Reformation beyond reform?

I have been thinking about reforming the law – which is different from law reform.

I think we do law reform relatively well in Australia, – maybe I would say that given I was on the Victorian Law Reform Commission (VLRC) for a hot minute! There are Law Reform Commissions around the country which work on updating and informing the legislation we live under with greater or lesser levels of support – but they exist, and there is serious and rigorous consideration of these matters in policy circles, academia, think tanks and elsewhere.

Reforming Law is a different proposition.

For me that’s about reforming the systems and processes – the grinding gears of justice.

And grinding they can be. Again, the VLRC has done some fine work on looking at the way in which the law operates regarding some particularly egregious offences - see its reports on sexual offences and stalking as examples.

But I’m talking about the law of common experience. For instance:

Why can’t people be sent an SMS when their court matter is about to be called, so they don't have to sit glued to their seat all day, anxious and waiting, or miss it completely?

Why is it so difficult to find out what Community Legal Centres will and won’t help you with?

Why can’t we have a standard expectation of what legal advice might cost, as is the case in other parts of the world?

Why isn’t there a central portal for making complaints or getting legal assistance, so we can get rid of the referral roundabout?

Why don’t we know the basic demographics of the people and problems in our high-volume jurisdictions?

Why is it only the Supreme Court which can issue probate?

I’m well aware of the philosophy, history, rationales and practices which sit behind these barriers, but at what point do they obstruct rather than support justice? The Public Understanding of Law Survey taught us so much about the shortcomings of our justice system: massive problem prevalence, clear impact on particular parts of our community, long processes, serious adverse consequences, and the list goes on and on.

One of the advantages of our justice ecosystem is the diffusion of control. The flipside is that system change requires co-ordination and collaboration across the powers we’ve separated. It is not the fault or responsibility of any one agency or decision maker, but what they share is a failure to put the person at the centre of our justice system. It centres ‘The Law’ (capital T capital L). It’s archaic and organic, and groaning under the weight of 21st century life.

The social contract demands that we keep faith with our community. We agree to our democratic structures and to the rule of law on the basis that it is democratic. That we can exercise our rights and find remedies when we need to. In too many instances The Law doesn’t provide for that, and in some actively prevents it.

As Julius Sumner Miller taught us to ask, why is it so? Or in this case, why is it still so when we know things are crook? For decades we have said it’s about the money. There's never enough funding for people, technology, data, or services. While that is true, I'd suggest this speaks less to a lack of resources and more to a lack of will for systemic change, and to deeply entrenched interests. More on that anon.

The Law is independent and august. It must be absolutely and demonstrably impartial. But does that mean our experience of it has to be so poor? We spend considerable time on law reform and nowhere near enough on reforming The Law.