Wednesday, 29 June 2011 12:50
I believe the common opinion is: "Yes".
That opinion was accepted as a given in this week's Q&A program. Federal Infrastructure Minister, Anthony Albanese, in defending the Gillard Government said:
"And in spite of some of the criticism and people saying things aren't working, it's 153 pieces of legislation we've carried in the new parliament. No legislation defeated, not a single amendment carried without government support. John Howard only carried 114 pieces of legislation in his first year. So the parliament is functioning. The government is functioning."
So Minister Albanese wants us to accept that 153 pieces of legislation is better than 114.
Here are five reasons why I strongly believe more law is not what is needed.
- Simplification need: No lawyer practising in Australia today knows all the law, not even half of it. It used to be said that a lawyer might not know the law but knows where to find it. Even with online access to law, today that's not possible to do in a timely fashion when the area of law is outside a lawyer's usual areas of practice. In these circumstances my view is that there is an increasing need to make legal FAQs, guides and similar documents and to make them as simple as possible. However, for this need I believe there's several supply side challenges, which leads to 2.
- Structural impediments for simplification: I believe the rate of new law writing and changes keeps adding to complexity. That move is not matched by efforts towards simplification by the institutions associated with the making and interpretation of law - parliaments, the judiciary, legal academics, and lawyers. They would better serve Australia's long term needs if the focus shifts to simplification of law, not more law. Continuing as they are doing makes them a structural impediment against simplification. If and when simplification is put on the agenda then points 3, 4 and 5 should be seriously considered.
- Understanding achieved through visualisation: Experience tells me that it helps to involve business managers and other non-lawyers in the drafting of law and legal FAQs and similar simplifications or explanations of law. One reason is to involve information visualisation (eg with diagrams and tables). Few legal minds tend to be good at graphic representation of information.
- Understanding achieved through training: Experience also tells me that what's needed is more understanding achieved through training. The culture of law is privileges seminars communicating technical information (often about new laws), rather than workshops and training developing practical skills and competencies in the application of law.
- Software supported legal compliance: To address time, cost and even quality considerations, I believe we have an economy-wide need for software code to help in interpretation and processing of legal text. It's amusing that so many of our behavours remain those suited to only the paper law era. To my knowledge software interpretation of law is already present in some niche tools online, eg for calculation of stamp duty or employment leave entitlements. Mobile phone apps would be good too, but I'm yet to see one that is a must have on law. Few talk about the need to expand the software approach. There is little discussion or investment in this subject relative to the mountains spent on assessing, writing, and re-writing law in text format.
The "we need more law" loop created by items 1 and 2 will continue until we short circuit them. If and when we do, the approaches in 3, 4 and 5 need testing.