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By ANDREW EDGAR

The recent dispute between the Commonwealth Attorney-General, Senator George Brandis QC, and the Commonwealth Solicitor-General, Justin Gleeson SC, related to the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. The amendment required referral of legal issues to the Solicitor-General for advice to be approved by the Attorney-General. The substance of the dispute concerned access to the Solicitor-General and possible threats to the office’s independence. But it also included a procedural issue – whether the Attorney-General consulted the Solicitor-General when making the 2016 amendment.

The Attorney-General claimed in the Explanatory Statement accompanying the amendment that he did consult the Solicitor-General and the Solicitor-General said he did not. The nature and extent of the consultations that took place were the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs.

The dispute was brought to a close by Gleeson’s resignation, the report of the Senate Standing Committee that was critical of the Attorney-General for his part in it, the Attorney-General’s withdrawal of the amending Direction, and the Senate’s disallowance of the amending Direction (Commonwealth Senate, Parliamentary Debates, 23 November 2016, 98).

This post discusses the significance of the procedural aspect of the dispute – whether the Attorney-General consulted the Solicitor-General. What does it mean to “consult” somebody? The Brandis-Gleeson dispute provides an opportunity to examine the consultation provisions for regulations made by Commonwealth officials contained in the Legislation Act 2003 (Cth).

Report of the Senate Standing Committee on Legal and Constitutional Affairs

The Senate Committee delivered a majority report and a dissenting report of two government members. The difference between the two reports boiled down to whether or not the Attorney-General consulted the Solicitor-General.

At the Solicitor-General’s request, the Attorney-General met with the Solicitor-General (and others) in November 2015 and discussed processes for government agencies to seek advice of the Solicitor-General. The Solicitor-General was also offered an opportunity to provide written suggestions and proposed amendments to the non-binding policy that governed this process: the Office of Legal Services Coordination ‘Guidance Note 11’. He did so, and the written suggestions together with the proposed new Note were provided to the Attorney-General in March 2016. The Attorney-General claimed before the Senate Committee that the November 2015 meeting and the Solicitor-General’s subsequent written suggestions amounted to consultation for the purposes of the Legislation Act 2003 (Cth).

The Solicitor-General disagreed. In his submission to the Committee, he said of the November 2015 meeting that the Attorney-General had not indicated:

that he was considering issuing either a legally binding Direction concerning the performance of the functions of the Solicitor-General or a requirement that a Commonwealth person or body could only approach the Solicitor-General for advice after receiving the Attorney-General’s advance approval.

The Solicitor-General’s primary point was that he was not given any notice of the specific 2016 Direction prior to it being made in May 2016 and therefore disagreed with the Attorney-General that he had been consulted.

The majority of the Committee agreed with Solicitor-General.  The majority report focused on the fact that at the time of the discussion between the Attorney-General and the Solicitor-General there was no proposal for a legally binding legislative instrument, that is, the 2016 Direction. The Committee stated that

section 17 of the Legislation Act refers to consultation in relation to a ‘proposed instrument’. It is simply not possible for the Attorney-General to have consulted on an instrument that was not yet in existence or even contemplation.

The dissenting report instead regarded the November 2015 meeting as being ‘sufficient to discharge the Attorney-General’s consultation duty under the [Legislation] Act’. It supported that view by referring to the wording of s 17 of the Legislation Act, the provision that refers to consultation by rule-makers, by stating that:

the statute leaves the form and extent of consultation entirely at the discretion of the rule-maker. In this case, the rule-maker was the Attorney-General who, unlike the Solicitor-General, is an elected representative and a Cabinet Minister.

Consultation provisions in the Legislation Act 2003 (Cth)

The majority and dissenting reports emphasised different aspects of s 17 of the Legislation Act 2003 (Cth). It provides,

(1)  Before a legislative instrument is made, the rule‑maker must be satisfied that there has been undertaken any consultation that is:

(a)  considered by the rule‑maker to be appropriate; and

(b)  reasonably practicable to undertake.

(2)  In determining whether any consultation that was undertaken is appropriate, the rule‑maker may have regard to any relevant matter, including the extent to which the consultation:

(a)  drew on the knowledge of persons having expertise in fields relevant to the proposed instrument; and

(b)  ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to comment on its proposed content.

(3)  Without limiting, by implication, the form that consultation referred to in subsection (1) might take, such consultation could involve notification, either directly or by advertisement, of bodies that, or of organisations representative of persons who, are likely to be affected by the proposed instrument. Such notification could invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.

The discretionary nature of this provision should be noted. The rule-maker has to conduct consultation that they consider ‘appropriate’ and ‘reasonably practicable’. These aspects of the provision can be usefully contrasted with consultation provisions that are expressly mandatory. Such provisions typically state merely that notice is to be given of the proposed regulation to the public (or a specified person) and any submissions lodged must be considered.

Section 19 of the Legislation Act 2003 confirms that it is permissible for the rule-maker to decide not to conduct any consultation process. It provides that the ‘fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument’. Accordingly, it would have been permissible under these provisions for the Attorney-General not to consult the Solicitor-General. The particular difficulty in this case concerned s 15J(2)(e) of the Legislation Act 2003 which requires a statement that the rule-maker has decided not to consult anyone to be included in the explanatory statement. The relevant explanatory statement for the 2016 Direction said that the Solicitor-General had been consulted.

Why design consultation provisions to be discretionary and unenforceable?

I do not intend to evaluate the differences between the claims made by the Attorney-General and the Solicitor-General or the reasoning in the majority and dissenting reports. My interest concerns the design of the provisions and their consequences, which I have researched in more detail here.

The first point to note is that the consultation provisions were consciously designed to exclude judicial review. In the parliamentary debates for the Legislation Act 2003 (initially entitled the Legislative Instruments Act 2003), the Commonwealth Attorney-General of the time, Mr Philip Ruddock, indicated that the provisions were designed to counter the risk of legal challenges to regulations on the basis of inappropriate consultation (Commonwealth House of Representatives, Parliamentary Debates, 3 December 2003, 23648).

A member of the opposition, Senator Joseph Ludwig, provided a further indication in these debates as to whereabouts within government the concerns had arisen. He stated:

[C]onsultation is a contentious subject. Here the main concerns were not so much those of parliament but those of government agencies, who have obviously very effectively lobbied the former Attorney-General, Mr Williams, to replace the mandatory consultation provisions in the earlier bills with the mechanism in the current bills. The Senate committee noted that the current mechanism is weaker and provides for limited accountability for a failure to consult but took the view that, in light of the long history of this bill, the mechanism should be given an opportunity to work. (Commonwealth Senate, Parliamentary Debates, 2 December 2003, 18626).

It is concerning if Senator Ludwig was right that the discretionary, unenforceable nature of the consultation provisions in the Legislation Act 2003 was the result of lobbying by government agencies. Enforceable public consultation provisions would have gone a long way to ensuring that the work of those agencies regarding proposed regulations would be exposed to the public and potentially criticised prior to their being made.

As they are, the provisions are strangely ambivalent. They must have been included in the Act because consultation was recognised to be a way of ensuring that potential harms and unintended consequences of a regulation are responded to by officials prior to the law being made. But on the other hand, they permit consultation processes to be conducted in a perfunctory manner if the rule-maker regards that as appropriate and permit consultation processes not to be held at all.

What are the consequences of this design?

The consequence in terms of litigation concerning the administration of the provisions is apparent. Since the consultation provisions of the Legislation Act 2003 commenced in 2005 there have been no cases raising issues regarding breach of the consultation provisions of the Act. As common law principles of procedural fairness also do not apply to the making of regulations in Australia, there is no scope for the development of procedural principles, at least by courts, as to how consultation should be conducted.

The situation is different in other, comparable countries. The United Kingdom courts have developed a set of consultation principles referred to as the ‘Gunning principles’ that apply when officials are required to conduct consultation processes:

First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, … that adequate time must be given for consideration and response and finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals. (R v Brent London Borough Council; Ex parte Gunning (1985) 84 LGR 168, 189.)

The Gunning principles provide guidance to officials and members of the public as to how such processes should be managed. They also provide standards by which officials can be held accountable in courts for their engagement with the public. If such standards were to apply in Australia, government officials would have a better sense of what consultation requires and stakeholders could potentially hold officials accountable for the processes used for particular regulations.

According to the current consultation provisions of the Legislation Act 2003, it is not only the courts that are excluded from supervising consultation processes. The Senate Standing Committee on Regulations and Ordinances is also effectively excluded. That Committee does not have specific criteria for reviewing consultation processes and since the Legislation Act 2003 makes consultation discretionary the Committee has no real supervisory role in checking the appropriateness of any consultations held. The Committee’s role is restricted to supervision of government officials’ explanations of consultation process according to s 15J(2)(e) of the Legislation Act 2003.

The limitations on the Regulations and Ordinances Committee’s role can be seen in its report for the 2016 Direction. The Committee raised a concern with the Attorney-General that the Direction narrowed the scope of the Solicitor-General’s functions and that such a change was better suited to primary legislation rather than delegated legislation. However, it said nothing about the issue dealt with by the Senate Standing Committee on Legal and Constitutional Affairs: whether a consultation process had been conducted or not. It would have had no basis to question the Attorney-General’s claim in the explanatory statement that a consultation process was held.

The Brandis-Gleeson affair is therefore unusual for drawing attention to consultation processes for making regulations. It was unusual because the institutions with general powers for reviewing regulations (that is, courts and the Regulations and Ordinances Committee) either have no power, or very restricted power, to review consultation processes under the Legislation Act 2003.

Conclusion

The Brandis-Gleeson dispute highlights that under the current provisions of the Legislation Act 2003, Ministers can treat informal discussions as being a consultation process. The Act does not provide minimum standards for consultation processes by which the practices of government officials can be assessed.

This may be of particular concern when it is recognised that delegated legislation has become the most prevalent form of law. It is well-known that the amount of regulations made in modern societies far exceeds the number of Acts. Moreover, modern primary legislation is often drafted in “skeleton” form: that is, it provides little in the way of substance and policy. The substance is instead provided subsequently by government officials using delegated legislation (see Mark Aronson, “Subordinate Legislation: Lively Scrutiny or Politics in Seclusion” (2011) 26 Australasian Parliamentary Review 4-19).

Such developments suggest it would be worthwhile reconsidering the legal frameworks for making regulations.

The Brandis-Gleeson affair also indicates a practical reason for consultation processes to be held prior to laws being made. A more formal, public, consultation process would most likely have enabled the difficulties with the 2016 Direction to be resolved. Such a process would likely have enabled former Solicitors-General, Bar Associations, and academic experts to inform government officials about the difficulties within the proposed Direction; enabling such officials to accommodate those concerns while also achieving the aims sought by the Direction. That, I think, would have been a more orderly and effective process than what we saw unfold in the Brandis-Gleeson affair.

Andrew Edgar is an Associate Professor at Sydney Law School.  He specialises in administrative law.

Suggested citation:  Andrew Edgar  ‘The Brandis-Gleeson affair – what does “consultation” mean?‘ on AUSPUBLAW  (6 December 2016) <https://auspublaw.org/2016/11/the-brandis-gleeson-affair-consultation>