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By the People, for the People? Community Participation in Law Reform November 2010

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By the People, for the People? Community Participation in Law Reform November 2010 access to justice and legal needs By the People, for the People? community ParticiPation in law reform november 2010 Access to Justice And LegAL needs Volume 6 By the People, for the People? c ommunity particiPAtion in law reform november 2010 natalina nheu & Hugh mcdonald LAw And Justice foundAtion of new soutH wALes ISSN 1832-2670 This report is part of the Access to Justice and Legal Needs monograph series published by the Law and Justice Foundation of New South Wales. The Foundation seeks to advance the fairness and equity of the justice system, and to improve access to justice, especially for socially and economically disadvantaged people. The series is aimed at researchers, policy-makers, government, the legal community and others interested in legal need and access to law and justice. It is a scholarly, refereed series. Monographs are refereed by at least two appropriate external referees who are independent of the Foundation and any other organisations/authors involved in the publication. Managing Editor: Geoff Mulherin © Law and Justice Foundation of New South Wales, November 2010 This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Foundation. Any opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Foundation’s Board of Governors. National Library of Australia Cataloguing-in-Publication data: Author: Nheu, Natalina. Title: By the people, for the people?: community participation in law reform / Natalina Nheu & Hugh McDonald Edition: 1st ed. ISBN: 978 0 909136 93 2 (pbk.) Series: Access to justice and legal needs; v. 6. Notes: Includes bibliographical references. Subjects: Law reform--New South Wales. Other Authors/ McDonald, Hugh McIntosh. Contributors: Dewey Number: 340.30994 Law and Justice Foundation of New South Wales Level 14, 130 Pitt Street Sydney NSW 2000 GPO Box 4264, Sydney NSW 2001 Phone: +61 2 8227 3200 Fax: +61 2 9221 6280 Email: [email protected] <http://www.lawfoundation.net.au> Cover image: Ben Stack, Moonlight Mystery (detail), 126cm x 106cm, 2007, courtesy of the artist. Foreword The objects of the Law and Justice Foundation of New South Wales (the Foundation) are to contribute to the development of a fair and equitable justice system and to improve access to justice by the community, particularly by economically and socially disadvantaged people. In 2002 the Foundation commenced the Access to Justice and Legal Needs (A2JLN) research program, which aims to examine the ability of disadvantaged people to: obtain legal assistance participate effectively in the legal system obtain assistance from non-legal advocacy and support participate effectively in law reform processes. By conducting a rigorous and sustained assessment of the legal as well as the access to justice needs of the community, especially of disadvantaged people, the A2JLN research program aims to provide evidence to inform government, community and other organisations in developing effective policy and planning service delivery. The program is challenging, involving an interconnected set of projects and employing a range of qualitative and quantitative methodologies. Importantly, the Foundation’s A2JLN program has a number of important features that distinguish it from many other legal needs and access to justice studies undertaken to date in Australia and internationally. To begin with, this program adopts a broader definition of legal need and access to justice, going beyond the narrow ‘access to a lawyer’ and sometimes ‘access to a iv By the People, for the People? Community participation in law reform lawyer in a court’ approach common in many studies to also examining non- legal advocacy and support and the ability to participate in the justice system. Secondly, the program is the first to incorporate data collected from legal service providers, original survey data and targeted qualitative studies in three separate but interrelated methodological streams. Thirdly, the program includes a specific examination of the ability of the community, and disadvantaged people in particular, to participate in law reform processes as an essential element of the access to justice matrix. This report is the product of that research. While initially we had hoped to collect sufficient data on participation in law reform processes through the three main project streams, we soon discovered that the data was almost silent on this issue — perhaps revealing a very low level of community engagement in law reform processes. To address this knowledge gap we decided to include this specific stand-alone project examining the opportunities and constraints to the participation of disadvantaged people — and the community more generally — in law reform processes in New South Wales. By the People, for the People? is based on five case studies of law reform in New South Wales concerning housing, mental health, law and order, and civil procedure laws. It draws from publicly available literature and in-depth interviews with a number of informants involved in these case studies, as well as general literature and data on the number of Bills introduced and enacted in the New South Wales Parliament. The report highlights the many constraints to the participation of disadvantaged people in law reform, and identifies a range of strategies that might be considered if the most disadvantaged people in the community are able to effectively participate. For many in the community, participation in law reform generally fails to rate highly in people’s personal priorities. While it is important that participation levels are increased — especially by disadvantaged members of the community — it may be unrealistic to expect a great increase in that regard. This is especially so when the complexity of law reform is taken into consideration. Perhaps not surprisingly the findings from this study demonstrated a significant gap between the ‘law reform capabilities’ required for effective participation and the levels of law reform capability among the Foreword v general population, and even among the community service organisations that represent many. A number of important implications flow from such a finding for those interested in engaging the community in law reform. One such implication is that in addition to time and resources, law reform capability involves a wide range of knowledge, skills, and confidence. Importantly, functional literacy is a key underpinning factor in an individual’s capability to participate in law reform. While it is beyond the scope of this research to address these broader educational and individual capability questions, it is important to note that any strategy developed to increase the engagement of disadvantaged people in law reform must take into account the hardship and realities of life for these people. While this report ‘stands on its own’, it should be read in the context of the other main reports produced in the A2JLN program, including: Stage 1: Public Consultations (2003) Stage 2: Quantitative Legal Needs Survey, Bega Valley (Pilot) (2003) Data Digest (2004) The legal needs of older people in NSW (2004) No home, no justice? The legal needs of homeless people (2005) Justice made to measure: NSW legal needs survey in disadvantaged areas (2006) On the edge of justice: The legal needs of people with a mental illness (2006) Taking justice into custody: The legal needs of prisoners (2008). Geoff Mulherin Director Law and Justice Foundation of New South Wales November 2010 Contents Foreword................................................................................................................... iii Acknowledgements................................................................................................ix Abbreviations...........................................................................................................xi Executive summary..............................................................................................xiii Background......................................................................................................... xiii Key.findings......................................................................................................... xiv Implications......................................................................................................... xxii Strategies........................................................................................................... xxv 1. Introduction........................................................................................................1 1.1.Research.questions..........................................................................................1 1.2.Key.concepts.and.definition.of.terms................................................................2 1.3.Significance.of.the.research.............................................................................8 1.4.Previous.research...........................................................................................14 1.5.Scope.of.study................................................................................................18 1.6.Structure.of.this.report....................................................................................19 2. New South Wales law reform processes..................................................21 2.1.The.law.reform.cycle.......................................................................................21
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