Transparency and Rule-Making in Australia

Margaret Allars

Résumé

[Extract] 

The absence at common law of an obligation of rule-makers to consult before making rules, or even to publish the rules, leaves any attempt to secure transparency in rule-making in Australia to statutory intervention. Statute has traditionally played an important but limited part.

In Australia formal statutory requirements for the making of delegated legislation have followed the Westminster tradition. When rules of a legislative character, or delegated legislation, are made, they must be notified in the government gazette, scrutinised by a parliamentary committee, tabled in parliament with the potential for disallowance, and published in a formal manner. These requirements are set out in federal, State and Territory interpretation statutes. They achieve only a basic degree of transparency.

The interpretation statutes have not traditionally provided for public notification in advance of the making of a proposed rule, or consultation with individuals or groups whose interests it affects. Requirements for consultation have featured in particular statutes, typically those regulating planning or the environment, but there was no general statutory requirement for consultation in rule-making, such as the notice and comment requirements in the United States.

This paper traces the genesis of general statutory requirements in Australia for notice and consultation in rule-making, occurring at the State level, with a view to understanding the current federal general provision relating to notice and consultation. Attention will be given to the link, if any, between general requirements for notice and consultation, and requirements for regulatory impact assessment, whether statutory or informal. In the background is the consideration that the omission of a genuine consultation component in rule making processes may impair not only the democratic good of participation in government decision-making but also the effectiveness of regulatory impact assessment. 

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