CONTENTS I Introduction: Deliberative Democracy and Administrative Law II Regulation-Making in Australia: Between Constitutional and Administrative Law III The Fork in the Road: Constitutional Principles IV Regulation-Making Legislation V Grounds of Judicial Review VI Access to the Courts VII Exceptions: Mandatory Public Consultation Requirements VIII Conclusion I INTRODUCTION: DELIBERATIVE DEMOCRACY AND ADMINISTRATIVE LAW
Australian governments make laws on matters involving moral disagreement. Some examples include religious welfare services in public schools, (1) prevention of cruelty to animals, (2) and regulation of abortion-inducing drugs. (3) Governments also make laws on matters involving social and economic issues whereby business practices are controlled in order to achieve public benefits. Common examples of this form of regulation include controls on land uses for environmental and public health purposes, (4) limiting fishing entitlements to protect species that are at risk, (5) and controlling the sale of products for consumer health and safety purposes. (6)
Most people would expect that in the Australian constitutional system, decisions involving such moral and political judgements would be made by Parliaments and by way of public debate. However, all of these examples concern laws in the form of regulations--a form of law that generally can be made in Australia and comparable Commonwealth countries without transparency or public participation. If no public consultation is carried out by government officials, members of the public are unlikely to know that a regulation is being made until it is operative. If, at this point, they disagree with it, they will need to seek out a Member of Parliament to engage parliamentary processes to disallow the regulation or start lobbying for it to be repealed or amended.
Public debate is a fundamental characteristic of parliamentary law-making but it is not recognised in law as an essential feature of administrative regulation-making--a form of law-making referred to by Professor Jerry L Mashaw as involving '[m]icropolitics'. (7) The lack of enforceable transparency and public participation laws for administrative decision-making conflicts with developments in political theory in the last 30 or so years that focus on transparency, public debate, and reasons--that is, processes that facilitate deliberative decision-making--as necessary conditions for the legitimacy of laws. While legal and political theorists (liberals, (8) pragmatists, (9) neo-realists (10) and legal positivists) (11) are engaged in ongoing debate regarding deliberative democracy's philosophical basis, scope and content, its procedural framework is generally accepted. (12)
The question for this article concerns the extent to which deliberative forms of legitimacy have been adopted in administrative law doctrine in regard to regulation-making. To answer this question I will compare an overtly deliberative administrative law system of regulation-making, the system in the United States ('US') (to be referred to as the 'US deliberative model'), with the primary features of Australian regulation-making systems (to be referred to as the 'Westminster parliamentary model'). Both models accept that legislatures can delegate authority to administrators to make regulations and that courts in judicial review proceedings can ensure that particular regulations are consistent with the provisions of the empowering Act. However, the two models differ in regard to additional controls. These differences are significant for their contrasting assumptions regarding the legitimacy of regulations.
Australian regulation-making systems focus on parliamentary control of regulations. They enable review of particular regulations by parliamentary committees and disallowance by Parliament. There is, therefore, the possibility of parliamentary debate regarding the social and economic issues inherent in regulations. However, it must be recognised at the outset that parliamentary supervision of regulation-making is limited in practice. It has long been recognised that parliamentarians have little time or energy for such review, (13) and parliamentary regulation review committees focus on technical matters rather than the policy-based issues that arise in disagreement on social and economic grounds. (14) Nevertheless, parliamentary control of regulations provides the essential additional criterion for the legitimacy of regulations in Australia.
The US deliberative model, on the other hand, focuses on transparency, public participation and reasons that add up to a system recognised by leading scholars as being consistent with the fundamentals of deliberative democracy. (15) As will be examined in the various parts of this article, deliberative processes for making regulations are recognised in US constitutional law and play a prominent role in legislation that controls regulation-making processes and judicial review principles. Accordingly, the US deliberative model makes deliberative processes an essential additional criterion of legitimacy along with legislative authorisation.
The important point of difference between the two systems is that while the Australian parliamentary model includes methods for holding administrators accountable for their regulations to Parliament and the courts, there is nothing in the model that requires open deliberation by regulation-makers. It is not required by general regulation-making legislation or judicial review standards. Judicial review standards are focused instead on ensuring that administrators stay within the scope of power granted to them by the Parliament. Regulation-making legislation in the US does require open deliberation and the courts have administered these laws in a manner that ensures the elements of deliberative decision-making are carried out.
My focus in this article is to draw out the connections between public consultation processes and conceptions of legitimacy inherent in two different, but related, public law systems. This is intended to highlight the distance between Australian regulation-making systems and a system based on principles of deliberative democracy, and to better understand the organising principles of Australian regulation-making systems. It focuses on the different ways in which the two systems allocate sites for political debate and deliberation.
The article starts with an overview in Part II of aspects of Australian public law in order to contrast regulation-making systems with other features of constitutional law and administrative law that enable and require transparency and public participation in government decision-making. It then compares in Parts III to VI the primary features of the general regulation-making systems in Australia and the US--the constitutional principles, the general regulation-making legislation, judicial review standards, and principles regarding access to judicial review. The purpose is to highlight how these features have evolved in Australia to reflect Westminster parliamentary principles and how the US deliberative system differs from it.
There are, however, exceptions in Australia that are examined in Part VII. Parliaments can establish the basic features of a deliberative regulation-making system under specific statutes; for example by legislation that empowers administrators to make regulations such as environmental plans. (16) In Part VII, I briefly examine examples of such mandatory public consultation provisions and identify some common characteristics.
II REGULATION-MAKING IN AUSTRALIA: BETWEEN CONSTITUTIONAL AND ADMINISTRATIVE LAW
While Australian administrative law regarding regulations is not directed towards enhancing deliberation, other aspects of Australian public law do play such a role. The High Court has developed the implied freedom of political communication to ensure openness, participation and accountability of government to the people. (17) This has been understood to safeguard debate about political matters and thereby facilitate the basic elements of deliberative democracy in regard to parliamentary processes and decision-making. (18) Accordingly, constitutional law plays an important role in establishing the conditions for deliberative decision-making.
Australian administrative law has also developed a set of procedural requirements directed to deliberative decision-making. Procedural fairness is judge-made law that imposes procedural requirements for decision-making by administrative officials. It requires administrators to disclose adverse information and give the affected person a reasonable opportunity to be heard in relation to such information. (19) More recently, the High Court has developed a requirement for the decision-maker to respond in their reasons to the specific argument made by the person affected. (20) This form of responsiveness rounds out the dialogue between the decision-maker and the person affected. The decision-maker is required to disclose crucial information, give the person an opportunity to make arguments, and also respond to such arguments in their reasons for the decision. It makes administrative decision-making a two-way exercise by which the affected member of the public contributes to the particular decision. Accordingly, it is specifically directed towards ensuring deliberative decision-making.
However, procedural fairness has limits that result in it not being applicable to political decisions--the decisions with which deliberative democracy is primarily concerned. Procedural fairness applies to administrative decisions that affect a person directly and individually, and not to political or policy decisions that affect the public generally, (21) as is the case for administrative regulations. (22)
The form of procedure that would enable administrative regulations to be made in a deliberative manner is referred to as public consultation. (23) It involves public notice...