The findings of By the people, for the people?
indicate that a number of factors affect how law reform occurs, the nature of any community participation opportunities and participants’ law reform capability — that is, their ability to participate effectively in law reform.
The skills, time and resources required to participate in law reform act as formidable constraints for many people. Accordingly, most people are far more likely to be represented in law reform by CSOs than to participate directly themselves.
Disadvantaged people generally face a wide range of additional participation constraints. As such, they can generally be expected to be absent or grossly under-represented in law reform unless they are connected to CSOs, or law-making bodies are able to successfully reach out and directly include them.
Law reform participation opportunities tend to arise on an ad hoc basis, and within certain timing and timeframe constraints. A key finding of By the people, for the people? is that successful participation in law reform at the time that opportunities arise will often depend upon certain foundational capabilities, such as functional literacy skills, basic knowledge of the law and law reform system, and basic knowledge of the political process and how it affects law reform.
Without sufficient time and resources to participate when particular law reform opportunities arise, many people are likely to be limited to representation via those CSOs who are able to participate.
Below we expand on these key findings by examining in greater detail law reform processes, opportunities for participation and law reform capability.
Law reform processes
Our research indicates that, in general, law reform has a number of common features:
- Law reform is a cyclical and iterative activity and tends to occur in four distinct stages: emergence, formulation, implementation and review. Issues emerge onto the legislative agenda, and may be formulated into legislative proposals to be introduced into parliament. If successfully enacted, legislation is then implemented and may subsequently be reviewed. Notably, community participation opportunities can arise at any of these stages, although the nature and scope of these opportunities depends on the stage and the consultation processes that have been established.
- Executive government is a key decision-maker across the law reform cycle, often determining what issues have legislative priority, the scope of reform, and, critically, whether there are community participation opportunities, and if so, the manner, timing and timeframe those opportunities may take.
The generalities, however, end there. Law reform is inherently political and executive decision-making is influenced by the wider social context and political circumstances. Accordingly, there is no single standard law reform process that is followed for all law reform issues. Instead, law reform:
- involves multiple law-making institutions whose roles may change depending on the stage of the cycle
- is complex and multi-faceted, and the process employed may differ from issue to issue
- is shaped by the wider political context — as influenced by public opinion, media, stakeholder and interest groups, political parties and parliamentary politics, among others.
Just how a particular law reform process will manifest varies, ranging from a slow, deliberative, proactive and highly consultative approach, to a rapid, reactive, and non-consultative approach that precludes any opportunity for community participation.
Sometimes the time [and] space between [law reform issue] identification and making the law is extremely short, and sometimes it can drag on for years before you get to the end of the process. … political issues are a big influence on the timeframe. (Government officer)
The case studies suggest that public or stakeholder consultation opportunities tend to be more common to some types of issues or areas of law. Reforms in areas such as law and order tend to occur reactively, often in response to particular events, and commonly preclude public participation via a consultation process. Other areas, such as mental health legislation, are typified by ongoing reform tested through extensive public consultation. Still others, which may not be considered to be particularly ‘sexy’ or ‘topical’, such as issues principally affecting socially excluded or hidden sections of the community, may languish and be left to incubate for long periods of time before eventually becoming subjects of legislative reform.
A common theme in our case studies is the way in which law-makers (government and parliament) seek to strike a balance between competing rights or interests, with community consultation serving the instrumental purpose of helping inform decisions about how to determine the appropriate balance.
Participation opportunities are variable
Our research indicates that opportunities to participate in law reform consultation arise primarily at executive discretion and are influenced by wider political circumstances. A combination of policy intent, political constraints and executive judgment underpin how and in what form participation opportunities manifest, and whether participation opportunities are limited to particular stakeholders or if contributions are sought from the general public.
Opportunities for public or stakeholder participation can exist across all four stages of the law reform cycle. Notwithstanding that formulation sometimes occurs quickly or wholly within government, stakeholders can nevertheless often participate through the institution of parliament, or sometimes during implementation.
Generally, the earlier that participation opportunities arise within the law reform cycle — particularly during the pre-parliamentary stage of formulation — the more likely that participants will be able to engage with the scope and manner of potential reform. At later stages, and particularly once legislative proposals have been drafted and introduced as Bills into parliament, participation may be limited to identifying possible unintended consequences or detrimental impacts of the proposal.
The timeframe and timing of participation opportunities, as well as the mechanisms established by executive government for pre-parliamentary formulation — such as whether an advisory body is tasked with conducting an inquiry or consultation — are critical to the nature of community participation opportunities.
Where government has extended public or stakeholder participation opportunities during the pre-parliamentary stage of formulation, we found that legislative proposals introduced into parliament tend to be enacted in a relatively un-amended form.
Volume of law reform activity
Statistical data on the volume of primary legislation enacted by the New South Wales Parliament indicates a steady and steep increase in the volume of law-making leading up to the mid 1980s, before tapering off to the level of the 1970s (see Figure 1). In recent decades, government is widely regarded as having adopted more consultative approaches to law-making than in earlier ages. Such a change appears to have resulted in increased opportunities for community participation in law reform.
Figure 1: Number of Acts made in New South Wales Parliament during the period 1900–2009
Source: Figures updated from Table 2 in Tomasic, R (ed.) 1980, Legislation and society in Australia, Law Foundation of NSW and George Allen & Unwin, Sydney, p. 11, using NSW Parliamentary Counsel legislative database (http://www.legislation.nsw.gov.au) and the chronological tables in Statutes of NSW (published annually).
Higher volumes of public and stakeholder consultation, however, affect the time and resources available within government, parliament, as well as the community, to focus on any particular legislative reform. Our interviews indicate that the timeframe and timing of law reform can compound participation constraints, particularly when opportunities arise in ad hoc ways that are difficult to predict.
Prospective participants not only have to be aware of particular participation opportunities, but also need to determine that participating is worthwhile notwithstanding competing priorities and activities.]
Our case studies highlighted that different types of stakeholder organisations are affected by law reform consultation opportunities in different ways. Some stakeholder groups, particularly those with high status, expertise, or reach into particular affected constituencies, are invited by government, parliament or advisory bodies to participate in far more law reform consultation opportunities than they have either the time or resources to do, contributing to ‘consultation fatigue’. In addition, the time and resources expended responding to these requests may significantly reduce the resources available for bottom-up/proactive law reform efforts concerning matters identified as being of priority to constituents.
… a fundamental issue across all these issues [is] the amount of responses you have to make. You know, it’s mind-blowing. The number of submissions that I’ve written over the years … (Non-legal CSO)
On the other hand, organisations with less established relationships and profiles are unlikely to be extended the same consultation opportunities.
Experiences of law reform consultation
Participation opportunities may arise through invitations to make a submission or participate in a law reform consultation, such as a task force or working group, or to provide oral testimony. Informants indicated that participation opportunities most commonly manifest in the form of an invitation to make a written submission in response to a consultation or discussion paper, and that law reform communication predominately occurs in written form.
Further, informants indicated that documents used in law reform consultation tend to be written in a formal and legalistic style and language. The consultation process often involves a one-size-fits-all approach to potential participants that is not necessarily attuned to the particular participation needs of diverse individuals and stakeholder organisations. There is a strong likelihood that one-size-fits-all approaches will have a disproportionate impact on the ability of disadvantaged people to participate, as it is less likely that their diverse participation needs will be met.
Common frustrations experienced in participating in law reform
Among our non-government informants the general experience of law reform participation was a negative one. Informants often talked about law reform that they perceived as having disappeared into the ether, achieved little, or which had outcomes that were seemingly unexplained and/or appeared to be inconsistent with the contributions and evidence provided during the consultation process. Frustration and negative experience was typically associated with what was perceived to be a poor consultation or communication process.
Our research suggests that law reform participants generally expect that the contributions they make will be taken into account, that they will be kept informed of subsequent developments, and that they will be made aware of the rationale for outcomes. Consultation practices, however, did not always appear to match these expectations. As such, there may be a significant gap between some participants’ expectations of the role of public or stakeholder consultation in the legislative process, and how particular law reform consultations and institutions operate in practice. When expectations are not met, we found that participants may not only lose trust and confidence in the law, law-making institutions, and the justice system, but that they may also lose confidence in their ability to effectively participate in law reform. Without post-participation feedback, participants may not have the opportunity to develop a greater appreciation of the factors affecting law reform outcomes. Adequate feedback — for example, that their contribution may have been considered but outweighed by other evidence or views — could alleviate at least some of the negative experiences commonly expressed.
Without a belief that they are able to participate effectively, or that their contribution has the potential to affect outcomes, participants may be less likely to regard participation in law reform as being a worthwhile endeavour.
... you’re often responding to things that you responded to three years ago, five years ago. And government repeats processes, doesn’t complete, doesn’t finish, then starts again. (Non-legal CSO)
… there was a massive number of people that put an incredible amount of time into the review … but nobody got any feedback … it just died … (Member of government advisory body)
Confidential higher-level executive decision-making (such as cabinet deliberations) can lend an opaqueness to law reform outcomes, particularly for participants and stakeholders who do not enjoy close relationships or networks with government. Unlike legislative proposals that are given a formal explanation of the government’s reasoning as part of the parliamentary process, there may be no equivalent formal explanation for the government’s reasoning in declining to proceed with law reform. As such, so-called ‘non-decisions’ can increase frustration and uncertainty for some participants and stakeholders.
Law reform capability
A key finding of By the people, for the people? concerns participants’ law reform capability. Being able to effectively participate in law reform was found to involve a diverse range of skills across multiple dimensions of law reform literacy.
Requisite knowledge and skills
Commonly, people only become aware of a legal issue — and law reform as a possible solution — once they are personally affected by it, or if they become aware of difficulties and injustice experienced by others. In addition to such awareness, being able to participate effectively in law reform requires a relatively sophisticated level of functional literacy, as well as law reform advocacy skills and knowledge.
In particular, those people who are inexperienced or unfamiliar with the way government and law reform operates were found to generally struggle with the knowledge, skills and confidence necessary to participate in law reform. Although participation opportunities are frequently provided, and in many instances are formally open to all, we found that the law reform capability of people, especially disadvantaged people and the organisations that often represent them, means that those opportunities do not manifest in substantively equal ways.
… read any text on what our formal rights are, and we’re all equal before the law and we all have theoretically the same opportunity to engage in law reform, but we all know that that’s not how it works … all citizens don’t come to those processes as if there was a level playing field. (Member of government advisory body)
Much law reform activity involves locating, collecting, analysing and exchanging information. Fundamentally, these activities involve comprehension and communication skills — the basis of functional literacy. Systemic reliance on written communication in law reform processes means that functional literacy is a prerequisite for law reform participation. In other words, the ability to find, comprehend and respond to written information is often required to participate in law reform. In addition, law reform capability was found to involve sophisticated skills across multiple dimensions, such as knowledge of:
- the general law reform system — how law reform occurs, the roles and relationships among different law-making institutions, and that public or stakeholder participation opportunities may exist
- a specific law reform participation opportunity — awareness that a participation opportunity may exist at a particular stage of the law reform cycle, including its scope, timing and timeframe
- the specific law under possible reform — what the law is and how its operation or impact may be affected by reform
- the wider legal context of the issue — what, if any, wider legal consequences the reform may have, including any substantive and procedural implications and how significant the anticipated and unanticipated legal consequences may be
- the wider policy context of the issue — consideration of the likely impact of the law or legislative proposal on particular groups of people or interests, including how to find, use and apply information to develop, analyse and demonstrate policy positions relating to those impacts (such as identifying likely detrimental or unanticipated consequences)
- the wider political context — the constraints under which government operates, the affected interests and institutional networks associated with particular policy issues, and the advocacy skills to effectively communicate views that are useful and influential to law-makers.
Law reform capability involves drawing on each of these knowledge dimensions in a purposeful and goal-oriented way: to seek and interpret information (often written), to critically analyse reform proposals, to communicate and articulate law reform claims, and to determine the best strategy through which to ‘work the system’ and try to influence law reform outcomes. These are all skills involved when ‘doing’ and participating in law reform.
… the difficulty is that people don’t understand the process of how laws are formed or how it’s come about … (Legal CSO)
The case studies and interviews suggest that the level of knowledge and skills usually involved in law reform participation, including functional and law reform literacy, legal and policy analysis, and research and advocacy skills, are beyond the ordinary capability of an overwhelming majority of the population.
Requisite experience and resources
Law reform capability is primarily acquired by active participation in law reform. Greater levels of participation also appear to build confidence and resilience to unfavourable outcomes. The report found negative experiences of law reform lead participants to question the credibility of the process and their ability to participate effectively. Participants with lower law reform literacy or experience appeared to be particularly vulnerable to being cynical and disillusioned with law reform processes and outcomes.
The report also found that available time and resources are critical to whether prospective participants are able to make effective use of law reform participation opportunities as they arise.
The multi-dimensional nature of law reform literacy, the relative sophistication of the skills involved, and the one-size-fits-all consultation processes commonly adopted mean that law reform participants tend to comprise a relatively narrow set of ‘usual suspects’ — principally, people or organisations who are relatively well educated, well resourced, and who are well connected to institutional and organisational networks. The skills, time and resources involved in law reform are formidable constraints for many people, and indeed are the main reason why most individuals are more likely to participate in law reform through, or be represented by, CSOs, than they are to participate directly themselves.
Disadvantaged people and groups often have a unique insight into the practical operation and impact of certain laws. Providing public participation opportunities, and especially extending them to marginalised and disadvantaged groups, may enable more informed and nuanced reforms.
The personal circumstances of many disadvantaged people, however, were identified by CSO informants as being fundamental constraints on their ability to participate in law reform. Disadvantaged people generally face significant additional participation constraints, including needing to devote disproportionate time and resources to primary needs such as food, safety and shelter. Social stigma and the often hidden nature of disadvantage and social exclusion further marginalise disadvantaged people from law reform processes and institutions. This inturn severely restricts their participation and can make reaching out to them to meet their participation needs both time and cost prohibitive, should law reform agencies wish to do so.
According to informants, disadvantaged people are also more likely to have lower levels of trust and confidence in government and its processes, and are less likely to take up opportunities to participate in law reform. Disadvantaged people commonly experience governance institutions as being remote and daunting. Historical marginalisation also means that some groups of disadvantaged people may be less confident that their views will be valued or taken seriously. Fear of the possible consequences of ‘speaking out’, or of the potential for social stigmatisation associated with public processes, are some further reasons disadvantaged people are more likely to be wary and distrustful of government and of processes such as law reform.
Lower levels of functional literacy and other constraints associated with physical, cognitive, cultural and geographic factors mean that disadvantaged people generally have participation needs that, if not sufficiently considered in the consultation processes instituted, are likely to disproportionately exclude them from participating effectively in law reform.
… in lots of cases, because they have such low literacy skills, a) they can’t read it, or b) they like to cover up the fact that they can’t read it so they won’t contact anybody. (Non-legal CSO)
Further, since disadvantaged people with complex needs tend to put off dealing with legal problems because other essential life needs have higher priority, participating in law reform will often simply not be on their radar. Accordingly, disadvantaged people can be expected to be absent or grossly under-represented in law reform unless they are connected to CSOs who participate, or if law-making bodies are able to successfully reach out to them directly. In the absence of law reform consultation tailored to the participation needs of particular groups of disadvantaged people, their participation in law reform may necessarily be limited to representation by or through CSOs, if they are to participate at all.
… if you were genuine about increasing participation in law reform you would be increasing people’s standard of living. I mean, very basically. You would be getting people out of poverty, you would be making sure that they’re housed and that there’s a basic level of literacy. You give people enough stability and happiness in their lives to actually be able to either self-advocate or go and find someone to advocate for them … There’s no easy tinkering, like people say, you know, ‘hold a public forum and they will come’ — well no, not necessarily. (Legal CSO)
Civil society organisations (CSOs)
The case studies suggested that the ability of CSOs to act as experts and link constituents to government plays an important role in including disadvantaged people in law reform. CSOs’ greater access to information, resources and skills means that their constituent members often depend on them to represent their views and interests in law reform consultations.
Our research found that one of the ways human sector CSOs are able to overcome participation constraints is by collaborating, networking and sharing law reform expertise and knowledge. In particular, peak bodies were found to play a critical role in raising awareness about law reform participation opportunities and fostering collaboration.
We see our role as facilitating views held by our member groups, based on expertise that we can access … we need to get the information from the experts. We need to get it to the membership. (Non-legal CSO)
CSOs’ law reform capability
While disadvantaged people may depend on CSOs for participation, our research indicated that CSOs differ greatly in their law reform capability. Having insufficient time and resources was an oft cited participation constraint.
Probably time is always a constraint … being able to be aware of what the issues are. Being up with whatever reading or whatever changes are going on. It can be a really complex world, understanding what’s going on with different departments, different proposals, whatever’s going on there. I think time would be the main challenge. (Non-legal CSO)
By the people, for the people?
found that one-size-fits-all consultation processes disproportionately affect the participation ability of those CSOs with less access to law reform expertise and available resources. In particular, non-legal CSOs were found to often need additional time to source legal expertise, consider the implications of reform, and engage with their constituencies. Non-legal and other CSOs with lower law reform literacy or access to law reform expertise were also found to be more likely to mistakenly assume that law reform submissions should take the form of a legal critique or be presented in a legalistic manner.
… the risk is … people take the legal advice as the policy position they should take. And it’s like, no, they’re completely different things. (Legal CSO)
Where non-legal CSOs were able to successfully meet their law reform literacy needs by accessing legal expertise, their law reform capability was enhanced. While a number of non-legal informants stated that having access to pro bono legal expertise was beneficial to their law reform work, the nature of law reform consultation deadlines meant that this was only really practicable when there was a pre-existing client–adviser type relationship.
CSOs’ funding for law reform
Importantly, By the people, for the people?
found that funding constraints limited the ability of CSOs to engage in law reform work. For many CSOs, law reform is additional and ad hoc work for which resources have to be found or stretched. In practice this means that law reform capability may depend upon volunteers or staff working in their own time. Where CSOs have less in-house law reform expertise, and less access to resources, they may feel incapable of effectively participating in law reform and of influencing decision-making. They therefore may prefer instead to expend their limited time and resources on activities perceived as having more tangible and direct outcomes for their constituents.
A consequence of prohibitive time and resource pressures is that law reform work may increasingly become the domain of peak bodies, which may not only further distance and filter CSO constituent participation, but also erode the law reform capability of CSOs across the human services sector.