By the people, for the people? Community participation in law reform ( 2010 ) Cite this report
While these ideals are a key rationale, there are also additional reasons why public and stakeholder participation in law-making is important, such as that they are features of best practice law-making (see OECD, 2001). Consultation provides a way to test the clarity, comprehension and likely effectiveness of proposed legislation. Consultation may also help to better target ‘wicked social problems’ — characteristic of many social policy areas involving social and economic disadvantage — and maximise the quality and effectiveness of legislation. When the diverse range of affected interests and groups is included, especially disadvantaged and marginalised people, law-making decisions are more likely to be based on more complete information about the law, its impacts, operation and consequences.
Legislation based upon incomplete information will often need to be subsequently rectified. This not only incurs additional government and parliamentary time and resources, but also collateral costs associated with unintended or unforeseen impacts or injustice. Such costs may be substantial and significant, but they are difficult to calculate and are not likely to be compensated. They may also undermine trust and confidence in the law, legal system and government.
We found most people, and many groups, face formidable individual and systemic constraints which limit their capability to participate in law reform. Although many opportunities for public or stakeholder participation exist, law reform advocacy involves daunting time and resource costs as well as high levels of functional literacy and law reform literacy.
Our findings in fact indicate that there is an important distinction to be made between a law reform ‘participation opportunity’ and an ‘effective participation opportunity’. Effective participation is premised on having an opportunity to participate, as well as the functional literacy, law reform literacy and advocacy skills, and the time and resources needed to make use of that opportunity. Such a distinction allows us to differentiate stakeholders who face constraints to participation, from those who choose to opt out. It is the participation needs of the former with which this report is concerned.
For the purposes of this study we focused on law-making in New South Wales, although given that the participation constraints are likely to be similar our findings and their implications may also extend to Commonwealth law-making. In this chapter we identify systemic features of the law reform system which constrain participation in law reform, and note some of their important implications. We then suggest some strategies to improve the effectiveness of law reform participation opportunities for the public, disadvantaged people, and the CSOs which tend to represent them.