Appendix 3
Guideline on consultation
AUSTRALIAN SENATE
STANDING
COMMITTEE ON REGULATIONS AND ORDINANCES
Guideline
for preparation of explanatory statements: consultation
Role of the
committee
The Standing
Committee on Regulations and Ordinances (the committee) undertakes scrutiny of
legislative instruments to ensure compliance with non-partisan principles of
personal rights and parliamentary propriety.
Purpose of
guideline
This guideline
provides information on preparing an explanatory statement (ES) to accompany a
legislative instrument, specifically in relation to the requirement that such
statements must describe the nature of any consultation undertaken or
explain why no such consultation was undertaken.
The committee
scrutinises instruments to ensure, inter alia, that they meet the technical
requirements of the Legislative Instruments Act 2003 (the Act) regarding
the description of the nature of consultation or the explanation as to why no
consultation was undertaken. Where an ES does not meet these technical
requirements, the committee generally corresponds with the relevant minister
seeking further information and appropriate amendment of the ES.
Ensuring that the
technical requirements of the Act are met in the first instance will negate the
need for the committee to write to the relevant minister seeking compliance,
and ensure that an instrument is not potentially subject to disallowance.
It is important to
note that the committee's concern in this area is to ensure only that an ES is
technically compliant with the descriptive requirements of the Act regarding
consultation, and that the question of whether consultation that has been undertaken
is appropriate is a matter decided by the rule-maker at the time an instrument
is made.
However, the nature
of any consultation undertaken may be separately relevant to issues arising
from the committee's scrutiny principles, and in such cases the committee may
consider the character and scope of any consultation undertaken more broadly.
Requirements of the Legislative
Instruments Act 2003
Section 17 of the
Act requires that, before making a legislative instrument, the instrument-maker
must be satisfied that appropriate consultation, as is reasonably practicable,
has been undertaken in relation to a proposed instrument, particularly where
that instrument is likely to have an effect on business.
Section 18 of the
Act, however, provides that in some circumstances such consultation may be
'unnecessary or inappropriate'.
It is important to
note that section 26 of the Act requires that explanatory statements describe
the nature of any consultation that has been undertaken or, if no such
consultation has been undertaken, to explain why none was undertaken.
It is also
important to note that requirements regarding the preparation of a
Regulation Impact Statement (RIS) are separate to the requirements of the Act
in relation to consultation. This means that, although a RIS may not be
required in relation to a certain instrument, the requirements of the Act
regarding a description of the nature of consultation undertaken, or an
explanation of why consultation has not occurred, must still be met. However,
consultation that has been undertaken under a RIS process will generally
satisfy the requirements of the Act, provided that that consultation is
adequately described (see below).
If a RIS or similar
assessment has been prepared, it should be provided to the committee along with
the ES.
Describing the
nature of consultation
To meet the
requirements of section 26 of the Act, an ES must describe the nature of any
consultation that has been undertaken. The committee does not usually
interpret this as requiring a highly detailed description of any consultation
undertaken. However, a bare or very generalised statement of the fact that
consultation has taken place may be considered insufficient to meet the
requirements of the Act.
Where consultation
has taken place, the ES to an instrument should set out the following
information:
Method and purpose
of consultation
An ES should state
who and/or which bodies or groups were targeted for consultation and set out
the purpose and parameters of the consultation. An ES should avoid bare
statements such as 'Consultation was undertaken'.
Bodies/groups/individuals
consulted
An ES should
specify the actual names of departments, bodies, agencies, groups et cetera
that were consulted. An ES should avoid overly generalised statements such as
'Relevant stakeholders were consulted'.
Issues raised in
consultations and outcomes
An ES should
identify the nature of any issues raised in consultations, as well the outcome
of the consultation process. For example, an ES could state: 'A number of
submissions raised concerns in relation to the effect of the instrument on
retirees. An exemption for retirees was introduced in response to these
concerns'.
Explaining why
consultation has not been undertaken
To meet the requirements
of section 26 of the Act, an ES must explain why no consultation was
undertaken. The committee does not usually interpret this as requiring a
highly detailed explanation of why consultation was not undertaken. However, a
bare statement that consultation has not taken place may be considered
insufficient to meet the requirements of the Act.
In explaining why
no consultation has taken place, it is important to note the following
considerations:
Specific examples
listed in the Act
Section 18 lists a
number of examples where an instrument-maker may be satisfied that consultation
is unnecessary or inappropriate in relation to a specific instrument. This list
is not exhaustive of the grounds which may be advanced as to why
consultation was not undertaken in a given case. The ES should state why
consultation was unnecessary or inappropriate, and explain the reasoning in
support of this conclusion. An ES should avoid bare assertions such as
'Consultation was not undertaken because the instrument is beneficial in
nature'.
Timing of
consultation
The Act requires
that consultation regarding an instrument must take place before the
instrument is made. This means that, where consultation is planned for the
implementation or post-operative phase of changes introduced by a given
instrument, that consultation cannot generally be cited to satisfy the
requirements of sections 17 and 26 of the Act.
In some cases,
consultation is conducted in relation to the primary legislation which
authorises the making of an instrument of delegated legislation, and this
consultation is cited for the purposes of satisfying the requirements of the
Act. The committee may regard this as acceptable provided that (a) the
primary legislation and the instrument are made at or about the same time and
(b) the consultation addresses the matters dealt with in the delegated
legislation.
Seeking further
advice or information
Further information
is available through the committee's website at
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/index.htm or by contacting the committee secretariat at:
Committee Secretary
Senate Regulations
and Ordinances Committee
PO Box 6100
Parliament House
Canberra ACT 2600
Australia
Phone: +61 2 6277
3066
Fax: +61 2 6277
5881
Email:
RegOrds.Sen@aph.gov.au
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