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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