2015-09-15
Ms PENNICUIK (Southern Metropolitan) — My adjournment matter is for the Attorney-General. It concerns establishing a framework for justice impact assessments for regulatory proposals, as outlined by the Law Institute of Victoria (LIV) in its Call to Parties — State Election 2014 Key Issues document. The benefits of introducing justice impact assessments include better informing the Parliament, improving ministerial and departmental decision-making and improving the overall health of the justice system. The Law Council of Australia supports the introduction of such assessments at the federal level.
The LIV's policy proposal involves an amalgamation of the UK's justice impact test model and Victoria's regulatory impact statement model whereby policymakers developing any policy likely to have an impact on the civil or criminal justice systems must prepare a justice impact assessment. Included in the assessment would be an analysis of the impact of the policy proposal on the courts, legal aid funding, prisons and correction services, prosecuting bodies and the judiciary. Other areas would include the volume, length and cost of legal inquiries and disputes, the cost of and demand for private legal services, and the criminal and civil justice systems as a whole.
Apart from the UK providing for such assessments, the European Union has produced impact assessment guidelines for preparing impact assessments to provide for consideration of environmental, social and economic impacts of proposed policy changes. Assessing the social impact includes analysing the effect on the individual's access to justice, the effect on public institutions and administrations, and the effect on existing inequities in society.
In Virginia in the United States fiscal impact statements for any proposed legislation that may lead to a net increase in periods of imprisonment in state prisons must include assessments of impacts on adult and juvenile offender populations, impacts on local and regional jails, and impacts on state and local community corrections programs. In Canada regulatory impact assessment statements must consider a broad range of factors, including the potential impacts of the regulation on health and safety, security, the environment and the social and economic wellbeing of Canadians.
My request to the Attorney-General is that he consult further with the LIV and other key stakeholders on this issue, with a view to introducing justice impact assessments in Victoria.
Reply from Martin Pakula on 20 October 2015:
In its 2014 “Call to the Parties” document, the Law Institute of Victoria (LIV) called for the
“Introduction of a Victorian framework for Justice Impact Assessments to be undertaken for regulatory proposals, similar to the current United Kingdom (UK) model which may be administered by an independent body.”
None of the responses provided by the parties, including that from the Greens, specifically addressed the proposal.
I note that in the UK, the “Justice Impact Test” is a mandatory part of its Impact Assessment process, which appears to be broadly similar to Victoria's regulatory impact statement (RIS) process. It aims to assist policymakers to minimise the impact of policy decisions on justice systems. For all policy proposals, policy officers must determine whether the proposal affects the justice system and, if it does, must quantify the impact and consider alternatives. It appears that the assessment is carried out by the home department, with support from the Ministry of Justice.
The impacts considered through the process include criminal and civil justice system impacts, such as the effects on: applications for legal aid, court workloads, costs of enforcing civil penalties, demand for prison places, caseloads of prosecutors and probation officers, training needs of investigators, prosecutors and others, and volumes of litigation. These impacts commonly arise where policies involve the creation of new offences, increasing the penalty for an offence, inserting appeal rights or changing the grounds on which civil applications can be made.
Existing consideration of justice system impacts
In Victoria we do already have some formal mechanisms for considering the impact of legislation.
Where primary legislation or new regulations are proposed that will have a significant economic or social burden on a sector of the public (generally, involving an estimated cost of $2m or more), including a sector in the justice area, such a proposal will typically require the preparation of a Legislative Impact Assessment (in the case of legislation) or a RIS (in the case of regulations) to comprehensively evaluate the costs and benefits of the proposal.
A RIS is required to contain an assessment of the social impact of the proposal, plus an assessment of likely administration and compliance costs including resource allocation costs. The focus of the process is on the regulatory and compliance burden imposed by the policy.
All bills are also accompanied by a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006. These statements consider the impact of each bill on the rights protected in that Act, and explain how any impacts are justified. These statements are then scrutinised by the Scrutiny of Acts and Regulations Committee (SARC). SARC regularly poses questions to Ministers about statements of compatibility and Ministers' answers are made public.
It does not take a new formal process to ensure that government considers the impacts of new legislation on the justice system.
The government will always consider the impact of legal reforms to the criminal justice system on the courts, prisons, legal aid funding and prosecutions. In preparing any proposal that will have an impact on the civil justice system, the government will consider the scale of those impacts, and will attempt to quantify costs wherever possible.
This is part of the job of preparing legislation. Evaluating impacts always involves comprehensive consultation with affected stakeholders in the justice system, including the courts, the corrections system, police, and the legal profession. Different bills require different approaches to this task. Some bills will have a minor impact-perhaps on only one part of the system, while others will bring change across the system. One mandatory statement will not suit every project.
I also note that the effectiveness of impact assessments in shaping government policy is unclear. One UK review suggests that impact assessments generally are often not an integral part of policy decision making, and are frequently conducted after policy decisions have already been made.
This government would prefer to continue to consider the impact of any justice system reform in a meaningful way, tailored to each proposal, as part of the policy development process.