Push for justice impact test to help avoid robodebt-style policy bungles

Paul Karp (The Guardian 23 August 2018)

The potential of new laws to place further strain on the justice system should be considered before they are implemented, the Law Council of Australia has said, citing the costly flow-on effects of the government’s robodebt changes as an example.

The call for federal and state governments to assess the “justice impact” of their policies is the main recommendation of the council’s justice project, which also calls for a boost of at least $390m a year for legal aid.

The Law Council report, to be released on Thursday, suggested that central agencies such as Treasury or finance should work with the justice department to assess policies’ potential impact on both the civil and criminal justice systems when they are in the early stage of development.

The tests may improve “the overall quality and effectiveness of new policies and laws” including through “smoother administrative processes and program roll-outs”, it said.

“Changes to welfare laws and policies have significantly increased demand for legal assistance services with social security expertise,” it said.

For example, it said Centrelink’s automated debt collection scheme had caused “extraordinary pressure on community legal centres”. A justice impact test could have “signalled upfront that a proportion of particularly vulnerable Australians would need help to respond” to robodebt notices.

In early 2017 some legal centres reported as much as a threefold increase in demand due to the robodebt crisis. The Welfare Rights Centre reported that it turned away 20% to 30% of people seeking assistance.

The report noted that “law and order approaches adopted by many state and territory governments have also led to strains on the justice system”.

In Victoria, New South Wales and Queensland, increased policing and prosecutions without more spending on courts has led to increased demand for legal aid and lengthy court delays.

The Law Council noted that the existing commonwealth scheme of regulatory impact statements tended to emphasise the impact on businesses, community organisations and individuals but not the justice system.

Evaluation of the justice impact of laws “is often not occurring, or otherwise occurs insufficiently”.

The Law Council called for the federal government to remove the restriction that prevents community legal centres from undertaking law reform and policy advocacy work.

The report called for a major overhaul of the asylum seeker processing system, arguing that asylum seekers should only be detained “where it is necessary, reasonable in all the circumstances and proportionate to a legitimate purpose”.

The justice project report also called for a full review of the resourcing needs of the judicial system and a higher priority for preventative and early intervention approaches – including safe and secure housing, mental health and disability services, youth engagement, family support and rehabilitation.

In addition to calling for $390m a year more in legal aid, the Law Council said that the funding model should be “transparent and evidence-based” and funding levels should be “predictable, sustainable and long term”.

Governments should also consider setting targets of the Australian population that should be covered by legal assistance services and hire non-legal liaison officers, such as Aboriginal and Torres Strait Islander, cultural, disability or youth liaison officers.

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