Principle (d): Adequacy of consultation
Overview
Senate standing order 23(3)(d) requires the committee to scrutinise each instrument as to whether those likely to be affected by the instrument were adequately consulted in relation to it. This is in addition to standing order 23(3)(a).1 Under principle (d), the committee will typically be concerned with:
- whether consultation occurred in relation to the specific instrument; and
- whether experts or persons likely to be affected by the instrument were consulted.
The committee's expectations under this principle are further supported by the requirement in the Legislation Act 2003 (Legislation Act) that, before making an instrument, a rule-maker must be satisfied that any consultation that was appropriate and reasonably practicable was undertaken. This includes considering the extent to which experts and persons likely to be affected were consulted.
Consultation on the specific instrument
The committee expects the explanatory statement to an instrument to address consultation that was undertaken in relation to the specific instrument. This includes a detailed explanation of who was consulted, the issues raised during consultation and a summary of the outcomes of the consultation process (for example, any action that has been taken based on comments or submissions received).
Where, however, consultation was previously undertaken in relation to a broader issue, a series of legislative reforms or instruments, but no further consultation was undertaken in relation to the specific instrument, the explanatory statement should address:
- what consultation was previously undertaken; and
- why it was considered unnecessary to undertake additional consultation in relation to the specific instrument.
Consultation with experts and persons likely to be affected by the instrument
Senate Standing Order 23(3)(d) specifically requires the committee to consider whether those likely to be affected by the instrument were adequately consulted. In addition, under the Legislation Act, in determining whether consultation was appropriate, a rule-maker may have regard to any relevant matter, which includes whether persons affected by the instrument were consulted.2 Under this principle, the committee will consider the extent to which relevant experts and persons likely to be affected by the proposed instrument had an adequate opportunity to comment on its proposed content.3 The committee expects the explanatory statement to include:
- a detailed explanation of any consultation undertaken with experts and persons likely to be affected by the instrument; or
- if no consultation was undertaken with such persons, the reason for not undertaking consultation with experts and persons likely to be affected by the instrument; and
- a summary of the outcomes of the consultation process (for example, any action that has been taken based on comments or submissions received).
Consultation with the Office of Impact Analysis
The committee does not consider consultation with the Office of Impact Analysis (formerly the Office of Best Practice Regulation) to be an adequate substitute for consulting with experts and persons likely to be affected by the instrument.
Explanatory statement checklist
The following checklist summarises what should be included in an instrument's explanatory statement under scrutiny principle (d).
- Consultation
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The explanatory statement should include: