From Rules as Code to Legal and Regulatory Coding Strategies

tags
CRCL 2022

Notes

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Rules as Code is an amorphous heuristic that captures a growing commercial and governmental focus on the conversion of legislation and regulation into machine executable code.

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they assume that the complex linguistic construction of statutes can be read from a plain reading perspective to produce code that is isomorphic in nature.

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The Act is largely principles-based

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complex combination of both prescriptive rules and discretionary clauses

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DDO Act and RG 274 were coded using the Defeasible Deontic Logic (‘DDL’) language, Turnip

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TMD requirements appear facially prescriptive and should therefore be easier to encode. However, key obligations such as appropriateness requirements are based on the principle and outcome-based approach encouraged by the Murray Inquiry

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the project involved encoding all the DDO Act. The utility of that exercise is questioned below

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the assignment of deontic modalities, which is an essential component of DDL-based coding, also proved to be problematic

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The definition of ‘target market’ is defined in the Definitions section of the Act, s994A, but the Act’s definition merely provides a circular reference back to s994B(5)(b)

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would involve placing statutory permissions on the product intervention order itself. This gives rise to significant interpretive challenges. For example, if s1023N is breached, it would not be possible to seek remediation from or take punitive measures against a PIO.

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the solution is not truly representative of a plain reading of the text. An interpretive assumption is required

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s1023N was coded as granting permissions to an author of a PIO rather than ASIC itself

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starting point was not the Act itself, but RG 274, the guidance used to supplement ASIC’s understanding of how the DDO Act could apply

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coherentist mind-set emphasises the internal consistency, coherence and stability of the law

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regulatory-instrumental mind-set emphasises the instrumental efficacy of rules for achieving their policy purposes

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technocratic mind-set that emphasises the use of technological solutions to achieve regulatory purposes

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The initial DDO Act code was produced from the basis of ‘what the law is’ whereas the defined benefit from a business use case regarded the question of ‘what does the law mean?’

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