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



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Appendices


Appendix 1.1: Typology of participation in policy-making

Table A1.1: Typology of participation in policy-making1
Participation TypeObjectiveKey InstrumentsLimitations
Consultation – gauge community reaction to a proposal and invite feedback
– consultation is only participation when information gathered can influence subsequent policy choices
– key contacts
– surveys
– interest group meetings
– public meetings
– discussion papers
– public hearings
– delay between consultation and any outcome
– communities feel betrayed if they do not like the decision
– expensive and time consuming for complex decisions
Partnership– involve citizens and interest groups in aspects of government decision making– advisory boards
– citizens advisory committees
– policy community forum
– public inquiries
– issue of who can speak for a community
– bias toward established interest groups
– legitimacy issues with those excluded from the process
Standing– allow third parties to become involved in the review process– review courts and tribunals
– open and third party standing
– statutory processes for social and environmental impact assessment
– only relevant for those issues which come to court
– expensive and time consuming
– bias toward well-funded interests
– legal approach may be inappropriate for some issues
Delegation– hand investigation and control of issue to an independent body / process– independent inquiry or bodies (i.e. Ombudsman)– discretion to adopt recommendations of body reserved by government
– may be expensive and time consuming
Consumer Choice – allow customer preferences to shape a service through choices of products and providers– surveys, focus groups
– purchaser / provider splits
– competition between suppliers
– vouchers
– case management
– relevant only for service delivery issues
Control – hand control of an issue to the electorate or random sample of electorate– referendum
– ‘community parliaments’
– electronic voting
– costly, time consuming and often divisive
– are issue votes the best way to encourage deliberation?

Appendix 3.1: Generic interview schedules

[Specific questions about events and experiences of relevant case studies were asked as they arose through these major questions]
Can you tell me about your role in the organisation, and how the organisation is involved in law reform activities?
  • Are there some activities the organisation does more than others?
In your experience, what has been the ways in which laws are made or changed?

Opportunities

What opportunities generally exist for involvement in law-making?
What opportunities for individuals in public?
Do opportunities differ depending on:
  • stage of law
  • process used to change the law (advisory group, parliamentary inquiry, government review of legislation, impact statements)
  • area of law
  • mode of law-making (proactive / reactive).

Constraints

What would you say are the major factors which make it difficult for the organisation or other interested organisation to be involved in law-making or law reform?
[Where relevant prompt issues relating to:
a. knowledge / information
b. resources or funding (for sector)
c. time
d. skills
e. relationships with other bodies (other CSOs and government)
f. media
g. technology
h. use of volunteers
    – pro bono relationships
    – working conditions – staff retention
    – volume of legislation
    – charities
i. others we haven’t talked about?]

Disadvantage

One thing that different forms of disadvantaged communities seem to share is that generally speaking, they do not have the same ability to participate in society. What in your experience does this mean for the ability of disadvantaged people to be involved in law-making activities?
  • How involved?
  • Represented and/or through organisations? If so, whom does this tend to be by?
  • What are the major factors which affect the involvement of disadvantaged people?
  • How different to involvement by the wider public?

Areas for improvement?
  • Is there anything you would like to see in relation to how laws are made or changed?
  • Are there any changes you think could be easily made which would assist people’s involvement in law-making?
  • Are there other changes that would be more difficult to make?
  • Would these changes also assist those who are disadvantaged?
  • Are there any particular processes or specific examples that you think worked particularly well?

  • – If so, what were the key factors?

Appendix 3.2: Consent form

Participation in Law Reform Processes
Participant Information

The Law and Justice Foundation of NSW is doing research looking at the access to justice needs of people in New South Wales. This project looks at how laws are made or changed in New South Wales, and how people — particularly disadvantaged people — are involved in such processes.
The Foundation has selected for more detailed study a handful of cases where a particular law was introduced or changed. You have been approached to participate in this project because of your general knowledge of law reform, or because of your specific knowledge of one or more of the following cases:
  • Residential Tenancies Amendment (Public Housing) Act 2004 (NSW)
  • Reforms sought by the NSW Boarders and Lodgers Action Group
  • Bail Amendment (Repeat Offenders) Act 2002 (NSW)
  • Review of the Mental Health Act 1990 (NSW)
  • Civil Procedure Act 2005 (NSW).

We will be asking your experiences generally on processes for changing laws in New South Wales. In relation to the case(s) you are involved with, we will be asking your views about the processes that occurred, and the kinds of opportunities and constraints there were for the public and particularly disadvantaged groups to participate in proposals for, and/or implementation of, change. Where available and/or appropriate, we may also ask for supporting documents or materials.

We are doing this so that law and policy-makers, groups representing the interests of disadvantaged people, and concerned individuals, may understand the extent to which people, particularly disadvantaged people, are involved in processes that make or change laws. Your experience and what you tell us will also provide valuable insights into how disadvantaged groups may better participate in such processes.

What will my participation involve?

The interview may take 60 to 90 minutes. Participation is voluntary. You may choose not to answer some or all of our questions. If you want to stop the interview please just say so. You are free to withdraw at any time.
We undertake not to identify you or your organisation by name. We will not put your or your organisation’s name on any copy of your interview, and will not report any information that shows it was you or your organisation who spoke with us. We will also de-identify any documentation or materials you choose to provide to us that are not publicly available. For example, if we quote someone in our report, we will not use their name or any detail that allows others to identify them. We will only attribute quoted comments to the class of stakeholder you or your organisation belong to. For example we may identify you as an individual, member, officer or senior officer of a:
Government agencyInterest / advocacy group
Government advisory groupInterest / advocacy group (interests of disadvantaged people)
Peak bodyParliament

All information provided will be stored securely and in the strictest confidence within the law, and otherwise will only be disclosed with your written permission. Only members of the project team will have access to this information.
We undertake to gather and store material as confidential. While we do not report individuals or organisations in the report, we acknowledge that for some informants the circumstances of the particular case may be such that it is not possible to protect the informant’s or organisation’s identity. For example, a particular case may have involved only one peak body or government agency. In such a case the above classification will not protect the identity of that peak body or government agency.
If you agree, we will also tape record the interview. This is only so we are not writing things down while we are talking. This recording will be wiped as soon as the interview has been written up. If you want the tape recorder turned off at any stage please tell us, and if you decide that you do not want us to use anything you have said in our report please tell us and we will not use it.

Participation in Law Reform Processes
Consent to Participate
I, _______________________________(please print name) agree to participate in the study called ‘Participation in Law Reform Processes’ being conducted by the Law and Justice Foundation of NSW (the Foundation).
I have read, or had explained to me, information about the study and I have a copy of the participation information sheet. Any questions that I have asked have been answered to my satisfaction.
I agree to talk with the researcher for this study and I understand that I am free to stop the interview at any time. I understand that all information identifying me or my organisation is confidential, and will be disclosed only with my written permission, or except as required by law.
I also understand that while the Foundation undertakes to de-identify the information I provide, confidentiality cannot be guaranteed.
I am aware that my participation is voluntary and that I can stop and/or withdraw my participation at any time without penalty. I understand that I may be contacted further, but only for the purposes of clarifying or adding detail to my original response.
If I have any concerns about the research, or how the information I supply will be used, I can contact Natalina Nheu (Project Leader) or Christine Coumarelos (Foundation Research Manager) on (02) 8227 3200.

Signature (participant): Date:
Signature (researcher): Date:

Consent to the interview being recorded

I consent to the interview being tape recorded. I understand that this recording will be erased as soon as the interview has been written up.

Signature (participant): Date:
Signature (researcher): Date:

Appendix 4.1: Chronology of consultation in mental health reform

Table A4.1: Chronology of public and stakeholder consultation for mental health law reform in New South Wales 1990–2008 ( … 2013)
YearConsultation Opportunity
Pre-1990
(Formulation of MHA 1990)
Steering Committee on Mental Health. Extensive consultation with consumers, carers and health professional and the broader community.
June 1990Mental Health Act 1990. Assented 1 June1990. Commenced 3 September 1990.
1990 to 1992
(Implementation of MHA 1990)
Mental Health Act Implementation Monitoring Committee.
Public consultation forums held through the State. 124 written submissions received.
Report August 1992.
May 1994Mental Health (Amendment) Act 1994. Assented 30 May 1994. Commenced 14 October 1994 (except Schedule 1 (3), (5), (14) and (15) commenced 19 September 1997).
NSW Health discussion paper and committee to monitor the utilisation and effectiveness of MHA and receive submissions on the discussion paper.
May 1996NSW Health discussion paper, Caring for Health: Proposals for Reform – Mental Health Act 1990, concerning amendments proposed by the Mental Health Implementation and Monitoring Committee and other issues released with attached exposure draft Mental Health Legislation Amendment Bill 1996. Three-month consultation period. Close to 100 submissions received after a three-month consultation period.
June 1997Mental Health Legislation Amendment Act 1997. Assented 25 June1997. Commenced 19 September 1997.
The Act amended or removed a number of proposals contained in the exposure draft legislation in response to the submissions received for the 1996 discussion paper and exposure draft Bill.
December 2001Legislative Council Select Committee on Mental Health was established to inquire into mental health services in New South Wales. Submissions invited from the public and stakeholders, public hearing held. 303 submissions received.
December 2002Legislative Council Select Committee on Mental Health, Mental Health Services in New South Wales Inquiry Final Report. 120 Recommendations.
October 2003
(MHA Review commenced)
Key stakeholders consulted by NSW Health in preparation for drafting discussion papers for the review of the Mental Health Act 1990.
February 2004 Review of the Mental Health Act 1990.
Discussion Paper 1: Carers and Information Sharing
Released February 2004 with comments sought by 30 April 2004.
July 2004Review of the Mental Health Act 1990.
Discussion Paper 2: The Mental Health Act 1990
Released July 2004 with comments sought by 31 October 2004.
More than 300 submissions received in response to Discussion Papers 1 and 2.
During 2005The Hon. Ms Cherie Burton MP, Parliamentary Secretary to Minister for Health, visits mental health facilities and holds public forums throughout New South Wales.
August 2006Review of the Mental Health Act 1990 Report and Exposure Draft Mental Health Bill 2006 released.
Comments sought by 3 November 2006. More than 50 submissions received.
Two further reviews also announced:
Review of the Administration of the Mental Health Review Tribunal
Review of the forensic provisions of the Mental Health Act 1990 and the Mental Health (Criminal Procedures) Act 1990. Task force convened to examine options for reform and consult stakeholders and the public on those options.
November 2006Mental Health Bill 2006 introduced into parliament on 22 November 2006. Bill lapsed on prorogation of parliament at the Second Reading Stage in the Legislative Assembly.
May 2007Mental Health Bill 2007 introduced into parliament on 9 May 2007. Bill includes minor changes from the 2006 lapsed Bill. Passed without amendment by parliament on 6 June 2007. Assented on 15 June 2007. Commenced 16 November 2007.
December 2006Consultation Paper - Review of the forensic provisions of the Mental Health Act 1990 and the Mental Health (Criminal Procedures) Act 1990.
Comments sought by 31 March 2007. 50 formal submissions received.
August 2007Review of the New South Wales Forensic Mental Health Legislation Report released.
34 Recommendations.
June 2008
(MHA Review completed)
Mental Health Legislation Amendment (Forensic Provisions) Bill 2008 introduced in parliament 27 June 2008. Passed without amendment by parliament 28 October 2008. Assented 5 November 2008. Commenced 1 March 2009.
June 2012Section 201 of the Mental Health Act 2007 provides for the Act to be reviewed by the minister as soon as possible five years after its assent.
June 2013A report of the outcome of the statutory review of the Mental Health Act 2007 due to be tabled in Parliament.


Appendix 5.1: Source and type of Bills introduced in 2002–2006

Table A5.1: Distribution of primary legislation (Bills) introduced in New South Wales Parliament during 2002–2006 inclusive, according to the source of Bill and whether Bill is new or amending
Source of Bill (sponsorship)
Amending Bill
Number (and % of
total Bills introduced
by sponsor)
New Bill
Number (and % of
total Bills introduced
by sponsor)
Total (N=724)
Number (and % of
total Bills introduced)
Private Member
70 (65%)
37(35%)
107(15%)
Government
466 (75%)
151(24%)
617(85%)
Total
536
188
724

Appendix 5.2: Logistic regression predicting outcome of Bill

Table A5.2: Standard binary logistic regression predicting outcome of Bill (assent or not) introduced in New South Wales Parliament during 2002–2006 inclusive
B
SE
WALD
P
Odds Ratio
95% CI for Odds Ratio
Lower
Upper
Source of Bill
(government = 1; private member = 0)
5.693
.461
152.571
.000
296.805
120.268
732.476
Type of Bill
(amending = 0;
new =1)
-.307
.391
.617
.432
.736
.342
1.582
House of origin
(Upper = 1;
Lower = 0)
.210
.532
.156
.693
1.234
.435
3.500
Election cycle
(period 12 mths before election = 1;
other periods = 0)
-.855
.367
5.431
.020
.425
.207
.873
Constant
-2.267
.598
14.352
.000
.104
Notes: N=724 Bills. P values for significant predictors are presented in bold. For election cycle, a dummy variable was created, where if the date of introduction of the Bill was in the period 12 months before the election of March 2003 or March 2007, it was coded ‘1’, and otherwise coded ‘0’.
Logistic regression model summary: Cox and Snell R² = .418, ?²(5)=392.240, p=.000.

Appendix 5.3: Multiple regression predicting times for parliamentary formulation

Given the highly skewed and non-normal nature of parliamentary formulation times, we used the natural log transformation of the elapsed time from the date the Bill was introduced to parliament, to the date on which it resolved.

We began with source of Bills (government or private members), type of Bill (amending or new), House of origin, and election cycle2 as preliminary predictors of parliamentary formulation times. As a result we found that both source of Bill and parliamentary House of origin each significantly contributed to variations in parliamentary formulation times, and together accounted for 31 per cent of the total variation in parliamentary formulation times.

Table A5.3: Multiple regression predicting times for parliamentary formulation of Bills introduced in New South Wales Parliament during 2002–2006 inclusive
B
SE
Beta
P
t
Source of Bill
(government=1; private member=0)
-1.779
.100
-.576
.000
-17.702
House of origin
(Upper =1;
Lower = 0)
-.327
.108
-.099
.003
-3.028
Constant
5.323
.097
.000
55.008
Note: Regression model summary: R² = .307, F(2, 720) = 159.684, p=.000.

Bishop and Davis (2002: 27).
A dummy variable was created, where if the date of introduction of the Bill was in the period 12 months before the election of March 2003 and March 2007, it was coded `1`, and otherwise coded `0`.

 Bishop and Davis (2002: 27).
 A dummy variable was created, where if the date of introduction of the Bill was in the period 12 months before the election of March 2003 and March 2007, it was coded `1`, and otherwise coded `0`.


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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