is the character of
the legislation being enacted. Many federal statutes are prolix, complex and unstable. Sometimes,
they stipulate rights, powers and obligations with great specificity; at other times, they confer
ostensibly open-ended discretionary powers on the executive branch, including the power to make
further legislation.
In a modern administrative state such as Australia, it would be unrealistic to expect that the
statute book should be short and simple, or that the ordinary member of the public could form an
understanding of the law by reading it. Yet, few would be willing to abandon the more fundamental
rule of law principle, that in a healthy legal system the law should be knowable. This seems to be a
proposition that we can all accept, even though the concept of the rule of law is notoriously
complex and contested.
The first reason for this is a pragmatic one: if the people who are supposed to be bound by the
law cannot know what it is, then they are less likely to follow it.5 The second is a point of principle.
Law is a tool of governance which is—or at least, should strive to be—distinct from coercion or
brute force.6 Governing through law acknowledges that the people are autonomous agents who are
entitled to know what the law is, and choose whether or not to obey it. Not every law will be just or
fair, no matter how clear and accessible its content. But every unknowable law is unjust in a
particular way: it fails to treat its subjects as agents deserving of respect as such.
The ‘subjects’ of the law are many and varied. The previous passage refers to ‘the people’. It is
equally important that the law be known to those who are required to implement it—that is, the
executive branch—without overreaching its boundaries. It is less common to consider the extent to
which the law must be known to Parliament, given its primary role is that of lawmaker. Yet, we
expect Parliament to act rationally. We see legislation as worthy of our respect because it repre-
sents a decision to change the law for what our elected representatives consider to be good
4. Edward Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89(3) Columbia Law Review 369.
5. See especially Joseph Raz, The Authority of Law (Oxford University Press, 2009) 210–32. In more recent work, Raz
acknowledged that the rule of law serves other broader purposes: ‘The Law’s Own Virtue’ (2019) 39(1) Oxford Journal
of Legal Studies 1.
6. Lon Fuller, The Morality of Law (Yale University Press, 2nd ed, 1969) 33–91. This aspect of Fuller’s theory is
highlighted and explored at length in Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller
(Hart, 2012). See also Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24(3) Law and
Philosophy 239.
Crawford
161
reasons.7 If Parliament changes the law without a clear understanding of the laws already in
existence, it may enact inconsistent or overlapping legislation, which further diminishes the acces-
sibility of the law. Indeed, it may enact legislation which serves no useful purpose at all. Finally,
the courts must be capable of ascertaining the law, especially so that they may determine whether
the other branches of government have acted within the legal parameters of their powers.
I argue that contemporary legislative practice makes the law difficult to know, in each of the
ways articulated above. The Australian public can no longer look (if it ever did) to statutory texts to
form a clear understanding of their legal rights and obligations. It must look elsewhere. While the
executive branch of government continues to play the core role of implementing legislation, it
performs another. This is a communicative one: executive actors explain the content of the law,
and provide guidance as to how it will apply in particular cases, to the public at large and to groups
affected by particular legislative regimes. Yet, this fact creates its own challenges, for the courts
still treat statutory texts as the definitive statement of the law, and their interpretation of those texts
will always trump that of the executive should it come to contest. The ordinary member of the
public may therefore be caught between conflicting public statements of the law and will receive
little protection from the courts if she is. She is not the only one who may struggle to ascertain the
law. Some—though of course, not all—pieces of legislation would also test the comprehension
skills of the executive actor responsible for implementing it, the legal advisor, or indeed the courts.
Federal legislation now forms such a complex web that Parliament may sometimes struggle to
form a sensible view of when and how to change it. Hence the volume and complexity of federal
legislation ought to be still regarded as a potential problem for the rule of law, even if we adjust our
understanding of that concept in order to accommodate the realities of the administrative state.
More broadly, we see a divergence between legislative and executive practice on the one hand, and
public law doctrine on the other.
This article takes the rule of law as its focus for two reasons. The first is...
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