1.    Types of Rules: Delegated Legislation, Quasi-Law & Policy

- The process of making delegated legislation - the power of the executive to make law
- Parliament doesn’t have the resources to make legislation in all areas
- Only the admin agency itself will know the nuts and bolts of the legislation required for the industry it is specified in.
- Delegated legislation complements the main/primary piece of legislation. The detail will be in the regulations not only the primary legislation
- We focus only on regulations in this course
- Parliament also gives the executive the power to make detailed administrative decisions
- Executive has a law-making function and decision-making function
- Judiciary’s role is to check that the delegated legislation is powerful and that the minister has not given themselves unrestricted power or expanded power that parliament never intended them to have
- Judiciary has to look at the statute and apply its grounds of review to decide whether the delegated legislation complies with the law.
 
- Parliament has the responsibility of scrutinising the delegated legislation and checking that it is lawful
- Parliament has the democratic mandate to vest power in the minister to do these things. The minister himself is not elected. The department makes the law not the minister. The impetus for delegated legislation comes from members in the department and goes up the chain.
- Parliament is the most powerful arm of government because it vests power in the executive/administrative arm of government
- What actually happens is that the executive is dominant most of the time  executive tells the parliament what laws are needed. Admin arm of gov persuades parliament to make a law to allow it to do its job better
- What about “the public participating in rulemaking”  i.e. delegated legislation and policies
- Civic Republicanism  All of us as citizens have a duty to participate and send submissions to the minister

2.    Theories of Participation

Understanding the need for public participation
The rise of the administrative state in 20th century

- Increased regulatory activity
- Representative government and public interest ideology
- Regulatory activity highly complex
- Enormous discretion in the regulator
- Individuals are generally not interested in participation. Generally don’t have time etc
- There is an ethos that a public administration will always act in the public interest
- There was little contest to this in the past. There was a public interest ideology underpinning what people thought the government did
- Very difficult to determine what the laws should be
- Parliament says to exec make what law you need so long as it is lawful
- There is strong symbiotic relationship between regulator and regulated. The regulated has all the information

Challenges to regulatory Authority of the State

- Is parliament counterweight to executive power? Or ally of executive, giving effect to executive’s programs and policies?
- What is the quality of the scrutiny of delegated legislation given that they have no time to even make the laws, let alone scrutinise them
- There are questions over the technical expertise of the experts. This assumption is being challenged. There is more than technical input. There is public perception of how much rivers should be polluted etc rather than technically what scientists say
- If we add public scrutiny, we get more information and more views  this is recommended by political scientists

Political Theories of Participatory Democracy

Interest Group pluralism
- Interests groups have some sort of interest in a government decision and are going to be impacted in some way
- The group represents the interests of the individuals
- You belong to association b/c you expect it to advance your interests e.g. influence what the admin arm of gov does in law-making
- Plurality: Plethora of competing interests e.g. Contentious issue is Immigration  Various interests group will scrutinise the policies of Vandstone
- Some people are anti-immigration, some because of environmental concerns. Those in favour of refugees, Chill Out wanting to prevent abuse of children in detention centres
- There are a plurality of interests group that want to influence the final outcome
- The decision-maker will strike a deal to best accommodate everyone’s interests; this is one theory of interest-group pluralism
- There is criticism of this idea because of deficiency in representation. What if we have something to say, yet we are not part of one of these interest groups
- What happens to the public? There is a problem of seein representation oinly in interest groups
- Another problem: Not all interest groups are equal. Some have more resources and power than others
- The government gazette is the gov newspaper: This houses draft regulations. You would have to subscribe to the gazette to know what is happening. The interest groups do this

Civic Republicanism
- Here the process of deliberation
is designed to reach a consensus for the common good, rather than striking a deal
- The agency has to step back from the political bargaining and ask what the right outcome is. Minister should step back from all the submissions after considering them and then deliberate and make a decision that arrives at the common good
- The philosophy is that deliberation will arrive at the common good
- There is also an assumption that people are politically equal  but those under 18 cant vote. But those over 18 have the same rights etc. But, we are not all politically equal: lack of access to info, education, financial inequity, geographically dispersed. Although we are formally on paper politically equal, in reality we are not all politically equal
- If you have all sorts of rights as citizens, we also have duties. One of our duties is to participate.
- There is an ignorance that a decision will be made
- Many people don’t care if it doesn’t affect them directly; there is cynicism that their voice will not be heard
- The concept of the common good is problematic because there are too many differing views, but it is a nice theory (it sounds good)

Feminist Theory
- Ways in which women face impediments to participation
- Women would say that because they are unable to engage in public life as much because the are more trapped in the home sphere and financially disadvantaged etc, these are factors in their daily lives that inhibit women from participating in civic republicanism
- Women have the disproportionate disadvantage in the housework, even if they have equal incomes etc they are still not politically equal
- Some issues are closer to women’s hearts e.g. Iraq war, because their sons and husbands get shipped off
- Perhaps the avenues women choose for participation are less recognised or less powerful
- Also, men have a more political influence because their voice is magnified by the institutions they operate e.g. corporations, Unions etc
- Women spend a disproportionate time in the private sphere

Postmodernism
‘When … we view modernity as an iron cage of bureacratisation, centralisation and infinite manipulation of the psyche by the “culture industry” and the disciplinary regimes of power and knowledge, postmodernism is celebrated as an exhilarating moment of rapture. It defies the system, suspects all totalising thought and homogeneity and opens space for the marginal, the different and the “other”. Postmodernism is here presented as the celebration of flux, dispersal, plurality and localism.’

‘Statutes, delegated legislation, administrative legislation and adjudication … cannot be seen any longer as coherent, closed ensemble of rules or values. Legal language games have proliferated endlessly and cannot be presented as the embodiment of the public good, the general will, the wishes of the sovereign electorate or of some coherent system of principle.’
Douzinas and Warrington Postmodern Jurisprudence: The Law of Text in the Texts of Law (1991)
Degrees of Participation

Arnstein’s ladder of participation
- think of participation going up this ladder
- gov is giving us info to manipulate our views but it doesn’t give us any power. This is non-participation
- UP the line, we have the minister consulting us/informing us. But it doesn’t go further, they don’t really expect us to participate  this degrees of tokenism
- Up the top of the ladder, citizens start to gain power, start controlling decision-making rather than just participating. Citizens in partnership with the government
- Where on this ladder are we

We are concerned with the Executive function of making delegated legislation and making policy (ministerial and departmental)

I Challenges

Globalisation

- Articulates a reconfiguration of relations of economic and political power globally
- Calls into question spaces defined by the political boundaries of the nation
- New politico-economic interactions produce new institutional forms and alter old ones
- Growing, and increasingly institutionalised, participation of supranational organisations in national matters
- Disjuncture between national territory and exclusive territoriality
- Creation of new legal regimes that have effect of replacing public regulation and law with private institutions that bypass national legal systems
- Locus of decision-making is shifted

Fragmentation and sub-national identities

- Ethnic content of the modernist nation is secondary to its function as a citizenry where cultural assimilation attempts to homogenise difference
- State identity declines under globalisation, giving way to fragmentation and competing identities
- Indigenous community becomes increasingly organised to assert control over land, resources and cultural autonomy
- Hindmarsh Island Bridge evidence of difficulties associated with indigenous participation into administrative decision-making in Australia
- Extensive academic critiques of this episode encompassing feminist and critical race feminist theory i.e. intersectionality between race/gender
- Indigenous experience and ecofeminist theory which recognises impact of patriarchy on women, environment and indigenous people
- Calls for recognition of different ways of knowing

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