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Defining the policy objective and purpose of proposed legislation
This is a single section from Chapter 2. Read the full chapter here.
Is legislation the most appropriate way to achieve the policy objective?
Legislation should only be made when it is necessary and is the most appropriate means of achieving the policy objective.
Unnecessary legislation should be avoided because it involves significant costs. Those costs take various forms, including:
- the costs of enacting the legislation itself, including its preparation (drafting, consulting, and reviewing); the process through the House (including House sitting time and the costs of the select committee process); and the publication of the legislation;
- the costs of complying with the legislation (including learning about it and adjusting processes); and
- the costs in administering, implementing, and enforcing it.
There is also a range of indirect costs of legislation. For example, new legislation can add size and complexity to the statute book resulting in costs to accessibility. It can also make the policy inflexible because amendments when circumstances change will require new legislation.
These costs should be considered in every proposal for legislation to ensure that the benefit of a legislative solution outweighs the costs. Particular caution should be taken when:
- the policy can be implemented equally well by non-legislative means;
- obligations are proposed without consequences or an intention that they will be enforced;
- obligations already in the common law or other statutes are proposed to be included in new legislation for an educative purpose; or
- legislation will provide a power to do something that can be achieved without legislation for example, providing a power for the Crown to acquire shares.
Legislation or provisions in legislation that expressly provide they have no legal effect or that are not intended to be enforced risk needless expenditure of public funds and bringing the law into disrepute. If material that does not have a legal effect is enacted in legislation, possible risks to the clarity or certainty of the legislation should be identified and considered. For example, is there a risk that a court may subsequently read in a legal effect to the provision that was not contemplated by the law maker?
In many cases, a number of alternatives to creating new legislation will exist. The policy objective might be achieved more effectively through the use of education programmes, reliance on the common law or existing legislation, or reliance on existing civil remedies (see Chapter 22). Where legislation is preferred over another suitable, non- legislative alternative, this decision should be capable of justification. It is a Cabinet Manual requirement that unnecessary legislation is avoided.