the rule cause the effect that law makers said it would? Does it still cause the
best outcome?
Illustration
There is an interesting illustration of the net benefit rule implemented in New
South Wales in legislation that deals with the making of subordinate legislation.
Section 5(1) of the Subordinate Legislation Act 1989
provides as follows:
“Before a principal statutory rule
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is made, the responsible Minister
is
required to ensure that, as far as is reasonably practicable, a regulatory impact
statement complying with Schedule 2 is prepared in connection with the
substantive matters to be dealt with by the statutory rule”.
Clause 1 of Schedule 2 provides that a regulatory impact statement must
include the following matters:
(a)
A statement of the objectives sought to be achieved and the reasons for
them.
(b)
An identification of the alternative options by which those objectives
can be achieved (whether wholly or substantially).
(c)
An assessment of the costs and benefits of the proposed statutory rule,
including the costs and benefits relating to resource allocation, administration
and compliance.
(d)
An assessment of the costs and benefits of each alternative option to the
making of the statutory rule
(including the option of not proceeding with any
action), including the costs and benefits relating to resource allocation,
administration and compliance.
(e)
An assessment as to which of the alternative options involves the
greatest net benefit or the least net cost to the community.
As the reader will have observed, paragraphs (c), (d) and (e) refer to costs and
benefits. Clause 2 of Schedule 2 makes two further provisions in regard to
these. First, Clause 2(1) provides in effect that costs and benefits include
“economic and social costs and benefits,
both direct and indirect”.
Then,
Clause 2(2) deals with the problem of quantification of costs and benefits. It
provides first that “[c]osts and benefits should be quantified wherever
possible”.
It then further provides, that if this is not possible, “the anticipated
impacts of the proposed action and of each alternative should be stated and
presented in a way that permits a comparison of the costs and benefits”. This
may be easier to order than to perform but at least it acknowledges the
problem of measurement and attempts to resolve the problem. This problem
of measurement is discussed in the next chapter.
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“Principal statutory rule” is defined in s X to mean “a statutory rule that
contains provisions apart from: (a) direct amendments or repeals, and (b)
provisions that deal with its citation and commencement”.
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