Last week, I thought _ wrongly _ that there has been a delightful spin-off from the chattering and nattering over the Budget in the Senate.
The Democrats’ Leader, Cheryl Kernot, was complaining that the boondoggling over the Budget was distracting the Senate from its real work _ legislation.
Since the Budget, the Senate has sat for 41 hours of debate, but only 66 minutes was devoted to legislation. Excellent, I thought. Australia would be far better off if less legislation were passed. Few people read it; and fewer understand it.
Alas, two reports issues last week show I was wrong. The time spent on legislation in Parliament in fact has nothing to do with how much of it is passed.
In 1989, for example, 600 sitting hours produced 5500 pages; yet 1988 with nearly 700 sitting hours only produced a tad over 3000 pages. Senator Kernot kids herself if she imagines the business of Parliament is legislation.
Moreover, manque MPs who imagine they are any more than a number to determine government should ponder the fact that in the past 10 years only two private Members’ Bills amounting to 11 pages of legislation have been passed. Government legislation, by comparison, has amounted to 35,000 pages.
Much of this is written in opaque language and oppressive detail. Some of it manifestly does not achieve its purpose, not because the drafter got it wrong, but because the policy was poorly conceived _ witness the fiasco over the pay-TV.
The cost of unnecessarily complex legislation is huge _ some $265 million.
These figures come from two reports tabled in Parliament last week. One was called Clearer Commonwealth Law issued by the House of Representatives Standing Committee on Legal and Constitutional Affairs. The other was issued by its Senate namesake, called the Cost of Justice.
Incidentally, I nearly choked on the first recommendation of the latter.
Its very first recommendation was “”that the resources available to the legislature be substantially increased . . . that the parties in parliament be given greater resources . . . that Parliamentary Committees be provided with sufficient staff . . .”.
Shameless isn’t it? I don’t think many Australians hit with high legal bills would agree that this self-serving, self-aggrandising twaddle should be the first priority. I cannot see many people agreeing that putting a whole lot more people on the public payroll will reduce the cost of justice. Indeed all the evidence points the other way. The greater the number of hangers on a Parliament House, the more costly justice has become.
Recommendation Two is that the Executive’s process of selecting judges be open to public scrutiny. Admirable. But nothing to do with the cost of justice.
It is only at the back-end of the recommendations do we get some sense. These recommendations point to one of the best ways of cutting legal costs: self help.
The recommendations include compulsory legal education in primary and secondary schools; community legal education programs; all court forms should be written in plain English; legislation should be easy to read; court transcript services should be put out to tender to make them cheaper; information on court processes should be more available to people who want to represent themselves; public law libraries; lawyers forced to provide fee estimates; and all federal and state legislation be available on computer.
At present the legal profession thrives on a monopoly of knowledge and the intimidatory nature of the system.
Most people should be able to do their own home conveyancing; fix things up when a relative dies; do their own divorce and set up a company or partnership or register a business name. These things should be taught in the schools and easy-to-read guides should be available. Most people should be able to run a dispute in the small claims court, provide an easy-to-read-guide is available.
The reason people cannot do these things now is not because they lack the intelligence or that it requires years of legal training. It is just that straight-forward guides are not available.
The committee has not put it in black-and-white, but it seems to be indicating that if lawyers are too expensive, authorities should make it as easy as possible for people do it themselves. That requires legal education; simplicity of procedures and simplicity of and accessibility to legislation.
The last point was taken up by the Clearer Commonwealth Law report by the House of Representatives Committee on Legal and Constitutional Affairs.
One of its recommendations, however, was despairingly dumb. It recommended that the Attorney-General’s Department should “”by 30 June 1994 publish, in printed form, a complete consolidation of all Commonwealth primary and subordinate legislation”.
It would be a utter waste of time and money. It would be out of date almost immediately. Parliament is churning out an average of 10 pages a day of legislation.
In these days of computers in the classroom and home computers being sold at Brash’s, it is time to abandon print.
The committee recommended the consolidation be done in electronic form and that department “”put in place means of ensuring ready public and parliamentary access to the complete consolidation in electronic form”.
Very sensible.
An electronic consolidation as at 30 June, 1994, however, is only of use until the next parliamentary sitting day. The database has to be updated daily.
In fact the Attorney-General’s Department does this with most legislation. It creates electronic paste-ups incorporating all amendments. The trouble is these are not the “”official versions” and they are not easily accessible. Public access costs about $40 an hour through computer modem and the program is very difficult to use. (Perhaps lawyers are ingrained with making things hard for the laity.)
The daily electronic update must become the official version. General modem access to all legislation and case law should be cheaper and easier. Specific Acts should be obtainable on disk at various Commonwealth offices throughout Australia.
Instantaneous electronic delivery or today’s update will make the law accessible; paper delivery with myriads of paper amendments keeps it into lawyers-only territory.
The committee recommended also that the explanatory statements that go with legislation be made available electronically. Very good, but I can’t see why we don’t make the explanatory statement the law and do away with the incomprehensible legislation.
It was an issue taken up by John Green in, “”A Fair Go for Fuzzy Law,” which he presented to both committees. He said we should abandon black-letter law with its great detail and complexity which tried to account for every possibility. Instead legislation should state general principles and be short and simple.
Thus instead of having 50 pages of detail about the duties of company directors, the law would say: “”Directors shall act honestly and diligently.”
However, the parliamentary drafting office said it would be at the price of uncertainty. Green argues, however, that nothing could be less certain than having thousands and thousands of pages of opaquely worded black-letter law.
In the meantime, the committee recommended that legislation be tested for readability. “”The most effective way of testing legislation is to ask people whether they understand it,” it said.
Perhaps the first guinea pigs should be the parliamentarians themselves.
Cheryl Kernot is right in saying that the first task of parliamentarians should be legislation. At present, however, the ratio of sitting days to pages of legislation shows this is not happening and that it is more in the hands of the bureaucracy than parliamentarians who are more interested grandstanding over the Budget. Perhaps MPs should have to certify that they have read and understood all legislation before they vote for its passage. That way we might get laws we can understand.