By the people, for the people? Community participation in law reform ( 2010 ) Cite this report
4. Case studies
The CPA 2005 was precipitated by a confluence of a number of factors. Civil procedure reform had been a long-standing issue pursued unsuccessfully by legal professional associations, particularly by the NSW Law Society, over many years (legal CSO). However increasing public and media criticism of the time and costs of resolving court cases had called the performance and efficiency of courts into question (Lindsay, 2005: 38–39), and an inquiry into court waiting times was commenced by the Public Accounts Committee of the New South Wales Legislative Assembly. The Public Accounts Committee’s 2002 report recommended rationalising and simplifying the practice and procedure rules across the Supreme, District and Local Courts to improve efficiency and reduce waiting times. The committee further recommended that the Attorney General’s Department and courts convene a working group to rationalise and simplify New South Wales civil court rules.58
At the same time the Attorney General’s Department was also developing a computer case management system, CourtLink, to be used for the Supreme, District and Local Courts. CourtLink would modernise court registry management, standardise information processing, and enable legal practitioners and other court users to lodge court documents electronically. The task of developing CourtLink would be simplified by having standardised practice and procedures among the courts.
Informants identified the Public Affairs Committee report and CourtLink as being a ‘huge impetus’ for civil procedure reform (legal CSO; government officer) and the catalyst for the emergence and formulation of uniform civil procedure.
Law reform issue
The law reform issues in the Civil Procedure Act Case Study span from ideals about improving and modernising civil court practices and administration, through to technical legal minutiae of specific court rules and practice.
Simplifying procedures and removing unnecessary differences among the courts would help remove barriers to accessing justice, and uniform civil court rules could help to reduce the cost of litigation by requiring that practitioners need only keep up to date with a single set of court rules (legal CSO). Legal professional associations identified cost savings with having a reduced number of court forms and simplified computer systems (Spigelman, 2005: 9). The overriding purpose of the civil procedure reforms was to facilitate the just, quick and cheap resolution of the real issues in court proceedings (Lindsay, 2005: 56).
Another important aspect of the civil procedure reforms was the importance of judicial case management as a mechanism for increasing courts’ efficiency. Empowering judicial officers to manage litigation in order to meet the needs of each case could help tailor proceedings to particular cases. An important issue was therefore how judicial case management should strike a balance between protecting the interests of justice in an individual court case, with the interests of other court users and the community in having efficient and accessible courts (Spigelman, 2005: 9).
While the general community may share an interest in having accessible and efficient civil courts, the subject matter of the civil procedure reforms was a mass of procedural and adjudicative rules sometimes known or described as being ‘lawyer’s law’ because it is predominately legal professionals who have knowledge of and are aware of the operation of civil procedure rules.
Following the recommendation of the Public Accounts Committee, the Attorney General’s Department convened a working group to recommend what the uniform court rules should be. An informant characterised this task as a ‘meticulous project’ involving significant labour to systematically work through the rules of each of the courts (government officer).
Law reform process
The CPA 2005 was principally formulated during its pre-parliamentary stage by the advisory body — the Civil Procedure Working Party (the Working Party) — convened by the Attorney General’s Department. The Civil Procedure Bill 2005 (CP Bill 2005) developed by the Working Party was subsequently accepted, passed and enacted by the New South Wales Government and the New South Wales Parliament without amendment.
Key stakeholders were invited to nominate representatives to be members of the Working Party. Membership included judicial officers from the civil jurisdictions of each of the Supreme, District and Local Courts, representatives nominated by the Bar Association and Law Society, and staff from the Attorney General’s Department.
The members of the Working Party meet weekly, and at other times for more intensive periods, from March 2003 through to May 2005. After initially considering possible model civil procedure rules used in other jurisdictions, the Working Party reached a consensus that New South Wales law and precedents should be maintained in order to minimise the scope of change (government officer; legal CSO). The Working Party also aimed to simplify and consolidate civil procedure provisions in a single Act, supported by a common set of rules, but without making radical change in either substance or form (government officer; Atkinson and Olishlager, 2005: 247).
Although the Working Party predominately worked through the reform issues, contributions were invited and received from the public through publishing information on the Attorney General’s Department website, and by publishing the CP Bill 2005 as an exposure draft (government officer). The Working Party also sought comment and feedback from other organisations such as Legal Aid and the Combined Community Legal Centres Group, and from time to time particular court stakeholders were invited to participate and provide information about aspects of the rules and how they worked (legal CSO; government officer).
The Working Party also formulated a mechanism to oversee and monitor the implementation and operation of the CPA 2005 and UCPR by proposing that a Uniform Rules Committee, composed of similar stakeholder members to that of the Working Party, be established by the CPA 2005 and replace the current rules committees of each of the courts.
The Uniform Rules Committee provides stakeholders with a forum in which to raise concerns over the way the UCPR is operating, and it is a key mechanism through which they monitor impacts and identify further suggestions to reform court practices.
The Civil Procedure Act Case Study has a number features suggesting important implications for public participation in law reform. In this case we found that although opportunities for public consultation were provided, few members of the public acted upon those opportunities. Further, although some members of the public did make use of public consultation opportunities, most of the comments received by the Working Party were made by legal professionals (government officer). This is unsurprising given that civil procedure is an area of law in which comparatively few members of the general public have knowledge or interest (government officer).
The case study is an example of an issue where there is a dislocation between identification of the general problem and the suggested law reform solution. Identifying general concerns with court costs and efficiency was a qualitatively different task to determining what and how to reform the court rules in order to achieve court efficiency. The formulation of the legislative solution necessitated a high level of technical legal knowledge and expertise. This is a feature shared in many areas of law reform. The Working Party is an example of a group of expert stakeholder representatives invited by government to provide it with expert advice on how to achieve an identified policy purpose through proposed reform. In turn, the New South Wales Parliament relied on the expertise of the members of the Working Party by enacting their suggested reforms without amendment.
In this case we found that the members of the Working Party drew on the breadth of their experience and contact with the public in developing the reforms. For example, the experiences and views of court registry staff having contact with the public every day were gathered during the Working Party process (government officer). In this respect the general public and disadvantaged people were dependent upon the experience and expertise of the members of the Working Party to consider their particular needs and interests, just as both the New South Wales Government and Parliament were, to consider the wider interests of court users, the civil court system and the community in the context of formulating the reforms.
Where law reform involves highly particularised areas of knowledge and expertise, and members of the general public are unlikely to be interested, engaged, or able to contribute, it will often fall to government and key stakeholders to act for the common good and wider community interest, in formulating law reform. This case suggests that government sometimes affords a primary role to expert stakeholders in law reform.
Another key feature of this case study is the way in which the key stakeholders had a central role not only in formulating the reform, but also in monitoring its impacts and implementation, as well as ongoing reform of court rules. In this respect the key stakeholder representatives on the Working Party and Uniform Rules Committee can be described as having been ascribed a quasi-legislative role in formulating and implementing the CPA 2005 and UCPR package of reforms.
A number of other features concerning the way in which the Working Party operated suggest other implications for public and stakeholder participation in law reform. The Working Party faced few of the constraints many other advisory bodies experience. In particular, it was not limited by pre-existing government policy or a preferred view of what the content of the court rules should be, nor did it face resource or time constraints which restricted the scope of its deliberations, or lobbying from competing interest groups. In part this reflects the apolitical nature of the particular law reform issues and the absence of a political agenda among the members of the Working Party (government officer).
The Working Party was also composed of senior and experienced stakeholder representatives who had similar levels of expertise, putting them on a more or less ‘equal footing’. Lack of a political agenda or pre-conceived solution fostered a shared commitment among members of the Working Party to develop reforms that would be as good and as workable as possible (government officer). A deliberative approach to the issues, and consensus based decision-making further promoted stakeholder collaboration.
Unlike the Civil Procedure Act Case Study, many other law reform issues involve competing stakeholder interest groups and greater disparity of interests, power, influence and commitment to reform. The particular nature of the issues and stakeholder interests are important factors which affect how law reform occurs and what opportunities stakeholders have to participate, and which we explore in more detail later in the report.