Transparency and Rule-Making
in Australia
by Margaret ALLARS, Professor, Faculty of
Law, Universiy of Sydney (Australia).
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.[1]
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.
In 1984
Victoria was the first of the Australian States to introduce statutory
requirements to prepare and notify regulatory impact statements when making
rules, and to consult with interest groups when the rules are made.[2]
This was accompanied by sun-setting provisions that trigger regular review of
rules in accordance with this process. The Victorian reform followed a report
that expressly accepted that consultation by government with the public in
relation to policies or decisions that affect the public generally or
particular localities or groups, is a desirable goal in a democratic system,
enhancing participation by individuals in government decision-making and
effective public administration.[3] Interest
groups were acknowledged to play a vital role in facilitating consultation.[4] Processes
should be put in place to enable public interest groups to enjoy consultation
in rule-making to the same degree as is informally provided to business and
trade union groups.[5]
Specific
recommendations of the Committee, confirming and refining the provisions of the
bill under review, were that notice be given of a proposed rule not just in the
government gazette and a daily newsletter, as provided for in the bill, but
also where appropriate in a trade, professional, business and/or public
interest journal, newsletter or circular.[6] Copies
of the regulatory impact statement (RIS) for the rule should be made available
on request, with any copying fee being reasonable.[7] Public
comments and submissions should be invited, not necessarily within 21 days as
provided for in the bill, but within not less than 21 days.[8] The
bill’s proposal that submissions received be considered by the rule-maker was
considered to be appropriate.[9]
The
Committee’s views were heavily influenced by its examination of notice and
comment rule making procedures in the United States and Canada.[10] In
connection with the argument for deregulation in Australia, the Committee
considered that the introduction of rule-making requirements such as an RIS
procedure was directed to ensuring that rules are in accordance with community
needs.[11]
In its report
the Committee’s examination of consultation[12] followed
its consideration of deregulation, without an indication as to what may be the
link between the two. The rationale for an RIS procedure was said to be
enhancing decision–making by ensuring all possible information is available to
the rule-maker.[13]
The Committee
made an assumption that consultation with regard to an RIS would enable more
information from interested groups with expertise in particular areas, so that
competing economic, social and moral claims would be more adequately
represented and evaluated. This should result in the making of rules that
benefit the community to the optimum degree possible, rather than benefiting
sectional interests, to the detriment of the whole community.[14]
Indeed the Committee assumed that an RIS procedure “accords with the principles
of openness as embodied for example, in freedom of information legislation”,[15]
and enables interest groups to influence the rule-making process in a
transparent manner.[16]
The Committee did not consider the possibility that an RIS procedure could be
disconnected from consultation, or not include consultation with regard to the
RIS itself.
Amendments were made to the bill, to implement the Committee’s
recommendations. Following the enactment of the bill in 1984, and replacement
legislation in 1994, the RIS, public notice and consultation provisions
continue to be core requirements in the Subordinate
Legislation Act 1994 (Vic) (Vic SL Act).[17]
Another important element of the Vic SL Act is sunsetting
of statutory rules after 10 years, with exceptions and room for postponements.[18]
This ensures that a fresh procedure of RIS, public notice and consultation is
triggered regularly.
In 1989 New
South Wales (NSW) followed Victoria.[19]
Tasmania followed in 1992[20] and
Queensland in 1994.[21]
In 2001 the Australian Capital Territory (ACT) introduced a statutory RIS
requirement, without provision for notifying the public of a proposed rule or
for consultation.[22]
The NSW scheme is selected for analysis and comparison with the federal
position, which is described later. In NSW, as in Victoria, an RIS procedure is
combined with notice and consultation requirements.
The
introduction in NSW of general provisions for RIS, notice and consultation, in
the Subordinate Legislation Act 1989
(NSW) (NSW SL Act), was preceded by a recommendation by a parliamentary select
committee charged with reporting on the reduction of red tape for small
business.[23]
The committee recommended that the NSW parliamentary committee with the function
of scrutinising delegated legislation should take
into account whether a proposed rule had an impact upon small business. It also
proposed a staged repeal of delegated legislation, with remaking only of those
rules considered essential after detailed evaluation and public consultation.[24]
The Regulation
Review Act 1987 (NSW) (re-named in the Legislation Review Act 1987 (NSW)) which
followed included, as one of the criteria to be applied by the parliamentary
scrutiny committee, the question whether the rule may have an adverse impact on
the business community.[25]
The parliamentary scrutiny committee was named the Regulation Review Committee,
but in 2002 was renamed the Legislation Review Committee, when it acquired an
additional function of scrutinising bills.[26]
Two years
later the Subordinate Legislation Act
1989 (NSW) (NSW SL Act) was enacted, introducing an RIS procedure, notice and
consultation requirements similar to those operating in Victoria. This step was
preceded by a report of the Regulation Review Committee recommending the
introduction of legislation similar to the Vic SL Act.[27]
The report considered deregulation measures in several other countries,
referring in particular to the Reagan Administration’s establishment of the
Office of Management and Budget, the issue of the 1981 Executive Order and
later Regulatory Policy Guidelines.[28]
The Committee did not doubt the desirability of including a consultation
requirement akin to that in Victoria, stating its approach shortly:
“[...] the preparation of an RIS is not just an
opportunity for government to reappraise Government options. One of their main
purposes is to inform the public of the various options under consideration and
of the anticipated impacts of each option so that affected members of the
community can participate in government decision-making with a view to
identifying the most efficient and equitable outcomes.”[29]
The two NSW
Acts work together, with the NSW SL Act providing for the RIS and the written
submissions received in response to notice of a proposed statutory rule, to be
forwarded to the Legislation Review Committee for scrutiny.[30]
Thus, while the RIS requirement was not decoupled from a procedure for public
notice and consultation, deregulation rather than consultation was the animating
objective for these two statutes.
Before a
statutory rule is made, the responsible Minister must, as far as is reasonably
practicable, comply with the guidelines in Schedule 1 to the NSW SL Act.[31]
This imposes an onerous list of decision-making requirements, including
cost-benefit analysis.[32]
Before any principal statutory rule is made, the responsible Minister must as
far as is practicable prepare an RIS complying with Schedule 2.[33]
The principal statutory rules are those with some substantive effect, as
distinct from statutory rules that are simply direct amendments or repeals, or
deal with citation and commencement, or are of a savings or transitional
nature.[34]
However there are significant exceptions to the requirement that the
responsible Minister comply with the RIS, public notification and consultation
procedures.[35]
Where an exception operates, it applies to all three elements: the RIS, the
public notification and the consultation. In NSW sunsetting,
with exceptions and room for postponements, applies after five years,
triggering a fresh process of review of the statutory rule.[36]
The RIS is to
state the objectives sought to be achieved by the proposed rule; the
alternative options by which those objectives can be achieved; assessment of
the costs and benefits of the rule; assessment of the costs and benefits of
each alternative option to the making of the rule, including the option of not
proceeding with any action; and assessment as to which of the alternative
options involves the greatest net benefit or the least net cost to the
community.[37]
The RIS should also describe the consultation program to be undertaken.[38]
The RIS requirement thus contemplates and supports the consultation process,
providing a plan for eliciting comments from the public and offering a
justification for the proposed rule to which the comments may be directed.
The consultation required by the NSW SL Act is described in clear terms.
A notice is to be published in the government gazette, in a daily newsletter
circulating throughout NSW, and where appropriate in any relevant trade,
professional, business or public interest journal or publication. The notice is
to advise that it is proposed to make a statutory rule, that the RIS is
available and how it may be obtained or inspected, and invite submissions
within a specified time, but not less than 21 days from publication of the
notice.[39]
The persons to be consulted are “appropriate representatives of consumers, the
public, relevant interest groups, and any sectors of industry or commerce,
likely to be affected by the proposed statutory rule”.[40]
The nature and
extent of the publicity for the proposed rule and the consultation, is to be
commensurate with the impact likely to arise for consumers, the public,
relevant interest groups and any sector of industry or commerce, from the
making of the statutory rule.[41]
Thus, while the NSW SL Act expressly requires that an opportunity be given to
make submissions, whether an oral hearing is provided is a matter for
discretionary judgment on the part of the responsible Minister, in light of the
likely impact of the rule. While there is no requirement to give an oral
hearing. That does not prevent a department or agency that prepares a proposed
rule from voluntarily consulting with known stakeholders or arranging for
public meetings to information sessions.
All the
comments and submissions received are to be appropriately considered.[42]
Once the rule has been made, and the process of receiving written submissions
is completed, the RIS and written submissions are sent to the Legislation
Review Committee.[43] The criteria to be applied by the
Legislation Review Committee are set out in the NSW LR Act. One of the criteria
is whether the responsible Minister appears not to have complied with the RIS, public
notice and consultation procedures.[44]
The Committee makes a report to both Houses of the NSW Parliament in which it
may recommend disallowance of a rule on the ground of non-compliance with these
procedures.[45]
The duties to
engage in cost benefit analysis, prepare an RIS, give notice, and consult, are
expressed to apply “so far as is reasonably practicable”.[46]
In addition the NSW SL Act expressly provides that non-compliance with the
procedures does not render a statutory rule invalid.[47]
In the absence of these “no invalidity” provisions, a statutory procedure for
advertising a proposal to invite submissions, or a procedure requiring the
consideration of submissions, could be expected to be “enforced” via
administrative law. A court in judicial review would be likely to find that, on
the proper construction of the relevant statute, the legislative intention was
that non-compliance with the statutory procedure is to result in invalidity of
the rule.[48]
However the intention of the NSW SL Act is expressly stated. Non-compliance
with the requirements for cost benefit analysis, preparation of an RIS, and
consultation, does not render the statutory rule invalid. Accountability may be
sought via a different branch of government, by one of the Houses of Parliament
disallowing the rule on the recommendation of the Committee, on account of
non-compliance with the procedures.
In the early
days of the NSW SL Act, the Regulation Review Committee occasionally referred
in its reports to submissions that the responsible Minister had forwarded to
it. In rare cases, the Committee disclosed in a report that it had met with
representatives of an interest group to discuss a proposed rule. Correspondence
with the Minister responsible for making the rule could be included in the
report, indicating the Committee’s invitation to reconsider aspects of the rule
that the Committee considered infringed a statutory criterion. Ministerial
responses, sometimes in terse language, were also included. This indicates that
in some cases the Committee sought to enliven a process of deliberation with
the rule-maker. However, there is no suggestion that the Committee adopted a
course of requesting a responsible Minister to revisit a public consultation
process or to enhance it by offering an oral hearing to interested persons or
groups.
If the status quo remained as at the time of the Committee’s report,
with a ministerial refusal to amend the proposed rule so as to avoid
infringement of a criterion, no doubt the report was sent to the Houses of
Parliament recommending disallowance. The Committee does not provide a tally of
disallowed rules in its annual reports. It is left to the interested researcher
to assess the Committee’s success rate in having its recommendations followed
by Parliament, by searching Hansard records.
From 2002, when the Committee acquired the additional function of
scrutiny of bills, the emphasis in its work quickly shifted to that new
function. The Committee no longer publishes reports on its review of particular
rules. It provides a digest with summaries of reviews of rules, giving little
information about the kinds of submissions received. Of the statutory criteria
the Committee applies, the most prominent is whether the proposed rule
trespasses unduly on individual rights and liberties.[49]
No suggestion
has been made in any recent report that the Committee has given an oral hearing
to any person or group that made a submission. Recommendations for disallowance
are infrequently made. The Committee continues to give no inkling in its digest
reports as to whether a House of Parliament has disallowed a statutory rule
following its recommendation. In some cases, the digest report records that the
Committee wrote to the responsible Minister expressing its concern about a
proposed statutory rule not meeting one of the statutory criteria. The outcome
of such consultation with the Minister is left uncertain.
Since 2008 the
Better Regulation Office (BRO) within the NSW Department of Premier and Cabinet
has monitored a non-statutory process of submitting a regulatory impact
assessment with a new bill or proposed delegated legislation. The policy
imposes requirements that overlap with those of the NSW SL Act.[50]
It may cover some delegated legislation that is not already subject to the NSW
SL Act.
A Guide to Better Regulation issued by the
Premier in 2008 and later updated, sets out the procedures. It describes when
consultation is advisable and what constitutes effective consultation.[51]
While regulatory impact assessments provided to the BRO must include a
statement about the consultation undertaken, what is required is expressed at
the level of very general advice, with the BRO not adopting a role of
monitoring consultation.[52]
The BRO procedures lack public notification of the regulatory impact assessment
or any specific requirement that consultation is to occur. The policy is an
internal scrutiny mechanism, rather than a process for publication,
consultation and review that promotes transparency.
Federal
regulations are scrutinised by the Senate Standing
Committee on Regulations and Ordinances. The Committee applies a limited number
of criteria, set out in standing orders.[53]
It is a bipartisan committee, with strong expectations that the Senate will
disallow a regulation if the Committee so recommends. The criteria are more
limited than those applied in NSW, and do not include a criterion as to whether
the delegated law-maker has engaged in regulatory impact assessment or provided
adequate consultation.
In 1992 the
Administrative Review Council (ARC) recommended the introduction of a
“legislative instrument proposal”, or RIS requirement, similar to that in
Victoria and NSW, together with consultation procedures, in the making of
federal legislative instruments.[54]
The ARC identified the advantages of an RIS as improvement in the quality of
delegated legislation, or even a decision not to make it, by a process of
potential revision as a result of its exposure to different views of interested
groups.[55] According
to this approach it is consultation that secures a benefit from an RIS
requirement. The ARC rejected submissions made to it by some agencies that
informal consultation suffices. The absence of a statutory requirement for
consultation raises the risk of exclusion of legitimate points of view.[56]
During the
1990s several bills to implement the measures recommended by the ARC lapsed
without enactment.[57] Finally, in 2003 the Legislative Instruments Act 2003 (Cth)
(LI Act) was enacted. Its most important reform was the establishment of
a Federal Register of Legislative Instruments (Register), modelled
on the United States Register of similar name.[58]
The LI Act was directed to ensuring transparency of legislative instruments in
the sense that they were readily accessible by electronic means in one
location.[59]
Existing instruments were to be “backcaptured” over
specified periods so that all instruments were ultimately entered on the
Register. This strengthened the existing traditional provisions for
notification and publication after instruments are made, enhancing transparency
by ensuring that rules are accessible.
The LI Act
added an additional mechanism that strengthened this ex post facto
notification. Not only the instrument but also an explanatory statement for it
was to be placed on the Register.[60] While
there are exceptions, these statements are notoriously uninformative, being
paraphrases of the clauses in the instrument. As is developed below, one
feature of the requirements for explanatory statements had particular
significance.
Several other reforms achieved by the LI Act have secondary significance
for transparency. It introduced
a uniform nomenclature for federal delegated legislation: “the legislative
instrument”.[61]
Measures were put in place to improve the drafting of all legislative
instruments.[62]
However the LI
Act did not implement the ARC’s recommendation for the introduction of an RIS.[63]
While the LI Act introduced sunsetting after 10 years
for legislative instruments,[64] the significance of sunsetting
is diminished when the re-making of the instrument is not accompanied by an RIS
or a real consultation procedure.
The ARC’s
recommendation that delegated law-makers have a duty to consult with interest
groups before making instruments was heavily diluted in the LI Act. Under the
grand heading “Part 3 – Consultation Before Making Legislative Instruments”
were just three sections: 17, 18 and 19. These sections did not deserve the
description “consultation”.
Section 17(1)
provided that before a rule-maker makes a legislative instrument, “particularly
where the proposed instrument is likely to: (a) have a direct, or substantial
indirect, effect on business; or (b) restrict competition”, the rule-maker
“must be satisfied that any consultation that is considered by the rule-maker
to be appropriate and reasonably practicable to undertake, has been
undertaken”. This section did not impose a duty to consult. It emphasised that if consultation occurred, its extent was a
matter of discretion. The foundation for the discretion as to the extent of
consultation that was “appropriate” was an apparently unfettered discretion of
the rule-maker to decide whether to consult at all.
Section 17(2)
was a curious provision, inviting the rule–maker to look back on the decision,
already made and implemented, regarding the nature of any consultation, and
assess whether “the consultation that was undertaken is appropriate”. In
answering that question, the rule-maker was expressly given a discretion to
“have regard to any relevant matter”.
This included
the extent to which the consultation drew on the knowledge of persons having
expertise in fields relevant to the proposed instrument, and ensured that
persons likely to be affected by the proposed instrument had an adequate
opportunity to comment on its proposed content.[65]
Section 17 did not disclose any particular purpose of this ex post facto
reflection on the part of the rule-maker.
At the end of
s 17 there appeared a note that the explanatory statement to be placed on the
Register is to contain a description of the consultation undertaken, or, if
there was no consultation, the explanation for its absence. This duty flowed,
mysteriously, from the definition of “explanatory statement” in s 4 of the LI
Act.[66]
Consultation is of little value if the person consulted is not notified
of the content of the proposed instrument. No provision was made in the LI Act for the proposed instrument to be
notified to the public. Section 17(3) expressly gave the rule-maker a
discretion as to whether the proposed rule was notified to bodies or
representatives of persons likely to be affected by it, by providing that
consultation “could involve notification, either directly or by advertisement”.
Section 17(3) expressly provided that this reference to the possibility of
advance public notification was not to limit by implication the form of any
consultation which the rule-maker engaged in under s 17(1) (as a matter of
discretion). That advance public notification and the content of any
notification was entirely a matter for the discretion of the rule-maker, was
given further emphasis. Section 17(3) went on to provide that any such
notification, if it was done, “could invite submissions” by a specified date,
“or might invite” participation in “public hearings”.
These references to consultation suggested that it was a path to be trod
tentatively, only where necessary, and without offering too much. Section 17
sent a message of discouragement to rule-makers with regard to consulting. As
if this were not sufficient, s 18(1) provided that despite s 17, the nature of
an instrument may be such that “consultation might be unnecessary or
inappropriate”.
There followed
in s 18(2) a list of seven classes of instruments that were “examples” of those
where the rule-maker may be satisfied that consultation is not necessary or
appropriate. These included instruments of a minor or machinery nature; or
required as a matter of urgency; or required by an issue of national security;
or relating to service in the Australian Defence
Force.[67]
Two further classes were extremely broad. The first was any instrument relating
to employment.[68]
The second was an instrument that gives effect to a decision announced in the
federal Budget that (i) repeals, imposes or adjusts a
tax, fee or charge; (b) confers, revokes or alters an entitlement; or (c)
imposes, revokes or alters an entitlement.[69]
Finally,
making it absolutely clear that transparency was not necessary, s 19 of the LI
Act provided that if the rule-maker failed to consult, that failure to consult
did not affect the validity or enforceability of an instrument.
On 6 March
2016 the Acts and Instruments (Framework
Reform) Act 2015 (Cth) (Framework Act) commenced.
The LI Act was re-named the Legislation Act 2003 (Cth) (Legislation Act). The principal work of the
amendments was to extend the Register to include Acts as well as instruments,
re-naming it the Federal Register of Legislation. As to notification and
consultation with respect to rule-making, little changed.
Section 17(1)
is amended to remove the reference to giving particular attention to whether
consultation is appropriate and reasonably practicable to undertake, where the
proposed instrument will have a direct, or substantial indirect, effect on
business, or restrict competition. Section 17(1) is now expressed in more
general terms, but still invites the rule-maker to reach a state of
satisfaction as to whether it is “appropriate and … reasonably practicable” to
consult. The amendment to s 17(1) removes the suggestion that rule-makers might
at least take a closer look at the possibility of consultation where the
proposed instrument affects business or competition.
The note at
the end of s 17 is amended to refer to s 15J(2), which is now the source of the
duty to include in an explanatory statement accompanying an instrument the
consultation undertaken.
Section 18 is
repealed. This removes the added emphasis given to the absence of any duty to
consult when certain classes of rules are made. It is of course true that there
is no need to create exceptions when no duty to consult has been imposed.
Section 19
remains in place. This provision is in similar terms to the provision in the
NSW SL Act that non-compliance with the RIS, public notification and
consultation procedure does not invalidate a statutory rule. As discussed
above, the approach here is that accountability in cases of non-compliance is
to be secured through the legislative process. The requirements are not
enforceable duties that may be supervised in judicial review. Whether it would
be preferable ensure that a statutory requirement to consult is an enforceable
duty is not explored here. The principal point to be made about s 19 is that
the section is not necessary. Section 17 does not speak of any requirement at
all but emphasises that a discretion exists.
The heading to
Part 2 is removed. Sections 17 and 19 now belong to “Part 2 – Key Concepts for
Legislative Instruments and Notifiable Instruments”.[70]
The new heading, replacing the word “Consultation” with “Key Concepts” reflects
more accurately the true position. Sections 17 and 19, in their original and
current forms, do not promote consultation.
The current
position as to general statutory duties to consult before making federal
legislative instruments can be simply stated. There is no statutory requirement
to prepare an RIS, or to notify the public that a proposed instrument is
available for inspection. If consultation was undertaken under s 17 of the
Legislation Act before the instrument was made, in the exercise of discretion,
the explanatory statement for the instrument must contain a description of the
nature of the consultation. If no consultation was undertaken, the statement
must explain why no such consultation was undertaken.[71]
There is no
distinct criterion relating to the matter of consultation to be applied by the
Senate Standing Committee on Regulations and Ordinances. There is thus no
statutory requirement to consult nor, as it must follow, any accountability though
the relevant scrutiny committee. The requirement to explain a failure to
consult in the explanatory statement is in the nature of a duty to give reasons
and has no further implication. The federal position stands in stark contrast
to that in NSW. The public notification and RIS requirements that make
consultation effective are not simply divorced from consultation. Rule-makers
are implicitly reassured that consultation is optional and need not be pursued.
As in NSW, the
federal legislative process now incorporates a non-statutory process of
regulatory impact assessment. The federal Office of Best Practice Regulation
(OBPR), a division of the Department of Finance and Deregulation, has
administered a non-statutory requirement for regulatory impact assessment. Its
work is driven by the policy of the Council of Australian Governments (COAG) on
best practice regulatory impact analysis in the preparation of national
regulatory proposals or national standards. Since the federal government’s
announcement in 2014 of a “cutting red-tape” policy, the OBPR has been located
within the Department of Prime Minister and Cabinet.
A guide issued
by the OBPR requires that regulation with a significant impact be accompanied
by an RIS, but simply gives advice as to the different levels of consultation
that might be appropriate.[72]
This policy based process does not provide for advance public notification of a
proposed instrument, or for consultation with interested persons or groups,
with an opportunity for comment. It is not directed to securing transparency.
The
Trans-Pacific Partnership (TPP) is a trade agreement amongst twelve Pacific rim
countries, including the United States and Australia, signed on 4 February
2016, after seven years of negotiation. It contains measures to lower tariffs,
promote innovation, productivity and competitiveness and establish an
investor-state dispute settlement mechanism.
Chapter 26 –
Transparency and Anti-Corruption in the TPP has not yet attracted attention in
Australia. Australia is already compliant with the requirement in Article
26.2(5) to promptly publish a federal regulation of general application that
affects the matters with which the TPP is concerned, together with an
explanation of its purpose and rationale. This is covered by the Federal
Register and the requirements under the Legislation Act to publish explanatory
statements for legislative instruments and bills. The TPP only requires such
publication in the case of regulatory measures in the areas covered in the TPP.
The TPP speaks
of measures, not just in a law or regulation, but also in a procedure or
administrative ruling of general application with respect to a matter covered
by the TPP. It is possible that some federal regulatory measures affecting
these areas may be introduced through policy. Administrative rulings by
regulatory agencies are not published on the Federal Register. The extent to
which such rulings would otherwise be published may depend on whether they are
adjudicative decisions or policies that are required to be published by the Freedom of Information Act 1982 (Cth).
However,
Article 2.6 requires much more than publication at the end of the day. Article
26.2(2)(a) requires a party to the TPP, to the extent possible, to publish the
regulatory measure in advance. Interested persons and other parties to the TPP
are to be given a reasonable opportunity to comment on the proposed measures.[73] In
the case of a proposed regulation by a party’s central government with respect
to any matter covered by the TPP, that is likely to affect trade or investment
between the parties, each party is to publish the proposed regulation in an
official journal or on an official website, preferably online and consolidated
into a single portal.[74]
The regulation should be published at least 60 days before comments are due,
giving an interested person sufficient time to evaluate the proposed
regulation.
When notified,
the regulation should be accompanied by an explanation of its purpose and
rationale.[75]
There should be a period for receipt and consideration of comments. The party
to the TPP is encouraged to explain any significant modifications made to the
proposed regulation, preferably on an official website or in an online journal.
The political
appetite for the TPP may currently be waning, including within Australia. If it
does become necessary to draft legislation incorporating the requirements of
the TPP into Australian domestic law, the federal reluctance to embrace
statutory RIS and consultation procedures in rule-making might not be
challenged. The federal government could attempt to discharge its obligations
under Article 26.2(2)(a) and 26.2(4) by administrative procedures and policies.
Policies are not binding and do not have the force of law. Footnote 2 to
Article 26.2(4) proposes some methods for discharging the obligation that are
less formal than statutory duties of notice and comment. If a policy based path
were taken, it would be necessary to amend s 17 of the Legislation Act. However,
s 17 does no work in any event, other than to provide implicit reassurance to
rule-makers that they need not consult with the public.
A complex
scene persists in Australia with regard to general statutory requirements for
giving public notice and an opportunity for comment before delegated
legislation is made. A gulf exists between the position in NSW and the other
States where an RIS, public notification and consultation regime has been
adopted, and the general rule-making requirements at the federal level. The
difference is not so stark in relation to non statutory RIS requirements for
submitting proposed delegated legislation to a cabinet office for approval.
The genesis of
the idea of combining public notice and consultation procedures with an RIS
requirement was inspired in Victoria by notice and comment rule-making in the
United States and underpinning theories of participation as a necessary element
of the democratic process. The consultation procedure as it now operates in NSW
does not approach a deliberative process, but does allow affected persons and
interest groups to make their views known before a statutory rule is made. The
federal approach is marked by a reluctance, or even fear, of imposing general
notice and consultation requirements on rule-makers. That may persist,
unaffected by any possible impact of Australia’s obligations under the TPP.
This fractured
picture as to the degree of transparency in the making of rules in Australia is
interwoven with a confusion about the relationship between RIS requirements and
public notice and consultation procedures. In NSW these are integrated and
interdependent, with notice and consultation strengthening the effectiveness of
the RIS in improving the rule made. At the federal level the policy based RIS
requirements are regarded as important and effective, disconnected from any
public notice or consultation other than steps taken voluntarily at the
discretion of the rule-maker. Analysis of the relationship, no doubt with
empirical input and a comparative approach, may make it possible to draw
conclusions as to the role of transparency not only in promoting the democratic
good of participation in government decision-making but also in securing the
effectiveness of regulatory impact assessment.
[1] See, for the common-law position, Re Gosling (1943) 43 SR (NSW) 312 at
318; Bread of New South Wales
Manufacturers v Evans (1981) 180 CLR 404 at 415; Kioa v West (1985) 159 CLR 550 at 584, 620, adopting the position in
the United Kingdom in Bates v Lord Hailsham [1972] 3 All ER 1019 at 1024.
[2] Subordinate Legislation Act 1984 (Vic). This has
now been repealed and replaced by the Subordinate Legislation Act 1994 (Vic).
Parts 2 and 2A of the 1994 Act deal with RISs and consultation.
[3] Victoria, Parliament, Legal and Constitutional Committee, A Report to Parliament on the Subordinate Legislation
(Deregulation) Bill 1983, September 1984, paras
85, 85.1.
[4] Victoria, Parliament, Legal and Constitutional Committee, op. cit., para
88.
[5] Victoria, Parliament, op. cit., paras 89, 89.3.
[6] Victoria, Parliament, op. cit., paras 187.1-188, Recommendation
56.
[7] Victoria, Parliament, op. cit., paras 191-192, Recommendation
58.
[8] Victoria, Parliament, op. cit., paras 193-194, Recommendation
59.
[9] Victoria, Parliament, op. cit., paras 195-196, Recommendation
60.
[10] Victoria, Parliament, op. cit., paras 50-56.5, 86.1-86.9.
[11] Victoria, Parliament,
op. cit., paras
57-65.
[12] Victoria, Parliament, op. cit., paras 66-68.
[13] Victoria, Parliament, op. cit.,
para 79.4.
[14] Victoria, Parliament, op. cit.,
para 79.5.
[15] Victoria, Parliament, op. cit., para 82.1.
[16] Victoria, Parliament, op. cit., paras 82.3, 82.6.
[17] Subordinate
Legislation (Review and Revocation) Act 1984 (Vic), inserting a new Part II into
the Subordinate Legislation Act 1962 (Vic). The later Act was replaced by the
Subordinate Legislation Act 1994 (Vic) (Vic SL Act), in which the provisions
for RIS, notice and consultation were retained: Vic SL Act ss
6, 7, 10, 11, 12I. These provisions extended the requirements to cover
“legislative instruments” as well as “statutory rules”. Additional provision
was made for consultation in accordance with ministerial guidelines: Vic SL Act
ss 6, 12C.
[18] Vic SL Act ss 5, 5A.
[19] Subordinate
Legislation Act 1989 (NSW) (NSW SL Act).
[20] Subordinate
Legislation Act 1992 (Tas) s 5, Sch
2.
[21] The Statutory
Instruments and Legislative Standards Amendment Act 1994 (Qld)
inserted a new Part 5 into the Statutory Instruments Act 1992 (Qld), providing for guidelines for regulatory impact
statements and public notification. Sunsetting was
provided for in Part 7 although this had been introduced earlier, by the
Regulatory Reform Act 1986 (Qld). The current
provisions require an explanatory note accompanying subordinate legislation to
include a regulatory impact statement for significant instruments and a similar
assessment for other instruments, with an explanation of the consultation
program: Legislative Standards Act 1992 (Qld) s 24.
[22] Legislation
Act 2001 (ACT) Part 5.2 9aotnain in particular ss 34,
35). This Act applies to “subordinate laws” and “disallowable instruments”.
Section 32 of this Act provides that Part 5.2 does not affect any requirement
in any other ACT law for publication or consultation about a proposal to make a
subordinate law or disallowable instrument, and that if some other ACT law
imposes publication or consultation requirements of a comparable level, Part
5.2 does not apply. This is a curious provision given that Part 5.2 imposes no
consultation requirement.
[23] New South
Wales Parliament Select Committee of the Legislative Assembly Upon Small
Business, Report No 1, Regulation
and Licensing.
[24] New South
Wales Parliament Select Committee of the Legislative Assembly Upon Small
Business, Report No 1, Regulation
and Licensing.
[25] NSW LR Act s
9(1)(b)(ii).
[26] Amendments
made by the Legislation Review Amendment Act 2002 (NSW).
[27] New South
Wales Parliament Regulation Review Committee, Proposal for the Staged Review of New South Wales
Statutory Rules for Discussion, February 1989.
[28] New South
Wales Parliament Regulation Review Committee, Proposal for the Staged Review of New South Wales
Statutory Rules for Discussion, February 1989, pp 18-22.
[29] New South
Wales Parliament Regulation Review Committee, Proposal for the Staged Review of New South Wales
Statutory Rules for Discussion, February 1989, p 44.
[30] NSW SL Act s
5(4).
[31] NSW SL Act s
4.
[33] NSW SL Act s
5.
[34] NSW SL Act ss 3 (definition of “principal statutory rule”), 4(2).
[35] Limitations
firstly flow from the definition of statutory rule, as set out in note 26
above. The list of exceptions relation to the definition, in Schedule 4 to the
NSW SL Act, includes standing orders of the Houses of Parliament, rules of
court, by-laws of a university and rules made under a variety of specified
statutes. Further limitations flow from the definition of “principal statutory
rule”, as set out in the text accompanying note 28 above. In addition s 6(1)(a)
empowers the Minister to certify that a proposed rule relates to matters set
out in Schedule 3, which lists, inter alia, matters arising under federal,
State or Territory uniform or complementary legislation; matters involving the adoption
of international or Australian standards or codes of practice where assessment
of costs and benefits has already been made; and matters not likely to impose
an appreciable burden, cost or disadvantage on any sector of the public, having
regard to any assessment of those issues by the relevant agency after
application of the guidelines in Schedule 1. The Minister also has power to
issue an excepting certificate where the rule is to be made by a person or body
not expressly subject to the control of the Minister so that it is not
practicable for the Minister to comply (s 6(1)(c)); and to postpone compliance
with s 5 for 4 months on the ground that in the Minister’s opinion the special
circumstances of the case the public interest requires that the rule be made (s
6(1)(b),(2)).
[36] NSW SL Act ss 10, 10A, 11, Sch 5.
[37] NSW SL Act
Schedule 2(1)(a)-(e).
[38] NSW SL Act
Schedule 2(1)(f).
[39] NSW SL Act s
5(2)(a).
[40] NSW SL Act s
5(2)(b).
[41] NSW SL Act s
5(3).
[42] NSW SL Act s
5(2)(c).
[43] NSW SL Act s
5(4).
[44] NSW LR Act s
9(1)(b)(viii).
[45] NSW LR Act s
9(1)(c).
[46] NSW SL Act ss 4(1), 5(1).
[47] NSW SL Act s
9.
[48] The leading case on
this principle, procedural ultra vires, is Project
Blue Sky Inc v Australian Broadcasting Authority
(1998) 194 CLR 355. In cases specifically concerned with statutory duties to
“consider” a matter, or to “have regard to” submissions from the public,
Australian courts have held that the decision-maker must direct an “active
intellectual process” at the matter or submissions: Tickner v Chapman (1995) 57 FCR 451 at 462; Tobacco Institute of Australia Ltd v National Health and Medical
Research Council (1996) 71 FCR 265 at 277.
[49] NSW LR Act s 9(1)(b)(i). For example, the Assisted
Reproductive Technology Regulation 2014 re-made a regulation providing for
the registration of ART providers, disclosure
of information and record keeping in relation to gamete donation, and
maintenance of a central register. The Committee considered whether the
regulation trespassed unduly on individual rights and liberties because of its
impact on the privacy of donors. However, the Committee took into account that
the regulation was not retrospective, so that donors were aware of new regime,
and made no further comment: Legislation Review Committee Legislation Review Digest No 64/55 – 4 November 2014.
[50] As was
acknowledged in New South Wales Government Department of Premier and Cabinet,
Better Regulation Office, Review of NSW
Regulatory Gatekeeping and Impact Assessment Process, Issues
Paper, September 2011, para 1.2.
[51] New South
Wales Government Department of Premier and Cabinet, Better Regulation Office, Guide to Better Regulation, 2008, 2009,
Section 3.
[52] Issues Paper,
Review of NSW Regulatory Gatekeeping and Impact
Assessment Processes (September 2011).
[53] Commonwealth
Parliament, Senate
Standing Orders Order 23(3).
[54] Administrative
Review Council, Rule Making by Commonwealth Agencies,
Report No 35 (1992) Chapter 5.
[55] Administrative
Review Council, Rule Making by Commonwealth Agencies
Report No 35 (1992) paras 5.21, 5.22.
[56] Administrative
Review Council, Rule Making by Commonwealth Agencies
Report No 35 (1992) para 5.28.
[57] Following the
introduction of the Legislative Instruments Bill 1994 (Cth),
two parliamentary committees reported, amendments were made in the Senate, but
the bill lapsed when elections called in 1994. The Legislative Instruments Bill
1996 (Cth) incorporated amendment made to the 1994
Bill, but had a greater focus on reducing red tape for business. The Senate
proposed amendments and returned the Bill to the House of Representatives,
where in 1997 it was laid aside. The Legislative Instruments Bill (No 2) 1996
lapsed when federal elections were called in September 1996.
[58] LI Act Pt 4.
[59] LI Act Pt 4.
[60] The LI Act s
26 (former) required an explanatory statement to be lodged in the Register with
the legislative instrument. Failure to do so did not affect the validity or
enforceability of the instrument.
[61] This regularisation of nomenclature assisted in removing
uncertainty as to the status of some rules, sometimes called
“quasi-legislation”. See also LI Act
s 10.
[62] LI Act Pt 2. Drafting is to be undertaken by parliamentary
counsel.
[63] Administrative
Review Council, Rule Making by Commonwealth Agencies
Report No 35 (1992).
[64] LI Act Pt 6.
[65] Legislative
Instruments Act s 17(2)(a) and (b).
[66] A review of the
operation of consultation under the LI Act revealed that agencies seemed
unaware of s 17: Senate Standing Committee on Regulations and Ordinances Consultation under the Legislative Instruments Act 2003
Interim Report 113th Report (June 2007). There was a
lack of detail in explanatory statements of the consultation undertaken. The
definition in s 4 of “explanatory statement” included, in s 4(d), a description
of the nature of consultation if it was undertaken under s 17 before the
instrument was made. This definition section was an inappropriate place to
discuss consultation procedures. In 2012 subsection (1A) was inserted into s 26
of the LI Act, picking up the definition of explanatory statement. A note
referring to s 26(1A) was inserted at the end of s 17. The s 4 definition was
amended to simply refer to s 26. The explanatory statement also had to include
a statement of compatibility prepared under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth):
LI Act s 26(1A)(f) (former). The note stated that a failure to lodge the
statement in accordance with s 26(1) did not affect the validity of the
instrument: LI Act s 26(2).
[67] Legislative
Instruments Act s 18(2)(a), (b), (d), (g).
[68] Legislative
Instruments Act s 18(2)(f).
[69] Legislative
Instruments Act s 18(2)(c).
[70] The new
expression “notifiable instruments” should not be
taken to indicate that notification requirements have been introduced. This is
a new class of instruments of a machinery nature or concerned with commencement
of instruments: Legislation Act s. 11. Notifiable
instruments are not disallowable and do not sunset. Since ss
17 and 19 apply only to legislative instruments, the exception formerly made in
s 18 for instruments of a machinery nature is widened through the new class.
[71] Legislation
Act s 15J(2)(d),(e).
[72] Department of
Finance and Deregulation Office of Best Practice Regulation Best Practice
Regulation Handbook (November 2006) Chapter 4, replaced by
Department of Prime Minister and Cabinet Office of Best Practice Regulation The Australian
Government Guide to Regulation (2014) Chapter 5.
[73] TPP Art
2.6(2)(b).
[74] TPP Art
2.6(4)(a).
[75] TPP Art
2.6(4)(c).