This is an edited version of the speech Bevan Warner delivered at the opening of Law Week 2016.
Law Week is a time to pause and reflect on how well the law is serving the community. We know it hasn’t served Aboriginal people well but unfortunately and for reasons that still perplex me we seem shy about demanding better. I also wondered how I would feel if I were truly vulnerable before the law. To have to struggle on scared or bewildered and to not know what to do.
I thought about the discussion I have with new staff at induction where I emphasise our role as a check on power and the need to be mindful of power imbalance. I explain our wider contribution to society. That we defend communal freedoms by holding powerful interests including government agencies to account. That our clients are entitled to the protection of the law and to be treated with respect and human dignity regardless of their circumstances. That all of our clients are vulnerable before the law and they wouldn’t be our clients if they weren’t.
I explain that lawyers who help legally aided clients stand in a powerful and intimate position of trust. Something that is relatively easy to breach. Why? Because vulnerable clients would likely trust the advice they get, even if it were wrong or misconceived, such is the extent of the professional power imbalance between the trusted professional advisor and the acutely vulnerable client. That we must be ever mindful of how we act and behave and to resist performing our roles in superior or preconceived ways.
In societal terms we have been told ‘look up to the law’. With that, we have an immense responsibility to make the law accessible as there can be no respect without understanding.
Of course, every profession creates its own rules to license people into the club and to keep people out and that’s OK. I don’t want a plumber as my cardiologist. But every profession also creates its own culture and language and herein lies the problem. The people’s law locks most people out. Most people need a lawyer to interpret their rights. Some need an interpreter to allow them to communicate at all. Many people who receive legal assistance are stressed and we know that stressed people have trouble both understanding and remembering things. In fact, it’s not uncommon for our lawyers to come out of court only for the client to turn and ask whether or not they’re going to jail; whether or not they get to keep their child. Add a dose of power imbalance and we have real communication and fundamental rights problems that we must be mindful of.
We firmly believe that we should aspire to a system where the law is something a person participates in, rather than something that happens to them. This means a greater awareness of how a person’s understanding may be hindered – be it due to a cognitive impairment, a language barrier, a literacy issue, a health or addiction problem.
For some, this will mean we need to slow down and engage more meaningfully as trusted advisors mindful of the power imbalance that emanates from our roles. In other situations, it may require us to ‘speed up’ to embrace change, to navigate self-service and on-line court systems so that efficiencies can be reinvested in people centred processes.
We must place people at the centre of design and not the edifice or artefacts that travel with us. Hospitals are open and available when we need them and so perhaps should be the law. We need to think deeply about how people find the law and experience our institutions because the law exists for real people not its professional actors or its paid servants. Our challenge is to keep that truth at the forefront of our minds, all of the time.
I know from what VLA contends with his how hard this can be. As the people designing and redesigning our legal system we need to truly listen, not assume we are smarter or more knowledgeable and truly understand the people who come before us, whatever our role.
If we are to address the causes and catalysts of legal problems, to have more effective and empathetic justice responses, we must hear the stories of those who experience the justice system, and we need to amplify them to ensure they are heard.
This is a role that Victoria Legal Aid has recommitted to in recent times. A role I hope you will agree is vital and appropriate. It is exampled in the way we designed our new independent mental health advocacy service; where people with lived experience of involuntary treatment were brought into the centre of the room and supported to say what they wanted. It features in our research, the way we will redesign our child protection services. It features in our client story-telling approach and the way we make ourselves available to the media, so that we can be understood and better understand the clients and community we serve.
Put simply, all of us must design systems as ordinary people would wish to use them, because, ultimately, our success in defending and cohering our communal freedoms depends on it.
Bevan Warner is the Managing Director of Victoria Legal Aid.