Law Council backs fundamental shift in law, policy development

Justice impact tests should be introduced at the Commonwealth, state and territory levels, the peak body says

Law Council backs fundamental shift in law, policy development

The Law Council of Australia is recommending that justice impact tests be introduced at the Commonwealth, state, and territory levels.

The nation’s peak body for the legal profession made the recommendation as it released the final report of “The Justice Project,” a comprehensive, national review that began early last year and focused on the state of access to justice in the country.

Justice impact tests, which systematically consider the possible effects of legislative and policy change on the justice sector, will facilitate the smoother development of laws and policies, the report said. Morry Bailes, Law Council president, said that the tests will promote a whole-of-government approach to dealing with pressures on the justice system.

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“Being a central foundation of our democracy, there is little government policy that doesn’t have some impact on the justice system. We must ensure this impact is factored in at the very beginning of the process. For example, changes in government policy will often increase demand for legal assistance, heaping extra pressure on already-stretched services,” Bailes said.

“Changes to laws and policy can also impact courts and tribunals, contributing to strains on court resources, creating lengthy delays, and increasing the time people are held on remand,” he said. “Other areas of the justice system can also be affected, such as overcrowding and expenditure blow-outs in prisons.”

He said that Justice Project stakeholders have long maintained that a better appreciation of the relationship between policymaking and legal need is required.

“We are not just referring to policies in the attorney-generals or Justice portfolios, but across government, including: welfare, immigration, disability, older persons, crime, families and housing,” he said. “Justice impact tests are already in action in the UK, Canada and a number of states in the US. We have no doubt they are equally needed here.”

Comprehensive impact tests

The Law Council recommended looking at the justice impact model of the UK, including its principle of agency accountability for downstream justice system costs, as a potential guide for a similar system in Australia.

It said that justice impact tests should be conducted early in the policy development process and should be mandatory for all government agencies. They should apply to justice impacts within both civil and criminal justice systems and overseen by central treasury or finance agencies, as well as justice departments, the Law Council said.

Key justice sector representatives, including the legal assistance sector, courts and tribunals, corrections, youth justice and legal professional peak bodies should be required to engage early in the process as well.

The system to be put in place should also incorporate mechanisms to account periodically for incremental and cumulative system impacts, and be subject to consistent evaluation to improve impact assessment mechanisms over time.

Crucial work

The project is one of the most important undertakings that the Law Council has ever undertaken, Bailes said.

The review, which was overseen by a steering group chaired by former a High Court chief justice, the Hon Robert French AC, is one of the most extensive of its kind in the last four decades and produced a final report of 22 chapters and more than 1,400 pages.

“Around 150 consultations were held, and 129 submissions received, revealing often heartbreaking accounts from everyday Australians about the devastating consequences of not being able to access justice, or of receiving poor justice outcomes,” Bailes said.

“Focusing on 13 priority groups identified as facing significant social and economic disadvantage, today’s final report shines a light on justice issues for these groups by uncovering systemic flaws and identifying service gaps. It also highlights what is working well and why,” he said.


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