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Requiring decision-makers to consult
This is a single section from Chapter 19. Read the full chapter here.
Who should be required to be consulted?
An obligation to consult should clearly identify who must be consulted.
The particular circumstances of the policy will determine how the legislation should describe who must be consulted. The two main concerns here are that the description:
- captures the key people or organisations likely to be interested in or affected by the decision; and
- is sufficiently certain, without unnecessarily restricting the requirements or being too inflexible to cater for change (for example, changing organisations).
Naming or describing the people or organisations to be consulted provides the greatest level of certainty about who must be consulted (for example, the Privacy Commissioner). Officials should, however, consider whether the description of the person or organisation is likely to change over time or be superseded, making the legislation obsolete.
The people or organisations to be consulted can also be described by category (for example, registered architects or “entities to which this decision applies”) or by their representative nature (for example, “organisations representing the interests of journalists”). In those cases, officials should consider whether the class of people included within a description is sufficiently confined so that the decision maker can be certain of satisfying the obligation.
Often, it will not be possible to name or describe in advance all the people who should be consulted. In that case, a “catch-all” description may also be added (for example, “any other person likely to be substantially affected by the decision” or “any other person that the [decision-maker] considers is likely to be affected by the decision”). Catch-all descriptions can result in more risk around decision-making processes (because they require a judgement about who must be consulted and that decision may be challenged). However, that risk should be balanced against the countervailing risk of being under-inclusive or allowing too much discretion. Those risks may be reduced by allowing consultation with the representatives of the people who are substantially affected.