Law Regulatory Practice - Assignment Example

Running Head: Regulatory Practice Regulatory Practice Name Institution Date Regulatory Practice Good regulatory practice includes the transparency, equality, clarity and effectiveness in the matter in which laws are executed. For there to be proper regulatory practice in the department of local government and planning of the Queensland Government, some aspects have to be put into consideration. The law in context has to be well known and understood first and foremost. The law can then be applied correctly and in a manner that will not only serve its purpose but also benefit the beneficiaries for which the law exists. The first of the key themes that have to be incorporated into the department’s regulatory practice is the competency of officers in legal matters. The officers that frequent the department include planning officers, building control officers, environment officers and even environment health officers. These officers may work in different regulatory jurisdictions but they fall subject to the same law. Before any of these officers can apply legislation to their respective regulatory areas, they have to posses sufficient knowledge and understanding of the law that applies in their field of practice. Additionally, they also have to be well equipped with skills and knowledge on how to work with this law as they perform their day-to-day duties. They must also be aware of the level of power they hold and should be ready to adhere to the requirements attached to the powers. Such standard requirements include understanding the legislation within they work and have such legislation in accessible reach. This legislation includes Acts, regulations, enforceable guidelines and codes as well as by-laws. They should not only have such knowledge but work in strict accordance with what this legislation requires of them. The officers are required to act within their jurisdiction without exceeding their statutory powers. This will call for each officer to respect the legal rights of those with whom they deal and uphold fairness at all times. It also requires them to exercise reasonable care t o whichever person such care can reasonably be owed to. Such practices will ensure that officers do not abuse the powers vested on them for selfish gain and at the expense of those who fall under them in their field of practice. Lastly, any officer involved in regulatory practice should have respect for the prevalent law and administrative legal process within the democratic system in which they operate. Put into my perspective, the competency of regulatory offices is one of the major items that ought to be upheld in regulatory practice. This is because it ensures that the legislation is enjoyed by those whom the Queensland government intends to be the final beneficiary. The only officers that should be in authority in the building and planning sector are those that hold the objective of delivering the legislative benefits that legislation carries to the common citizen. If incompetent officers are put in place, the purpose for which legislation exists will not be achieved. This purpose is to protect the legal rights and freedoms of a country’s citizenry. On the other hand, competent officers who fully understand the legislation and its objectives will be acutely aware of the welfare of citizens as they perform their statutory duties. Competency also ensures that the officers do not abuse their powers. As a result, such citizens will be able to build the nation in their own various capacities without any hindrances brought about by oppressive regulatory officers. The next key theme is the Legislation. Legislation is the major tool that a regulatory officer will use in the course of his practice. Legislation includes Acts of Parliament and Subordinate regulations that comprise by-laws, regulations, local laws, enforceable codes and enforceable guidelines. Acts of parliament are formulated by the parliament while subordinate legislation may be formulated by other bodies such as the local government, special authorities and councils. Many types of council have their own codes of practice and guidelines that may not be enforceable as legislation but officers must adhere to them nonetheless. Additionally, officers should have in-depth knowledge of such legislation in general as well as pieces of such legislation. For instance, one should be familiar with statutory regulations and their comprising provisions. Officers should also posses sufficient knowledge about Common Law, Law of torts and Law of negligence to avoid finding oneself in situations where one is evidently liable House of Representatives (Infosheet, 2008). One will not be able to operate as a regulatory officer unless one is fully aware of the legislation one is ought to work with so it is important to identify all the legislation that is relevant to the outset. Gaining sufficient knowledge of legislation is in vain if one does not know how to read, interpret and understand it. This is because any person who attempts to apply an Act of Parliament without working knowledge of interpretation rules is likely to fall into great error that are costly (D. J. Gifford, and K. H. Gifford, 1994). Errors in the interpretation of legislation can prevent the beneficiaries of legislation from enjoying the benefits that flow from them. Additionally, poor interpretation can also prevent a case from reaching the court or even cause great distress where notices have been served wrongly. Basic rules that apply in the reading of regulations include holding each word with importance without discarding any word. One should use definitions given in the Act and use plain meaning where no meaning is provided. In the event where one is in doubt or queries and errors emerge, expert advice should be sought from a qualified lawyer or a court of law. This could go a long way is saving time and money that could be otherwise quite costly. The reason why regulatory officers should be well versed in legislation is to ensure that they implement the correct law as opposed to erroneous law. More so, legislation changes quite often and officers must ensure that they are not implementing outdated regulations or regulations that were amended since it was first formulated. Words may be deleted or inserted from existing regulations and provisions and officers may be keen on such changes as the meaning of the whole regulation may be altered. Officers can keep up with such changes by having a system that notifies the whole department on any recent changes, through constant in-house training or by personally keeping up with the news through the frequent reading of newspapers and relevant websites. The regulatory pathway is yet another important factor to highlight. When selecting a certain legal action to take as a regulatory officer, one must put into consideration the enforcement options that lie open to him/her as well as the possible responses that may follow that action. Selecting any legal option without putting any thought into it is regarded as irresponsible decision making and in regulatory practice such irresponsibility attracts costly consequences. The enforcement option one chooses and the consequences that follow therefore form a regulatory path. One may possess all the legislation knowledge and understanding he/she is required to have but failure to choose the correct regulatory pathway may render all that legislation information useless. One should therefore put effort in identify the various regulatory pathways that he can take in a certain situation and make oneself familiar with all the factors and parties that may be involved within the boundaries of that regulatory pathway. A regulatory path does not end there. A regulatory officer must also be ready to defend the action or decision in case it falls subject to review or appeal. Such readiness is achieved by carefully considering the evidence before any remedial notice is served in a court of Law. A regulatory pathway also involves the regulatory officer being ready to follow up on non-compliance of a recipient. Failure to do this will mean that the original problem will go unresolved and much time and effort wasted. For one to attain adequate knowledge on regulatory pathways, it is wise to constantly read provisions that relate to responding to particular breaches as well as immediate interventions that regulatory officers can take such as stop-work notices, closure of certain premises, seizure of those premises, among many others. It is important to acquire knowledge on regulatory pathways to keep one clear of any consequences that may result in a subsequent string of problems in addition to the problem one has at hand. For instance, an appeal can incur additional costs on the regulatory officer should the recipient be proved to be innocent or falsely accused in a court of Law (Resource Management and Planning Appeal Tribunal Act 1993). Additional costs include time and travel costs put into attending court hearings yet the case filed may fail to bear fruit after it all merely due to poor choice of a regulatory path. Additional costs may also surface in case of an extended regulatory pathway so one should be fully aware of this. The final factor to note is the ability to make good and lawful decisions. According to Statutory administrative Law, any decision that is made should meet its legal and merit standards. Additionally, any decision that a regulatory officer makes will fall subject to a form of checking mechanism. This mechanism and such standards ensure that the officer did not exercise powers he/she does not possess in given statutory regulations and provisions. It also ensures that the principle of procedural fairness or natural justice is upheld with every decision that is made. For instance, when a person adversely affected by a certain decision is granted a hearing, natural justice is upheld (Ombudsman Western Australia, 2008). Each decision should be closely accompanied by the reason for which that decision was made. Even though one may not have the duty to provide such reasons, it goes a long way in helping the persons to whom the decision applies in understanding their wrongs and why and how that decision was arrived at. As a regulatory officer, one should be careful not to create a perception of bias when it comes to the decision made. For situations where there will be conflict of interest when it comes to making a certain decision, consult a superior party that can make the decision on your behalf. This will ensure that the decision made was fair in its entirety. Most importantly, an officer should always consider the fact that the decision may be subject to scrutiny by the court or ombudsman (Australian Government Solicitor, 2003). To ensure one makes a legally correct decision, proper investigation of the breach of a statute is required. It is advisable to use a well constructed model for such investigation to ensure one has performed all the requirements in the decision making process. Before any investigation is carried out, the issue at hand is first clarified to comprehensively know exactly what one is dealing with. Collecting evidence and any other relevant information regarding the breach then follows. Arrange such data so that a possible course of action can be formulated. Consider all the dysfunctional and functional consequences if each decision and action. Lastly, perfect your decision so as to avoid any tort of negligence or trespass (Derrington. 2004). Decision making is important in regulatory practice as it enables regulatory officers to steer clear of both substantive and procedural ultra vires. Ultra vires result when one goes beyond the statutory power on which they were vested to makes and enforce a certain decision. Document all important decisions made to create valid evidence in case any future legal implications arise. Additionally, one should be careful to exercise a standard of care in all situations where one may be reasonably expected to do so. To ensure this, evaluate the persons to whom the decision may affect. Also, as a regulatory officer, ensure that one does not perform duties for which one is not qualified. This way, ultra vires will be avoided. Regulatory practice is a sensitive issue in any institution. It is for this reason that all the above factors should not be ignored but instead taken into careful consideration. References Australian Government Solicitor, “Don’t Think Twice – Can Administrative Decision Makers Change Their Mind?” Legal Briefing, No.67, 15 August 2003. (www.ags.gov.au/publications/agspubs/legalpubs/legalbriefings/br67.htm) Derrington, D. 2004, “Theory of Negligence Advanced in the High Court of Australia,” 78 ALJ 595. D. J. Gifford, and K. H. Gifford, (1994), How to Understand an Act of Parliament, 8th edn, The Law Book Company, North Ryde, NSW. House of Representatives, Infosheet, Making Laws, No.7, September 2008 (www.aph.gov.au/house/info/infosheets/is07.pdf) Ombudsman Western Australia, Guidelines - Procedural Fairness (Natural Justice), August 2008. (www.ombudsman.wa.gov.au/documents/factsheets/) (Ombudsman%20Fact%20Sheet%20Procedural%20Fairness.pdf) Re: Resource Management and Planning Appeal Tribunal Act 1993, reference pursuant to s. 27 [1999] TASSC 85. (www.austlii.edu.au/au/cases/tas/TASSC/1999/85.html) Understanding legislation (www.legislation.sa.gov.au/Web/Information/) Understanding%20legislation/UnderstandingLegislation.aspx#reading Read More