In order for people to be able to solve their own disputes and access legal information, primary legislation should be drafted with a sufficient clarity so that the target audience can understand the law without need for a lawyer. What this means will depend to some extent upon the subject of the legislation. For example, laws governing complex superannuation or taxation arrangements may not be readily understandable by an ordinary person in the same way one would expect that laws dealing with less complex subjects might be. having said that, all laws should strive for clarity. For example, inconsistent and extended numbering adds to complexity, uncertainty and cost.
The retention of outdated or unclear legislative provisions makes the law complex, inconsistent and difficult to access. The ‘red tape’ imposed by an outdated or unclear law is a burden on users of the civil justice system and will increase the need for private legal advice.181 This imposes unnecessary
costs on the community and makes the law inaccessible for those who cannot afford legal advice. Consequently, they are denied the right to understand the law.
Recommendation 6.9 would allow for a ‘stocktake’ of primary legislation that is appropriately managed by ministers. In many cases, no or minimal action will be necessary, but the scheme retains the important benefit of regular consideration of the relevance and clarity of laws. In addition:
ministers could refer legislation to the Attorney‑General in order to receive advice on
•
instances of lack of clarity or problems with drafting. The Attorney‑General could then make recommendations to the minister about whether and how to review legislation
under no circumstances would primary legislation be sunsetted
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ministers would continue to assess and identify portfolio legislation that would benefit from
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significant review and simplification outside of the 10 year review process, and decisions for resourcing major reviews would be made on a case by case basis.
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The Office of Parliamentary Counsel (OPC) uses the principle of plain language when drafting legislation. however, the quality of legislation is also dependent on the complexity of the original policy and on the instructions being prepared with clarity as a goal. Feedback from drafters suggests that good instructors are less risk averse, leading to stronger, clearer and simpler laws.
To assess whether legislation is sufficiently clear, a review process such as the one described in Recommendation 6.10 would allow external feedback to be provided to the drafters and instructors prior to introduction. The feedback received would assist future drafting as well as improving the legislation under consideration.
181 There is no current estimate of the current administrative burdens imposed by the Commonwealth. A uk baseline
measurement exercise in December 2006 found that administrative burdens are about one per cent of gross domestic product. It is possible to estimate Australia’s burden on this basis, noting the need to divide it according to relative Commonwealth and State share of administrative burdens.
RecommendATIon 6.9
To ensure that legislation is relevant, clear, effective and not redundant, the Government should introduce a flexible scheme for the regular review of primary legislation. This would involve:
For new legislation, ministers should consider the inclusion of appropriate review periods
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and mechanisms when the legislation is introduced. At regular intervals, a schedule of primary legislation
• 182 which was passed 10 years
previously, or had not been reviewed in the last 10 years183 be published. Relevant ministers
would consider whether it was necessary to review the legislation to ensure that it is relevant, clear, effective and not redundant.
While ministers would be accountable for their decisions, the conduct and form of a review would be for ministers to determine, and review would not be mandatory.
RecommendATIon 6.10
The Attorney‑General’s Department, the Office of Parliamentary Counsel and the Department of the Prime minister and Cabinet work to improve the clarity of legislative drafting by:
developing a scheme so that when primary legislation is released for public consultation as
•
an exposure draft, specific consideration is given to assessing its clarity and readability, and opportunities for that to be tested are included in the consultation process, and
amending the legislation handbook to reinforce the need for instructing officers to provide
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clear drafting instructions so that legislation can be as simple as possible.
Information; Action, Proportionate cost.
182 Relevant primary legislation would be a substantive new Act or a major amendment to existing legislation – minor
amending Bills would not be relevant, as they would be considered in the context of the parent Act.
183 There would be an initial transition period to ensure that reviews of existing legislation commenced in an orderly manner
Chapter 7: Non‑court models of dispute
resolution
Key points
An increase in the early consideration and use of non‑court models of dispute resolution has significant capacity to improve access to justice, in particular by ensuring that:
the dispute is resolved as early as possible
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an appropriate pathway for resolution is used that places an emphasis on the parties’
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interests and, where appropriate, their future relationship, and
the cost of resolving the dispute is minimised, and is proportionate to the complexity and
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importance of the dispute.
As discussed in Part I of the report, there are a wide variety of dispute resolution methods available, all involving varied costs to the Government and to individuals. In particular, there are a variety of low‑cost methods of dispute resolution, which involve resolution of disputes outside of the courts. knowledge and awareness of these methods remains lower than it could be. Raising awareness of these methods has significant potential advantages, including reducing the cost of dispute resolution, and providing stronger outcomes for people with disputes. This Chapter discusses some of these methods, and strategies for increasing their uptake.
A variety of avenues of dispute resolution exist independent of the courts and judiciary, including: personal pathways to dispute resolution, including negotiating directly with the other party or
•
deciding not to proceed
administrative law remedies such as the Commonwealth Ombudsman and tribunals
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EDR
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internal complaint mechanisms
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ADR, and
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FDR services.
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The nature of disputes in society is constantly changing. To be effective, non‑court models of dispute resolution must be responsive to that change. As the public reaction to the global financial crisis demonstrates, people expect government to take the lead in responding to large‑scale challenges that affect society.184 This includes responsibility for dispute resolution.185
This Chapter addresses current initiatives on non‑court models of dispute resolution and potential directions for reform. These include EDR, internal complaint mechanisms, ADR and FDR services. Administrative law remedies are discussed in Chapter 10.
184 The hon. kevin Rudd mP, Prime minister, ‘The Global Financial Crisis’, The Monthly, February 2009, No. 42.
185 Ipsos Australia (prepared for the victorian Department of Justice), Dispute Resolution in Victoria: Community Survey 2007
Report, 2007, p 21. For example, the majority of victorians (79 per cent) believe Government has a responsibility to provide ADR services to help resolve disputes.