Published on 3/06/2007

Rule Making: Delegated Legislation, Quasi-Law & Policy

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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II Participatory Process

Notice-and-comment
Formal or informal in Australia
- Publication of notice in government/other newspaper
- Request for submissions
- Consideration of submissions
- Publication of final policy, regulation, by-law

Negotiated Rule-making
US Negotiated Rulemaking Act 1990 – encourages all agencies to identify rules (policies/regulations) that are suitable for negotiation.
This Act that says the agency puts a notice to the public saying they intend to make rules about the piece of legislation. The interest groups want to be at the table participating in the rule-making. Once the agency is notified of who the interested and affected parties are, a mediator will come and the government agency will sit with all interested and affected parties and draw up draft rules. The process is facilitated by a mediator who does not make decisions. The draft gets place in the gazette for public scrutiny. Public then make submissions for consideration. In the notice and comment process, the interested parties are not involved until after the rules are drafted. Negotiated rule-making emphasises consensus on the issues and mediation is designed to avoid conflict. Here the agency has to involve in negotiation the interested stakeholders.

Power imbalances
(a) data conflict
- unequal access to understanding scientific evidence

(a) cross-cultural issues
- difference in race, culture, religious beliefs and behavioural patterns

(a) unequal resources
- geographical isolation, language skills, level of education, access to experts

Role of mediator in addressing all of these difficulties?
Public participation and the Internet?

Stewart – The Reformation of American Administrative Law

-    Traditional model of admin law – The government agency is a mere transmission belt for implementing legislative directives. Intrusions into private liberties by agencies are ok because the intrusions are commanded by the legislature, which is a legitimate source of authority. The court’s function is that of containment, review is directed towards keeping the agency within the directive which the legislature has issued.

-    Vague, general or ambiguous statutes create discretion and threaten the legitimacy of agency action under the “transmission belt” theory of admin law. When statutes do not effectively dictate the role of agencies, individuals are vulnerable to the actions of executive officials who are not accountable to the electorate.

-    Advocates of public participation believe that an enlarged system of formal proceedings can secure adequate consideration of the interests of all affected persons and give outcomes that better serve the whole of society.

-    But broad participation rights do not ensure that all relevant interests will be represented.

* You won’t get representation of interests where the impact of a decision is so widely diffused that no single individual is harmed enough to bother litigating.

* Similarly, there will be no participation/representation where high transaction costs and the collective nature of the benefit they are trying to obtain, preclude a joint litigating effort.

-    Public interest advocates rely on expanded public interest advocacy as a solution to the problem of agency discretion. This reliance raises several problems…

* the resources available for private representation of fragmented ‘public’ interests are insufficient to ensure adequate representation of all interests.

* the procedure for selecting the interests that will receive representation is unsatisfactory - public interest lawyers, themselves, often select the interest to be represented and this means there is more discretion. The lawyer is often not accountable to ensure his loyalty to the scattered individuals whose interests he purports to represent.

-    Public interest advocacy is a bit more effective where the plaintiffs are an organization. The organization will have a leadership to whom the lawyer must account. But then the individuals may see no tangible connection between their interests and the group litigation.

-    The impact of representation on agency discretion is problematic…

* may have some impact by providing additional inputs of data and arguments

* may deter administrators from obviously illegal courses of action

-    But agencies will continue to be exposed to intensive pressures from regulated or client groups, on whom the agencies must rely for information and political support, if the agency is to prosper. So the expansion of participation rights at the agency level is unlikely to resolve the fundamental problem of asserted bias in agency choice.

-    Indeed, by emphasizing the polycentric character of controversies, expanded representation may exacerbate the ad hoc, discretionary character of their resolution.

-    A “best solution” will normally mean putting some interests ahead of others.

Sunstein – Beyond the Republican Revival

    Liberal republicanism characterized by commitment to 4 central principles:-

* deliberation in politics
     – private interests are relevant inputs into politics but they are the object of critical scrutiny
     - political actors are not supposed to come to the process with preselected interests, political actors are supposed to achieve a measure of critical distance from prevailing desires and practices, subjecting these desires and practices to review

* equality of political actors
     - a requirement that all individuals and groups have access to the political process
     - large disparities in political influence are disfavoured.
     - dramatic differences in wealth and power are, in this view, inconsistent with the underlying premises of a republican polity.

* universalism, exemplified by the notion of a common good
     – takes the form of a belief in the possibility of settling at least some normative disputes with substantively the right answers
     - a belief in the possibility of mediating different approaches to politics, or different conceptions of the public good, through discussion and dialogue.
     - believe that a common good exists and this can be found at the end of a well-functioning deliberative process.
     - means that republicans will be hostile to bargaining mechanisms in the political process and will, instead, try to ensure agreement among political participants.

* citizenship and broadly guaranteed rights of participation
     - seek mechanisms for citizen control of national institutions and for local control and local self-determination.
     - a large objective of participation is to monitor the behaviour of representatives in order to limit the risks of factionalism and self-interested representation. It is also a means of brining empathy, virtue and feelings of community into the process.
     - practical considerations of economic dependency, or responsibility for caring for children, the sick or the elderly, may undermine engagement in political activity (mostly for women).

-    The republican revival is designed as a response to understandings that treat governmental outcomes as a kind of interest-group deal, and that downplay the deliberative functions of politics and the social formation of preferences.

But is interest group pluralism (the public interest advocate Stewart argued for) a viable solution? – look at things like the openness of the executive branch of government with regard to its policy-making agenda (Murrumbidgee), the extent of legal and financial assistance available to individuals and public interest groups in making submissions or seeking to rectify administrative error, requirements of procedural fairness to provide hearings to affected individuals, the rules of standing to seek judicial review.

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Pateman – Participation & Democratic Theory

-    Many of the advocates of the contemporary theory of democracy argue that a certain type of character, or a set of psychological qualities or attitudes is necessary for stable democracy.

-    But they are unclear on how this character should be developed.

-    No longer is democratic theory centred on the participation of “the people” – the ordinary man.

-    In the contemporary theory of democracy, it is the participation of the minority elite that is crucial and the non-participation of the ordinary man is regarded as the main defence against instability of the democratic system.

-    The ‘ordinary man’ feels apathetic and lacks a feeling of political efficacy.

-    Institutional factors could provide an explanation for the facts about apathy.

* Most theorists just accept that it is ‘no-body’s fault’ that the ordinary man feels apathetic etc.

* Yet Mill, Cole and Rousseau’s argue that we lean to participate by participating and that feelings of political efficacy are more likely to be developed in a participatory environment. (Pateman agrees with this).

-    The article then goes on to describe participation in the industrial context.

Pateman – The Disorder of Women: Democracy, Feminism & Political Theory

-    Democratic citizenship presupposes that all members of society are social equals and independent, having all the capacities implied by this status.

-    Women are excluded from these references to the ‘individual’. The sphere of personal and domestic life – the natural realm of women – is excluded from scrutiny.

-    “The assumptions and practices which govern the everyday, personal lives of women and men, including their sexual lives, can no longer be treated as matters remote from political life and the concerns of democratic theorists. Women’s status as ‘individuals’ pervades the whole of their social life, personal and political. The structure of everyday life, including marriage, is constituted by beliefs and practices which presuppose that women are naturally subject to men – yet writers on democracy continue to assert that women and men can and will freely interact as equals in their capacity as enfranchised democratic citizens.”

General Comments

-    Pateman (article 1) argues that the opportunity to vote in a general election, on its own, is insufficient citizen participation in government. Elections are fought on broad policy views but then legislation is made with minute detail.

-    For many people the impact a rule has upon their personal interests will determine how much they want to be involved in the rule-making process. As circumstances change, interest in a particular rule may wax or wane.

-    The importance with which an individual views a particular rule will determine their expectations of how much they want to participate – ie obtaining more information (at one end of the spectrum) to having a hearing, exerting influence and sharing the rule-making power (at the other end of the spectrum).

Theories of participatory democracy should be capable of being tested by reference to practical schemes for participation in the administrative process – eg notification, publication, tabling of delegated legislation, inviting submissions from members of the public.

3.    Formal Rule-Making: “Legislative Instruments” (Cth), “Statutory Rules” (NSW)
-    Delegated legislation has the force of law.
-    Policy does not create legal rights and obligations and may be changed from one day to another.
-    Procedures for notification, publication, tabling and disallowance that apply to the making of most delegated legislation, do not apply to the making of policy.
-    Delegated legislation is scrutinized by a parliamentary committee. Policy is not.
-    Benefits of Policy:-
* focuses attention on the purpose to be achieved
* guides administrative decision making but does not control it – that would be inflexible application of policy
* allows the integrity of decision making to be tested against policy.

Typical features of Delegated Legislation:
* Requirements for notification and publication of the rule. It must be open, prospective and clear.

* It must be tabled in parliament – parliamentary committees look at the legislation and can disallow the rule.

* Draft regulations should be put out for public consultation. There is no common law duty to consult but there is usually a statutory duty (special or general) to do so.

*Sunsetting – automatic repeal; ensures that legislation is not outdated or failed to achieve objectives

*Parliamentary Committees – political impact of disallowance

    *Judicial Review

3.1 Publicity, Participation

Publicity – What the legislation says

Legislative Instruments Act 2003
-    Purpose is to…

* establish a federal register of legislative instruments that is user friendly, authoritative and fully text searchable

* encourage rule makers to undertake appropriate consultation before making the rule

* encourage high drafting standards – promoting legal effectiveness, clarity and intelligibility of legislative instruments

* improving public access to legislative instruments

* establishing improved mechanisms for parliamentary scrutiny of legislative instruments

-    The Act gives a definition of a legislative instrument – an instrument in writing, of a legislative character and made in the exercise of a power delegated by parliament.

-    The Act contains a list of when consultation is not appropriate – urgent instruments, instruments implementing budget decisions, instruments relating to national security, instruments relating to employment and instruments relating to the defence forces.

-    we first look at how the legislation promotes public participation and how does it promote parliamentary scrutiny
-    We are looking at how to make delegated legislation lawful
-    Most laws come from the delegated legislation
-    What does the primary legislation say the decision-maker can do? Then look to the delegated legislation
-    Every time delegated legislation is published in draft form, an important component is the explanatory memorandum  understand the policy reasons behind the legislation
-    S3: explanatory statements have been given an important status. Encouraging public participation and clarity of legislation (which aids pub participation). Improving public access to draft legislation to enable comment. Make sure parliament scrutinises delegated legislation and they review legislation
-    A legislative instrument is an instrument in writing that is of a legislative character  meaning it applies to everyone. Regulations will apply to everyone for whom the legislation is intended, rather than applying in a particular case. Decisions of an administrative character can apply in specific circumstances. The legislation may create or remove obligations and rights i.e. will affect people either positively or negatively.
-    See definitions under ADJR act
-    Courts refer to objects clauses in reviewing decisions to decide whether decision is lawful
-    Part 3: Legislator should consult before … if it affects business or interferes with competition (based on theory of economic rationalisation – Hilmer Report). Executive arm of gov must consider whether its delegated legislation will affect business or restrict competition. The consultation will be relevant to the extent that the knowledge of experts have been taken into account and also the interest groups must have been given opportunity to participate. The general public is not really mentioned here. It talks of an agency engaging with its shareholders.
-    Where an instrument is required as a matter or urgency  then the minister need not consult
-    (c) We are not likely to be consulted about the budget
-    (d) Issues of national security  not put out for public consultation. Courts will also not interfere in matters of national security and will not review these decisions.
-    Part 4: Federal register of legislation (s20)
-    S26: all explanatory statements must be put on the register

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Interpretation Act 1987 (NSW) s39
A statutory rule shall be published in the Gazette and shall take effect on the day on which it is published, or a later date if specified. If a rule is published in the Gazette after it is supposed to take effect it is not invalid. It just means that it takes effect from the day the statutory rule is published in the Gazette, instead of from the earlier day.

Participation – What the legislation says

Subordinate Legislation Act (NSW)
-    s4 – before a statutory rule is made the Minister must ensure that the guidelines from Schedule 1 are complied with.

-    Schedule 1 Guidelines

1) wherever “costs and benefits” is used in the guidelines, it means economic and social costs and benefits.

2) Before a statutory rule is proposed to be made you have to:-
* clearly state the objectives of the rule and the reasons for those objectives.
* check that the objectives are reasonable, appropriate, accord with the principles and spirit of the enabling Act and are not inconsistent with other Acts, statutory rules and government policies.
* state alternative options for achieving the objective
* evaluating the costs and benefits of these alternatives
* consult with people if the statutory rule would impinge on any other area of authority.

3) Minister must have regard to the following principles:-
* administrative decisions should be based on adequate information and consultation.
* a statutory rule should not be passed unless the benefits outweigh the costs to the community – have particular regard to the impact on the economy and on consumers, interest groups and industry and commerce.

4) A statutory rule must be expressed plainly and unambiguously and consistently with the language of the enabling Act.

-    S5 – before a statutory rule is made the minister must ensure a regulatory impact statement is prepared in connection with the substantive matters of the rule. The statement must comply with Schedule 2.

-    S5 – notice of the rule to be published in the Gazette and a daily newspaper in NSW, as well as any relevant trade/professional publication or journal. Consultation is to take place with groups who are likely to be affected by the statutory rule.

-    S5 – the nature and extent of publicity is to be determined based on the impact likely to arise for consumers, the public and interest groups.

-    Schedule 2 states the provisions applying to regulatory impact statements – what it must include and that “costs and benefits” includes economic and social costs, both direct and indirect.

-    S6 – regulatory impact statements are not needed when:-
* the proposed statutory rule relates to matters in Schedule 3
* the Minister certifies that public interest requires that the proposed statutory rule should be made without having a statement.

-    Regulatory Impact Statement  Considers the impact the delegated legislation will have.
-    Must communicate through pub newspaper
-    Agency must notify broadly about its intention to create delegated legislation. Inviting comment in a specified time. Gives people three weeks to write their submissions.
-    If Agency publish on the internet, they may reduce the time allowed for submissions.
-    The problems with this are that not all groups are equally resourced.
-    People need the same amount of time to put together solid submissions even though communication technology is improved.
-    All comments and submissions must be equally considered  this has more of a civic republicanism feel, rather than “striking a deal” associated with interest group pluralism.

Point 3: The public is mentioned in NSW legislation unlike Cth legislation. Parliament must form a legislation review committee. Reg Impact Statements not necessary in all cases

S6(b) - Not necessary to comply with pub consultation provisions, if minister feels in his opinion there is no need to consult. This is a subjective jurisdictional fact: The minister cannot exercise a discretion unless certain circumstances have been fulfilled. The minister’s writing of a certificate depends on the minister’s subjective opinion as to whether consultation is necessary. This gives the minister much more discretion.

S9: As with Cth legis, the failure to comply with consult provisions, does not affect the validity of a statutory rule. Rule wont be knocked back just because public consultation provisions have not been complied with.

-    Schedule 1: guidelines for what needs to be done to prepare statutory rules
-    S1: Law maker must take social and economic considerations into account. Clearly formulate the objectives of the statutory rule. Objectives must be reasonable and appropriate. Courts look at whether the legislation is proportionate
-    State of … v Tanner: You don’t need to extend the objectives and be heavy handed. You must be proportionate in the objectives you achieve. The delegated legislation must not impinge on people’s rights unnecessarily
-    Shanahan v Scott; Foley v Padley; Courts decide whether delegated legislation is within the framework of the enabling legislation
-    (c) alternative options for achieving these objectives must be considered.
-    (d) Agency must weigh up the costs and benfits to society
-    (e) One agency cannot step on toes of another agency. If this occurs need consultation. Legislation often requires the concurrence (agreement) of agencies. But here, consultation does not necessarily mean one agency has to agree to the other, they merely have to consult
-    The words “Have regard to”. Statute tells the minister what the guiding principles are, which is not common
-    Choose the options with the least cost and the most benefit to the community.

3.2 Parliamentary Scrutiny

Commonwealth Senate Standing Order 23
-    The Committee scrutinizes legislation to ensure:-
* it is in accordance with the statute
* it does not trespass unduly on personal rights and liberties
* it does not unduly make the rights of citizens dependent on admin decisions which are not subject to review by their merits or by the judiciary.

Interpretation Act 1987 (NSW) s40 and 41
-    s40 – written notice of making a statutory rule shall be laid before each House of Parliament.

-    s41 – Either House of Parliament may pass a resolution disallowing a statutory rule. Disallowance has the same effect as repeal of the rule. If the rule that was disallowed replaced some other rule or Act, the other rule or Act comes back into force when the rule is disallowed.

-    S37 : Parliament has scrutinised the proposed delegated legislation and ensured it doesn’t go ahead
-    S38
-    S42: A principal legislation often doesn’t commence until delegated legislation is in place, because there will be no detail. If delegated legislation is scrutinised and not allowed through by parliament, the Executive will have to go through the whole process of revision
-    S49: A sunsetting process ensures the legislation is only in place as long as needed
-    S50: Del legislation lasts only 10 years. Then it must be reviewed
-    S51: AG can defer the sunsetting
-    S52: Parl can defer the sunsetting
-    On 10th anniversary of the legislation, it needs to be reviewed otherwise the scheme could collapse
-    Delegated legislation  affects everybody. The minister is not considering the impact on individuals, rather the broader impact.

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Legislation Review Act
-    Function of the Leg Review Committee
-    Has to review all the legislation of the agencies and disallow legislation that doesn’t comply with objectives

Delegated Legislation (handout)
-    Notification and publication: Rules must be open, prospective and clear
-    Tabling in Parliament
-    Sunsetting
-    Parliamentary Committees
-    Consultation and Regulatory Impact Statement : No common law duty to consult, but may be a statutory duty.
-    Judicial Review

4.    Informal Rule/Policy Making

What is Policy?
-    In some jurisdictions, making of policy is brought under same as rule making
-    Policy making is internal only
-    It is ‘a general plan of action designed to advance or protect some collective goal of the community as a whole, as distinguished from individual or group rights
-    E.g. National policies, Ministerial/Cabinet policy, Departmental policies

Who should make policies?
-    Legislature – democratic mandate - statute
-    Ministers – ministerial responsibility
-    Administrative Officials – policy/administration dichotomy
-    Judges – statutory interpretation?

Benefits of Policy
-    Focus attention on purpose to be achieved
-    Guides, not controls, admin decision making  otherwise there is a ground of review: inflexible application of policy
-    Integrity of decision making tested against policy
-    Diminishes inconsistencies
-    Fairness and continuity
-    It is a powerful way of structuring agency decision making
-    Why isn’t policy subject to consultation  so the public can have some political input

No Common law obligation to disclose policy
-    curious given rules for procedural fairness that adverse material be made available to the affected individual
-    no stat duty to consult

Freedom of Information Legislation
Requires publication of
-    statement of functions of agencies describing decision-making powers
-    clause saying the agency must tell the public that that they have policy documents
-    Must publish statements of categories of documents held by the agency, including policy documents
-    No duty to release policy information in advance
-    Policy is very hidden from the public eye
-    No opportunity to participate
-    Courts don’t require agencies to disclose policy
-    We wont even know that policy exists or will be made
-    Look at theory question in Admin Law Exam 2001 Q1  Looks at theory of participation

Freedom of Information 1982 (Cth) s9 and s10

s9 – the section applies to documents provided by the agency for the use of the agency in making decisions or recommendations. The documents may include (i) manuals or other documents containing interpretations, rules, guidelines, practices or precedents; (ii) documents containing particulars of a scheme, (iii) documents containing statements of the manner of administration or enforcement of such an enactment or scheme; (iv) documents describing the procedures to be followed in investigating breaches or evasions of possible breaches of the law relating to such a scheme.

s10 – if a document was not made available (when it should have been) and a person did something or omitted to do something; that person shall not be subjected to any prejudice by applying the rule, guideline or practice in relation to the thing done or omitted if he could have avoided it if he had been aware of the rule, guideline or practice.