Parliamentary
Review of Those who would contend that the role of the Legislature does not admit sentiments of emotion, pride or passion would also contend that it is difficult to assert in any dispassionate way why the Parliament has a role in ensuring that the anniversary of the 25th of April 1915 should be commemorated. However, it is also difficult to take such a purist view of legislating in the circumstances relating to ANZAC Day. The battle of Australian and New Zealand troops at what is now known as ANZAC Cove, recalls an occasion of such enormous valour and human significance that the story immediately affects those who hear it. That it took place at a time when Australia was a new nation, less than fourteen years after federation, and represents the first time that Australians came together to form an army in a theatre of war far from home further cements the historical and social significance of the occasion. Notwithstanding the natural emotional response to the human cost of the battle at Gallipoli, the purist legislator would abide by the principles of good regulation which require that an analytical approach be taken to considering the case for legislative intervention. So how does ANZAC Day stand up to such an analytical approach? While there are many instances where it may appear desirable for the Legislature to intervene in social or economic relationships, care is taken to avoid regulatory failure. Actions of a legislative nature generally incur some degree of costs. Regulatory failure occurs where the costs of legislative intervention exceed the expected benefits and is therefore to be avoided. Freely functioning markets provide for the most efficient allocation of resources. In a properly functioning market the economic needs of the community will be fulfilled in the most efficient means possible (at the least cost) thereby delivering the greatest social benefit. However, markets cannot be relied upon to function correctly in all cases. There are many instances of market failure that warrant legislative intervention. These may include information asymmetries, the production of negative externalities, or the requirement for a public good. It is this last instance of market failure that may usefully be cited in understanding the Parliament’s role in regulating for the commemoration of ANZAC Day. Examples of public goods are the provision of lighthouses and street lighting which benefit the wider community. In the same way providing for the defence of the nation is a role that most efficiently falls to Government. Apart from reasonable considerations such as the enormous resources required to fulfil the task, Government is best placed to deliver the nation’s defence requirements because defence is a public good. This means that it is unlikely to be provided for by a market because although citizens value the security which is a benefit of a properly functioning national defence force, the provider of a defence force cannot ensure that the beneficiaries will pay for the services that they receive. The government can of course fund this through taxation revenue. The provision of an adequate defence force relies upon the willingness of the citizenry to participate in the protection of the freedom of the nation. It requires that the citizenry appreciate that even in times of peace, there may arise circumstances in which an armed response is necessary. The role of citizens in such case may extend from personally participating through membership of the regular defence forces or the reserve, to tacit support in the face of the unfortunate consequences of armed conflict. The commemoration of ANZAC Day plays an important role in keeping alive the awareness of the sacrifices that have been made by citizens in the defence of the nation. It reminds society of the price that has been paid by previous generations to secure the freedom that is enjoyed today, not just at the battle of Gallipoli, but also at the many battles in which Australian defence forces have participated. The public commemoration of ANZAC Day demonstrates to the community that the sacrifices that were made by individuals were made not for their own gain, but for the greater good. By recognising these past efforts, it promotes a better preparedness on behalf of the community to respond to any threat to the security of the nation that may arise in the future. Although it is approaching a century since the battle of Gallipoli, Australians still retain a strong historical connection to the efforts of its citizens at that time, and an appreciation of the sacrifices that were made. Arguably, this has survived through the preservation of traditions commemorating the anniversary of ANZAC Day. With the recent passing of the last ANZAC it is reasonable to consider how this important connection to a previous time will be maintained in the future. As with the role in ensuring the defence of the nation, this is an important issue that must be addressed by the Government through ensuring that the traditions are preserved and continue to remain relevant. Whether any individual could or would undertake the same degree of sacrifice as was borne at Gallipoli if the circumstances demanded is a personal matter that must be made with reference to ones own conscience. Through the principle means that the Government uses to ensure that ANZAC Day is commemorated of declaring a public holiday, the traditions of the day are allowed to be observed and time is permitted for reflection without the distractions of commerce or sport. The forced closure of business premises for the morning of ANZAC Day imposes an economic cost on the community through loss of productive output. However, if the continued observance of the traditions of ANZAC Day are effective in continuing to ensure that the community is prepared to take those actions that may be necessary to protect Australia as a nation, then the benefits may be found to well exceed the costs incurred. However, it should be noted that the principle of liberty implies that individuals should be allowed to exercise freedom in the conduct of their social relationships, and exercise choice according to their own discretion, where their behaviour does not cause detriment to others. The principle of individual liberty is a pillar upon which our society is based, and Parliament must take care not to erode those liberties through unwarranted intervention in social relationships. In this context it should be understood that while regulation may impose penalties to promote compliance with laws, such as the shop trading laws, on the ANZAC Day public holiday, the penalties should be proportionate to public expectations of the significance of the contravention; that is to say not so lenient that they will be ignored or to trivialise contraventions of the regulations, but not so harsh that the community would consider them draconian. It is necessary to find an appropriate balance between the public and private interest. National Competition Policy The National Competition Policy Agreements set out specific requirements with regard to all new legislation adopted by jurisdictions that are party to the agreements. Clause 5(1) of the Competition Principles Agreement sets out the basic principle that must be applied to both existing legislation, under the legislative review process, and to proposed legislation:
Clause 5(5) provides a specific obligation on parties to the agreement with regard to newly proposed legislation:
The obligation to demonstrate this is on the proponent of the regulation. Accordingly, any proposed regulatory response must ensure that it is consistent with these National Competition Policy obligations.
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