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Requiring decision-makers to consult
This is a single section from Chapter 19. Read the full chapter here.
What aspects of the consultation process should be prescribed?
The specific requirements for consultation should be set by legislation if certainty is needed on the scope or timing of the obligations.
As mentioned earlier, if legislation does not specify the process to be followed in consultation, the common law will fill in the detail. Specifically, the principles outlined in the Wellington International Airport case apply. Generally, it is better to rely on the common law as it is sufficient to ensure meaningful consultation and minimises the risks that come from excessive legislation of detailed processes.
However, in some contexts, there may be advantages in imposing more specific (and possibly circumscribed) obligations in place of the standard common law duty. Those advantages may exist when express consultation provisions could:
- ensure consistent consultation practice across multiple decisions or decision-makers;
- provide certainty to decision-makers and affected people about the process that should be followed; or
- provide assurance to decision makers about the limits of their obligations to consult.
Aspects of the consultation process that could be specified in legislation include:
- the timing of the consultation obligation as part of the decision-making process;
- the way in which notice of the consultation opportunity should be given; and
- the information that must be provided to inform interested parties.
However, any prescribed consultation process should be crafted in a way that takes account of the degree of flexibility decision makers are likely to need in the particular context.
Officials should note that if the legislation confers an obligation to “consult”, it is not necessary to go on to impose specific obligations, such as to “have regard to the views of”, “consider the views of” or “request people to comment” (which are inherently part of the obligation to consult).