Implications of the findings
The findings from this study suggest that the general public and many CSOs lack the law reform capabilities they need to confidently and/or effectively participate in law reform. A number of important implications follow.
On a day-to-day basis, the law and law reform is not front of mind for most people. Because people tend to experience legal problems in clusters and around particular stages of their lifecycle, law reform participation opportunities generally do not coincide with when people experience problems. Accordingly, when law reform opportunities periodically arise the issues will typically be considered by many people to be too minor, transient, irrelevant or too remote for them to get involved.
If members of the community are interested in an issue they need to be able to participate at the time that issue is on the law reform agenda — not necessarily when the issue is most pressing for them. This can be challenging, as law reform participation opportunities generally arise in an ad hoc fashion and with certain timing and timeframe constraints. Participation will often be specific to a particular law reform issue, and will vary depending on the levels of functional literacy and the law reform capabilities of prospective participants.
However, successfully meeting just-in-time participation needs is likely to be challenging on a reform-by-reform basis. With a lack of or partial law reform literacy, people or organisations who are potentially affected by law reform may fail to perceive participation opportunities, fail to perceive what aspects of law reform they do not understand, or may not know where or how to seek assistance with their particular law reform needs.
Foundational law reform capabilities
By the people, for the people?
suggests that to participate successfully when the opportunities arise, participants need foundational capabilities such as:
- functional literacy skills
- basic understanding of the law and law reform system, and
- basic knowledge of the political process and how it affects law reform.
These foundational capabilities enable participants to interpret, consider and seek information about law reform. They also help participants to understand what further information or help they may need and where they may be able to find it. Inherent in this, however, is knowing that public participation opportunities exist, understanding the form that participation opportunities generally take, as well as some awareness of the role of community consultation within the legislative process.
The importance of functional literacy as a foundational capability for effective law reform participation cannot be overstated. The report found that because a disproportionate number of disadvantaged people tend to have lower levels of functional literacy, they are therefore likely to have a reduced capacity for law reform participation — particularly given the preponderance of law reform and legal information that is distributed in written form.
Law reform capability
Foundational law reform capabilities are necessary yet not sufficient to ensure effective participation in law reform. Time and resources are also required. The multi-dimensional nature of law reform capability means that facilitating the inclusion of disadvantaged people in law reform has to take into account the particular and diverse communication and participation needs of communities, and also of the CSOs that represent them. Such a tailored approach will inevitably be inconsistent with the one-size-fits-all approach to law reform consultation.
Participants with lower levels of functional and law reform literacy are liable to misunderstand the complexities and vagaries of law reform, and the particular roles of various law reform institutions — including the dominant role of executive government in setting and controlling the legislative agenda. They are also more likely to be discouraged and assume they are incapable of effectively participating or influencing law-makers.
The research data suggested that the relatively few people and organisations who continue to participate in law reform do so because they are passionate, tenacious and resilient to uncertainty, setbacks, delays and unfavourable outcomes. Most importantly, law reform capability was found to be accumulative, with greater experience of law reform advocacy increasing not only a participant’s law reform literacy and capability, but also their resilience.
The systemic features of law reform appear to advantage those types of interests and organisations who have more time, resources and law reform literacy. If law-making bodies are to reach out beyond the relatively narrow set of ‘usual suspects’ and ‘repeat players’ that tend to have greater law reform capability, they will need to consider how time and resource constraints disproportionately affect those people and organisations that have lower levels of functional and law reform literacy, and who have less access to available resources. Such organisations include many of the human services sector CSOs that often play a critical role in facilitating the participation or representation of the general public and disadvantaged people in law reform.
Dependency on CSOs
Government, communities and constituent members of CSOs are likely to remain dependent upon the ability of CSOs to facilitate constituent participation or representation in law reform unless direct communication between law-making institutions and the public is enhanced. However, direct participation was found to depend heavily upon law reform literacy across multiple dimensions, such as awareness of particular participation opportunities, the law being considered, and the possible impacts of its reform. Raising functional literacy is, however, a challenging whole-of-government and whole-of-community task that has to be a matter for longer-term public policy. In the short term, CSOs are therefore likely to remain critical to community participation in law reform, particularly for disadvantaged people.