By the people, for the people? Community participation in law reform ( 2010 ) Cite this report
The topic is timely. Participation of citizens in making the laws which order, govern and structure our society is increasingly being recognised as not only potentially leading to better laws, but also to a more robust democracy (OECD, 2001; Argy and Johnson, 2003; BRO, 2008). At the same time a growth in the volume and complexity of legislation suggests that participating in law reform is becoming an increasingly frequent and challenging task.
While research has looked at the ability of people to get assistance for their legal problems, little has been done which looks at the capacity of people, particularly disadvantaged people, to participate in law reform.
1.1 Research questions
This study explores:
We use case studies of actual and proposed law reform in New South Wales to explore these questions, and purposely selected those case studies having direct significance for groups identified by the Foundation as being disadvantaged under its Access to Justice and Legal Needs research program. The case studies involve issues affecting public housing tenants, boarders and lodgers, people affected by mental illness, and previous offenders:
Our research questions involve four key concepts:
Law reform and law-making
Many textbooks outline the legislative process as covering the period from the introduction of a legislative proposal to Cabinet to its passage into legislation. This however is only part of the law reform process. Although law reform involves activities that are not clearly defined, it commences before the formal legislative process starts and continues into the implementation of legislation and its potential review.
This study is primarily concerned with legislative law reform — that is, law reform associated with actual or proposed change to legislation. Legislation includes Acts of parliament1 as well as Regulations2 which contain the administrative or operational details that support the primary legislation. While common law or so-called judge-made changes to law are important sources of, as well as triggers of, law reform, they are beyond the scope of this inquiry.
In this report we distinguish ‘law-making’ from law reform activity. We define law-making as activity that only parliamentary or government institutions, and their advisory bodies, are able to do. Law-making includes considering, developing, investigating, approving, or revising proposed or existing legislation. Law-making bodies include government departments, parliament and its committees, and advisory bodies like the New South Wales Law Reform Commission (NSW LRC), or Ministerial or Advisory Councils.
Law reform is distinguished from law-making in that it includes attempts by the public or stakeholder groups to influence law-makers to change the law, or their participation in law reform consultation processes. The distinction between law-making and law reform activity — between the tasks of formulating, making, and revising legislation as opposed to activities which seek to contribute to or influence law-making — suggests there are insiders and outsiders in law reform processes. The public and stakeholders can participate in law reform, but they cannot make law. Our research looks at opportunities available to the community to participate in law reform, and the capacity of the public and non-government stakeholders to take up these opportunities.
Central to this study is the notion of participation — the capacity of citizens to be a part of and have a say in — law reform. The concept of participation does not have a settled and accepted meaning in the literature. There are many forms of participation as well as debate about what it ought to involve.
We define participation in this report as any communication between individuals or groups and law-making bodies, which aims to present information, views or concerns about a law reform issue or legislative proposal. Such communication may occur through provision of information, a written submission, taking part in a consultation process, or collaborating through a taskforce or advisory process.
Participation is widely seen as being both an instrumental means to a desirable end, and a desirable end in itself. In the context of law reform, participation has been seen as not only affording a more inclusive law reform process, but as also helping to secure more effective, efficient and just laws. Indeed the promise of participation lies in its potential benefits for both outcome and process. Arnstein (1971) for example stated that an indicator of ‘effective’ participation is the degree to which participants are able to influence final outcomes and the extent to which decision-making power is shared.
An important tension between ‘participative’ and ‘representative’ ideals and practices of democracy has been noted by a number of authors (see Byrne and Davis, 1998; Bishop, 1999). Participative practices suggest that citizens actively participate in deliberation and decision-making about what law or policy should be. Representative practices, on the other hand, provide for the interests of citizens to be represented in decision-making by their elected or nominated representatives.
Australian government and our system of democracy are largely premised on representative institutions and practices, although participation opportunities may be provided through public or community consultation. The interests of individuals are generally either articulated on their own behalf or via interest groups. As we will see below these institutional arrangements present a number of challenges for more participative forms of law-making.
Civil society organisations (CSOs)
Organised interest groups facilitate the participation and representation of people in governance, including in activities such as law reform. The literature variously refers to such groups as community, non-profit, non-government (NGOs), third sector or civil society organisations (CSOs).
We use the term civil society organisations (CSOs) in this report to refer to the range of organisations, including peak bodies,3 involved in law reform that are not government agencies or private businesses. CSOs vary in their purpose, type, membership, resources, level of organisation and activities. They include consumer, interest, advocacy, industry and professional organisations or associations, as well as non-government and not-for-profit service providers.
Some CSOs are relatively new groups having informal structures and have few resources or members, and little or no public profile. Some have a short lifespan, being formed to advocate for or against a particular reform. Others may be more established and have considerable standing, profile, membership and resources.
CSOs operate in and across a range of sectors. In terms of law reform affecting disadvantaged people, CSOs within the human services sector, comprised of the community, health and legal sectors, are of primary interest in this study, particularly where they represent or facilitate the participation of the public and/or groups of disadvantaged people.
CSOs are noted as having a vital role in mediating citizen-government relations (see Peterson, 2001; Woolcock and Narayan, 2000) and their ability to represent the interests of their members or constituents and/or facilitate their participation or involvement means CSOs are important avenues through which individuals are able to take part in law reform.
Indeed CSOs are widely identified as having an especially vital role in facilitating the inclusion of marginalised and disadvantaged people and groups in public and political life (Dalton and Lyons, 2005; NSW Department of Community Services and the Forum of Non-Government Agencies, 2006; Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs, 2010). They are key institutions through which both horizontal and vertical networks enable collective action (Healy, 2007). CSOs, for example, assist people to bridge social divides and form relationships across identity differences, and are vital for linking individuals and communities to resources or opportunities beyond personal networks. CSOs also provide links between individual members of organisations and those in government, and facilitate access to state institutions and agencies as well as the business sector (see Woolcock, 1998).
There are many ways of conceiving of disadvantage, and here we adopt the definition of disadvantage as used in previous Foundation work. This definition identifies groups of people who are socially and economically disadvantaged in the justice system, including people with disability (physical, intellectual, sensory, psychiatric, acquired), people from culturally and linguistically diverse backgrounds, Indigenous Australians, children and young people, older people, people living in remote, rural, regional and disadvantaged urban areas, people with low levels of education and literacy, gay, lesbian and transgendered people, women, people living in institutions (i.e. prisoners, juvenile corrections, immigration detentions, nursing homes, psychiatric institutions) or released from institutions, people on low incomes, homeless people, and people who face multiple disadvantages (Schetzer and Henderson, 2003).
There are, however, problems with grouping disadvantage by socio-demography, as it suggests that a person is either disadvantaged or not. Disadvantage is also relative to an ‘other’: the advantaged, haves or privileged. People with multiple forms of disadvantage experience compound effects that are not always recognised and which may call for qualitatively different policy interventions (Anttila and Wright, 2004: 9).
To help examine participation issues common across multiple groups experiencing different forms of disadvantage, we draw on Sen’s capabilities approach. Sen (1999) describes disadvantage as being the deprivation of capabilities required to have a real opportunity to undertake an activity. His capabilities approach focuses on what people are doing or being (functioning) and what freedom they have to effectively assert choices relating to their wellbeing (capability). Having a capability means having the freedom to achieve particular functionings (Robeyns, 2003).
A key idea of the capabilities approach is that individuals need to have the freedom to choose whether or not they undertake activities before they can be considered to have had a real and substantive opportunity to do so, and they need to be capable of doing or engaging in those activities. Sen’s approach notes that disadvantaged people generally have lower freedoms and functional capabilities which limit their participation in social, economic and political life.
Sen’s approach also anticipates that functional capabilities differ among people. While some differences are individual, others are structural and are a consequence of the normative characteristics of institutions, communities and social groups. A person’s experience of disadvantage may therefore be a consequence of her individual capabilities (such as physical condition, gender, reading skills, or intelligence) as well as her social and environmental context. Social context includes public policies, social status or norms and gender roles, and environmental context includes institutions, infrastructure and environment. A feature of the capabilities approach is that it sees disadvantage as arising in diverse ways. As Sen noted, human diversity is not a secondary complication or consequence, it is a fundamental aspect of equality (Robeyns, 2003: 17).
Extending this approach to participation in law reform, the freedom to choose whether or not to participate is thus unlikely to be equally available to all people because of a range of individual, social and systemic factors which go beyond socio-demography.
The capabilities approach is especially useful because it helps us identify factors which limit or constrain opportunities to participate in law reform. This is a useful distinction for our purposes because participating in law reform is a voluntary action. We see below that literature examining public confidence in governance institutions suggests many people choose not to participate in governance activities, even where they are capable of doing so. Considering what freedoms and capabilities people have to participate in law reform allows us to examine what is needed to have the freedom to choose to participate without assuming that it is necessary or should happen. Rather than assuming that people would or should want to participate, our key concern is therefore whether people have open to them an effective opportunity to choose to participate.
In this study we identify factors that constitute law reform capability — what knowledge, skills and abilities individuals or groups need in order to have the freedom to choose to participate effectively in law reform.
The term ‘stakeholder’ is frequently used in this report in two major ways. As a noun the term refers to any interest across different sectors of society likely to be affected by an issue, and includes disadvantaged individuals and/other individuals, organisations in the business and third sector (community and civil society), media, as well as government agencies or bodies. The use of the term ‘stakeholders’ in relation to our case studies, such as in Chapter 4, therefore relates to those interests — including individual and organised interests — potentially affected by the issues or law in the relevant case study.
We use the term differently to describe a consultation process. For example a ‘stakeholder consultation’ refers to consultation that is limited or restricted to specific or particular interests, while a ‘public consultation’ is used to describe a consultation where the views of the general public are solicited. ‘Public and stakeholder consultation’ on the other hand, describes a consultation that may contain a mix of limited consultation with specific stakeholders as well as consultation with the general public.
1.3 Significance of the research
This study is significant for a number of reasons which we discuss in turn. Legislation is a key policy instrument that is frequently used to try to improve the circumstances of people, including disadvantaged people, access to law reform is an important access to justice issue, and public and stakeholder participation is a feature of best practice law reform.
Legislation is a key policy instrument
Legislation is a key policy instrument frequently used by governments to ‘do things’. This includes to facilitate or allow a course of action, to coerce, require or prohibit certain behaviour, to create and govern institutions, and to state aspirations and social values (Bridgman and Davis, 2004: 75). By spelling out the rights and responsibilities of individuals, bodies and governments and regulating the social and legal relationships between parties, legislation is a tool for doing justice (Bridgman and Davis, 2004: 75).
Other policy tools for social ordering include information and education campaigns, financial instruments such as subsidies or user charges, and government action such as delivering services or promoting codes of practice (Office of Regulation Review, 1998: E7; Bridgman and Davis, 2004: 69).
Bridgman and Davis’ influential Australian Policy Handbook (2004: 26) depicts the public policy process as a continuous and iterative cycle involving a series of stages which is discussed in more detail in Chapter 2. The legislative reform process has particular legal, constitutional and institutional conditions which distinguish it from other policy instruments, and which can limit the scope for public participation.
Changing or ‘reforming’ the law often connotes progressive — as opposed to retrogressive — improvements to a state of affairs. Indeed, Ross (1982: 6) defined law reform as being:
The importance of participating in law reform has risen as legislation is increasingly being used by government to regulate more and more aspects of life. Anecdotal evidence suggests the volume and complexity of legislation in Australia has rapidly increased since the 1970s. In the mid 1990s McHugh (1995: 37–38) noted that:
The rise in the use of legislation can be expected to have important consequences for participation in law reform. The volume of law reform not only risks ‘regulatory overload’, but there are now so many laws and regulations which are so frequently being reviewed and amended that it is increasingly difficult for people to stay abreast of the law and their legal obligations (see Gleeson, 2007). The increasing volume and complexity of legislation can be expected to contribute to public and stakeholder participation in law reform also becoming increasingly challenging.
Yet, Kirby (2008) identified law reform as being harder to achieve now than it has been previously because of a number of features, including: increasing complexity of social problems; evidence-based research becoming essential for law reform that is likely to be of lasting value; a proliferation of CSOs which has made consultation more diffuse, time consuming and exhausting; greater realisation of the complex economics of law reform and the ‘price’ of reforming legislation; the policy choices underlying what the law is or ought to be are now more explicit, and considering and explaining them more intellectually taxing and politically contentious; and members of the public may have strong opinions about the policy choices involved and achieving a democratic consensus may be unrealistic, particularly where different views derive from deeply held religious or moral viewpoints.
Importantly, Kirby (2008) also suggested that an endemic institutional weakness of our system of government is that our democracy operates through filters, which means some minorities (especially unpopular or marginalised ones) are frequently incapable of gaining the attention of law-makers in order to redress their perceived injustices.
Legislative reform therefore often involves a struggle over ideas about what and how the laws need to change, what would work for the better, how improvements in quality of life can and ought to be measured, and who should benefit. Elsewhere Kirby (cited in Ross, 1982: 6) noted:
Access to law reform is an access to justice issue
Questions about access to justice have evolved from concern with ‘access to law’ to ‘access to law-making’ (Macdonald, 2001). Macdonald (2005: 23) contends:
In Australia access to justice thinking has similarly evolved. In 1994 the Access to Justice Advisory Committee (AJAC) was asked to recommend reforms to the Commonwealth legal system which would enhance access to justice. Among other things, the AJAC (1994: 461) recommended improving access to legislation and identified two aspects of access to legislation: first, that people are able to physically access and understand what the legislation says, and secondly, that they have the opportunity to provide input during the process of making legislation.
In the Commonwealth Government’s response to the AJAC report, public consultation in law reform was identified as an element of ‘best practice in developing legislation, including delegated legislation’, and AJAC’s view that access to law-making was crucial for improving access to justice was supported (Commonwealth Attorney-General’s Department, 1995: 118–120):
The extent to which the ideals expressed by Macdonald (2005) and AJAC (1994) can be realised has significance with respect to how marginalised, diverse and disadvantaged people are able to access justice. For instance, commentators have noted that strategies to redress poverty, disadvantage and inequality have traditionally failed to harness the expertise and lived experiences of the people those strategies were intended to help (Serr, 2004). The extent to which the views and experiences of particular affected groups are taken into account and considered in law reform may consequently affect the extent to which the resultant laws effectively respond to their needs and circumstances, and how just they consider them to be.
Participation is a feature of best practice law reform
Since the 1970s a number of studies and surveys have reported a decline in the level of public confidence in governance institutions among Western democracies (Blind, 2007: 9–10; World Economic Forum, 2002).
Consistent with this picture, Australians’ confidence in their democratic institutions has been found to be relatively low. Brenton (2005) examined data from national surveys conducted in 2003 and 20047 and found that while people were satisfied and proud of the general concept of ‘Australian democracy’, they were generally mistrustful of its institutional bodies: parliament, politicians, courts and legal system, and the public service. Importantly, he found that disillusionment was patterned and that people who are socio-economically disadvantaged have lower levels of trust in governance institutions (Brenton, 2005).
One response to low public confidence in governance institutions has been to promote public participation as a means to (see OECD, 2001; Byrne and Davis, 1998; Gregory, 2007):
Some governments have made use of new information communication technologies to better involve the public in governance activities through web-based discussion, online polling, online panels, bulletin boards, and websites containing information (OECD, 2001: 50). The Queensland Government, for example, provides an online bulletin board listing policy issues currently being considered, and provides information about how interested participants can make a submission or get further information.8
The potential benefit of public participation for legislative reform was noted by the Commonwealth Government’s response to the AJAC inquiry (Commonwealth Attorney-General’s Department, 1995: 118):
Public consultation is included in the Commonwealth’s Legislation Handbook as a feature of legislative law reform best practice (ALRC, 2002: 219). Similarly in recent reforms of its law-making practices, the New South Wales Government issued a Guide to Better Regulation intended to promote best practice law-making across government that ascribes a role for public consultation (Better Regulation Office (BRO), 2008).
Increasing interest in participation in law reform may be linked to recognition that many social problems faced by communities are complex and beyond the information and understanding of a single body, agency or organisation. Policy issues characterised as being ‘wicked social problems’ — experienced by many individuals and groups identified as being disadvantaged and socially excluded — are difficult to deal with because they have unclear underlying structures or causes, or raise matters involving competing priorities (Bridgman and Davis, 2004: 43–44). Increasing public participation, and especially participation by marginalised and disadvantaged groups, affords greater opportunities for legal and policy reforms to be more informed and nuanced.
While public participation has been widely contended to be a feature of best practice law-making, evidence has yet to establish that it results in better or more just laws. The strongest arguments for public and stakeholder participation being a feature of best practice law-making is likely, for the foreseeable future, to depend on furthering democratic ideals: that governance practices should provide opportunities for robust citizen participation in the issues and outcomes which affect them.
1.4 Previous research
It is noteworthy that while there is valuable research concerning law reform, participation and disadvantage, there is comparatively little research bringing these three topics together.
One common approach to redressing disadvantage and social exclusion has been to actively encourage the participation of disadvantaged and marginalised people in the decision-making of local bodies such as local governments, schools, precincts or cities (see Everingham, 1999). Such strategies are often based on community development or community building approaches intended to empower people by helping them to build the skills, knowledge and confidence required to more actively and effectively participate in social life. A growing body of knowledge in this area of inquiry suggests that individuals need to recognise the issues as being personally relevant to them and feel that they are capable of influencing the outcomes before they are likely to participate (Pateman, 1970; Fung and Wright, 2003).
Research on the participation of disadvantaged people in law reform however remains lacking. We summarise below some previous research on participation in governance processes, and identify knowledge gaps which this study attempts to redress.
Participation in policy-making
Much of what is known about participation in law reform is informed by literature and research about participation in policy-making. Although more established in policy fields such as urban planning, development, and natural resource management, participative practices are widely recognised and used by government in other policy areas, such as health policy. Little is known, however, about how public or stakeholder participation affects policy outcomes and evaluation of public or stakeholder participation has been scant (Gregory, 2007: 5).
There are many tools or techniques used to facilitate public and stakeholder participation in policy-making.9 Aside from well-known methods such as consultation and focus groups, deliberative techniques such as referenda, citizens’ panels, citizens’ juries, consensus conferences and deliberative surveys have also been explored and used in Australia (Carson and Gelber, 2001; Hartz-Karp 2005). Deliberative techniques sometimes involve a random selection of participants (to reflect the target population affected by policy), availing them with access to the ‘facts’ of the issues presented from various perspectives, and providing them with opportunities to question, challenge and discuss the issues.
Researchers and authors have variously characterised the different participation techniques. Arnstein (1971) placed different techniques on the rungs of a ladder, from low levels of participation providing little opportunity for input, to high levels of participation characterised by partnerships or greater control over outcomes. More recent descriptions have depicted a continuum of involvement (see Shand and Arnberg, 1996; cited in Bishop and Davis, 2002). The OECD, for example, organised different techniques along a spectrum ranging from passive to more active modes of public involvement in policy-making — from information provision, consultation, to ‘active participation’ or partnership (2001: 2).
Bishop and Davis (2002) characterised participation techniques into six typologies — consultation, partnership, standing, delegation, consumer choice, and control (see Appendix 1.1 for an overview of this typology). Importantly they characterised participation in government policy-making as a discontinuous set of methods which do not conform to a single methodology and as being heavily influenced by local context, usually being ad hoc, and having no shared theoretical base. Rather, participative practices are shaped by the issues at hand, the techniques and resources available, and, importantly, political judgments about the need for participation (Bishop and Davis, 2002: 21).
During the 1990s the New South Wales Government commissioned two studies to canvass the extent of public and stakeholder participation in New South Wales policy-making. These studies highlighted the significant time and resource demands of public participation in policy-making and its considerable challenges for the public, stakeholders and government.
The first study, Participation and the NSW Policy Process: A discussion paper for the Cabinet Office of NSW, examined the approaches to public and stakeholder participation across Australian governments and found that consultation was the most frequent and dominant type of participation practice in Australian policy-making, including in New South Wales (Byrne and Davis, 1998).
Byrne and Davis (1998) found confusion within government concerning responsibility for and the practice of public and stakeholder participation, and suggested that the level of participation provided was shaped by the government’s outlook on issues and political factors such as electoral considerations (Byrne and Davis, 1998: 35). The task of undertaking consultation was often delegated by senior officers to less experienced officers and was infrequently documented (Byrne and Davis, 1998: 35). The use of consultation protocols was found to vary across government and contributed to consultation practices being fragmented, uneven, and varying from case to case. While centralised whole-of-government guidelines may help to provide for greater consistency in consultation practice, the authors reported that bureaucrats had little enthusiasm for a centrally mandated participation procedure manual (Byrne and Davis, 1998: 81).
The second study commissioned by the New South Wales Government, Public Participation in Legislative and Significant Policy Processes (Community Solutions, Public Interest Advocacy Centre and Environmental Defender’s Office, 1995), identified the formal points of access to government policy and law-making across four key platforms: government, parliament, community, and courts/tribunals. It found that while participation opportunities existed across these platforms, they were neither well known nor utilised and identified the following key barriers to public participation in policy-making (Community Solutions, PIAC and EDO, 1995: 3–32):
These studies suggest facilitating public and stakeholder participation in policy-making requires time, resources, skills and commitment from government and non-government participants alike.
Participation in law reform
The few studies that have examined public participation in New South Wales law reform suggest that law reform provides additional and particular challenges for participants.
Johnston (1983) examined public access to the legislative process using a number of case studies of legislative reform,10 as well as interviews with parliamentarians, bureaucrats and interest group representatives. He found that while the parliamentary phase was the most public phase of the law reform process, and provided opportunities for public participation, the legislative process at that stage is ‘already moving like an express train’ and there was little opportunity for the public to influence outcomes. Johnston (1983: 6) suggested that access before the law reform issue reaches parliament was key to influencing outcomes, but found opportunities to participate at the pre-parliamentary phase were limited because the key decision-makers within government were generally not known to the public.
Other studies suggest that understanding the law, as well as law reform processes, are also significant challenges for many people. For instance, a lack of general awareness or understanding of law reform processes and procedures, such as parliamentary inquiries or law reform consultations, has been identified as a participation constraint (Schetzer and Henderson, 2003; Blue Mountains CLC, 2000). The type of language used in law reform consultation documents was also seen as tending to be formal, complex, and not easily comprehended by many members of the public (Schetzer and Henderson, 2003).
At the heart of law reform is the particular ‘legalistic’ language and form of law. A wide range of literature has identified lack of legal knowledge among the general public concerning their rights and the operation of the legal system, and which tends to be greater among disadvantaged people (Canadian Bar Association, 1992; Buck, Pleasence and Balmer, 2007; Coumarelos, Wei and Zhou, 2006). While such a lack of knowledge has important consequences with respect to the kinds of strategies people employ to deal with their civil justice problems, findings that point to issues with legal literacy, as well as knowledge and understanding of law reform issues and processes, are likely to have important implications for participating in law reform.
1.5 Scope of study
The ambit of this study is bounded by four considerations. First our research is confined to law reform processes of New South Wales, primarily because that is the focus of the Foundation’s statutory terms of reference.
Second, preliminary discussions with informants having considerable experience in government, parliament and the civil sector informed the scope of the research questions (for details see Chapter 3). These informants spoke about how a range of opportunities to participate in law reform exists, but opportunities tend to be taken up only by those having the capacity to participate. They suggested that a more important and significant outcome of the inquiry would point to ways of improving access to law reform for a more diverse pool of individuals and groups. Accordingly, this study focuses on exploring opportunities for and constraints on public and, in particular, disadvantaged people’s, participation in law reform.
Third, participation in law reform can be examined in two quite different ways: first by examining capacity to participate, and secondly, by examining capacity to influence outcomes. The question of influence is important but beyond the scope of this study. Literature suggests that attributing law reform outcomes to particular events or participants is problematic and that often there are competing accounts and explanations for outcomes (Johnston, 1983; Dearing and Rogers, 1996). This study instead seeks to identify law reform participation opportunities, what constraints there are, and how participation opportunities may be improved. The focus is therefore on law reform processes, rather than their outcomes.
Finally our system of representative democracy provides that, apart from four-yearly public elections, access and involvement in governance activities primarily occurs through representation by groups and organisations. Our study therefore also examines factors affecting CSOs’ capacity to participate in law reform. Rather than examining how well CSOs represent their constituents, this study focuses on CSOs’ ability to represent or facilitate the participation of their constituents in law reform.
1.6 Structure of this report
This report is in three main parts:
Names of government bodies
During the period from inception to completion of this study, the names of a number of government departments in New South Wales have changed. These names in Chapters 1, 2 and 8 are updated and current as at the time of the publication of this report. In the Analyses chapters (Chapters 4, 5, 6 and 7) however, we refer to the names of relevant departments as they were known and referred to by our informants, during 2006 to 2009.