Unwrapping the Effectiveness Test as a Measure of Legislative Quality
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A Introduction
The term ‘quality’ is broad and imprecise. However, ‘legislative quality’ in itself may refer to constitutional principles of legality, effectiveness, legal certainty, legitimacy, efficiency, efficacy or regulatory quality.1xMaria Mousmouti, ‘Introduction to the Symposium on Effective Law and Regulation’ (2018) 9 Is.3 European Journal of Risk Regulation (EJRR) 387. That said, in pursuit of legislative quality, if legislation is a mere tool for regulation, and certainly a tool that is to be used if everything else fails, then a good law is simply a law that gets support and cooperation from all relevant stakeholders within the legal system, and is able to produce the regulatory results required by policy makers.2xHelen Xanthaki, ‘Quality of Legislation: An Achievable Universal Concept or an Utopia Pursuit?’ in Marta Travares Almeida (ed.), Quality of Legislation (2011, Nomos, Baden-Baden), 75-85. The question then arises: is quality of legislation as a concept achievable?3xIbid., 85. Can we measure it and, if yes, how? After all, do we know how to achieve effective legislation?4xMousmouti, ‘Introduction to the Symposium on Effective Law and Regulation’ 387. Undeniably ‘effectiveness’ as the primary expression of legislative quality is achievable, if the drafter’s subjective choices take place properly and within an appropriate legislative sphere. The law will achieve not merely results, but ones that are suitably required. Hence lawmakers can realistically achieve effectiveness of legislation within their mandate coupled with the assistance and provision as expected from all actors within the legislative process.5xIbid.
The effectiveness of legislation is determined by four fundamental elements that exist in every legislation – purpose, content, context and results. Together, these elements make up Mousmouti’s ‘effectiveness test’ – a measure of legislative quality. This article reveals the applicability and validity of the test in Tuvalu, and that it is central to the determination (measurement) of how effective legislation is, applying the test to the Tuvalu Climate Change Resilience Act 2019 to make an analysis. The analysis will be undertaken by examining the Act. Based on the analysis made, the article establishes the contribution of the ‘effectiveness test’ towards the effective implementation of every legislation. Finally, it considers the prospects of success and effectiveness of the Climate Change Resilience Act on the basis of the analysis made.
A brief background account is given on the legislative drafting process in Tuvalu. This unfolds the lawmaking context and how laws in general, including the Climate Change Resilience Act 2019, are drafted in Tuvalu. It is necessary to collect information regarding the legislative drafting process in Tuvalu as there is lack of literature on the subject matter. -
B. Drafting Process in Tuvalu and the Effectiveness Test
I Drafting Process
The legislative drafting process in Tuvalu is contextual and unique on its own, given its occasional instantaneous and extemporaneous nature. This is a result of several contextual factors such as the non-existence of qualified legislative drafters, and no substantive legal framework regulating the process.6xEmail from Eselealofa Apinelu, Attorney General of Tuvalu to author (16 June 2019). On the contrary, in 2007, the Attorney General’s (AG’s) Office in its oversight role as the central drafting unit tabled a policy paper (guideline) to Cabinet for its approval, which gives guidance on the steps to be taken throughout the process.7xAttorney General’s Office, Guide for Drafting Legislation (2007). Despite the guideline’s non-popularity and the lack of compliance of government ministries with it, the AG’s Office strongly advocates for the need to strengthen its enforcement within the government system. Irrespective of the shortfalls, the guideline has often been used by all government ministries as a guidance to the process in Tuvalu.
The guideline stipulates the following steps:8xIbid.Appointment by Minister of an Instructing Officer
Is new Legislation needed?
Appropriate consultation within Government/preparation of preliminary drafting instructions
Obtaining policy approval from Cabinet
Preparation of final drafting instructions
Drafting of the proposed Legislation
Preparation of Explanatory Memorandum
Ministerial clearance of proposed Legislation
Minister’s preparation of Second Reading Speech
All Bills to be finally approved by Cabinet for introduction to Parliament
The sequence in which each of the steps is taken sometimes changes, particularly in circumstances where the drafter is an external one engaged by the sponsoring ministry for the legislative proposal. Nonetheless, this does not diminish the overarching responsibility of the AG’s Office as the central drafting unit for the government. The Climate Change Resilience Act is one of those instances in which the sponsor of the legislative proposal engaged an external drafter to work in collaboration with a counsel (drafter) from the AG’s Office to take the proposal through the steps during the process beginning from initiation, consultation, drafting of text, and obtaining Cabinet approval for introduction to Parliament.9xIbid.
II The Effectiveness Test
According to Mousmouti, effectiveness expresses the extent to which a law can do the job it is intended to do and is considered the primary expression of legislative quality.10xMaria Mousmouti, ‘The “Effectiveness Test” as a Tool for Law Reform’ (2014) 2 Is.1 IALS Student Law Review 4. She further emphasizes that effectiveness is a typical feature of every legislative text which is determined by the purpose of legislation, its substantive content, legislative expression, its overarching structure and realistic results during implementation.11xIbid.
The ‘effectiveness test’ is a logical exercise that examines the unique features of existing legislation and legislation that is being designed, taking into account how the purpose, the structure, the content, and the results of the future intended law are aligned and consistent.12xMaria Mousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ (2012) 6 Is.2 Legisprudence 201. It is the functional link13xMauro Zamboni, ‘Legislative Policy and Effectiveness: A (Small) Contribution from Legal Theory’ (2018) 9 Is.3 European Journal of Risk Regulation 416-430. between four fundamental elements that are present in every law: objectives (purpose), content, context and results. One wonders, why these elements? That is because they explain the why, the how and the what in relation to legislation.14xIbid. The test can be used throughout the life cycle of legislation.15xMousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ 201. For draft legislation, it can help detect the best way to design legislation in order to achieve the desired results (pre-legislative scrutiny). For legislation already in force, it can be used to scrutinize the causal relationships between the legislative text and its effects, the extent to which the law is working and what needs to be amended.16xIbid.1. Elements of the ‘Test’
a) Purpose
Mousmouti stresses that the purpose of a law is important for effectiveness as it states what the law aims to achieve. She further emphasizes that it is the connecting tissue between policy and legislation and the different phases of the life cycle of the law. If a rule is conceptualized and drafted, purpose is the link between the specific problems addressed, the broader policies of the government, and the means chosen to address them.17xMousmouti, ‘Making Legislative Effectiveness an Operational Concept: Unfolding the Effectiveness Test as a Concept Tool for Lawmaking’ (2018) 9 Iss.3 European Journal of Risk Regulation 452. When a law is interpreted, purpose assists in the diagnosis of the intention of the legislature to interpret vague provisions. Hence the lack of purpose in a law renders it arbitrary and inconsistent with the fundamental premises of the rule of law.18xEkins, Richard,The Intention of Parliament (2010). Public Law, 709-726, 2010, Available at SSRN: https://ssrn.com/abstract=2617074.
Mousmouti refers to four ways in which purpose can be expressed in law. Firstly, it can be done through narrowly phrased statements that convey pragmatic or procedural information, for example, “the purpose of the Act is to make provision for” or “to amend the law” or “to transpose in the national legal order Directive Z”.19xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 453. Though perceived to be accurate as they appear, they provide limited information regarding the substantive purpose and objectives of the specific law. Therefore, such statements do not provide a meaningful benchmark for effectiveness and their usefulness when attempting to assess effectiveness is relatively limited.
Secondly, it can be done through broad statements that refer to policy, rather than legal, objectives and tend to go beyond the reach of legislation. For instance, statements phrased as follows: “the present law aims to make the equality of opportunities a reality for everyone” or “to increase equality of opportunity” or “to eliminate discrimination”.20xIbid. Despite being seen as more informative regarding the substantive content of the law, they however introduce goals so ambitious that the legal text can by no means achieve them, while specific objectives of the text remain inferred. Like the former, such statements do not set a benchmark that a law can achieve. Though they may be effective, no law can eliminate discrimination, corruption or other complex and multidimensional social phenomena.
Thirdly, purpose in legislation can be expressed by including legally oriented objectives. For example, “an Act to render unlawful certain kinds of discrimination” states how the text intervenes to contribute to the fight against discrimination. Statements as such are accurate and render some acts as unlawful discrimination, which is one part of the purpose being fulfilled. Nonetheless their broader usefulness as a benchmark of achievement is limited.21xIbid.
The fourth way of expressing purpose in legislation is by combining narrow and broader objectives, for example, an Act “to set a framework for combating discrimination in order to ensure the application of the principle of equal treatment”.22xIbid. Such statements indicate the legal means used as well as the overall objectives to which they contribute. Legal statements are combined with statements of broader (policy) objectives and provide a more meaningful benchmark for both the effectiveness and the interpretation of the law.b) Content
Being at the heart of effectiveness, laws intervene as a solution to a problem: they either punish, motivate, permit, or prohibit, and they set standards of behaviour to address specific phenomena. Content in terms of effectiveness determines how the law will achieve its results. The choice of rules determines how behaviours will be directed towards the desired goals, what obligations are imposed, how the rules will be enforced, and the consequences or motives attached to them.23xIbid., 455. These choices apparently have a fundamental impact on the ability of legislation to achieve the desired results. When the choice of rules is inappropriate to address the problem or the rules do not serve the objective of the law, their design is therefore ineffective; if enforcement mechanisms are inappropriate or implementation is inadequate, enforcement is ineffective. When subjects of the law do not know how to comply or encounter difficulties in complying or interpreting rules, drafting is ineffective.24xJulia Black, ‘Critical Reflections on Regulation’ (2002) 27 Australia Journal of Legal Philosophy 3.
For Mousmouti, there are three important challenges in the formulation of the content of rules from a drafter’s lens: compliance, enforcement and communication. She sees these challenges from the drafters’ perspective, which raises questions of distinct texture and content. Questions arise such as: how and to what extent can the drafter choose rules that will lead the subjects towards compliance? How can they foresee which legislative techniques are more likely to bring the desired results? How can the most suitable enforcement styles and mechanisms be selected? What works best in each case given that not all laws are the same nor are audiences? How can language as the core means of communication be used to relay just the message needed in a clear and precise way?25xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 455.
Mousmouti points out several classic examples to illustrate how poor choices in the content of the law affect its overall effectiveness.26xIbid. Legislation introducing standards and requirements can miss its target in several ways. It is typical for legislation to introduce standards and requirements which are irrelevant to the context in which it is to be applied, like for instance, stringent building requirements in a country where this is not justified by a history of earthquakes. Such law is beyond the reach of the majority of the population and does not take into account local incomes, climate and available resources and does not motivate people to comply with it. Such law is an indication of a poorly designed solution, compliance will be an issue, and by all means, it will be ineffective during its life cycle. Another example is a planning law in Uganda which required the recruitment of an additional 20,000 civil servants. Such an unrealistic enforcement strategy that did not reflect the financial and institutional capacity and reality of the implementing institutions certainly resulted in the law not being implemented.27xIbid.
Thus, it is important that drafters forecast and avoid these failures. There is no definite one correct approach for drafters to undertake in order to avoid such failures, but it is crucial to approach the drafting process as a pragmatic and bottom-up (rather than top-down) process. That is, it is important to study the problem and its features, find information and evidence, research, analyse, and think, and have the analysis and thinking backed up by different types of evidence. This will have the potential to balance intuitive and perceptive choices or naïve beliefs, minimize automatisms and repetitive patterns in legislation, exploit the knowledge originating from pre-existing legislation, expert or scientific or economic studies from other jurisdictions. After all, it is important that time is devoted to legislative design. Have a clear legislative strategy, balancing out the advantages and disadvantages of alternative legislative techniques in terms of capacity to deliver the intended results; consider past experiences – the successes and failures; and predict the devious issue of compliance by using the practical tools where available. It is also important that enforcement mechanisms are in place, or established by the law, and have a logical structure which is reasonable in terms of resource availability. To sum up the fundamental element of ‘content of legislation’, Mousmouti stresses that the choice of legislative techniques, enforcement mechanisms and legislative construction determines to a great extent whether a law will achieve results or fail, partially or entirely. These choices are often undertaken intentionally or unintentionally on the part of the drafter.28xIbid.c) Context
As the fourth element of the ‘effectiveness test’, context looks at the law and how it fits into the broader legal system with which it interacts. Any piece of law once enacted becomes part of the legal environment, which is already crowded with legal messages that have apparent or hidden interactions between them. The way in which different laws associate has an impact on both the effectiveness of the message itself and the capacity of the user to locate and understand it, and on the capacity of the implementer to apply it and the judge to interpret it. From the point of view of drafters, the correlation raises three challenges for the drafting process:
how to ensure that the user can easily identify (locate) the law addressed to him or her within the legal system;
how to ensure that the user can differentiate that particular law from competing ones;
how to ensure that the user can absorb, and to what extent, what the law is amending, either repealing or leaving competing laws untouched.29xIbid., 464.
Mousmouti introduces a number of choices for drafters when it comes to considering the context in which a law is to be introduced into the legal system and how it will integrate with it – as a stand-alone law; as an amendment to an existing law; as a consolidation; as an addition to an existing code, if it is relevant depending on the jurisdiction and its laws. Having these choices out there will assist in the determination of how the new provisions are integrated in the legal system and how they will interact with existing legislation. A classic example is equality legislation in the United Kingdom.30xNon-discrimination legislation: Race Relations Act 1965, Race Relations (Amendment) Act 1968, Race Relations (Amendment) Act 2000, Race Relations Act 1976 (Amendment) Regulations 2003; Equal Pay Act 1970; Sex Discrimination Act 1975; Disability Discrimination Act 1995; Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations 2003; Employment Equality (Age) Regulations 2006; Equality Act 2006. Before the Equality Act 2010 was enacted, several different Acts were affiliated and implemented alongside each other that dealt with equality. The existence of different Acts offered more protection from discrimination on the grounds of gender, disability, religion, age and so forth. However, it triggered issues of inconsistency in the protection offered and the definition of identical, related or similar terminology.31xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 460. Therefore, merging all legislation dealing with equality and non-discrimination in a single legislation was as a solution to the multiple intricacies that arose.
Legislative practice shows that in most circumstances, the choice of whether to introduce a new law, to amend existing ones or to consolidate or codify, is dependent on other factors, rather than the impact of these choices on the effectiveness of the law that is to be introduced. The other factors include political will emanating from the need to show action and satisfy voters, pressure to legislate from higher authorities or external influence from development partners where an international instrument requires domestication. Such factors do have an impact on the capacity of law to be as effective in terms of predictability, accessibility, consistency, ease of application, and stalling the achievement of its overarching purpose and mandate. That said, ‘context’ as an important element of the effectiveness test needs to be thoroughly taken into account during the drafting process (designing and drafting). Above all, it is the call of drafters to make sensible choices when it comes to designing and drafting the law, which needs to be undertaken by examining the pros and cons of ways to relay clear and precise messages in law.32xIbid.d) Results
Mousmouti advocates that from a drafting point of view, results are the ‘moment of truth’ for legislation, which will prove to what extent the intuitions of the drafter were actually substantiated. She further amplifies that as a matter of fact, every law produces specific results and effects, irrespective of whether they are the intended ones or not. Unless results are clearly figured out in the drafting process, the initiative to make laws as effective as they can be remains unsolid.33xIbid.
The so called “implementation game”34xEugene Bardach, The Implementation Game: What Happens after a Bill Becomes a Law (MIT Press 1977). verifies that the relation between the law on paper and the law in reality is complex and not straightforward. The process of finding out about the results and effects of legislation is perceived as a requirement of democratic governance, a way to prevent confrontational impacts on human rights, and to continuously appraise properly how responsive the law is to the regulated problems. Trends show that there is growing awareness on the subject matter (knowing results of law), which is important to both the determination of the extent to which the objectives of a law have been achieved and the evaluation of its performance.35xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 458.
Results can be generated in different ways: through horizontal processes of post-legislative scrutiny and evaluation or through specific reporting or review requirements in legislation.36xIbid. For example, in France, a constitutional reform in 2008 stated that the French Parliament is obliged to carry out public policy evaluation sessions, dedicating one week per month to the exercise, thus engaging in not only lawmaking, but also a sort of law-maintenance.37xThe loi constitutionelle 23 Juillet 2008, Art. 24 established that: ‘Le Parlement vote les lois, controle 1’action du Gouvernement et évalue les politiques publiques’. These are often perceived as not practicable due to lack or non-availability of statistical data and information to carry out either of them, even if processes are in place, thus making it a mystery.38xIbid.
Nonetheless, it is crucial for drafters to consider that the mere existence of generic requirements to monitor and evaluate parts of the law is only half a solution. Therefore, it is important that they are construed and focused on relevant and functional information. Otherwise, the consequences of the exercise(s) undertaken will only reveal an imprecise and unclear direction as to why and to what extent a law has been effective.39xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 459. Drafters need to make sure that the kind of data or information required, how data or information will be collected, and the mechanisms through which this will be achieved are well considered.
After all, information on the application and results of legislation is vital for effectiveness as it allows learning about the realistic results and effects of legislation, and for the most part it connects the different phases of the life cycle of legislation. It also allows for juxtaposing of initial objectives and real-life results of a law. Hence without information on results, effectiveness cannot be assessed and failures of legislation cannot be identified in order to be addressed.40xIbid. -
C Application of Element One of the Effectiveness Test: ‘Purpose’
I Overview
Having explored the drafting process in Tuvalu and discussing the elements of the ‘test’, it is crucial to navigate further into the test by applying its first element – ‘purpose’ to the relevant provisions of the Climate Change Resilience Act in order to analyse the Act’s effectiveness.
To begin with, the principal objective of the Climate Change Resilience Act is to provide a strong national legal mandate for a range of commitments and obligations on climate change, articulated in key national policies and strategies,41xTe Kakeega III – Tuvalu National Strategy for Sustainable Development 2016-2020; Te Kaniva: Tuvalu National Climate Change Policy 2017–2020; Sustainable and Integrated Water and Sanitation Policy 2012–2021; Student Education Loan Fund Scheme 2015. that set the basis of the broader policy objective of the Act.42xClimate Change Resilience Act 2019. These policies and strategies are aligned to Tuvalu’s regional and international standards and commitments43xUnited Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992; The Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted in Kyoto on 11 December 1997; The Doha Amendment to the Kyoto Protocol, adopted in Doha on 8 December 2012; The Paris Agreement, adopted in Paris on 12 December 2015. on climate change which it is a party to.
In sum, the Act:gives legal effect to relevant actions under national, regional, and international commitments, including Tuvalu’s nationally determined contributions (NCDs) and those outlined under Te Kaniva: Tuvalu National Climate Change Policy 2017–2020;44xClimate Change Resilience Act 2019 (Explanatory Notes) 1.
establishes and provides for the operation of the Department of Climate Change and Disaster and other key authorities at both national and local government levels;45xIbid.
outlines coordinated responsibilities for the implementation of Tuvalu’s obligations under climate change related Conventions; authorizes climate change policies and programmes; and
stipulates certain prohibited activities and enables the making of subsidiary laws to regulate specific initiatives and commitments, such as the regulation or prohibition of the importation of goods or products that have an adverse impact on Tuvalu’s greenhouse gas emissions reduction targets.46xIbid.
II Where Is Purpose Expressed
To begin with, the ‘purpose’ of the Act is encompassed under ‘Part I – PRELIMINARY: Section 7’, which states that in order to achieve the policy objectives stated in Section 6 and commitments in Section 8, the Act:
provides the legal basis for climate change resilience policy and law;
gives effect to the legal obligations of Tuvalu with respect to implementing the UNFCCC, the Kyoto Protocol, the Paris Agreement, and other agreements related to climate change that the Government of Tuvalu is a party to;
promotes low carbon development;
establishes the role of government in coordinating climate change actions and establishes effective governance structures for the implementation of sound climate policies;
promotes public awareness and involvement in climate change issues and the preservation of Tu, Iloga mo faifaiga as it relates to the environment; and
complements climate change related provisions in other laws.
In addition to the above section that provides for the purpose of the Act in its broader and linear sense, the explanatory notes also outline what the Act intends to do holistically. It explains generally the seven parts of the Act and what they provide for.
III How Is Purpose Expressed? Is It Clear and Unambiguous?
In applying Mousmouti’s typology in which purpose can be expressed, the Act overarchingly takes the fourth approach by combining narrow and broader objectives.47xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 453. For example, Section 7(a) and (b) stipulate that, “the Act provides for the legal basis for climate change resilience policy and law” and
gives effect to Tuvalu’s legal obligations with respect to implementing the UNFCCC, the Kyoto Protocol, the Paris Agreement and other agreements related to climate change that the Government of Tuvalu is a Party to.48xClimate Change Resilience Act 2019.
Also, Section 7(d), “establishes the role of Government in coordinating climate change actions and establishes effective governance structures for the implementation of sound climate change policies”.49xIbid. Section 7(a), (b) and (d) comprise legal statements combined with broader policy objectives that provide a more meaningful benchmark both for the interpretation and effectiveness of the law. They indicate the legal means used as well as the overall objectives to which they contribute.
Section 7(c) and (e), though listed as two of the five purposes of the Act, should however have been listed under Section 6 as part of the policy objectives. The statement in (c) stipulating that the Act “promotes low carbon development”, does not indicate the legal means used, neither the overall objective to which it contributes. Besides, the statement does not combine a narrow and a broader objective, rather it just states a loose-ended policy objective which does not provide a significant target for both the interpretation and effectiveness of the Act.50xIbid. Likewise (e) which states that the Act
promotes public awareness and involvement in climate change issues and the preservation of Tu, Iloga mo Faifaiga as it relates to the environment; and complements climate change related provisions on other laws,
is by all means a broad policy objective. It does not indicate through what means public awareness on climate change issues is promoted and the preservation of Tu, Iloga mo Faifaiga, which is seen as having a relation to the environment per se. Moreover, it does not indicate how the Act complements climate change related provisions in other laws. Hence it does not set a benchmark which is worthy for the effectiveness and interpretation of the Act.
Therefore, considering the clarity and unambiguity of the purpose of the Act, this paper argues that ‘purpose’ as stipulated in Section 7(a), (b), and (d) is clear. Section 7(a) establishes a legal framework for climate change in Tuvalu, which definitely contributes to the policy objective by giving legal effect (legal means used) to relevant actions under national, regional, and international commitments. This includes Tuvalu’s nationally determined contributions and those outlined in the Climate Change Policy 2017–2020. Similarly, Section 7(b) gives effect to Tuvalu’s legal obligations with regard to implementing International Climate Change Conventions and Agreements, which it is a party to. Furthermore, Section 7(d) focuses on establishing the government’s role in coordinating climate change actions and effective governance structures for the implementation of sound climate change policies.51xIbid. All three statements are purposive and reveal how they contribute to the broader policy objective in combating the impacts of climate change and through what means. On the other hand, as discussed in the preceding paragraphs, Section 7(c) and (e) are not purposive – they do not set a meaningful benchmark and also do not state what policy objective they contribute to.IV How Is Purpose Analysed in Results, Goals and Outcomes?
How purpose is analysed in results, goals and outcomes can be deduced from the purpose provision (Section 7) of the Act. For example, Section 9 which provides for ‘greenhouse gas emissions reduction targets’, apparently aims to see a reduction in Tuvalu’s emissions targets in order to achieve one of its purpose in Section 7(c), which is to promote low carbon development. Moreover, Section 15(k) stipulates that one of the Climate Change Department’s functions is to provide educational training and other capacity development opportunities for Tuvaluans in areas related to mitigating greenhouse gas emissions, building resilience and adapting to the impacts of climate change, and ensuring effective participation in international and regional processes associated with international and regional climate change agreements.52xIbid. This provision in itself reflects and enhances the achievement of promoting public awareness and involvement in climate change issues as provided for in Section 7(e) as one of the purposes of the Act.
Contrariwise, the Act does not legislate targets, rather it provides for a flexible provision as stipulated in Section 953xSection 9(1) “For the purposes of this Act and subject to this section, the emissions reduction targets for Tuvalu are as prescribed by regulations and in line with its nationally determined contributions made pursuant to the Paris Agreement and (2) The Minister may amend or renew, by regulations, the emissions reduction targets if, in the opinion of the Minister, exceptional circumstances apply and as may be required in accordance with Article 4 of the Paris Agreement.” to ‘reduce greenhouse gas emissions’. Thus, in order to avoid deducing what exactly the Act is to achieve during implementation, legislating targets can be one way to ease the burden of having to deduce targets, especially for legislations as such that regulate a complex phenomenon like climate change. It is also a way of guiding implementation and assisting the courts to interpret what government intended from the legislation54xJill Rutter & William Knighton, ‘Legislated Policy Targets: Commitment Device, Political Gesture or Constitutional Outrage’ (2012) Institute for Government 4. and incentivize action on fundamental issues such as climate change, which often receives less priority.55xIbid., 6.
Nonetheless, one of the concerns on the practicality of legislated targets is that they are often set without clarity on the means required to meet them, and hence without an analysis of the costs and benefits of achieving it.56xIbid. For instance, the Climate Change Act 200857xClimate Change Act 2008 (UK). sets an overall target for reductions in greenhouse gas emissions by 2050 but does not specify how the government is to reach that target.58xRutter & Knighton, ‘Legislated Policy Targets’ 9. There are extensive emerging discussions on the positives and negatives of legislating targets but for the purposes of this article, it is too broad a subject matter on its own to be well developed here.
Above all, though the Act does not literally spell out what it anticipates achieving within a certain period of time – for example, an overall reduction in greenhouse gas emissions within ten years or by 2030 – it can be deduced from the different provisions and how they correlate with each other to achieve the purposes provided for under Section 7 as discussed in the preceding paragraphs.V Practices (Expression of Purpose) in Other Jurisdictions – Climate Change Legislations
Firstly, the Tasmanian Climate Change (State Action) Act of 2008 has a long title which relays its broader policy objective, which is to provide for certain measures to help the State address the challenges of climate change and contribute to the broader national and international response to those challenges and for related purposes.59xClimate Change (State Action) Act 2008 (Tasmania). Following that, Section 4 stipulates the purposes of the Act and comprises a list of objects from (a) to (j).60xIbid. This article will not discuss the whole list of objectives; however, for the purposes of discussion and elaboration of best practices in other jurisdictions, it will extract the first two, (a) and (b). Objectives (a) and (b) of the Act state that,
to help Tasmania respond to the challenges of climate change by addressing issues associated with that phenomenon and, in particular, by providing for the setting of a target for the reduction of greenhouse gas emissions in the State as part of the national and international response to climate change; and
to promote a commitment to action on climate change issues in Tasmania by providing for the development of’ –
interim State targets for the reduction of greenhouse gas emissions; and
suitable targets and interim targets, having the same aim, for specific sectors of the State’s economy.61xIbid.
These two statements indicate the legal means used as well as the overall objectives to which they contribute, that is, to set targets for the reduction of greenhouse gas emissions (legal means used) in order to help Tasmania respond to the challenges of climate change (broader policy objective). It also refers to developing interim and suitable State targets for specific sectors of the economy (legal means used) to promote a commitment to action on climate change (policy objective). The two statements combine legal and broader policy objectives, which together deliver a practical benchmark for the effectiveness and interpretation of the Act. Hence in order for the Tuvalu Climate Change and Resilience Act 2019 to accomplish its purposes, it is crucial that its objectives are sufficiently defined and anchored in reality in order to be achievable resembling the approach used in the Tasmanian Climate Change Act.62xFlorentin Blanc, ‘Tools for Effective Regulation: Is “More” Always “Better”?’ (2018) 9 European Journal of Risk Regulation 465.
Secondly, the Tasmanian Climate Change Act 2008 also presents an example of legislated policy targets. Section 5 sets out the State’s target, which is to reduce by 31 December 2050, greenhouse gas emissions in Tasmania to at least 60% below 1990 levels.63xClimate Change (State Action) Act 2008 (Tasmania). Section 7 further stipulates the means by which the State is to reach the specified target through regulations that prescribe; (a) the method for measuring greenhouse gas emissions for the purposes of setting relevant 1990 levels (the “baseline”) and prescribe a figure that represents the baseline; and (b) methods for measuring reductions in greenhouse gas emissions; and (g) other measures and matters relating to the measurement of greenhouse gas emissions”.64xIbid.
Furthermore, the Australian Capital Territory Climate Change and Greenhouse Gas Reduction Act 2010 has a long title that states the wider policy purpose of the Act. It provides that the Act
promotes the development of policies and practices to address climate change, to set targets to reduce greenhouse gas emissions and to provide for monitoring and reporting in relation to the targets.65xClimate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory).
Subsequently Section 5 particularizes the linear purpose of the Act, which is to set targets to “(a)(i) reduce greenhouse gas emissions; and (ii) increase renewable energy use in the Act; and (iii) increase renewable energy generation for the Act; and “(b) to provide for monitoring of and reporting on progress made to meet the targets”; and “(c) to facilitate the government’s development of policies and programs to meet the targets and to address and adapt to climate change;” and “(d) to encourage private entities to take action to address climate change and recognize the entities that take action”.66xIbid.
Part 2 of the Act, which comprises of Sections 6–13 legislates the targets under the Act, in particular, greenhouse gas emissions reduction to achieve zero net emissions by 30 June 2045 as per Section 6.67xIbid. Section 7 stipulates the interim greenhouse gas emissions targets reduction to 40% less than 90 emissions by 30 June 2020. Sections 8 and 9 provide for per person greenhouse gas emissions target and renewable energy targets. Renewable energy targets should be 100% on and from 1 January 2020. Interestingly, Section 10 sets out how (legal means used) renewable energy targets–determinations should be measured by determining a method for measuring compliance with a target. Through this, the Minister should seek, and pay regard to the advice of an independent entity to assist in determining the method for measuring compliance with a renewable energy target and ensure consistency with the best national and international practices with regard to measuring compliance with a target. Section 11 follows suit by stating how greenhouse gas emissions–determinations should be measured, which is equivalent to that of the preceding section. Section 12 then makes provision for the requirement of having an annual report by an independent entity on greenhouse gas emissions for each financial year. The report should specify the amount of greenhouse gas emissions for the year (annual emissions amount) measured by using the means in Section 11 and an analysis of the Act’s progress in meeting the targets as per Sections 6, 7, 8, and 9.68xIbid. The analysis should include a comparison of the annual emissions amount with the greenhouse gas emissions targets, and identification of the main sources of greenhouse gas emissions in the Act and identification of possible reasons for changes in amounts of greenhouse gas emissions from previous years.69xIbid.
From the above discussions, it is perceived that the Act expresses a good purpose as provided for in Section 5, a purpose that well reflects the broader policy objective of the Act to promote the development of policies and practices to address climate change, set targets in all efforts to reduce emissions, and provide for monitoring and reporting. In addition, the way in which the purpose is communicated sets a meaningful benchmark for what the law aims to achieve (results) in terms of addressing climate change, which is done by specifically legislating targets and setting out the legal means in which they are to be achieved (empowering the Minister to determine methods for measuring emissions), the progress in meeting them, and a holistic report by an independent entity regarding the targets, including the challenges encountered in meeting them (if there are any that were not met in that financial year).70xIbid.
Like the Tasmanian Climate Change Act 2008, the Australian Capital Territory Climate Change and Greenhouse Gas Reduction Act 2010 is also a classic example of a climate change law which not only legislates policy targets but also provides provisions on how the targets should be measured and an independent entity report on the progress of their achievement, including reporting on the difficulties that led to non-compliance.
Similarly, the UK Climate Change Act 2008 has a long title that overarchingly expresses the wider policy objective of the Act. It provides that the Act sets a target for the year 2050 for the reduction of targeted greenhouse gas emissions; provide for a system of carbon budgeting; establish a Committee on Climate Change; confer powers to establish trading schemes for the purpose of limiting greenhouse gas emissions; and make provisions about adaptation to climate change and other related matters.71xClimate Change Act 2008 (UK). Section 1 of the Act particularizes the target for 2050 as mentioned in the long title. It provides that it is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.72xIbid.
However, the Act only sets an overall target for reductions in greenhouse gas emissions by 2050 but does not specify how the government is to reach that target.73xRutter & Knighton, ‘Legislated Policy Targets’ 9. The initial Act comprised a target of 60% reductions by 2050. Following scientific advice about what it takes to keep temperature rises below two degrees, this was changed to 80% by the government. Therefore, it is crucial that a fair approach is considered in making decisions regarding targets based on ‘scientific justification’. Nonetheless, there was still no provision made as to how the government was to reach that amended target. Thus, target design matters when it comes to legislating them, as bad target design has the potential to produce perverse results, for instance, focusing government efforts on the wrong issue if the measure is poorly specified as in the case of the UK Climate Change Act 2008.74xIbid.
Above all, it is imperative not to confuse the policy objective ‘ends’ outcome that the government wants to achieve and the ‘means’ of achieving it, as this may result in minimal consideration of the merits of alternative approaches.75xOrganization for Economic Co-operation and Development (OECD), ‘Introductory Handbook for Undertaking Regulatory Impact Analysis (RIA)’ (2008) 4. For example, under the circumstances of the Tuvalu Climate Change Resilience Act 2019, one of the policy objectives ‘ends’ as per Section 6 is to regulate Tuvalu’s efforts to reduce greenhouse gas emissions pursuant to Section 9 and contribute to the protection of the climate system for the benefit of present and future generations of humankind, on the basis of equity and pursuant to Tuvalu’s responsibilities and capabilities.76xClimate Change Resilience Act 2019 s6. Section 9 further implements this policy objective by stipulating that the emissions reduction targets are as prescribed by regulations. Prescribing emissions reduction targets by way of regulation is just one means of achieving the objective but not the objective itself.
The above discussions on the application of the ‘purpose’ element to the policy objectives and purposes of the Climate Change Resilience Act 2019 reveals how the Act is ‘fit for purpose’,77xMaria De Benedetto, ‘Effective Law from a Regulatory and Administrative Law Perspective’ (2018) 9 European Journal of Risk Regulation 408. and effective in terms of being well understood as a law and achieving its narrow and broader objectives.78xBlanc, ‘Tools for Effective Regulation’ 465. -
D Application of Element Two of the Effectiveness Test: ‘Content’
I Overview
Considering the crucial elements of legislative design under the circumstances of the Climate Change Resilience Act, the drafter(s) should be methodical in making decisions on the choice of rules, enforcement mechanisms and methods to induce compliance. It is also significant that the message is clear, precise and communicated in an understandable manner.79xMaria Mousmouti, ‘Basic Concepts of Legislative Design’ Institute of Advanced Legal Studies, University of London (Lecture).
This chapter will now discuss the legislative techniques used in the Act and make an analysis on the effectiveness of those techniques in terms of compliance, enforcement strategies and existing mechanisms, and how language as the main means of communication is utilized in the Act to transmit nothing but just the prime message to the users.II Legislative Techniques
Firstly, the legislative techniques used in the Climate Change Resilience Act differs in each of the seven parts of it. Part 1 (I) which provides for the preliminary provisions is administrative and regulatory in nature. It comprises provisions such as the short title, interpretation, application of Act to international instruments, application of Act to the Crown and its territorial application. Sections 6 and 7 of Part 2 (II) are also administrative and regulatory as they stipulate the broader policy objectives and the purposes of the Act. Section 8 creates obligations for Tuvalu in terms of its national, regional and international commitments on climate change. Section 9(1) is regulatory as it sets out where the emissions reduction targets for Tuvalu are prescribed. Subsection (2) of the same section creates power for the Minister to amend or renew by regulations the emissions reduction targets where necessary in light of the Paris Agreement.80xClimate Change Resilience Act 2019.
Subsequently, Part 3 (III) – Administration, Section 10 creates obligations and powers of the Minister under the Act. Section 11 creates power for the delegation of functions and powers of the Minister to the Director where necessary. Section 12 is administrative, establishing the Department of Climate Change. Then Section 13(1) being regulatory, stipulates the appointment of the Director of the Department. Subsections (2) and (3) create obligations for the Director when discharging her roles and functions in the administration of the Department and implementation of the Act. Section 14 creates power for the Director to delegate her functions to an officer of the Department and also creates permission for that officer to carry out all or any of the Director’s powers and functions under the Act. Sections 15 and 16 create obligations for the Climate Change Department with regards to building resilience to climate change and its functions relating to climate change related Conventions. Then Section 17(1) creates obligations for all persons and agencies that have roles, functions, and powers under the Act that may involve building resilience against climate change, to apply the precautionary approach in discharging their roles, functions or powers. Subsections (2) and (3) of this section are administrative, regulatory, and at the same time educational to the users. They stipulate under what circumstances the precautionary approach is to be applied and what the phrase ‘potential adverse effects or risks’ means.81xIbid.
Section 18 under Part 4 (IV) – Forum, Council and Committees, creates powers for the Minister to establish a National Climate Change Resilience Forum. Likewise, Section 19(1) also creates powers for the Minister to establish a National Advisory Council on Climate Change. Subsection (2) creates an obligation for the Director acting under the direction of the Minister to convene meetings of the Council. Subsection (3) is regulatory, stating the types of regulations that can be made under the Act. Section 20 creates obligations for the Council to provide advice to the Minister on climate change related matters within and outside Tuvalu. An obligation is also created for the Council to act as the competent authority for the purposes of a Convention to which the Act applies.82xIbid.
The fifth part (V) of the Act regulates policies to address climate change. Firstly, Section 21 is administrative and regulatory stipulating the formulation of a National Climate Change Policy and creating an obligation for the Climate Change Department to formulate it. The section further creates a power for the Minister to review and update the Policy where needed to ensure its conformity with Tuvalu’s priorities, development, and commitments. Section 22(1) creates a list of obligations for the Climate Change Department to develop strategies and plans to address climate change in terms of capacity building, securing funding for mitigation, adaptation, loss and damage issues, addressing climate change impacts on Tuvalu’s physical environment, and related matters. Subsection (2) is administrative, providing what may be included in the regulations made under the Act as per the provision.83xIbid.
Section 23 creates a general obligation of the government to consider climate change in its decisions, policies and initiatives in line with Section 6 of the Act and commitments under Section 8. It also obligates government departments and agencies to apply the regulatory powers under the laws that they are responsible for administering, to regulate or forbid an activity or initiative pursuant to a decision made by the Council or a request of the Minister.84xIbid. Interestingly Section 24(1) creates power for the Minister to make a written request to persons or ministries to provide information needed in relation to applicable Conventional reporting requirements. Subsection (2) takes a command and control approach by imposing a sanction on the person to whom a written request has been made under Subsection (1), but refuses to do so without proper justification, who is then liable upon conviction to a fine not exceeding $ 500.85xIbid.
Subsequently, Section 25(1) establishes the Climate Change Fund for the purpose of investing funding assistance for adaptation, recovery and rehabilitation, which is administered pursuant to the Climate Change and Disaster Survival Fund Act 2015. Subsection (2) further regulates the prohibition of loans to administer the fund and places an exception on actions undertaken to reduce greenhouse gas emissions. Section 26 regulates establishing a Climate Change and Disaster levy by empowering the Minister to do so, and monies collected from the levy to be invested into the Climate Change Fund.86xIbid.
Part 6 (VI) – Enforcement, particularly Section 27 is command and control in nature, controlling behaviours and backing them with sanctions – prohibiting the exploration, mining, and extraction of fossil fuels, a breach of which amounts to fines as stipulated under the section. Section 28 also adopts the same command and control approach, imposing sanctions on persons supplying false information when required to provide them under the Act. Similarly Section 29 imposes sanctions on a person carrying out any activity or project under the Act without approval.87xIbid.
Section 30(1) creates an obligation on persons charged with an offence under the Act to cease that activity for which they were charged with immediately. Subsection (2) then imposes sanctions on persons who fail to comply with Subsection (1). The last two sections of Part 6, 31 and 32, are administrative. Section 31 sets out the requirement where if a corporation commits an offence under the Act, any person of the corporation who authorized or participated in the commission of the offence through their own neglect, is considered a party to the offence and is liable upon conviction to the penalty provided for the offence. Section 32 states the immunity of the Minister or a person appointed or authorized to carry out something or omitted to do something in pursuance of their powers or functions under the Act. However, the exception is if the person acted or omitted to act in bad faith and without reasonable cause.88xIbid.
Lastly, Part 7 (VII) – Miscellaneous, comprises of Sections 33, 34, and 35, which are administrative and regulatory in nature. Section 33 creates powers for the Minister with the consent of Cabinet, to make regulations under the Act. Section 34 stipulates consequential amendments regarding other existing legislations that have a linkage to the Act in terms of responses to climate change. Section 35 stipulates savings and transitional provisions in terms of the usage of several terminology and phrases before the enactment of the Act, and related matters as per the provision.89xIbid.III Analysis and Recommendations
The Climate Change Resilience Act as it is, is a blend of several techniques in terms of design. The typical approach used throughout the seven parts of the Act is administrative and regulatory. Considering the structure of the Act, the first four parts are basically administrative provisions. Parts 5 and 7 also comprise of administrative provisions. However, Part 6 encompasses substantive provisions that are crucial to the enforcement of the Act.90xIbid.
Though Section 9 comes under Part 2 which is administrative, this article argues that Subsection (1) of Section 9 is a substantive provision as it regulates where the emissions reduction targets for Tuvalu are prescribed (through regulations) and on what basis they should be prescribed (pursuant to NDCs).91xGovernment of Tuvalu, ‘Nationally Determined Contributions’ 2015. Emissions reduction targets are important in the context of the Act as they is reflected in the broader policy objectives of the Act – Section 6(a), the purpose of the Act – Section 7(c), and commitments – Section 8.92xIbid. It is clear from the Act that emissions reduction targets is one way among others in which Tuvalu responds to the impacts of climate change.
Therefore, given the cruciality of Tuvalu’s collective efforts in ensuring long-term transition to a climate-resilient and lower carbon economy,93xClimate Change Resilience Act 2019. the drafter(s) should legislate Tuvalu’s emissions reduction targets under a stand-alone legislation. For example, the Australian Capital Territory’s ‘Climate Change and Greenhouse Gas Reduction Act 2010’, was enacted to promote the development of policies and practices to address climate change, to set targets to reduce greenhouse gas emissions, and to provide for monitoring and reporting in relation to the targets.94xClimate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory).
The Act not only set targets but also stipulated the means by which they should be measured. It also creates obligations on the Minister in terms of reporting for each financial year the annual emissions amount measured and the progress in meeting the targets through an independent entity (independent competition and regulatory commission). Interestingly, the Act obligates the Minister to present the report from the independent entity to the Legislative Assembly, which should include a statement to the Assembly. The statement should state the reasons as to why a target was not met and what action will be taken to meet a subsequent target, and how the action differs from any action that was taken for the target that was not met.95xIbid.
Legislating does not guarantee a perfect compliance on the part of users but it accentuates the very fact that it is legislation and has the force of law, thus making compliance mandatory. It also goes to show that emissions reduction targets are given clear priority and therefore legislated to amplify their importance nationally and internationally. Likewise, it makes government action more resilient and less sensitive to tides of popular opinion. This is particularly essential for issues such as climate change that have serious long-term implications.96xRutter & Knighton, ‘Legislated Policy Targets’ 6.
The decision to legislate is one thing; however, the burden is still on the drafter(s) to anticipate good and well-structured content. Hence clarity and precision in language is crucial, and decisions on choice of rules, enforcement mechanisms and methods to stimulate compliance are all central during the composition and development of the legislation.97xH. Xanthaki (Ed.), Thornton’s Legislative Drafting (5th ed., Bloomsbury Professional Ltd 2013) 163. The example discussed above from the Australian Capital Territory Climate Change Act98xClimate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory). is one approach that Tuvalu can adopt in terms of legislating emissions reduction targets only, which contributes to its broader response to the impacts of climate change as stipulated in the Tuvalu Climate Change Resilience Act 2019. This is an approach that can lead towards achieving the desired results of reducing greenhouse gas emissions, given that the proposed stand-alone legislation will offer a clearer and more precise message to users as it focuses only on one issue, that is, emissions reduction targets. It certainly contributes as well to the reduction of the many complex and muddled issues enshrined in the current Climate Change Resilience Act 2019.
Another example which illustrates a different approach from the Australian Capital Territory Climate Change Act99xIbid. is the Tasmanian Climate Change (State Action) Act 2008. The division of the Act establishes a framework for climate change action through an emissions reduction target and regulation-making powers.100xTasmanian Climate Change Office: Department of Premier and Cabinet, ‘Amending the Climate Change (State Action) Act 2008’ 2018 Discussion Paper 3. It establishes a greenhouse gas emissions reduction target to reduce Tasmania’s emissions to at least 60% below 1990 levels by 31 December 2050 as per Section 5 of the Act. Both the Act and the Regulations support Tasmania in addressing the challenges of climate change and contribute to the broader national and international efforts.101xClimate Change (State Action) Act 2008 (Tasmania).
In contrast, the Tuvalu Act102xClimate Change Resilience Act 2019 (Tuvalu). does not have a provision which specifies the emissions reduction targets similar to that of both the Australian Capital Territory Act103xClimate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory). and the Tasmanian Act.104xClimate Change (State Action) Act 2008 (Tasmania). Rather, the Tuvalu Act, under Section 9(1) as discussed in the preceding paragraphs, only specifies where the emissions reduction targets are to be prescribed and how. It does not particularize in quantity what the actual targets are. Therefore, the approach in the Tasmanian Act105xIbid. is another option that the drafters can use to regulate Tuvalu’s emissions reduction targets. For example, they can have Section 9(1) specify the targets quantitatively; “Tuvalu’s 2025 target under this Act is to commit to the reduction of greenhouse gas emissions from the electricity generation (power) sector, by 100%”,106xGovernment of Tuvalu, ‘Intended Nationally Determined Contributions’ 2015. and Section 9(2) – “Tuvalu’s indicative quantified economy-wide target is to reduce in total greenhouse gas emissions from the entire energy sector to 60% below 2010 levels by 2025.” Proposed provisions as such transmit the prime message to users in a precise and clear language under the Act.107xIbid.
Then Section 33, which is the regulation-making power of the Minister can regulate inter alia matters pertinent to the targets such as how to measure them, monitor ongoing progress and report, and amend or renew the targets where needed, in accordance with Tuvalu’s special circumstances. However, the drafter should make it clear that the regulations made for the purposes of emissions reduction targets under Section 33 are made in connection with Sections 9(1) and 9(2), which set out what the targets are accordingly. In addition, the usage of the phrase ‘are as prescribed by regulations’ in Section 9(1) is weak and makes the provision sloppy and loose-ended in nature. More precise and clearer language to use in lieu of the current one is, ‘shall be prescribed by regulations’.
The above discussions are options that the drafter can explore for the Tuvalu Climate Change Resilience Act 2019; however, its current structure in terms of the regulation-making powers of the Minister is similar to that of the Tasmanian Climate Change (State Action) Act 2008. That is, they both have particular sections that regulate:the general regulation-making power of the Minister under the Act in its entirety; and
the regulation-making power of the Minister only to regulate emissions reduction targets in terms of the method to measure them, monitor their progress, and review them.
Nonetheless, the Tuvalu Act108xClimate Change Resilience Act 2019 (Tuvalu). does not specify in its relevant provisions the emission reduction targets, and the method for measuring the targets as in the Tasmanian Act.109xClimate Change (State Action) Act 2008 (Tasmania). Rather it focuses only on amending or renewing of the targets.
The Climate Change Response (Zero Carbon) Amendment Bill (New Zealand) will be enacted to provide a framework based on which New Zealand can develop and implement clear and stable climate change policies that contribute to the global effort under the Paris Agreement to limit the global average temperature increase to 1.5 degrees Celsius above pre-industrial levels.110xClimate Change Response (Zero Carbon) Amendment Bill (New Zealand), Explanatory Note. Available at: www.legislation.govt.nz. The Bill will achieve its goals by establishing an independent Climate Change Commission to provide independent expert advice and monitoring, and to assist successive governments to stay on track on the long-term mitigation and adaptation goals. It also sets new greenhouse gas emissions reduction targets, for example, biogenic methane within the range of 24% to 47% below 2017 levels by 2050, with an interim requirement to reduce emissions to 10% below 2017 levels by 2030.111xIbid. For the drafter, setting the 2050 emissions reduction targets in primary legislation provides a clear signal on New Zealand’s long-term emissions reduction goals. It also gives citizens a sense of confidence that climate change policies and the long-term emissions reduction pathway will remain stable and predictable and continue to deliver prosperity.112xIbid.
Juxtaposing the Tuvalu Act with the above-discussed Amendment Bill, the Tasmanian Act and the Australian Capital Territory Act, the Tuvalu Act is the only climate change Act that does not specify its emissions reduction targets in its provisions. The drafter decided to have the targets stipulated by regulations, which this article argues should not be the case. As alluded to by the drafter for the New Zealand Amendment Bill, setting out the targets in legislation gives a well-defined indication of the country’s long-term emissions reduction goals, assuring its citizens that climate change policies and the long-term emissions reduction pathway will remain stable and predictable and continue to deliver prosperity.113xIbid. In the same way, this article argues that it is also for the above-discussed reasons, among others, considering Tuvalu’s vulnerability in almost all facets of life, coupled with its combined efforts (nationally and internationally) in combating the adverse impacts of climate change, that its emissions reduction targets should be stipulated clearly and precisely in the Act.
Therefore, from the above discussions, the approaches taken under the Climate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory), the Tasmanian Climate Change (State Action) Act 2008 and the New Zealand Amendment Bill, are examples that the drafter can adopt (whichever is more practical and can induce compliance) in Tuvalu’s context, to regulate its emissions reduction targets.
Furthermore, the title of Section 25 does not correspond the provision itself. This article argues that the sole purpose of the section is to establish the linkage of the fund and its operationalization to the Climate Change Resilience Act 2019. It also stipulates what law the fund should be operated under and other matters pertinent to the operationalization of the fund. Under the circumstances of this section, given that it is titled ‘Climate Change and Disaster Survival Fund’, it is argued that the drafter intends to establish the fund only, when in fact this is not the case. The provision nonetheless regulates the type of funding assistance received by Tuvalu in terms of climate change which are to be invested into the fund, and then subsequently establishes the fund. The drafter should have decided to use plain language that is precise and easy to understand in drafting a title that corresponds with the provision. Hence, a proposed title that should correspond to the provision itself is ‘Operationalization of Fund in Relation to Act’.
Even if the drafter intends to establish the fund under this section, this article argues that it should not be done, as there is a separate Act (Climate Change and Disaster Survival Fund Act 2015), which specifically regulates the establishment and operationalization of the fund. The drafter also has the choice of deleting the whole section from the Act and propose an amendment to the Climate Change and Disaster Survival Fund Act 2015 to insert a provision that provides for the linkage between the fund and its operationalization, in relation to the Climate Change Resilience Act 2019.
Besides, Section 26, as discussed earlier in this chapter, being administrative in nature, empowers the Minister to impose levies relating to the management of the adverse impacts of climate change. It further regulates where the monies collected from the levy should be invested. The drafter in drafting this provision should have been vigilant enough to see whether choosing such a legislative technique will influence the behaviours of the users, and look into existing enforcement strategies and mechanisms that will induce compliance. Since the purpose and intention of Section 26 should mirror the overall objective of the Act, ‘command and control’ is the best approach to regulate such a provision. Thus, a recommended way of drafting Section 26 in its entirety is to add a penalty provision if visitors do not comply with the requirement to pay the levy imposed on them. The current provision does not impose a penalty if one does not comply. Due to the necessity of such a provision as another means of responding to the impacts of climate change, a command and control approach is appropriate under the circumstances. Hence for one, non-compliance means facing the consequences and paying the price for it.
Lastly, given the newness of such an Act in the context of Tuvalu, it is imperative that when drafting, the drafter’s attention should be drawn to look into practical questions such as:Will the legislative techniques used influence the behaviours of the users? Are they more likely to bring the desired results?
What does the Act really intend to achieve?
What is the solution offered by the Act?
How is it relevant to the problem addressed?
Does it reflect the reality on the ground?
Is it proportionate and appropriate in terms of the defined objectives of the Act?
How is it expected to impact the problem as it currently stands?
What enforcement mechanisms are used? Are they realistic?
Do they consider existing institutional capacity and resources?
Who are the users of the Act?
What are the main messages of the Act?
How are the main messages of the Act communicated to the targeted users?
Though the list is not exhaustive, practically applying such questions pertinent to the ‘content’ of the Act would prevent the adoption of rules that are unrealistic and incompatible with what is happening in reality.114xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 463.
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E Application of Elements Three and Four of the Effectiveness Test: ‘Context and Results’
I Overview
Since the Act is new and there is a lack of practical examples and evidence in terms of ‘results’, the author has decided to combine the two elements of ‘context’ and ‘results’. In doing so, this part of the article intends to apply these two elements to the Climate Change Resilience Act 2019, in order to determine its effectiveness in terms of the ‘context’ in which it is introduced and how the intended ‘results’ should be achieved.
1 Context
Considering the context in which the Climate Change Resilience Act 2019 will be introduced, this part will reflect on several important questions as alluded to by Mousmouti to determine how the Act fits into the broader legal system in Tuvalu. In essence, the drafter should bear in mind how the Act will integrate into the legal system.
Is it a stand-alone legislation?
Is it an amendment to an existing one?
Is it a consolidation?
Is it an addition to an existing code, where relevant, depending on the context of Tuvalu and its laws?115xIbid., 459-460.
A thorough thinking on such questions pertinent to the context in which the Act is introduced will assist the drafter in the determination of how the new provisions of the Act will interact with existing legislation.
The paper will now discuss in turn the crucial questions raised above, in relation to the Act, in order to make an analysis of how it is envisaged within the broader legal system in Tuvalu.
The Climate Change Resilience Act 2019 is the first of its kind that focuses only on climate change in depth – a stand-alone legislation. It does not intend to amend any other legislation as there is clearly no other existing legislation as such. Neither is it a consolidation, given its originality.
Subsequently, the Act’s interaction with other existing legislation is directly enshrined in its provisions. For example, Section 5, which provides for the territorial application of the Bill, provides the link with existing legislations that regulate the protection of Tuvalu’s environment,116xClimate Change Resilience Act 2019. maritime zones117xMaritime Zones Act 2012. and seabed minerals.118xSeabed Minerals Act 2014. Furthermore, Section 26 stipulates the establishment of a climate change disaster levy. Subsection (2) of this section states that all levies collected under Subsection (1) should be invested into the Climate Change and Disaster Survival Fund. The fund is an existing mechanism that was established under the Climate Change and Disaster Survival Fund Act 2015. Hence all funds relating to climate change are invested into this fund, and it is the responsibility of the Ministry of Finance within the government system to administer it in collaboration with the Department of Climate Change and Disaster.119xClimate Change Resilience Act 2019. Further, as a result of its enactment, Part 8 (VIII) of the Environment Protection Act was repealed,120xEnvironment Protection Act 2008 (Tuvalu). and Section 60 of the Tuvalu Seabed Minerals Act was amended.121xSeabed Minerals Act 2014 (Tuvalu). Thus far, the Act’s relation and linkage to other existing legislation is precisely provided for where necessary under its provisions.2 Results
Part 6 (VI) of the Act, which regulates its enforcement, comprises only of prohibitions, offences, and penalties set out for their breach. The intended results of the Act can be inferred from its policy objectives and purposes that cover a range of important matters, such as regulating Tuvalu’s emissions reduction targets, enhancing its resilience – by building climate-proof infrastructure, and promoting public awareness and involvement in climate change, to name a few. However, there is no specific provision under ‘enforcement’ that provides for monitoring of implementation or reviewing of the intended results of the Act as a whole.
Therefore, without such provisions in the Act, evaluation of results to check the effectiveness of the Act is impossible; likewise, it is impossible to make a comparative analysis on the actual results achieved against the intended ones. For instance, it will be difficult to monitor Tuvalu’s efforts in terms of its emissions reduction targets, as there is no mechanism in place (within the broader legal system) to monitor their progress, nor does the Act establish a mechanism.
The Tasmanian Climate Change Act, for instance, has a clear provision (Section 7) that empowers the Minister to make regulatory recommendations regarding its greenhouse gas emissions in terms of methodologies relating to their assessment, measurement or reporting.122xTasmanian Climate Change (State Action) Act 2008. Similarly, the New Zealand Climate Change Response (Zero Carbon) Amendment Bill has provisions (Sections 5X and 5ZB) that regulate methodological improvements to the way that emissions reduction targets are measured and reported.123xClimate Change Response (Zero Carbon) Amendment Bill (New Zealand), Explanatory Note. Available at: www.legislation.govt.nz.
In addition, there is no mechanism in place nor is there one established in the Act to gradually monitor and review its implementation as a whole, for example, to see how far Tuvalu’s resilience has progressed over time in terms of climate-proof buildings that have been built, how far activities to raise public awareness on climate change have been carried out by the responsible authorities under the Act, and whether other priorities and objectives of the Act in relation to climate change have been met.
On the contrary, the UK Climate Change Act has a provision (Section 24) that specifies the need to review the operation of the provisions of the Act after every three years. The purpose of such a review is to consider how effective and efficient the provisions of the Act have been since their enforcement.124xClimate Change Act 2008 (UK). Comparably, Section 26 of the Australian Capital Territory Climate Change Act obligates the Minister to review the operation of the Act after ten years of its coming into force and present a report of the review to the Legislative Assembly.125xClimate Change and Greenhouse Gas Reduction Act 2010. Thus similar provisions should be inserted into the Tuvalu Climate Change Resilience Act 2019 to regulate the reviewing of its provisions accordingly during implementation.
In scrutinizing the Act in its entirety, the drafter needs to perform a close analysis of a number of issues such as: What are the intended results? Are there sufficient mechanisms in place or introduced in the Act) to ensure proper monitoring of implementation and evaluation of results? If there are sufficient mechanisms in place or introduced in the Act, information and data should then be available for the identification and evaluation of results.126xMousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 463.
Furthermore, Section 26 which establishes the imposing of levies under the Tuvalu Climate Change Resilience Act 2019 – considerably general in scope, is another means by which Tuvalu responds to manage the adverse impacts of climate change. The provision in its entirety only establishes and empowers the minister to impose levies and then regulates where they should be invested. But it does not specify the consequential roles and functions that will arise as a result of the establishment of the Minister’s power, like for example, authorizing the Ministry of Finance to administer the levies working in collaboration with the Immigration Department to collect them. This triggers practical questions that are pertinent to ‘results’ such as:Who administers and collects the levy?
Is it the Ministry of Finance (to administer), or the Immigration Department (to collect), or are both functions operationalized by only one ministry?
How does the Ministry of Finance administer the levy? Using what mechanism(s)?
Under which process should the Immigration Department collect the levies from the targeted users if it is the authority responsible to do so?
Therefore, in terms of ‘results’, it is imperative that sufficient mechanisms and processes are established under the Act given the non-existence of such within the broader legal system. The establishment of mechanisms to monitor and review the implementation of the Act will trigger the collection of information and data that allow for the identification and evaluation of results. This will also enhance the evaluation process during the implementation of the Act.
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F Conclusion
This article has deliberated on the four elements of Mousmouti’s ‘effectiveness test’ and has applied them to the Tuvalu Climate Change Resilience Act 2019. The application of the elements to the Act confirms the argument that the test is applicable and valid in Tuvalu, and is central to the determination of how effective legislation is.
If effectiveness is related to purpose, content, context and the results of legislation, the relevance of each element and their linkage needs to be proven.127xMaria Mousmouti, ‘The “Effectiveness Test” as a Measure of Legislative Quality: Equality in Law, Inequality in Practice, and Quality in Legislation’ (PhD thesis, University of London 2013) 236. Then fundamental questions would need thorough consideration such as: What is their relation to effectiveness? How is this expressed? How can these elements positively promote effectiveness?128xIbid. This article addressed such questions by navigating through the elements of the ‘effectiveness test’ and applying them to the Climate Change Resilience Act 2019 to analyse the Act’s effectiveness. The discussions and analysis reveal how the test contributes to the effective implementation of every legislation regardless of nature and context.
Hence, based on the discussions and analysis in the preceding sections, this article recommends that there is more to be done and properly considered in order to enhance the effectiveness of the Climate Change Resilience Act 2019. Applying the ‘effectiveness test’ to the Act triggers substantive questions and issues which the drafter should have been vigilant and conscious about during the composition and development of the Act. For instance, in terms of ‘purpose’ – what is/are the purpose(s) of the Act in light of its broader policy objectives? ‘Content’ – what is the best legislative approach to be utilized given the nature of the Act that will induce compliance? ‘Context’ – how does the Act fit into the broader legal context in Tuvalu? Does it correlate with other laws in place? What relation does it establish? ‘Results’ – are there existing mechanisms in place or established in the Act? If there are, are they sufficient for the monitoring and reviewing of results given the broad coverage of the Act?
Central to the application of the test to the Act, is the elucidation of its strengths and weaknesses, which then leads to answering the mysterious question as to whether the Act is effective or not. For example, the legislative technique used in Section 26 is weak, given the nature of the Act, and therefore command and control is a suggested approach to enhance compliance. It is important under the circumstances of such a provision that the drafter commands users to follow a certain system (process) and have it backed up with sanctions or penalties for non-compliance. Such an approach would be the best strategy to ensure that choosing to impose such levies under the Act is realistic and workable. Again, essential issues affiliated to the establishment of such a process is to consider the existence of a mechanism (within the wider legal context) or establish it in the Act, to monitor compliance and review implementation.
The article in its discussions and analysis drew examples of practices in other jurisdictions that have legal frameworks in place on the issue of climate change, such as Tasmania, Australian Capital Territory, New Zealand and the UK. Emphasis is given on the need to legislate emissions reduction targets, which is an emerging trend that countries consider as one way of responding to the impacts of climate change in light of their broader efforts and initiatives to combat climate change nationally and internationally. The review of the Tasmanian Climate Change (State Action) Act 2008 reveals the success story of Tasmania in 2016, as the first Australian jurisdiction to achieve zero net emissions, with total emissions of –0.01 mega-tonnes of carbon dioxide equivalent, which is a 100% decrease from the 1990 baseline level.129xTasmanian Climate Change Office: Department of Premier and Cabinet, ‘Amending the Climate Change (State Action) Act 2008’, 2018 Discussion Paper 4. The article thus renders such practices as good examples in terms of legislating emissions reduction targets, which Tuvalu can resort to undertake as part of its collective national efforts in responding to the devastating impacts of climate change.
Enforcement is another issue that this article pondered in terms of introducing mechanisms, given their non-existence, to enable monitoring and reviewing of implementation. How often the provisions of the Act are to be reviewed is a fundamental issue to consider during implementation. Likewise, having mechanisms in place to give effect to the processes established under the Act such as operationalizing and monitoring of compliance on the imposed levies, and measuring emissions reduction targets, are also central to the implementation of the Act.
These are several of the significant issues that determine the effectiveness of the Act, which the drafter should have considered when drafting it. Given the compound nature of the Act as it covers a whole range of issues on climate change, it is important that it is reviewed regularly, For instance, it could be done within five or ten years of its commencement, to be more realistic, or depending on the enforcement dates of the substantive provisions of the Act that specify the emissions reduction targets, which may often be amended, reviewed, or repealed depending on the jurisdiction’s priorities and targets. The article cited examples from jurisdictions such as the UK (Climate Change Act 2008), to name one, where the Act contains a provision stipulating the need to review the operation of the provisions of the Act after every three years.
It is interesting though to see that the Act is departing from the traditional drafting practice in Tuvalu. That is, purpose clauses are usually placed in preliminary provisions, but the drafter under this Act decided to place the purpose clause under ‘Part II – Objectives and Commitments’ rather than placing it under ‘Part I – Preliminary Provisions’. Xanthaki alludes to this emerging trend of purpose clauses losing their place in preliminary provisions as a result of loading into them political statements or vague expressions of catchy legislative intent, although they are placed in preliminary provisions as lists of measurable tangible criteria of effectiveness of a Bill.130xH. Xanthaki, Drafting Legislation: Art and Technology of Rules for Regulation (Hart 2014) 61.
Conclusively, the uniqueness of the effectiveness test lies in the emphasis it places on the linkage between the different phases of the life cycle of rules and the need to consider them as a continuum which leads to effectiveness.131xMousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ 205. Navigating through the four steps of the test is a matter of immense effort, taking into account all the respective challenges that are encountered before, during, and after the implementation of the law.132xR. Baldwin, M. Cave, & M. Lodge, Understanding Regulation: Theory, Strategy, and Practice (2nd ed., Oxford University Press 2012). Therefore, because the ‘test’ is a concept applicable throughout the life cycle of any piece of legislation irrespective of its scope and coverage, it encompasses both a theoretical and a practical aspect.133xHelen Xanthaki, ‘Legislative Drafting: A New Sub-discipline of Law Is Born’ (2013) 1 Is.1 IALS Student Law Review 442. This makes the ‘effectiveness test’ a somewhat complex but unique concept that deliberates on a range of issues and requires deep reflection in order to solve predictable and real legislative dilemmas in any legislation.134xMousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ 205.
Noten
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1 Maria Mousmouti, ‘Introduction to the Symposium on Effective Law and Regulation’ (2018) 9 Is.3 European Journal of Risk Regulation (EJRR) 387.
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2 Helen Xanthaki, ‘Quality of Legislation: An Achievable Universal Concept or an Utopia Pursuit?’ in Marta Travares Almeida (ed.), Quality of Legislation (2011, Nomos, Baden-Baden), 75-85.
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3 Ibid., 85.
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4 Mousmouti, ‘Introduction to the Symposium on Effective Law and Regulation’ 387.
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5 Ibid.
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6 Email from Eselealofa Apinelu, Attorney General of Tuvalu to author (16 June 2019).
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7 Attorney General’s Office, Guide for Drafting Legislation (2007).
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8 Ibid.
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9 Ibid.
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10 Maria Mousmouti, ‘The “Effectiveness Test” as a Tool for Law Reform’ (2014) 2 Is.1 IALS Student Law Review 4.
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11 Ibid.
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12 Maria Mousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ (2012) 6 Is.2 Legisprudence 201.
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13 Mauro Zamboni, ‘Legislative Policy and Effectiveness: A (Small) Contribution from Legal Theory’ (2018) 9 Is.3 European Journal of Risk Regulation 416-430.
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14 Ibid.
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15 Mousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ 201.
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16 Ibid.
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17 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept: Unfolding the Effectiveness Test as a Concept Tool for Lawmaking’ (2018) 9 Iss.3 European Journal of Risk Regulation 452.
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18 Ekins, Richard,The Intention of Parliament (2010). Public Law, 709-726, 2010, Available at SSRN: https://ssrn.com/abstract=2617074.
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19 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 453.
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20 Ibid.
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21 Ibid.
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22 Ibid.
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23 Ibid., 455.
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24 Julia Black, ‘Critical Reflections on Regulation’ (2002) 27 Australia Journal of Legal Philosophy 3.
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25 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 455.
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26 Ibid.
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27 Ibid.
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28 Ibid.
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29 Ibid., 464.
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30 Non-discrimination legislation: Race Relations Act 1965, Race Relations (Amendment) Act 1968, Race Relations (Amendment) Act 2000, Race Relations Act 1976 (Amendment) Regulations 2003; Equal Pay Act 1970; Sex Discrimination Act 1975; Disability Discrimination Act 1995; Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations 2003; Employment Equality (Age) Regulations 2006; Equality Act 2006.
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31 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 460.
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32 Ibid.
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33 Ibid.
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34 Eugene Bardach, The Implementation Game: What Happens after a Bill Becomes a Law (MIT Press 1977).
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35 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 458.
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36 Ibid.
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37 The loi constitutionelle 23 Juillet 2008, Art. 24 established that: ‘Le Parlement vote les lois, controle 1’action du Gouvernement et évalue les politiques publiques’.
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38 Ibid.
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39 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 459.
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40 Ibid.
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41 Te Kakeega III – Tuvalu National Strategy for Sustainable Development 2016-2020; Te Kaniva: Tuvalu National Climate Change Policy 2017–2020; Sustainable and Integrated Water and Sanitation Policy 2012–2021; Student Education Loan Fund Scheme 2015.
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42 Climate Change Resilience Act 2019.
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43 United Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992; The Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted in Kyoto on 11 December 1997; The Doha Amendment to the Kyoto Protocol, adopted in Doha on 8 December 2012; The Paris Agreement, adopted in Paris on 12 December 2015.
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44 Climate Change Resilience Act 2019 (Explanatory Notes) 1.
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45 Ibid.
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46 Ibid.
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47 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 453.
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48 Climate Change Resilience Act 2019.
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49 Ibid.
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50 Ibid.
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51 Ibid.
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52 Ibid.
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53 Section 9(1) “For the purposes of this Act and subject to this section, the emissions reduction targets for Tuvalu are as prescribed by regulations and in line with its nationally determined contributions made pursuant to the Paris Agreement and (2) The Minister may amend or renew, by regulations, the emissions reduction targets if, in the opinion of the Minister, exceptional circumstances apply and as may be required in accordance with Article 4 of the Paris Agreement.”
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54 Jill Rutter & William Knighton, ‘Legislated Policy Targets: Commitment Device, Political Gesture or Constitutional Outrage’ (2012) Institute for Government 4.
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55 Ibid., 6.
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56 Ibid.
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57 Climate Change Act 2008 (UK).
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58 Rutter & Knighton, ‘Legislated Policy Targets’ 9.
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59 Climate Change (State Action) Act 2008 (Tasmania).
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60 Ibid.
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61 Ibid.
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62 Florentin Blanc, ‘Tools for Effective Regulation: Is “More” Always “Better”?’ (2018) 9 European Journal of Risk Regulation 465.
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63 Climate Change (State Action) Act 2008 (Tasmania).
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64 Ibid.
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65 Climate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory).
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66 Ibid.
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67 Ibid.
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68 Ibid.
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69 Ibid.
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70 Ibid.
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71 Climate Change Act 2008 (UK).
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72 Ibid.
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73 Rutter & Knighton, ‘Legislated Policy Targets’ 9.
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74 Ibid.
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75 Organization for Economic Co-operation and Development (OECD), ‘Introductory Handbook for Undertaking Regulatory Impact Analysis (RIA)’ (2008) 4.
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76 Climate Change Resilience Act 2019 s6.
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77 Maria De Benedetto, ‘Effective Law from a Regulatory and Administrative Law Perspective’ (2018) 9 European Journal of Risk Regulation 408.
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78 Blanc, ‘Tools for Effective Regulation’ 465.
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79 Maria Mousmouti, ‘Basic Concepts of Legislative Design’ Institute of Advanced Legal Studies, University of London (Lecture).
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80 Climate Change Resilience Act 2019.
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81 Ibid.
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82 Ibid.
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83 Ibid.
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84 Ibid.
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85 Ibid.
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86 Ibid.
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87 Ibid.
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88 Ibid.
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89 Ibid.
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90 Ibid.
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91 Government of Tuvalu, ‘Nationally Determined Contributions’ 2015.
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92 Ibid.
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93 Climate Change Resilience Act 2019.
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94 Climate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory).
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95 Ibid.
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96 Rutter & Knighton, ‘Legislated Policy Targets’ 6.
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97 H. Xanthaki (Ed.), Thornton’s Legislative Drafting (5th ed., Bloomsbury Professional Ltd 2013) 163.
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98 Climate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory).
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99 Ibid.
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100 Tasmanian Climate Change Office: Department of Premier and Cabinet, ‘Amending the Climate Change (State Action) Act 2008’ 2018 Discussion Paper 3.
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101 Climate Change (State Action) Act 2008 (Tasmania).
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102 Climate Change Resilience Act 2019 (Tuvalu).
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103 Climate Change and Greenhouse Gas Reduction Act 2010 (Australian Capital Territory).
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104 Climate Change (State Action) Act 2008 (Tasmania).
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105 Ibid.
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106 Government of Tuvalu, ‘Intended Nationally Determined Contributions’ 2015.
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107 Ibid.
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108 Climate Change Resilience Act 2019 (Tuvalu).
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109 Climate Change (State Action) Act 2008 (Tasmania).
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110 Climate Change Response (Zero Carbon) Amendment Bill (New Zealand), Explanatory Note. Available at: www.legislation.govt.nz.
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111 Ibid.
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112 Ibid.
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113 Ibid.
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114 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 463.
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115 Ibid., 459-460.
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116 Climate Change Resilience Act 2019.
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117 Maritime Zones Act 2012.
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118 Seabed Minerals Act 2014.
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119 Climate Change Resilience Act 2019.
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120 Environment Protection Act 2008 (Tuvalu).
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121 Seabed Minerals Act 2014 (Tuvalu).
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122 Tasmanian Climate Change (State Action) Act 2008.
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123 Climate Change Response (Zero Carbon) Amendment Bill (New Zealand), Explanatory Note. Available at: www.legislation.govt.nz.
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124 Climate Change Act 2008 (UK).
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125 Climate Change and Greenhouse Gas Reduction Act 2010.
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126 Mousmouti, ‘Making Legislative Effectiveness an Operational Concept’ 463.
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127 Maria Mousmouti, ‘The “Effectiveness Test” as a Measure of Legislative Quality: Equality in Law, Inequality in Practice, and Quality in Legislation’ (PhD thesis, University of London 2013) 236.
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128 Ibid.
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129 Tasmanian Climate Change Office: Department of Premier and Cabinet, ‘Amending the Climate Change (State Action) Act 2008’, 2018 Discussion Paper 4.
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130 H. Xanthaki, Drafting Legislation: Art and Technology of Rules for Regulation (Hart 2014) 61.
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131 Mousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ 205.
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132 R. Baldwin, M. Cave, & M. Lodge, Understanding Regulation: Theory, Strategy, and Practice (2nd ed., Oxford University Press 2012).
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133 Helen Xanthaki, ‘Legislative Drafting: A New Sub-discipline of Law Is Born’ (2013) 1 Is.1 IALS Student Law Review 442.
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134 Mousmouti, ‘Operationalising Quality of Legislation through the Effectiveness Test’ 205.