Mr RUDDOCK (Attorney-General) (4:27 PM) —I move:

Firstly, this particular amendment passed by the Senate would prescribe that a rule maker must ensure that appropriate consultation is undertaken where a legislative instrument is likely to have a direct or substantially indirect effect on business or any other sector of the community, human rights or civil liberties or natural and Aboriginal cultural or built environment. This is no longer an indicative list when consultation is particularly appropriate but is a prescriptive list. At the same time it lists circumstances so broad and vague that they are difficult as to precise definition. Secondly, the amendment creates doubt as to who determines the appropriateness of consultation and whether it has been undertaken. The provision requires the rule maker to ensure that the appropriate consultation is undertaken but is silent as to who forms this opinion. This creates the risk that the validity of the legislative instrument may be challenged on the basis that appropriate consultation was not undertaken.

Thirdly, even to the extent that meaning can be given to the requirements, what is appropriate is essentially a matter of individual judgment. There is no basis for any objective standard that the rule maker can refer to. For example, how is a rule maker to ensure that appropriate consultation is undertaken in relation to an instrument that affects any other sector of the community? Fourthly, the amendment requires consultation even when this is not reasonably practicable. This places an onerous obligation on rule makers. Accordingly, the House of Representatives should not accept this amendment.