Designing Effective Legislation (LAWS90277)

This subject focuses on the effectiveness of legislation.  Legislation plays a fundamental, and ever more significant, role in our legal systems.   Many lawyers and policy analysts advise on or develop proposals for legislative change.  But this is often done without explicit frameworks for assessing the effectiveness of legislation, the ways in which legislation has failed or risks failing, and strategies and design options for reducing the risk of failure.

This course explores what it means for legislation to be effective.  It takes as its starting point the critical analysis of failed laws, identifying common process errors and design flaws that contribute to such failures.  It explores some common criticisms of legislation: that it is too uncertain, too prescriptive, too inflexible, too complex.  It moves on to explore law reform strategies and legislative design options that can reduce the risk of failure, and the institutional prerequisites for those design options to be effective.  Particular attention is paid to the challenges of designing legislation in the context of imperfect information and a changing environment, including the implications of technological change and the opportunities and challenges of automated decision-making, including use of algorithms and AI.

The subject will be of considerable interest to Australian and international students with an interest in the law reform and policy process.  It is especially well suited to students with practical experience in these fields.

Principal topics will include: 

• What it means for legislation to be effective,
• Approaches to assessing the effectiveness of legislation,
• Analysing the nature and causes of legislative failure,
• Understanding interdependencies between legislation and the institutions that apply it,
• Strategies for enhancing the effectiveness of legislation,
• Complex legislation: causes of complexity and design options for reducing complexity,
• Designing legislation for an uncertain and changing world.

Intended learning outcomes

A student who has successfully completed this subject should be able to:

• Examine the reasons why existing or proposed legislation risks failing to achieve its policy objectives,
• Recognise and apply a wide set of legislative design methodologies and strategies ,
• Analyse and assess the interdependencies between legislation and its accompanying institutional setting,
• Formulate strategies that reduce the risk of law reform processes failing to achieve their policy objectives,
• Deliver insightful and practical recommendations for enhancing the efficiency and effectiveness of legislative initiatives.

Generic skills

• The ability to think conceptually and analytically about the objectives and effectiveness of legislation,
• The ability to think conceptually and analytically about the interdependencies between laws and their institutional settings,
• An appreciation of the relationship between flexibility, complexity and certainty in legal frameworks,
• An appreciation of the implications for law-making of imperfect information and social and technological change,
• The ability to think creatively about complex challenges in designing effective legislation.