Law as a Conversation with Community
In a 2004 paper on ‘The Evolution of the Role of the Attorney-General’, Alana McCarthy observes that the ‘role of the contemporary Australian Attorney-General is very much open to interpretation by its office holder’. She notes the development of the office from its origins as the King’s Attorney in Medieval England. She reviews many of the controversies surrounding the office; from suspicion in England in the 15th century that the Attorney General was a ‘tool of the Crown and the Lords’ to our more recent debates in Australia as to whether the Attorney General should defend the judiciary from political attack. Most often today the position is interpreted in terms of its relationship with (and within) government or with the legal profession. As a community lawyer and advocate, I would interpret the role in terms of its relationship with the Australian community. I’m interested to find out more about what the community expects from the law. As Australians, what is our vision of justice? And how can the Attorney General make justice a reality for the Australian community?
In the closing pages of Dreams From My Father, Barack Obama talks about the relationship between community and the law. He describes the law unromantically as ‘a sort of glorified accounting that serves to regulate the affairs of those who have power – and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.’
These words may resonate for many Australians, particularly Indigenous Australians. However the man who has become the first African-American President of the United States of America still gives hope for those of us who work with the law. ‘The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience,’ he says.
What does that conversation look like for Australians? And for those of us who work with the law, are we helping or hindering that conversation with the Australian community?
The Law and Justice Foundation of New South Wales has as its objects to contribute to the development of a fair and equitable justice system which addresses the legal needs of the community and to improve access to justice by the community (in particular, by economically and socially disadvantaged people). Since 2002 it has conducted an Access to Justice and Legal Needs Research Program. In 2006 it published ‘Justice Made to Measure’ which included some challenging findings for many of us.
Research participants were drawn from a number of communities that experience social and economic disadvantage. The participants were asked to identify the types of advisers that they had approached for help, advice and information in response to legal issues. In only 25 per cent of situations, was assistance sought from a legal adviser. In other words these community members were more likely to seek assistance for legal issues from non-lawyers than lawyers.
In the area that I work in, the evidence is mixed as well. Working with children does give you a fresh perspective on the law. It is clear that the legal system is built for adults. Generally the legal system fails to provide appropriate mechanisms for the voices of children to be heard. Further, the inherent disadvantage experienced by children in dealing with the law is often compounded by the barriers that exist as a result of their circumstances – poverty, family conflict and/or violence, discrimination, disability, and distance (both geographic and cultural).
But the news is not all grim. Even though we don’t see children lining up to litigate to enforce their rights, their thirst for knowledge about the law is strong. Children do want to know their rights. Each year the National Children’s and Youth Law Centre’s Lawstuff website (www.lawstuff.org.au) attracts between 4 and 5 million hits. For those children who can’t find the answer they want on the site, many send us emails asking specific questions – around 1000 a year. Many other services that provide legal information that is designed specifically for children will tell you similar stories.
We do need to rethink some of our assumptions about how we provide access to justice for children. We need to develop new models of advocacy, innovative ways to hear complaints, to remind duty bearers of their responsibilities to respect rights and to resolve disputes. And although children have specific needs, many of the lessons that we can learn if we listen to those who stand outside our existing legal system can enhance access to justice for everyone in our community.
We need renewed effort to make the law easier to understand. We need to recommit to the development of resources that help communities resolve issues and disputes for themselves. As advocates, we need to put communities in control of solutions; and to put clients in control of their own cases.
In terms of our Australian version of the law as ‘a nation arguing with its conscience’, I see the current National Human Rights Consultation as a renewed start to such a conversation. But that conversation must continue and must extend beyond the lawyers and the politicians – the elites that have power – to include ordinary Australians. To paraphrase Obama’s words, we must stop using the law to explain to others the justness of their condition and listen to what others expect of the law.
James McDougall is Director of the National Children’s & Youth Law Centre