Note: the original hard copy of this report is 330 pages .

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By the people, for the people? Community participation in law reform   

, 2010 This study is part of a research program undertaken by the Law and Justice Foundation of New South Wales concerning the access to justice and legal needs of disadvantaged people in New South Wales. The specific aims were to investigate: (1) how law reform in New South Wales occurs; (2) what opportunities and constraints there are for public participation in law reform, directly and through representative bodies; (3) what particular constraints there are for the participation of disadvantaged people in law reform and; (4) the implications of these findings for law reform in New South Wales. Particular attention is paid throughout the report to the participation needs of disadvantaged people and civil society organisations (CSOs).


Executive summary


Background

This study is part of a research program undertaken by the Law and Justice Foundation of New South Wales concerning the access to justice and legal needs of disadvantaged people in New South Wales. The specific aims were to investigate:

  1. how law reform in New South Wales occurs
  2. what opportunities and constraints there are for public participation in law reform, directly and through representative bodies
  3. what particular constraints there are for the participation of disadvantaged people in law reform and
  4. the implications of these findings for law reform in New South Wales.

Particular attention is paid throughout the report to the participation needs of disadvantaged people and civil society organisations (CSOs).

Access to justice involves more than simply access to the law or legal institutions such as courts or dispute resolution bodies. It also extends to access to law reform, as it is through law-making that the conditions for justice are established. Participation by citizens, and in particular disadvantaged people, in making laws that affect them holds not only the promise of more inclusive democracy but also more responsive and effective law.

This study employed a case study method. Five instances of law reform in New South Wales variously concerning housing, mental health, law and order, and civil procedure laws were examined in detail:


The data that forms the basis of our analysis and conclusions comprises publicly available information concerning our five case studies, as well as in-depth interviews with 50 informants. Data was also collected on the number of Acts passed by the Commonwealth and New South Wales parliaments, and the number of Bills introduced in the New South Wales Parliament for the period 2002–2006.

Key findings

A number of factors affect how law reform occurs and the nature of any public or stakeholder participation opportunities, and particularly whether socially and economically disadvantaged people and the CSOs that tend to represent or facilitate their participation in law reform are able to participate. In particular, we found that a participant’s law reform capability draws on a range of knowledge, skills and attitudes, underpinned by functional literacy, which facilitate and constrain their ability to participate effectively in law reform.

Law reform processes

Our research indicates that there are a number of features of law reform that affect how law reform occurs:


The generalities concerning how law reform occurs however end there:
Our case studies suggest some patterns are common to certain types of issues or areas of law. Reforms to areas of law such as law and order matters tend to occur reactively, often in response to particular events, and commonly preclude public participation via a law reform consultation process. Some other areas of law, such as mental health legislation, are typified by repeated rounds of reform tested through public consultation. Still others, especially those not seen as being particularly ‘sexy’ or topical, and which may principally affect marginalised or hidden sections of the community, may need to incubate for long periods of time before they become the subjects of legislative action. Law reform processes, and their outcomes, are ultimately expressions of public policy purpose and political constraints.

A common theme in our case studies is the way in which law-makers (government and parliament) seek to strike a balance between competing rights or interests, with views as to how to cast the appropriate balance sometimes being contested.

Participation opportunities are variable

Law reform consultation occurs primarily at executive discretion and is influenced by wider political circumstances. A combination of policy intent, political constraints and executive judgment underpin the highly variable way in which opportunities to participate in law reform manifest. Together, they determine whether participation opportunities exist, are limited to particular stakeholders or specific groups, or are available to the general public.

Opportunities for public or stakeholder participation may exist across all stages of the law reform cycle. Notwithstanding that formulation sometimes occurs quickly or wholly within government, stakeholders can nevertheless often participate through the institution of parliament, or sometimes during implementation. Where government has extended public or stakeholder participation opportunities during the pre-parliamentary stage of formulation, we found that legislative proposals tended to be subsequently passed by parliament relatively un-amended.

Generally, the earlier that participation opportunities arise within the law reform cycle — particularly during the pre-parliamentary stage of formulation — the more likely it is that interested participants will be able to engage with the ‘what’ and ‘how’ questions of law reform. At later stages participation may be limited to identifying possible unintended consequences of formulated reform proposals. The timeframe and timing of participation opportunities, as well as the mechanisms established by executive government for pre-parliamentary formulation and implementation, such as whether any advisory body is tasked with conducting public consultation, are therefore critical to the ability of the public and CSOs, and particularly disadvantaged people, to participate in law reform.

Volume of law reform activity

Data on the volume of primary legislation enacted by the New South Wales Parliament indicates a steady and steep increase in the volume of law-making leading up to the mid 1980s, before tapering off to the level of the 1970s. In recent years, however, government has been characterised as having adopted a more consultative approach to law-making. Such a change appears to have resulted in significantly increased law reform participation opportunities.

Higher volumes of public and stakeholder consultation necessarily affect the time and resources available within government, parliament, as well as the community, to focus on any particular legislative reform. The timeframe and timing of law reform may compound constraints on public or stakeholder participation where opportunities arise in ad hoc ways that are difficult to predict. Prospective participants not only have to be aware of participation opportunities, they also have to determine that participation is worthwhile notwithstanding other competing priorities and activities.

Different types of stakeholder organisations are affected by law reform consultation opportunities in different ways. Some stakeholder groups, particularly those with high status, expertise, or reach into particular affected constituencies, are invited by government, parliament or advisory bodies to participate in far more law reform consultation opportunities than they have either the time or resources to do, contributing to consultation fatigue. In addition, time and resources expended responding to government or parliament initiated law reform consultation may significantly reduce resources available for bottom-up law reform concerning matters identified as being of priority to constituents.

Experiences of law reform consultation

Participation opportunities may arise through invitations to participate in a law reform task force or working group, or to provide oral testimony as part of a formal consultation process. The informants we interviewed reported that participation opportunities most commonly manifest in the form of an invitation to make a written submission in response to a consultation paper, and that law reform communication predominately occurs in written form.

Further, law reform consultation documents are generally written in a formal and legalistic language that adopts a one-size-fits-all approach to potential participants, and which may not necessarily be attuned to the particular participation needs of diverse individuals and stakeholder organisations. There is a higher likelihood that the participation needs of particular groups of disadvantaged people may not be sufficiently met with a one-size-fits-all approach.

Among our non-government informants we found that their previous involvement in law reform resulted in a preponderance of negative experiences and frustration. Informants often talked about consultations that disappear into the ‘ether’, achieve little, or have outcomes that were unexplained and/or appeared inconsistent with the contributions and evidence provided during law reform consultation.

We found that law reform participants generally expect that their contributions will be taken into account, that they will be kept informed of subsequent developments, and that they will be made aware of the rationale for outcomes. As such, there may be a significant gap between some participants’ expectations of the role of public or stakeholder consultation in the legislative process and how particular law reform consultations and institutions operate. When expectations are not met, we found participants may not only lose trust and confidence in the law, law-making institutions, and the justice system, they may also lose confidence in their ability to participate effectively in law reform.

Without a belief that they are able to participate effectively, or that their contribution has the potential to affect outcomes, participants may be less likely to regard participation in law reform as being a worthwhile endeavour.

The law reform decision-making inherent in confidential cabinet deliberations may result in some outcomes appearing to be opaque, particularly for those participants who do not enjoy close relations or networks with government. Government decisions not to pursue law reform — that is, so-called ‘non-decisions’ — may also contribute to a lack of explanation of law reform consultation outcomes, unlike a proposal for legislative reform before the parliament where a formal statement is made by a minister with carriage of the issue.

Law reform capability

It is often not until people are personally affected by a legal issue or a problem that they may become interested in or be aware of law reform issues, as a perceived cause or possible solution to any difficulties or injustice experienced. We found, however, that the sophisticated level of functional literacy, as well as the law reform advocacy skills and interest involved, suggest that relatively few people have an effective opportunity to determine whether or not to participate in public consultation opportunities.

Participating in law reform is challenging, complex, and time and resource intensive. We found that where people are inexperienced or unfamiliar with the way government and law reform operates, they generally struggle with the level of knowledge, skills and confidence required to participate effectively in law reform. Although participation opportunities are frequently provided, and in many instances are formally open to all, we found that the abilities of people, especially disadvantaged people and the organisations that often represent them, do not manifest in substantively equal ways.

Law reform capability is underpinned by functional literacy, and effective participation in law reform requires sophisticated skills based on multiple-dimensions of knowledge about:


Law reform capability involves applying these skills in order to ‘do’ law reform: seek and interpret information (often written), critically analyse reform proposals, communicate and articulate law reform claims, and determine the best strategy through which to ‘work the system’ and try to influence law reform outcomes.

Not only is law reform capability primarily acquired by active participation in law reform, it also appears to be critical to building confidence and resilience to disappointing outcomes. We found negative experiences of law reform cause participants to question the credibility of the process and of their ability to participate effectively. Participants with less experience or law reform literacy appear to be particularly vulnerable to being cynical and disillusioned with law reform processes and outcomes.

Our data suggests that the level of knowledge and skills usually involved in law reform participation, including functional and law reform literacy, legal analysis, policy and/or research, and advocacy skills, are beyond the ordinary capability of an overwhelming majority of the population.

The multi-dimensional nature of law reform literacy, the relative sophistication of the skills involved, and the one-size-fits-all approach commonly adopted, means that law reform participants tend to comprise a relatively narrow set of ‘usual suspects’ who are relatively well educated, resourced, and who are well connected to institutional and organisational networks. The skills, time and resources involved in law reform are formidable constraints for many people, and indeed are the reasons why most individuals are more likely to participate in law reform through, or be represented by, organisations within the civil sector.

We found time and resources are critical to whether or not prospective participants are able to understand and make effective use of particular law reform participation opportunities as they arise.

Disadvantaged people

The personal circumstances of many disadvantaged people were reported by many of our CSO informants to be fundamental constraints limiting motivation and capability to participate in law reform. Disadvantaged people generally face significant additional constraints to participating in law reform, including the need to devote a disproportionate use of their time and resources to meeting immediate primary needs such as food, safety and shelter. Social stigma and the often hidden nature of disadvantage and social exclusion further marginalise disadvantaged people from law reform processes and institutions, and make reaching them to meet their participation needs time and cost prohibitive.

Disadvantaged people are also more likely to have lower levels of trust and confidence in government and its processes, and are less likely to take up opportunities to participate in law reform. Disadvantaged people commonly experience governance institutions as being remote and daunting. Social and historical marginalisation of some groups of disadvantaged people mean they may be less confident that their views will be taken seriously or accepted as being valid or important. Fear of the consequences of speaking out, or of the potential social stigmatisation associated with participating in public processes, are further reasons disadvantaged people are more likely to be wary and distrustful of government and of activities such as law reform consultation.

Lower levels of functional literacy and other constraints associated with physical, cognitive, cultural, geographic and continuity (of place) factors, mean that disadvantaged people generally have participation needs which if not sufficiently considered in law reform consultation are likely to disproportionately exclude them from being able to participate effectively in law reform.

In circumstances where disadvantaged people with complex needs put off dealing with unmet legal problems because other essential life demands have a higher priority, participation in law reform will often simply not be on their radar. Therefore, disadvantaged people can be expected to be absent or grossly under-represented in law reform unless they are either connected to CSOs or law-making bodies who are able to successfully reach out and include them. In the absence of law reform consultation tailored to the needs of disadvantaged people, their participation in law reform may necessarily be limited to representation by CSOs able to represent their views or else merely speak about them.

Civil society organisations (CSOs)

CSOs’ ability to act as experts and link constituents to government is particularly important with respect to the inclusion of disadvantaged people in public or stakeholder consultation. CSOs’ greater access to information, resources and skills means that government, as well as their constituent members, often rely on CSOs to represent the interests of the particular disadvantaged group in law reform consultations.

Collaborating and networking are key ways in which CSOs share their expertise and knowledge and may help them to overcome time and resource constraints. We found that peak bodies often play a critical role in communicating awareness about participation opportunities and in fostering collaboration.

CSOs, however, differ greatly in their law reform capability. We found that one-size-fits-all law reform consultation processes disproportionately impact upon those CSOs with less available resources and less access to law reform expertise. Non-legal CSOs in particular, and especially those with reach into disadvantaged communities, will often use up time sourcing legal expertise, considering the possible implications of reform, as well as engaging with their constituents. Non-legal and other CSOs with less law reform literacy or access to law reform expertise may also be more likely to mistakenly assume that law reform submissions should take the form of a legal critique or analysis, or that their proposals need to be presented in a legalistic manner.

Where non-legal CSOs were able to successfully meet their law reform literacy needs by accessing legal expertise, their law reform capability was greatly enhanced. A number of non-legal informants suggested that while having access to pro bono legal expertise is beneficial, it is only realistic where there is a pre-existing client–adviser relationship, as often the time constraints of law reform consultation mean that trying to access pro bono advice on an ad hoc basis is not practical.

Importantly, we found that the law reform work of CSOs within the human services sector, particularly CSOs dependent upon recurrent government funding, is shadowed by funding concerns. For many CSOs, law reform is additional and ad hoc work for which resources have to be found or stretched. In practice this means much of that work relies on volunteers and staff working in their own time. Where CSOs have less law reform expertise and less access to resources they may feel less capable of influencing law-making decisions, and may prefer to expend their limited time and resources on activities perceived as having more tangible and direct outcomes for constituents.

The consequences of these pressures are that law reform work is increasingly the domain of peak bodies, further distancing and filtering the participation of CSO members and constituents, as well as contributing to loss of law reform skills among human services sector CSOs.

Implications

The findings from this study demonstrate a significant gap between the law reform capabilities required for effective participation, and the levels of law reform capability among the general population and many CSOs. A number of implications follow.

Just-in-time participation

People’s experiences of legal problems are generally patterned and tend to cluster around particular stages of their lifecycle that are unlikely to coincide with political or law reform cycles. Therefore law reform issues that arise will typically be considered by many people to be too minor, transient, irrelevant, or remote to interest or motivate them to make use of law reform participation opportunities.

The way in which individuals tend to relate and think about the law and law reform suggests that participation in law reform is simply not a priority. Further, the episodic nature in which law-related problems arise in people’s lives may mean that, should they be interested, their ability to participate may depend on meeting their participation needs on a just-in-time basis — that is — as and when needed.

Just-in-time participation needs are particularly salient as law reform participation opportunities generally arise in an ad hoc fashion and with certain timing and timeframe constraints. They will often be specific to the particular law reform problem or issue, the possible consequences for a certain interest group, and will vary depending on the levels of functional literacy and law reform capability of individuals.

Just-in-time participation needs in law reform are likely to be difficult and challenging to meet on a reform-by-reform basis. Lack of, or partial, law reform literacy means people or organisations who are potentially affected may fail to perceive participation opportunities or recognise what aspects of law reform they do not understand, or know where or how to seek assistance with the legal or policy dimensions of law reform.

Foundational law reform capabilities

Indeed our study suggests that being able to meet the particularities of law reform on a just-in-time basis requires certain foundational capabilities:


These foundational capabilities enable participants to seek, interpret and consider information about law reform. Inherent is the knowledge that public participation opportunities exist and awareness of the form those opportunities generally take, as well as the role and stage of public or stakeholder consultation within the legislative process. Meeting just-in-time participation needs may also require awareness about where information about the law and the law reform process may be available.

Unless individuals or organisations that represent or facilitate the participation of disadvantaged constituents are able to recognise the legal or law reform dimensions of the issues that they may need help with, and know where and how to access help, they may be precluded from taking up a law reform participation opportunity.

The importance of functional literacy as a foundational capability for effective law reform participation cannot be overstated. As a disproportionate number of disadvantaged people have lower levels of functional literacy, they are also likely to have a reduced capacity for meeting just-in-time participation needs through written materials.

Without the time and resources to meet particular needs, or to enable CSOs with reach and capacity to represent disadvantaged constituencies, the law reform capability of people from disadvantaged and marginalised communities may be limited to involvement through those CSOs which have sufficient law reform capability, but who may be proxy organisations only able to ‘speak about’ these communities.

Law reform capability

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 affected people, communities, and also the CSOs able to represent them. Such a tailored approach will, however, generally 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 and cabinet confidentiality). They are also more likely to be discouraged and assume they are incapable of effectively participating or influencing law-makers.

Our data suggests people and organisations who continue to participate in law reform do so because they are passionate, tenacious and resilient to the setbacks, delays and uncertain or unfavourable outcomes. Most importantly, greater law reform advocacy experience appears to increase not only law reform literacy and capability, but also resilience.

The systemic features of law reform appear to advantage those types of interests and organisations that have greater time, resources, law reform literacy, and the ability to repeat their participation. If law-making bodies are to reach out beyond the relatively narrow set of usual suspects and repeat players that have greater law reform capability, they will need to take account of how time and resource constraints disproportionately impact on those people and organisations with lower levels of functional and law reform literacy, and who have less access to resources. This includes many of the human services sector CSOs that have a critical role in facilitating the participation or representation of the general public and disadvantaged people in law reform consultation.

Dependency on CSOs

Government and constituent members of CSOs are therefore likely to remain dependent upon the ability of CSOs to facilitate constituent participation or representation in law reform unless a) direct communication between law-making institutions and the public is enhanced, and b) the general level of functional literacy and law reform literacy increases. Increasing functional literacy and direct communication is, however, a challenging whole-of-government and whole-of-community task, and in a practical sense is a matter for longer-term public policy. In the short term, CSOs are therefore likely to remain crucial to public participation in law reform, particularly for disadvantaged people.

Strategies

On the basis of these findings, we propose strategies to promote participation in law reform and enhance the law reform capability of the general public, disadvantaged people and CSOs so as to better overcome systemic constraints to their participation in law reform. Broad approaches suggested include:

  1. Provide the public and stakeholders with adequate time for law reform consultation. Timeframes and timing of law reform consultation should be commensurate with the significance of the issue, its breadth and complexity, as well as the participation needs of stakeholders.
  2. Ensure that the information in law reform consultation documents is accessible.
  3. Improve public access to information about law reform, including information about opportunities to participate.
  4. Enhance the capacity of CSOs to participate and represent their constituencies, particularly disadvantaged communities, in law reform.
  5. Ensure that the scope and aims of law reform consultation processes are clear to participants, and that processes match the participation needs of affected stakeholders. Where appropriate, tailor processes in line with the specific needs of stakeholders.

We also identify possible improvements to the transparency, accountability and rigour of law-making practices and broader institutional reforms that may help to provide for more effective public and stakeholder participation opportunities.

Strategies to enhance public and stakeholder participation will, in large part, remain dependent on two related factors. First, effective participation is contingent upon having functional literacy and being able to meet law reform literacy needs within timeframe constraints. Secondly, effective participation opportunities are contingent upon government being able to invest time and resources in providing consultation processes which are capable of meeting the diverse participation needs of affected people and interests. We acknowledge that the proposed strategies involve significant resources and commitment, some of which may not be realistic in the shorter term. As long as opportunities to participate in law reform continue to be formally available, however, we suggest both these factors will affect the extent to which people, and particularly disadvantaged people, are able to participate in law reform effectively.