2014 Use and Enforcement of Soft Law by Australian Public Authorities 3
authorised by Parliament. Codes of practice, guidance, guidance notes, circulars, policy
notes, development br iefs, practice statements, tax concessions, codes of conduct,
codes of ethics and c onventions will all gener ally fall into the latter category.
However, listing different soft law instruments is a n unsatisfactory manner in which to
define soft law, with such lists te nding ‘to be over-inclusive, while not giving sufficient
information to enable a classification to be made’.
Such lists must therefore be seen
as providing examples of what soft law includes instead of being definitive of what soft
law is. As Creyke and McMillan have warned, ‘it is what an instrument does, not what
it is called, that is important’.
Nonetheless, the types of instrument included within
the term 'soft law' remain elusive.
The definition of soft law in Australia is generally best expressed negativel y or, in
other words, by w hat it isn't. It i sn't primary legislation, which is enacted by
Parliament. Nor is it delegated (or 'secondary') legislation,
which is made subject to
the express authority of Parliament. These are forms of 'hard' law. Robert Baldwin
described what is left as 'tertiary' legislation, which he defines as ‘usually ’ being made
without an express power to legislate conferred by an Act of Parliament, without
which there is no, or at lea st unclear, statutory authorisation ‘to make directly
enforceable rules ’.
At Commonwealth level in Au stralia, this debate has been
subsumed into the threshold issue under the Legislative Instruments Act
See Pearce and Arg ument, above n 2, 16. Writing from a British perspective, Aileen
McHarg included constitutional conventions which lack legislative force within the
definition of soft law: Aileen McHarg, 'Reforming the United Kingdom Constitution: Law,
Convention, Soft Law' (2008) 71(6) Modern Law Review 853.
Robin Creyke and John McMillan, 'Soft Law versus Hard Law' in Linda Pearson, Carol
Harlow and Michael Taggart (eds), Administrative Law in a Changing State: Essays in Honour
of Mark Aronson (Hart Publishing, 2008) 377, 380.
Ibid. This was also the guiding principle behind the Legislative Instruments Act 2003 (Cth).
An example of the sometimes elusive nature of soft law can be observed in the UK
Supreme Court's recent decision in Bank Mellat v Her Majesty's Treasury (No 2)  3 WLR
222, in which HM Treasury was empowered by statute to make directions by means of a
statutory instrument in r esponse to risks ‘arising from terrorist financing, money
laundering [or] nuclear proliferation’ (223  per Lord Sumption). Ordinarily, an
instrument made under direct statutory authority would automatically be classified as
hard law, but the Supreme Court seemed to view the order as something out of the
ordinary, a ’hybrid’ instrument over which Parliament exercised significantly reduced
oversight: 242  (Lord Sumption), 246  (Lord Reed), 265  (Lord Hope). Nothing
came directly from the Supreme Court's suspicion that the relevant instrument was not
hard law of the usual sort, the case being determined in Bank Mellat's favour, by majority,
on other gr ounds. However, it is salutary to note this case as an example of the point that
identifying soft law based upon set categories of instruments is ultimately, at best, a limited
approach to the issue.
Robert Baldwin, Rules and Government (Oxford University Press, 1995) 60–80.
Ibid 80. It must be said that this formulation rather begs the question of when legislation
will fail to amount to delegated or secondary legislation as ’usual’.
Legislative Instruments Act 2003 (Cth). This Act has been described as the ‘single most
important development in delegated legislation for at least half a century’: Stephen
Argument, 'Delegated Legislation' in Matthew Groves and H P Lee (eds), Australian
Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press,
2007) 134, 135.