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By the people, for the people? Community participation in law reform  ( 2010 )  Cite this report

8. Discussion



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8.4 Conclusion


The strongest argument for why public participation in law reform is important for enhancing access to justice is because it furthers the ideals and aspiration of building democratic governance and a justice system more capable of ‘doing’ justice, and does so in a ‘just’ manner. Public and stakeholder participation in law reform extends access to justice to the very processes that set the conditions for justice.

Law reform is an inherently political process, however if law reform consultation stems from the premise that it is essentially an exercise in information collection and exchange with the aim of making better laws, its value rests on being able to reach into and make connections with the full and diverse set of affected stakeholders and communities. Indeed, one of the promises of public and stakeholder participation in law reform is its potential to produce more effective, responsive and just laws. Consultation can enhance the likelihood that legislation will work as intended and minimise unintended consequences.

Conversely lack of, or poorly conducted, consultation is not only more likely to have negative consequences for particular groups of people, public, and/or the government, and waste limited public, stakeholder, government and parliamentary time and resources, it also erodes public confidence and trust in law-making institutions, the law reform system, and government.

Law reform consultation provides an opportunity for government to reach out and include marginalised and disadvantaged people and communities. Effective law reform participation opportunities require government to be mindful of and responsive to the functional and law reform literacy needs of diverse people and groups, as well as the likely and unequal effects of time and resource constraints.

Participation opportunities that manifest in a one-size-fits-all form are unlikely to adequately capture information about the impact and operation of law on a diverse range of people or interests. In fact, one-size-fits-all law reform consultation is likely to disproportionately exclude marginalised and disadvantaged people. Unless law reform adequately provides for the consideration of impacts on marginalised and socially or economically disadvantaged groups — including the consideration of their particular participation needs — there is a significant risk that legislative reform may cause or reproduce disadvantage.

The strategies we suggest seek to address the factors that facilitate and constrain participation in law reform, as identified through our case study analyses. Although these strategies are focused on New South Wales, their relevance — and especially findings on the constraints stemming from a lack of functional and law reform literacy — is likely to extend to other levels of government. Indeed, a consequence of Australia’s federal system of government is that as institutional responsibilities and consultation practices are fragmented, the challenges posed by law reform literacy is exacerbated.



  


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Nheu, N & McDonald, H 2010, By the people, for the people? Community participation in law reform, Law and Justice Foundation of NSW, Sydney