A Critical Review of Australian Law Reform Architecture for Developing National Uniform Legislation: Reinvent, Create or Strengthen?

This article critically examines the institutional architecture for developing and drafting national uniform legislation. We explore whether Australia’s existing institutions of law reform are adequately equipped, with the functioning of National Cabinet, the Australian Law Reform Commission (ALRC), and the Australasian Parliamentary Counsel’s Committee (PCC) in focus. Federalism, which grounds our entire system of government has, for the past century, seen the Commonwealth as the ascendant power. We examine how the COVID era has, to an extent, interrupted that trajectory with states controlling the vast apparatus combatting the pandemic - including public hospitals, public health (and key elements of vaccine rollouts), police, laws regulating quarantine hotels, lockdowns and state border closures. Australia’s nine jurisdictions require national approaches - including national uniform legislation. The research finds that while ad-hoc responses may occasionally suit a vested political interest, this approach is not always in the nation’s best interests. Increasingly, national policies require development and drafting of national uniform legislation with high levels of cooperation through formal and informal institutions. Findings show that the federation’s architecture for harmonisation can be improved, and the significant and often effective role played by the states and territories during the pandemic should be acknowledged in planning new law reform architecture and in future assessments of when uniform action is required. Resourcing and coordination are highlighted as keys.