Law Council calls on governments to adequately assess new laws

Law Council of Australia president Tania Wolff emphasised the need for systemic foresight when introducing new legislation.

“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,” Wolff said.

“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.”

Assessing the justice impact of policy

Talking to Lawyers Weekly, Wolff noted what a justice impact test would look like in practice and when governments should apply it.

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Wolff said: “Last week we released our Justice Impact Assessment Framework – a practical checklist for evaluating the likely justice-system impacts of proposed policies, programs and laws.

“It looks at consequences that are too often discovered only after the fact: increased demand on publicly funded legal assistance, added pressure on courts and tribunals, knock-on costs elsewhere in the system.

“Used properly, the framework does two things; first, it forces decision-makers to see the true cost of a measure before it’s locked in – not just the headline policy cost, but what it will demand of the justice system to implement.

“Second, it prompts a harder question: is there a better way to achieve the same objective with less strain on an already stretched system?

“We’ve designed the framework to be used at every stage – inside government and the public service from the earliest conceptualisation of a measure, right through to the moment legislation lands before Parliament.

“A test embedded from first principles can actually shape better policy.

“We’ll be circulating the framework widely to government departments and parliamentarians across every Australian jurisdiction, and encouraging them to use it as a standing resource.”

Making justice impact assessments mandatory

The Law Council suggested that although adopting its framework represents a positive move, relying on a purely elective approach remains insufficient.

“While the uptake of our framework would be a step in the right direction, it is a voluntary model,” Wolff said.

“That’s why the Law Council is continuing to push for something even stronger: a formal Justice Impact Assessment Framework embedded in Australia’s legislative development processes, such as the Australian government’s own Impact Analysis Framework.

“This isn’t a novel idea – it’s already mandatory in the United Kingdom, where policymakers across government must complete a justice impact test for any new proposal that could affect the justice system.

“It improves transparency and forces governments to put their reasoning on the record – that accountability is valuable in itself.”

However, implementing these assessments presents its own set of challenges, with Wolff indicating that initially identifying an impact and then resourcing for it are quite a contrast.

“Identifying an impact and funding it are two different disciplines, and history shows governments are far more comfortable with the first than the second,” she said.

“Whether governments adequately respond to the findings of justice impact tests is a separate question, and that depends on three things: resourcing to act on what the test finds, independent oversight, and evaluation mechanisms that keep governments honest about whether identified issues were addressed and whether additional funding materialised.

“A test without teeth is just a more formal way of documenting a problem governments already know about.”