Deliberative Processes for Administrative Regulations: Unenforceable Public Consultation Provisions and the Courts
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Open Access
Type
ArticleAuthor/s
Edgar, AndrewAbstract
Delegated legislation is subject to parliamentary scrutiny processes and judicial review in order to mitigate concerns that it lacks constitutional legitimacy. This article examines how unenforceable public consultation provisions relate to these checks and safeguards. It argues ...
See moreDelegated legislation is subject to parliamentary scrutiny processes and judicial review in order to mitigate concerns that it lacks constitutional legitimacy. This article examines how unenforceable public consultation provisions relate to these checks and safeguards. It argues that public consultation should be regarded as a necessary addition to these supervisory mechanisms and that it should also be judicially enforceable. There are, however, institutional and historical reasons for thinking that enforceable public consultation provisions are not likely to be introduced at the Commonwealth level. Accordingly, the article argues that the courts could develop the principle of legality and unreasonableness review in ways that would encourage transparency and public participation in rule-making processes. These issues are examined with reference to the discretionary public consultation provisions in the Legislative Instruments Act 2003 (Cth).
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See moreDelegated legislation is subject to parliamentary scrutiny processes and judicial review in order to mitigate concerns that it lacks constitutional legitimacy. This article examines how unenforceable public consultation provisions relate to these checks and safeguards. It argues that public consultation should be regarded as a necessary addition to these supervisory mechanisms and that it should also be judicially enforceable. There are, however, institutional and historical reasons for thinking that enforceable public consultation provisions are not likely to be introduced at the Commonwealth level. Accordingly, the article argues that the courts could develop the principle of legality and unreasonableness review in ways that would encourage transparency and public participation in rule-making processes. These issues are examined with reference to the discretionary public consultation provisions in the Legislative Instruments Act 2003 (Cth).
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Date
2016Source title
Public Law ReviewVolume
27Issue
1Publisher
Thomson ReutersLicence
Copyright All Rights ReservedRights statement
This article was first published by Thomson Reuters in the Public Law Review and should be cited as Edgar, A. (2016). Deliberative Processes for Administrative Regulations: Unenforceable Public Consultation Provisions and the Courts. Public Law Review, 27(1), 18-36. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.auFaculty/School
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