Ways to achieve compliance and enforce legislation
This is a single section from Chapter 22. Read the full chapter here.
How will the legislation be enforced?
The Government should not generally become involved in enforcing rules or otherwise regulating in an area where the rules can be reliably enforced by those who are subject to them.
Every Act has an administering department or ministry; however, consideration must be given to what role the Government will have in enforcing the legislation and whether regulation of the issues and conduct can be left to the individuals or groups concerned.
The Government’s role will vary depending on what the Act sets out to do. An Act may grant legal rights or make use of existing rights that are left to the parties to a dispute to resolve (by the courts or otherwise) (see Chapter 23). At the other end of the spectrum is the criminal law, where the full weight of the government’s powers are brought to bear on an individual through the investigation and prosecution of crime and the administration of sentences (see Chapter 24).
Legislation often provides for registration and discipline of professions, but the Government has little or no ongoing involvement in administering the Act—that is left to registration bodies and the profession concerned.
In general, the Government should have little involvement in areas where the reliance on private enforcement of legal rights and obligations is sufficient to address harm caused by non-compliance and provide sufficient deterrents (for example, where the legislation modifies common law rights within the existing framework, such as a sale of goods between commercial traders).
However, in many contexts, the private enforcement of legal rights and obligations will be insufficient. For example, the damages from a civil action may be an insufficient deterrent. This may be because loss is not an adequate measure of the harm caused by the conduct (eg, because the harm done is diffused) or because civil suits are not a realistic likelihood (eg, because of the costs of bring private actions or insufficient private benefit in doing so), or both. If the law will not reliably be enforced, then this can cause the regime to fail, which is worse than having no regulation at all.
In addition, if the context is complex, a wider range of compliance methods and more proactive approach may be needed. For example, a regime may involve education, guidance, licensing, authorisation, or approval functions. In this case, consideration should be given to the regulatory options needed for compliance and also to the role of a regulator, which could be the administering department or a specific entity (often a Crown entity—see Chapter 20).