Deliberative Processes for Administrative Regulations: Unenforceable Public Consultation Provisions and the Courts

Abstract

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 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).