How does the area of law predict the prospects of harmonisation?

Abstract

Although each set of uniform Acts is unique, sets within an area of law have some common traits that impact the prospects for achieving uniformity in the process of harmonisation. Identifying these areas to explain how uniformity can be achieved offers valuable insights. This study is based on an empirical examination.

The key findings suggest that specific areas of the law could be susceptible to higher or lower levels of uniformity. Legislation in the following areas has been found to be ‘highly uniform’: commercial and corporate law, government, and energy and resources. In contrast, legislation concerning child protection, the regulation of road transport and criminal law have the lowest uniformity.

This study has unique practical and valuable research implications. In some policy areas, a uniform national response will be important. If consensus between the jurisdictions is lacking, and the area of law has historically had low uniformity, achieving a national response will require additional effort, resources and time. This may or may not be attainable. The key findings of this study are expected to help policymakers, law reformers and legislative drafters overcome the uncertainty related to developing strategic directions for harmonisation.

Full text

Guzyal Hill*
HOW DOES THE AREA OF LAW PREDICT
THE PROSPECTS OF HARMONISATION?
AbstrAct
Although each set of uniform Acts is unique, sets within an area of
law have some common traits that impact the prospects for achieving
uniformity in the process of harmonisation. Identifying these areas to
explain how uniformity can be achieved offers valuable insights. This
study is based on an empirical examination of 84 sets of uniform Acts.
The key findings suggest that specific areas of the law could be susceptible
to higher or lower levels of uniformity. Legislation in the following areas
has been found to be ‘highly uniform’: commercial and corporate law,
government, and energy and resources. In contrast, legislation concerning
child protection, the regulation of road transport and criminal law have
the lowest uniformity.
This study has unique practical and valuable research implications. In
some policy areas, a uniform national response will be important. If
consensus between the jurisdictions is lacking, and the area of law has
historically had low uniformity, achieving a national response will require
additional effort, resources and time. This may or may not be attainable.
The key findings of this study are expected to help policymakers, law
reformers and legislative drafters overcome the uncertainty related to
developing strategic directions for harmonisation.
I IntroductIon
Most studies have approached national uniform legislation by classifying it
according to structure.1 At the same time, there has been a limited focus
on how the area of law impacts the prospects for harmonisation within the
federation. Indeed, some areas of law might be more susceptible to harmonisation
than others. Public policy and federalist theories have explored how governments
operate and what happens before and after legislation is introduced into parliaments.
What has been missing is the link between the macro approaches to national uniform
* Asia Pacific College of Business and Law, Charles Darwin University. The author
may be contacted at guzyal.hill@cdu.edu.au.
1 Australasian Parliamentary Counsel’s Committee, Protocol on Drafting National
Uniform Legislation (4th ed, 21 February 2018) (‘PCC Protocol’).

HILL — HOW DOES THE AREA OF LAW PREDICT
268 THE PROSPECTS OF HARMONISATION?
legislation (as examined within those theories), and a micro approach that is more
familiar to legislative drafters and policymakers working with a particular set of
uniform Acts on a specific topic, for instance, e-conveyancing. It is precisely this
terrain that needs to be adequately analysed.
Harmonisation, as a process within the federation (and national uniform legislation
as a result), is often complex and riddled with uncertainty. At times, controversial
topics have led to the abandonment of harmonisation initiatives.2 However, if a better
understanding of the effort and support needed for national reform to succeed can be
achieved prior to embarking on the expensive exercise of harmonisation it can add
some predictability. Knowing how susceptible a specific area of law is to harmonisa-
tion can foster this understanding.
It is contended that although every set of national uniform legislation is unique, the
sets of uniform Acts within an area of law have some common traits that influence
the ability to achieve uniformity. Identifying these areas to explain how sustainable
uniformity can be achieved offers valuable insights that can help policymakers, law
reformers and legislative drafters overcome the uncertainty related to sustaining
uniformity and develop strategic directions for harmonisation.
II G A ps I n L IterAture An d the ‘LAw A s d AtA ’ Ap p r oA c h
to A n A Lys I s o f n At I o nA L u n I f o r m L e G I s L At I o n
What makes a study of uniformity within a particular area of law important and
relevant today is the tension between the need for a national response to a growing
number of challenges and the need to respect the constitutional distribution of legis-
lative powers between the Commonwealth, state and territory jurisdictions. National
uniform legislation relates to many aspects of society, such as the search for cancer
cures, counter-terrorism cooperation and surrogacy regulation. These are just some
of the challenges the founders of the Australian federation knew nothing about.
Yet policy makers, legislative drafters and law reformers must still work within the
confines of the Australian Constitution and its distribution of law-making powers.
As a result, contemporary challenges are addressed by regulations adopted through
national uniform legislation. Thanks to legislation that is ‘neither State nor federal
but simply Australian’,3 the seemingly impossible has been achieved through
2 Occupational Licensing (Adoption of National Law) Act 2010 (NSW); Occupational
Licensing National Law (Queensland) Act 2010 (Qld); Occupational Licensing
National Law (South Australia) Act 2011 (SA) ; Occupational Licensing National Law
Ac t 2011 (Tas); Occupational Licensing National Law Act 2010 (Vic). See John Sutton,
‘Productivity? Who Cares, as National Licensing Trashed by COAG’, The Fifth Estate
(Web Page, 26 February 2014) <https://www.thefifthestate.com.au/columns/spinifex/
productivity-who-cares-as-national-licensing-trashed-by-coag>. Sutton is a former
board member of the National Occupational Licensing Authority.
3 Sir Owen Dixon, ‘Sources of Legal Authority’ in Severin Woinarski (ed), Jesting
Pilate: and Other Papers and Addresses by Sir Owen Dixon (Law Book, 1965) 198,
201.

(2020) 41(1) Adelaide Law Review 269
collaborative efforts among the Commonwealth, state and territory governments.
National uniform legislation has resolved problems of international prison transfers
within a federation in which federal prisons do not exist.4 The Australia-wide
business names register has ensured a single, simple register that is easily accessible
to all Australians, who do not have to manage numerous registers with inferior trans-
parency and infrastructure. National uniform legislation has been called upon to
redress issues created by federalism, achieving ‘objects that neither [jurisdiction]
alone could achieve’.5 Without national uniform legislation, the advancement of the
Australian federation would have been impeded.
Despite the benefits national uniform legislation brings, it should not be treated as
a universal remedy. In some cases, preserving the diversity of legislation between
jurisdictions is preferable. Uniformity is not a panacea, and uniformity alone cannot
cure deficiencies in the law. As the Productivity Commission pointed out, ‘[n]ational
uniformity can deliver economies of scale for governments and firms, reduce trans-
action costs and enhance competition within the regulated industry. However,
achieving uniformity requires significant jurisdictional cooperation.’6 Uniformity
must therefore be supported by adopting best practices for both policy and drafting.
The drafting of national uniform legislation has been referred to as ‘the art of the
possible’.7 Policymakers, law reformers and legislative drafters have to navigate a
labyrinth of issues and uncertain conditions involving a wide range of stake holders,
while maintaining a tight focus to build momentum for uniformity. In so doing,
they have to respond to the demands of a multifaceted debate among actors from
divergent ideological backgrounds with diverse and sometimes irreconcilable values
and perspectives. Issues are often strongly contested, exemplified by the debates over
euthanasia and marriage equality. In these complex conditions, the law reformers
and legislative drafters have to give guidance and advice to policymakers on strategic
direction for national reforms.
4 International Transfer of Prisoners Act 1997 (Cth); Crimes (Sentence Administra-
tion) Act 2005 (ACT) pt 11.2; International Transfer of Prisoners (New South Wales)
Act 1997 (NSW); International Transfer of Prisoners (Northern Territory) Act 2000
(NT); Prisoners International Transfer (Queensland) Act 1997 (Qld); International
Transfer of Prisoners (South Australia) Act 1998 (SA); International Transfer of
Prisoners (Tasmania) Act 1997 (Ta s ) ; International Transfer of Prisoners (Victoria)
Act 1998 (Vic); Prisoners (International Transfer) Act 2000 ( WA) .
5 R v Duncan; Ex parte Australian Iron & Steel Pty Ltd (1983) 158 CLR 535, 580
(Brennan J).
6 Productivity Commission, Chemicals and Plastics Regulation: Lessons for National
Approaches to Regulation (Supplement to Research Report, January 2009) 5.
7 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) vii.

HILL — HOW DOES THE AREA OF LAW PREDICT
270 THE PROSPECTS OF HARMONISATION?
Most studies have approached national uniform legislation by classifying it through
structures: referred, applied and mirror.8 At the same time, there has been limited
focus on how these structures differ in various areas of law. Indeed, some areas of
law might have helped or hindered uniformity. Public policy and federalist theories
study how governments operate and what happens before and after legislation is
introduced to parliaments. Missing is the link between the macro approaches to
national uniform legislation as studied within those theories, and a micro approach
that is more familiar to legislative drafters and policymakers working with a particular
set of uniform Acts. It is precisely this terrain that needs to be adequately analysed.
Although every set of national uniform legislation is unique, the sets of uniform
Acts can be grouped by areas of law. The prospects of identifying these areas offers
valuable insights, which are expected to help policymakers, law reformers and legis-
lative drafters overcome the uncertainty related to sustaining uniformity and develop
strategic directions for harmonisation.
In addition, divergent views have been expressed on the role that national uniform leg-
islation should play in a federation. In the mainstream literature, commentators have
largely been in three camps: (1) those who have contended that a uniform approach
should be contained to specific areas;9 (2) those who have asserted that uniform or
referred legislation is preferable, with deviations allowed only when a clear ‘states’
right’ issue has been identified;10 and (3) others who have been passionate advocates
of the independence of the states.11 These camps have arrived at a stalemate and they
might have missed opportunities to constructively explore solutions. Therefore, this
article contributes to understanding the inner workings of uniformity through ‘law
as data’ approach without insisting on normative advantages or disadvantages of
uniformity.
The research problem this article addresses can be summarised as follows: the
develop ment and drafting of national uniform legislation is riddled with practical
8 Australasian Parliamentary Counsel’s Committee, PCC Protocol (n 1) 2–4. Referred
structures include legislation drafted by the Commonwealth in relation to subject
matters for which the states and territories refer their legislative powers pursuant
to s 51(xxxvii) of the Australian Constitution. Conversely, applied legislation is a
structure that allows for the adoption or application of laws enacted in other juris-
dictions. Applied structures can be extremely complicated due to the variety of ways
in which jurisdictions may ‘apply’ the law. Acts are usually composed of two parts.
Mirror legislation is the most versatile of the three structures and grants maximum
freedom to the states and territories. Mirror legislation is drafted by one jurisdiction
as a model for other jurisdictions to follow.
9 See, eg, John Wanna et al, Common Cause: Strengthening Australia’s Cooperative
Federalism (Final Report, May 2009).
10 See, eg, Cheryl Saunders, ‘Cooperative Arrangements in Comparative Perspective’ in
Gabrielle Appleby, Nicholas Aroney and Thomas John (eds), The Future of Australian
Federalism: Comparative and Interdisciplinary Perspectives (Cambridge University
Press, 2012) 414.
11 See, eg, Michelle Evans, ‘Rethinking the Federal Balance: How Federal Theory
Supports States’ Rights’ (2010) 1 The Western Australian Jurist 14, 14.

(2020) 41(1) Adelaide Law Review 271
and conceptual problems. The complexity involved means a Titanic effort is required
to develop and draft national uniform legislation. This analysis might assist decision-
makers in allocating resources for harmonisation when a national approach is sought
in a particular area of law.
Following a thorough examination of the research problem, it became clear that a
one-dimensional methodology would be insufficient to understand and address the
issues at hand. To rely entirely on a doctrinal method would be cumbersome and
limited to the areas of the law previously studied. Further, due to the proliferation
of national uniform legislation, carrying out doctrinal case studies as scholars have
done in the past,12 would restrict this article to inferences that could only be drawn
from these specific Acts. The methodology had to be expanded.13 With more infor-
mation available, evidence-based and transparent approaches are now accessible (and
needed). Thus, rather than justifying binary state-centred or Commonwealth-centred
positions, it is more fitting to follow a ‘mixed methods’ approach to studying national
uniform legislation, incorporating doctrinal, empirical and reflexive methods.
The ‘law-as-data’ movement14 offers an alternative to the doctrinal and case study
methods. Viewing legislation as data or text, rather than rules, allows important
empirical data to be introduced and statistical methods to be used to analyse the
data. Rather than examining the substance of the legislation, a ‘law as data’ approach
allows for analysis of the factors affecting national uniform legislation.
Introducing evidence into the decision-making process partially resolves the issues
related to the ‘inherently fluid and ambiguous’ system of policymaking.15 As Brian
Head noted, policy-driven evidence ‘is an inevitable part of democratic debate’.16
However, policymakers usually make decisions under circumstances of ambiguity,
basing their decisions on the ‘available evidence’.17 Thus, despite support for
evidence- based policymaking in the literature, Giada De Marchi points out that it
is not easy to introduce evidence into policymaking, adding that ‘supporting the
12 See Harmonisation of Legal Systems (n 8).
13 This was done in line with recent developments in legal research; more recent research
uses, for instance, the Delphi method as a way of decision-making in policy develop-
ment. See Evgeny Guglyuvatyy and Natalie P Stoianoff, ‘Applying the Delphi Method
as a Research Technique in Tax Law and Policy’ (2015) 30(1) Australian Tax Forum
179.
14 Dru Stevenson and Nicholas J Wagoner, ‘Bargaining in the Shadow of Big Data’
(2015) 67(4) Florida Law Review 1337, 1352.
15 David Adams, HK Colebatch and Christopher K Walker, ‘Learning about Learning:
Discovering the Work of Policy’ (2015) 74(2) Australian Journal of Public Adminis-
tration 101, 107.
16 Brian W Head, ‘Toward More “Evidence-Informed” Policy Making?’ (2015) 76(3)
Public Administration Review 472, 475.
17 I bid 474.

HILL — HOW DOES THE AREA OF LAW PREDICT
272 THE PROSPECTS OF HARMONISATION?
design, implementation and assessment of public policies is such a hard problem’.18
Nevertheless, there have been calls for an increase in substantive, evidence-based
policymaking.19 As Gary Banks observed, ‘[w]ithout evidence, policy makers 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’.20 However, even
though evidence-based knowledge and decision-making are finally being applied to
policy content,21 the procedure for implementing policy has been largely unexplored
in empirical studies. Therefore, a gap exists in the knowledge of evidence-based
approaches to harmonisation and its procedural process. Recent developments in the
‘law as data’ movement have opened a new era in policymaking. Unfortunately, in
Australia the processes of national reform and harmonisation have not yet benefitted
from this new development.
The benefits of this approach include turning “data into insights” for better decision
making’.22 Policymakers are likely to benefit from this development because even
with the most experienced professionals, the ‘ability to make sound judgments takes
years of practice to develop and a lifetime to master’.23 The ‘law as data’ movement
‘invites lawyers to make a fundamental change in their approach to the law itself
by looking to statistical patterns, predictors, and correlations’.24 Complex decisions
need not be subjected to a process of trial and error. As Dru Stevenson and Nicholas
Wagoner concluded, ‘[c]onsidering what is at stake, it seems imprudent to rely on
experience, intuition, or instinct alone in predicting the path of the law … however,
lawyers are not entirely to blame’.25 Only a few years ago, this study would not have
been possible. However, with advances in technology and the increased availability
of data, it can now be carried out.
In terms of limitations, the scope of the empirical portion of this article has been
restricted by: (1) the sample size; and (2) the focus on textual uniformity. In relation
to sample size, the article only considers national uniform legislation provided in
the Parliamentary Counsel’s Committee (PCC) table, which lists 84 sets of the most
18 Giada De Marchi, Giulia Lucertini and Alexis Tsoukiàs, ‘From Evidence-Based
Policy Making to Policy Analytics’ (2016) 236(1) Annals of Operations Research 15,
15.
19 See Gary Banks, ‘Evidence-Based Policy Making: What Is It and How Do We Get
It?’ in John Wanna (ed), Critical Reflections on Australian Public Policy: Selected
Essays (ANU Press, 2009) 107.
20 Ibid 110.
21 See Demissie Alemayehu and Marc L Berger, ‘Big Data: Transforming Drug Develop-
ment and Health Policy Decision Making’ (2016) 16(3) Health Services and Outcomes
Research Methodology 92.
22 Fatima Dargam et al, ‘The Role of Decision Making in the Big Data Era’ (Conference
Paper, EWG-DSS International Conference on Decision Support System Technology
on Big Data Analytics for Decision Making, 27–29 May 2015) 3.
23 Stevenson and Wagoner (n 15) 1345.
24 Ibid 1342.
25 Ibid 13 47.

(2020) 41(1) Adelaide Law Review 273
significant uniform Acts. The sample size is thus not exhaustive, but it is sufficient.
The focus on textual uniformity provides a good indication of the level of uniformity
in Australia, based on the similarities in legal traditions among Australian jurisdic-
tions and other mechanisms supporting national uniform legislation projects. There is
no set definition of uniformity but the uniformity of national uniform legislation can
be divided by types into ‘textual uniformity’ (having identical text provisions)26 and
‘applied uniformity’ (uniformity of an outcome once the text has been applied to the
circumstances of a particular situation).27 This distinction was first made by Roscoe
Pound, discerning ‘law on the books’ from ‘law in action’ and giving examples of
the difference between the two.28 Textual uniformity has ‘a profound effect on the
applied uniformity’.29 There is no guarantee, however, that similar texts will have
the same effect in application.30 Theoretically, it is possible to assume that in some
cases where there are almost identical provisions, the effect of legislation may be
different when applied in practice due to various factors, including the impact of
other Acts (for example, Bill of Rights legislation31 or Interpretation Acts32). By
focusing on textual uniformity, there is some risk that the nuances (for example, dif-
ferences in definitions that rely on other state or territory legislation not included in
the text of the compared act) will be lost in the process of seeking the ‘big picture’.
Nevertheless, this focus can identify the main factors that impact uniformity, and
with a sample of 84 sets of uniform Acts, the article can still unlock key insights into
national uniform legislation.
III the d efInItIon o f prImAry fAct o r s for e m p I r I c A L st u dy
As this study uses empirical methods, it is important to provide definitions from the
outset. This section provides definitions for structures of national uniform legislation,
area of law, level of uniformity, level of implementation, and clarifies terminology
for the sets of uniform Acts.
26 Camilla Baasch Andersen, ‘Applied Uniformity of a Uniform Commercial Law:
Ensuring Functional Harmonisation of Uniform Texts Through a Global Jurisconsul-
torium of the CISG’ in Mads Andenas and Camilla Baasch Andersen (eds), Theory
and Practice of Harmonisation (Edward Elgar Publishing, 2012) 31–3.
27 Ibid.
28 Roscoe Pound, ‘Law in Books and Law in Action’ (1910) 44(1) American Law Review
12, 13.
29 Andenas and Andersen (n 27) 33.
30 Ibid.
31 Human Rights Act 2004 (ACT); Human Rights Act 2019 (Qld); Charter of Human
Rights and Responsibilities 2006 (Vic).
32 Acts Interpretation Act 1901 (Cth); Legislation Act 2001 (ACT); Interpretation Act
1987 (NSW); Interpretation Act 1978 (NT); Acts Interpretation Act 1954 (Qld); Acts
Interpretation Act 1915 (SA); Acts Interpretation Act 1931 (Ta s ) ; Interpretation of
Legislation Act 1984 (Vic); Interpretation Act 1984 (WA) .

HILL — HOW DOES THE AREA OF LAW PREDICT
274 THE PROSPECTS OF HARMONISATION?
A Structures for National Uniform Legislation
The structures of national uniform legislation are flexible in form but primarily comprise
of three structures: referred, applied and mirror. Referred structures include legislation
drafted by the Commonwealth in relation to subject matters for which the states and
territories refer their legislative powers pursuant to s 51(xxxvii) of the Australian Con-
stitution. From the perspective of uniformity, referred structures are highly uniform and
very rigid and may require extensive ‘political lobbying and negotiation’.33 To date, the
states and territories have only referred to the Commonwealth the power to legislate
on the following matters: consumer credit;34 corporations;35 mutual recognition;36 the
resolution of financial disputes in de facto relationships;37 and counter-terrorism.38
Conversely, applied legislation is a structure that allows for the adoption or appli-
cation of laws enacted in other jurisdictions.39 Applied structures can be ‘extremely
complicated’40 due to the variety of ways in which jurisdictions may ‘apply’ the law.
33 Gerard Carney, ‘Uniform Personal Property Security Legislation for Australia:
A Comment on Constitutional Issues’ (2002) 14(1) Bond Law Review 5:1–5, 1–2.
34 Credit (Commonwealth Powers) Act 2010 (NSW); Consumer Credit (National
Uniform Legislation) Implementation Act 2010 (NT); Credit (Commonwealth Powers)
Act 2010 (Qld); Credit (Commonwealth Powers) Act 2010 (SA); Credit (Common-
wealth Powers) Act 2009 (Tas); Credit (Commonwealth Powers) Act 2010 (Vic);
Credit (Commonwealth Powers) Act 2010 (WA) .
35 Corporations (Commonwealth Powers) Act 2001 (NSW); Corporations (Northern
Territory Request) Act 2001 (NT); Corporations (Commonwealth Powers) Act
2001 (Qld); Corporations (Commonwealth Powers) Act 2001 (SA); Corporations
(Commonwealth Powers) Act 2001 (Ta s); Corporations (Commonwealth Powers) Act
2001 (Vic); Corporations (Commonwealth Powers) Act 2001 (WA) .
36 Mutual Recognition (Australian Capital Territory) Act 1992 (ACT); Mutual Recogni-
tion (New South Wales) Act 1992 (NSW); Mutual Recognition (Northern Territory)
Act 1992 (NT); Mutual Recognition (Queensland) Act 1992 (Qld); Mutual Recog-
nition (South Australia) Act 1993 (SA) ; Mutual Recognition (Tasmania) Act 1993
(Ta s) ; Mutual Recognition (Victoria) Act 1998 (Vic); Mutual Recognition (Western
Australia) Act 2010 (WA ) .
37 Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); De Facto
Relationships Act 1991 (NT); Commonwealth Powers (De Facto Relationships)
Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2009 (SA);
Common wealth Powers (De Facto Relationships) Act 2006 (Tas) ; Commonwealth
Powers (De Facto Relationships) Act 2004 (Vic); Commonwealth Powers (De Facto
Relationships) Act 2006 ( WA) .
38 Terrorism (Commonwealth Powers) Act 2002 (NSW); Terrorism (Northern Terri-
tory) Request Act 2003 (NT); Terrorism (Commonwealth Powers) Act 2002 (Qld);
Terrorism (Commonwealth Powers) Act 2002 (SA) ; Terrorism (Commonwealth
Powers) Act 2002 (Ta s ) ; Terrorism (Commonwealth Powers) Act 2003 (Vic);
Terrorism (Commonwealth Powers) Act 2002 (WA).
39 Australasian Parliamentary Counsel’s Committee, PCC Protocol (n 1) 1.
40 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) 85, 96.

(2020) 41(1) Adelaide Law Review 275
These Acts are usually composed of two parts. The first part is jurisdiction specific
and the second part (which usually appears in the appendix or schedule) is the applied
law. From a policy development and drafting perspective, there is also the option to
‘adopt’ [the legislation] as amended from time to time or apply the legislation on an
‘as is’ basis; however, in such cases, future amendments must be enacted separately.
Reviews of applied sets of uniform Acts are usually undertaken by a lead jurisdiction
(ie, the jurisdiction that was initially responsible for drafting the legislation), or via
the mechanism of a ministerial council or national regulator.
It is possible that after a lead jurisdiction drafts a bill, some jurisdictions will
‘apply’ it and others will ‘adopt’ it. This occurred in relation to the Health Practi-
tioner Regulation National Law Act 2009 (Qld) (‘the Queensland Act’), for which
Queensland was the leading jurisdiction responsible for the drafting of the Act. The
Northern Territory passed the Health Practitioner Regulation (National Uniform
Legislation) Act 2010 (NT)) (‘the Northern Territory Act’) to adopt the Queensland
Act. Notably, s 4 of the Northern Territory Act provides for any amendments to the
Queensland Act to be automatically adopted in the Northern Territory. Conversely,
Western Australia applied the Queensland Act by passing the Health Practitioner
Regulation National Law Act 2010 (WA). However, as the Act was applied rather
than adopted, a separate Act would have to be passed by both Houses of the Western
Australian Parliament before any amendments could be implemented.
Mirror legislation is the most versatile of the three structures and grants maximum
freedom to the states and territories. Mirror legislation is drafted by one jurisdic-
tion as a model for other jurisdictions to follow.41 In the academic literature and
government reports, ‘mirror legislation’ and ‘model legislation’ have been used inter-
changeably.42 However it should be noted that the term ‘model’ has sometimes been
used to describe a model draft bill that is centrally drafted by the PCC or developed
by one of the jurisdictions. To avoid any confusion, this paper uses the term ‘mirror’
throughout when referring to this structure of national uniform legislation. Mirror
legislation can be flexible and adapted in each jurisdiction to allow for local differ-
ences. The degree of uniformity required is expressed by the relevant ministerial
council and may be incorporated into an intergovernmental agreement.
Notably, none of these structures exist in a vacuum. If necessary, any structure can
be modified to achieve the optimal result in a particular case. Some of the Acts have
continued to exist in their pure form; however, a certain percentage have become
hybrids (eg, a combination of applied and mirror legislation). These three structures
represent the predominant forms of legislation today.43
41 Australasian Parliamentary Counsel’s Committee, PCC Protocol (n 1) 1.
42 See John Phillimore, ‘Intergovernmental Relations in Australia: Increasing
Engagement’ in Rupak Chattopadhyay and Karl Nerenberg (eds), A Global Dialogue
on Federalism (McGill-Queen’s University Press, 2011) vol 8, 13.
43 Australasian Parliamentary Counsel’s Committee, ‘National Uniform Legislation:
Acts of Jurisdictions Implementing Uniform Legislation’ (Web Page, March 2015)
<http://www.pcc.gov.au/uniform/National%20Uniform%20Legislation%20table.
pdf> (‘National Uniform Legislation’).

HILL — HOW DOES THE AREA OF LAW PREDICT
276 THE PROSPECTS OF HARMONISATION?
B Area of Law
The area of law could be an important factor influencing sustainable uniformity,
however, the extent of its influence is currently unknown. It is possible that the sus-
tainable uniformity of national uniform legislation could be explained based on the
area of law because some areas of law might be more prone to uniformity than others.
If this is so, then uniformity could simply be unachievable in certain areas of the law.
Resolving this conundrum has been hindered by the inability to find a set of classifi-
cations for different areas of the law. In this study, several electronic databases were
explored in the hope of finding and adopting such a classification system. Among
the databases used at the time the search was conducted (July to December 2016),
AustLII did not have a function to browse legislation by subject or area of law. Two
databases, Westlaw and CCH, specialised in specific areas, but failed to cover some
topics. The two remaining electronic databases were LawLex by SAI Global and
LexisNexis AU. LawLex was found to be the most suitable database, as it provided
an open access system specifically designed to work with legislation and had an
intuitive index. One limitation experienced with this database was double classifi-
cation. In some cases, a set of uniform Acts fell into two areas of law. When this
happened, the primary area was entered for the purpose of this research.
Table 1: LawLex Subject Index (First Level)44
Banking and Finance Business, Trades and Professions
Commercial and Corporate Law Criminal Law
Culture and Recreation Education, Training and Research
Employment and Industrial Law Energy and Resources
Environment Family Law and Relationships
Government Government Financing
Health Human Rights
Immigration and Citizenship Indigenous Australians
Insurance Intellectual Property
International Law Legal System
Media and Communications Primary Industry
Privacy Property, Housing and Development
Social Services Superannuation
Taxation Transport
Wills and Estates
44 SAI Global, ‘Legislation Alerts and Research’, LawLex (Web Page) <http://my.lawlex.
com. au>.

(2020) 41(1) Adelaide Law Review 277
The research for this study followed a simple protocol, based on the LawLex data.
Once an Act was located in the database, the area listed by LawLex was adopted.
For example, the Agricultural and Veterinary Chemicals legislation45 was indexed
by LawLex under Primary Industries. The Work Health and Safety legislation46 was
indexed under Employment and Industrial Law. The Uniform Evidence Acts were
indexed under Legal Systems.47
C Level of Uniformity
Each area of law was examined against the measurement of uniformity. Defining the
level of uniformity is not easy, as the definition of uniformity is somewhat ambiguous.
National uniform legislation is usually defined as ‘legislation which is the same, or
substantially the same, in all or a number of jurisdictions’.48 The author was unable
to locate a source describing the meaning of ‘substantially the same’. As Mads
Andenas and Camilla Andersen observed, ‘[i]t is important to note that uniformity
is not an absolute but a variable … the definition has to encompass the concept of
varying degrees’.49 A review of national and international sources produced no clear
indication of any set levels of uniformity. However, there may be room for intentional
ambiguity in defining uniformity. Therefore, rather than defining the term using a
dictionary, a classification is proposed based on the degree of uniformity. To add
some clarity and to facilitate the empirical study, it is proposed that the degree of
uniformity be classified as follows:
(1) ‘Almost identical’: legislation where all provisions or nearly all provisions are
uniform (minimal differences, for instance, relating to drafting style, gender
neutral language, fines or the order of provisions). Ultimate uniformity could be
an illusory goal. Therefore, in this research, ‘almost’ is used as a qualifier.
45 Agricultural and Veterinary Chemicals Code Act 1994 (Cth) (Code set out in
Schedule) and Regulations; Agricultural and Veterinary Chemicals (New South
Wales) Act 1994 (NSW); Agricultural and Veterinary Chemicals (Northern Territory)
Act 1994 (NT); Agricultural and Veterinary Chemicals (Queensland) Act 1994 (Qld);
Agricultural and Veterinary Chemicals (South Australia) Act 1994 (SA) ; Agricultural
and Veterinary Chemicals (Tasmania) Act 1994 (Tas); Agricultural and Veterinary
Chemicals (Victoria) Act 1994 (Vic); Agricultural and Veterinary Chemicals (Western
Australia) Act 1995 (WA ) .
46 Work Health and Safety Act 2011 (Cth); Work Health and Safety Act 2011 (ACT);
Work Health and Safety Act 2011 (NSW); Work Health and Safety (National Uniform
Legislation) Act 2011 (NT); Work Health and Safety Act 2011 (Qld); Work Health and
Safety Act 2012 (SA); Work Health and Safety Act 2012 (Tas); Work Health and Safety
Bill 2014 (WA).
47 Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 2004 (NI); Evidence
Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence
Act 2001 (Tas); Evidence Act 2008 (Vic).
48 Renee Gastaldon, National Scheme Legislation (Research Brief No 27/2011, Parlia-
mentary Library, Queensland Parliament, 2011) 1.
49 Andenas and Andersen (n 27) 31.

HILL — HOW DOES THE AREA OF LAW PREDICT
278 THE PROSPECTS OF HARMONISATION?
(2) ‘Substantially uniform’: legislation where the majority of provisions are
uniform. Examples include commercial arbitration50 and sports drug testing.51
In quantitative terms, more than half the textual provisions were similar between
jurisdictions.
(3) ‘Partially uniform’: largely consistent legislation with distinct differences
between jurisdictions. Arguably, this could be the stage at which national uniform
legislation is no longer considered uniform, and therefore might not be counted
as national uniform legislation. However, this proposition must be tested using
the database. Birth, death and marriage legislation52 is classified as ‘partially
uniform’ because less than a majority of the provisions are the same.
(4) ‘Some similarities’: legislation with only some similar provisions or uniformity
in principle only. Surrogacy legislation exemplified the ‘some similarities’
category53 because the provisions are similar in principle but were still classified
as national uniform legislation by the Protocol on Drafting National Uniform
Legislation (‘PCC Protocol’).
The current level of textual uniformity was determined by assessing the level of
similarity between the text of Acts in different jurisdictions. Based on the foregoing,
national uniform legislation, as the product of harmonisation, can be dynamic and
sufficiently versatile to include sets of uniform Acts with high uniformity and legis-
lation that has only some similarity in its provisions.
D Level of Implementation
The level of uniformity is interconnected with the level of implementation. In some
cases, however, there have been serious obstacles to enacting national uniform leg-
islation across all jurisdictions. Therefore, both the level of uniformity and the level
of implementation must be assessed. In cases where most jurisdictions have enacted
50 International Arbitration Act 1974 (Cth); Commercial Arbitration Act 2010 (NSW);
Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial
Arbitration Act 2013 (Qld); Commercial Arbitration Act 2011 (SA); Commercial
Arbitration Act 2011 (Ta s ) ; Commercial Arbitration Act 2011 (Vic); Commercial
Arbitration Act 2012 (WA) .
51 Drugs in Sport Act 1999 (ACT) ; Sports Drug Testing Act 1995 (NSW); Sports
Anti-Doping Act 2003 (Qld); Sports Drug Testing Act 2000 (SA); Sports Drug Testing
Act 1995 (Vic); Sports Drug Testing Act 2001 (WA ) .
52 Births, Deaths and Marriages Registration Act 1997 (ACT); Births, Deaths and
Marriages Registration Act 1995 (NSW); Births, Deaths and Marriages Registration
Act 1996 (NT); Births, Deaths and Marriages Registration Act 2003 (Qld); Births,
Deaths and Marriages Registration Act 1996 (SA); Births, Deaths and Marriages
Registration Act 1999 (Tas) ; Births, Deaths and Marriages Registration Act 1996
(Vic); Births, Deaths and Marriages Registration Act 1998 ( WA) .
53 Parentage Act 2004 (ACT ); Surrogacy Act 2010 (NSW); Surrogacy Act 2010 (Qld);
Family Relationships Act 1975 (SA) pt 2B; Surrogacy Act 2012 (Ta s); Status of
Children Act 1974 (Vic) pt IV; Surrogacy Act 2008 ( WA) .

(2020) 41(1) Adelaide Law Review 279
national uniform legislation, even if legislation in the participating jurisdictions has
been ‘almost identical’, the overall national regime has been treated as non-uniform
because some jurisdictions have not participated in the uniform scheme. Simply
put in mathematical terms, instead of one regime, there might be two or three. An
example of this would be national heavy vehicle regulation,54 where the Northern
Territory and Western Australia refused to participate.
In Australia, there are nine jurisdictions. However, in this study the implementation
count has been adjusted in some cases. Such adjustments have been based on the
inability of the Commonwealth to enact certain Acts due to the unavailability of the
head of power under the Australian Constitution. When this has occurred, the count
has been adjusted to treat eight jurisdictions as ‘all jurisdictions’. In other cases,
national uniform legislation has been agreed to by a specific number of jurisdictions.
For instance, cross-border justice mirror legislation was agreed to by three jurisdic-
tions and implemented by all jurisdictions that agreed. The level of implementation
was entered as ‘adjusted as all jurisdictions’. Mirror legislation for cross-border
justice was called on to address the particular problem of law enforcement between
three jurisdictions: Western Australia, the Northern Territory and South Australia,
with regard to the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (‘NPY’) Lands.55 All
three jurisdictions enacted the legislation, which is why the implementation in this
case had to be adjusted to reflect the intention: enactment of national uniform leg-
islation relevant to three jurisdictions. In other words, this adjusted implementation
shows that all relevant jurisdictions did enact the national uniform legislation.
Finally, s 122 of the Australian Constitution empowers the Commonwealth Parlia-
ment to make laws related to the territories. Only two territories are currently
self- governed:56 the Northern Territory,57 and the Australian Capital Territory.58
Section 122 of the Australian Constitution does not preclude the territories from
legi slating Acts with consistent terms. For instance, the Northern Territory enacted
the Succession to the Crown (Request) (National Uniform Legislation) Act 2013
(NT), even though it was not strictly necessary.
By level of implementation, the sets of uniform Acts were calculated and divided
into the following classes:
54 Road Transport (General) Act 1999 (ACT) s 96; Road Transport (Vehicle Registra-
tion) Act 1997 (NSW) pt 24; Vehicle and Traffic Act 1999 (Tas) s 34A, sch 2; Road
Traffic Act 1974 (WA) .
55 Cross-Border Justice Act 2009 (NT); Cross-Border Justice Act 2009 (SA); Cross-
Border Justice Act 2008 ( WA) .
56 The Norfolk Island Legislation Amendment Bill 2015 passed by the Australian
Parliament on 14 May 2015 (assented on 26 May 2015) abolished self-government on
Norfolk Island and transformed Norfolk Island into a council as part of the New South
Wales regime.
57 Northern Territory (Self-Government) Act 1978 (Cth).
58 Australian Capital Territory (Self-Government) Act 1988 (Cth).

HILL — HOW DOES THE AREA OF LAW PREDICT
280 THE PROSPECTS OF HARMONISATION?
(1) ‘All jurisdictions’: in cases where nine jurisdictions, or in cases where the
Common wealth has no head of power, all states and territories.
(2) ‘Adjusted as all jurisdictions’: in cases where
(a) jurisdictions that have committed to uniform legislation have implemented a
set of uniform Acts; or
(b) all jurisdictions have implemented the set of uniform Acts except the Territo-
ries due to s 122 of the Australian Constitution.
(3) ‘Most jurisdictions’: referring to five jurisdictions or more (in cases where legi-
slation has only been intended for some jurisdictions and the majority of those
who committed to it have implemented it).
(4) ‘Some jurisdictions’: referring to four or fewer jurisdictions.
E Sets of Uniform Acts
The unorthodox nature of this empirical study is in approaching the sets of uniform
Acts as a unit of reference. The PCC Protocol informed this research because it
contains a comprehensive and up to date database of ‘some of the more significant’
sets of uniform Acts.59 The terminology for the sets of uniform Acts used in this
research is borrowed word for word from the PCC Protocol. The sets of uniform Acts
were updated where necessary. The PCC’s database of national uniform legislation
comprises 84 sets of the most important national uniform legislation initiatives.60
F Key to Interpret Tables
The following key should be used to interpret the Tables:
Structure Symbol Level of Uniformity Symbol
Referred R Almost Identical AI
Applied A Substantially Uniform SU
Mirror M Partially Uniform PU
Hybrid H Substantially Similar SS
Jurisdictional Implementation Symbol
All Jurisdictions All
All Relevant Jurisdictions Adj. All
Most Jurisdictions Most
Some Jurisdictions Some
59 Australasian Parliamentary Counsel’s Committee, Protocol on Drafting National
Uniform Legislation (2nd ed, July 2007) app 4.
60 Australasian Parliamentary Counsel’s Committee, ‘National Uniform Legislation’
(n 45).

(2020) 41(1) Adelaide Law Review 281
IV s p e c I fIc Ar e A s o f LAw
A simple frequencies statistical analysis was used to identify the number of sets of
uniform Acts that belonged to certain areas of the law. The findings indicate that in
some areas, the need for national uniform legislation has been more notable, and
more importantly, the area of law has had a direct impact on sustainable uniformity.
However, there have been variations within areas of law, indicating the importance
of not over-relying on any one area of law for uniformity. Data from all 84 sets of
uniform Acts were used. Areas of law with three sets of uniform Acts or less were
not analysed in this study.
Table 2: Distribution of sets of uniform Acts by area of law in LawLex Index
Area of law
Number of sets of
uniform Acts
Criminal law 12
Commercial and corporate law 10
Legal systems 9
Transport 9
Government 7
Energy and resources 7
Health 5
Family law and relationships 5
Business, trades and professions 4
Property, housing and development 3
Employment and industrial law 3
Education, training and research 2
Environment 2
Taxation 2
Media and communications 1
Immigration and citizenship 1
Primary industry 1
Wills and estates 1
Banking and finance, culture and recreation, government financing, human rights,
indigenous Australians, insurance, intellectual property, privacy, social services,
superannuation, international law
0
A Criminal Law
The area of law with the greatest amount of national uniform legislation is criminal
law. One possible explanation for this is that the Australian Constitution does not
expressly empower the Commonwealth to legislate in matters of criminal law.
Therefore, criminal law has traditionally been within the remit of the states and

HILL — HOW DOES THE AREA OF LAW PREDICT
282 THE PROSPECTS OF HARMONISATION?
territories. However, ‘crime knows no borders’61 and ‘sophisticated criminals’ are
able to ‘transcend’ state and national borders.62 Further, changes in technology and
communication have allowed for new forms of cybercrime and the need to find ways
to combat it.
In addition to being the most prevalent, criminal law has been represented at all
levels of uniformity. There has also been an apparent preference for ‘mirror structure’
in criminal law, with only anti-terrorism legislation using a referred structure. The
preference for a mirror structure in criminal law is partially explained by the desire
of the states and territories to remain independent and flexible, agreeing to refer only
in exceptional circumstances.63 However, the preference has not only been due to
aspects of centralisation. Legislation in general has grown and crime threats have
expanded in all jurisdictions.64
Table 3: Criminal lawSets of Uniform Acts
Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Crimes at sea Crimes at Sea Acts 2000 (Cth); 1998 (NSW); 2000 (NT);
2001 (Qld); 1998 (SA); 1999 (Tas); 1999 (Vic); 2000 (WA).
M AI All
Prisoners,
international
transfer
International Transfer of Prisoners Act 1997 (Cth); Crimes
(Sentence Administration) Act 2005 (ACT); International
Transfer of Prisoners (New South Wales) Act 1997 (NSW);
(Northern Territory) Act 2000 (NT); (South Australia) Act
1998 (SA); International Transfer of Prisoners (Tasmania)
Act 1997 (Tas); International Transfer of Prisoners
(Victoria) Act 1998 (Vic); Prisoners International Transfer
(Queensland) Act 1997 (Qld); Prisoners (International
Transfer) Act 2000 (WA).
M AI All
Terrorism Criminal Code Act 1995 (Cth); Terrorism (Commonwealth
Powers) Acts 2002 (NSW); 2002 (Qld); 2002 (SA); 2002
(Tas); 2003 (Vic); 2002 (WA); Terrorism (Northern Territory)
Request Act 2003 (NT).
R AI Adj.
All
61 Simon Bronitt and Mark Finnane, ‘Comparative Perspectives on Australian- American
Policing’ (2012) 46(3) Journal of California Law Enforcement 18, 20.
62 Nikos Passas, ‘Globalization, Criminogenic Asymmetries and Economic Crime’
(1999) 1(4) European Journal of Law Reform 399, 399.
63 As discussed below regarding the ‘fear of insignificance’ phenomenon.
64 See Gary F Manison, ‘Policing in the Australian Federation 1970–2010: A Changed
Paradigm’ (PhD Thesis, Curtin University, 2015).

(2020) 41(1) Adelaide Law Review 283
Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Fines
(reciprocal
enforcement
against bodies
corporate)
Magistrates Court Act 1930 (ACT); Fines Act 1996 (NSW);
Fines and Penalties (Recovery) Act 2001 (NT); State
Penalties Enforcement Act 1999 (Qld); Cross-Border Justice
Act 2009 (Qld); Monetary Penalties Enforcement Act 2005
(Tas); Magistrates’ Court Act 1989 (Vic); Fines Penalties and
Infringement Notices Enforcement Act 1994 (WA).
M SU All
Prisoners,
interstate
transfer
Crimes (Sentence Administration) Act 2005 (ACT); Prisoners
(Interstate Transfer) Acts 1982 (NSW); 1983 (NT); 1982
(Qld); 1982 (SA); 1982 (Tas); 1983 (WA).
M SU All
Community
based
sentencing
orders
(transfers)
Crimes (Sentence Administration) Act 2005 (ACT) ch 12;
Crimes (Interstate Transfer of Community Based Sentences)
Act 2004 (NSW); Interstate Transfer (Community-Based
Sentences) Act 2009 (Tas); Sentence Administration (Interstate
Transfer of Community Based Sentences) Act 2009 (WA).
M PU Some
Criminal code Criminal Code Acts 2002 (Cth); 2002 (NT) pt IIAA;
Criminal Code 2002 (ACT).
M PU Some
DNA database Crimes Acts 1914 (Cth); 1958 (Vic) pt III div 1 sub-div 30A;
Crimes (Forensic Procedures) Acts 2000 (ACT) pt 2.11;
2000 (NSW) pt 11; Police Administration Act 1978 (NT) pt
VII div 7; Police Powers and Responsibilities Act 2000 (Qld)
ch 17 pt 5; Criminal Law (Forensic Procedures) Act 2007
(SA) pt 5; Forensic Procedures Act 2000 (Tas) pt 8; Criminal
Investigation (Identifying People) Act 2002 (WA) pt 10.
M PU All
Forensic
procedures
Crimes (Forensic Procedures) Acts 2000 (ACT); 2000
(NSW); Police Administration Act 1978 (NT) pt VII div 7;
Criminal Law (Forensic Procedures) Act 2007 (SA); Forensic
Procedures Act 2000 (Tas); Crimes Act 1958 (Vic) pt III div 1
sub-div 30A; Criminal Investigation (Identifying People) Act
2002 (WA).
M PU All
Child
protection
(offender
prohibition
orders)
Crimes (Child Sex Offenders) Act 2005 (ACT) pt 5A; Child
Protection (Offenders Prohibition Orders) Act 2004 (NSW);
Child Protection (Offenders Reporting and Registration) Act
2004 (NT); Child Protection (Offender Prohibition Order)
Act 2008 (Qld); Community protection (Offender Reporting)
Act 2004 (WA).
M SS Adj.
All
Child
protection
(offender
registration)
Crimes (Child Sex Offenders) Act 2005 (ACT); Child
Protection (Offenders Registration) Act 2000 (NSW); Child
Protection (Offenders Reporting and Registration) Act 2004
(NT); Child Protection (Offender Reporting) Act 2004 (Qld);
Child Sex Offenders Registration Act 2006 (SA); Community
Protection (Offender Reporting) Act 2005 (Tas); Sex
Offenders Registration Act 2004 (Vic); Community Protection
(Offender Reporting) Act 2004 (WA).
M SS Adj.
All

HILL — HOW DOES THE AREA OF LAW PREDICT
284 THE PROSPECTS OF HARMONISATION?
Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Child
protection
orders
(children and
young persons
(reciprocal
arrangements))
Children and Young People Act 2008 (ACT) ch 17; Children
and Young Persons (Care and Protection) Act 1998 (NSW)
ch 14A; Care and Protection Act 1999 (Qld) ch 7; Children’s
Protection Act 1993 (SA) pt 8; Children, Young Persons
and Their Families Act 1997 (Tas) pt 8; Children, Youth and
Families Act 2005 (Vic) sch 1; Children and Community
Services Act 2004 (WA) pt 6.
M SS Adj.
All
Minimal jurisdictional differences may be perceived as easier to overcome. However,
in practice that has not always been the case, as an examination of Saskia Hufnagel’s
theory illustrates. Minor differences may become a point of dispute, due to ‘fear
of insignificance’ (the situation in which jurisdictional differences become a point of
identity and minor differences become almost impossible to harmonise).65 In other
words, it is ‘the fear of state actors to lose their individual identities in the process
of harmonisation’ that may be the problem.66 Hufnagel conducted interviews with
Australian police enforcement practitioners from various jurisdictions to gain insight
into their views on harmonising criminal procedure. According to the interviews, the
respondents perceived the development of uniform criminal procedure legislation as
encroaching on their powers.67 Beyond the loss of identity, in cases where differences
between jurisdictions are not significant, jurisdictions may be less enthusiastic about
going through the negotiation process because there is not much to be gained.68
To illustrate a typical set of uniform Acts in this area, the Child Protection (Offender
Prohibition Orders and Offender Registration)69 sets of uniform Acts are illustrative.
The sets of Acts regulating sex offender registration have minimal textual similarity.
The legislation is based on the New South Wales model, with some revisions.70
It was agreed to by the Australasian Police Ministers’ Council on 30 June 2004.71
The goal of the legislation was to reduce the probability of re-offending by requiring
sex offenders to register with the police and regularly provide information on their
65 Saskia Hufnagel, ‘“The Fear of Insignificance”: New Perspectives on Harmonising
Police Cooperation in Europe and Australia’ (2010) 6(2) Journal of Contemporary
European Research 165, 190.
66 Ibi d 165.
67 Ibid 170 .
68 Ibi d 165.
69 See Table 3 for Child Protection (Offender Prohibition Orders and Offender Regis-
tration) legislative framework.
70 Victorian Law Reform Commission, Sex Offenders Registration (Final Report, 2011)
21.
71 NSW Ombudsman, Review of the Child Protection Register (Report, May 2005) 3.

(2020) 41(1) Adelaide Law Review 285
location within Australia or overseas. There have been substantial differences in
regulations between jurisdictions because the legislation must fit into the existing
framework of laws and advocacy coalitions within the corresponding police force
units, departments of corrections, departments of children and families, departments
of justice, local communities of Crime Stoppers and other interest groups within
the area. These sets of uniform Acts regulate the two most controversial areas of
harmonised legislation in Australia: children and criminal law. Thus, there is only
minimal uniformity among jurisdictions in this area.
The set of uniform Acts called Court Information Technology (Video Link)72 is
another typical case. The textual similarity within the set of uniform provisions is
minor and would be classified as ‘some similarities’. The textual differences between
jurisdictions have mostly related to the different types of technology used, pointing
to the strong beliefs held by advocacy coalitions within the court system and corre-
sponding departments in terms of the necessary policy.
Notwithstanding other difficulties, the jurisdictions have been willing to act swiftly
and uniformly in the face of national crises. An atypical case of uniformity within the
area of criminal law is counter-terrorism legislation. In the historically unsustainable
area of criminal law, counter-terrorism legislation has been promptly implemented
by all jurisdictions in the most uniform referred structure without any consecu-
tive harmonisation efforts. Counter-terrorism legislation is the only set of uniform
Acts in criminal law that falls into the referred structure, and it is categorised as
‘almost identical’. Prior to 2002, counter-terrorism regulations relied heavily on the
criminal law of the states and territories, with the underlying assumption that the
Commonwealth could rely on the criminal laws of general application, for instance
the provisions regulating murder or grievous bodily harm.73 Following the terrorist
attacks on 11 September 2001, the Australian Government commissioned the then
Secretary of the Attorney-General’s Department, Robert Cornall, to lead a review
of counter-terrorism arrangements (‘Cornall Review’) to ensure that Australia had
sufficient capability to respond to a terrorist threat.74
On 5 April 2002, the heads of the Commonwealth, states and territories agreed
‘to take whatever action is necessary to ensure that terrorists can be prosecuted under
the criminal law, including a reference of power so that the Commonwealth may
enact specific, jointly-agreed legislation’.75 The Australian Bills were modelled on
72 See Table 6 for Court Information Technology (Video Link) legislative framework.
73 See generally Anthony Reilly, ‘The Processes and Consequences of Counter- Terrorism
Law Reform in Australia: 2001–2005’ (2007) 10(1) Flinders Journal of Law Reform
81.
74 Daryl Williams, ‘Upgrading Australia’s Counter-Terrorism Capabilities’ (News
Release 1080, 18 December 2001).
75 Council of Australian Governments, Agreement on Counter-Terrorism Laws (Inter-
governmental Agreement, 25 June 2004) recital 1.

HILL — HOW DOES THE AREA OF LAW PREDICT
286 THE PROSPECTS OF HARMONISATION?
UK legislation, with some modifications.76 The standalone Anti-Terrorism Act 2005
(Cth) was enacted in 2004. The states and territories referred certain matters related
to terrorist acts to the Commonwealth Parliament in accordance with s 51(xxxvii)
of the Constitution.77 It was also agreed that any amendment to the Commonwealth
legislation would be subject to consultation between the jurisdictions.78 The action
was prompt, and sustainability in this case was secured by both the referred structure
and a national regulator: the Australian Criminal Intelligence Commission.
Counter-terrorism legislation has been somewhat controversial because it has given
the law enforcement agencies wide powers to detain and question.79 Nevertheless, the
jurisdictions have agreed to cooperate to prevent terrorist attacks, and the implemen-
tation of counter-terrorism legislation has been quite effective. The Commonwealth
Attorney-General’s website states: ‘Effective laws are a critical component of Aus-
tralia’s response to threatened or actual terrorist acts’.80 Yet further harmonisation
of the criminal law affixed to counter-terrorism cooperation has continued to be
criticised. To counter that, in 2017, then Prime Minister Malcolm Turnbull urged,
‘[i]t’s vital that we have nationally consistent terrorism laws. I’m asking state and
territory leaders to work with me to deliver safety and security’. He also asserted that
[p]eople who are using the internet to spread terrorist propaganda and instructions
will be tracked down and caught. … We need nationally consistent pre-charge
detention laws so that those who seek to do us harm can be held to account no
matter where they are.81
76 Andrew Lynch, ‘Control Orders in Australia: A Further Case Study in the Migration
of British Counter-Terrorism Law’ (2008) 8(2) Oxford University Commonwealth
Law Journal 159.
77 Terrorism (Commonwealth Powers) Act 2002 (NSW); Terrorism (Northern
Territory) Request Act 2003 (NT); Terrorism (Commonwealth Powers) Act 2002
(Qld); Terrorism (Commonwealth Powers) Act 2002 (SA); Terrorism (Common-
wealth Powers) Act 2002 (Tas) ; Terrorism (Commonwealth Powers) Act 2003 (Vic);
Terrorism (Commonwealth Powers) Act 2002 (WA) .
78 Council of Australian Governments (n 77).
79 See Michael Head, ‘Another Threat to Democratic Rights: ASIO Detentions Cloaked
in Secrecy’ (2004) 29(3) Alternative Law Journal 127.
80 Attorney-General (Cth), Australia’s Counter-Terrorism Laws (Web Page) <https://
www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/Australiascounter
terrorismlaws.aspx>.
81 James Massola, ‘Malcolm Turnbull Pushes for Law to Detain Terror Suspects for Up
To 14 Days before Charges’, The Sydney Morning Herald (online, 3 October 2017)
<http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-pushes-
for-law-to-detain-terror-suspects-for-up-to-14-days-before-charges-20171003-gytill.
html>.

(2020) 41(1) Adelaide Law Review 287
The idea of toughening counter-terrorism laws currently appears to be well supported
by the jurisdictions,82 with concerns over the threat to multiculturalism fading. Taking
this into consideration, it is unlikely the policy will be changed or that sustainable
uniformity will be reversed based on the arguments raised by the policy’s opponents.
Overall, criminal law can be characterised as the most voluminous and least uniform
area of law with a lower level of implementation. It is highly likely that it will undergo
even more serious shifts, given the opportunities created by the internet for a range
of illegal enterprises. This may result in state and territory borders becoming less
important, and national and international responses becoming more important. For
example, the infamous ‘Silk Road’ website has an electronic platform for selling
narcotics, fake identification documents and other illegal goods.83 Peter Nash, an
Australian citizen convicted for his involvement with the website, gave instructions in
a discussion thread on how to bypass Australian customs authorities when trafficking
narcotics.84 The common threats and challenges faced by all Australian jurisdictions
suggest that cooperation is becoming increasingly important for challenges that go
beyond the state, territory and national borders.
B Commercial and Corporate Law
Commercial and corporate law has been a highly publicised area of harmonisa-
tion due to the widely-recognised importance of economic integration, increased
mobility and technological advances. These have all contributed to erasing legal
boundaries and inconsistent regulations. In addition, there have been powerful
lobbying proponents supporting the full harmonisation of commercial and corporate
law. These have included organisations such as major banks, large corporations,85
advocates like the Business Council of Australia,86 and various associations repre-
senting the rights of business persons and consumers.
82 Leaders Vow to Toughen Anti-terror Laws, SBS News (online, 9 June 2017) <http://
www.sbs.com.au/news/article/2017/06/09/leaders-vow-toughen-anti-terror-laws>.
83 James Ball, ‘Silk Road: The Online Drug Marketplace That Officials Seem Powerless
to Stop’, The Guardian (online, 22 March 2013) <https://www.theguardian.com/
world/2013/mar/22/silk-road-online-drug-marketplace>.
84 Peter Mitchell, ‘Australian Peter Nash to Be Sentenced Over Role in Silk Road
Drug-Trafficking Website’, The Sydney Morning Herald (online, 26 May 2015)
<http://www.smh.com.au/world/australian-peter-nash-to-be-sentenced-over-role-in-
silk-road-drugtrafficking-website-20150525-gh9jes.html>.
85 See ANZ Bank, Submission No 82 to the Productivity Commission, Review of Austra-
lia’s Consumer Policy Framework (May 2007); Telstra Corporation Ltd, Submission
No 7 to House of Representatives Standing Committee on Legal and Constitutional
Affairs, Harmonisation of Legal Systems within Australia and Between Australia and
New Zealand (November 2006).
86 ‘Towards a Seamless Economy’, Business Council of Australia (Web Page, 2008)
<http://bca.com.au/towards-a-seamless-economy>.

HILL — HOW DOES THE AREA OF LAW PREDICT
288 THE PROSPECTS OF HARMONISATION?
Commercial and corporate legislation is highly uniform, falling within either the
‘almost identical’ or ‘substantially uniform’ categories. Table 4 illustrates the har-
monisation of commercial and corporate law, highlighting its uniformity and high
degree of consensus across jurisdictions. The Hon Michael Kirby AC CMG stressed
that, ‘although uniformity is not an end in itself or desirable in every area of the law,
there is little doubt that in areas of business law and commercial law there is much
to be said for greater uniformity’.87 All sets of uniform Acts fall within the category
of ‘almost identical’ or ‘substantially uniform’, and have a very high level of imple-
mentation in all jurisdictions. The legislation has largely been subject to consecutive
harmonisation, with most sets of uniform Acts represented by referred and applied
structures. One set of uniform Acts represented by mirror legislation is electronic
transactions legislation. This points to a wider consensus between jurisdictions on
the benefits of harmonising commercial and corporate law.
Table 4: Commercial and Corporate Law
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Business
names
Business Names Registration (Transition to Commonwealth) Act
2012 (ACT); Business Names (National Uniform Legislation)
Request Act 2011 (NT); Business Names (Commonwealth
Powers) Acts 2011 (Qld); 2012 (SA); 2011 (Tas); 2011 (Vic);
2012 (WA); 2011 NSW.
R AI All
Competition
policy reform
Competition Policy Reform Act 1996 (ACT); (New South
Wales) Act 1995 (NSW); (Northern Territory) Act 1996 (NT);
(Queensland) Act 1996 (Qld); (South Australia) Act 1996 (SA);
(Tasmania) Act 1996 (Tas); (Victoria) Act 1995 (Vic); (Western
Australia) Act 1996 (WA); (Taxing) Act 1996 (WA).
A AI All
Consumer
protection
Competition and Consumer Act 2010 (Cth) sch 2; Fair Trading
(Australian Consumer Law) Act 1992 (ACT), amended by Fair
Trading (Australian Consumer Law) Amendment Act 2010
(ACT); Fair Trading Act 1987 (NSW), amended by Fair Trading
Amendment (Australian Consumer Law) Act 2010 (NSW);
Consumer Affairs and Fair Trading Act 1990 (NT); Fair Trading
Act 1989 (Qld), amended by Fair Trading (Australian Consumer
Law Amendment) Act 2010 (Qld); Fair Trading Act 1987 (SA),
amended by Statutes Amendment and Repeal (Australian
Consumer Law) Act 2010 (SA); Australian Consumer Law
(Tasmania) Act 2010 (Tas); Fair Trading Act 1999 (Vic),
amended by Fair Trading Amendment (Australian Consumer
Law) Act 2010 (Vic); Fair Trading Act 2010 (WA).
A AI All
87 Michael Donald Kirby, Reform the Law: Essays on the Renewal of the Australian
Legal System (Oxford University Press, 1983) 55.

(2020) 41(1) Adelaide Law Review 289
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Corporations Corporations Act 2001 (Cth); Corporations (Commonwealth
Powers) Acts 2001 (NSW); 2001 (Qld); 2001 (SA); 2001 (Tas);
2001 (Vic); 2001 (WA); Corporations (Northern Territory
Request) Act 2001 (NT).
R AI Adj.
All
Mutual
recognition
Mutual Recognition Act 1992 (Cth); (Australian Capital
Territory) Act 1992 (ACT); (New South Wales) Act 1992 (NSW);
(Northern Territory) Act 1992 (NT); (Queensland) Act 1992
(Qld); (South Australia) Act 1993 (SA); (Tasmania) Act 1993
(Tas) (adopted); (Victoria) Act 1998 (Vic) (adopted); (Western
Australia) Act 2010 (WA), replacing Mutual Recognition (WA)
Act 1995 (WA) (applied).
R AI All
Trans-
Tasman
mutual
recognition
Trans-Tasman Mutual Recognition Acts 1997 (Cth); 1997
(ACT); (New South Wales) Act 1996 (NSW); 1998 (NT);
(Queensland) Act 2003 (Qld); (South Australia) Act 1999 (SA);
(Tasmania) Act 2003 (Tas) (adopting); (Victoria) Act 1998
(Vic); (Western Australia) Act 2007 (WA).
R AI All
Co-
operatives
Co-Operatives (Adoption of National Law) Act 2012 (NSW);
Co-Operatives (National Uniform Legislation) Act 2015 (NT);
Co-Operatives National Law (South Australia) Acts 2013 (SA);
(Tasmania) Act 2015 (Tas); 2013 (Vic).
A SU Most
Electronic
transactions
Electronic Transactions Acts 1999 (Cth); 2001 (ACT); 2000
(NSW); Electronic Transactions (Northern Territory) Act 2000
(NT); (Queensland) Act 2001 (Qld); 2000 (SA); 2000 (Tas);
(Victoria) Act 2000 (Vic); 2003 (WA).
M SU All
Price
exploitation
Price Exploitation Code (New South Wales) Act 1999 (NSW);
New Tax System Price Exploitation Code (Northern Territory)
Act 1999 (NT); (Queensland) Act 1999 (Qld); (South Australia)
Act 1999 (SA); (Tasmania) Act 1999 (Tas); (Victoria) Act 1999
(Vic); (Western Australia) Act 1999 (WA); (Taxing) Act 1999
(WA).
A SU All
Business names legislation is an example of a typical progression that has experi enced
several waves of harmonisation. In the 1960s, the first wave of intended harmonisa-
tion produced mirror legislation based on a model Bill developed by the Standing
Committee of Attorneys-General of the Commonwealth and states.88 At that stage,
the registration of business names was administered by the state and territory govern-
ments. On 3 July 2008, the Council of Australian Governments (‘COAG’) agreed to
the development of a single national system for registering and regulating business
names as part of the Commonwealth Government’s seamless national economic
88 See Table 4 for Business Names legislative framework.

HILL — HOW DOES THE AREA OF LAW PREDICT
290 THE PROSPECTS OF HARMONISATION?
reforms.89 The states and territories would refer matters to the Commonwealth, and
the Commonwealth would maintain online registration for both Australian Business
Numbers and business names. Instead of the state and territory governments admini-
stering the register, it would be done by the Australian Securities and Investments
Commission (‘ASIC’). All jurisdictions have made the referral.90 This register
currently allows businesses to register once for all jurisdictions and identify a unique
business name that can be used to build a brand throughout Australia. In addition, the
register can be used to determine the identity of the entity behind the business name
and its contact details.
Unlike business names, the trajectory of growth in uniformity through consecutive
harmonisation of corporations legislation has been atypical. This legislation has
gone through spontaneous harmonisation from a mirror to applied and then to a
referred structure. The Acts went through the stages of spontaneous uniformity in
the 1800s, when most of the Australian jurisdictions enacted company legislation
based on the Companies Act 1862 25 & 26 Vict c 89 borrowed from England.91
From 1960 to 1969, each jurisdiction enacted uniform mirror legislation.92 Later,
in an effort to bring greater uniformity, an applied structure was implemented: the
Corporations Act 1989 (Cth). State and territory legislation applied the laws of
the Corporations Act 1989 (Cth) in their jurisdictions and conferred powers on the
Australian Securities Commission, now known as ASIC. As a result of case law
putting constitutionality of cross-vesting provisions in doubt,93 the Corporations
Act 2001 (Cth) in referred structure superseded the Corporations Act 1989 (Cth) in
applied structure to become the legislation governing corporations today. State and
territory jurisdictions referred their powers to make laws to the Commonwealth with
respect to the relevant subject matters through the uniform legislative framework.94
Even in the case of corporate legislation, despite strong grounding from spontaneous
harmonisation, full uniformity has not been achieved almost 60 years after the initial
intended harmonisation attempt. In theory, the enactment of the Corporations Act
2001 (Cth) should have resulted in ‘a fully unified system’.95 However, as argued
by The Hon Reginald Barrett AO, although Australia has come a long way, ‘we
have not reached and will probably never reach a point of perfectly harmonised
89 Explanatory Memorandum, Business Names Registration Bill 2011 (Cth) 3.
90 See Table 4 for Business Names legislative framework.
91 Companies Act 1874 (NSW); Companies Act 1863 (Qld); Companies Act 1864 (SA);
Companies Act 1869 (Ta s); Companies Act 1864 (Vic).
92 Companies Ordinance 1962 (ACT); Companies Ordinance 1963 (NT); Companies
Act 1961 (NSW); Companies Act 1961 (Qld); Companies Act 1962 (SA); Companies
Act 1962 ( Ta s ) ; Companies Act 1961 (Vic); Companies Act 1961 (WA) .
93 Re Wakim; Ex parte McNally (1999) 198 CLR 511; R v Hughes (2000) 202 CLR 535.
94 See Table 4 for Corporations legislative framework.
95 Tom Bathurst, ‘The Historical Development of Corporations Law’ (Speech, Francis
Forbes Society for Australian Legal History: Introduction to Australian Legal History
Tutorials, 3 September 2013) 18 [57].

(2020) 41(1) Adelaide Law Review 291
uniformity’.96 Examples of divergence include Tasmanian legislation in which
additional preclusions were added for the appointment of an auditor. Specifically, an
auditor could be anyone other than a particular office-holder.97 Another example is
the New South Wales legislation allowing court proceedings to be brought against
a company in liquidation when leave to proceed has not been granted under the
Corporations Act 2001 (Cth).98 In addition, due to the insertion of pt 1.1A into the
Commonwealth Act entitled ‘Interaction between corporations legislation and State
and Territory laws’, sections of the Act can be excluded from operation in a state or
territory. Inclusion of these roll-over provisions has affected uniformity.
Overall, the area of commercial and corporate law has been characterised by a
high level of uniformity and implementation. Absolute uniformity, however, even
for legislation in referred structure might still be an elusive goal for the Australian
federation.
C Transport Law
Transport law is the third most important area regulated by national uniform legis-
lation. It regulates all types of transport: air, sea, road and rail. Legislative powers
on matters of transport are not expressly assigned in the Australian Constitution.
However, the regulation of transport has been treated as falling under s 51(i) ‘trade
and commerce’ in some cases. ‘Trade and commerce’ was defined in the early case
of W & A McArthur Ltd v Queensland,99 in which the court found ‘the mutual
communing, the negotiations, verbal and by correspondence, the bargain, the
transport and the delivery are all, but not exclusively, parts of that class of relations
between mankind which the world calls “trade and commerce”’.100
The need for inter-jurisdictional cooperation in ‘trade and commerce’ (in accordance
with s 51(i) of the Australian Constitution), involves a vital distinction: interstate
transport can fall within the remit of the Commonwealth, but transport within a state
or territory is regulated by state or territory law. This distinction has not been clear in
some circumstances. Given the advances in modern transport, as Dixon CJ pointed
out, ‘[t]he distinction which is drawn between inter-State trade and the domestic trade
of a State … may well be considered artificial and unsuitable to modern times’.101
The constitutional head of power covers both interstate and intra-state activities,
where they are ‘inseparably connected’.102 The mere fact that it might be uneco-
96 RI Barrett, ‘Towards Harmonised Company Legislation: “Are We There Yet”?’
(2012) 40(2) Federal Law Review 141, 159.
97 Irrigation Company Act 2011 (Tas) .
98 Dust Diseases Tribunal Act 1989 (NSW).
99 (1920) 28 CLR 530.
100 I bid 5 47.
101 Wragg v New South Wales (1953) 88 CLR 353, 385–6.
102 Redfern v Dunlop Rubber Australia Ltd (1964) 110 CLR 194, 221 (Menzies J).

HILL — HOW DOES THE AREA OF LAW PREDICT
292 THE PROSPECTS OF HARMONISATION?
nomical to offer a purely intra-state service has been considered insufficient for the
Commonwealth to regulate travel and transportation nationally.103 Nevertheless, a
remedy for this is now being sought through national uniform legislation.104 Although
the states and territories have mostly enacted applied legislation and vested powers
regulating air transport to the Commonwealth,105 other types of transport have been
subject to recent major reforms. For instance, on 19 August 2011, ‘in a major step
forward in improving the efficiency of transport regulation’,106 COAG approved three
inter governmental agreements on heavy vehicles, rail and maritime safety.
The level of uniformity in transport law varies, as seen in Table 5. The regulation of
air transport is the most uniform, regulation of sea and rail transport is less uniform,
and regulation of road transport is divergent. As for consensus, only the set of Acts
regulating heavy vehicle registration charges have had a low level of implementation.
The level of the remaining sets of Acts has been high. Nonetheless, the low imple-
mentation of legislation of heavy vehicle registration charges has been changing as
this article is being written. The National Transport Commission has announced its
approval of amendments to the Heavy Vehicle Charges Model Law conceived by
the COAG Transport and Infrastructure Council.107 All Australian jurisdictions are
expected to implement the model law and delegated legislation.108
Table 5: Transport Law
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Air
navigation
Air Navigation Act 1920 (Cth); 1938 (NSW); 1937 (Qld); 1937
(SA); 1937 (Tas); 1958 (Vic); 1937 (WA).
A AI Adj.
All
Civil aviation
(carriers’
liability)
Civil Aviation (Carriers’ Liability) Act 1959 (Cth); 1967 (NSW);
1964 (Qld); 1962 (SA); 1963 (Tas); 1961 (Vic); 1961 (WA).
A AI Adj.
All
103 A-G (WA) v Australian National Airlines Commission (1976) 138 CLR 492, 500–501
(Barwick CJ).
104 Regulations under the Air Navigation Act 1938 (NSW), Air Navigation Act 1937 (Qld),
Air Navigation Act 1937 (SA), Air Navigation Act 1937 (Tas), and Air Navigation Act
1937 ( WA ) .
105 See Table 5 for Air navigations legislative framework.
106 Council of Australian Governments (Web Page) <https://www.coag.gov.au/meeting-
outcomes/coag-meeting-communique-19-august-2011>.
107 ‘Heavy Vehicle Charges Model Law’, National Transport Commission (Web Page)
<https://www.ntc.gov.au/laws-and-regulations/heavy-vehicle-charges-model-law>.
108 Ibid.

(2020) 41(1) Adelaide Law Review 293
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Domestic
commercial
vessels
Marine Safety Act 1998 (NSW) pt 1A; Marine Safety (Domestic
Commercial Vessel) (National Uniform Legislation) Act 2013
(NT); Marine Safety (Domestic Commercial Vessel) National
Law (Application) Act 2013 (SA); Marine Safety (Domestic
Commercial Vessel National Law Application) Acts 2013 (Tas);
2013 (Vic).
R AI Adj.
All
Bills of
lading
Sea-Carriage Documents Act 1997 (NSW); 1998 (NT); 1996
(Qld); 1998 (SA); 1997 (Tas); 1998 (Vic); 1997 (WA).
M SU Adj.
All
Heavy
vehicle
regulation
Heavy Vehicle National Law Act 2012 (Qld); (ACT) Act 2013
(ACT); (South Australia) Act 2013 (SA); (Tasmania) Act 2013
(Tas); Heavy Vehicle National Law Application Act 2013 (Vic);
Heavy Vehicle (Adoption of National Law) Act 2013 (NSW).
A SU Most
Rail safety Rail Safety (Adoption of National Law) Act 2012 (NSW); Rail
Safety (National Uniform Legislation Act 2012 (NT); Rail Safety
National Law (South Australia) Act 2012 (SA); 2015 (WA);
(Tasmania) Act 2012 (Tas); (ACT) Act 2014 (ACT); 2000 (Vic),
as amended by the Transport Legislation Amendment (Rail
Safety Local Operations and Other Matters) Act 2013 (Vic).
A SU Most
Road
transport
legislation
(road rules)
Road Transport (Safety and Traffic Management) Regulation
2000 (ACT) cl 6; Road Rules 2008 (NSW); 2009 (Tas); Traffic
Regulations 1999 (NT) sch 3; Transport Operations (Road Use
Management — Road Rules) Regulation 2009 (Qld); Road
Traffic Act 1961 (SA); 1974 (WA) (and regulations); Road
Safety Road Rules 2009 (Vic).
H SU All
Heavy
vehicles
registration
charges
Road Transport (General) Act 1999 (ACT) s 96; Road Transport
(Vehicle Registration Act 1997 (NSW) pt 24; Vehicle and Traffic
Act 1999 (Tas) s 34A and sch 2; Road Traffic Act 1974 (WA).
M PU Some
Road
and rail
(dangerous
goods)
National Transport Commission (Model Legislation —
Transport of Dangerous Goods by Road or Rail) Regulations
2007 (Cth); Dangerous Goods (Road Transport) Act 2009
(ACT); Dangerous Goods (Road and Rail Transport) Act 2008
(NSW); Act 2010 (Tas); Transport of Dangerous Goods by
Road and Rail (National Uniform Legislation) Act 2011 (NT);
Dangerous Goods Act 1985 (Vic).
H PU All
Overall, the area of transport law is characterised by high uniformity and implemen-
tation, with the exception of road transport regulation.
D Legal Systems
Table 6 displays the level of uniformity, structure, and implementation in the area
of legal systems. As shown, ‘legal systems’ mostly covers legislation that regulates

HILL — HOW DOES THE AREA OF LAW PREDICT
294 THE PROSPECTS OF HARMONISATION?
the judicial system. It is also an area of law that has traditionally been regulated
at the state and territory levels. All of these Acts fall within the mirror structure.
The regulation allowing higher flexibility appears to be the preferred approach of
jurisdictions in this area of the law. However, as Table 6 illustrates, even if all sets of
Acts in this area are mirror in structure, the levels of uniformity range from ‘almost
identical’ to ‘some similarities’. Further, legal systems have high implementation,
with only one set of uniform Acts (the Evidence Acts) enacted in ‘most jurisdictions’.
All other sets of uniform Acts in the area of legal systems have been enacted by
‘all jurisdictions’ or ‘adjusted as all jurisdictions’.
Table 6: Legal Systems
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Cross vesting Jurisdiction of Courts (Cross-Vesting) Acts 1987 (Cth); 1993
(ACT); 1987 (NSW); 1987 (NT); 1987 (Qld); 1987 (SA); 1987
(Tas); 1987 (Vic); 1987 (WA).
M AI Adj.
All
Federal
Courts (State
jurisdiction)
Federal Courts (State Jurisdiction) Acts 1999 (NSW); 1999
(Qld); 1999 (SA); 1999 (Tas); 1999 (Vic); 1999 (WA).
M AI Adj.
All
Commercial
arbitration
International Arbitration Act 1974 (Cth); Commercial
Arbitration Acts 2010 (NSW); 2013 (Qld); (SA); 2011 (Tas);
2011 (Vic); 2012 (WA); Commercial Arbitration (National
Uniform Legislation) Act 2011 (NT).
M SU All
Evidence Evidence Acts 1995 (Cth); 2011 (ACT); 1995 (NSW); 2001
(Tas); 2008 (Vic); Evidence (National Uniform Legislation) Act
2011 (NT).
M SU Most
Proportionate
liability
Civil Law (Wrongs) Act 2002 (ACT) ch 7A; Civil Liability Acts
2002 (NSW) pt 4; 2003 (Qld) ch 2 pt 2; 1936 (SA); 2002 (Tas)
pt 9A; 2002 (WA) pt 1F; Wrongs Act 1958 (Vic) pt IVAA.
M SU All
Cross-border
justice
Cross-Border Justice Acts 2009 (NT); 2009 (SA); 2008 (WA) M PU Adj.
All
Defamation Defamation Acts 2005 (NSW); 2006 (NT); 2005 (Qld); 2005
(SA); 2005 (Tas); Act 2005 (Vic); 2005 (WA).
M PU Adj.
All
Court
information
technology
(video link)
Crimes Act 1914 ss 15YU–15UV, inserted by Law and
Justice Legislation Amendment (Video Link Evidence and
Other Measures) Act 2005 (Cth); Evidence (Miscellaneous
Provisions) Acts 1991 (ACT) pt 3; 1958 (Vic) pt IIA; Evidence
(Audio and Audio Visual Links) Acts 1998 (NSW); 1999 (Tas);
Evidence (National Uniform Legislation) Act 2011 (NT) (Part
VA); Evidence Acts 1977 (Qld) pt 3A; 1929 (SA) pt 6C; 1906
(WA) ss 120–123.
M SS All
Crown
proceedings
Court Procedures Act 2004 (ACT) pt 4; Crown Proceedings
Acts 1988 (NSW); 1993 (NT); 1980 (Qld); 1992 (SA); 1993
(Tas); 1958 (Vic); Crown Suits Act 1947 (WA).
M SS All

(2020) 41(1) Adelaide Law Review 295
E Government
Table 7 illustrates legislation in the area of government regulation. The high level of
uniformity in this area is comparable to commercial and corporate law, and the level
of implementation is the highest compared to all other areas of law.
Table 7: Government Regulation
Sets of Uniform
Acts Act
Structure
Level of
Uniformity
Jurisdictional
Implementation
Australia Acts Australia Act 1986 (Cth); Australia Acts (Request) Acts 1985
(NSW); 1985 (Qld); 1985 (SA); 1985 (Tas); 1985 (Vic);
1985 (WA).
M AI Adj.
All
Coastal waters Coastal Waters (State Powers) Act 1980 (Cth); Constitutional
Powers (Coastal Waters) Acts 1979 (NSW); 1980 (Qld);
1979 (SA); 1979 (Tas); 1980 (Vic); 1979 (WA).
M AI Adj.
All
Commonwealth
places (mirror
tax)
Commonwealth Places (Mirror Taxes) Act 1998 (Cth);
Commonwealth Places (Mirror Taxes Administration) Acts
1998 (NSW); 1999 (Qld); 1999 (SA); 1999 (Tas); 1999
(Vic); 1999 (WA).
A AI Adj.
All
Succession
(Crown)
Succession to the Crown Acts 2015 (Cth); 2013 (Qld); 2015
(WA); Succession to the Crown (Request) Acts 2013 (NSW);
2014 (SA); 2013 (Tas); 2013 (Vic); Succession to the Crown
(Request) (National Uniform Legislation) Act 2013 (NT).
R AI Adj.
All
Trade
measurement
National Measurement Act 1960 (Cth); Trade Measurement
(Repeal) Act 2009 (NSW); 2010 (Tas); Trade Measurement
Legislation Repeal Act 2010 (Cth); 2009 (Qld); Statutes
Amendment and Repeal (Trade Measurement) Act 2009
(SA).
R AI All
Australian
Crime
Commission
Australian Crime Commission Act 2002 (Cth); (ACT) Act
2003 (ACT) (mirror); (New South Wales) Act 2003 (NSW)
(applied); (Northern Territory) Act 2005 (NT); (Queensland)
Act 2003 (Qld); (South Australia) Act 2004 (SA); (Tasmania)
Act 2004 (Tas) (mirror); (State Provisions) Act 2003 (Vic);
(Western Australia) Act 2004 (WA).
H SU All
Standard time Standard Time and Summer Time Act 1972 (ACT); Standard
Time Acts 1987 (NSW); 2005 (NT); 1894 (Qld); 2009 (SA);
1895 (Tas); 2005 (WA); Supreme Court Act 1986 (Vic) s 43.
M SU All
Three sets of uniform Acts in this area are directed at the resolution of an isolated
problem: the Australia Acts, Commonwealth Places (Mirror Tax) and Succession
(Crown) Acts. All of these sets are in the ‘almost identical’ category and are repre-
sented by various structures.

HILL — HOW DOES THE AREA OF LAW PREDICT
296 THE PROSPECTS OF HARMONISATION?
This section considers the Australia Acts first.109 The Federal Parliament has no
specific power to legislate on matters related to the monarchy. Thus, a decision
was made to enact national uniform legislation to resolve this issue of nation-wide
importance. The first step in the arrangement included a state request for legislation,
specifically provided for in s 3 of the Australia Acts (Request) Act 1985 (NSW). It
stated, ‘[t]he Parliament of the State requests the enactment by the Parliament of
the Commonwealth of an Act in, or substantially in, the terms set out in the First
Schedule’. Sections 4 and 5 of the Australia Acts (Request) Act 1985 (NSW), in
similar terms, requested and consented to the simultaneous enactment of the Australia
Act 1986 (Cth) and the Australia Act 1986 (UK).
Questions were raised about the constitutionality of these enactments.110 However,
the High Court confirmed the validity of the Australia Act in its two versions, together
with the state request and consent legislation.111 Pursuant to this decision, Australian
independence was established on the date the Australia Act 1986 (Cth) came into
operation, 3 March 1986.
The High Court’s decision served as a focusing event in the Commonwealth Places
(Mirror Tax) set of uniform Acts.112 This set of uniform Acts was enacted in response
to the High Court decision of Allders International Pty Ltd v Commissioner of State
Revenue (Vic),113 and was aimed at protecting the states. The High Court had held
that tobacco franchise fees were excise duties and were thus constitutionally invalid.
The legislation introduced the ‘essential elements of safety net arrangements … to
ensure the continuation of appropriate taxation arrangements for Commonwealth
Places’.114 All jurisdictions enacted legislation in an applied structure that was
classified as ‘almost identical’. Uniformity has remained almost unchanged from the
outset with minimal or no amendments by the jurisdictions.
Another area of government regulation, Coastal Waters legislation,115 falls under
the ‘almost identical’ level of uniformity. It resulted from the Offshore Constitu-
tional Settlement of 1979, which included an intricate distribution of powers between
the jurisdictions and was viewed as a ‘milestone in cooperative federalism’.116
Coastal Waters legislation represents the consensus of the Australian jurisdictions
on regulating offshore areas after a decade of disputes between the Commonwealth
and states over sovereignty, culminating in the landmark High Court decision in
109 See Table 7 for Australia Acts legislative framework.
110 Sue v Hill (1999) 199 CLR 462; A-G (WA) v Marquet (2003) 217 CLR 545.
111 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28.
112 See Table 7 for Commonwealth Places legislative framework.
113 (1996) 186 CLR 630.
114 Queensland, Parliamentary Debates, Legislative Assembly, 25 May 1999, 1823
(David Hamill).
115 See Table 7 for Coastal Waters legislative framework.
116 Marcus Haward, ‘The Australian Offshore Constitutional Settlement’ (1989) 13(4)
Marine Policy 334, 334.

(2020) 41(1) Adelaide Law Review 297
the Seas and Submerged Lands Act Case.117 The Offshore Constitutional Settlement
‘reinforced shared jurisdiction in offshore areas’,118 offering a cooperative yet
practical solution:119
[T]he Commonwealth agreed that the States should be put, so far as possible,
in the position they believed they were in before the High Court case. At the
October 1977 Premiers Conference, it was agreed that the territorial sea should
be the responsibility of the States.120
The arrangements involved were substantial and included cooperation among the
following bodies: the Australian Minerals and Energy Council, the Australian
Fisheries Council, the Australian Environment Council, the Council of Nature
Conservation Ministers and the Standing Committee of Commonwealth, with the
state Attorneys-General overseeing ‘the legal aspects of the exercise’.121 As Marcus
Haward recounted, ‘the [Offshore Coastal Settlement] has been the most ambitious
and significant intergovernmental framework for Australian marine resources
policy … in both scope and complexity’.122 Although the approach to implementing
the agreement’s components has evolved from being integrated (where some parts
of the agreement could not be implemented until others were) to sectoral (where
components of the agreement were implemented within sectors),123 the institutional
support provided has allowed high levels of uniformity to be achieved.
Finally, due to government regulation, two sets of uniform Acts relating to measure-
ment and time are now uniform. Trade measurement legislation was recently raised
to the level of utmost uniformity, with jurisdictions ‘clearing the field’ for Common-
wealth regulation.
Standard time legislation has achieved a ‘substantially uniform’ level, although, it
has taken decades to come to a uniform position. This legislation dates back to 1892,
when jurisdictions enacted uniform legislation related to standard Greenwich Mean
Time. At that stage, the legislation and regulations were consistent. This continued
until the Premiers’ Conference in May 1915, where the prospect of a national daylight
savings regime was discussed.124 During World War I and World War II national
117 New South Wales v Commonwealth (1976) 135 CLR 337 (‘Seas and Submerged Lands
Act Case’).
118 Haward (n 116) 334.
119 Attorney-General’s Department, Offshore Constitutional Settlement: Selected State-
ments and Documents 1978–79 (Australian Government Publishing Services, 1980) 5.
120 I bid 16 .
121 Ibid 5.
122 Haward (n 116) 347.
123 Ibid.
124 Premiers’ Conference, Report of the resolutions, proceedings and debates of the
Premiers’ Conference held at Sydney May 1915 (Parliament of Victoria Paper No 24,
Session 1915) 64 – 65.

HILL — HOW DOES THE AREA OF LAW PREDICT
298 THE PROSPECTS OF HARMONISATION?
daylight time operated throughout Australia. Tasmania and Victoria introduced it in
1916. In Tasmania, the Act was later repealed by the Daylight Saving Repeal Act
1917 (Tas), but daylight savings was reintroduced in 1967.
By 1990, the jurisdictions were changing the dates on which to introduce daylight
savings and their positions were not uniform. Senator Paul Calvert described the
‘maze of different times’ as a ‘shackle on the economy, as well as causing interrup-
tions to work and family balance’.125 Starting on 1 September 2005, all jurisdictions
adopted the Coordinated Universal Time (UTC) standard, and following long delib-
erations, in April 2007, they agreed on a uniform start and end date. However,
Queensland, Western Australia and the Northern Territory still do not have daylight
savings. The sets of uniform Acts enjoy high uniformity because the legislation was
initially mirror and only some changes have been required, even though it has taken
decades to convince the jurisdictions to come to a consensus.
Overall, the level of uniformity and implementation is very high in the government
area of law. There has been a high level of consensus when jurisdictions have been
faced with challenges that impact the nation in a similar manner.
F Energy and Resources
Table 8 represents sets of Acts in areas related to energy and resources. Several of the
Acts have resulted from the COAG reform agenda. These include the first three sets
of uniform Acts — electricity, energy retail and gas — which came out of the COAG
energy market reforms (overseen by the COAG Energy Council). Similarly, sets of
uniform Acts regulating water resources have come from COAG’s national water
initiative. The initiative covers ‘a range of areas where best-practice and nationally
consistent approaches to water management will bring substantial benefits’.126
As can be seen in Table 8, although energy and resources legislation falls under
various structures, the level of uniformity is high. The best explanation for this is
that legislation has been drafted within a highly uniform applied structure where
there have also been rigid mechanisms limiting amendment and ensuring sustain-
able uniformity. In addition to the robust mechanism of amendment, the Australian
Energy Regulator (‘AER’) has strong enforcement powers.127
125 Chris Pearce, The Great Daylight Saving Time Controversy (Australian eBook
Publisher, 2017) 261.
126 John Howard, ‘Council of Australian Governments’ Meeting 25 June 2004, Canberra
Communique’ (Media Release 21340, Department of Prime Minister and Cabinet,
25 June 2004) <https://pmtranscripts.pmc.gov.au/release/transcript-21340>.
127 ‘Enforcement Matters’, The Australian Energy Regulator (Web Page) <https://www.
aer.gov.au/wholesale-markets/enforcement-matters>.

(2020) 41(1) Adelaide Law Review 299
Table 8: Energy and Resources
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Electricity Electricity (National Scheme) Act 1997 (ACT); Electricity –
National Scheme (Queensland) Act 1997 (Qld); National
Electricity (New South Wales) Act 1997 (NSW); (South
Australia) Act 1996 (SA).
A AI Most
Energy retail Australian Energy Market Act 2004 (Cth), as amended by the
Australian Energy Market Amendment (National Energy Retail
Law) Act 2011 (Cth); National Energy Retail Law (ACT) Act
2012 (ACT); (Adoption) Act 2012 (NSW); (South Australia)
Act 2011 (SA); (Tasmania) Act 2012 (Tas); National Energy
Retail Law (Victoria) Bill 2012 (Vic).
A AI Most
Gas National Gas (ACT) Act 2008 (ACT); (New South Wales)
Act 2008 (NSW); (Northern Territory) Act 2008 (NT);
(Queensland) Act 2008 (Qld); (South Australia) Act 2008 (SA);
(Tasmania) Act 2008 (Tas); (Victoria) Act 2008 (Vic); National
Gas Access (WA) Act 2009 (WA).
A AI All
Water Water Act 2007 (Cth); Water (Commonwealth Powers) Acts
2008 (NSW); 2008 (Qld); 2008 (SA); 2008 (Vic).
R AI Adj.
All
Offshore
minerals
Offshore Minerals Acts 1994 (Cth); 1999 (NSW); 1998 (Qld);
2000 (SA); 2003 (WA).
M SU Adj.
All
Petroleum
(offshore/
submerged
lands)
Petroleum (Submerged Lands) Act 1967 as redrafted in
Offshore Petroleum Act 2006 (Cth); Petroleum (Offshore) Act
1982 (NSW); Petroleum (Submerged Lands) Acts 1981 (NT);
1982 (Qld); 1982 (SA); 1982 (Tas); 1982 (Vic); 1982 (WA).
M SU All
Water
efficiency
labelling
Water Efficiency Labelling and Standards Act 2005 (Cth); 2005
(ACT); (New South Wales) Act 2005 (NSW); 2005 (NT); 2005
(Qld); 2006 (SA); 2005 (Vic) (mirror); 2006 (WA) (mirror).
H SU All
Energy regulation has been one of the most rigid in terms of structure, and yet
adaptable in terms of implementing the changes, schemes for uniformity in applied
legislation. The following case study illustrates how sustainability has been ensured
through a combination of the COAG reform agenda, amending provisions in the Act,
and national regulators. The legislative framework for energy includes three sets of
uniform Acts, all with an applied structure: the National Electricity Law; National
Gas Law; and National Energy Retail Law.128 Each element of this framework
secures high uniformity and streamlined amendment provisions.
128 See Table 8 for National Electricity, Natural Gas and National Energy legislative
frameworks.

HILL — HOW DOES THE AREA OF LAW PREDICT
300 THE PROSPECTS OF HARMONISATION?
Following reforms to regulate competition, the COAG Energy Council proposed a
new government structure to regulate energy markets. Three national bodies were
created to replace the state and territory bodies: the Australian Energy Market
Commission (‘AEMC’) and the AER in 2005 and the Australian Energy Market
Operator (‘AEMO’) in 2009. Together, these three bodies share the functions of
providing broad policy direction, rulemaking and market development, economic
regulation and compliance, and market operations.129
The mechanisms relied on to secure and sustain high uniformity have included the
COAG reform agenda, applied structure, national regulators and the amendment
provisions of legislation. In addition to these factors, regular forums are held to ensure
the dissemination of streamlined knowledge and expertise. In this case study, sustain-
ability most closely reflects the law’s adaptability to new circumstances as opposed
to stagnant laws or conferrals of jurisdiction. Indeed, the area is far from stagnant; it
is quite dynamic, with amendments constantly taking place. In May 2020, the current
consolidated version of the national electricity rules was at version 139,130 and for
the national gas rules it was version 54.131 It is unlikely that this level of uniformity
would be achievable (or sustainable) in other applied schemes without the additional
mechanisms deployed by the energy framework.
To summarise, energy and resources law has substantial uniformity, but this
uniformity is not the result of historical consensus. Rather there is a complex archi-
tecture supporting this uniformity. The advantages of national uniform legislation in
cases of shared natural resources include creating an ‘even playing field’,132 creating
equality for all Australians,133 and bringing together legal talent from various juris-
dictions.134 The wider relevance of these national reforms has been made possible by
national uniform legislation that benefits the economic development of Australia.135
129 Australian Energy Regulator, Australian Energy Regulator Annual Report 2015–16
(Report, October 2016) 12–13.
130 ‘National Electricity Rules’, The Australian Energy Market Commission, (Web Page)
<http://www.aemc.gov.au/Energy-Rules /National-electricity-rules/Current-Rules>.
131 ‘National Gas Rules’, The Australian Energy Market Commission (Web Page)
<https://www.aemc.gov.au/regulation/energy-rules/national-gas-rules/current>.
132 Elizabeth Bluff and Neil Gunningham, ‘Harmonising Work Health and Safety
Regulatory Regimes’ (2012) 25(2) Australian Journal of Labour Law 85, 87.
133 Glenn Patmore and Kim Rubenstein, Law and Democracy: Contemporary Questions
(ANU Press, 2014) 111.
134 Peter B Maggs, ‘The Process of Codification in Russia: Lessons Learned from the
Uniform Commercial Code’ (1998) 44(2) McGill Law Journal 281, 281.
135 Rod Sims, ‘Australia’s Experience Driving Economic Growth through Competition
Policy Reforms’ (Speech, World Bank Forum - Making Markets Work for Develop-
ment: A Reform Agenda on Competition, 23 April 2013) <https://www.accc.gov.
au/speech/australia%E2%80%99s-experience-driving-economic-growth-through-
competition-policy-reforms>.

(2020) 41(1) Adelaide Law Review 301
However, it must also be noted that the costs of harmonisation have been high, and it
might be impossible to accumulate the resources needed to achieve harmonisation in
areas of law that are deemed less essential to the nation as a whole.
G Health
Table 9 presents sets of uniform Acts in the area of health law. As can be observed,
the predominant structure is ‘applied’, the level of uniformity is at the medium level
(ranging from substantially to partially uniform), and implementation is at the ‘most
jurisdictions’ level. Health is an area of law that has historically been within the
remit of the states and territories, but with the development of new technologies and
new chemicals, national regulation might be more efficient. However, this would
only be possible if jurisdictions agreed to legislate in applied structure. If legislation
is in mirror structure, there is a high probability that the level of uniformity would
diminish over the years, as occurred with human cloning legislation, discussed below.
This area of law has a predominance of applied structure, something that was not
observed in any other area of law researched for this study. Applied structure usually
includes rigid mechanisms that limit amendment and ensure sustainable uniformity
going forward.
Table 9: Health
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Level of
Implementation
Human
cloning
Prohibition of Human Cloning for Reproduction Act 2002
(Cth); Human Cloning and Embryo Research Act 2004 (ACT);
Human Cloning for Reproduction and Other Prohibited
Practices Act 2003 (NSW); Research Involving Human
Embryos and Prohibition of Human Cloning Act 2003 (Qld);
Prohibition of Human Cloning Act 2003 (SA); Human Cloning
and Other Prohibited Practices Act 2003 (Tas); Infertility
Treatment Act 1995 (Vic) pt 4A; Human Reproductive
Technology Act 1991 (WA).
M SU to
SS
Most
Human
embryo
research
Research Involving Human Embryos Act 2002 (Cth); Human
Cloning and Embryo Research Act 2004 (ACT); Research
Involving Human Embryos (New South Wales) Act 2003 (NSW)
(applied); Prohibition of Human Cloning Act 2003 (Qld);
Research Involving Human Embryos Act 2003 (SA); Human
Embryonic Research Regulation Act 2003 (Tas); Infertility
Treatment Act 1995 (Vic) pt 2A (mirror); Human Reproductive
Technology Act 1991 (WA).
A SU Most
Food safety Food Standards Australia New Zealand Act 1991 (Cth); Food
Acts 2001 (ACT); 2003 (NSW); 2004 (NT); 2006 (Qld); 2001
(SA); 2003 (Tas); 1984 (Vic); 2008 (WA).
H SU All

HILL — HOW DOES THE AREA OF LAW PREDICT
302 THE PROSPECTS OF HARMONISATION?
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Level of
Implementation
Therapeutic
goods/poison
Therapeutic Goods Act 1989 (Cth); Medicines, Poisons and
Therapeutic Goods Acts 2008 (ACT); 2012 (NT); Poisons and
Therapeutic Goods Act 1966 (NSW); Controlled Substances
Act 1984 (SA) pt 2A; Therapeutic Goods Act 2001 (Tas);
Therapeutic Goods (Victoria) Act 2010 (Vic); Medicines and
poisons Act 2014 (WA).
A PU Most
Sports drug
testing
Australian Sports Anti-Doping Authority Act 2006 (Cth); Drugs
in Sport Act 1999 (ACT); Sports Anti-Doping Acts 2003 (Qld);
2005 (Vic); Sports Drug Testing Acts 2000 (SA); 2001 (WA).
A SU Most
As can be observed from Table 9, jurisdictions are less likely to harmonise legisla-
tion in this area. With anti-doping regulation, the jurisdictions responded to pressure
imposed by the Commonwealth. The set of uniform Acts was enacted in mirror
structure but included conferral from the outset. In 1990, the Australian Sports Drug
Agency Act 1990 (Cth) established an independent statutory agency, the Australian
Sports Drug Agency, to address the issue of drug use in sport following a Senate
inquiry.136 This prompted action by the Commonwealth government, resulting in a
further increase in sustainable uniformity. In 2006, the Agency was replaced by the
Australian Sports Anti-Doping Authority with increased powers to conduct investi-
gations, present cases before sporting tribunals, recommend sanctions and approve
and monitor sporting organisations’ anti-doping policies. In 2013, the Australian
Sports Anti-Doping Authority Amendment Act 2013 (Cth) granted the Authority the
right to increase its investigatory powers.
Due to its highly controversial nature, human cloning legislation is one set of uniform
Acts that is not in ‘applied’ structure and has experienced diminished uniformity
over time. Prior to 2002, no Commonwealth regulations existed in this area and the
state and territory jurisdictions all had different regulations with regard to human
tissue and embryo research. In 2002, as a result of a conscience vote,137 legislation
was enacted that included the Research Involving Human Embryos Act 2002 (Cth)
and the Prohibition of Human Cloning Act 2002 (Cth). On 5 April 2002, COAG
agreed that the Commonwealth, states and territories would introduce nationally
consistent legislation. From the outset, agreement was achieved through consistent
legislation with the implication that any legislation would be uniform in principle
only. The uniformity in this area has diverged over time and is less uniform now than
it was at the time of its enactment. In 2006, following a review, the legislation was
136 Senate Standing Committee on Environment, Recreation and the Arts, Parliament of
Australia, Drugs in Sport, (Report No 2, May 1990).
137 Susan Dodds and Rachel Ankeny, ‘Regulation of hESC Research in Australia:
Promises and Pitfalls for Deliberative Democratic Approaches’ (2006) 3(1) Journal of
Bioethical Inquiry 95, 98.

(2020) 41(1) Adelaide Law Review 303
amended to allow somatic cell nuclear transfers or ‘therapeutic cloning’.138 The pro-
hibition against human embryo research remained. All jurisdictions, except Western
Australia, have followed this development by preparing uniform amendments.
Strong support mechanisms, such as applied structure, have been used in the area of
health regulation to support harmonisation. However, not all jurisdictions have been
amenable to enacting applied legislation. Therefore, the implementation level is not
high in this area.
H Family Law and Relationships
Table 10 displays sets of Acts in areas related to family law and relationships. Two
sets of uniform Acts are in referred structure and are highly uniform, and two sets
of uniform Acts fall under the ‘some similarities’ category, with only some similar
provisions across jurisdictions. The level of implementation is at either the ‘adjusted
as all jurisdictions’ or ‘most jurisdictions’ level. With the two extremes in structure
(referred and mirror) there appears to be no inclination of jurisdictions to enact legi-
slation in this area of law in an applied structure. Moreover, there seems to be a high
level of divergence unless legislation is enacted in a referred structure. Thus, family
law and relationships is the area of the law with the fewest prospects for achieving
high uniformity.
Table 10: Family Law and Relationships
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Surrogacy Parentage Act 2004 (ACT); Surrogacy Acts 2010 (NSW); 2010
(Qld); 2012 (Tas); 2008 (WA); Family Relationships Act 1975
(SA) pt 2B; Status of Children Act 1974 (Vic) pt IV.
M SS Most
Parentage
presumptions
Family Law Reform Act 1995 (Cth); Parentage Act 2004
(ACT); Status of Children Acts 1996 (NSW); 1978 (NT); 1978
(Qld) pt 3; 1974 (Tas); 1974 (Vic); Family Court Act 1997
(WA) pt 5 div 11 sub-div 3.
M SS Most
De facto
financial
matters
Family Law Act 1975 (Cth); De Facto Relationships Act 1991
(NT); Commonwealth Powers (De Facto Relationships) Acts
2003 (Qld); 2009 (SA); 2006 (Tas); 2004 (Vic); 2006 (WA);
2003 (NSW).
R AI Adj.
All
138 Prohibition of Human Cloning for Reproduction and the Regulation of Human
Embryo Research Amendment Act 2006 (Cth).

HILL — HOW DOES THE AREA OF LAW PREDICT
304 THE PROSPECTS OF HARMONISATION?
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Family law Family law Act 1975 (Cth); Commonwealth Powers (Family
Law — Children) Acts 1986 (NSW); 1986 (Vic); 1990 (Qld);
Commonwealth Powers (Family Law) Acts 1986 (SA); 1987
(Tas); Family Court Act 1997 (WA) (not referred).
R AI Adj.
All
Child
protection
(international
measures;
Hague
Convention)
Family Law Act 1975 (Cth) sch 1; Child Protection
(International Measures) Acts 2006 (NSW); 2003 (NSW);
2003 (Tas).
M SU Adj.
All
Examples of three sets of uniform Acts are given in this section: most uniform,
medium uniform and least uniform.
The most uniform is the De Facto Financial Matters set of uniform Acts,139 which
was enacted in referred structure from the outset. The referral of powers over property
rights was raised at the Australian Constitutional Convention in 1998. The time for
referral came when the Family Law Legislation Amendment (Superannuation) Act
2001 (Cth) was enacted, allowing the distribution of superannuation for married
couples. This resulted in uncertainty over superannuation splitting orders for de facto
couples across jurisdictions. The problem stream was characterised as follows:
Under the present regime, de facto couples in different States may have their
property treated differently for no good reason. Even if States intend to enact
and maintain uniform legislation, process delays can result in legislative
anomalies. Such an approach would be highly complex, time-consuming, and
impracticable.140
As a result, the policy stream included a set of Acts in referred structure to refer these
matters to the Commonwealth for regulation, particularly parenting and financial
matters under the Family Law Act 1975 (Cth). The legislation was enacted in referred
structure from the outset by all jurisdictions. As Western Australia is the only juris-
diction with a State Family Court, it has some differences, but other than that, the
current legislative regime has been characterised by high uniformity.
Another example of national uniform legislation in this area of law falls under the
‘substantially uniform’ set of uniform Acts in legislation intended to ratify the Hague
139 See Table 10 for De Facto Financial Matters legislative framework.
140 New South Wales, Parliamentary Debates, Legislative Council, 15 October 2003,
3843 (John Hatzistergos, Minister for Justice).

(2020) 41(1) Adelaide Law Review 305
Convention on Child Protection (the ‘Convention’).141 Soon after the Convention
was ratified, the Commonwealth Parliament passed legislation allowing the Family
Court to register and enforce orders in accordance with the Convention. Regulation 4
of the Family Law (Child Protection Convention) Regulations 2003 (Cth), under the
Family Law Act 1975 (Cth), included roll back provisions specifying that once a
jurisdiction enacted the same or similar legislation, such legislation would prevail.
The roll back provision was included not only to give expediency to the obligations
under the Convention, but also to recognise that child protection had traditionally
been within the remit of the state and territory Parliaments. This might have been
the only case in which the non-enactment of national uniform legislation resulted in
almost complete uniformity between jurisdictions due to Commonwealth regulation.
To implement the Convention at the state and territory level, Queensland drafted a
model Bill. The Bill was approved by the PCC, the Standing Committee of Attorneys-
General, and the Community Services Ministers Committee.142 The model Bill
was subsequently enacted in Queensland and Tasmania, and later in New South
Wales.143 The Queensland and Tasmanian legislation followed the model. The New
South Wales version had ‘two minor points’ of difference, related to the definition
of ‘interested person’, and providing a ‘mechanism whereby the Director-General of
the Department of Community Services can obtain relevant information necessary
to prepare a report … on the consultations undertaken prior to child being placed in
foster care in a convention country’.144 In a second reading speech in the New South
Wales Legislative Assembly, it was noted that
since 2003 [the Convention] … has been administered in Australia through the
Commonwealth Family Law Act 1975. It has always been the intention that each
State and Territory would also put in place its own legislation to implement these
measures in its jurisdiction.145
None of the remaining jurisdictions followed by enacting mirror legislation, allowing
the Commonwealth legislation to apply.
The least uniform set of uniform Acts categorised under ‘some similarities’ is the
regulation of surrogacy.146 Although all jurisdictions except the Northern Territory
141 The Hague Convention on the Jurisdiction, Applicable Law, Recognition, Enforce-
ment and Co-operation in respect of Parental Responsibility and Measures for the
Protection of Children, signed 19 October 1996 (entered into force 1 January 2002).
142 Legislation Review Committee, Parliament of New South Wales, Legislation Review
Digest (No 2 of 2006, 7 March 2006) 7.
143 See Table 10 for Child Protection legislative framework..
144 New South Wales, Parliamentary Debates, Legislative Assembly, 28 February 2006,
20737 (Alison Megarrity).
145 Ibid 20736 (Alison Megarrity).
146 Parentage Act 2004 (ACT); Surrogacy Act 2010 (NSW); Surrogacy Act 2010 (Qld);
Family Relationships Act 1975 (SA); Surrogacy Act 2012 (Tas); Assisted Reproductive
Treatment Act 2008 (Vic); Surrogacy Act 2008 ( WA ) .

HILL — HOW DOES THE AREA OF LAW PREDICT
306 THE PROSPECTS OF HARMONISATION?
allow altruistic surrogacy and prohibit commercial surrogacy, there have been great
variations between the sets of uniform Acts. The uniformity found here is only based
on a general principle. However, this legislation still falls under the definition of
national uniform legislation. Looking at the structure, most sets of uniform Acts
have been standalone legislation, although the South Australian provisions are
contained in the Family Relationships Act 1975 (SA). Variations in the substan-
tive provisions have been quite significant. The Australian Capital Territory allows
same sex couples to become parents of a surrogate child, but not single persons.147
New South Wales prohibits advertising of surrogacy arrangements.148 In Victoria,
certain surrogacy arrangements must be approved by a patient review panel.149 In
Western Australia, approval must be granted by the Western Australian Reproduc-
tive Technology Council.150 This disparity among regulations has caused inequities,
because some Acts within the set contain discriminatory provisions.151 Thus, only
the general principles of this set of uniform Acts are consistent, and the set itself has
‘some similarities’.
Thus, in the area of family law and relationships, jurisdictions have historically had
disparate regulations and the only path to higher uniformity has been the almost
coercive interference by the Commonwealth, with rigid structures such as referred
legislation. In other circumstances, lobbying forces within jurisdictions have argued
for different approaches and regulation has depended on the political distribution of
the forces on the day.
I Business, Trades and Professions
Table 11 represents sets of Acts in areas related to business, trades and profes-
sions. Although the structures vary from mirror to applied, the level of uniformity
is ‘substantially uniform’ for all four sets of uniform Acts. It must be noted from the
outset that sets of uniform Acts for occupational licensing have been the only sets of
uniform Acts where the harmonisation effort has been reversed, as will be outlined
in the case study below. National reform of the legal profession is happening as this
article is being written. Although mirror sets of uniform Acts have been enacted
Australia-wide, only three jurisdictions have committed to the new set of uniform
Acts in applied structure.
147 Parentage Act 2004 (ACT) s 24.
148 Surrogacy Act 2010 (NSW) s 10.
149 Assisted Reproductive Treatment Act 2008 (Vic) s 39.
150 Surrogacy Act 2008 (WA) s 16.
151 House of Representatives Standing Committee on Social Policy and Legal Affairs,
Parliament of Australia, Surrogacy Matters Inquiry into the Regulatory and Legisla-
tive Aspects of International and Domestic Surrogacy Arrangements (Report, April
2016) 5.

(2020) 41(1) Adelaide Law Review 307
Table 11: Business, Trades and Professions
Sets of
Uniform Acts Acts
Structure
Level of
Uniformity
Jurisdictional
Implementation
Health
practitioner
regulation
Health Practitioner Regulation (Adoption of National Law)
Act 2009 (NSW); Health Practitioner Regulation (National
Uniform Legislation) Act 2010 (NT); Health Practitioner
Regulation National Law (ACT) Acts 2010 (ACT); 2009 (Qld);
(South Australia) Act 2010 (SA); (Tasmania) Act 2010 (Tas);
(Victoria) Act 2009 (Vic); (WA) Act 2010 (WA).
A SU All
Occupational
licensing
Occupational Licensing (Adoption of National Law) Act 2010
(NSW); Occupational Licensing National Law (Queensland)
Act 2010 (Qld); (South Australia) Act 2011 (SA); 2011 (Tas);
2010 (Vic).
A SU Most
Legal
profession
Legal Profession Acts 2006 (ACT); 2006 (NT); 2007 (Qld);
2007 (Tas); 2008 (WA); Legal Profession Act Uniform Law
Application Act 2014 (NSW); Legal Profession Act 2014 (Vic).
M to
A
SU to
AI
All
to 3
Professional
standards
Civil Law (Wrongs) Act 2002 (ACT) sch 4; Professional
Standards Acts 1994 (NSW); 2004 (NT); 2004 (Qld); 2004
(SA); 2005 (Tas); 2003 (Vic); 1997 (WA).
M SU All
To illustrate how harmonisation operates to regulate trades and professions, this
section compares two harmonisation attempts: occupational licensing and the legal
profession. What can be observed from these two examples is that the area of law
regulating professions has strong advocacy coalitions with set views on the rules
and customs for operating professions and trades within certain jurisdictions. The
jurisdictions are ready to cooperate but not under strict deadlines. This is not an
area of law where the Commonwealth incentive can ‘speed up’ the process of har-
monisation. Rather, time and genuine effort must be spent to find consensus among
jurisdictions, under pressure from consumers for change. These are the appropriate
conditions for national reforms in this area of the law.
This section first provides an analysis of a national reform that has been cancelled.
That is what occurred in the case of occupational licensing reform. A national occu-
pational licensing system was planned to regulate the entry requirements for the
trades.152 The foundation for reform was supported by the National Partnership
Agreement to Deliver a Seamless National Economy and financial incentives for
152 For example, electricians and plumbers. See Occupational Licensing (Adoption of
National Law) Act 2010 (NSW); Occupational Licensing National Law (Queensland)
Act 2010 (Qld); Occupational Licensing National Law (South Australia) Act 2011
(SA) ; Occupational Licensing National Law Act 2011 (Tas) ; Occupational Licensing
National Law Act 2010 (Vic).

HILL — HOW DOES THE AREA OF LAW PREDICT
308 THE PROSPECTS OF HARMONISATION?
meeting (or penalties for missing) progressive milestones.153 The initial regulatory
area was quite diverse, with all states and territories developing licensing require-
ments in cooperation with local businesses, occupational bodies and consumers.
Diversity has been and remains quite substantial within jurisdictions taking ‘pride’
in the regulatory regime.154 This diversity has also been quite problematic in the
context of Australia’s skills shortage. The ‘tyranny of diversity’ has included more
than 27 licensing regimes, little consistency in training requirements and almost no
unifying themes for fees.155 As Delia Lawrie stated in the second reading speech for
the Northern Territory Bill, ‘[t]here are currently 800 licence types … This COAG
reform will make it easier for occupational licensees to operate across State and
Territory borders … This will benefit the Territory in attracting skilled labour’.156
The progress of reform has been riddled with difficulties. Nevertheless, even after
continued lack of support and the inability to find consensus between jurisdictions,
a Bill was produced. It received strong criticism for being ‘underdeveloped’ and
putting ‘more detail into regulations than would be normal’.157 As a result, regardless
of the strong need for a consistent national regime, consensus has not been achieved,
and occupational licensing legislation158 has become the only example of recent
national uniform Acts to be scheduled for intentional winding down. As one former
official remarked: ‘In short, an unlikely unity ticket between those who wanted no
change and those who wanted maximum, rapid change won the day and killed off the
steady progress option.’159 COAG’s decision to discontinue the proposed reform was
made in December 2013.160 Member of the New South Wales Legislative Council,
Rick Colless, stated the reasons for its discontinuation during the second reading
speech of the Occupational Licensing National Law Repeal Bill 2015 (NSW). In
his words, the Bill ‘gives effect … to the decision of the Council of Australian
Governments to terminate the national occupational licensing reform in favour of
153 COAG Business Advisory Forum Taskforce, Report Card for National Partnership
Agreement to Deliver a Seamless National Economy (Report Card, April 2013).
154 Janet Tyson, Case Program the National Occupational Licensing Project (Discussion
Paper, Australia and New Zealand School of Government, 2016) <https://www.
anzsog.edu.au/preview-documents/case-study-level-1/930-national-occupational-
licensing-project-the-nola-a-2016-177-1/file> 1.
155 Ibid 2.
156 Northern Territory, Parliamentary Debates, Legislative Assembly, 30 November
2010, 7009–10 (Delia Lawrie).
157 Standing Committee on Uniform Legislation and Statutes Review, Parliament of
Western Australia, Occupational Licensing National Law (WA) Bill 2010 (Report
No 61, April 2011) 2, 20.
158 See Table 11 for Occupational Licensing legislative framework.
159 Sutton (n 2).
160 Council of Australian Governments, COAG Meeting Communiqué (13 December
2013) <https://www.coag.gov.au/meeting-outcomes/coag-meeting-communique-13-
december-2013>.

(2020) 41(1) Adelaide Law Review 309
jurisdictions minimising licensing impediments to labour mobility’.161 Thus, rather
than continuing with harmonisation that established a national regime for regulation,
the jurisdictions continued with harmonisation that minimised the differences. As a
result, work on the set of uniform Acts was discontinued.
In this area of the law, harmonisation takes time, and this must be accompanied
by a constant effort for consecutive harmonisation. Initial harmonisation of the
legal profession took around 20 years, with the law of evidence taking more than
30 years to become ‘substantially uniform’. Work health and safety harmonisation
took decades, with constant administrative reforms. Corporations law went through
cycles of consecutive harmonisation for almost a century, and it is still not identical
law. Occupational licensing reform was rolled out and abandoned within less than
five years.162 In a similar way, consecutive reform in the legal profession (requiring a
change of structure from mirror to applied) was rolled out and opposed by jurisdic-
tions within three years.163 The general rule has been the constant search for consensus
and the refinement of policy through cooperative federalism with adequate institu-
tional support, rather than the opportunistic use of institutions or incentive measures
to gain consensus in the area of law related to business, trades and professions.
The recent attempt to reform the legal profession was set on a similar rocky path in
2011, but it now appears to have promise due to the 2018 developments. In the first
round of harmonisation, a model Bill was prepared by the Law Council of Australia
in conjunction with the Standing Committee of Attorneys-General. Work on the Bill
included consensus-building that started with the harmonisation of education and
training requirements for legal practitioners. Thereafter, it followed the ‘Blueprint
for the Structure of the Legal Profession: A National Market for Legal Services’.164
Between 2004 and 2006, all of the jurisdictions except South Australia incorporated
the model.165 These Acts can be classified as ‘substantially uniform’.
Since then, an attempt at further harmonisation has been undertaken by New South
Wales and Victoria. The Legal Profession Uniform Law 2015 (Vic) and the Legal
Profession Uniform Law 2015 (NSW) were enacted to replace, respectively, the
Legal Profession Act 2004 (Vic) and Legal Profession Act 2004 (NSW). Following
COAG’s decision in February 2009, the National Legal Profession Reform Taskforce
161 New South Wales, Parliamentary Debates, Legislative Council, 28 October 2015,
5169 (Rick Colless on behalf of John Ajaka).
162 Council of Australian Governments, COAG Meeting Communiqué (30 April 2009)
<https://www.coag.gov.au/meeting-outcomes /coag-meeting-communique-30-
april-2009>.
163 COAG’s decision on formulating the National Legal Profession Reform Taskforce was
made in February 2009. On 3 October 2012, the Attorney-General of Queensland
announced that Queensland would not participate.
164 Law Council of Australia, Blueprint for the Structure of the Legal Profession:
A National Market for Legal Services (199 4) 33.
165 David Robertson, ‘An Overview of the Legal Profession Uniform Law’ [2015]
(Summer) Bar News 36, 36.

HILL — HOW DOES THE AREA OF LAW PREDICT
310 THE PROSPECTS OF HARMONISATION?
was appointed to make recommendations and propose draft legislation. The goals
of the Taskforce included achieving uniformity and enhancing the clarity of and
accessibility to consumer protection.166 At its meeting on 13 February 2011, COAG
‘agreed in principle to settle reforms to legal profession regulation by May 2011 (with
the exception of Western Australia and South Australia)’.167 These reforms offered
‘the prospect of significantly reduced interstate barriers to seamless national legal
practice, while improving consumer protections and safeguarding an independent
legal profession’.168 However, they did not receive wide support from the jurisdic-
tions. In 2011, it was reported that Tasmania and the Australian Capital Territory
had ‘reservations about the scheme’.169 On 3 October 2012, the Attorney-General
of Queensland announced that Queensland would not participate in the reforms.170
On 5 December 2013, the New South Wales and Victorian governments executed
an intergovernmental agreement continuing the harmonisation effort and formal-
ising their joint participation in the new scheme.171 Subsequently, although the
level of uniformity post-harmonisation has been at an ‘almost identical’ level, the
level of implementation has been low for this reform. The New South Wales and
Victoria initiative has not received much attention from the other jurisdictions, and
the level of implementation has remained at two jurisdictions. The legislation has all
of the factors needed to achieve a high level of uniformity, and it has achieved a very
high level of sustainable uniformity. The weakness of the consecutive harmonisation
effort has not been that it is low in uniformity but that it has lacked implementation
by other jurisdictions. New South Wales and Victoria have argued that an estimated
three-quarters of Australian lawyers are now regulated by this uniform legislation.172
Nevertheless, the overall Australian regime is fractured, with two jurisdictions
following one set of regulations and six jurisdictions following another.
166 Consultative Group for COAG Taskforce, National Legal Profession Reform
(Working Paper, 4 August 2009) <https://www.justice.nsw.gov.au/Documents/LPR_
Documents/pdf/Consultative_Group_Paper_Background_Information.pdf>.
167 Council of Australian Governments, COAG Meeting Communiqué (13 February
2011) <https://www.coag.gov.au/meeting-outcomes /coag-meeting-communique-13-
february-2011>.
168 New South Wales, Parliamentary Debates, Legislative Council, 13 May 2014, 28546
(David Clarke).
169 The Law Society of New South Wales, A New Framework for Practising Law in
NSW (Web Page) <https://www.lawsociety.com.au /practising-law-in-NSW/rules-
and-legislation/legal-profession-uniform-law/new-framework>.
170 Queensland Government, Attorney-General and Minister for Justice, ‘Queensland not
signing up to National Legal Profession Reform’ (Media Statement, 3 October 2012)
<http://statements.qld.gov.au/Statement/2012/10/3/queensland-not-signing-up-to-
national-legal-profession-reform>.
171 NSW Attorney-General, ‘A New Era for Legal Services in NSW and Victoria’ (Media
Release, Government of New South Wales, 1 July 2015).
172 Justine Rogers, Dimity Kingsford Smith and John Chellew, ‘The Large Professional
Service Firm: A New Force in the Regulative Bargain’ (2017) 40(1) University of New
South Wales Law Journal 218, 222.

(2020) 41(1) Adelaide Law Review 311
The question has remained open whether any additional jurisdictions would
implement this uniform legislation. However, it has now been several years and it
is still unclear whether other state and territory jurisdictions will follow Victoria
and New South Wales. On the one hand, sustainable uniformity has improved in
two jurisdictions. On the other hand, from the position of Australia as a federation,
sustainable uniformity has diminished because there are two distinct regimes rather
than one.
In 2018, the reforms progressed without pressure from COAG. In June 2018, the
Western Australian Government, with the support of the Law Society of Western
Australia, announced its intention to join the Legal Profession Uniform Law.173
‘There are hopes that South Australia will follow the lead of Western Australia during
the next year. However, there is still limited enthusiasm for the national scheme
in Queensland, the third-largest jurisdiction, with almost 13,000 lawyers.’174 This
shows that pressuring jurisdictions into implementing legislation rarely works, even
in cases where the legislation is a ‘good model’,175 ‘eases the regulatory burden’176
and protects consumers.
In this regard, institutional support from the Law Council has produced long- standing
results. The continued involvement of the Council, with respect to the national
regulation of the legal profession, and the presence of strong advocacy coalitions in
the area of business, trades and professions, have prevented hasty changes. However,
they could allow room for rational consensus if uniformity is given enough time to
be negotiated and developed.
V po LIc y I m p L I c At I o n s A n d c o n c L u s I o n
The inherent complexity surrounding national uniform legislation and its sustainable
uniformity requires conceptual simplification to guide research, enable communi-
cation among scholars and practitioners, and develop effective decision-making
strategies. This study has empirically examined how the area of law impacts the
prospects for harmonisation. Some areas of law have not required national uniform
legislation due to the clear distribution of power in the Constitution. Under pinning
this has been the absence of consensus between jurisdictions on the need for a
173 ‘Western Australia to Join Legal Profession Uniform Law Scheme’, Queensland Law
Society, (Web Page, 13 June 2018) <https ://ww w.qls.com.au/About_QLS/ News_med ia/
News/Western_Australia_to_join_Legal_Profession_Uniform_Law_scheme>.
174 Michael Pelly, Western Australia to Join National Lawyers Scheme, Financial Review
(online, 6 June 2018) <https://ww w.afr.com/companies /professional-services/western-
australia-to-join-national-lawyers-scheme-20180606-h1123m>.
175 Dale Boucher, ‘LSC Defends National Uniform Law’, Lawyers Weekly (online,
10 May 2016) <https://www.lawyersweekly.com.au/opinion/18537-lsc-defends-
national-uniform-law>.
176 Ibid.

HILL — HOW DOES THE AREA OF LAW PREDICT
312 THE PROSPECTS OF HARMONISATION?
national response in a given area, or the inability to find a policy model that would
satisfy every jurisdiction involved.
The quantitative findings from this study support the direct impact of the area of law
on the volume of national uniform legislation and its level of uniformity. Specific areas
of the law were found to be more susceptible to higher or lower levels of uniformity.
Whether these were based on an historical position, reflected consensus achieved
among the Australian states and territories over the need for a national response or
were partially the result of the most recent reforms, commercial and corporate law,
government and energy and resources were found to be highly uniform.
In contrast, legislation regulating family law and relationships, road regulation
and criminal law (with the notable exception of counter-terrorism legislation) was
mostly non-uniform and unsustainable, even in cases where some uniformity had
been achieved, and considerable effort and resources had been expended on har-
monisation. In the area of energy and resources, the jurisdictions have only come to
consensus when there has been strong institutional support, with some sets of uniform
Acts requiring up to three national regulators. This level of resource provision in the
harmonisation effort is extraordinary and would be harder to achieve in other areas
of law. In the area of family law and relationships, the jurisdictions have preferred to
maintain divergent regulations unless faced with strong actions from the Common-
wealth. Without a rigid structure of referred legislation enacted from the outset, it
is more likely that the regulation will remain at the ‘some similarities’ level in this
area of law. The law of business, trades and professions has required time and a
constant consensus searching effort to reach a higher level of uniformity, due to the
presence of strong advocacy coalitions. Under these circumstances, set deadlines
and incentives would not be effective measures.
Although national uniform legislation is not a panacea for all the legal challenges
the Australian federation faces today, this article takes a step towards understanding
those areas in which a national response might be most effective and efficient.