Deliberative Processes for Administrative Regulations: Unenforceable Public Consultation Provisions and the Courts

Public Law Review, Vol. 27, No. 1, pp. 18-36, 2016

Sydney Law School Research Paper No. 16/20

24 Pages Posted: 8 Mar 2016

See all articles by Andrew Edgar

Andrew Edgar

The University of Sydney Law School

Date Written: March 7, 2016

Abstract

Delegated legislation is subject to parliamentary scrutiny processes and judicial review in order to mitigate concerns that it lacks constitutional legitimacy. This article examines how unenforceable public consultation provisions relate to these checks and safeguards. I argue that public consultation should be regarded as a necessary addition to these supervisory mechanisms and that it should also be judicially enforceable. There are however institutional and historical reasons for thinking that enforceable public consultation provisions are not likely to be introduced at the Commonwealth level. Accordingly, I argue that the courts could develop the principle of legality and unreasonableness review in ways that would encourage transparency and public participation in rule-making processes. These issues are examined with reference to the discretionary public consultation provisions in the Legislative Instruments Act 2003 (Cth).

Keywords: Administrative law, delegated legislation, regulations, public participation, deliberation, judicial review

JEL Classification: K10, K23, K30

Suggested Citation

Edgar, Andrew, Deliberative Processes for Administrative Regulations: Unenforceable Public Consultation Provisions and the Courts (March 7, 2016). Public Law Review, Vol. 27, No. 1, pp. 18-36, 2016, Sydney Law School Research Paper No. 16/20, Available at SSRN: https://ssrn.com/abstract=2744361

Andrew Edgar (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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