Debunking the myth of instant harmonisation and embracing the iterative approach

Abstract

Calls for federal harmonisation of legislation can result in a heated debate revolving around substantive law and an approach to achieve harmonisation. Some favour a bottom-up approach whereby the state and territory jurisdictions achieve uniform legislation without interference from the Commonwealth. Others favour a top-down approach whereby the Commonwealth achieves uniform legislation. This article argues that these two approaches create a false impression of instant harmonisation. Harmonisation of legislation cannot be treated as a short-term project in which uniformity has to be achieved by a specified deadline; rather, the exercise of harmonisation requires ongoing reforms based on consecutive waves. Therefore, policymakers, law reformers and legislative drafters must adopt a long-term view of harmonisation as an iterative process.