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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