Categories of the ‘Art of the Impossible’: Achieving Sustainable Uniformity in Harmonised Legislation in the Australian Federation

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    Abstract

    National uniform legislation links the federal distribution of powers achieved more than 119 years ago with the challenges and opportunities faced by Australia in an interconnected world. Over this span of time, developing national uniform legislation has been described as the ‘art of the impossible’. The main objective of this article is to critically examine the database of national
    uniform legislation with a view to applying public policy and federalist theory to explain how sustainable uniformity has been achieved. Rather than focusing on why an individual set of uniform Acts has not achieved a high level of uniformity or has diverged through unilateral amendment, this article examines national uniform legislation by analysing the factors at play. This approach allows
    the common patterns impacting sustainable uniformity to be identified. From among 84 sets of uniform Acts, four discernible links with theory have been found: (1) the ‘incrementalism and policy cycle’ model—to explain harmonisation that may take decades (31 sets); (2) the ‘multiple streams’ framework, explaining legislation that emerges as sustainably uniform from the outset due to an ‘open policy window’ (16 sets); (3) ‘pragmatic federalism’ solutions, such as skeletal legislation and the conferral of powers, which are developed in the course of inter-jurisdictional negotiations when uniformity is required but is particularly difficult to achieve (14 sets); and (4) the ‘advocacy coalition’ framework, which in contrast, explains situations where jurisdictions hold firm views about retaining diversity (23 sets). Developing and drafting national uniform legislation can become the ‘art of the possible’ with this improved understanding.
    Original languageEnglish
    Pages (from-to)1-32
    Number of pages32
    JournalFederal Law Review
    Volume48
    Issue number3
    Early online date28 May 2020
    DOIs
    Publication statusPublished - Sept 2020

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