6. Capabilities for participating in law reform
In this chapter we draw on the views of informants involved in our case studies, to identify those factors that constrain individuals from participating in law reform. We focus particularly on the information, knowledge, skills and resources that individuals draw on when participating in law reform.
We saw in previous chapters that through the institutions and processes of law-making, opportunities exist for individuals to participate in law reform (government officer):
… it’s so multi-faceted … you’ve got the parliamentary side, the executive side, etcetera … members of the public do lobby politicians … people do have an opportunity to do something. (Government officer)
… it is not something which is done in camera … if you look at any law reform commission’s website, they ask for interested persons to make a submission. And if you look at the parliamentary website and you look at the Bill and you’re dissatisfied with any of the provisions there you can fire off a letter to the minister concerned or you can send a copy of your submissions to the leader of the opposition or to a cross-bencher and they will look at it. So the avenues are open … (Legal CSO)
Informants also reported that executive government is increasingly choosing to consult people about their policies and activities (government officer):
… a trend which has increased over the last few years at least I’m sure compared to what used to happen … [is that] government has generally become more consultative … (Legal CSO)
However while opportunities to be involved are formally available and open to all, many of our informants reported that relatively few individuals take these up:
… any person can make a submission … If it’s a bill before parliament, any person is entitled … the reality is that very few individuals do. (Legal CSO)
Informants working in law-making institutions also noted that attempts to consult the general public directly are often poorly attended:
… many times we have them [community consultations] and no-one turns up. And I can tell you stories about not just legislation, huge halls in local areas, and everyone saying, ‘Geez, there’s only five people here.’ … So there’s an issue of community want to be engaged and then they don’t turn up. (Government officer)
… even if you set those mechanisms up, it’s a sort of case where you can lead the horse to water but you can’t make it drink. (Parliamentarian)
Furthermore a cross-section of our informants noted that those who do get involved tend to be the same set of ‘usual suspects’ described as being very educated, informed, and with ‘enough interest and enough knowledge to attend’ (non-legal CSO):
… you’ve got a fairly informed public, if you like, making submissions on the Act as to how that Act could work better. (Parliamentarian)
… the simple fact of the matter is … people from our types of backgrounds, by which I mean better educated, middle class … of a certain age, tend to get involved more than others. (Member of government advisory body)
People passionate about particular issues were also identified as being more likely to take up opportunities to participate in law reform (legal CSO).
While individuals directly affected by a particular law reform may not take up formally available opportunities to participate, their views and concerns are nevertheless important to reform outcomes. The consequences of legislative proposals are difficult to anticipate, although some can be ‘glaringly obvious’ for individuals who live and inhabit the issues (non-legal CSO):
… the thing with legislation and all policy is there’s the obvious, and then there’s unintended consequences. And it’s the unintended consequences that you really need to be mindful of. So when law-makers are making law and policy, they think, ‘that’ll do that, that’ll do that,’ but it’s the ‘ugh?’ that occurs that we’re often concerned about. And the question is: How do you get the people affected by that un-intended consequence to be able to articulate their concerns when the whole point of the exercise is that it’s not intended; they hadn’t even thought about it. (Non-legal CSO)
A value of public and stakeholder participation lies in the prospect that the knowledge and concerns of people affected by the reform may contribute to better decision-making.
This chapter explores those factors which constrain individuals, including disadvantaged individuals, from participating in law reform, and focuses on the following:
- comprehension and communication skills (functional literacy)
- law reform literacy
- other participation constraints and
- time and resources.
These factors affect individual law reform capability in different ways. Some affect the extent to which participation in law reform is effective, while others are critical to whether individuals are capable of making the choice to participate at all.
In what follows, we describe how these constraints affect many, with a focus on the disproportionate impact of these factors on disadvantaged individuals. Our analysis also indicates, and we shall describe in Section 6.5, that these individuals also experience specific constraints that are over and above those that are more commonly experienced.