Avoiding a ‘Catch 22’—Major Lessons From a Meta-Analysis of Reports of the Parliament of Western Australia on Threats to Sovereignty by National Uniform Legislation

Abstract

National uniform legislation has served as an instrument to attune federalism to new realities. The enactment of national uniform legislation is not a panacea. However, it is critical that when harmonisation is necessary, it is efficient and effective, results in long-lasting uniformity and does not encroach on the sovereignty of the State and Territory Parliaments. The problem is that national uniform legislation is often called to address complex legal issues, respond to a multifaceted debate and meet the demands of actors from divergent ideological backgrounds. This testing backdrop results in politically charged arguments that often is presented as a false dilemma between sovereignty and national uniform legislation, ‘catch 22’. To date, there has been lack of systematic objective analysis on what would be an example of this encroachment on sovereignty before the allegation of encroachment arise in the State or Territory Parliaments. This article seeks to address this gap through empirical methods. To ensure objectivity, a meta-analysis of 173 reports was undertaken. Contrary to political statements, the empirical findings suggest the cases of encroachment were rare and were isolated to specific practices. Legislative drafters, policymakers and law reformers must refrain from these practices if they wish to avoid the ‘catch 22’ of choosing between uniformity and sovereignty.

Full text

Bond University
Bond Law Review
Volume 33 Issue 1
2021
Avoiding a ‘Catch 22’—Major Lessons From a Meta-Analysis of Reports of
the Parliament of Western Australia on Threats to Sovereignty by
National Uniform Legislation
Guzyal Hill
Charles Darwin University
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Avoiding a ‘Catch 22’—Major Lessons
From a Meta-Analysis of Reports of the
Parliament of Western Australia on
Threats to Sovereignty by National
Uniform Legislation
GUZYAL HILL*
National uniform legislation has served as an instrument to
attune federalism to new realities. The enactment of national
uniform legislation is not a panacea. However, it is critical that
when harmonisation is necessary, it is efficient and effective,
results in long-lasting uniformity and does not encroach on the
sovereignty of the State and Territory Parliaments. The problem
is that national uniform legislation is often called to address
complex legal issues, respond to a multifaceted debate and meet
the demands of actors from divergent ideological backgrounds.
This testing backdrop results in politically charged arguments
that often is presented as a false dilemma between sovereignty
and national uniform legislation, ‘catch 22’. To date, there has
been lack of systematic objective analysis on what would be an
example of this encroachment on sovereignty before the
allegation of encroachment arise in the State or Territory
Parliaments. This article seeks to address this gap through
empirical methods. To ensure objectivity, a meta-analysis of 173
reports was undertaken. Contrary to political statements, the
empirical findings suggest the cases of encroachment were rare
and were isolated to specific practices. Legislative drafters,
policymakers and law reformers must refrain from these
practices if they wish to avoid the ‘catch 22’ of choosing
between uniformity and sovereignty.
* Asia Pacific College of Business and Law, Charles Darwin University.
I would like to thank Felicity Mackie, Advisory Officer of the Legislative Council Committee
Office of Western Australia, for her research assistance.

38 Bond Law Review (2021)
I Introduction
Although the Australian States have always moved to standardise laws, a
new imperative has emerged with the globalisation of the economy and
rapid technological change.1
The trend for the proliferation of national uniform legislation is ‘not
likely to diminish’.2 The challenges of today rarely discriminate in its
impact on the federal jurisdictions. In Australia, COVID-19 pandemic
creates disruption across all jurisdictions, the bushfires and floods do
not stop at Western Australian border, the hackers do not hack systems
located in the Northern Territory only and the social media posts
published in the New South Wales do not affect people residing in New
South Wales only. In addition, Australia now has a ‘highly
geographically mobile population’ estimated as the highest
‘residentially mobile’ nation in the world.3 Technological progress has
expanded information sharing across the States and Territories,
contributing to a rise in the ‘national conscience’. Australia, as other
federations, face a myriad of emerging policy challenges requiring a
national approach. These have ranged from day-to-day personal
security issues of domestic violence to issues of national security
relating to counter-terrorism legislation. The growth of national
uniform legislation is foreseeable. With the growth in the volume and
complexity of national uniform legislation, law reform agencies, the
Commonwealth, State and Territory governments and policy
institutions have more, not less, work to do. Policymakers, law
reformers and legislative drafters have to navigate a labyrinth of issues
and uncertain conditions involving a wide range of stakeholders while
maintaining a tight focus to build momentum for uniformity. In so
doing, they have to respond to the demands of a multi-faceted debate
among actors from divergent ideological backgrounds with sometimes
irreconcilable differences over values and perspectives.
The growth of national uniform legislation means that the problems
that occurred on a smaller scale when there was less national uniform
legislation will begin to occur on a larger scale as more sets of national
uniform acts are introduced. Further, more policymakers and legislative
drafters will need to find guidance in lessons from the past. Thus, the
search for the exact practices that threaten sovereignty as identified by
parliamentary scrutiny warrants rigorous academic attention. If national
1 Uniform Legislation and Intergovernmental Agreements Committee, Parliament of Western
Australia,
Committee Report of Activities November 1996–October 1999
(Report, October
1999) 10.
2 Robert French, ‘The Incredible Shrinking Federation—Voyage to a Singular State?’
(Conference Paper, The Future of Australian Federalism Conference, 10–12 July 2008) 5.
3 Graeme Hugo, Janet Wall and Margaret Young, ‘Migration in Australia and New Zealand’ in
Jr. Poston, Dudley L (ed),
International Handbook of Migration and Population Distribution
(Springer, 2016) 333.

Vol 33 Avoiding a ‘Catch 22’ 39
uniform legislation is growing, then once conceptual questions become
practical questions. Additionally, more professionals will need to
become involved with national uniform legislation and have knowledge
of what actions are problematic in this context.
However, discussions on the issue of encroachment on sovereignty
are not always objective. Decision making in federations has been
criticised for its ‘opaque’ qualities.4 Saunders5 has noted the need for
transparency, emphasising the harm done by the ‘opaque
intergovernmental decision-making processes’ in which transparency
and accountability are diminished. 6 In such circumstances, it was
deemed particularly important that an analysis of existing parliament
reports on the topic be undertaken. The evidence-based solutions are
the key: ‘Without evidence, policymakers must fall back on intuition,
ideology, or conventional wisdom, or at best, theory alone, and many
policy decisions have indeed been made in those ways’.7 However,
while evidence-based knowledge and decision making are finally being
applied to policy content,8 the procedure for implementing policy has
been largely unexplored by empirical studies. Indeed, little is known
about evidence-based approaches to harmonisation in a federation,
particularly in relation to the effects that such approaches have on the
sovereignty of State and Territory Parliaments. To address this issue
and ensure objectivity, a meta-analysis of 173 reports was undertaken
to determine whether certain pieces of uniform legislation encroached
on the sovereignty of the Western Australian Parliament. The argument
proceeds in the following main sections: (1) examination of federalism
as an aspiration to maintain both unity and diversity with national
uniform legislation being an instrument to preserve the balance; (2)
explanation of methodology that is not traditional for legal research but
necessary to examine 173 reports; (3) conceptual reconciliation of
contemporary relationship of national uniform legislation and
sovereignty with the finding that the encroachment on sovereignty of
the Parliaments is theoretical definitions of encroachment on
sovereignty by national uniform legislation in abstract do not lead to
satisfactory conclusions; (4) empirical findings from examination of the
reports leading to main lessons on when the encroachment on
sovereignty was found to take place. Contrary to political statements,
4 John Phillimore and Tracey Arklay, ‘Policy and Policy Analysis in Australian States’ in Brian
Head and Kate Crowley (eds),
Policy Analysis in Australia
(Policy Press, 2015) 87.
5 See Cheryl Saunders and Michelle Foster, ‘The Australian Federation: A Story of the
Centralization of Power’ in Daniel Halberstam and Mathias Reimann (eds)
Federalism and
Legal Unification
(Springer, 2014) 87.
6 Cheryl Saunders and Michael Crommelin, ‘Reforming Australian Federal Democracy’
(Research Paper No 711, Legal Studies, University of Melbourne, 2015) 1.
7 Ibid 110.
8 Demissie Alemayehu and Marc L Berger, ‘Big Data: Transforming Drug Development and
Health Policy Decision Making’ (2016) 16(3)
Health Services and Outcomes Research
Methodology
92.

40 Bond Law Review (2021)
the empirical findings suggest the cases of encroachment identified in
this research were rare and were isolated to specific practices. These
practices should be considered by law reformers, policymakers and
legislative drafters who wish to avoid the false dilemma or ‘catch 22’
of having to choose between uniformity and the sovereignty of the State
and Territory Parliaments.
II What is the ‘Catch 22’ of Choosing Between Uniformity
and Sovereignty?
National uniform legislation has a number of benefits, as discussed in
section VI. However, national uniform legislation also has a serious
obstacle to overcome: it cannot encroach upon the sovereignty of the
State and Territory Parliaments. State and Territory Parliaments have
raised concerns about the effects of uniformity on state rights
on
numerous occasions. 9 The dilemma between uniformity and
sovereignty is demonstrated in the following, almost humorous,
exchange, which occurred during a public hearing of the Fair Trading
Bill in Western Australia:
Hon Linda Savage: That is a bit of a catch 22, is it not?
Mr Newcombe: There is no way around it. This is the conundrum
that we are in: either there is uniformity or there is
State sovereignty and the State exercises its
sovereignty. When it exercises its sovereignty, you
will lose uniformity.10
Such a reading of sovereignty or uniformity could paralyse the
workings of federations in the modern world. Stated in these broad
terms, the argument that uniformity encroaches on sovereignty is not
only an obstacle to harmonisation, it could also create a dead-end for
federations. Thus, a more objective understanding of sovereignty in the
context of drafting national uniform legislation is needed. However, any
such understanding seems to be lacking. This is illustrated in the
following exchange, documented in a report, in which an official was
asked whether the encroachment on sovereignty exists:
When asked whether there are any further safeguards or checks that ‘might
be desirable to at least be considered in order to preserve Western
9 See, for example, Standing Committee on Uniform Legislation and Intergovernmental
Agreements, Parliament of Western Australia,
Scrutiny of National Scheme Legislation and
the Desirability of Uniform Scrutiny Principles
(Report No 10, 31 August 1995); Karen
Sampford et al. ‘National Scheme Legislation’ (Research Brief No 27, Parliamentary Library,
Parliament of Queensland, 2007).
10 Department of Commerce, Transcript of the Public Hearing (1 November 2010) 28–9 cited in
Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Fair Trading Bill 2010 and Acts Amendment Fair Trading Bill 2010
(Report No 56,
November 2010) 74.

Vol 33 Avoiding a ‘Catch 22’ 41
Australia’s flexibility, its sovereignty, its scope of action to look after its
interests?’, Dr Thomson SC advised:
I think the answer to that is no.11
The official’s answer also included a statement no encroachment would
exist in a situation in which the Commonwealth Parliament could make
amendments to the final bill prior to Royal Assent without any input
from the Western Australian Parliament. Thus, the official overlooked
the existence of an encroachment from the Commonwealth and was of
the view that no encroachment existed in a situation with a clear
encroachment.
National reforms and harmonisation in federations are complex,
‘highly contested and, as with all areas of social regulation, involve
difficult trade-offs between competing social and economic values and
interests producing both winners and losers’. 12 Consequently, it is
critical that when harmonisation is necessary, it is efficient and
effective, results in long-lasting uniformity and does not encroach on
the sovereignty of the State and Territory Parliaments. To date, there
has been lack of systematic objective analysis on what would be an
example of this encroachment on sovereignty before the allegation of
encroachment arise in the State or Territory Parliaments. This article
seeks to address this gap. This article contributes by proposing a slightly
different approach – it is proposed to define encroachment on
sovereignty by national uniform legislation through the practices that
must be avoided by law reformers and legislative drafters. The list of
these practices includes:
• ‘fiscal imperatives to pass uniform legislation; limited time
frames for consideration of uniform legislation and lack of notice
and detailed information as to negotiation’s inhibiting Members
formulating questions and performing their legislative scrutiny
role.’13
• imposing deadlines for scrutiny and enabling the Executive to
control the commencement dates;
• adopting an applied (template) structure for the legislation that
could either be:
o amended ‘from time to time’; or
11 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth
Powers) Bill 2018
(Report No 118, November 2018) 25.
12 See Eric Larry Windholz, ‘Harmonisation of Social Regulation in the Australian Federation:
A Case Study of Occupational Health and Safety’ (PhD Thesis, Monash University, 2013).
13 Legislative Council Standing Committee on Uniform Legislation and General Purposes,
Parliament of Western Australia,
Uniform Legislation and Supporting Documentation
Report
No19 (2004) 11.

42 Bond Law Review (2021)
o included strict limitations on the mechanism for amending
the legislation, which was related to an inability to
scrutinise the amendments;
• Henry VIII clauses that enabled acts to be amended by subsidiary
legislation;
• the employment of skeletal legislation; and
• the absence of review provisions.
The list is not exhaustive; but its value is in providing an evidence-
based solution to an often politically charged arguments. Another
benefit of this approach is its proactive nature. The law reformers and
legislative drafters can consult the list before encountering the problem
of encroachment at the time of developing the policy rather than
presenting a Bill for scrutiny by the Parliament.
III Constitutional Design and Theoretical Foundations for
Sovereignty in the Australian Federation
Any discussion of national uniform legislation must take into account
the fact that Australia was established as a federation that values
diversity and that its defining characteristic is its concurrency of
powers. National uniform legislation is a by-product of the federal
system and the
Australian Constitution
and has usually been called on
to bring about national coherence in areas in which the Commonwealth
Government has limited power or no power to legislate under the
Australian Constitution
. The
Australian Constitution
lists most of the
legislative powers of the Commonwealth Government in Section 51;
however, everything that falls outside these powers is left to be
regulated by the States and Territories. Section 107 of the
Australian
Constitution
preserves the legislative powers of the States and
Territories. Thus, Australian federalism is characterised by duality,
concurrency and ‘divided sovereignty’.14 The duality arises because the
State, Territory and Commonwealth Governments act as agents for the
people at the same time and in the same fields. Consequently, there is a
need for both a ‘delegation of powers to a higher level and [the]
devolution of other powers to the local level’ 15 and ‘concomitant
centrifugal and centripetal forces of State dissolution and
reformulation’.16 Thus, ‘federalism balances the interests of the nation
as a whole with the rights of the States by dividing power between the
two levels of government in accordance with local and national
14 Andrew Parkin and John Summers, ‘The Constitutional Framework’ in Dennis Woodward,
Andrew Parkin and John Summers (eds)
Government, Politics, Power and Policy in Australia
(Pearson Australia, 2010) 102.
15 James D Wilets, 'Unified Theory of International Law, the State, and the Individual:
Transnational Legal Harmonization in the Context of Economic and Legal Globalization'
(2010) 31(3)
University of Pennsylvania Journal of International Law
753, 819.
16 Ibid 821.

Vol 33 Avoiding a ‘Catch 22’ 43
issues’.17 Similarly, the American theorist Vile defined federalism as a
‘system of government in which central and regional authorities are
linked in a mutually interdependent political relationship; in this
system, a balance is maintained such that neither level of government
becomes dominant … however, each can influence, bargain with, and
persuade the other’.18
The definition of federalism most relevant to this research is ‘an
aspiration and purpose simultaneously to generate and maintain both
unity and diversity’.19 When discussing federalist theory, the traditional
starting point has been the debates of the 1890s, in which its advocates
argued that: ‘The Commonwealth … owes its birth to the desire for
national unity which pervades the whole of Australia, combined with
the determination on the part of the several colonies to retain as
States’.20 Today, federalism has a different connotation, and we cannot
rely on the noble intentions of the founding fathers. Both beliefs and
circumstances are different from the past. Diverse realities surround the
current participants debating historical arguments. Fysh asserted that
‘every member of the electorate must know that, in connection with the
various developments of his [or her] own province, there can be no
interference by an executive which will sit 1,000 miles away’.21 His
concerns about ‘proximity’ have been alleviated by the Internet, mobile
technology, social media and distance being shortened by satellite
technology (with the future developments forthcoming in drones and
high-speed driverless transportation). Change has been relentless with
globalisation.
Advances in science, artificial intelligence and terrorism are just
some of the challenges the founders of the Australian federation could
not have foreseen. Nevertheless, the policy-makers and legislative
drafters today must work within the constitutional powers established
over a century ago. This underscores the need for cooperation between
jurisdictions to enable the federation to deal with the new realities.22 It
17 M Evans, ‘Rethinking the Federal Balance: How Federal Theory Supports States’ Rights’
(2010) 1
The Western Australian Jurist
14, 34.
18 Maurice John Crawley Vile,
The Structure of American Federalism
(Oxford University Press,
1962). 199.
19 Daniel J Elazar,
Exploring Federalism
(University of Alabama Press, 1987) 64.
20 A V Dicey, Introduction to the Study of the Law of the Constitution (MacMillan and Co, 8th
ed, 1926) 529-530.
21
Official Record of the Debates of the Australasian Federal Convention
, Sydney, 4 March
1891, 1:42 (Philip Oakley Fysh). Sir Philip Oakley Fysh was Premier of Tasmania in 1877-
1878, returning in 1887-1892. In 1898 he was appointed Agent-General for Tasmania at
London. As an activist of the federal movement, he represented Tasmania in the 1891 and
1897 conventions. In 1901, Fysh was elected to the Australian House of Representatives as a
member for the Division of Tasmania.
22 See, eg, Augusto Zimmermann and Lorraine Finlay, ‘Reforming Federalism: A Proposal for
Strengthening the Australian Federation’ (2011) 37(2)
Monash University Law Review
190;
Bligh Grant, Roberta Ryan and Andrew Kelly, ‘The Australian Government’s “White Paper
on Reform of the Federation” and the Future of Australian Local Government’ (2016) 39(10)
International Journal of Public Administration
707.

44 Bond Law Review (2021)
is crucial to recognise that the early decisions on the distribution of
Federal and State powers were grounded in the circumstances and
beliefs of those times. In the absence of constitutional change, it is
important that the parties work together within the given framework.
Differing beliefs stem from the different starting points. At the
beginning of the federation, the most feasible option for the founding
fathers was to accept an element of disunity as ‘the lesser of two
evils’.23 The notion of a unified state was too big a proposition for those
times. The States were viewed as not wanting to ‘sacrifice any of their
existing powers, other than those … necessary [to] be surrendered in
the national interest … We shall make no request for a surrender which
cannot be justified on the score of the requirements of the national
interest’. 24 The participants in those early debates insisted that there
should be no intention ‘to diminish States’ authority, except in so far as
it is absolutely necessary in view of the great end to be accomplished,
which, in point of fact, will not be material as diminishing their
rights’.25 However, it cannot be said that the debate participants were
ignorant of the possible risks of federalism: ‘We know that the tendency
is always towards the central authority, that the central authority
constitutes a sort of vortex to which power gradually attaches itself.
Therefore, all the buttresses and all the ties should be the other way’.26
The main proposition at the time was that if the States were to unite,
their sovereign rights were not going to be infringed. This belief has
changed over the last 100 years, with Wheare observing in the 1960s
that there was a greater degree of ‘intergovernmental entanglement than
such [earlier] strictness would tolerate’.27 Wheare’s view was that
integration and the union of jurisdictions would deliver security and
economic advantages to the States.28 He predicted that developments in
mobility could lead to an increase in the influence of ‘the centre’ in
social spending.29 This has proved to be so, but it is a view that might
have infringed on the prevailing ideas that have dominated the debates
of the Australasian Federal Convention. Indeed, some modern scholars
23 Gregory Craven, ‘The States- Decline, Fall, or What’ in Gregory Craven (ed),
Australian
Federation: Towards the Second Century
(Melbourne University Press, 1992) 51.
24
Official Record of the Debates of the Australasian Federal Convention,
Sydney, 6 March 1891,
1:117 (Charles Cameron Kingston).
25 Sir Henry Parkes, Convention Debates, Sydney, 1891, 24 cited in John Quick and Robert
Randolph Garran,
The Annotated Constitution of the Australian Commonwealth
(1901) 930.
26
Official Record of the Debates of the Australasian Federal Convention
, Sydney, 3 April 1891,
1:707-708 (John Alexander Cockburn).
27 Alan Fenna, ‘Federalism’ in R Rhodes (ed),
The Australian Study of Politics
(Springer, 2009)
147.
28 K C Wheare,
Federal Government
(Oxford University Press, 4th ed, 1963) 35-50.
29 Ibid 113.

Vol 33 Avoiding a ‘Catch 22’ 45
have emphasised the need for centralisation and even the abolition of
the States.30
The above theoretical underpinnings of federalism are vital.
However, some limits to federalism theory are worth noting. For
instance, States’ rights arguments in the United States of America have,
in the past, been invoked to ‘defend some of the most despicable
institutions in American history, most notably slavery and segregation
of races’.31 Similarly, in Australia, the Bjelke-Petersen government of
Queensland obstructed the rights of minorities under the veil of ‘States’
rights’, vehemently arguing against the expansion of Commonwealth
powers.32 One proponent of States’ rights in Australia has been Eric
Butler, founder of the Australian League of Rights (a movement once
described as neo-Nazi).33 Such examples highlight the disadvantage of
adhering too vehemently to any one particular theoretical model. At the
same time, they demonstrate the need to provide an empirically tested
framework to improve the workings of Australian federalism, thereby
generating and sustaining substantial future benefits for the Australian
community.
IV Methodology, Foundational Assumptions, Research Scope
and Limitations
Consideration of the research question revealed that a one-dimensional
methodology would be insufficient to understand and address the issues
at hand. Further, due to the proliferation of national uniform legislation,
carrying out doctrinal case studies, as scholars have done previously,34
would have restricted this research to drawing inferences that only
applied to specific pieces of legislation. Thus, an expanded
methodology was adopted.35 The ‘law-as-data’ movement36 represents
an alternative approach to doctrinal and case study methods. Viewing
legislation as data or text, rather than rules, allows important empirical
30 Jim Soorley, 'Do we Need a Federal System? The case for Abolishing State Governments' in
Wayne Hudson, and Alexander Jonathan Brown (ed),
Restructuring Australia: Regionalism,
Republicanism and Reform of the Nation-State
(Federation Press, 2004) 38.
31 Heather K Gerken, ‘A New Progressive Federalism’ (2012) 24
Democracy: A Journal of Ideas
37, 37.
32
Koowarta v Bjelke-Petersen and Others
153 CLR 168.
33 Albert J Jongman,
Political Terrorism: A New Guide to Actors, Authors, Concepts, Data
Bases, Theories, and Literature
(Routledge, 2005), 505; Loane, Sally ‘How the Right Gets it
Wrong’
The Age
(21 October 1988).
34 See 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).
35 This was done in accordance with recent developments in legal research; for example, more
recent research uses the Delphi method as a way of decision making in policy development.
See Evgeny Guglyuvatyy and Natalie P Stoianoff, ‘Applying the Delphi Method as a Research
Technique in Tax Law and Policy’ (2015) 30
Australian Tax Forum
179.
36 Dru Stevenson and Nicholas J Wagoner, ‘Bargaining in the Shadow of Big Data’ (2015) 67
Florida Law Review
1337, 1352.

46 Bond Law Review (2021)
data to be introduced and statistical methods adopted to analyse the data
collected. Rather than examining the substance of the legislation being
studied, the ‘law-as-data’ approach enables the practices that have
affected sovereignty (as identified by parliamentary scrutiny) to be
analysed.
Consequently, a mixed-methods approach was adopted. In the first
part of this research, a doctrinal method was used to establish a
conceptual framework. In the second part of this research, empirical
methods were used to examine parliamentary reports. Specifically, a
content analysis of the data collected was undertaken (statistical
methods were used in the data analysis). The content analysis sought to
identify patterns and themes in the large amounts of data that had been
extracted from reports. Technically, the content analysis includes
establishing categories and systematically calculating the number of its
occurrences in text. 37 Creating categories allows data to be
methodically systematised. This increases objectivity and pierces
politically charged arguments.
The standard for empirical studies, including meta-analyses, ‘is not
perfection but rather benchmarking against alternative comparative
models. Simply put, if one person has an almanac and the other does
not, in the long run, the one with the almanac is likely to outperform’.38
As the data grows, it is likely that ‘more experience can be captured
than a single human mind might be able to consume’.39 In the future,
bigger datasets and better algorithms are likely to lead to the
development of new analytical techniques 40 that will allow
policymakers to engage with new developments. Thus, while evidence-
based decision making is not new, with better technology and access to
data, policymakers can ‘put their jurisdictions on a sustained path of
evidence-based decision-making’.41 This is not only applicable to a
policy’s substance but to the process of implementing the policy,
especially when complex issues of harmonisation are involved.
The methodology adopted in this research was built on a
foundational assumption: once a decision on the desirability of national
uniform legislation for a certain area of legislation is reached, there is a
public benefit to ensuring that harmonisation is achieved in an efficient,
37 Hall, Mark A and Ronald F. Wright, ‘Systematic Content Analysis of Judicial Opinions’
California Law Review 96.1 (2008) 63, 64.
38 Daniel Martin Katz, ‘Quantitative Legal Prediction or How I Learned to Stop Worrying and
Start Preparing for the Data-Driven Future of the Legal Services Industry’ (2012) 62
Emory
Law Journal
909, 963.
39 Lyria Bennett Moses and Janet Chan, ‘Using Big Data for Legal and Law Enforcement
Decisions: Testing the New Tools’ (2014) 37(2)
University of New South Wales Law Journal
643, 665.
40 Ibid.
41
Evidence-based Policymaking. A Guide for Effective Government
(Report from the Pew-
MacArthur Results First Initiative, November 2014), 2
<http://www.pewtrusts.org/~/media/assets/
2014/11/evidencebasedpolicymakingaguideforeffectivegovernment.pdf>.

Vol 33 Avoiding a ‘Catch 22’ 47
reliable and enduring way that does not encroach upon sovereignty.
Given the skills, time and money expended on harmonising legislation,
it must have substantial longevity if it is to be beneficial, even in cases
where policy refinement is required through further amendments.
This research focused on the problems related to encroachments on
sovereignty by national uniform legislation, even though it may
sometimes be the outcome of federalism and constitutional design. It
should be noted that this paper does not explore issues related to
federalism in great detail. However, there is consensus in the literature
that some change to Australian federalism is required.42 The debate is
complex, multifaceted and interdisciplinary, but the short-term
response has been to ‘co-ordinat[e] and harmonis[s] … government
action, largely through inter-governmental schemes’, 43 including
national uniform legislation.
In scope, this research recognises the necessity and importance of
local solutions and the fact that not every solution lies in adopting
national uniform legislation. There are certain countervailing forces
against national uniform legislation and pro-local approaches. Policy
innovation in different Australian jurisdictions in response to COVID-
19 pandemic is one of examples. Another example is innovation of the
States in an area of renewable resources. Yet another recent example is
the progress of States and Territories towards Treaty or Treaties with
Indigenous Australians. National uniform legislation is not a panacea.
In terms of limitations, the scope of the empirical portion of this
research was restricted by (a) the sample size of the reports by the
Western Australian Committee; and (b) its focus on the argument that
sovereignty was being encroached upon. In relation to the sample size,
the research only examined pieces of national uniform legislation (173
in total) that had been considered in reports by the Western Australia
Parliament. It should be noted that the reports only provide an account
of the more nuanced ways in which pieces of national uniform
legislation have encroached upon sovereignty. Had the attempts to
encroach upon sovereignty been more blatant, the legislation would not
have reached this stage of consideration. Indeed, such pieces of
legislation would have been estopped from entering this (almost final)
stage of parliamentary scrutiny. Thus, the sample size is not exhaustive;
however, it is sufficient due to its high volume and the importance of
the legislation included. The study’s focus on any encroachment to the
42 See, for example, Alan Fenna, ‘The Division of Powers in Australian Federalism: Subsidiarity
and the Single Market’ (2007) 2(3)
Public Policy
175; Anne Twomey, ‘Federalism and the
Use of Cooperative Mechanisms to Improve Infrastructure Provision in Australia’ (2007) 2(3)
Public Policy
211; The Commonwealth Government,
Reform of the Federation. White
Paper—A Federation for our Future
(Issues Paper No 1, September 2014).
43 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) 25.

48 Bond Law Review (2021)
sovereignty of the Western Australian Parliament ensured that this
research had a tight focus. Due to the nature of conducting a meta-
analysis, there was some risk that the nuances would be lost in the
process of seeking the ‘big picture’. However, the focus enabled the
main factors threatening sovereignty to be identified. The paper
provides key insights into national uniform legislation and the
institutions that frame it. Methodologically, this is the first research to
undertake a meta-analysis of reports (using a combination of doctrinal
and empirical methods, including undertaking a content analysis of the
reports) to examine encroachments of sovereignty by pieces of national
uniform legislation.
V Definitions of National Uniform Legislation and
Sovereignty
In extreme terms it has been argued that ‘Uniform schemes and
resulting legislation by their very nature have the capacity to erode or
undermine the sovereignty of the Western Australian State
Parliament’.44 In such wide terms, the mere existence of any national
uniform legislation amounts to a derogation of the State or Territory
Parliaments’ sovereignty. As ‘derogation involves detracting from or
taking away part of what has previously existed, in a sense, all uniform
legislation has this effect’.45 This argument has created a false dilemma
in which a choice must be made between sovereignty or uniformity.
That is why, it is argued that the definitions of sovereignty,
encroachment on sovereignty and its traditional and contemporary
understandings have to be explored with the view of constructing the
definitions with a workable solutions that do not paralyse the working
of the federation. Therefore, this section focuses on conceptual
reconciliation of definitions of national uniform legislation and
sovereignty. The argument progresses in the following parts: firstly,
brief examination of definition of national uniform legislation;
secondly, examination of the contemporary sovereignty and two
directions in which the encroachment on sovereignty can take place –
encroachment by the Commonwealth and encroachment by the
executive branch. The theoretical search, however, yields little, leading
to the conclusion that encroachment of sovereignty is better
conceptualised as certain examples of when such encroachment took
place are provided in section VIII that reports on results of the empirical
research.
44 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia, Personal Property Securities (Commonwealth Laws) Bill 2011 and Personal
Property Securities (Consequential Repeals and Amendments) Bill 2011 (Report No 59, 22
March 2011) 6.
45 Standing Committee on Uniform Legislation and Statutes, Parliament of Western Australia,
Rail Safety Bill 2009
(Report No 46, 1 April 2010) 12.

Vol 33 Avoiding a ‘Catch 22’ 49
Generally, national uniform legislation is defined by referring to the
concept of harmonisation. For example, the Australian Senate defines
‘national uniform legislation’ as legislation that is intended to
‘harmonise legislation across a number of jurisdictions’.46 Conversely,
the Uniform Legislation and Statutes Review Committee of the
Parliament of Western Australia defines ‘uniform legislation’ as ‘bills
that ratify or give effect to a bilateral or multilateral intergovernmental
agreement’ intended, ‘by reason of its subject matter, (to) introduce a
uniform scheme or uniform laws throughout the Commonwealth’.47
The term ‘national uniform legislation’ is also used to refer to
‘legislation which is substantially the same in all or a number of
jurisdictions’.48 Adopting a synthesis of definitions, which reveal the
different facets of national uniform legislation, for the purposes of this
research, national uniform legislation is defined as legislation with a
degree of uniformity that is implemented to give effect to an
intergovernmental agreement or a decision of a ministerial council.
Therefore, if the encroachment on sovereignty takes place, the
encroachment is directed from two main sources: (1) the
Commonwealth; and (1) by nature of the definition, the executive
branch of power because the legislation itself is the result of the
decision of the ministerial council. The encroachment of sovereignty by
the Commonwealth is best examined conceptually with reference to
modern reality in this section and empirically. The encroachment on
sovereignty by the executive, however, is best examined through
empirical examples provided in section VIII of this article.
As for the encroachment from the Commonwealth, some states’
rights theory proponents believe that ‘the States must retain their
powers and independence as much as possible’).49 These advocates
support a strong States approach wherein federalism (as intended by the
founders of Australia in the
Constitution
) refers to the States being
‘equal partners with the new national government’. 50 This ‘equal
partners’ perspective has tended to reflect the historical debate
examined in section III. Its proponents have urged the federal
government to ‘keep out of areas that belong to States according to the
Constitution’,51 with the national government holding only a narrowly
46 Scrutiny of Bills Committee, Parliament of Australia,
The Future Direction and Role of the
Scrutiny of Bills Committee
(Report, May 2012) 39.
47 Uniform Legislation and Statutes Review Committee, Parliament of Western Australia,
Information Report: Scrutiny of Uniform Legislation
(Report No 63, June 2011) 12.
48 Standing Committee on Uniform Legislation and Intergovernmental Agreements, Parliament
of Western Australia,
Uniform Legislation
(Report No 21, 1998) 6.
49 Evans (n 17).
50 Kenneth Wiltshire, ‘Chariot Wheels Federalism’ (2008) 20
Upholding the Australian
Constitution
76, 76.
<http://www.samuelgriffith.org.au/papers/html/volume20/v20chap11.html>.
51 Sir Harry Gibbs, ‘Australia Day Message, 26 January 2005’ (2005) 17
Upholding the
Australian Constitution
, (2005) Appendix 2 <http://www.samuelgriffith.org.au/
papers/html/volume 17/v17appendix2.html>.

50 Bond Law Review (2021)
defined list of exclusive powers (mainly found in sections 51 and 52 of
the
Australian Constitution
).52 More recently, however, there has been
an increasing tendency for matters of national concern to depend on
cooperative effort. Indeed, the history of Australian federalism
throughout the 20th century has been one of ‘gradual centralisation of
power in favour of the Commonwealth’. 53 Responsibility for the
centralisation trend has sometimes been levelled at the States, who have
been blamed for a ‘decline in State leadership’.54 Some have accused
the Commonwealth of ‘usurping the power of States’.55 Others have
placed responsibility for centralisation on the High Court for ‘failing to
interpret federal powers with a view to maintaining the federal
balance’.56 There has also been another perspective, holding that States’
rights have not been declining but rather have been changing in nature.
In a world where technology and mobility transcends the borders, the
States and Territories have adapted by cooperating. The objectives have
been the optimal distribution of resources for harmonisation (or where
distinctive laws have been required) and to ‘enable rapid response to
international [and local] threats or opportunities’.57
An adequate response to the current challenges faced by the
Australian nation (e.g., environmental challenges, artificial intelligence
and cybersecurity) ‘is to recognise that de facto shared jurisdiction is
both current realities and to some extent inevitable and that there is,
therefore, a need for closer and more effective co-operation between
governments’. 58 This approach recognises that ‘neither tier of
government has the capacity to take full responsibility in any area of
social policy, without a (politically unlikely) radical and fundamental
redesign of the federation’.59 It must be acknowledged that policy areas
will continue to be shared. Bright-line delineation, in which each level
of government ‘assumes that power means the ability to preside over
52 Ibid.
53 Kenneth Wiltshire, ‘Australian Federalism: The Business Perspective’ (2008) 31(2),
University of New South Wales Law Journal
583, 588.
54 Julian Leeser,
Sir Harry Gibbs and Federalism: The Essence of the Constitution
, Menzies
Research Centre (26 June 2008) <http://www.mrcltd.org.au/
research/economic-reports/federalism.pdf>.
55 Alan Fenna, ‘Centralising Dynamics in Australian Federalism’ (2012) 58(4)
Australian
Journal of Politics and History
580.
56 Evans (n 17) 34. See
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(1920)
28 CLR 129. In this landmark decision, the majority of the High Court (1) overturned the
doctrines of ‘implied intergovernmental immunities’ and ‘reserved State powers’, thereby
diminishing the position of the States; (2) construed Commonwealth powers broadly and let
the Commonwealth assume the dominant position vis-a-vis the States; and (3) severed
Australian constitutional law from American precedents.
57 Pablo Bello, ‘Security and International Cooperation Dominate Today’s Cyber Policy
Landscape’ (2016) 1(1)
Journal of Cyber Polic
y , 135.
58 J Phillimore and Alan Fenna, ‘Intergovernmental Councils and Centralization in Australian
federalism’ (2017)
Regional and Federal Studies
1, 6.
59 Scott Brenton, ‘Policy Capacity Within a Federation: The Case of Australia’ in
Policy
Capacity and Governance: Assessing Governmental Competences and Capabilities in Theory
and Practice
(Springer, 2018) 337, 353.

Vol 33 Avoiding a ‘Catch 22’ 51
one’s own empire, free from interference’ does not reflect the world or
Australia anymore. 60 To the contrary, both levels of government must
regulate a space that ‘is constantly negotiated and contested’. 61
Cooperation in this contested space is not clearly delineated or neatly
coordinated. The shared space requires ‘plasticity, innovation, and
adaptation as key aspects’. 62 Cooperative federalism and joint
regulation dominate the regulative landscape. This is not a situation in
which there are winners and losers; rather, the relationships are much
more complex. The approach is opaque rather than black and white.
Thus, a different perspective is required that takes into consideration
the multidimensional forms of pragmatic ‘reciprocal learning and
adjustment’ emerging incrementally across Australia.63
In considering similar problems in the United States of America,
Gerken arrived at the same conclusion. In emphasising the shared
responsibility of jurisdictions in federations, she stated:
Our regulatory structures and politics are deeply intertwined. Neither the
federal government nor the States preside over their own empire; instead,
they regulate shoulder-to-shoulder in a tight regulatory space, sometimes
leaning on one another and sometimes deliberately jostling each other. So,
too, States are no longer enclaves that facilitate retreats from national
norms. Instead, they are the sites where those norms are forged. 64
Rather than approaching national uniform legislation as an
encroachment on sovereignty, the argument must revolve around
achieving the ‘appropriate balance’ by ‘weighing the pros and cons’ of
certain approaches to national uniform legislation. 65 Given the
changing reality and the reframing of the debate in terms of subsidiarity,
national uniform legislation cannot be treated as a mechanism that is
harmful to federalism. In essence, national uniform legislation is a
product of federation.
Without national uniform legislation, the Commonwealth would
have to absorb the powers in cases where national policy is required;
however, this would be an encroachment. National uniform legislation
is the mechanism that prevents encroachment. National uniform
legislation used to be ‘dismissed as unnecessary, impractical, and
undesirable’;66 however, this position would not be supported today. As
60 Heather K Gerken, ‘Federalism 3.0’ (2017) 105
California Law Review
1695, 1698.
61 Ibid 1700.
62 Adrian Kay, ‘Separating Sovereignty and Sharing Problems: Australian Federalism and the
European Union’ (2015) 74(4)
Australian Journal of Public Administration
406, 408.
63 Amanda Smullen, ‘Conceptualising Australia’s Tradition of Pragmatic Federalism’ (2014)
49(4)
Australian Journal of Political Science
677, 680.
64 Ibid 1722–1723.
65 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Fair Trading Bill 2010 and Acts Amendment Fair Trading Bill 2010
(Report No 56,
November 2010) 100 (emphasis in original).
66 Richard H Leach, ‘The Uniform Law Movement in Australia’ (1963) 12(2)
The American
Journal of Comparative Law
206, 208.

52 Bond Law Review (2021)
Manison explained in the context of policing arrangements between the
Commonwealth, States and Territories, the influence of the
Commonwealth in areas traditionally policed by the States and
Territories has expanded considerably since the 1970s. This expansion
has not resulted from encroachment but from the expansion of the areas
of control for all jurisdictions.67 Neither reflect a devious intent of the
Commonwealth or the Executive to usurp the powers of the State or
Territory Parliaments. To summarise this section, it is difficult to see
how the argument of ‘keeping within the limits of jurisdiction
delineated by the
Australian Constitution
’ can work now given the
realities of the modern world of shared problems and expansion of areas
of control for all jurisdictions.
It seems theoretical definitions of encroachment on sovereignty by
national uniform legislation in abstract do not lead to any satisfactory
conclusions. That is not to say that encroachment on sovereignty does
not take place. It does. This encroachment, however, is best
conceptualised as certain practices, discussed in section VIII, rather
than blank refusal to cooperate for development of national policies
with plausible imperatives discussed in the next section.
VI Imperatives for National Uniform Legislation
This section examines imperatives for national uniform legislation.
National uniform legislation has a number of benefits that make the
attempt to implement it a worthwhile exercise. Such benefits must be
considered in wide terms, as any specific benefits cannot be discussed
in the abstract and must be considered on a case-by-case basis. The wide
range of purposes and goals of the various sets of uniform acts make it
impossible to capture every specific advantage; however, the general
benefits can be examined. The consensus is ‘that there is a strong
economic and “equality” case for regulatory uniformity … [which is],
if anything, growing stronger’. 68 One of the main advantages of
national uniform legislation relates to the logical convenience of having
a single set of rules for the same process throughout the entire country.
However, it also has a number of other advantages, including that it
provides a single set of rules for a homogeneous population, increases
conformity with the rule of law, unites legal talent in one pool and is
subject to detailed scrutiny.
Australia is a large country geographically; however, it is small in
terms of population. This has given rise to numerous calls for
harmonisation and uniformity. As Saunders stated, ‘Harmonisation ... is
67 See Gary F Manison, ‘Policing in the Australian Federation 1970–2010: A Changed
Paradigm’ (PhD Thesis, Curtin University, 2015) 6.
68 Joe Edwards, ‘Applied Law Schemes and Responsible Government: Some Issues’ in Glenn
Patmore and Kim Rubenstein (eds),
Law and Democracy: Contemporary Questions
(ANU
Press, 2014) 111 .

Vol 33 Avoiding a ‘Catch 22’ 53
widely perceived as good, in a country with a small population, at a
considerable distance from major world markets, in which the
component States and Territories are relatively homogenous’. 69
Similarly, observing that Australia has a relatively small and
homogenous population, Williams noted that ‘there are some areas
where cooperation tends to transcend competition because we recognise
there is a need for harmonised laws’.70 In this context, harmonisation
(particularly, in the area of private law) and uniformity are the ultimate
goals. This was emphasised by Sir Owen Dixon in the context of the
Australian federation when he posed the following questions: ‘Is it not
unworthy of Australia as a nation to have varying laws affecting the
relations between man and man? Is it beyond us to make some attempt
to obtain a uniform system of private law in Australia?’71 The benefits
of harmonisation have also been analysed as follows: ‘the costs and
distress resulting from legal conflict can be mitigated by reducing
differences in legal systems so that the same or similar “rules of the
game” apply to all participants regardless of physical location’.72
In addition to mitigating costs, national uniform legislation can
spread benefits to the population equally. For example, Section 3 of the
National Environment Protection Council (New South Wales) Act 1995
(NSW) states that the objective of the Act is to ensure that ‘people enjoy
the benefit of equivalent protection from air, water or soil pollution and
from noise, wherever they live in Australia’. Thus, by applying the
same laws across all the jurisdictions, uniform legislation not only
results in the equal distribution of benefits but also removes obstacles
for a mostly homogenous Australian population.
Another benefit of harmonisation and national uniform legislation is
greater conformity to the rule of law, which is directly related to the
predictability and coherence that national uniform legislation provides.
As Opeskin stated:
All things equal, a greater degree of conformity to the rule of law is
preferable to a lesser degree of conformity because it enables people to
better plan their lives. It is for this reason that attempts to unify the
substantive law and choice of law rules … ought not to be disparaged. In
particular subject areas, individuals are able to make their plans in the
knowledge that stable and predictable laws will apply to their actions,
wherever a subsequent dispute might be litigated.73
69 Saunders (n 43) 25.
70 George Williams, Foundation Director, Gilbert and Tobin Centre for Public Law,
Committee
Hansard
, 2 December 2010, 15–16.
71 Sir Owen Dixon quoted in KO Shatwell, ‘Some Reflections on the Problems of Law Reform’
(1957) 31
Australian Law Journal
325, 340.
72 Colin B Picker and Guy I Seidman, The Dynamism of Civil Procedure-Global Trends and
Developments (Springer, 2015) 39.
73 Brian R Opeskin, ‘The Price of Forum Shopping: A Reply to Professor Juenger’ (1994) 16
Sydney Law Review
14, 18.

54 Bond Law Review (2021)
When legislation is harmonised, different jurisdictions can speak with
one voice when preparing materials to explain the legislation to the
citizens. Given the information overload being experienced by
individuals and companies today, clearer legislation should facilitate
compliance with the law.74 Some artificial intelligence systems, such as
Eunomos75 and Regorous, 76 have the capacity to help organisations
navigate compliance requirements; however, this does not eliminate the
government’s obligation to help individuals and companies comply
with legal requirements.
As they are developed and drafted, centralised policies not only
benefit from harmonisation but from bringing together legal talent from
various jurisdictions.77 This undoubtedly saves time and costs, as legal
reform and modernisation can be immensely complicated and
expensive, especially when carried out at the local level. Uniformity
ensures fairness and equality, as each jurisdiction is provided with
complete, high-quality legal text, regardless of its own resources and
drafting talent. Uniformity also makes additional resources available
that can aid in the interpretation and application of legislation. For
example, numerous resources on the Internet explain the harmonisation
of the work health and safety laws, which are accessible across all
jurisdictions in which these laws have been enacted. Thus, the national
uniform legislation enables each State and Territory to access a larger
number of resources, which can be used to interpret and implement the
concepts expressed in the legislation.
Additionally, as national policy requires intra-jurisdictional
discussion, the resulting policy is subject to ‘a great deal more
scrutiny’.78 Hypothetically, scrutiny should result in better policies for
the jurisdictions involved. It also leads to a wider pool of talent working
to draft high-quality legislation that is up-to-date and modern.79
The benefits of national uniform legislation have been particularly
apparent in a number of major projects. In the final report of the Royal
Commission on the building and construction industry, Commissioner
Cole addressed the role of national uniform legislation in facilitating
74 R Kent Weaver, ‘Compliance Regimes and Barriers to Behavioral Change’ (2014) 27(2)
Governance
243.
75 Guido Boella et al, ‘Eunomos, A Legal Document and Knowledge Management System for
the Web to Provide Relevant, Reliable and Up-to-date Information on the Law’ (2016) 24(3)
Artificial Intelligence and Law
245.
76 Silvano Colombo Tosatto, Guido Governatori and Pierre Kelsen. ‘Business Process
Regulatory Compliance is Hard’ (2015) 8(6)
The Institute of Electrical and Electronics
Engineers and Engineers Transactions on Services Computing
958.
77 Peter B Maggs, ‘The Process of Codification in Russia: Lessons Learned from the Uniform
Commercial Code’ (1999) 44(2)
McGill Law Journal
281.
78 Anne Twomey and Glenn Withers,
Federalist Paper. Australia’s Federal Future. Delivering
Growth and Prosperity
(Report for the Council for the Australian Federation, April 2007) 15
<http://www.caf.gov.au/Documents/AustraliasFederalFuture.pdf>.
79 Peter B Maggs, ‘The Process of Codification in Russia: Lessons Learned from the Uniform
Commercial Code’ (1998) 44(2)
McGill Law Journal
281, 283.

Vol 33 Avoiding a ‘Catch 22’ 55
major projects that span several jurisdictions, including construction
projects. In remarking on the security of payment reforms, he stated:
National consistency in this area is important because it reduces the cost of
businesses moving between jurisdictions and operating in different
jurisdictions. It minimizes duplication and reduces the cost of education
campaigns. It means that the cost of subcontractors and the cost of building
are not inflated in those States or Territories where there is a higher risk
that subcontractors will not get paid. Furthermore, from the standpoint of
principle it is not obvious why subcontractors in one State or Territory
should have better prospects of receiving payment for their work than
subcontractors working in any other State or Territory.80
In the context of legal reform in electronic commerce, the Australian
Law Reform Commission (ALRC) has noted that electronic commerce
has become ‘an emerging priority for cross border legal initiatives’.81
More importantly, the Commonwealth Department of the Attorney
General has been working to ensure simple and reliable electronic
communications in transactions82 and has considered acceding to the
United Nations Convention on the Use of Electronic Communications
in International Contracts.83
In conclusion, the divergence of law and procedure have been
‘costly and bothersome’ in some cases. 84 However, the benefits of
national uniform legislation are numerous and include the logical
convenience of having a single set of rules for the same processes
throughout the entire country, greater conformity to the rule of law,
policy development, the bringing together of legislative drafting talent
and increasing Australia’s prosperity.
VII The Committee and its Scrutiny of National Uniform
Legislation to Identify any Threats of Encroachment on the
Sovereignty of the State Parliament
In the Australian federation, no specific body is dedicated to the
drafting and development of national uniform legislation. Conversely,
Canada has the Uniform Law Conference and the United States of
America has the Uniform Law Commission. In the majority of cases,
the work of developing policy and drafting national uniform has
historically been performed by the ALRC and the Parliamentary
Counsel’s Committee. However, the Parliament of Western Australia,
80 Royal Commission into the Building and Construction Industry (
Final Report
, 2003) vol 8,
255.
81 Australian Law Reform Commission,
Legal Risk in International Transactions
(Report No 80,
1996) para 5.2.
82 ‘E-commerce’,
Attorney-General’s Department (Cth)
(Web page, 2015)
<https://www.ag.gov.au/RightsAndProtections/ECommerce/Pages/default.aspx>.
83 Ibid.
84 Eleanor M Fox, ‘Harmonization of Law and Procedures in a Globalized World: Why, What,
and How?’ (1991) 60(2)
Antitrust Law Journal
593, 593.

56 Bond Law Review (2021)
via the Standing Committee on Uniform Legislation and Statutes
Review (the Committee) of the Legislative Council, has produced a
large body of work scrutinising national uniform legislation and cases
of encroachment on sovereignty by the Commonwealth and the
executive branch of power.
This section examines the cases in which a level of derogation was
identified. To achieve this objective, 173 reports of the Parliament of
Western Australia were examined. These reports were selected for
analysis, as: (1) Western Australia is historically viewed as a ‘reluctant
state’85 that engages in close scrutiny of the issues of sovereignty; and
(2) they provide a rich basis for analysis. Additionally, no other
parliament in Australia has a committee that engages in equivalent
reporting.
Strictly speaking, the reports of two different committees were
considered in the meta-analysis. The first committee was established by
the Legislative Assembly in 1993. While the second Committee was
established by the Legislative Council in 2002. The main function of
both these committees has remained unchanged and can be summarised
as investigating ‘whether [a] Bill may impact upon the sovereignty and
law-making powers of the Parliament of Western Australia.’86 On 4
August 1993, the Legislative Assembly established the Standing
Committee on Uniform Legislation and Intergovernmental
Agreements. This Committee produced reports between 1993–2002,
including two fundamental reports in which national uniform
legislation was scrutinised: Standing Committee on Uniform
Legislation and Intergovernmental Agreements, Parliament of Western
Australia,
Scrutiny of National Scheme Legislation and the Desirability
of Uniform Scrutiny Principles
(Report No 10, 31 August 1995) and
Standing Committee on Uniform Legislation and Intergovernmental
Agreements, Parliament of Western Australia,
Uniform Legislation
(Report No 21 1998).
The Uniform Legislation and General Purposes Committee
established by the Legislative Council of the Parliament of Western
Australia (2002–2005) produced 25 reports, including Legislative
Council Standing Committee on Uniform Legislation and General
Purposes, Parliament of Western Australia,
Uniform Legislation and
Supporting Documentation
(Report No 19, 2004). The current
Committee has produced 123 reports, including Legislative Council
Standing Committee on Uniform Legislation and General Purposes,
Parliament of Western Australia,
Information Report: Scrutiny of
85 Augusto Zimmermann, ‘The Still Reluctant State: Western Australia and the Conceptual
Foundations of Australian Federalism’, in N Aroney, G Appleby and T John (eds),
The Future
of Australian Federalism: Comparative and InterDisciplinary Perspectives
(Cambridge
University Press, 2012) 75.
86 Clause 6.4, Schedule 1 of the Legislative Council Standing Orders of the Parliament of
Western Australia.

Vol 33 Avoiding a ‘Catch 22’ 57
Uniform Legislation
(Report No 63, 2011) and Legislative Council
Standing Committee on Uniform Legislation and General Purposes,
Parliament of Western Australia,
Information Report on Uniform
Scheme Structures
(Report No 64, 2011). The current Committee tabled
its latest report on 20 August 2019 (Fair Trading Amendment Bill 2019)
and currently has one inquiry before it into the form and content of the
Statute Book. When this report is released, it will be the Committee’s
124th report.
The Legislative Council of Western Australia established the current
Committee on 17 August 2005. The name of this Committee has not
changed since that date. Schedule 1, Clause 6.3 of the Legislative
Council Standing Orders states that the functions of this Committee are:
1. to consider and report on [Uniform Legislation] Bills referred under
Standing Order 126;
2. on reference from the Council, to consider or review the development
and formulation of any proposal or agreement whose implementation
would require the enactment of legislation made subject to Standing
Order 126;
3. to review the form and content of the statute book; and
4. to consider and report on any matter referred by the Council.
Additionally, Clause 6.4 of Schedule 1 of the Legislative Council
Standing Orders states that: ‘In relation to function 6.3(a) and (b), the
Committee is to confine any inquiry and report to an investigation as to
whether a Bill or proposal may impact upon the sovereignty and law-
making powers of the Parliament of Western Australia’.
The above terms of reference were adopted by the Legislative
Council on 1 December 2011 and commenced operation on 6 March
2012. They differ from the Committee’s previous terms of reference.
The most significant difference between the form and current terms of
reference is the scope of the term of reference (a), which in its current
terms of reference limits the Committee’s inquiries to questions of a
bill’s impacts on Parliamentary sovereignty and law-making powers.
The Committee’s previous terms of reference were:
1. to consider and report on Bills referred under SO 230A [the equivalent
of current Standing Order 126];
2. of its own motion or on a reference from a Minister, to consider or
review the development and formulation of any proposal or agreement
whose implementation would require the enactment of legislation
made subject to SO 230A;
3. to examine the provisions of any instrument that the Commonwealth
has acceded to, or proposes to accede to, that imposes an obligation on
the Commonwealth to give effect to the provisions of the instrument
as part of the municipal law of Australia;
4. to review the form and content of the statute book;

58 Bond Law Review (2021)
5. to inquire into and report on any proposal to reform existing law that
may be referred by the House or a Minister; and
6. to consider and report on any matter referred by the House or under
SO125A.
In summation, the Western Australian Parliament has a committee
specifically dedicated to scrutinising uniform legislation on the topic of
the encroachment of sovereignty. The work of this Committee is unique
and the reports produced by the Western Australian Parliament have
provided a rich foundation for this research. The rationale for the
Committee’s work has been summarised as follows: ‘National Schemes
appear to challenge the sovereignty of the Western Australian
Parliament itself and so the work of the Committee is an attempt to
preserve the role of Parliament as the legislature’.87
VIII The Results of the Meta-Analysis
The results of the meta-analysis of the reports revealed that: (1) an
encroachment on sovereignty was only found in a minority of the
reports; and (2) all of the encroachments related to a limited number of
practices. A detailed explanation of each finding is provided below.
The meta-analysis showed that in the majority of reports, including
those that scrutinised uniform acts and uniform amendments to such
acts, there was ‘no encroachment on sovereignty’. 88 The passage
summarising the cases of in which a derogation in sovereignty can be
found has been cited in a number of reports. The practices impinging
on sovereignty identified by the passage include: ‘fiscal imperatives to
pass uniform legislation; limited time frames for consideration of
uniform legislation and lack of notice and detailed information as to
negotiation’s inhibiting Members formulating questions and
87 Legislative Council Standing Committee on Uniform Legislation and General Purposes,
Parliament of Western Australia,
Co-Operative Schemes (Administrative Actions) Bill 2001
and the
Agricultural and Veterinary Chemicals (Western Australia) Amendment Bill 2001
(Report No 2, 28 June 2001) 5.
88 See, for example:
Reports regarding the uniform amendments of existing national uniform legislation: Standing
Committee on Uniform Legislation and Statutes Review, Parliament of Western Australia,
Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2016
(Report No 97, June 2016) 7; Standing Committee on Uniform Legislation and Statutes
Review, Parliament of Western Australia,
Financial Transaction Reports Amendment Bill
2018
(Report No 113, June 2018) 9;
Reports regarding bills introducing national uniform legislation: Standing Committee on
Uniform Legislation and Statutes Review, Parliament of Western Australia,
Aquatic
Resources Management Bill 2015
(Report No 102, August 2016) 2; Standing Committee on
Uniform Legislation and Statutes Review, Parliament of Western Australia,
Tobacco Products
Control Amendment Bill 2017
(Report No 108, October 2017) ii; Standing Committee on
Uniform Legislation and Statutes Review, Parliament of Western Australia
, Electronic
Conveyancing Bill 2013
(Report No 85, February 2014) 18; Standing Committee on Uniform
Legislation and Statutes Review, Parliament of Western Australia,
Working With Children
(Criminal Record) Amendment Bill 2009
(Report No 45, March 2010) 64.

Vol 33 Avoiding a ‘Catch 22’ 59
performing their legislative scrutiny role.’ 89 This list should not be
considered exhaustive.
In addition to the aforementioned practices, the meta-analysis of the
reports revealed some other instances in which sovereignty had been
found to be encroached, each of which fell into one of several distinct
categories. The practices included:
1. imposing deadlines for scrutiny and enabling the Executive
to control the commencement dates;
2. adopting an applied (template) structure for the legislation
that could either be:
a. amended ‘from time to time’; or
b. included strict limitations on the mechanism for
amending the legislation, which was related to an
inability to scrutinise the amendments;
3. Henry VIII clauses that enabled acts to be amended by
subsidiary legislation;
4. the employment of skeletal legislation; and
5. the absence of review provisions.
The most complained about issues in the reports related to the time
allowed for scrutiny or the commencement of the legislation. For
example, the Report on the Health Practitioner Regulation National
Law Bill 2010 (WA) provided a limited period for scrutiny. However,
‘the Bill was tabled in the Legislative Council on 20 May 2010 (only
six weeks before the National Scheme became operational on 1 July
2010). There was a considerable delay between the signing of the
Intergovernmental Agreement (in March 2008) and the tabling of this
Bill in the Legislative Assembly on 5 May 2010’.90 The cases in which
the Committee identified encroachment included those in which the
Committee and the Parliament had had only a limited time for
scrutiny.91 Issues were also found where the date of commencement
was under the control of the Executive or when a certain set of uniform
acts was required to commence in different jurisdictions at the same
time. In such cases, the commencement date was usually ‘to be fixed
by way of proclamation’. 92 This practice was viewed as an
89 Legislative Council Standing Committee on Uniform Legislation and General Purposes,
Parliament of Western Australia,
Uniform Legislation and Supporting Documentation
Report
No 19 (2004) 11.
90 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Health Practitioner Regulation National Law Bill (WA) 2010
(Report No 52, June
2010) 21.
91 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Petroleum Legislation Amendment Bill 2017
(Report No 106, August 2017);
Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Health Practitioner Regulation National Law Bill (WA) 2010
(Report No 52, June
2010) 21.
92 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Statutes (Minor Amendments) Bill 2017
(Report No 105, June 2017); Standing

60 Bond Law Review (2021)
encroachment because in the first case, sufficient time was not allotted
for parliamentary scrutiny and in the second case, the commencement
of the act was not within the control of the Parliament.
The second most mentioned threat to sovereignty includes the
mechanism of amendment of legislation in applied structure. By way of
clarification, applied legislation is a structure allowing for the adoption
or application of laws enacted in other jurisdictions. 93 Applied
structures can be ‘extremely complicated’94 due to the variety of ways
in which jurisdictions can ‘apply’ the law. Acts are usually composed
of two parts. The first is jurisdiction-specific and the second (usually in
the appendix or schedule) is the applied law.
The Western Australian Parliament will not enact sets of uniform
acts in an applied structure from other jurisdictions that include default
amendments by other jurisdictions (including provisions that the act can
be ‘amended from time to time’).95 The criticism is directed towards
amendments that can be made without parliamentary scrutiny.96 As one
report stated, ‘Applying the laws of another jurisdiction … [where] the
Parliament of Western Australia cannot amend or repeal [legislation],
which may be inconsistent with the equivalent Western Australia
legislation is inconsistent with State parliamentary sovereignty’.97 A
more recent report stated:
The Committee found that the ‘from time to time’ approach ensures
immediate uniformity across jurisdictions. However, it also found
that it would unquestionably erode Western Australian
Parliamentary sovereignty. This was primarily because there would
be no opportunity for the Parliament of Western Australia to
consider a Commonwealth law before it was applied as a law of the
State.98
As Criddle noted, parliaments have become weary of such
arrangements. One member of the Legislative Assembly of Western
Committee on Uniform Legislation and Statutes Review, Parliament of Western Australia,
Fair Trading Amendment Bill 2013
(Report No 80, August 2013) 2; Standing Committee on
Uniform Legislation and Statutes Review, Parliament of Western Australia,
Directors’
Liability Reform Bill 2015
(Report No 92, April 2015).
93 PCC Protocol, 1.
94 Joe Edwards, ‘Applied Law Schemes and Responsible Government: Some Issues’ in Glenn
Patmore and Kim Rubenstein (eds),
Law and Democracy: Contemporary Questions
(ANU
Press, 2014) 96.
95 See discussion in Chapter 4.2 for the manner of implementing amendments in sets of uniform
acts in applied structure.
96 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia, National Electricity (Western Australia) Bill 2016; National Gas Access (WA)
Amendment Bill 2016; Energy Legislation Amendment and Repeal Bill (Report No 103,
September 2016).
97 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Gene Technology (Western Australia) Bill 2014
(Report No 89, March 2015) 21.
98 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Fair Trading Amendment Bill 2019
(Report No 123, August 2019) 3.

Vol 33 Avoiding a ‘Catch 22’ 61
Australia stated: ‘I am not in favour of falling into line with other States
in matters that are ticked off by the ministerial council without the
opportunity of this Parliament having an input’.99 When amendments
are implemented in other jurisdictions, another issue may also arise in
relation to the notification and implementation of the amendments. A
uniform amendment to keep legislation consistent with the other
jurisdictions requires additional effort. Such effort adds to the workload
of policymaking bodies who must ensure they remain abreast of the
amendments enacted in other jurisdictions. Due to resource allocations,
public service capacity and pressures to downsize and outsource, this is
not always possible.100 Thus, when amendments have been made to
applied legislation, there is not always a mechanism by which other
parliaments are notified.
The preferred position is that ‘the Western Australian Parliament
retains at all times the power to amend or repeal the Act’.101 This was
not the case in the Rail Safety application law in which could not ‘be
amended by the Parliament of Western Australia’, as the South
Australian Minister has the power ‘to appoint an Acting Regulator who
[would] have all the powers of the Regulator to affect rail safety in
Western Australia’.102 It is objectionable that another jurisdiction’s
laws be applied without giving Parliament the ability or time to
scrutinise the amendment.103 Western Australia’s position has already
been communicated and is widely known. Conversely, other
jurisdictions have approached sets of uniform acts in an applied
structure on a case-by-case basis. This approach adds another
dimension to the complexities experienced in relation to applied
legislation, especially given the issues related to the notification of
uniform amendments. However, this approach will not necessarily bar
uniformity if an appropriate mechanism is implemented that ensures
notification of the amendments is provided or the amendments can be
monitored.
Western Australia has implemented a solution to overcome this
problem. The Consumer Credit (Western Australia) Amendment Bill
2002 included the implementation of hybrid legislation 104 and the
99 Western Australia,
Parliamentary Debates
, Legislative Council, 24 June 2003, 9042, (Murray
Criddle).
100 See, for example, Brian Head and Kate Crowley,
Policy Analysis in Australia
(Policy Press,
2015) 55.
101 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Wills Amendment (International Wills) Bill 2012
(Report No 72, June 2012) 2.
102 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Rail Safety National Law (WA) Bill 2014
(Report No 91, March 2015) ii.
103 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Gene Technology (Western Australia) Bill 2014
(Report No 89, March 2015) 21;
Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Health Practitioner Regulation National Law Bill (WA) 2010
(Report No 52, June
2010) 21.
104 Western Australia enacted mirror legislation.

62 Bond Law Review (2021)
requirement that the Minister provide the clerks of each house of the
Western Australian Parliament with the amended legislation, including
a copy of the bill or regulation that amended the Consumer Credit Code
or regulation.105 This measure was ‘deemed to have the effect of tabling
the bill or regulations in both Houses of Parliament’. 106 Other
mechanisms have been suggested to address this issue, including ‘a
mechanism that purports to preserve the sovereignty of the Western
Australian Parliament, by providing that all future Commonwealth
amendments to the ACL must be tabled in both Houses of the Western
Australian Parliament and which will be subject to disallowance by
either House.’107
The third issue that arose relates to legislation that relies heavily on
delegated legislation, including instances in which substantive parts of
legislation were left to be drafted in the regulations (rather than in the
primary act). For example, in the case of the Community Protection
(Offender Reporting) Amendment Bill 2011 (WA), it was observed that
substantial parts of the policy were to be included in the regulations and
not the primary act. Specifically, section 38(1)(a) of the Bill allows
Regulations to prescribe other forms of identification’.108
In addition to leaving substantial parts of the policy to the
regulations, in some cases, primary acts have allowed for an act to be
amended by delegated legislation (in such instances Henry VIII clauses
are relied on). 109 The Committee has been concerned with the
unnecessary inclusion of Henry VIII clauses in the Acts. By way of
clarification:
Henry VIII clauses are clauses of an Act of Parliament which enables the
Act to be amended by subordinate or delegated legislation. They are
objectionable as they
• offend the theory of the separation of powers; and
• give insufficient regard to the institution of Parliament as the
supreme Legislature by eroding the sovereign function of
Parliament to legislate.
105
Consumer Credit (Western Australia) Act 1996
(WA) ss 6 and 6B.
106 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Health Practitioner Regulation National Law Bill (WA) 2010
(Report No 52, June
2010) 31.
107 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Fair Trading Amendment Bill 2018
(Report No 119, November 2018) 13.
108 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Community Protection (Offender Reporting) Amendment Bill 2011
(Report No 73,
2011).
109 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia, Personal Property Securities (Commonwealth Laws) Bill 2011 and Personal
Property Securities (Consequential Repeals and Amendments) Bill 2011 (Report No 59,
March 2011) 5–6.

Vol 33 Avoiding a ‘Catch 22’ 63
This means that the capacity of the Parliament to scrutinise Henry VIII
clauses is limited … The object of subsidiary legislation is to complement
and carry out the objects and purposes of an Act; to fill in the detail. Henry
VIII clauses go beyond this by enabling Acts to be amended by subsidiary
legislation.110
Provisions are expressed as a ‘Henry VIII clause’ wh e n these allow
amendment of an Act through Regulation. The provisions are called
‘Henry VIII clauses’ because under Henry VIII, the
Statute of Sewers
1531
(UK) had a provision where the Commissioner of Sewers could
make the rules to impose taxes. By its nature, the authority to raise
revenue is a power vested in Parliament (under the enabling legislation
passed under a Constitutional head of power). The use of this has been
discouraged by the PCC Protocol.111
The fourth issue that arose relates to situations in which only a
skeletal legislative framework has been provided. In such cases, much
of the detail of the legislation is left to administrative determination
through the wide discretionary powers provided to the Ministerial
Council and National Boards. However, such bills generally fail to
specify how this discretion is to be exercised and do not require that this
issue be prescribed in the regulations. This has had the effect of
excluding the State parliament entirely from any oversight of and
involvement with the national scheme. 112
Skeletal legislation can be objectionable from the perspective of
parliamentary sovereignty. In preparing regulations, considerable
discretion has been given to the Executive rather than the Parliament to
scrutinise primary legislation. Legislation is ‘skeletal’ when the primary
legislation only provides some policy framework (‘bare bones’) and
significant detail is left to be administratively determined through
delegated legislation, usually regulations. Generally, the practice of
drafting legislation with a skeletal framework has been discouraged.
However, no recent examples of skeletal legislation were found in the
reports. This suggests that this legislation is more a product of the past
than a preferred current practice.
The Committee also criticised the lack of review clauses in uniform
legislation.113 These clauses allow for the review of an act’s operations
after a certain period of time by the Parliament of Western Australia.
These are standard provisions in the drafting manual. These are not
110 Ibid 7.
111 Parliamentary Counsel’s Committee,
Protocol on Drafting National Uniform Legislation
(4th
ed, February 2018)
112 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Health Practitioner Regulation National Law Bill (WA) 2010
(Report No 52, June
2010) 21.
113 Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Co-Operatives Amendment Bill 2015
(Report No 96, February 2016) i.

64 Bond Law Review (2021)
included at times in cases of national uniform legislation. The
Parliament finds this practice objectionable.
In summary, the threats to sovereignty identified by the meta-
analysis were grouped in six general practices. Overall, these practices
appear to arise due to the processes and mechanisms associated with
parliamentary involvement with national uniform legislation. They
include issues related to cooperation (which is often related to the
timeframes and deadlines), the amount of detail that has been included
in the legislation and the executive pressure placed on the parliaments.
These issues reveal the need to improve communication and
cooperation to ensure that adequate processes are implemented and
enforced by parliaments in the development, drafting and
communication of policies for future national uniform schemes and
potential legislation.
Excluding situations in which legislation cannot be amended and
local parliaments are used to ‘rubber stamp’ the law, the cases of
encroachment identified in this research were quite rare and were
isolated to the specific cases described above. Indeed, the States and
Territories are far from powerless and wield ‘substantial power within
these regulatory structures’. 114 Notably, even legislation in referred
structures can be repealed if a state parliament revokes the reference.115
Rather than considering the strict delineation between the
sovereignty of the State and Territory Parliaments, consideration needs
to be given to the modern reality of mutual interdependence. Previously,
States and Territories have had greater autonomy. However, as
Australia has developed into an integrated country with shared
problems, an inability to deliver uniform regulations throughout the
country could hinder its progress. Thus, rather than being a bar to
federalism, national uniform legislation has had quite the opposite
effect. Indeed, national uniform legislation has served as an instrument
to attune federalism to new realities. Even when subject to the close
scrutiny of the Western Australian Committee, cases in which
sovereignty has potentially been encroached upon have been rare.
When this has occurred, the cases have been isolated to several
categories of derogation that appear to be related to specific practices,
processes and mechanisms. Such practices could be alleviated by
developing a common understanding and building cooperation among
the various actors involved in developing and drafting national uniform
legislation.
114 Gerken (n 60) 1701.
115 However, the consequences of amendments to legislation referring power are unresearched.
Standing Committee on Uniform Legislation and Statutes Review, Parliament of Western
Australia,
Succession to the Crown Bill 2014
(Report No 88, February 2015) 11.

Vol 33 Avoiding a ‘Catch 22’ 65
IX Conclusions and Implications
National uniform legislation will likely continue to grow in volume. As
it grows in volume and complexity, law reform agencies, the
Commonwealth, State and Territory Governments and policy
institutions will have more (not less) work. Policymakers, law
reformers and legislative drafters will have to navigate a labyrinth of
issues and uncertain conditions involving a wide range of stakeholders
while seeking to increase uniformity. They will also need to respond to
a multifaceted debate and meet the demands of actors from divergent
ideological backgrounds, who may sometimes have diverse or
irreconcilable differences, values or perspectives. The focus on
uniformity has to be negotiated within the existing constitutional design
and the distribution of powers to ensure that the sovereignty of the State
and Territory Parliaments is not impacted.
In this research, a meta-analysis of reports scrutinising national
uniform legislation was conducted to examine any threats to the
sovereignty of the Western Australian Parliament. The results revealed
several lessons that law reformers, policymakers and legislative drafters
could use as a checklist to ensure that the important principles of federal
distribution of powers are observed. A number of major threats to
sovereignty were identified in relation to numerous pieces of proposed
primary national uniform legislation. Some of the threats were
summarised in the reports and included ‘fiscal imperatives to pass
uniform legislation; limited time frames for consideration of uniform
legislation and lack of notice and detailed information as to
negotiation’s inhibiting Members formulating questions and
performing their legislative scrutiny role.’116 The major categories of
threats to sovereignty identified through this research can be
summarised in the following lessons: (1) imposition of deadlines for
scrutiny and enabling the Executive to control the commencement
dates; (2) limitation of scrutiny of amendments in applied structure; (3)
inclusion of Henry VIII clauses that enable primary legislation to be
amended by subsidiary legislation; (4) drafting legislation as skeletal;
and (5) non-inclusion of the review provisions.
The enactment of national uniform legislation should not be seen as
a panacea for all the legal challenges facing the Australian federation
today. However, this research provided insights into how an effective
and efficient national response can be made if so required. Notably, the
findings simplified and gave meaning to the major lessons that can be
learned in relation to uniform national legislation encroaching on the
sovereignty of State and Territory Parliaments by showing that there
116 Legislative Council Standing Committee on Uniform Legislation and General Purposes,
Parliament of Western Australia,
Uniform Legislation and Supporting Documentation
Report
No 19 (2004) 11.

66 Bond Law Review (2021)
are general lessons for legislative drafters, policymakers and law
reformers, who wish to avoid the ‘catch 22’ of choosing between
uniformity and sovereignty.