Data as at 12 Dec 2022
A key function of law is to regulate behaviour: to impose obligations on people and consequences for breaching such obligations. These obligations may be to do something or not to do something, and they may affect any number of people, including citizens, businesses, and government officials. This page demonstrates how as made and in force Commonwealth Acts can be analysed to explore the number and growth of obligations, offences, and civil penalties in the statute book. The page prompts questions such as:
- Why are the number of obligations, offences, and civil penalties growing so rapidly, and why have particular periods seen notably rapid growth?
- Why do some areas of Commonwealth lawmaking include so many obligations, offences, and civil penalties?
Provisions containing obligations, as well as the consequences that flow from breaching them, may be unnecessarily complex if they are unduly long, structured inappropriately, duplicative, or overly intricate. The challenge of managing the complexity of obligations and penalties is immense in the modern statute book. In total, there are approximately 126,550 instances where a provision requires that something must or must not be done. Figure 1 shows the number of obligations by the subject matter of the Act in which they appear. The Figure shows the top ten areas of Commonwealth law in which obligations appear. These areas account for 70% of all obligations in Commonwealth Acts.
Figure 1: Subject matter of in force Acts in which obligations appear
Figure 2 shows that significant numbers of new obligations are constantly being added to the statute book, even as existing obligations may be repealed or amended.
Figure 2: Number of obligations in as made Acts per year
Offences are also an important part of the Commonwealth statute book. There are 6,662 references to ‘commits an offence’ or ‘guilty of an offence’ across Commonwealth Acts today, and a total of 37,805 appearances of the word ‘offence’ in these Acts. These phrases are commonly used to create offences. Figure 3 shows the number of times each of these phrases appears in currently in force Commonwealth Acts, analysed by the subject matter of the legislation. These ten areas account for approximately 79% of all offences identified in the data.
Figure 3: Subject matter of in force Acts in which offences appear
The Parliament is frequently adding offences and other penalties to the statute book. Figure 4 shows the approximate number of offences in new Commonwealth Acts since 1901. These search terms do not capture all offences, many of which are simply indicated by the presence of a penalty and no reference to an ‘offence’. Similarly, not all references to ‘commits an offence’ will necessarily create an offence. A provision might say that a person who ‘commits an offence’ may be banned from certain activities, for example. However, the search terms offer a reasonable sense of the growth of offences in Commonwealth Acts, and the general trends are confirmed in Figure 5.
Figure 4: Potential offence provisions in as made Commonwealth Acts (1901–2021)
The picture presented by Figure 4 above is reflected more broadly in increasing references to offences in Commonwealth Acts. Figure 5 shows the number of references to ‘offence’ in Commonwealth Acts since 1901. The peak in 2001 came with the enactment of major corporations and financial services reforms, including the Financial Services Reform Act 2001 and the Corporations Act 2001, and reforms relating to the application of the Commonwealth Criminal Code.
Figure 5: Offence-related language in as made Commonwealth Acts (1901–2021)
Civil penalties have emerged since 1992 as an additional mechanism for penalising breaches of statutory obligations. There are now more than 1,661 civil penalty provisions in Commonwealth Acts and over 9,103 references to civil penalties across these Acts. Figure 6 shows the number of references to ’civil penal*’ in Acts by the subject matter of the legislation in which they appear. The Figure is limited to the top ten areas in which such references appear. These account for 83% of all references.
Figure 6: Top ten areas in which civil penalties-related lanaguage appears
The emergence of civil penalties as a significant regulatory tool is clear in Figure 7, which shows the number of references to ‘civil penal*’ in all as made Commonwealth Acts. The first civil penalty provisions appeared in 1992 in the Corporate Law Reform Act 1992, followed in 1993 by the Superannuation Industry (Supervision) Act 1993.
Figure 7: Civil penalties-related language in as made Commonwealth Acts (1992–2021)
The more targeted data presented in Figure 8, covering only references to ‘civil penalty:’, provides a picture of the increasing number of civil penalties in Commonwealth Acts. This search term is generally used to create a civil penalty, including under the Regulatory Powers (Standard Provisions) Act 2014. However, civil penalties are not always created in this way, and the data in the Figure provides a very conservative estimate of the number of civil penalties. For example, civil penalties in the Corporations Act 2001 are not created by using ‘civil penalty:’ and instead are listed in a section. This design is shared by some other Acts.
Figure 8: Civil penalties in as made Commonwealth Acts (1992–2021)
