The body called for adequate funding to cover the costs of new laws, policies and programs
The Law Council of Australia has established a justice impact assessment framework that it intends to recommend for use in justice cost benefit analyses of planned policies, laws and programs.
The framework debuted at the Northern Territory Bar Association Civil Law Conference on 13 August. It is intended to be applied by government ministers, members of parliament, senators and the public service.
“We believe that good law-making in this country is being impeded by a failure to consider the clear consequences on the justice system of the proposed changes, in particular where a proposed measure will drive up demand on our courts and tribunals and people’s need for legal assistance”, said Tania Wolff, the Law Council’s president, in a media release. “The introduction of new legislation, significant changes in policy or new government program settings can affect the rights, duties and legitimate expectations of Australians. The result is a rise in legal need and additional demands on the justice system”.
She noted that government policy changes involving family, employment, social security, crime and immigration could strain already-burdened justice services.
“Often it is Australians facing significant disadvantage who are most harshly affected. These changes can compound existing limitations on the availability of accessible and affordable legal representation, delays in resolution through our courts, increase the time people spend on remand, and lead to overcrowding and cost blow-outs in prisons and detention centres”, Wolff said.
She highlighted the Family Law Act 1975 (Cth) reforms in 2023 that were supposed to strengthen the position of vulnerable children in family law proceedings.
“However, these amendments increased demands upon Independent Children’s Lawyers without adequate funding being set aside to ensure that a sustainable workforce would be available to meet that demand”, Wolff said.
The Law Council also pointed to bail law amendments in state and territory jurisdictions that complicated and increased demands on legal assistance services the courts, policing and corrections systems.
“These issues could be prevented if, during the development phase, potential impacts are identified and addressed upfront and additional resourcing provided when required. Justice Impact tests are already used in other countries around the world including the United Kingdom”, Wolff said. “And we have similar tools in Australia to evaluate environmental and red tape impacts. We strongly believe a justice impact test should equally be part of the legislative, policy and program development process”.
She added that the Law Council was calling for measures to be evaluated against the framework’s checklist.
“If they are likely to impact the justice system, we would expect them to be accompanied by proportionate funding”, Wolff said.
