Repeal day is not just smoke and mirrors

Today, 25 March 2014 was the big day, the promised “bonfire of regulations” – Repeal Day.  Many commentators have labelled the day a stunt, ridiculing it as “smoke and mirrors”.   Others have focussed on some of the seriously retrograde reforms proposed in the package of legislation.

Today, 25 March 2014 was the big day, the promised “bonfire of regulations” – Repeal Day.  Many commentators have labelled the day a stunt, ridiculing it as “smoke and mirrors”.   Others have focussed on some of the seriously retrograde reforms proposed in the package of legislation.

Josh Frydenberg, the Parliamentary Secretary to the Prime Minister with responsibility for deregulation rejects both criticisms: “Our critics can’t have it both ways.  Either deregulation is real, or it is not.”

So what are we to make of what the government is up to here?

Legislating is serious business. Writing what became the foundations for the ethical rules of the American legal profession in 1854, George Sharwood described it thus: “Legislation is indeed a nobler work than even jurisprudence. It is the noblest work in which the intellectual powers of man can be engaged, as it resembles most nearly the work of the Deity.”

The reality, of course, is far less exalted. Parliament may be the pre-eminent institution of our democratic system of government, but Parliamentary business is in practice much messier than Sharwood’s vision.

While understanding this political reality, we citizens also expect and hope that the elected representatives to whom we have entrusted the power to make laws will approach their responsibility with integrity. We expect the government – the party with the numbers to change the law – to respect the power we have given them and to exercise it in the public interest, however conceptions of that might vary. Our confidence in our system of government requires them take their role and the institutions within which they operate seriously.

The government’s Repeal Day, a “bonfire of regulations” according to Prime Minister Tony Abbott, strikes at the heart of this confidence. The evidence is now in, the legislation has been tabled, and it all points to a cynical exercise that is really about distancing us from the very notion that legislating can amount to a noble intellectual enterprise.

Forget about associating regulation with environmental protection, the rights of low paid workers, consumer protection or any of the other public interest objectives that regulation seeks to achieve. Just think “regulatory burden”, or more accurately, the need to be free of this terrible encumberance.

Put aside for a moment the corny website, the booklets wrapped in snippable red tape, and the carefully orchestrated media in the build up, and consider the substance of the Abbott government’s actual legislative program.

Most of the legislation proposed is laughably trivial. It does nothing to reduce the dread regulatory burden on anyone. It is the legislative equivalent of cleaning out your sock draw while pretending you’re changing your life. Not useless or futile, but hardly significant either.

The 1901 to 1969 Repeal Bill 2014 formally repeals 1120 Acts. These Acts were already dead. They died long ago, their provisions were not affecting anyone, they were not causing any burden, and they were not “red tape” in any meaningful or operative sense. All the government has done is move them from the ‘current’ list to the ‘repealed’ list. Not something to trumpet about, just a normal legislative housekeeping function.

The Statue Law Revision Bill 2014 amends about 100 Acts but has nothing to do with red tape. It fixes grammatical errors and updates terminology (e.g. “facsimile” to “fax”).

There is some nasty substance of course. Protection for pay rates for cleaners is removed, consumer protection against conflicted financial advisers is wound back (thankfully the backtracking on this has already started; measures to reduce risks of dangerous farm chemicals are deleted. And the Australian National Charities Commission, introduced to reduce red tape for charities, is slated to be abolished – against the wishes of charities.

Mostly this is just tit for tat: the things we opposed in opposition get the chop now we’re in government. While it may reduce “red tape” for someone, it does so by shifting the cost or risk somewhere else: low paid workers, consumers, the environment.

When it comes to the environment there is actually very little of substance in the legislative package at all.  Careful review of the Bills for changes to the Environment Protection and Biodiversity Conservation Act 1999 turns up three reforms – to grammar. A testament perhaps to the important role of Parliamentary Counsel and their attention to detail in the noble work of legislating, but of no practical consequence whatsoever.

It would be wrong, however, to take from this that Repeal Day is largely a meaningless stunt with a few nasty bits thrown in. The meaningless stunt and nasty bits are closely connected. The campaign website, the fundraising meter tracking our progress to the $1billion saving, the suspiciously round figures for measures of doubtful significance (“50,000 less pages of regulation”) the omnibus Bill – these are all designed to clear a path for the regressive reforms.

This is especially obvious when it comes to environmental protection. The government did not need to introduce anything for Repeal Day. They have already made their “green tape” reduction program clear – dismantle the carbon price, and transfer responsibility for national environmental law to the states under the “one stop shop” proposal (actually more of an eight shop franchise). But the attack on regulation adds to the clamour for the lifting of the regulatory burden and makes the introduction of these wind-backs so much easier.

We have seen bonfires of regulation before of course.  Remember the angry irrigators burning the Murray Darling Basin Plan back in 2010, a draft legislative instrument under the Water Act 2007, immolated for the offence of putting forward a proposal for ecological sustainability for the Murray-Darling?

Prime Minister Abbott’s adoption of inflammatory metaphor for Repeal Day is revealing. It demonstrates that the real agenda here is the demonisation of regulation and the public interest objectives it seeks to secure. It is the whipping up of this anti-regulatory book burning hysteria that is the sinister objective here. Repeal Day is a stunt, but a dangerous one that is all about undermining the very idea that legislating is the “noblest work”.

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