In the last thirty years or so, political and legal theorists have developed the concept of deliberation as a core element of democratic legitimacy. Deliberation in this literature focuses on transparency, public participation and reasons, as features of legitimate political decision-making. One question raised by this literature for legal scholars is how law contributes to deliberative democracy. Cass Sunstein, for one, wrote a famous article in the mid-1980s demonstrating that United States public law provides a legal framework for a deliberative conception of democracy. But does public law in Commonwealth, Westminster-based, countries provide frameworks for deliberative democracy? More particularly, what role does administrative law play in ensuring a basic minimum of deliberation for law-making by government officials? If administrative law is not focused on deliberative democracy, what conception of democratic legitimacy does underpin it?
In this post I will offer some answers to these questions by reference to Australian administrative law relating to regulation-making. The post is based on a recently-published article, which can be found here.
Deliberation in Australian public law
In some contexts Australian public law is directly consistent with deliberative democracy theory. Constitutional law includes an implied freedom of political communication. The Australian High Court has explained the rationale for this law in terms of transparency and public participation: “[t]he common convenience and welfare of Australian society are advanced by discussion – the giving and receiving of information – about government and political matters“. Administrative law also includes deliberative requirements. Procedural fairness requires administrators to disclose information, provide a reasonable opportunity for persons to be heard, and, if reasons are required for their decision, the decision-maker is required to respond to arguments made by the person affected by the decision.
Importantly however, procedural fairness does not extend in Australia to decisions that affect the public generally. There are two consequences of this limit on procedural fairness for the questions raised regarding deliberative democracy. Public consultation is not required as a matter of procedural fairness in Australian law and procedural fairness does not extend to regulation-making. That means that while deliberation-focused laws feature in some Australian public law contexts, they do not apply to regulations at least as a matter of judge-made law.
Regulation-making laws: deliberative and parliamentary models compared
What would a deliberation-focused system of regulation-making look like? As suggested in the introduction, the United States regulation-making system has focused on deliberative democracy since the 1960s and 1970s. Well known scholars, such as Jerry Mashaw and Richard Stewart, have referred to it in these terms. Other scholars, such as Susan Rose-Ackerman in this blog, do not use this particular terminology but nevertheless focus on the features of that system that support the democratic legitimacy of regulation-making (while also recognising that the system in the United States may be in the process of change). These scholars base their statements about deliberative democracy (or democratic legitimacy) on the notice and comment provisions of the Administrative Procedure Act and the application of these provisions by the courts to require administrators to disclose information on which proposed regulations are based and respond in their statement of reasons to comments provided by members of the public. The broadening of standing law has also played an important role in ensuring that administrators comply with such requirements.
Accordingly, it is appropriate to refer to the regulation-making system in the United States as a deliberative model. How then do regulation-making systems in Commonwealth, Westminster-based, public law systems compare? More particularly, if regulation-making systems are not focused on direct public participation for their legitimacy, what understanding of legitimacy are they based on?
The best starting point to answer these questions is the Australian federal and state legislation that provide regulation-making processes, such as the Legislation Act 2003 (Cth) (I will refer to them as “general regulation-making legislation”). Such legislation provides for parliamentary scrutiny, disallowance, and publication requirements. At the federal level and in some of the states, the general regulation-making legislation also includes public consultation provisions. The inclusion of public consultation provisions suggest that transparency and public participation for regulation-making has some value. However, these provisions are expressed to be unenforceable and are generally understood as making public consultation discretionary.Instead of making public participation the focus of general regulation-making laws, such legislation in Australia makes Parliament the primary place for debate and deliberation, despite concerns over members’ capacity to carry this out and the limited scope of scrutiny committees’ assessment.
Judicial review of regulations in Australia has developed consistently with this parliament-focused model and in a different manner to the review of administrative decisions that affect persons in an individual capacity, such as migration or licensing decisions. As referred to earlier, procedural fairness is excluded and other common bases for judicial review, such as the considerations grounds of review, are rarely argued. Instead the courts tend to review regulations according to instrumental forms of assessment. They test a regulation’s consistency with the primary Act by determining whether it is made for an improper purpose, is an attempt to extend the field of operation of the Act, or involves means for achieving the statutory purpose that are inconsistent with the means permitted by the Act. A rudimentary form of proportionality has also been part of review of regulations in Australia since the 1930s by which the courts test a regulation for whether it is a reasonable means for achieving the purpose of the power to make regulations.
This instrumental reasoning suggests that the courts role is to enforce the legislation empowering the regulation-maker, leaving no scope to impose additional, particularly procedural, requirements. That does not mean review of regulations operates in a restrained, deferential manner. Some of the cases involve fine-grained assessment of regulations to determine whether they are consistent with the relevant Act and the principle of legality may be applied to ensure that fundamental rights are not infringed by regulations unless the primary legislation clearly authorises it.
The important point is that such forms of review are consistent with a parliamentary model of legitimacy rather than the United States deliberative model. The question for the courts according to the parliamentary model is whether the regulation is authorised by the legislation that delegates regulation-making power to an administrator. That is quite different to the deliberative model’s focus on the administrator’s engagement with members of the public in the process of making the regulation.
Enforceable public consultation provisions
Recognising the parliamentary model as underpinning general regulation-making systems in Australia should not lead one to assume that it has comprehensive application. Parliaments may enact enforceable public consultation provisions for particular regulatory schemes and when that occurs Australian courts have applied them to support participation in the decision-making process. The question then is, why would Parliament add such procedural controls for particular regulatory schemes? Would it not be against the interests of governments, who have a large degree of control over parliament in Westminster systems, to add such provisions to legislation?
A review of legislation at the Australian federal level suggests an answer. Although, there is legislation that imposes mandatory public consultation requirements on ministers, the more common context for such provisionsis where regulation-making powers are granted to independent Commonwealth agencies. This suggests that the parliamentary model is weaker when regulation-making powers are delegated to administrators that are a step removed from the core of the Westminster system.
It is possible to draw from this that the general regulation-making systems and the forms of judicial review of regulations operate in Australia consistently with a parliamentary model of democratic legitimacy. However, that model does not cover the field. Legislation in particular regulatory areas can provide mandatory public consultation provisions supporting the deliberative model of democratic legitimacy. It is unlikely, but nevertheless possible, for that to occur when regulation-making power is granted to ministers; the administrators at the heart of Westminster systems. However, it is not uncommon for such provisions to be imposed when regulation-making authority is delegated to administrators on the margins of the Westminster system. This suggests that the perceived need to legitimise regulation-making by deliberative procedural requirements can depend on whether the administrator delegated such power is situated at the core or periphery of the Westminster system.
Andrew Edgar is an Associate Professor in the University of Sydney Law School. He specialises in Administrative Law. Andrew’s research focuses on review of public interest decisions by courts and tribunals. Much of his recent research examines public participation in administrative and judicial decision-making processes.