E-Qual 2013

CON06-43 REFLECTIONS

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...WE GENERALLY THINK THAT OUR RESPONSES TO SOCIAL INJUSTICE SHOULD NOT DEPEND ON SOME PERSONAL CONNECTION WITH THE SUBJECT MATTER

These encounters allowed Rudd and Portman to see themselves as occupying the same conceptual space as members of same-sex relationships. For want of a better term, it brought them into conceptual proximity. As Raimond Gaita points out, this kind of proximity ‘sets the stage for our sense of what it means to wrong someone’.3 It was only once Rudd was able to see himself as occupying the same conceptual space as his former staffer that his stated reasons became relevant. Rudd’s newfound proximity enabled him to see the true meaning of this legal discrimination for the staffer: the designation of one’s relationship as subordinate, not suficiently sophisticated to warrant social recognition, and less than fully human.

their lives, and feeling hurt and threatened when that order was jeopardised. This was not a large-scale question of civil rights on the scale of same-sex marriage. But reaching a genuine understanding of the clients’ experience required me to enter a conceptual space in which we both could be harmed alike by such disruption.

Our openness to certain perspectives on social justice depends upon more than objective reasons.

It requires conceptual proximity to those suffering injustice. This might be catalysed by something as both simple and radical as a conversation with a friend or family member, or work at a local charity.

By testing the application of our concepts, these encounters broaden our moral imaginations.

Community service provides a fantastic opportunity for encounters that bring people into conceptual proximity. I’ve done some volunteering over the past few years at Sacred Heart Mission, which provides meals for over 300 people, twice-a-day, 365 days-ayear. Recently, the Mission was forced to temporarily move their kitchen facilities to make way for renovations. The change caused signiicant discontent and distress among the clients. This might have seemed an overreaction: the meals were still served, only a minute away from the ordinary facilities.

Speaking to several clients, however, helped me pinpoint the real meaning of such a change for them.

Despite the (often long-term) fragility and instability of their lives, the clients were still capable of making connections, valuing some measure of order on

3

Raymond Gaita, Good and Evil: An Absolute Conception (Routledge, 2nd ed, 2004) 340.

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WORDS: Rachel Macleod At this year’s Peter Brett Memorial Lecture, visiting Professor Bryan Stevenson addressed the importance of proximity to challenging injustice. He illuminated how an absence of proximity to social injustice breeds indifference, which operates to sustain and entrench that injustice. He challenged us, as members of the legal community, to overcome indifference by placing ourselves close to suffering and disadvantage. While Professor Stevenson grounded his account of proximity in personal experience, I wish to show that it enjoys growing support from moral philosophy and even recent developments in neuroscience.

Normative ethics is the branch of moral philosophy aimed at distinguishing right from wrong. For much of the 18th, 19th and 20th centuries, normative ethicists tasked themselves with identifying the universal principles that determine the right course of action in any particular circumstance. Their grand project was to develop an ethical framework capable of guiding decision-making. The classic utilitarians — Bentham, Mill and Sidgwick — identiied one simple maxim: the right action is that which maximises ‘the Good’.

What exactly constitutes ‘the Good’ has been a central topic of debate, both for utilitarians and ethical theorists more generally. The deontologists — led byKant — identiied that certain actions are inherently right or wrong, regardless of whether they maximise ‘the Good’. This provides the basis for discrete moral duties and, on some accounts, corresponding rights.

Underlying these accounts of right and wrong is the view that morality can and must be grounded in rationality. On this view, our rational faculty enables us to devise a universal ethical framework, and the ideal moral agent employs that framework to respond to the ethical problems which life presents. This is all part of a metanarrative in which reason triumphs over our ickle, unreliable human sentiments. Empathy and human connection are marginalised.

The work of many modern philosophers, however, casts serious doubt over these wholly rational accounts of normative ethics. Raimond Gaita’s parodies of moral obligation are particularly pernicious. Gaita points out that when a person realises she has wronged another she does not employ the vocabulary of moral obligations, principles or rules.

She does not say ‘My God, what have I done? I have diminished the stock of happiness’.1 Nor does she say ‘My God, what have I done? I have violated rational nature in another’. 2

1 2

Raimond Gaita, Good and Evil: An Absolute Conception (Routledge, 2nd ed, 2004) xxi.

Ibid.

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what if my failure to act led this particular cab driver to assume that it is in fact acceptable and “normal” to act as he did?

Back to the night in question. The drive was uneventful, and the cab driver was not phased by the anomaly of a well-behaved dog in the back of his car. It doesn’t always go like this... like the return trip, for example.

Neil and I had our burgers and enjoyed a few quiet beers. When we were done, we walked outside to the street and considered our options: a $5 cab ride or a 30 minute walk back to mine. We chose the cab option.

The driver of the irst and only cab we lagged pulled up at the lights, took one look at Quade in his harness, and emphatically stated “No dogs!”

He then proceeded to take off at speed. So, what should I have done in this situation? What would you have done?

There are anti-discrimination laws in Australia that protect people from discriminatory conduct in a wide range of situations and circumstances. People travelling with guide dogs and other service dogs are allowed access to most public places. This includes schools, shops, restaurants and pubs, accommodation, public transport, and of course, taxis. To refuse access is to break the law. Sometimes, for many and varied reasons, owners and proprietors refuse access anyway. The most common explanations that I’ve come up against relate to cultural differences and health and safety concerns. Discrimination can be explicit, as in the taxi example, or implicit, as in putting up road blocks and deterrents to access.

A bad attitude, for instance.

Bearing all of this in mind, was I correct to let things be, and choose either to walk home and forget about the whole thing, or give my money to someone who doesn’t have a problem with dogs, or my right to use a dog to get where I need to go?

At the time, this option appealed to me for several reasons. First, it is always easier to do nothing than something. Second, I feel more at ease when I am travelling in a cab with someone who is happy and willing to take my fare, despite Quade’s dog-like appearance. Third, I strive to maintain a balanced perspective on life, and I try not to get myself too emotionally caught up in any one issue.

There was another alternative open to me, however — making a complaint to the taxi directorate. Even the lack of a number plate or general description may have resulted in some form of positive action being taken. There are several reasons why I should have taken this step. What if I were an individual who doesn’t have the self-conidence that I am fortunate to possess myself? Repeated refusal to access will undoubtedly have a signiicant and detrimental impact upon this person’s quality of life and selfesteem. What if I were a woman who is travelling alone at night, or what if I myself were travelling in an unsafe environment? Access denial then becomes a serious safety concern. Finally, and most important of all, what if my failure to act led this particular cab driver to assume that it is in fact acceptable and “normal” to act as he did?

My conclusion is this. There are laws that provide us all with rights and protections. Yet, in the end, these are only as powerful, as effective, and as useful, as our willingness to engage — to ensure that the laws are enforced. Otherwise, there is simply no point in their existence beyond a luffy, nice sounding but ultimately unattainable ideal. I have no doubt that I will have a similar experience with taxis at some stage soon, and I can guarantee that next time, I will enable the law to do what it is designed to do — reasonably, but irmly. I challenge you to do the same. After all, “normal” is whatever we want it to be.

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ONE COULD SAY THE ABSTRACT NATURE OF THE LEGAL DISCIPLINE IS NOT CONDUCIVE TO ANY SENSE OF PROXIMITY. HOWEVER, PLANNING LAW BUCKS THE TREND. IT DICTATES WHERE WE CAN WORK, LIVE AND PLAY.

SC WORDS: Steven Finocchiaro Proximity is a real tool that aids social justice. Without individuals who feel a sense of proximity to the struggles of asylum seekers, who will point out the obvious injustice in labelling them ‘illegals’? Individuals who are proximate to those who struggle with homophobia will naturally stand up for equality. The personal resonation with these individual battles is what drives empathy.

One could say the abstract nature of the legal discipline is not conducive to any sense of proximity.

However, planning law bucks the trend. It dictates where we can work, live and play.

We are also proximate to where we grew up. Memories are made and relationships are forged within our hometowns, and despite moving away this sense of belonging never quite evaporates. My family has been a part of the furniture of this particular place for around ive decades. The ties are strong and proud, and I am not immune to it.

Late in 2012, a multinational restaurant chain proposed to develop a vacant plot of land in my home town, around an hour south of the city. I studied the

plans and immediately had issues with it. Not only was it close to a pristine stretch of beach and foreshore that could be adversely affected by litter, but it was not well thought-out in terms of trafic, amenity and overall planning objectives.

Planning schemes are primarily a State statutory regime used to designate zoning; which developments are suitable for particular areas of a locale. However, local planning policies, which are contained within the same broad document, provide particular objectives that are inherent to the relevant area. As this was a bayside suburb, areas such as the beach, trafic and the housing shortage were integral considerations for the local council as it made its decision. On the face of the zoning requirements laid down by the State Government, the development seemed strong. However on the basis of the local policy framework there were shortfalls. Myself and hundreds of other concerned residents made these known to council.

After a few weeks, a community organisation was established; Seaford Community Rejects Another McDonald’s (SCRAM).

ARMREST BATTLE WORDS: Melissa Prima Peach

One of the most anxiety-inducing social situations that has recently plagued me, and anyone else who has occupied an economy seat of an aircraft, is the vicious battle for the middle armrest. A great deal of dominance assertion and cunning are employed to gain control of that sweet paradise, leaving the victor to enjoy the spoils of war while the loser casts reproachful glances their way. During this battle, the passenger can either brazenly put their elbow on the armrest and stake their claim, or acquiesce, because at the end of the day it’s just a stupid armrest.

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What if we invested more money in prevention and early intervention instead of building prisons? disproportionately affects people who have experienced multiple types of disadvantage including low levels of education,11 unemployment and poverty, 12 inadequate housing, and people with an acquired brain injury.13 Victoria is investing more and more resources in building prisons in the face of research that imprisonment is expensive, further disadvantages socially isolated people and does not effectively deter people from reoffending.14 What will be the lasting effect of disproportionately high Aboriginal incarceration?

Over the last 10 years, the imprisonment rate of Aboriginal people in Victoria has increased by 105%.15 Aboriginal adults are ifteen times more likely to be in prison than non-Aboriginal adults,16 and Aboriginal young people are over twenty times more likely to be in a youth detention facility.17 But what do all of these igures mean in real terms, in the way Bryan Stevenson talks about proximity?

It means that a huge proportion of Aboriginal young men and women are spending their teenage years and twenties behind bars. It means that Aboriginal communities feel the ripple effects of how loved ones are treated: not with compassion, rehabilitation and support, but with OC spray, charge-sheets and unforgiving sentences. It means that our society punishes Aboriginal people for the risk factors that lead to offending (e.g. experiences of the stolen generations, disconnection from land, loss of culture

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and language, poverty, unemployment, homelessness, family breakdown, drug and alcohol addiction, mental illness, poor health outcomes), even where these risk factors were caused by unequal social policies in the irst place. It means that our criminal justice system plays an active role in reinforcing and perpetuating race-based intergenerational disadvantage.

How will we be judged for incarcerating children in adult prisons?

In Victoria, children as young as 16 are held in adult prisons, in clear contravention of the Convention on the Rights of the Child.18 When Peter was 17, he was transferred to an adult prison and placed in solitary coninement ‘for his own protection’.19 He was locked in a tiny cell for 23 hours a day and let out to walk in circles in the yard for 1 hour each day in shackles.

We live in a society where a 17 year old cannot vote, drink alcohol, buy cigarettes or drive on his own, but can spend months in solitary coninement in a maximum security adult prison under lockdown.

What changes are needed?

Inequality breeds poor physical and mental health, drug and alcohol abuse, lower levels of education, higher rates of imprisonment, decreased social mobility, eroded community trust and increased violent crimes.20 There are enough resources in Victoria to address inequality in our community, but our resources are unevenly distributed in a way

Department of Justice above n 5, 37.

Ibid..

Approximately 42% of male prisoners and 33% of female prisoners in Victoria were found to have an acquired brain injury, compared to 2% of people in the general community; Department of Justice, Acquired Brain Injury in the Victorian Prison System (April 2011) <https://assets.justice. vic.gov.au/corrections/resources/36d7e731-e819-4ed3-972d-269b829b952d/acquired_brain_injury_in_the_victorian_prison_system.pdf> 6.

14 Sentencing Advisory Council, Reoffending Following Sentencing in the Magistrates’ Court of Victoria (June 2013) https://sentencingcouncil.vic.gov. au/content/publications/reoffending-following-sentencing-magistrates-court-victoria xi.

15 Sentencing Advisory Council, Comparing Sentencing Outcomes for Koori and Non-Koori Adult Offenders in the Magistrates’ Court of Victoria (April 2013) <https://sentencingcouncil.vic.gov.au/sites/sentencingcouncil.vic.gov.au/iles/comparing_sentencing_outcomes_for_koori_and_non-koori_ adult_offenders_in_the_magistrates_court_of_victoria.pdf> ix.

16 Australian Bureau of Statistics, Prisoners in Australia, 2012, ABS Catalogue No 4517.0 (2 April 2013) ‘Aboriginal and Torres Strait Islander Prisoner Characteristics — Imprisonment Rates’ <http://www.abs.gov.au/ausstats/abs@.nsf/Products/BD0021D329F0464FCA257B3C000DCCE0?opendoc ument>.

17 Australian Institute of Health and Welfare, Youth Justice in Australia 2011–12: An Overview, (April 2013) <http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129543208> 10.

18 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37, 19 Tiffany Overall, Blog (15 July 2013) No Prison 4 Kids <http://www.noprison4kids.org.au/blog-2/>.

20 Richard Wilkinson and Kate Pickett, The Spirit Level: Why More Equal Societies Almost Always Do Better (Allen Lane, 2009).

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which secures wealth and privilege for some and perpetuates poverty and disadvantage for others.

What if we took the $97,000 it costs to house one Victorian prisoner and spent it on making sure everyone has enough food to eat and ensuring equal opportunities in health and education are available?

What if we focused on implementing well-funded culturally appropriate community-based support for people experiencing disadvantage? What if we talked about every human beingâ&#x20AC;&#x2122;s right to be treated with dignity, instead of locking criminals up and throwing away the key? What if we invested more money in prevention and early intervention instead of building prisons?

Because if we donâ&#x20AC;&#x2122;t, our society will be judged for punishing people for being poor. As Bryan Stevenson makes clear, our enduring legacy will not be our technology, but a society marked by injustice and inequality.

Lee Carnie is a graduate lawyer with the Federation of Community Legal Centres

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PLT courses are designed to systematically train law graduates to meet the standards set out in the National Competency Standards for Entry Level Lawyers.2 The simulated environment is a great advantage. Graduates can have instruction in, for example, the questioning and listening skills needed for client interviewing and can practise these over and over again. Role-plays and structured client interactions can and do form part of most PLT courses.

Graduates may not be dealing with “real” clients but they are dealing with “clients” in a directed and systematic way.

For example, in the Practical Training Course (PTC) at Leo Cussen Centre for Law, the entire training program is designed around clients and the obligations owed to them (legal and ethical). The PTC trainees begin their training with skills based instruction including role-plays in interviewing, and move on to running their (simulated) iles for a variety of the clients. A Leo Cussen PTC trainee will have multiple interactions (verbal and written) with the client. In addition the program incorporates a “Client Lawyer Interview Program” separate to the ile program, in which the PTC trainee receives instructions and at short notice prepares for and then, either face to face or by telephone, actually provides advice to a client. An experienced practitioner plays the client

2 3

role in these situations and then provides feedback on the interviewing and communication performance.

Training for Practice In 1933, Jerome Frank wrote an article, ‘Why Not a Clinical Lawyer-School’, in which he argued that, like medicine, legal training had to recognise that there was a client at the heart of legal practice.3 The aim of the PLT stage of legal training is to prepare law graduates to enter the legal profession.

Not all Australian Lawyers become Australian Legal Practitioners but most do end up having to communicate with a client.

PLT courses and SWT can both provide rich and effective training and experience in client communication if trainers and supervisors adopt a systematic approach and are committed to competent and ethical client-centred legal practice.

Judith Dickson, Director Practical Training Course Leo Cussen Centre for Law

Legal Profession (Admission) Rules 2008 (Vic) sch 3.

Jerome Frank, ‘Why Not a Clinical Lawyer-School?’ (1933) 81 University of Pennsylvania Law Review and American Law Register 907,

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THE NEED FOR

CLARITY INTERNATIONAL ASYLUM LAW

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THE RIGHT ‘TO SEEK ASYLUM’

Sir Hersch Lauterpacht criticised a litany of human rights language ‘calculated to mislead’, and the right ‘to seek and enjoy asylum’ came up irst. 1 He noted that ‘few persons – and perhaps few lawyers – reading Article 14 of the [Universal Declaration of Human Rights] relating to asylum will appreciate the fact that there was no intention to assume even a moral obligation to grant asylum.’ 2 The right to “seek” asylum imposes vague obligations on the state of origin, not on a receiving state; and the “enjoyment” of asylum refers only to the state’s right to grant asylum and resist demands for extradition. States already had this right. Lauterpacht concluded: ‘it would have been more consistent with the dignity of the Declaration if these considerations had resulted in the elimination of the question of asylum from the Declaration.’ 3

THE CONCEPT OF ASYLUM

The main content of a supposed individual right to asylum lies in the principle of non-refoulement.

Non-refoulement requires a state not to return an individual to any place where his or her life would be threatened, and in this way carves out a very narrow exception to the state’s right to exclude individuals.

The Refugee Convention contains a duty of nonrefoulement in art 33, applicable to all refugees and subject only to a “public safety” exception.

The International Covenant on Civil and Political Rights (ICCPR) also contains an implied duty of non-refoulement, applicable where being returned to a country of origin would subject an individual to violations of the right to life or to freedom from torture or cruel, inhuman or degrading treatment.

The Convention Against Torture (CAT) contains a similar prohibition of refoulement in art 3.

This category of “human rights non-refoulement” under the ICCPR and CAT is subject to no exceptions, which makes it a particularly powerful (and controversial) obligation, because even the most dangerous criminal can claim an absolute right not to be returned. As you can imagine, states have argued again and again that this is not what they signed up to; the courts have disagreed.

But non-refoulement is only a “negative” right: it stops a state returning an individual, and that is all it does. In effect, a refugee or a person who qualiies under the ICCPR or CAT can claim a de facto right to be granted asylum, because they cannot be ejected to a place of danger, and are owed other human rights obligations while they remain within the state’s territory or jurisdiction. Strictly speaking, however, non-refoulement does not create a speciic legal duty on any state to give entry to any person. This is clear from the applicability of the Refugee Convention in its original form only to persecute people from Europe, prior to 1951; the dismissal of such a right in the drafting of the ICCPR; and the signiicant failure of the 1977 Draft Convention on Territorial Asylum.

So some people can claim a de facto right to protection in certain conditions, but this is not derived from any general right to be granted asylum. The broad point that I hope to have made is that when someone speaks of a right “to asylum”, or “to seek asylum”, or “to be granted asylum”, it is often very unclear what those words refer to.

1 2 3

H Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 British Year Book of International Law 354, 373.

Ibid.

Ibid 374.

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“ILLEGAL”

THE NEED FOR CLARITY

The Migration Act 1958 (Cth) deines any unauthorised entrant as an “unlawful non-citizen”, and perhaps this suggests that the debate over the word ‘illegal’ is destined for semantic trouble. The word ‘illegal’ can refer to international or to domestic legality, and this is one of the biggest sources of confusion. Of course international law contains no prohibition on seeking asylum, but as we’ve seen, neither is there a substantial right to asylum. International law does however recognise the right of states to regulate entry into their borders, and this allows them to enact any domestic legislation not inconsistent with international obligations (under the Refugee Convention and broader human rights law).

The law of asylum is not easy, but obscuring its dificulty hasn’t helped to criticise Australia’s asylum policies. I don’t pretend to have a perfect solution to the issue, but I do think that clarity of debate is crucially important for any reasonable solution to arise. I also don’t write this in the praise of technicalities, because the danger of oversimpliication is not the loss of technicality: the danger is the obscuring of context.

The Refugee Convention provides in art 31 that a state is not to penalise a refugee for an illegal entry.

However, this applies only to people who are in fact “refugees”, not to the much broader category of asylum seekers. So a domestic law which penalises an individual for crossing a border without authorisation may actually be consistent with international law, if in fact that individual does not it the refugee deinition.

The point is that in the same way as it is incorrect to call asylum seekers “illegal” from the get-go, it is not true that seeking asylum cannot in theory breach domestic law: this question is more dificult than any catchphrase can capture.

4

For example, the recent mainland excision bill did not herald one of “the darkest days” for Australian human rights, as many organisations and editorials and social media claimed. Contrary to most reporting, the mainland actually remains in the migration zone. The bill had essentially the same effect as if it did excise the mainland, but in light of the legislation passed after the Houston Report, such a move is a very minor change. Surely a much better use of time would involve highlighting just how much of that report the government has ignored since it (re)established its offshore processing system — particularly the caution that ‘[n]ational policy settings alone cannot resolve the challenges that currently confront Australian policymaking’.4 That line has been missing from Canberra’s talking points.

There are some very tough questions to be asked here: what should our asylum policy seek to do?

Is the Houston Report’s recommended approach a good one? Is the government actually implementing it? Of course asylum policy should not be politicised, but it has been. The solution cannot be simply to counter cheap sloganeering with well-intentioned sound bites.

Angus Houston, Paris Aristotle and Michael L’Estrange, Report of the Expert Panel on Asylum Seekers (2012) 32 [2.6] (‘Houston Report’).

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Cuts to Legal Aid

WORDS: Grace Duncan In response to reduced funding and a $3 million deicit, Victoria Legal Aid (VLA) introduced new guidelines for accessing legal assistance in January this year. These guidelines have been heavily criticised as unduly limiting and preventative of access to justice. Reynah Tang, President of the Law Institute of Victoria (LIV), agreed to discuss this issue.

Mr Tang said that whilst it can be appreciated that VLA has budgetary pressures, the current guidelines are inadequate to provide justice. He criticised the guidelines, stating that they seemed to be too inlexible when applied as a blanket policy and failed to adequately take into account the complexities of cases — there is no apparent room for discretion or exceptions. Mr Tang felt this to be more aggressive than was necessary, believing that VLA may have ‘over-corrected’ in order to balance their books.

Other jurisdictions in Australia have similar guidelines, notably limiting the involvement of instructing solicitors at trial. Under these, in a criminal trial a party can only have access to an instructing solicitor if there is no junior counsel in the case, and only in cases of indictable crime. So why is this seen by LIV as an unacceptable state of affairs for Victoria? Mr Tang says we must ‘compare apples with apples, not oranges’ and explains that these other jurisdictions have legal systems where the roles of barristers and solicitors are ‘fused’. The situation in Victoria differs as the Bar is independent. Solicitors play a different role in preparing a case in Victoria to what they might

1 2 3

MK v Victoria Legal Aid [2013] VSC 49 (‘MK’).

R v Chaouk [2013] VSC 48.

MK [2013] VSC 49, 15–16 [47].

elsewhere in Australia, which can create dificulties when trials are expected to function without access to instructing solicitors. Following in the footsteps of other Australian jurisdictions on this issue is an inadequate response to inancial pressure.

The problems with access to instructing solicitors has most recently come to light in two cases heard in February 2013. Justice Forrest of the Victorian Supreme Court held in MK v Victoria Legal Aid that ‘legally represented’ should be interpreted to mean that counsel is provided with an instructing solicitor throughout the trial, if this is necessary for a fair trial.1 This followed R v Chaouk, where Justice Lasry stayed proceedings because it was not clear that the accused would have received a fair trial without 2 an instructing solicitor. There has been some criticism of these judges for acting politically, but this is strongly rejected by Mr Tang. He emphasises that the court should exercise its inherent jurisdiction to ensure that the trial is fair, which may include temporarily preventing these trials from going ahead. In Mr Tang’s opinion the actions of these judges were not ‘activist’ but were necessary in a fair justice system.

As Justice Forrest stated in MK, ‘the unfortunate effect of VLA’s cost constraints is that many criminal trials will be postponed for as long as the cost cutting protocol survives. This is incompatible with the proper, timely and just administration of criminal justice.’ 3

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WITH LIV PRESIDENT REYNAH TANG

Mr Tang spoke of the additional burden that unrepresented litigants would place on the courts in terms of the length of trials, as matters that progress to trial without equal legal representation between parties are less likely to be settled before judgment. Judges may also have to take on an additional monitoring and explanatory role, in order to prevent parties from being unfairly impacted by a lack of legal expertise. Mr Tang gives an example of a defendant in a criminal trial who risks being placed on the sex offender registry. This result has wide-reaching implications. An unrepresented party in a case like this may accept the charge, without fully understanding the consequences. With a solicitor no longer present in many VLA assisted trials, it falls on the judge to explain these implications to the defendant, taking up valuable court time and costing the State money.

The State government, as part of their ‘tough on crime’ platform, has hired additional Protective Services Oficers and police, putting an indirect but increased strain on the demand for legal assistance without correspondingly increasing legal services funding. However, the State government claims the Federal government should be contributing more to funding. LIV has joined with the Victorian Bar in an attempt to conduct a Legal Aid Summit, whereby all stakeholders are invited to discuss the matter. The opinion of Mr Tang is that both governments have a responsibility to fund justice, and that the current impasse is unsustainable. Mr Tang suggests that the

solution involves putting aside politics and blameshifting and instead embracing alternatives that look towards how we can better use pre-existing resources. A review into the National Partnership Agreement on Legal Assistance Services is currently being undertaken by Allens Consulting, and the AttorneyGeneral has announced a Productivity Commission inquiry into “Access to Justice”. These reviews are welcomed by LIV. If students are interested in this issue, Mr Tang suggests the best thing to do is to try to understand the situation and its consequences. Observing the impact of these guidelines and the consequential changes in the way courtrooms are being run is important in terms of gathering anecdotal data. Mr Tang also suggests volunteering for a Community Legal Centre to assist these organisations with their valuable work in helping those who need it to gain access to justice.

THE DEINSTITUTIONALISATION OF DISABILITY The opportunities and challenges of proximity

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WORDS: Emma Harold In the past the equal right of people with disabilities to participate in the community was denied through the practice of detaining people with disabilities in institutions.1 In Victoria, Kew Cottages was emblematic of this approach: children were locked away to spend their lives isolated from the rest of the community. The process of deinstitutionalisation began in the 1980s and continues today.

Moving to a model of care that supports people with disabilities to live and participate in the community has had a number of positive consequences for the recognition of their rights. Increased visibility and interaction has led to greater scrutiny of the care provided to this vulnerable sector of the community and a number of important mechanisms, such as the Community Visitors Program and the creation of the Disability Services Commissioner, have emerged to support this. Not only has this enabled people with disabilities to advocate for their rights, it has also led to wider recognition of these rights.

However community participation has also brought, for a small percentage of people with intellectual disabilities, interaction with the criminal justice system.

This is often a frightening and confusing experience for people with a reduced ability to understand the complex processes involved.2 If a person is found not guilty of an offence because they were unable to understand either the nature of their conduct or that their conduct was wrong, then it is likely they will be placed on a custodial supervision order (CSO) or non-custodial supervision order (NCSO).3 Both of these orders are of indeinite duration and review, revocation or change involves returning to the sentencing court. As the period of detention is able to exceed the maximum sentence for a crime, CSOs risk imposing discriminatory detention of the kind deinstitutionalisation sought to end.

respect of a person with an intellectual disability who has demonstrated and continues to pose a signiicant risk of serious harm to another person.4 This regime, implemented under the 2006 Disability Act, has brought a signiicant level of clinical oversight and legal scrutiny to the use of civil detention in residential facilities.5 It also has beneits over CSOs and NCSOs, as, unlike those orders, an STO must be renewed annually and must contain a detailed treatment plan that is of beneit to the person.

However, as with CSOs, STOs still represent a form of detention not imposed on the general population and therefore must be a justiied infringement of a person’s human rights.6 Finally, a disability service provider can use restrictive interventions or seclusion on a person to prevent their causing harm to others or themselves. 7 The most common form of restrictive intervention is chemical restraint; in the 2010–11 inancial year, 1664 Victorian people were subject to chemical restraint on a routine basis. 8 This involves the use of a chemical substance for the purposes of controlling or subduing a person’s behaviour. This is particularly concerning given the fact that behaviours of concern may act as a form of communication for people with intellectual disabilities.9 However, as with STOs, the requirements of the Disability Act 2006 provide a level of legal and clinical scrutiny over the decision to use restrictive intervention and mandate their forming part of a behaviour support plan.

Decisions about detention and restriction on the basis of disability require real consideration of the rights involved and represent how we treat one of the most vulnerable sectors of the community. Deinstitutionalisation has been immensely positive for the recognition of the rights of people with intellectual disabilities but it has required ongoing improvements in how we respect these rights in their interaction with the community.

Alternatively, a disability service provider can apply to VCAT for a Supervised Treatment Order (STO) in

1 2

3

4 5

6 7 8 9

Convention on the Rights of Persons with Disabilities, GA Res 61/106, 61st sess, Agenda Item 67(b), UN Doc A/Res/61/106 (13 December 2006) art 19.

Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013) 180.

For speciic information on the defence of mental impairment and the imposition of supervision orders see: Crimes (Mental Impairment and Unitness to be Tried) Act 1997 (Vic) pts 4–5.

The statutory structure of these orders is given under the Disability Act 2006 (Vic) pt 8 div 5.

Ofice of the Public Advocate (Vic), Supervised Treatment Orders in Practice: How are the Human Rights of People Detained under the Disability Act 2006 Protected? (August 2010) 6.

See, eg, LM (Guardianship) [2008] VCAT 2084 (9 October 2008) [115] (Grainger J) The requirements and restrictions on the use of these interventions are given in the Disability Act 2006 (Vic) pt 7.

Ofice of the Senior Practitioner (Department of Human Services (Vic)) Annual Report of the Senior Practitioner 2010–11 (January 2012) 11.

Claire Spivakovsky, ‘Restrictive Interventions in Victoria’s Disability Sector: Issues for Discussion and Reform’ (Discussion Paper, Ofice of the Public Advocate (Vic), August 2012) 6.

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REMEMBER YOUR WORDS: Ben Muller

R

The basic science of climate change is irrefutable and the economyâ&#x20AC;&#x2122;s demand upon the environment is unsustainable.

O O T S

Although I have a soft spot for the warm souls that dedicate their lives to chaining themselves to trees and protesting around oil wells, to me it is clear that radical attitudes are not the most effective in transforming societal norms. Belligerently pleading that we should leave every tree standing, stop driving cars and immediately terminate the mining of our largest export earner for the sake of preserving the environment, is simply alienating within the arena of constructive criticism â&#x20AC;&#x201D; creating awareness through irreconcilable radical change and outright rejection of the mainstream is hostile and hardly progressive.

It does not help people realise the truth of a matter.

In fact, it is probably more likely to drive us away from it. Anger and intolerance are not the best tools for shaping a sustainable way of life.

Nonetheless, while I develop and learn alongside the dazzling minds that attend law school, it worries me when there is an apparent disregard of both the reality of the less privileged lives of others and our future, especially when it is taken up entirely by desires of giant incomes and lavish lifestyles that frankly seem narrow-minded and arrogant. I fear that prioritising our immediate and selish interests in an unsustainable world will fundamentally jeopardise our future happiness.

If there is one thing that we and every other living thing on Earth have in common, it is that we are entering the future together. We are living in a time where the fate of humanity may be determined. As humans â&#x20AC;&#x201D; being the most powerful animal on this

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planet — and as lawyers and leaders at a point in history of such great uncertainty, it is important that we don’t forget everything going on around us.

On the theme of ‘proximity’, I think of what is happening immediately, and what has happened previously and all around me, and how this has inluenced my current state and the place I ind myself. Other than your own accord, it is the things and the people in your life that have brought you to where you are today. Family, friends and colleagues are the irst that come to mind.

But thinking further on what is close to us, to what has led to the lives we are lucky to live today, leads to thoughts of an extended family history — the very building blocks of life that make up our bodies and minds; where did they come from? We come from parents, grandparents — that’s easy to grasp — and then further back: great and great-great grandparents. The family tree can be traced, for a while at least. But science suggests that there was probably a long lineage of monkeys at some point too. Was this preceded by long-gone, prehistoric mammals?

And even further back, strange reptiles and singlecelled organisms? It gets more abstract though, but it’s clear (if you understand and believe the theory of evolution), that the very dust from stars and planets that collided billions of years ago has made us and everything else that is around. A bit of everything that ever was, is within us today. The proximity is eternal. These thoughts are humbling, and I often catch myself staring out of the library windows in a sentimental daze, struggling to grasp the philosophical mysteries that shortly follow, while on the desk in front of me, property laws and the rules governing

1

corporations take the backseat of my mind.

It is clear to me that our relationship with nature is integral to our future. Just like a life without family and friends is an abysmal existence, not taking care of the environment is losing something that is undeniably close to us. As we pillage for minerals and pump harmful gases into the atmosphere, it really is a case of us not taking care of ourselves.

The legal frameworks surrounding our interactions with the environment play an important part in how effectively the world is preserved, and ultimately whether a sustainable lifestyle can be achieved.

Any assumed liberty and entitlement to do as one pleases can ultimately encroach on everyone’s ability to live a happy life. Unfortunately, like a fat man reaching for the last donut, some people just don’t care, and will continue to take everything for themselves until there is nothing left for anyone.

That is why we need rules that prevent those who disregard others from ruining it for everyone. A good example of a fairly effective framework is criminal law. But unlike criminal law and other laws that protect our wellbeing, it is troubling that the law in the environmental context is not always in the public interest.

A covenant is a solemn promise. It goes beyond a contract, and the common law will enforce one without valid consideration. This is quite powerful. You will ind restrictive covenants on land, dictating that you can or can’t do certain things. They are said to ‘run with the land’ and are generally dificult to overturn, especially when there is a continuing interest in their maintenance. 1

Jo Kehoe, ‘Voluntary Agreements in Queensland, Australia: Contributing Factors and Current Incentive Schemes’ in Sarah Wilks (ed), Seeking Environmental Justice (Rodopi, 2008) 77, 78.

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There are statutory bodies that buy property and place conservation covenants on them to prevent the disturbance of the ecosystem. The land is then sold and the proceeds are used to preserve more land.

Upon irst hearing of this, I thought it was a fantastic government initiative, and still do, however after a bit of research I discovered that theoretically, if a mining company wants the minerals under that covenanted land, they just need an order from the judiciary that uproots the restriction and forces the owner to accept monetary compensation in exchange. This demonstrates a lack of integrity in our elected representatives and the law. Why do we need to hold on to such a power in light of the undeniable evidence underpinning the need for environmental conservation?

I understand that we need to balance our economic interests with the necessity to maintain the environment, but that balance has already been tipped too far. It is outrageous that a legally protected dedicated measure to preserve the environment can be disregarded for a predominantly personal gain, especially when we take a step back and look at the bigger picture â&#x20AC;&#x201D; an unsustainable world for us all.

As future lawyers, letâ&#x20AC;&#x2122;s keep things in perspective and remember what is close to us. Proximity is a touching theme. We have the skills to challenge and shape the laws that are the backbone of our future and the futures of those that have far less potential to affect change. We have a great deal of responsibility, and in accepting our privileges we should also accept some obligations. The rules around conservation covenants are just one example of the law becoming out of touch with the public interest. Such

legislation has arisen out of an extended haze of selfindulgence. I hope the power that law students take into their careers is used for the good of humanity, or at the very least, not against it. We are all good people, but the best thing we can do is not just be good, but to lourish brilliantly and be good for something.

I hope the power that law students take into their careers is used for the good of humanity, or at the very least, not against it.

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HOLDING UP A MIRROR: “WHITENESS” AND “RECONCILIATION” within the confines of structured reconciliation processes in Australia

WORDS: Mia Abrahams Dr Mark McMillan is currently undertaking an oficial research project for the Australian Research Council, which examines reconciliation in South Africa and Northern Ireland, and how it may inform the reconciliation process in Australia.1 It was here that Dr McMillan began to investigate the connection between ‘whiteness’ theory and the current reconciliation process in Australia.

into the reconciliation conversation allows for a refocus of the process on non-Indigenous Australians.

The process should not be forcing Aboriginal people into co-opting, co-owning and restating their past.

There is absolutely a role for reconciliation, but if it is only expressed in outcomes of public policy discourse then that is not reconciliation — it’s policy direction.

How does whiteness theory connect with reconciliation in Australia?

Where do you see the reconciliation relationship progressing in light of a refocus on non-Indigenous Australians?

The connection of ‘Whiteness’ to ‘Reconciliation’ raises questions: Is reconciliation really about Indigenous people? Is reconciliation becoming less about Indigenous people and more about nonIndigenous people dealing with their own issues?

What is the role of Indigenous Australians in the current reconciliation process?

Aboriginal people get trapped, not just by stereotype, but by being forced into a process. If Aboriginal people don’t want to reconcile they can become accused of not wanting to participate in the process of reconciliation. Why do Aboriginal people need to be reconciled and with what? We know the past, we live the past, because the past is the present and it’s our future. There is a role for Indigenous Australians in reconciliation but it should not be just ‘about’ us.

Indigenous people should become the frame of the mirror in which non-Indigenous Australians might want to investigate why they require reconciliation.

How is the current measure of Indigenous existence relected in the reconciliation process?

Reconciliation has morphed into a measure of Indigenous existence through health outcomes, employment outcomes, housing, and education among others. However, all of these things only relect the way in which Aboriginal people may overcome disadvantage. The current focus in the reconciliation process is on this measurement of Aboriginal existence, which tries to level Aboriginal people with the ‘opportunities’ that non-Indigenous people have. The introduction of whiteness theory

1

Essentially the purpose of reconciliation is to create new relationships. However, this new relationship between Indigenous and non-Indigenous Australians can’t be created without an understanding of why there is a requirement to have a new relationship in the irst place. Focusing on Aboriginal people alone will not achieve this.

The true role of Indigenous people then is to educate non-Indigenous people as to what reconciliation would mean for them, because Indigenous Australians are already reconciled with our past, in legal terms, in social ordering terms, and within our connections to non-Indigenous Australians.

Reconciliation by its very nature assumes two sides will come together to be reconciled. There has to be a restatement of reconciliation in Australia. NonIndigenous Australians have become invisible in reconciliation, and yet it is ‘about’ them as much as it is ‘about’ Indigenous Australians. It is important to look at Indigenous issues from outside the deicit model. There is diversity in the Indigenous experience, especially in regards to reconciliation.

The only way to go forward with our shared future is to recognise that there is something for non-Indigenous Australians to gain or lose from the reconciliation process, and to understand that the process can’t be one sided. To have a shared future we have to have acceptance of our shared existence.

Dp13010399 – Resistance, recognition and reconciliation in Australia: Lessons from South Africa and Northern Ireland.

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Given the uncertainty, however, State based legislation is not the best way to proceed. It would undoubtedly give rise to a protracted High Court case, and may result in marriages performed pursuant to the State legislation being invalid. Amending the existing Federal legislation is certainly the safer option, but is also preferable for other reasons. Most important is the ideological importance of having true equality.

Same-sex marriage must have the same effect, in the same jurisdiction, stemming from the same act, for it to be truly equal to heterosexual marriage. Having a separate system for the recognition of same-sex marriage would create a perception that same-sex couples are different and inferior. Creating two legislative schemes would further entrench this problem, whereas incorporating same-sex relationships into the current scheme would send the message that all relationships are equal.

Looking around the world to liberal democracies like Australia, it appears inevitable that same-sex marriage will be legalised in the near future. It is important in the intervening period to keep in mind why this is an appropriate step for Australia to take, and this should in turn affect the decisions made about how to change the existing legislation. The right to marry is about more than simply being able to enter into a marriage, it is about the symbolic importance of being recognised as equal by removing discriminatory barriers. To pursue the right to marry in the most expedient way possible may result in laws that do not

4

achieve this goal â&#x20AC;&#x201D; state-based marriage schemes would reinforce difference by perpetuating a different relationship recognition scheme for same-sex couples.

Once passed, an amendment to the Marriage Act to allow same-sex marriage will have little or no impact on most Australians. As Maurice Williamson noted in his memorable speech: â&#x20AC;&#x2DC;the sun will still rise... the world will just carry on... this is fantastic for the people it affects, for the rest of us, life will go on.â&#x20AC;&#x2122; 4 I suspect future generations will look back on these discussions with the same confusion that we now have in relation to laws that meant Catholics could not marry Anglicans, and blacks could not marry whites. And just as we see now that the reasons why blacks could not marry whites were plainly racist, so too will it be clear that the only reason why two persons of the same-sex cannot marry are plainly homophobic.

On a more positive note, this is also a great opportunity. To freeze marriage as it existed at the time of federation would have been to destroy it. After all, very few Australians would be married today if wives lost their property rights and couples could not divorce. Far from being the end of marriage, the inclusion of same-sex couples in the modern institution will ensure that it continues to exist, it will reinvigorate the institution so that it remains meaningful in contemporary Australia.

New Zealand, Parliamentary Debates, House of Representatives, 17 April 2013, 9485 (Maurice Williamson).

CRIMINAL SENTENCING AND ABORIGINALITY

IS CHILDHOOD TRAUMA AND SUFFERING TOO REMOTE TO MATTER?

WORDS: Charlotte Inglis Can a person, and their conduct, ever be judged in a vacuum? The New South Wales Court of Criminal Appeal (CCA) considered that there is a point in the life of a person, with an extensive criminal history, from which they may no longer point to childhood trauma, suffering, abuse and lack of opportunity as matters which mitigate the gravity of crimes they have committed. There is a point at which suffering is too remote and too disconnected from the instant wrong to be of concern. Later this year the High Court will be called upon to consider these indings and to determine, with some inality, whether, or to what extent, childhood trauma, including physical and psychological abuse, and intergenerational poverty are to be considered in criminal sentencing. They will be doing so with particular reference to Aboriginal offenders.

On May 10 2013, the Court granted a special leave application to hear an appeal by William Bugmy, an Aboriginal man, from the CCA. Mr Bugmy was sentenced in 2010 for various violent offences against police oficers. In 2011, while still serving his sentence, he assaulted a number of prison guards using pool balls. He caused one guard serious injury, leaving him blind in one eye. For these offences, Mr Bugmy was sentenced to a further six years of imprisonment. The Crown was dissatisied with this outcome and on appeal his sentence was extended by a year and a half.1 The appeal court extending the sentence considered that at trial too much emphasis 1 2 3 4 5 6

R v Bugmy [2012] NSWCCA 223.

Ibid, [20]–[21].

Ibid.

Ibid, [22]–[23].

Ibid, [24]–[26].

Ibid [50].

had been placed on the experiences of Mr Bugmy’s youth, while the seriousness of the offence had been misjudged.

Mr Bugmy’s irst appearance in court was at the age of 13 and between the age of 17 and the time of the offences Mr Bugmy had spent a signiicant amount of time in prison. 2 His schooling was severely disrupted; as a result it was shown that he had poor literacy and numeracy skills.3 He had been exposed to violence and alcohol abuse as a child and began using alcohol and cannabis himself at the age of 12.4 The Court also considered psychological reports detailing that he had witnessed horriic episodes of domestic violence between his parents. Mr Bugmy asserted most of his present problems stemmed from uncontrolled alcohol abuse, which he had never been treated for. 5 The CCA acknowledged these hardships but considered that as a person ages, their childhood experiences lose their hold. Justice Hoeben noted that ‘with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.’6 The case provides a landmark opportunity for the reevaluation of sentencing practice in relation to Aboriginal offenders. The continued and increasing contact Aboriginal people have with the criminal justice system demonstrates that, for many, dificult and painful early life experiences do not cease to impact

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IT FAILS TO CONSIDER THAT PEOPLE ARE BETTER THAN THEIR WORST DECISION. IT FAILS TO REALISE THAT THE TRAUMA AND HARDSHIP CONSIDERED IN THE SENTENCING CONTEXT IS NOT A PRETEXT.

on the physical and mental wellbeing of a person as they age. Many Aboriginal people face, from birth, unparalleled disadvantage in our communities. The prevalence of alcohol abuse and violence in Aboriginal communities is well documented: the Australian Bureau of Statistics recorded that in 2012 Indigenous adults were ifteen times more likely to be incarcerated than non-Indigenous adults.7

inexcusable conduct. But such a view is simplistic.

It fails to consider that people are better than their worst decision. It fails to realise that the trauma and hardship considered in the sentencing context is not a pretext. As Steven Lawrence, the principal legal oficer for the ALS said, ‘the circumstances that people have lived through is the reality and they don’t expire when you turn 21.’ 11

The Aboriginal Legal Service (ALS), representing Mr Bugmy, is seeking clariication of principles considered in R v Fernando where Justice Wood said: ‘The relevance of Aboriginality of an offender is not necessarily to mitigate the punishment but rather to explain or throw light on the particular offence or the circumstances of the offender.’ 8 They will argue that only through recognition of the proper context of Aboriginal offending, including a history of dispossession and colonisation, over-representation in prisons, lower life expectancy and educational attainment rates as well as higher instances of substance abuse and self-harm, can an Aboriginal person be sentenced in accordance with correct sentencing principles.9 In Australia the principles of sentencing require proportionality between the seriousness of the offence and the moral culpability of the offender.10

This appeal, though concerned primarily with the impact of Aboriginality, has the potential to generate principles and practice in criminal sentencing that will transpose sentencing culture in Australia. It presents an opportunity to take a more compassionate and proactive approach to criminal sanctions and a revitalisation of restorative justice practices.12 Sentencing has always been a holistic inquiry, concerned with determining, balancing and quantifying the gravity of a person’s wrong, to provide both protection to the community and simultaneously ensuring proportional and considered sanctions are imposed on offenders. There is an opportunity now to cement those practices and ensure justice and fairness continue to be the measure of criminal sentencing in Australia.

There will always be, however, proponents of the view that a person should be judged on the merits of their individual conduct, and that consideration of disadvantage amounts to no more than excuses for

7

8 9 10 11

12

See Australian Bureau of Statistics, Prisoners in Australia 2012 (2 April 2013) <http://www.abs.gov.au/ausstats/abs@.nsf/Products/BD0021D329F0464FCA257B 3C000DCCE0?opendocument>.

R v Fernando (1992) 76 A Crim R 52, 62–63.

William David Bugmy, ‘Appellant’s Submissions’, Submission in Bugmy v The Queen, No 99 of 2013, 14 June 2013, 17–18 [6.29].

Ibid 11–12 [6.21].

Pam Reily, Interview with Steven Lawrence (Online Audio, 15 May 2005) <http://caama.com.au/consideration-of-aboriginality-in-sentencing-to-be-heard-by-thehigh-court>.

Gerry Georgatos, ‘Aboriginality in sentencing before the High Court’ The Stringer (online), 10 May 2013 < http://thestringer.com.au/aboriginality-in-sentencingbefore-the-high-court/#.UeKOoODrbzJ>

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FAR FROM NEAR

THE MENTAL HEALTH LEGAL CENTRE AND LEGAL AID FUNDING CUTS

WORDS: Sophie Brown The Mental Health Legal Centre is a free and independent legal service for anyone who has experienced mental illness in Victoria where their legal problem relates to their mental illness. Operating for 26 years it is the only specialist legal centre of its kind in Melbourne. The Centre brings our community closer together by improving what, for many of its clients, is a daily, lived experience of alienation.

I feel that this is the irst time that anybody has listened to me... I feel very strongly that those supplying the legal assistance must understand both the law and the needs and circumstances of the patients. The MHLC deinitely does… There is no way that other organisations, such as VLA, could come up with such an approach as they won’t have the understanding of patients through experience focussing on mental illness. 1

1

Public post in response to Change.org petition: Attorney-General Robert Clark & Victoria Legal Aid: Don’t Cut Funding to the Mental Health Legal Centre!

(July 2013) Change.org <http://www.change.org/en-AU/petitions/attorney-general-robert-clark-victoria-legal-aid-don-t-cut-funding-to-the-mental-healthlegal-centre>

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THE LOSS OF THE MENTAL HEALTH LEGAL CENTRE WILL MEAN LESS CHOICE AND MORE MARGINALISATION FOR PEOPLE WITH EXPERIENCE OF MENTAL ILLNESS.

John (not his real name) is one of the 1,500 people the Centre represents each year.2 The Centre’s expertise in closeness and understanding not only reassures clients, but also assists the legal system by effectively guiding clients through the thick ‘fog of the law’3. As well as casework, the Centre carries out community legal education and contributes to mental health policy and law reform.4 Unfortunately the link between policies and the people they affect is often missing, but the Centre provides this connection.

Now the Centre is under threat. In October 2010 it was placed under statutory management after there were internal problems with its Management Committee. In November 2012, a new Board was appointed. It soon faced a major challenge. As a non-proit community legal centre, the Centre relies largely on funding from Victoria Legal Aid and the Victorian Department of Health. In February 2013, Legal Aid announced it would cut its funding and redirect those funds to Legal Aid itself. Then in early June, the State Government announced that the Centre had also lost a Government grant of funding, which was instead awarded to Legal Aid. Consequently, Legal Aid will increase its representation of people with experience of mental illness and expand these services into regional Victoria.

Without additional funding, the Centre may be forced to close.5 This will leave Legal Aid as the only specialist provider for people whose legal problem relates to their mental illness. But Legal Aid cannot draw on the extensive pro bono and voluntary support that the Centre can (at the same time reducing the burden on the public purse). Legal Aid cannot represent clients if a conlict of interest arises, potentially excluding people from specialist representation. De-funding the Centre is at odds with new mental health laws, expected in late 2013, which will only increase the need for representation in front of the Mental Health Review Board.6 Beyond representation, it is arguable that Legal Aid will not advocate and look out for the interests of the community to the extent the Centre has.7 The loss of the Mental Health Legal Centre will mean less choice and more marginalisation for people with experience of mental illness. It will also mean that our values of social and legal inclusion will be far from near.

Sophie Brown is a JD law student at Monash University and member of the Progressive Law Network Sophie volunteered with the Mental Health Legal Centre in its campaign against Legal Aid funding cuts. She would like to thank Catherine Leslie, Lawyer, and Helen Versey, Acting Principal Lawyer, for their assistance in writing this article.

Many of the Centre’s clients are under Involuntary or Community Treatment Orders if found to be mentally ill and in need of psychiatric care or treatment for the protection of themselves or the public. These orders force them to have psychiatric treatment and may compel them to be detained on a ward. The Centre has also run successful test cases vindicating the rights of clients under the Victorian Charter of Human Rights, for example the right of a client to control his money and choose where to live. Catherine Leslie, ‘Jeopardising Access to Justice for People Experiencing Mental Illness’ on Castan Centre for Human Rights Law: The Oficial Blog (3 April 2013) <http://castancentre.com/2013/04/03/jeopardising-access-to-justice-for-experiencing-mental-illness/>.

3 Reynah Tang, ‘Mental Health and the Law’ on Law Institute of Victoria President’s Blog 2013 (March 2013) <http://www.liv.asn.au/LIVPresBlog2013/ March-2013/Mental-Health-and-the-Law>.

4 A signiicant example is the Centre’s active involvement in the ongoing review and proposed changes to the Mental Health Act 1986 (Vic) through reporting, submissions and consultations.

5 At the time of writing the Centre is open and operating.

6 See Leslie, above n 2.

7 ABC TV, ‘Mental Health Legal Centre Facing Uncertain Future’, ABC News, 20 May 2013 ABC News (Helen Versey) <http://www.abc.net.au/news/2013-0516/mental-health-legal-centre-facing-uncertain-future/4693386>.

2

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ROAD TO REFUGE

WORDS: Dana Afleck First day at school. Bag packed, shoes tied, scarf and gloves on because it’s freezing outside. Mum tells you not to talk to strangers and tells your little brother that you’re in charge. He groans, you smile. The walk is cold so you shove your hands into your pockets and tuck your chin into your scarf. At the gates, your brother is off and you spot some friends in the yard. Behind you, a football picked up by a student explodes as the bomb inside is detonated.

When a headline tells us that another boat has arrived and we see faceless human shaped igures huddling up to each other, we do not identify with them. They are from Afghanistan, Sri Lanka, Iran, Iraq. We don’t know them, we don’t get them, we didn’t jump on a boat and rock up at their borders. We didn’t need to.

Our Australian passport is the safety blanket that will probably keep us safe and a leaky boat will probably never be our only shot at safety.

This circumstantial distance creates an all too familiar “us” and “them” divide. But if we can look at one person’s set of circumstances and strain our imagination enough to seriously consider what we would do in their shoes, we can begin to understand who the faceless people are. We begin to comprehend that they did not want to board that boat and they did not want to leave behind family, friends, familiar streets and houses. We begin to realise that it is tragedy and human cruelty that has driven them to the detention centre in Broadmeadows, or maybe it drove them to their drowning somewhere in the Indian Ocean.

Road to Refuge is an interactive web program that allows you to make choices along an asylum seeker’s journey from country of origin to Australia (if you make it that far). It seeks to reveal the impossible decisions

asylum seekers face in their search for safety, shine a light on the simplicity of the debate in politics and question the effectiveness of our punitive policies seeking to deter the boats.

But mostly, it is a reminder that the difference between us and them is a bomb set off at high school. It is a peaceful protest in the city being gunned down.

It is your gay brother being picked up by the police and tortured.

This missing dimension to the debate ignited Road to Refuge. I wanted to challenge the “us and them” undercurrent that gives oxygen to viliication and dehumanisation of refugees in the media and our Parliament. I wanted to give Australians an insight into the journey taken and the cross roads faced. I wanted to ask Australians to genuinely ask themselves, what would they have done in the same situation as an asylum seeker. Putting ourselves in someone else’s shoes is a powerful tool that draws ‘us’ closer to ‘them’.

It isn’t hard to explain that Australia is not being inundated with asylum seekers, not only relative to our population and other forms of migration but also to other irst world countries. The hard part is to genuinely appreciate that almost every boat person will one day be our neighbour, our colleague, our son-in-law and the way we treat them now will shape our relationships with them in the future.

Road to Refuge seeks to make the proximity between ‘us’ and asylum seekers closer so that when we see a boat on the news, we are relieved to know they got here safely, not aggrieved that they came at all.

• www.roadtorefuge.com

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A DAY IN THE LIFE OF AN INTERN AT VICTORIAN LEGAL AID WORDS: Grace Pisano A day in the life of a student intern in the Civil Justice Division at Victoria Legal Aid (VLA) is an Access All Areas pass to the frontline in delivering legal services.

In assisting supervisors and lawyers I was able to work on client iles and oversee a client’s interaction with the legal system from start to end.

Client interviews are the irst point of call for clients with an infringements issue at VLA. I accompanied my supervisor on client appointments; however my role did not end there. I learnt skills that encompassed interviewing clients which I then used when given the opportunity to hold my own client interviews. This involved familiarising myself with the client’s ile and asking questions about the client’s background. I was then able to explain whether VLA could assist and the options that were available.

This experience was second to none, as I put into practice what I had learnt. This reinforced my interest and passion for the law as I was able to to help clients understand their legal situation.

In the ofice I continued to assist by contacting the client or relevant medical professional if we required more information. As an intern this level of responsibility was encouraging. If the matter proceeded to the Melbourne Magistrates’ Court, I also attended the session with my supervisor. In this regard the ability to follow the case through from start to inish gave me great insight into how the legal process works.

Between attending court and ile work in the ofice, I also completed research tasks for lawyers. The research tasks were often based on new clients’ speciic situations such as migration and family law matters in other countries. However research tasks were also set to contribute to VLAs commitment to advocate for reform where required. One of my tasks was researching abuse in same-sex wards of psychiatric hospitals and discrimination cases. These research tasks were an opportunity to learn more about different aspects of law which I had little prior knowledge. The ability to inform the lawyer of my indings on speciic questions allowed me to feel that I was contributing to the client’s case.

Further, researching a particular area of law was accompanied by a chance to attend VCAT. I was fortunate enough to shadow a discrimination lawyer during her client interviews to see how these issues played out.

The opportunity not only to observe but actually partake in a client’s case was one of the most enjoyable aspects of the internship at VLA. All interns were exposed to varied practice areas and legal issues making the work very interesting. However the practical experience of dealing with clients in interviews was the highlight of my internship as this provided me with a sense of responsibility and achievement.

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VOLUNTEERING AT THE OFFICE OF THE PUBLIC ADVOCATE

WORDS: Jessica Dawson-Field The Ofice of the Public Advocate (OPA) is an independent body established by the Victorian Government that works to protect and promote the rights and dignity of people with disabilities.

OPA has a number of powers and functions including providing advocacy for people with a disability and also guardianship where required. OPA also runs a number of diverse volunteer programs which focus on making a positive difference in the lives of vulnerable members of the community.

As a volunteer with the Disability Stream of the Community Visitors program, I visit group homes for people with a disability. The group homes are normal houses where ive or so residents live with support staff. Many residents in these homes lived in large institutions before such facilities were decommissioned and community based support become the norm. The residents often have both intellectual and physical disabilities. The visits occur unannounced and always in teams of two volunteers.

The role of the volunteer is not a social visit but rather to ensure that the human rights of residents are being upheld and respected. I talk with residents to identify any issues of concern they may have with any aspects of their life such as the quality of support and treatment they receive, their ability to access recreational activities and even the types of food available at the home.

The role of the Community Visitor is to ensure that everyone is treated with dignity and respect, no matter what the disability. I have found volunteering with OPA a rewarding role and would highly recommend it to any law student.

For more information on how to join the Community Visitors Program: Email communityvisitors@justice.vic.gov.au or call the Volunteer Co-ordinator at OPA on 1300 309 337.

THE

STEPPING STONES TO SUCCESS

WORDS: Joanna Abraham As someone who attended a high school that only a handful of people would have ever heard of, I understand the misconception that access to tertiary education, and even more so, law school, is often perceived as something that is only available to you if you’ve attended private school, and have somehow managed to make all the right connections. But in reality, that’s not the case. Throughout my time in law school, I’ve come across a multitude of people who’ve come from incredibly varied backgrounds; some from country Victoria and others from average neighbourhood schools, and the truth is, it really doesn’t matter where you’ve come from.

All you really need is the drive and the motivation to want to achieve something, and be someone.

The irst half of 2013 saw the Melbourne Law School Students’ Society’s ‘Stepping Stones’ program take its irst steps. The premise of the program is to cultivate relationships between current Juris Doctor law students and Year 11 students from low-SES schools who have expressed an interest in pursuing tertiary study in law.

From its onset, the Stepping Stones program has shown immense potential to empower, motivate

and turn high school kids onto a path they had never envisioned for themselves. At the most empirical level, the program was started in the hope that it would empower kids into the realisation that, regardless of what their background was, if you’re willing to put in the hard work, time and energy, there are no limits to future educational prospects .

We wanted to tell them and, more importantly, show them that going to law school is something very much in their grasp, and that there is no separate mould that kids in law schools are cut from; all you have to do is want it and be willing to work for it.

Even at this early stage in the program, it is inspirational to witness irsthand, how the kids participating in the program have their hearts set on success and are endeavouring to create their own opportunities, despite being proximately disadvantaged. One of the students even took the initiative to make contact with the law school herself in order to participate in the program.

In essence, proximity is only a barrier to opportunity if you allow it to be, and the students participating in the Stepping Stones program are a direct testament to this fact.

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I began volunteering at MVLS in 2011. This was an opportunity for me to gain an insight into the law, before I decided to embark on the JD program. This experience was greatly beneicial, thus I took the leap into studying law.

VOLUNTEERING MOONEY VALLEY LEGAL SERVICE (MVLS)

WORDS: Alyssa Ianno Mr X comes into Moonee Valley Legal Service (MVLS) with a pile of infringement notices, ranging from unpaid CityLink tolls, parking infringements and speeding tickets. These ines have been received over a period of three years and amount to approximately $15 000. Furthermore, within this three-year period, Mr X has been faced with mental health problems, periods of homelessness and substance abuse.

MVLS strives to provide quality legal service to Mr X, who represents one of the most disadvantaged members of our community. MVLS endeavours to assist Mr X to clear these ines through initiating a special circumstances application.

This is an illustration of one of the clients that comes into MVLS on a daily basis. It is not unusual for the clients to be facing social, economic, and healthrelated hardships.

The team at MVLS consists of three solicitors, with varying levels of experience across different areas of law. As a generalist community legal service, MVLS offers a broad range of legal services to its clients, including advising on criminal and family law matters, drawing up infringement revocation applications, helping with motor vehicle accident issues and guiding people through minor civil litigation stages.

MVLS is committed to improving the community’s legal knowledge through legal educational workshops. Various workshops are conducted throughout the year on common legal issues. The ‘Consumer Contract’ workshop, which focused on oppressive mobile phone agreements, has been an enormous success for MVLS. My time at MVLS has been a rewarding experience both professionally and personally.

In a professional capacity it has provided me with practical skills in the application of the law. I have been able to attend court regularly with the solicitors.

I am able to sit in on client interviews and observe the lawyer–client relationship. In addition to this, I have developed many skills which one cannot gain without a hands-on approach. These include drafting various legal documents, such as special circumstances and divorce applications, and knowing how to effectively assist with various ongoing client matters.

Personally, volunteering at MVLS has demonstrated that through the help of one solicitor, a signiicant improvement can be created in the client’s life. My time at MLVS has been one of the most eye-opening experiences I have had of the law and it has been a privilege to assist in contributing to the work of MVLS.

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& THEM

US

RETHINKING THE ROLE OF LAWYERS

WORDS: Van Le Over the winter break I was placed as an intern by the Aurora Project to work at Native Title Services Victoria (NTSV). Although NTSV is a community legal organisation, I was placed as an anthropology intern giving me a completely different perspective of native title from what I previously knew.

During my time at NTSV, I was reminded that native title is not just something we learn about in Property Law and it isn’t just a legal issue. It means much more to the people who work at NTSV and especially those who come to NTSV for help. Native title, like many other things we come across in our studies, involves more than just legally trained professionals; it involves the expertise and experience of a diverse range of people. In particular, native title is a conversation which concerns lawyers, historians, anthropologists, linguists and most importantly, the indigenous claimants themselves.

We spend a lot of time immersed in our studies and so it is easy for the study of law to become divorced from the reality in which it operates. We tend to forget

that there is a human story behind the legal arguments and that the legal professionals are not alone in their responsibilities to serve their clients and/or their community.

At NTSV, this was represented physically with the ofices of historians, anthropologists, community liaison oficers and lawyers all in close proximity to each other. As a result, lawyers and all the other experts from differing disciplines were in constant contact and communication with each other. Moreover, experts from other disciplines help lawyers resolve the complicated matters involved in a case and also better understand the needs of the client. Simple things like physical proximity serve as a reminder that collaboration is necessary.

I’ve come to appreciate the collaborative effort that is required to resolve a legal issue. Thinking that legal problems only require the expertise and opinions of lawyers leads to the inaccessibility of the law.

Lawyers are but one side of the conversation and we need to be constantly aware of this as law students.

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VOLUNTEERING AS A LEGAL INTERN AT BEYONDBLUE

WORDS: Patrick Easton In early 2013 I volunteered as a Legal Intern at beyondblue under the MLS Internship Program.

With another MLS intern, I worked with 3 other legal staff in an organisation of approximately 70 people.

Much of what I thought about the non-proit sector was up-ended during this time and I had the good fortune of seeing the workings of one of Australiaâ&#x20AC;&#x2122;s most-recognised charities.

As an intern, I was tasked with writing advice; undertaking legal research into unknown areas of law for beyondblue; administration, prooing and the drafting of contracts; and completing a research project on charitable governance regulations. There was no shortage of moments where I felt completely out of my depth but I also had several moments where I was surprised by just how prepared I was for providing practical (and concise) advice.

Private law courses such as Contracts and Remedies predominantly cover conlicts involving corporate interests and aggrieved individuals. Combined with frequent interaction with standard form contracts, I had the perception of contractual work being mechanical. However, the practical application of private law concepts in the context of an inluential charitable organisation contracting with educational and medical institutions led to a much deeper understanding of nature of contracts. The work of a lawyer in a charity whose reputation is of utmost importance to its work presents interesting challenges and required me to adjust my concept of the role of a lawyer. Taking a holistic, long-term view on each external engagement, rather than a short-term â&#x20AC;&#x2DC;winâ&#x20AC;&#x2122; is vital; the objectives of the charity are paramount.

I also had the opportunity to see life as an in-house lawyer. beyondblue is staffed by exceptional people in the ields of medical research and communications. The small legal team acts as the facilitator for a highly-energised and highly-educated workforce.

In an environment where lawyers are not everywhere the responsibility upon individuals with legal training is pronounced. It is empowering to be responsible for assessing the rights and obligations of an organisation with a view to furthering the objectives of those around you. Playing a role which is distinctly different to the person at the next desk may seem isolating, however, having the same principal goals makes for a collegial and stimulating work environment where everyone is committed to assisting one another.

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ACCESSING CLOSURE THE COST OF DIVORCE

WORDS: Grace Duncan Access to justice. It’s an overused, almost clichéd phrase in legal circles, but a recent Senate Inquiry into the 2013 increase of court fees brought home the reality that for some, accessing the justice system is a pipedream. For organisations like the Women’s Legal Service Victoria (WLSV) such a procedural update can be seen to yield manifestly unjust results. In iling for divorce, this injustice is disproportionately experienced by women, especially those trying to move on from abusive or violent relationships.

WLSV, established in 1981, is a state-wide not-forproit organisation providing free legal information, advice, referrals and representations to women in Victoria. Their principle areas of work are family law, family violence intervention orders and victims of crime compensation.

In April this year, WLSV made submissions to the federal Senate Inquiry into the impact of court fee increases on access to justice in Australia. Several other community legal centres also made submissions,

1

This is a pseudonym.

including women’s legal services in WA, NSW and the Northern Territory. Whilst this issue affects a wide spectrum of the community, the impact that this increase can have on vulnerable women is, in some cases, tragic.

On 1 January 2013 the reduced iling fee to get divorced rose from $60 to $265. Unlike all other court fees, the fee for iling for divorce cannot be waived in cases of inancial hardship. This increase of 440% has proved prohibitive for some women, meaning in some cases that their ties to abusive or dangerous husbands cannot be severed.

‘Dina’ 1 is one of these women. Two years ago she led a violent and abusive marriage and moved interstate for her safety. She is the sole carer for her 6-year-old daughter, has no assets and lives in a rental property, surviving on Centrelink beneits.

Whilst trying to begin a new life, she retains the legal link to her old one, being unable to save to afford the iling fee for divorce. Both legally and psychologically, she is stuck, unable to obtain closure.

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Whilst divorce can be a positive step for both parties in rebuilding their lives after a marriage breakdown, it is particularly important for women who have experienced family violence, as it can both bring inality and impact positively on health and emotional well-being. Women are more likely than men to make a sole application for divorce,2 and may be doing so for safety and protection. This is a double jeopardy for these women, as on one hand they are in the greatest need for a divorce, but on the other they’re unable to raise the fees due to their lack of inancial security following separation.

following separation, heightening the detrimental impact of the increased divorce fees.

The Senate Committee released their report on the impact of these fees on 17 June this year, recommending that fee exemptions for cases of inancial hardship be introduced, to bring divorce in line with all other family and general law court fees. This has yet to be implemented but in order to remove this barrier for women in accessing justice, this must be done.

Grace Duncan is a volunteer with the Women’s Legal Service Victoria

The Australian Domestic and Family Violence Clearing House published research in 2011 that concluded that ‘for women experiencing domestic violence, inancial security goes to the heart of not only their freedom from abuse, but also their recovery and capacity to regain control over their lives, now and in the future’.3 Yet women who have encountered domestic violence in their relationships experience a particularly substantial level of inancial strain

2

3

Australian Bureau of Statistics, Marriages and Divorces, Australia, 2011, ABS Catalogue Number 3310.0(30 November 2012) ‘Divorces – State and Territory Data’ <http://www.abs.gov.au/ausstats/abs@.nsf/Products/B3C244469C9A39E6CA257AC5001131DA?opendocument>.

Rochelle Braaf and Isobelle Barrett Meyering, Australian Domestic and Family Violence Clearing House, Seeking Security: Promoting women’s Economic Wellbeing following Domestic Violence (March 2011).

IS ONE PUNCH WORTH IT?

WORDS: Duncan MacKenzie (with Sophie Rowe and Hugh Stacy) Step Back THINK (SBT) was formed in 2007, in the wake of the shocking injuries sustained by James Macready-Bryan as the result of an assault during a night out celebrating his 20th birthday in 2006.

Knocked to the ground when dealt a ‘king-hit’, James acquired a catastrophic and irreparable degree of brain damage. James now requires full-time care and lives in what has been described by surgeons as a ‘twilight zone’. For the founders of SBT, all close friends of James, the issue of street violence was brought abruptly to their attention.

SBT was established to bring awareness of the consequences of street violence to young people, without them having to experience it irst hand. CEO, Sophie Rowe, and Committee Member, Hugh Stacy, agreed to answer a few questions about the organisation’s inception and the role it sees for itself in reducing street violence.

Did you have much dificulty in initially getting SBT off the ground?

In the initial two years of operation, SBT’s founders and close supporters covered expenses personally.

Slowly but steadily, SBT has been able to gather wider support and exposure. We were committed to seeing the initiative take shape, and with the assis tance of the members of what has become the

SBT Advisory Board, the organisation both grew and matured.

The Advisory Board (which includes, amongst others, former Treasurer Peter Costello and Director of the Monash-Epworth Rehabilitation Research Centre, Jennie Ponsford) brought a wealth of knowledge to our young group, providing an invaluable resource in terms of organisation direction, marketing strategy and campaign implementation.

The Department of Justice Strategic Communications Branch also played a crucial role in our development by giving us opportunities to attend various events and improve our networking capacity.

Have you received much support from other bodies along the way?

Without the support of the Victorian Government and various other organisations, SBT would not be the organisation it is today. We have received funding from the Department of Planning and Community Development as part of their Respect Agenda, and we’re currently in a funding arrangement with the Department of Justice. VicHealth, Tatterstalls, QANTAS Airways and DrinkWise have also provided donations. We also work closely with the James Macready-Bryan Foundation, which believes all

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SBT WAS ESTABLISHED TO BRING AWARENESS OF THE CONSEQUENCES OF STREET VIOLENCE TO YOUNG PEOPLE, WITHOUT THEM HAVING TO EXPERIENCE IT FIRST HAND

young sufferers of an acquired brain injury should be fully and appropriately supported in their inancial, rehabilitation and accommodation needs.

Are you aware of any statistical decline in street violence among younger people since the organisation’s inception?

Our recent partnerships with the Hawthorn and Carlton Football Clubs gave us the opportunity to work with the AFL in Round 12 to promote our antiviolence message to thousands of spectators, social media users and local football clubs. It was a huge success, and really highlighted to us what can be achieved through building and maintaining relationships with other groups.

We’re not looking for an immediate reduction in street violence, we’re looking to engender a change in the mindset and culture of Australians. It is dificult to measure the effectiveness of our work given it’s a long-term project that may take years or decades to come to fruition. Like the TAC drink driving campaign initiated in the late 1980s, we hope to see real change occur in future generations, not necessarily in the next few years.

A noticeable feature of the SBT team is that you guys are all relatively young (Sophie and Hugh are 23 and 22 respectively), do you think this has been an advantage in connecting with young people?

Without a doubt. In order for social change to take effect, it must emerge within the target culture. We’re a group of young Australians helping other Australians understand the risks and consequences of street violence, we’re not some mother or father igure looking down on the youth telling them not to ight —we want to give them the information they need to realise for themselves the all-too-real dangers that accompany what are often split second decisions.

How can people get involved with SBT? Our organisation is always looking for new supporters and volunteers to help spread our message.

Those interested should check our website, Facebook page and Twitter account to view our latest news and events. We welcome all who would like to contribute in any manner. From a simple word to a friend, to attending an event and lending a hand, every bit helps.

• Website: www.stepbackthink.org • Facebook: www.facebook.com/StepBackTHINK • Twitter: www.twitter.com/StepBackTHINK

CONFLICTS OF INTEREST THE ETHICAL RESTRICTIONS ON LEGAL AID SERVICES WORDS: Andrew Michaelson There is no question that equality of access to the law serves as a fundamental pillar of our justice system.

If the law is to apply equally to all, it must in turn be accessible to all. Victorian Legal Aid’s (VLA) efforts in managing ‘conlicts of interest’ offer a unique insight into the degree to which this ideal of access is practically achieved within the Victorian justice system.

‘Access’ is a concept critical to the practical application of the law. It represents not only an individual’s rights to enforce their legal rights, but also the manner in which state institutions operate to ensure that all Australians live under the protection that our laws aim to provide.

However, by its very nature, the law is not an easy thing to access. While some aspects of it can be effected through the simple dial of a phone to the police, understanding, not to mention actually applying the bulk of, the law requires the resources, training and experience only available to professional litigators.

There is of course no shortage of lawyers in Victoria, but for many individuals, the potential urgency of their need for advice as well as the price tag means that they’re hindered from employing their services.

VLA steps in to offer legal advice and representation to those who cannot afford other private alternatives.

In 2011–12, VLA assisted over 91,000 unique clients.

Of these, 3 in 10 lived in regional Victoria, 1 in 2 were receiving a government beneit and 1 in 5 were from non-English backgrounds.

Despite this impressive record, the VLA’s capacity to assist prospective clients remains limited by the ever present ethical risk of a conlict of interest.

VLA cannot offer legal advice and representation to a client if they believe that doing so would create a conlict of interest. In accordance with the Law Institute of Victoria’s Professional Conduct and Practice Rules (2005) a conlict can occur in a number of circumstances, such as where the lawyer is close friends with one of the parties, or is one of the parties themselves.

But the most prevalent and controversial example of a conlict is where the lawyer has already represented the opposing party.

Conlict of interest ethical theory contends that when presented with a case that sees them opposing a former client, a lawyer may be inhibited in exercising his or her judgment in the present representation because of loyalty to the former client. This may possibly lead to the subversion of justice. It also recognises the fear the former client might hold that the lawyer will divulge or make use of the past conidences to help the present client.

The VLA employs the use of an extensive and detailed record of all the cases it manages, ensuring that if a conlict occurs it will be lagged. It doesn’t matter if this advice was given 10 years ago, if it was given by another VLA lawyer, or to what matter it pertained to — if the other party received legal aid services, it means VLA professional policy considers it a conlict of interest to assist another party against them. VLA is furthermore prevented from even explaining why the conlict has occurred.

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WHICH IS MORE UNETHICAL: ALLOWING THE CONFLICT AND GIVING ADVICE OR REFUSING TO DO SO AND LEAVING CLIENTS WITH NOTHING?

Proximity serves as a key element to this challenge.

The degree of intimacy between the parties to a dispute can have a direct bearing on the likelihood of a conlict being found. Such conlicts often occur in the family law dispute context, when an individual inds that VLA cannot assist him or her presently in a case against their partner because they had previously advised them as a couple. The issue is exacerbated in regional areas, as conlicts become all the more likely in small communities who have fewer legal aid services.

While if a conlict is found, a VLA lawyer can offer procedural advice to clients, and will attempt to refer them to another legal service, if no alternative is available, a client who has neither the time nor means to acquire their own lawyer can go completely devoid of full legal assistance at court.

This begs the question: can an individual receive a fair trial if they fail to receive a minimum amount of legal advice? The court has not yet come to a conclusion. In Dietrich¸ the High Court concluded that the law affords only the right to a fair trial, and whether or not legal representation is required to achieve this outcome is dependent on the facts and circumstances of the 1 case. In high-stakes criminal matters, courts have been more willing to ind that legal representation is in fact necessary, but for smaller matters, such as family violence intervention order hearings (which are often given with only a day’s notice to the defendant), the court is often more willing to proceed without.

1

Dietrich v The Queen (1992) 177 CLR 292.

This obligation presents a challenging ethical dilemma to the justice system. Which is more unethical: allowing the conlict and giving advice or refusing to do so and leaving clients with nothing? Uncertain moral choices are the only real option in most legal environments.

But reasonableness should remain the principle of paramount importance. Is it really reasonable to claim a conlict of interest exists when the advice was given to the opposing party ten years ago by another VLA lawyer? Arguably not.

Though it is understandable that the VLA would wish to minimise the chance of litigation against them through allegations of breach of professional standards, this wholesale, inlexible application of policy, divorced from the practical reality of the present circumstances, can and does produce unjust outcomes.

Andrew Michaelson interned in Victorian Legal Aid’s Family Law division in Semester 1, 2013

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HOW CAN I GET INVOLVED? There are a variety of opportunities to give back to your community while exploring your interests within and outside the law. Here are just a few...

A great starting point is the Federation of Community Legal Centres’ website, which provides a directory of CLCs in Melbourne: http://www.communitylaw.org.au/ CLCs IN METROPOLITAN MELBOURNE Barwon Community Legal Service

Environment Defenders Ofice

www.barwoncls.org.au

http://www.edo.org.au

Disability Discrimination Legal Service

Human Rights Law Resource Centre

www.communitylaw.org.au/ddls

www.hrlrc.org.au

Job Watch INC – Employment Rights Community Legal Centre

Lawyers Beyond Borders

www.jobwatch.org.au North Melbourne Legal Service www.nmls.org.au Refugee & Immigration Legal Centre www.rilc.org.au St Kilda Legal Service Co-op http://www.communitylaw.org.au/clc_stkilda/cb_pages/about_us_about.php Villamanta Disability Rights Legal Service http://www.villamanta.org.au/ Women’s Legal Service Victoria

http://www.lawyersbeyondborders.com Liberty Victoria http://www.libertyvictoria.org.au/ Melbourne City Mission http://www.melbournecitymission.org.au/ Senior Rights Victoria www.cotavic.org.au Sudanese Australian Integrated Learning Program (SAIL) http://www.sailprogram.org.au/ SUBURBAN VOLUNTEER OPPORTUNITIES

http://www.communitylaw.org.au/clc_women/cb_ pages/about_us.php

Brimbank Melton Community Legal Centre

Youthlaw

Broadmeadows Community Legal Service

www.youthlaw.asn.au

http://www.communitylaw.org.au/clc_broadmeadows/cb_pages/about_us.php

OTHER VOLUNTEER OPPORTUNITIES IN METROPOLITAN MELBOURNE Asylum Seeker Resource Centre

http://www.communitywest.org.au/

Casey Cardinia Community Legal Service

www.asrc.org.au

http://www.communitylaw.org.au/clc_caseycardinia/ cb_pages/about_us.php

Consumer Action Law Centre

Conservation Volunteers Australia

www.consumeraction.org.au

http://www.conservationvolunteers.com.au/