Digitising legislation: connecting regulatory mind-sets and constitutional values

Abstract

ABSTRACT Digitising legislation is an appealing concept, yet it raises a range of legal, regulatory and technological challenges. This article employs Brownsword’s ‘coherentist’, ‘regulatory-instrumental’ and ‘technocratic’ mind-sets to name and work through these challenges. We apply these mind-sets to illuminate diverse aspects of an attempt to convert select provisions of the Australian Consumer Data Right regime into computer code. This analysis shows that each mind-set highlights distinctive yet interconnected aspects of digitising legislation, underscoring the desirability of combining insights from all three mind-sets. Due to the constitutional backdrop against which legislation is created, interpreted and applied, rule of law and separation of powers values ought to shape and guide the constellation of mind-sets that applies. Overall, a divided legal and regulatory mind-set provides an incomplete picture of the challenges and opportunities associated with digitising legislation. Rather, we argue that a holistic regulatory mind-set, informed by overarching constitutional values, is critical in this context.