Better Law for a Better World: New Approaches to Law Practice and Education [1 ed.] 0367180421, 9780367180423

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Better Law for a Better World

How as a society can we find ways of ensuring the people who are the most vulnerable or have little voice can avail themselves of the protection in law to improve their social, cultural, health and economic outcomes as befits civilised society? Better Law for a Better World answers this question by looking at innovative practices and developments emerging within law practice and education, and shares the skills and techniques that could lead to confidence in the law and its ability to respond. Using recent research from Australia, practice initiatives and information, the book breaks down ways for law students, legal educators and law practitioners (including judicial officers, law administrators, legislators and policy makers) to enhance access to justice and improve outcomes through new approaches to lawyering. These can include: multidisciplinary practice (including health justice partnerships); integrated justice practice; restorative practice; empowerment modes (community and professional development, policy skills); client-­ centred approaches and collaborative interdisciplinary practice informed by practical experience. The book contains critical information on what such practice might look like and the elements that will be required in the development of the essential skills and criteria for such practice. It seeks to open up a dialogue about how we can make the law better. This includes making the community more central to the operation of the law and improving client-centred practice so that the rule of law can deliver on its claims to serve, protect and ensure equality before the law. It explores practical ways that emerging lawyers can be trained differently to ensure improved communication, collaboration, problem-solving, partnership and interpersonal skills. The book explores the challenges of such work. It also gives suggestions on how to reduce professional barriers and variations in practice to effectively, humanely and efficiently make a difference in people’s lives. The book builds essential skills and new approaches to lawyering for law students, legal educators, new lawyers and seasoned lawyers, judicial members and law administrators to equip them to better respond to community need. It looks at the law in context by also exploring the role of the law in improving the social determinants of health and socially just outcomes.

Liz Curran is ‘Quality, Improvement and Impact Lead’ for Social Security Rights Victoria, Honorary Associate Professor at the Australian National University College of Law, Visiting Senior Fellow at Nottingham Trent University and a practicing solicitor. She is a member of the Australian Society of Evaluators and the Australian Association for Restorative Justice. She is Senior Fellow of the Higher Education Academy.

Emerging Legal Education Series Editors

Paul Maharg, Osgoode Hall Law School, York University, ON, Canada, Elizabeth Mertz, University of Wisconsin-Madison/American Bar Foundation, USA and Meera Deo, Thomas Jefferson School of Law, San Diego, CA, USA

Emerging Legal Education is a forum for analysing the discourse of legal education and creating innovative ways of learning the law. The series focuses on research, theory and practice within legal education, drawing attention to historical, interdisciplinary and international characteristics, and is based upon imaginative and sophisticated educational thinking. The series takes a broad view of theory and practice. Series books are written for an international audience and are sensitive to the diversity of contexts in which law is taught, learned and practised. Other titles in this series: The Moral Imagination and the Legal Life Beyond Text in Legal Education Edited by Zenon Bankowski and Maksymilian Del Mar The Arts and the Legal Academy Beyond Text in Legal Education Edited by Zenon Bańkowski, Maksymilian Del Mar and Paul Maharg Affect and Legal Education Emotion in Learning and Teaching the Law Edited by Paul Maharg and Caroline Maughan Imperatives for Legal Education Research Then, Now and Tomorrow Edited by Ben Golder, Marina Nehme, Alex Steel and Prue Vines Better Law for a Better World New Approaches to Law Practice and Education Liz Curran Public Legal Education The Role of Law Schools in Building a More Legally Literate Society Richard Grimes https://www.routledge.com/Emerging-Legal-Education/book-series/ELE

Better Law for a Better World New Approaches to Law Practice and Education

Liz Curran

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Liz Curran The right of Liz Curran to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-18042-3 (hbk) ISBN: 978-0-367-75243-9 (pbk) ISBN: 978-0-429-05925-4 (ebk) Typeset in Sabon by KnowledgeWorks Global Ltd.

Contents

List of figure and table Foreword Preface Acknowledgements Legal terminology Abbreviations Introduction

ix x xii xv xvi xxi 1

PART I

The case for change – a need for innovation in the law, teaching and practice

5

1 Context and recent research

7

2 Adversarial approaches, problems and a need to do law differently

17

3 Rationale for new approaches to law and the teaching of law

37

4 Empowerment models

47

5 Client-centred approaches

63

6 Multidisciplinary practice

79

7 Restorative practice

101

8 Interdisciplinary student clinics and joint learning opportunities

129

viii  Contents PART II

Practical skills for new approaches to lawyering

143

9 Effective communication and problem-solving skills

145

10 Collaboration

169

11 Community development and professional development

180

12 Policy research, submission writing and advocacy for change

202

13 Interdisciplinary learning in higher education

220

PART III

The ethics of reflective practice and evaluation

239

14 Reflective practice

241

15 The importance of evaluation

251

PART IV

Resources

265

Appendix 1 – Checklists and tips

267

Appendix 2 – Author publications

269

Appendix 3 – Established health-justice partnerships in Australia

276

Appendix 4 – Relevant legal principles and inquiries

279

References Index

283 308

List of figure and table

Figure 3.1 Flipping the paradigm: the centrality of the community. Source: Liz Curran © 2020.40

Table 2.1 Key problems with the adversarial approach: summary of the Productivity Commission’s main proposals19

Foreword

Though it is too rarely acknowledged, law is a profession grounded in idealism. In one way or another, everyone who works in the law – whether as practitioner or adjudicator or teacher – is motivated by the belief that some good will come of what they do. Lawyers’ conceptions of the good vary widely, of course, but most of us are encouraged by the thought that we can use our skills and training to make a positive difference in the life of a person or a community or an institution. Liz Curran is a passionate idealist. She has worked tirelessly for decades, in her various capacities as practitioner, teacher, academic and advocate, to make law work better for people. She has learnt from direct experience, and from her extensive research, about the obstacles which prevent ‘those who are most vulnerable, or have little voice’ from securing the law’s protection. And she has been a pioneer in developing new ways in which the law can meet community need. In this book, Liz presents both a stirring vision of what law and lawyers are capable of and a sharp reminder of how often we fall short. Her challenge is clear: if we are serious about a commitment to human rights and access to justice, we ‘need to be brave; to explore new avenues, processes and ways of working’. The starting point should be to ‘acknowledge our own humanity and find space for compassion and understanding in the way we practise and administer the law’. But this is no mere exhortation. Underpinned by a sense of shared purpose, the book is avowedly practical. It aims to equip us with the tools we need to pursue new approaches to lawyering and legal training. Drawing on local and international experience, the book furnishes us with a range of strategies and methodologies, new ideas about how legal services can be provided, new ways of engaging in policy development and law reform. It is a rich resource of guidance and practical tips, teaching materials and questions for investigation. This book is remarkable for its breadth and depth. On the one hand, the chapter on effective communication and problem-solving skills gives stepby-step advice on how a client interview can best meet the needs of both

Foreword xi client and practitioner. On the other hand, there are chapters on community development and advocacy for change which are directed at advancing reform on a broader scale. For those unfamiliar with concepts, such as multidisciplinary and collaborative practice, problem-solving courts and restorative justice, this book will provide the perfect introduction, with signposts for further learning. First and last, the book demands of us that we engage critically with the legal system of which we are part. We should welcome the opportunity for reflection and dialogue which it offers. His Honour Chris Maxwell, President of the Court of Appeal of Victoria, AC.

Preface

Throughout my adult life I have had cause to question and reflect on whether the current formal approach of the legal system and its officers are the best way to deal with people’s legal problems. This text draws on my work as a researcher, teacher, academic and practitioner; it relies on the reader’s tolerance of some generalisations due to the book drawing on many different experiences and sources; not just research. The text draws on research, practice experience, theory, innovative approaches and various imperatives emerging from inquiries into the operation of the legal system. This preface, however, provides the personal context from which the book has emerged. How slow, removed and traumatic the legal system and its current mechanisms can be for those harmed. How hard it can also be for them to act and participate in processes that are complex and often alien to them. Legal problems are not situated in a vacuum. They sit within the social, cultural, economic, political and personal situations that vary from person to person, culture to culture and country to country. People are making choices all the time to turn to the law, or not, for remedies, redress, adherence to rights and protection of their rights. Some find the processes too remote, blunt, expensive, traumatic or inadequate. These views can diminish public confidence in the law and the legal system. Legal mechanisms can be deficient, inappropriate or difficult to navigate or access. The system itself can cause harm, involve delay and heartache, and appear blind to the experiences of those they ought to be listening to. Of course, this is not always the case, but as this text will reveal, it can be the case too often, especially for those without access to resources, those on society’s margins or those who have complex problems including disability or poverty. This experience is changing but sometimes too slowly and sometimes with resistance from those who unquestioningly adhere to traditional approaches. What I hope to offer in this text is to explore new and emerging approaches that may lead to hope and enhancements, responsiveness or effectiveness. I am of the view that we need to be open to new ways that the law can meet community need. This may look different in

Preface xiii different circumstances, but lawyers need to be brave; to explore new avenues, processes and ways of working to find more appropriate alternatives. In sharing my own story, I am trying to model the sort of truth telling narrative discussed in Chapter 7 as restorative practice (RP); to demonstrate that as lawyers it is okay to show we are human, that we are not just legal technicians or experts. We can bring something more to our clients if we acknowledge our own humanity and find space for compassion and understanding in the way we practice and administer the law. We can teach it as we do the difficult job in assisting, advising and representing clients; adjudicating and acting ethically with competence, intelligence, expertise and diligence. When I was a child, my mother, myself and my siblings were exposed to family violence (FV) of a physical, emotional and psychological nature. I lived in fear and, at an early age, was overprotective of my mother and unwell brother, who had a cancerous brain tumour and consequential intellectual disability from surgery. When my courageous mother was in the family court system, the no fault family law had just been introduced. Fortunately, she retained child custody. However, given the evidence before the court, the orders insufficiently dealt with the guardianship and contact of her children, leaving my unwell brother and I (still residing in the family home after my older siblings had moved away) exposed to fear, insecurity and harm from our father. This threat continued until I moved away to university. My unwell brother, a kind, gentle-natured soul, died when I was 11 years of age. He was 17. At his doctor’s insistence, we temporarily placed him in a psychiatric and disability institution, 40 km from home, so to give my exhausted mother brief respite. On a subsequent visit, my mother and I discovered he had not been given his medication or been fed. He had consequently become dazed and was being dragged around by staff by his belt. (According to the later autopsy he had suffered a series of epileptic fits.) He had also lost a shocking amount of weight in the short time he was there. We acted quickly to get him transferred (after they refused to let us take him home without doctor approval). Late the following morning, after waiting several hours on the telephone, my mother was informed that my brother had died in the early hours of that morning. My father had been notified much earlier. My mother was traumatised, confused and devastated by the loss, but at the time, unable to take further action. The institution was closed in 2000, decades after this experience. An Australian Broadcasting Commission (ABC) (2016) report, an ombudsman’s report, board of inquiry and other studies reported on patients of this institution being over-medicated, subjected to violence, poor hygiene standards, distressing treatments, including bed restraint and beatings, food deprivation, incarceration and overcrowding. Another brother, four years older than me (and two years younger than our unwell brother), was a funny child who loved playing the guitar. He ran

xiv  Preface away from Catholic boarding school, where he had suffered significant physical and sexual abuse. No adult believed him at the time as the conduct seemed so incomprehensible. He had been placed at the school while our unwell brother was having surgery interstate. In hindsight, this was probably to protect him from our father while our mother was away, in the belief he would be safe in the care of the Catholic Order. After boarding school, he became homeless and lived for many years on the streets of Sydney, where he was further brutalised, becoming drug addicted and developing significant behaviour problems. He was diagnosed with numerous mental illnesses, which he struggled with until his recent premature death. In 1996, as a junior lawyer during the landmark Wik native land title case, I had the privilege of working with Aboriginal Elders in the region. They opened my eyes to new ways in which to see the world and the notion of law as custom and empowerment. They revealed to me that the beautiful country on which we live holds tragic histories of colonisation, persecution, racism, murder and destruction of culture. This experience was transformative and from that time on, I knew that there had to be other ways of practicing law to address injustice and poor treatment of the vulnerable. This learning forms part of the backdrop for why I am examining and sharing new approaches to law and education in the hope that future lawyers, the legal system and related parties can work together to ensure ‘law practice’ is able to better respond to community need. It is time for an examination not just of what the legal system requires, but rather what those who are seeking to use it require. Dr Liz Curran, September 2020

Acknowledgements

I wish to acknowledge and thank my family and friends for all their wonderful encouragement during the writing of this book. My editorial team led by editorial project manager, Meredith Bramich; editor, Michaela Skelly, thank you for bringing shape and shaking me out of lawyerly speak; law expert adviser, Andrew Crockett; publisher, Routledge UK and team (specifically Siobhan Poole, Chloe James and the series editor). Thanks go to the blind peer reviewers for their suggestions on the final manuscript. My appreciation also goes to the President of the Court of Appeal, Justice Maxwell, AC for the ‘Foreword’. I thank my Dean at the ANU College of Law, Professor Sally Wheeler, OBE, for her support in honouring my study leave as Honorary Associate Professor; and my former Head of the ANU School of Legal Practice, Lynette Du Moulin. I also thank my hosts during my study leave in 2020: Professor Jane Ching and the Dean of Nottingham Law School, Jenny Chapman at Nottingham Trent University; Caroline Streven, Reader in Legal Education and Head of Portsmouth Law School; Professor Gioia Pescetto, the Dean of the Faculty Business and Law and Dr Isobel Ryder, Programme Lead for Nursing, School of Health and Care Professions at the University of Portsmouth. Finally, and most importantly, a thank you to all those clients, research participants, members of community development groups (in a range of countries), the team at the Consumer Action Law Centre (Consumer Action) and practitioners in law, health and allied health and other scholars who have all been so instrumental in my journey of learning reflection, growth and ideas.

Legal terminology

Black-letter law – when the law is applied technically without consideration of context. It used to mean black and white and/or literal; again, without any consideration of the context. Bottom-up versus top-down approach – a bottom-up approach is informed by the lived experiences of a community; whereas, a top-down approach is hierarchal decision-making (government, managers, administrators, etc.) with little input from those lower down. Chinese walls versus firewalls – Chinese walls are artificial barriers that protect client confidentiality. There can be zones within an office where staff cannot enter so to ensure that lawyers, who can act for multiple clients, aren’t privy to confidential client information. This ensures their duty of loyalty is upheld and enables them to act without a conflict of interest. Chinese walls are complicated, and most courts and law societies tend to be sceptical about them. They are not permissible in most law offices unless they are administered with rigour. Firewalls are protections within information technology to prevent external trolls or scams, or breaches of security. Client confidentiality – the duty of a lawyer to protect information provided to them, and to seek full and frank legal advice; meaning the information provided by a client is not to be shared or used to benefit other parties or given to third parties without express client consent. Client–legal privilege – client information is confidential and cannot be used in later proceedings if it is for the predominant purpose of providing legal advice. Clinical legal education – involves students, as part of their law degree, being involved in practical legal skills development. It includes learning outcomes beyond merely skills attainment to include critical thinking and a greater awareness of the role of lawyers in society and legal professional conduct. Most often, clinical legal education programs are part of an optional subject. Some attract credit points, others are undertaken on a voluntary

Legal terminology xvii basis. Most clinical legal education programs occur by way of an internship program undertaken as part of the university and with academic supervision, or as an externship at a separate host agency engaged in legal service delivery. Student supervision is required by a qualified solicitor who holds a practicing certificate. The most typical clinical legal education programs see students based in a law clinic undertaking legal work services for clients, which can include the provision of legal information, advice, representation, the preparation of legal documentation, community legal education or community development and engagement in law reform activity. Collaboration – is working with another person, group or different discipline in order to achieve a common goal. Conflict of interest – at its simplest, a conflict of interest arises where a person or organisation is involved in multiple interests, financial or otherwise, and serving one interest could involve working against another. If this is the situation, a lawyer will not be able to act as it is in conflict with a lawyers’ duty of client confidentiality and their duty of loyalty. This means if the lawyer or the lawyer’s firm are privy to information in acting for a successive client, they are obliged to use it to assist the original client. Where there is a risk of connection between clients, the lawyer is likely to be privy to information, and subsequently cannot act for any of the parties and must withdraw. Common law – is the development of case law by the courts and their determinations that becomes a form of law in its own right (similar to legislation but which can also be modified by legislation). The common law involves cases decided by a judge that are then applied in future similar cases and guide legal advice. Relevant also in this text is that case law has also been developed that established the duties of a lawyer; including, duties of loyalty to clients, confidentiality and conflicts of interest that supplement the ethical codes of conduct and legal professional statutory obligations on the profession. Community development – is information and learning that can be used to strengthen an individual or a community’s capacity to act on legal information with confidence in the given situation. A community development approach is consistent with legal empowerment models and strength-based approaches. It draws on the life experience and intelligence of participants as well as expert input (grounded in reality) and the experience of the participants. Community development is often provided in the context of the phased delivery of information, building of confidence in capacity and rehearsal, and practice of the newfound knowledge. It is shaped and informed by the community’s own needs, thereby providing opportunities for the community to participate in how the information is presented. They also shape what information

xviii  Legal terminology is relevant to them and have input into the methods and ways of receiving and implementing this knowledge. Community legal education – is the imparting of legal information to an audience to give them greater legal literacy. Like community development, it is limiting in impact if there is no consideration of the community or the individual’s capacity to digest this newfound knowledge in a practical way. Community of practice – is where a group of professionals gather together regularly (online or in person) to discuss developments in their practice, to share experiences, seek support and debrief. It can include the sharing of breakthroughs, learning from each other and innovations. It is quite common among paramedics and psychologists and is expanding into other professions. It builds a sense of community among professionals. For example, it can be useful for professionals from rural or remote regions to connect and reduce isolation in their work. Due consideration – is a legal term meaning ‘a condition or standard to be met’. Embedded evaluation – is the underpinning of a program from the beginning; meaning comparisons can be made over time about the program or service’s intervention. Externship versus internship – in clinical placements an externship is where students work at an organisation external to the university that has minimal relationship with the university and may be a partnership arrangement or host agency (that is, the student organises it themselves). Internships are either internal university placements like at a university hospital or where a university academic works (in both university and a partnership agency of the university) and so in this sense it is internal. Fact telling – a process that accepts people’s versions of truth from what they experience or perceive; and the understanding this is part of the process. Good practice – an up-to-date approach to the practice of law that includes client-centred practice, sound judgement, empowerment approaches to clients and community, good legal technical skills and knowledge, competency, ethics, analytical problem-solving and quality. This includes respectful service, which considers not just the legal issue but the contexts within which these issues sit; such as economic, systemic, historical, cultural, development, psychological social and health. It acknowledges limits to expertise, listening skills and seeking out other professional expertise as appropriate. Good practice includes having a critical mind, being aware of one’s limitations and capabilities, collaboration skills to work with others effectively under a model of continuous reflection, development and improvement through reflective practice. It is

Legal terminology xix effective, responsive and tailored to client’s needs, including the most appropriate communication mediums, intelligence, common sense, self-awareness and cultural understandings. Growth mindset – is when you take whatever happens and see it as an opportunity to learn, improve and grow by uncovering assumptions, applying intelligence, adopting a level of curiosity and questioning, and looking at the positive. It encourages a person to be strategic, look at things from multiple angles and perspectives, and see the making of mistakes as an opportunity to learn rather than being paralysed and disempowered by the experience. Law practice or law practitioner – broader terminology than legal practitioner, which recognises the range of people who make up the law and its administration, who can be interacting with clients but not limited to just the law firm or legal practitioner. This can include judicial officers, court clerks, paralegals, courts, secretarial staff, reception and intake staff, law clerks, registrars of courts, tips staff, legal policy officers and legislators. Some of these personnel need not be a qualified lawyer, but, are involved in the operations of the law and the legal system. They are the front line or key point of contact for people interacting within the legal system or who interact with parties with legal problems. Note: this book seeks to inform and shape all personnel who have a part in the legal system and not limit its scope to lawyers alone. Legal mechanism/mechanisms – is a common turn of phrase to describe procedures, ways of working and the basic components of the law process. Similar to engineering, where many component parts make up a system called the mechanisms. So, too, in law there are many parts that (are supposed to, but often do not) make up the whole of the legal system’s operations. Practical legal training – the course required for graduates of law to qualify for admission to practice as a solicitor. Practical legal training is required by the accreditors/regulators to attain key competencies that are determined important for practice. For example, client interviewing, problem-solving, ethical awareness and the preparation of documentation. It includes the requirement to apply legal skills in set subject areas as well as in approved elective subjects. The emphasis is on the practice of law rather than the theory. As part of practical legal training, students are required to spend a certain period of time doing legal work in a legal practice alongside simulated practical work. Procedural rights versus substantive rights – the rights around how the process is undertaken. A common illustration of the difference between the application of the law procedurally and substantially, for example, where a law makes it unlawful for ‘any person to sleep under a bridge’. Procedurally the law applies equally to everyone.

xx  Legal terminology In substance, however, it is more likely that the law will substantively apply to the homeless who seek shelter and sleep under a bridge. The law applies equally to everyone but in reality, affects specific people more harshly. Professional development – the ongoing training of professionals. The rule of law – the doctrine that all people are equal before the law, and that the government is subject to the law. Trauma versus harm – trauma is more severe; often as a product of some serious and often prolonged psychological trauma, which can be ongoing or triggered by an event or experience, and often involves deeper behavioural and psychological distress. Harm is a broader term that can include being hurt, embarrassed, upset, damaged, creating emotional distress, disempowerment, physical impacts, losing money, relapse into drug addiction or mental health decline. Warm referrals – is where the client is supported into the referral by either a trusted intermediary or support person, or a conversation occurring, after consent has been received. The person making the referral talks directly to the referring agency to facilitate an appointment, and in turn the client feels supported.

Abbreviations

ADR CLC FV GP GVV HJP IDSC IDSHJC JLO LAC LPE LSC MD MDP MLP PTSD REC RJ RP SC SDH SFT

alternative dispute resolution community legal centre family violence general practice Giving Voice to Values health-justice partnership interdisciplinary student clinic interdisciplinary student health-justice clinic joint learning opportunities legal aid commission legal practice experience legal secondary consultation multidisciplinary multidisciplinary practice medical-legal partnership post-traumatic stress disorder restorative engagement conference restorative justice restorative practice secondary consultation social determinants of health solution-focused therapy

Introduction

What is this book about? There is an often-quoted extract from a case in the United Kingdom which states: ‘It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.i This text explores how, as a society, we might find ways of ensuring the people who are the most vulnerable, or have little voice, can avail themselves of the protection in law to improve their social, cultural, health and economic outcomes, as befits civilised society. Then, justice can not only be done, but can be seen to be done. Emerging practices and developments in Australia for how legal services, legal education and the legal system can better respond to community need are examined. The text shares some innovative approaches, demonstrated effective practice, changes in culture and practice approaches and the necessary skills and techniques to work in these new ways effectively. This text challenges traditional approaches to the practice of law and the way that legal institutions tackle problem-solving. Accordingly, it draws on sources broader than research alone and so requires tolerance from the reader where there may be generalities. The point of the text is to stimulate ideas for having a conversation about how we might improve and enhance the legal system’s responsiveness. Several royal commissions and legal autobiographies have noted the limitations and problems with traditional legal approaches, including first-hand compelling accounts of the operations of the legal system and victim experiences by Leeii, and the anonymous ‘secret barrister’.iii New lawyers need to be trained differently to ensure improved communication, ‘collaboration’, problem-solving, partnership and interpersonal skills. I aim for this text to open a dialogue that enables its readers to cast a critical eye over assumptions and blind adherence to traditions and practices. Some traditions and practices may be grounded in the ‘rule of law’ and human rights, but others may no longer be appropriate in achieving the core aims of justice. The suggestions offered here are based on many

2  Introduction years of research and practical experience of effective service delivery (see ‘Appendix 2 – author publications’ detailing my existing body of work). This text does not go over old ground but builds on these publications by suggesting new paradigms for the rule of law, the legal system and approaches to justice.

Who this book is for? The text examines some shortcomings of the law and my rationale for a new approach in order to better respond to community need. I aim for this text to be accessible to legal professionals, law students, the judiciary and non-legal professionals. I want members of the community, whom the law is there to serve, to pick it up and engage with the discussion, and to find it useful. I want law students and educators to feel it is not just another dull doctrinal text, but a book that they find relatable and relevant. My aim is for this text to be a useful resource for law students considering becoming legal professionals. It identifies educational opportunities that could better equip students for practicing law in a changing and challenging world, where interpersonal skills and collaboration will be critical for successful employment. It explores why law schools need to review their courses to incorporate communication skills and deepen other skills, such as cultural competency and trauma-informed practice. This text is relevant to students and practitioners in other academic disciplines. It examines ways to incorporate access to justice into their existing professional practice. It is relevant to not just Australia but to other ‘common law’ jurisdictions given the universal themes and lessons emerging.

What does this book contain? In Part I I use recent research, practice initiatives and related information to unpack ways for law students, legal educators and practitioners to enhance access to justice and promote positive outcomes. These include multidisciplinary practice (MDP) (including health-justice partnerships HJPs), integrated justice practice, restorative practice (RP), empowerment modes (community and professional development, and policy skills), client-­ centred approaches, collaborative and interdisciplinary practice; all shaped by practical experience and ethical standards. Each chapter in Part I concludes with a series of questions for readers to consider, and thereby stimulate further dialogue, creative ideas and critiques. The approaches in this text include developing service models in places where people are most likely to turn for help. Emerging research suggests that such approaches are reaching those who are excluded and that different ways of working are making inroads. Implementing these approaches further, however, is not easy. It involves assessing appropriateness and requires local knowledge and understanding of the complexity of human

Introduction 3 behaviour in context. Moreover, these new ways entail breaking with traditional modes of legal practice service delivery (discussed in Chapters 1 and 2) that have developed over centuries and can be inflexible, siloed and in some cases, no longer fit for purpose. Part II focuses on some of the skills necessary for these new approaches. It is more practical and activity-based for utility in legal education and professional development. This part contains critical information on what such practice might look like and how to tips to enact change. Part III looks to the ethical considerations raised by the focus on better law and the critical importance of ensuring an evidence base to practice and includes the actual impact and outcomes for clients and community. The overarching theme to this text is that the law (and the legal system it relies on) needs to be relevant, and the legal profession needs to develop a deeper understanding of the complexity of clients and their contexts and seek less adversarial modes of conflict resolution. This involves taking a broader and more holistic view of how the administration of the law affects people and plays out in society – in other words – making community need more central to the operation of the legal system.

Notes

i R v Sussex Justices, ex parte McCarthy (1924) 1 KB 256, (1923); All ER Rep 233 Gordon Hewart J (1870–1943). ii Lee (2018). iii Anonymous (2019).

Part I

The case for change – a need for innovation in the law, teaching and practice Part 1 draws on research, theories, models and emerging approaches. It examines firstly why the legal system and its practice is currently falling short. It provides some case studies and research on its problems and the negative impact and harm it can cause, especially for some sections of the community. It looks at why this has implications for the substantive effect on the ‘rule of law’. It then suggests there might be a shift in paradigm and proposes ways this might be undertaken. This part draws on many different areas of research and covers a large scope of professional legal practice, the operations of the law, clinic, multidisciplinary practices (MDP) and approaches, legal education and much else. It is a discussion that, for all its innovations and strengths, will require the academic reader’s toleration of generalities. I hope to open up a dialogue that will lead to the exploration of adaptations so to make a legal system more responsive to the community and lead to less harm but to create sustainable solutions.

1

Context and recent research

Recent public inquiries in Australia into child abuse, corruption and professional misconduct have altered the public conscience and conversation. Not only have they given prominence to the voice of victims but have also demonstrated some limitations of adversarial approaches in court proceedings. My research provides a voice for those who are rarely heard or asked. It reveals an inadequacy in legal education, court processes and lawyering styles, poor service responses to people’s problems and systemic barriers (including inadequate funding and siloed approaches by service providers). Rhodei has undertaken a study with similar concerns in the United States which, although a vastly different climate for the profession, has some similarities and also calls for improved legal education, more client centred and ethical practice, improvements to enhance access to justice and a move to more flexibility in practice. New ways of reaching out, including strategically solving systemic problems, need to be integral to the practice of law. We need to tackle legal problems at their source and prevent them from escalating to a revolving door experience within the court system. The critical role of problem-solving and policy reform was apparent in the conclusion of the 2014 Australian Government’s Productivity Commission Access to justice arrangements: Inquiry report where it stated that the improvement of problematic laws ought to be part of a lawyer’s remit.ii This identification is key, because if law is not responsive to community need and seen as relevant, then confidence in the legal system is undermined. Litigation has its place, as does the role of the court as arbiter. Both are critical in creating the legal precedents that forge standards for the future. But, as recent royal commissions and the research in this chapter reveal, the law can be deficient due to gaps in legal assistance services, and barriers that disincline people from pursuing their rights to the benefit of the law.

8  The case for change

Empirical research: the need to change approaches to law and lawyering The following discussion will examine research that suggests the legal system and legal practice is not accessible or responsive to sections of the community, and that there is a compelling need to change. Australian research There is little money available in Australia for empirical research into access to justice. Research studies are often on a small scale and not consistent across Australia, tending to focus on different services and programs because of the limited funding for nationwide research.iii Research is often only conducted when small amounts of money are available or with pro bono support. By comparison, the United Kingdom and other countries in Europe, New Zealand (NZ) and Canada have funded research and surveys routinely conducted and on a large scale.iv The Australian Government’s Productivity Commission in 2014 noted that: The inadequacies of present data collection efforts are widely acknowledged across all types of stakeholders. The commission has received numerous submissions from participants – including providers, government, and community organisations – which acknowledge the absence of consistent, policy-relevant data … Inconsistent data also frustrate benchmarking and make it difficult to understand interactions within the civil justice system.v The empirical research we have, alongside inquiries, conducted in the United Kingdom, Canada and Australia (2001–2014) reveal that the most excluded members of society are likely to have multiple and cascading legal problems and struggle to access legal help.vi Studies show these people are least likely (only 16%) to gain access to legal assistance for problems that are capable of a legal remedy, like debt, poor housing, discrimination, consumer issues and access to essential services for survival.vii In addition, numerous reviews, royal commissions and other inquiries in Australia, show a system unable to meet community expectation. This research has revealed that vulnerable and disadvantaged clients with unresolved legal problems may in fact turn to health, social and allied-health professionals for help.viii The research tells us that these unresolved legal problems can lead to poor health and social outcomes.ix This can occur if clients’ legal problems remain unidentified; services are expensive or hard to navigate; opportunities for reaching people at locations where they are likely to turn for help are missed or non-legal and legal services are not cognisant of ways the law might help to resolve related problems.x In addition, key research findings

Context and recent research 9 in several of my studies conducted in Australia show that poor previous experiences with lawyers and the legal system have been a deterrent for people seeking help.xi More recent research, however, gives hope.xii The first and most significant Legal Australia-wide Survey (Law Survey) was conducted by the Law and Justice Foundation of New South Wales in 2008, commissioned by National Legal Aid. In the Law Survey, legal problems were categorised into 12 broad problem groups: accidents, consumer, credit/debt, crime, employment, family, government, health, housing, money, personal injury and rights. The main findings were similar across jurisdictions and the study reported the following key findings and conclusions: 1 Legal problems are widespread and often have adverse impacts on many life circumstances. 2 Some people, most notably disadvantaged people, are particularly vulnerable to legal problems, including substantial and multiple legal problems with a sizeable proportion of people taking no action to resolve their legal problems. 3 [Consequently, many of those who do not seek advice achieve poor outcomes.] Most people who seek advice do not consult legal advisers and resolve their legal problems outside the formal justice system [which can in some cases exacerbate or compound problems]. 4 The co-occurrence or clustering of certain legal problem groups suggests that these types of legal problems may be meaningfully connected. 5 Some demographic groups have increased vulnerability to legal problems, while others are more resilient. 6 Many disadvantaged or socially excluded groups were particularly vulnerable to legal problems. They were not only more likely to experience legal problems overall, but also had increased vulnerability to substantial legal problems and multiple legal problems. 7 Legal problems often have considerable adverse impacts on a broad range of life circumstances, including health, financial and social circumstances. Just over half of the respondents with legal problems (55%) in Australia as a whole had a ‘substantial’ legal problem that had a ‘severe’ or ‘moderate’ impact on everyday life. 8 Respondents often reported multiple reasons for ignoring legal problems. In many cases, failure to take action was due to poor legal knowledge, other personal constraints or possible systemic constraints. 9 In Australia as a whole, cost was the most common barrier to obtaining help from legal advisers (23%). 10 Disadvantaged groups had significantly lower levels of finalisation. [This includes Aboriginal and Torres Strait Islander people], people with a disability, people with low levels of education, single parents, people living in disadvantaged housing, people whose main source of income was government payments and people with a non-English main language.

10  The case for change 11 In some cases, people appear to have poor legal knowledge and poor legal capability, with some people leaving their legal problems unresolved. 12 Disadvantaged groups not only have non-legal needs by virtue of their socioeconomic status, but also are particularly vulnerable to a wide range of severe legal problems and are more likely to struggle with the problems they face. 13 Given that legal needs are often interconnected with non-legal needs, [there is a need for more holistic approaches to justice. These could] provide integrated and multifaceted service delivery across both legal and non-legal services in all jurisdictions, and integrated service delivery across legal and broader human services is critical. 14 Non-legal professionals could be more formally trained and equipped to identify legal problems and to more systematically provide timely referral to legal information and advice services. 15 Fragmentation across legal and non-legal services, across government sectors and across state/territory and federal governments.xiii Overview of my research since the Law Survey In the final stages of writing this text, a new empirical study in Victoria (Australia) was released, further highlighting problems people are experiencing with the legal system and interacting with lawyer.xiv I have conducted many small research studies in Australia over the past two decades, particularly since the Law Survey. In some cases, the Law Survey findings and suggestions have shaped service delivery in the programs that I was evaluating, which is encouraging. These research studies build on the findings of the Law Survey but on a much smaller scale, as this independent research was often underfunded or not funded at all. This research, which has helped in identifying and understanding barriers to effective service and shown what integrated and multifaceted service delivery looks like, has informed, shaped and sets the argument for this text. Participants in my empirical research in Australia had previously experienced the legal profession in an adversarial setting, either as a witness under cross-examination or had poor experiences of lawyers in their personal lives. This chapter outlines some of the conclusions emerging from my studies. The 10 research studies I have undertaken since 2011 used similar methodologies, within a framework of reflective practice (see Chapter 14).xv In each case, these methodologies may have been refined or shaped to reflect the specific aims, objectives and client needs of the particular project.xvi Three of these studies were limited to desktop research. Nevertheless, although not Australia-wide, the tools and questions used in these studies are consistent enough to draw some common findings.

Context and recent research 11 My research revealed that community lawyers are accustomed to working in community settings and are often easier to work with than lawyers in some private/legal aid practices, which operate as businesses where time is money. Common themes emerging through multiple studies included clients reporting poor lawyer interpersonal skills; feeling ‘judged’, ‘not listened to’ and ‘not respected’. They reported having poor understanding of their legal issues because too much ‘legal jargon’ was used and they were ‘not being told clearly what was happening’ by their lawyers. Questioning non-legal professionals, such as family counsellors, doctors, nurses, social workers, psychologists and financial counsellors about their previous experiences with lawyers and the legal system revealed similar perceptions. They felt they had received short shrift as they were rushed, ignored or the focus was on court outcomes rather than client outcomes. Impacts of delays and complex court processes were seen as overwhelming with potential to re-traumatise clients. This clashed with non-legal professionals’ concerns about health and allied-health matters. Social service agencies were reticent to refer clients to legal services due to their own duty of care to not re-traumatise clients on the road to recovery. The research data reveals miscommunication and abrupt treatment consequently coloured non-legal professionals’ views and trust in the legal profession. By contrast, in recent studies involving lawyers working in effective integrated justice and multidisciplinary practices (MDPs), about 98% of clients or their support workers indicated they would not previously have sought help for the legal problem were it not for being linked up with the non-­legal professionals in a trusted setting. Again, in about 88% of all the cases studied, clients had not one but multiple legal issues, and in many cases the clients had not previously sought help. Reasons were cost, access or lack of awareness of the problem as being legal. In a large number of the interviews, it was previous experiences (had by clients or their family members) with the legal system or with lawyers that made people reticent to seek legal help. Surprisingly, this was not limited to the community members but was also the perspective of the non-legal professionals who were reluctant to refer clients for fear of re-traumatising them. The following quotes are from my interviews with non-legal professionals in various studies: I honestly believe that we really, really do need legal here. The reluctance from community to get advice is because they think that the lawyer will charge. I’ve been called into the police station with an Aboriginal person and they needed a support person on a Sunday night. Legal jargon needs to be toned down with Aboriginal people. It gets to a point where people are asking me. Our people will not ask, or question and our people will be thinking ‘what?’. Being a lawyer can be a barrier. It is one of those hurdles because it is the title and it is what the title represents in terms of the legal system, and

12  The case for change if you take that a step further in terms of transgenerational trauma … there is fear around that stuff. They hear about Stolen Generation from their aunties and parents and stories about the government. One of our Elders in this community is one of the Stolen Generation and her story is in a film and it was played in a film here recently at Sorry Day. That is where the trauma is experienced because it is a lived experience. People hear from those people all the time, so it is not a dead thing, it is very much alive. Lawyers are being the legal system. Our families see the second round of Stolen Generation as being child protection.xvii Sometimes clients will not turn to a lawyer on their own and so they value the fact we can be there to support them and talk to the lawyer when they might not be ready to do so.xviii By contrast, in more client centred, multidisciplinary (MD) service delivery contexts, participants reported a shift away from poor experiences of lawyers and the legal system: The kids now have a different perception of what lawyers can be. A lot of them have dealt with lawyers before in courts and in the past, it has always been very negative, even with child protection … [Our multidisciplinary service] has changed their perception so that [they feel] lawyers are to help and not to hinder. Especially the kids that have had constant dealings with the law. One of our young mothers is now very open to coming and talking to [lawyer two], even if it is not a law issue [all child protection stuff]. The boy with the fines said, ‘I didn’t know lawyers were like that’. It is nice to feel like you are in a team environment where you can get help, not just a silo trying to deal with these issues on your own to shoulder the responsibility and to have that support. Especially if you have young people who have experienced domestic violence, then the legal system is a trigger. It is about taking their hand and leading them rather than dumping them on the doorstep and saying, ‘here’s the lawyer, we will walk out now’. Facilitating the conversation, like if my drug and alcohol worker comes, then they can facilitate that conversation with the lawyer as well.xix As community agencies we do not have access to lawyers for this sort of advice nor do our clients so it is reaching many more people who otherwise would not get legal help on how to access their rights. These companies and the perpetrators of violence use their power to manipulate and exploit the vulnerable and so being able to quickly make a call get a timely response is critical to safety, housing and calling them to account.xx The following key points are drawn from a study, Why Didn’t You Ask? (WDYA), on family violence (FV) and experiences in the legal system of

Context and recent research 13 victims.xxi The collaborative survey data for this study was provided to me by Loddon Campaspe Community Legal Centre (LCCLC) as de-identified raw data to aid my evaluation report of the WDYA service delivery component of the WDYA study. The LCCLC survey received 118 responses (40% from legal participants and 60% from non-legal professionals, such as doctors, nurses, allied health and community and social work professions). The conclusions of my evaluation of the data in the report presented the range of feedback (not all of it negative) from the collaborative survey data, including these concerns about lawyers: • • • • • •

not making time for, or hearing, the client and speaking in unclear language not respecting the role and skills of the support worker the need for increased client respect and sensitivity to cultural needs not understanding of the complexities of family violence not supporting clients to exercise their rights not understanding support services, and mutual respect of each other’s complementary role.xxii

Comments from client participants in the WDYA study on their experience of the legal system in their attempts to seek FV orders through the legal process included: The courts need to stop burying their heads in the sand, hoping that this epidemic of family violence will go away. We went in there as complete amateurs, knew nothing about the system, knew nothing about anything and that’s what it is been like all the way through. We just clawed our way through in the dark. Now after what I went through to get the intervention order in place, I understand why women drop their intervention orders all the time. A number of times I thought this is crap, what is the point, just drop it. Women need to have their rights heard. Hopefully this research will help that. If enough women put their hand up and said ‘Hey, we should be heard and we should have our rights listened to’, then something might happen. At court I was totally crapping myself to be honest I knew he would have been angry because his guns and everything got taken off him. I knew he’d be angry, I was freaked out, I didn’t know what was happening. I do not think anyone would want to take a day out of their life to stand in front of court and expose all your privacy to complete random strangers for starters really … there is people you do not know in that court room and the judge gets up says their bit and you are exposed somewhat that’s the first thing. I have got some pride and dignity that’s not my way of life. And thirdly a small town and people peek in when they are driving past. It is the whole thing. Degrading, I guess.

14  The case for change One stop like when you go to a doctor. It should be that within the legal system now because people do not have the time, money or resources to be travelling from say here to DHS [Department of Human Services] on this side of town to here to the police station on that side of town, to other family services and then to a welfare support.xxiii International research This Australian research resonates with some studies overseas. In 2009, Shultz and Zedeck xxiv examined the qualities that make an effective lawyer (in the United States), where some shortcomings were noted and a need for change in legal education was a part of their discourse. In another study from the United States, Cunningham xxv indicates that clients are not happy with lawyer approaches in some of the larger firms. Some results include: 21% failure to keep client adequately informed 15% lack of client focus: failure to listen, non-responsiveness, arrogance 10% making decisions without client authorisation or awareness 7% failure to give clear, direct advice 53% total.xxvi Sanderfurxxvii has also written (in the United States) on the reasons for a new model for lawyering based on her research over many years. She asserts the crucial difference between a legal need and a justice problem, observing that many people really need a just resolution and that sometimes this may or not involve lawyers. She also notes that when a system is broken the solution is systemic reform (see Chapter 12). Sanderfur further notes that technocratic resistance to change, too much time spent in court handling copious amounts of paperwork, delays, cost and difficulties in getting to the heart of the issue – if help is sought at all – are all problematic for clients in seeking help and having problems resolved. She concludes that law and lawyers can be self-serving and that what may be needed is sharing the quest to solve problems with other disciplines and a shift in lawyer understanding to address access to justice.xxviii

Conclusion These studies provide compelling indicators of a need for new approaches to the law, lawyering, legal education and professional development of lawyers. These approaches include breaking down silos, providing non-­ adversarial opportunities to avert re-traumatisation and finding better ways of reaching and responding to clients and community need. These elements will be explored in later chapters.

Context and recent research 15

Questions for discussion 1 Were you aware of the research that clients’ legal problems remain unidentified; services are expensive or hard to navigate; opportunities for reaching people at locations where they are likely to turn for help are missed; or non-legal and legal services are not cognisant of ways the law might help to resolve related problems? 2 What are your reactions to some of the participants’ comments that they felt they had received short shrift as they were rushed, ignored or the focus was on court outcomes rather than client outcomes? 3 What are some of the factors that might lead to such a perception? 4 How might the legal profession address client access to legal help, miscommunication and abrupt treatment that can colour non-legal professionals’ views and build trust in the legal profession? 5 What is you view of Sandefur’s conclusion that law and lawyers can be self-serving and that what may be needed is sharing the quest to solve problems with other disciplines and a shift in lawyer understanding to address access to justice? 6 Do you agree with the Productivity Commission that the improvement of problematic laws ought to be part of a lawyer’s remit? Why or why not?

Notes i Rhode (2001), 1807, 1816. ii Australian Government Productivity Commission (2014a, 2014b), 62. iii Ibid. 71, 72. iv Europe: OECD (2015); Canada: CFCJ (2006); NZ: Currie (2007); Ignite Research (2006); UK: Dignan (2006); Genn, Paterson (2001); OECD (2019); Pleasence & Balmer et al. (2004b), Pleasence & Blamer et al. (2007); Pleasence, Balmer, Patel, Denvir (2010). v Australian Government Productivity Commission (2014c), 890–901. CC-BY3.0-AU licence. vi Genn & Beinart et al. (1999); Moorhead, Robinson, Matrix Research and Consultancy (2006); Pleasence, Balmer (2018); Pleasence & Balmer et al. (2004b); Pleasence, Balmer, Patel, Denvir (2010). vii Coumarelos & MacCourt et al. (2012). viii Pleasence & Coumarelos et al. (2015) ix Pleasence & Balmer et al. (2004a), 552–7; Balmer, Pleasence, Buck, Walker (2006). x Balmer, Pleasence, Buck, Walker (2019); Buck, Curran (2009); Clarke, Forell (2007); Coumarelos, Wei (2009); Pleasence & Balmer et al. (2004a). xi Curran (2015b, 2017c); Curran, Taylor-Barnett (2018); Sanderson, Edwards, Williams, Curran (2017). xii Curran (2017a); Curran, Taylor-Barnett (2019); IMCL (2018). xiii Coumarelos & MacCourt et al. (2012), xiv–xv. xiv Balmer, Pleasence, Hagland, McRae (2019). xv Ball, Wong, Curran. (2016); Curran (2012, 2013, 2015a, 2015b, 2017c, 2017e, 2017d, 2020); Curran, Taylor-Barnett (2018); Sanderson, Edwards, Williams, Curran (2017); Willcox, Williams, Curran (2016).

16  The case for change xvi Curran, Taylor-Barnett (2019), 22−38. xvii Curran, Taylor-Barnett (2018), 38, 36, 33. xviii Curran (2017c), 34. xix Curran, Taylor-Barnett (2018), 77, 36, 34. xx Curran (2020), 20. xxi Neilson, Renou (2015). xxii Curran (2015b), 66–7. xxiii Neilson, Renou (2015), 125, 15, 17, 19, 68, 70, 59. xxiv Shultz, Zedeck (2009). xxv Cunningham (2013). xxvi Ibid. xxvii Sandefur (2019), 51. xxviii Ibid. 54.

2

Adversarial approaches, problems and a need to do law differently

The Australian Government’s Productivity Commission has identified problems with the adversarial system stating: The ways in which parties interact with each other and with courts and tribunals also needs to change. The adversarial behaviour of parties and their lawyers can hinder the resolution of disputes or even exacerbate them.i

Case studies This chapter examines through a case study approach, some recent royal commissions in Australia, the family court, and cases dealing with sexual abuse by the Catholic Church. Each example highlights the problems for complainants and other parties within the adversarial system. In this system, historic decisions made by higher courts form precedents that bind the lower courts. It relies on advocates presenting the case with judicial determination based on the evidence and arguments presented. The approach tends to produce winners and losers. Aggressive tactics are sometimes needlessly deployed, which impact on people long after the case is finalised (discussed later in this chapter). By contrast, in inquisitorial legal systems, judicial officers make inquiries and investigations to discover the truth of the situation and have more freedom to make decisions on a case-by-case basis, but in line with the laws and after facts have been investigated. A number of royal commissions in Australia, the Productivity Commission’s Inquiry into Access to Justice Arrangements, and the Law Council of Australia’s Justice Project have highlighted the ‘trauma and harm’ caused to children and adults by the adversarial system.ii These investigations have raised a range of issues including the negative impacts of court delay and imposts caused by some lawyers driving up costs and being unprepared; processes that inflame conflict and increase or create animosity; and overly cumbersome, un-navigable bureaucratic requirements and fees. This has been acknowledged by the Organisation for Economic

18  The case for change Co-operation and Development (OECD) as a phenomenon, which is not unique to Australia. It states: There is growing evidence that the public often cannot afford to resolve their legal problems through the formal processes in courts across many countries. Although there is no single methodological approach to measuring costs of access to justice (for example, court and lawyer fees, opportunity cost) borne by citizens, the costs of accessing legal and justice services are also linked to different legal and justice needs and hence respective paths to justice.iii The Productivity Commission’s Inquiry reportiv in Table 2.1 shows a summary of key problems with the adversarial approach in Australia. The resistance to many such reforms, such as those recommended next, is discussed in Chapter 3. Case study 2.1: Australian royal commissions Royal commission into family violence The Royal Commission into Family Violence (RCFV) (Vic) produced its final report in 2016 containing 227 recommendations to improve the family violence (FV) system.vi Almost 1000 submissions were received, many from people struggling to navigate courts, describing poor experiences of police and the adversarial system causing harm.vii The final report noted: Many court users and court-based professionals and services expressed concern about the complexity of applying for an intervention order, access to court-based services, court safety, delays before and between hearings (which sometimes led to serious risks to the applicant’s safety and wellbeing), unevenness in magistrates’ understanding of family violence, and consistency of procedures and outcomes in the courts. To take us forward, we need to hear from voices with ideas for change and with ideas for solutions. These might be different voices from those that have gone before. Soiling can reduce the effectiveness of each service or make some services totally ineffective. Our recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence. The current arrangements need to be reformed. The different pathways that victims, children and perpetrators follow should be brought

Adversarial approaches 19 Table 2.1  Key problems with the adversarial approach: summary of the Productivity Commission’s main proposalsv Current problem

Proposed reform

Main benefits of change

The system is adversarial, so there is little incentive to cooperate Overarching obligations Statutory obligations should on parties and targeted be placed on parties and pre-action protocols will enforced to facilitate just, quick and cheap resolution of potentially reduce the costs and time disputes. Targeted pre-action associated with some protocols may also assist. litigation processes. (12.1–2)* Parties will have greater Parties have little control Lower-tier Courts should certainty about their award costs based on fixed over the amount of potential cost liability scales. Higher-tier Courts activity undertaken by and have more should further explore the their opponent and information on which to introduction of processes for little ability to predict base their litigation cost management and potential liability for decisions. capping. (13.2–3) costs. Adversarial conduct works against the timely and effective resolution of disputes in Courts and tribunals.

Not all parties are on an equal footing These initiatives will Some parties, including Courts and tribunals should further develop plain language make the justice system many self-represented easier to use by reducing forms and guides, assist litigants, do not complexity and giving self-represented parties to understand the understand time-critical events parties a clearer processes involved in understanding of the and assess whether their case undertaking legal process. management practices could action and appearing in a Court or tribunal. be modified to make selfrepresentation easier. (14.1) Consistent rules and guidelines Self-represented litigants Self-represented are needed to give judges and will be better supported litigants can be in the Court and Court staff the confidence to disadvantaged in tribunal systems. Clear assist self-represented certain circumstances guidelines and rules litigants, while remaining and would benefit would make case impartial. Clearer rules on from further management more when non-lawyers can assist assistance. responsive. are also required. (14.2–3) * Figures in brackets refer to the recommendation numbers. Source: Australian Government Productivity Commission (2014c) Access to justice arrangements. Inquiry report: Overview, no. 72, 5 September 2014, Australian Government, 36–7, https://www.pc.gov.au/inquiries/completed/access-justice/report/access-justice-overview.pdf. CCBY-3.0-AU licence.

together, so that the system as a whole is characterised by a much stronger eye on the perpetrator, a clearer focus on the needs of children, greater attention to the needs of the adult victim, and a simpler means for families – in all their forms – to obtain the help they need, when they need it.viii

20  The case for change The report also made the recommendation for more specialist FV courts with fully integrated services. It called for robust safeguards but recommended restorative practice (RP) for victims who wish to pursue it, and in consultation with them.ix Royal commission into the protection and detention of children in the Northern Territory The Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) report revealed ‘systemic and shocking failure’.x The inquiry was triggered by a report on the ABC’s 4 Corners television program that included video footage of an Aboriginal child being thrown across a room, pinned to the ground, stripped naked and strapped to a chair with a hood over their head.xi Some key extracts from the royal commission report include: The systemic failures occurred over many years and were ignored at the highest levels [and tended to mistreat/target Indigenous children.] The procedures and requirements of the law have simply not been followed in many instances. The systems failed to comply with the basic binding human rights standards in the treatment of children and young people. Government policies and procedures were ignored, systems designed for adults were inappropriately applied to youth, or they simply did not exist. Laws were repeatedly breached. Policies were non-existent or ignored. Mistreatment and misconduct were allowed to occur because oversight systems were weak and management failed to act effectively once presented with the warnings.xii During the relevant period, there were inadequate, or, at times, no support services attached to the Court that were funded by the government, such as case managers, liaison officers, Aboriginal advisers or Aboriginal language interpreters to facilitate the administration of justice by the Youth Justice Court.xiii The conclusions highlight the deficiencies in the law and its administration. Royal commission into institutional responses to child sexual abuse The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) produced its final report on 15 December 2017.xiv Key extracts from the report include: Some jurisdictions have an ‘inquisitorial’ system of criminal justice, where the prosecution and, in some cases, the judge participate in the investigation and evidence-gathering stages of the case.

Adversarial approaches 21 We also understand why, from the perspective of a survivor who is giving evidence as the complainant or another witness in a trial for child sexual abuse offences, the system could be seen to be a ‘conspiratorial system’, where the judge and the lawyers – and the accused – know what is going on, but the witness – and the jury – do not.xv The commission notes that the criminal justice system is often seen as not being effective in responding to child sexual abuse cases, and conviction rates are low when compared to other crimes, calling for evidence-based early interventions.xvi Similar royal commissions are underway in New Zealand and the United Kingdom and so their findings may also be highly relevant when handed down.xvii Royal commission into misconduct in the banking, superannuation and financial services industry I have chosen to discuss the Royal Commission into Misconduct in the Banking, Superannuation and Financial Industry (Royal Commission into Financial Services) (2018) for different reasons to the previous three. This commission received 10,323 submissions from across Australia. In evidence, the commission heard that consumers were ‘out of the loop’ and left with no money for litigation, often due to the poor practices uncovered throughout the commission’s hearings. Consumers were ‘bamboozled’, ‘lied to’, and ‘misled’ with clear misconduct on the part of the financial services industry. In the Round 6 hearings where the actual victims of the misconduct were heard, poor practices emerged as endemic from the highest levels of the finance industry down to the front-line.xviii The closing remarks from Counsel Assisting summarise these case studies.xix The Consumer Action Law Centre’s (Consumer Action) written submission provides an account of a bank’s dealings with a person with an intellectual disability: 25. Despite knowledge of Mr Stewart’s son’s limited capacity, the same sales representative contacted him again and proceeded with the sale. During this subsequent phone call, the sales representative employed unfair sales practices, including collecting bank account and other information before seeking agreement to purchase the policy, and continuing despite the difficulty Mr Stewart’s son was having following the conversation and his specific request to end the call. In internal documents, the Chief Operating Officer admitted, ‘The call is a bit of a shocker’ and the Head of Sales responded, ‘I felt sorry for the poor customer throughout the call.’ Freedom agreed that it was ‘deeply troubling conduct’ and that the sales representative should not have sold Mr Stewart’s son the policy …

22  The case for change 26. We submit that these internal reactions to the conduct reflect those of the community and support the view that this conduct was unfair, unreasonable and fell significantly short of community standards of decency and fair dealing.xx The regulators were seen to be reticent to use the penalties available under law under Schedule 2 of the Competition and Consumer Act 2010 (Cwlth) (Australian Consumer Law), National Consumer Credit Protection Act 2009 (Cwlth), the National Credit Code (Schedule 1 of the Act) and the National Consumer Credit Protection Regulations 2010. The evidence revealed impediments to people who did not manage to access courts for remedies due to being unaware of the laws, high cost and poor navigability of the system. Disappointingly in the end, many of the recommendations tend to limit consumers to traditional litigation options. This royal commission is included here, not because the recommendations and findings highlighted problems with the adversarial system or proffered new ways of providing a solution, but because legalistic responses were proffered as the substantive means for prevention and redress. This is despite evidence before the commission of failings of the traditional legal remedies through the courts and regulators not enforcing legal consequences available under the relevant laws. Issues that created poor practice were left to the industry to self-regulate, despite that very industry being behind many of the poor practices. For example, charging fees for services not rendered to clients and, moreover, encouraging employees with inducements, commissions and other irresponsible activities.xxi Non-traditional legal approaches were largely unexplored in the recommendations, even though these were suggested as a way of future proofing the protection of consumers. Although the Australian Government has promised more resources for financial counselling, the deeper causes and prevention suggestions in many of the submissions have been largely ignored. Rather than consider more creative options for consumers, in general, a ‘black-letter law’ and legalistic approach emerges – even though these ‘legal mechanisms’ had been found to be deficient in the testimony and evidence given to the commission.xxii Case study 2.2: The adversarial family court system and alternatives Given the importance of family (in all its shapes and sizes) in our community, the family law system is worthy of discussion. Family law matters are currently dealt with in an adversarial context in Australia, the United Kingdom, Canada and many other jurisdictions. Although some alternative dispute resolution (ADR) processes exist as adjuncts to family court proceedings, family law is still centred on an adversarial system.

Adversarial approaches 23 In the United Kingdom, family law cases are heard in County Courts and family proceedings courts (Magistrates Court) under the Family Procedure Rules.xxiii A specialist division of the High Court of Justice, the Family Division, hears family law cases. Due process in family court proceedings in the United Kingdom requires procedural fairness with judges as gatekeepers. However, there can be a lack of clarity or guidance in how to use broader social sciences evidence.xxiv In Canada, family law sits in the federal court system, with some overlap in the provinces. The provincial courts under the Family Law Act deal with issues relating to parenting and the care of children, child support, spousal support and protection orders. The Supreme Court has the authority to deal with these issues with only the Supreme Court being able to make an order for divorce, make other orders under the Divorce Act or make orders about the division of family property and family debts.xxv In Australia, currently the family court is in the federal system and is governed by the Family Law Act 1975 (Cwlth). In Australia, the United Kingdom and Canada, allegations are made and tested through evidentiary mechanisms in court cases. Similar to the United Kingdom and Canada, family law commentary in Australia identifies the adversarial setting as problematic and an unhelpful setting for safe resolution.xxvi This point is illustrated by a comment made to me by a non-legal party to family law proceedings. She described the process as ‘over the top’. While no system of resolving disputes is going to be able to consistently deliver ideal outcomes, realistically, we can only aspire to design processes that offer the best chance of taking account of legitimate, but sometimes divergent, interests and delivering optimal outcomes in what can often be an enduring conflictual environment. Sometimes, the adversarial nature of the system and its politicisation leaves the parties, including the children, living with less than ideal outcomes.xxvii The process that the parties have to go through to get to the determination is highly problematic in its current adversarial form. It can be counterproductive on a number of levels, as this discussion will explore. In Australia, the Australian Law Reform Commission (ALRC) has estimated that 70% of cases that reach the family court involve FV towards women and children, and that cases take many years to resolve.xxviii Women who have experienced FV are less likely to get their fair share of joint assets.xxix Fear and the possibility of further conflict can lead the party who is under attack to avoid conflict; finalising matters as quickly as possible, resulting in sacrificing their own interests.xxx For example, reforms to the family law system in 2004 and 2006 led to a disincentive for women experiencing FV to disclose their situation.xxxi There are compelling imperatives to look beyond adversarial court mechanisms given the highly emotional and sometimes volatile nature of family law. Despite efforts in the past decade by the family court to facilitate the involvement of children in court proceedings and mediation

24  The case for change processes, with a child in focus approach to lawyering and court engagement, the system is far from perfect and does not quarantine children from the combat.xxxii Calls from academics for more research and child-centred practice enabling children’s voices to be heard have highlighted deficiencies in current approaches which can ignore children in the process.xxxiii The high court has, on occasion, thwarted efforts by lower court judges to reduce the adversarial effects on children.xxxiv Reforms over time have been political in nature leaving a patchwork and risky system. Repeated claims often made by fathers’ groups that child abuse allegations are unfounded, have been found to be overstated, yet have currency in media reports and by those who have clear partiality.xxxv Giving in to aggrieved fathers’ rights groups by politicians without examination of the evidence base behind them has seen reduction in protection for violence and abuse and can take the focus away from the best interests of the child.xxxvi Only an estimated five percent of matters proceed to family law trial. Games occur with parties keen to get even or seek revenge with the use of the adversarial system as a tool to assert power and control over the other party. Complex issues around drug addiction, mental illness and alcoholism can also add complexity to these cases.xxxvii The hiding of assets creates delays. Also, one party with more financial resources can seek to exhaust the finances of the other by refusing to abide by court ordered timelines or directions. Belligerent parties, and sometimes even lawyers, fuel animosity and drive up legal costs. This leads to elevated levels of uncertainty, stress, conflict and disillusionment.xxxviii Parkinson has argued that: The family court, in dealing with questions of sexual abuse, constantly needs the wisdom of Solomon. It’s task is made more complex, rather than simpler, in which the law and lawyers go about the task of determining whether something is, or is not, a fact.xxxix My view is that the family law system should focus on the protection of children and their wellbeing, and the repairing of harm so as to enable focused parenting. Yet the combative nature of the adversarial setting thwarts this. There has been a push by government and politicians to streamline court processes and limit the role of lawyers often with little consultation.xl This is not a solution. People still need to know their legal rights and feel empowered to make informed choices. Lawyers have a role in client reassurance, advice and proffering practical action/solutions, in addition to legal advice.xli Lawyers have a critical role in conciliating, especially where there are power imbalances, as Hunter’sxlii research demonstrates. What emerges from the studies and practice experience is that an adversarial setting is poorly suited to family law and can be unhelpful, if not counter-productive in some cases.

Adversarial approaches 25 Suggestions Batagolxliii sees the critical value of legal advice in family mediation to provide a protective safety net for vulnerable parties forced to negotiate in family dispute resolution. As she highlights, the lack of clear and consistent legal advice heightens uncertainty in family mediation. I am not advocating for non-adversarial approaches that are moved away from the scrutiny of courts and processes, but I agree that there is a need for greater ‘collaboration’ between family dispute resolution practitioners and family lawyers.xliv I would add the skills outlined in Part 2 of this text are also required. A collaborative approach demands a more sophisticated non-adversarial view of how family lawyers operate or can operate as an alternative to negative adversarial stereotypes that the adversarial system lends itself to. Batagol notes: The lawyer in the fomenter of strife archetype is a manifestation of all that is wrong with the adversarial legal system with its competitiveness, legalism, inefficiency and expense, whereas the gladiatorial champion represents some of the few beneficial aspects of having a strong advocate.xlv Batagol concedes that the views of family lawyers being aggressive and inflaming conflict exist in stereotypes rather than in practice.xlvi Already lawyers are changing their practice and adherence to the Best Practice Guidelines for Lawyers Doing Family Law Work is more commonplace. The guidelines state: 1 A constructive and conciliatory approach to the resolution of family disputes. 2 The minimisation of any risks to separating couples and/or children by: i alerting separating couples to treat safety as a primary concern ii avoiding arguments in front of children, and iii keeping children out of conflicts arising between separating couples. 3 Having regard to the interests and protection of children and encouraging long-term family relationships. 4 The narrowing of the issues in dispute and the effective and timely resolution of disputes. 5 Ensuring that costs are not unreasonably incurred.xlvii Efforts have been made in Australia to improve family law outcomes, such as the rise of collaborative lawyering, where lawyers work in a non-­ adversarial capacity to negotiate with the parties to achieve settlement,xlviii and family dispute resolution in legal aid commissions (LAC). These family

26  The case for change dispute resolution services are free offerings for applicants who meet the criteria. A case manager helps prepare the parties for the conference by asking them child-focused questions and requesting them to focus on future arrangements, rather than past conflict. A qualified family dispute resolution practitioner (chairperson) facilitates the conference and has authority to issue a section 601 certificate under the Family Law Act 1975 (Cwlth). However, if these services are unsuccessful, the matter reverts to the adversarial system. Recently, the ALRC had a reference from the Commonwealth Attorney General to examine family law options.xlix Like the findings into the Royal Commission into Financial Services, the ALRC has adopted a narrow legalistic position in relation to reform, consequently avoiding the problems inherent in having family law determinations in the adversarial setting. The ALRC found FV and allegations of child abuse, or other complex factors, now make up the majority of cases and that children fall through the gaps between the family law courts, child protection and FV systems. The main recommendations of the ALRC were that family law disputes be returned to the states and territories and that the federal family courts eventually be abolished. One key reason was that child protection is also within the remit of state jurisdictions and that this made it difficult for the federal family courts to investigate claims of child abuse. My view is that these recommendations skirt around the core problems inherent in the adversarial system.l New approaches to address emotion, harm and conflict in family law Where matters get to court and are not resolved through consent orders or ADR, other ways of testing evidence might not require adversarial gladiatorial contexts. These can place married or de facto couples, mothers or fathers and children in further conflict, or create a sense of conflict where there need not be any. Unrecognised in much commentary is that, where conflict is heightened, the risk of making wrong decisions increases. Long after the lawyers, mediators, psychologists and judges have exited the case, the families are left to manage flawed outcomes. Children should be more involved in decisions affecting them and one way of achieving this to encourage more professional training on ways to involve children in decision-making. Maloney and McIntosh note: For the children of parents in high conflict, post-separation disputes represent a crisis – a time of ‘dangerous opportunity’. For professionals dealing with adult anger and manipulation on a daily basis, it is not easy to relate continually, either to the danger or to the opportunity that exists for each child. For this reason, child focused and child-inclusive work with separating parents requires skill, mindfulness, clarity of purpose, and ongoing support. But ongoing support needs to be backed up not just by aspirational statements or even clinical experience, but by evidence.li

Adversarial approaches 27 The judiciary could also play a role in case managing by supervising conduct; re-focusing cases to interests and implications for children and sustainable relationships; conducting respectful dialogue processes in testing of evidence; moderating inappropriate conduct both of lawyers and parties and following up where conduct is poor, repeated and in breach of ethical conduct guidelines. My suggestion here is that the judiciary move from a role of being merely listener, to setting a respectful standard in their court. This would create an atmosphere less about blame and more about fact finding; its problem and solution focused. Mindful of emotion and passion and the unhelpful role that revenge and reprisal can play in contested matters, judiciary’s direction in the way they preside in family law matters could minimise the combative conduct. In a 2003 submission to the House of Representatives’ Inquiry into Joint Custody Arrangements in the Event of Family Separation, the family court suggested that: … a significantly less adversarial process would facilitate the most appropriate solution to parenting proceedings based on the best interests of the child rather than considering changes to the substantive law.lii Easteal and Grey have examined a range of cases in the family law context and again suggest that better training might lead to evidence gathering and testing that is less adversarial: Engendering discussion amongst judicial officers about subjectively held definitions of harm and risk might help to bring about practical changes in outcomes for children. It is likely that there is variation in understanding of the realities of family violence.liii Domestic Violence Victoria (DVV) has made considered and helpful suggestions regarding the need for new approaches. They seek an exploration of the inquisitorial approach with a deep revision of how family law problems are resolved. In their submission to the ALRC, they note where parties are either unrepresented or unequally represented (which is increasingly the case given the lack of legal aid funding): … the adversarial model used in the current family law system is one of the most significant barriers to access and engagement for survivors of family violence. The adversarial model replicates the power imbalance of family violence and colludes in the coercion and control of women experiencing family violence … believes that the combination of a suitably resourced inquisitorial model, funded legal representation where required, and a holistic case management service providing specialised non-legal family violence support would enable substantial improvements in the family law experience for all parties … Importantly, an inquisitorial model would remove the opportunity for survivors of family

28  The case for change violence to be directly cross-examined by self-represented and violent former partners, or [for a survivor] to have to directly cross-examine him herself … greater information sharing and collaboration between legal and non-legal supports for women and children who are experiencing family violence and going through family law proceedings.liv DVV seeks a new paradigm that promotes clearer communication, new styles of dispute management, collaborations and problem-solving, supports curiosity and inquiry and trialling of new models, building an evidence base on what works and how. This new paradigm could reduce waiting times in inquisitorial court processes which might defuse situations that are exacerbated in the current adversarial settings. It is this delay and uncertainty that has been found to create uncertainty and volatility.lv More exploration into inquisitorial models in other jurisdictions and whether they produce improved outcomes using an evidence-based investigation would be useful to establish if this might work. The interests-based approach so often used in negotiation practice, rather than the positional approach so prevalent in adversarial settings, may lead to healthier, less volatile argument and lead to deeper exploration of issues and even safer outcomes. This is because an interests-based approach seeks to separate the people from the problem, and focuses on the situation, not who caused it. By concentrating on interests rather than positions, this approach can generate more resolution options. Such an approach can still test allegations to ensure minimum harm is caused but enables a framework for proper decisions to be made through a calm, reasoned and respectful process. This approach would require learning and applying of new skills (such as those explored in Parts 2 and 3) by lawyers and judges, court officials and staff, and new models of service delivery that are well supported and holistic, with the clients and families at the core. The public would rather see taxpayer money being put into the family law system if it serves the needs of the parties rather than a battle zone, as is sometimes the perception (discussed above). I suggest that designing a family law system with a focus on earlier intervention; methods that are less adversarial and likely to minimise harm; might be popular with the public. Developing a family law system, with adequate resourcing, that is faithful to the core principles of fairness would go some way to build confidence in the legal system and its integrity; these being the hallmarks of the rule of law. This includes court orders that govern future family interactions that are practical, safe and sustainable.lvi Were it seen in such a light its inadequate resourcing might be addressed. We know the costs to health and the harm caused by FV and orders for child protection and parenting that have damaging effects on children. I predict that if this aim were better articulated to the public, it would prioritise its funding especially if the legal profession was seen as less self-interested, more open to evidence-based practice and better at articulating how it serves the community.

Adversarial approaches 29 In its ALRC submission, DVV describes a specialist and holistic psychosocial independent case management system.lvii A case manager would work alongside their client to coordinate and broker the family law system, while also providing practical and emotional support throughout the journey. This would include referrals to internal and external services as required. DVV argues that this approach would assist with coordination of all related court matters, as well as triage, early and ongoing risk assessments of FV and management of FV risk. This DVV model places a high priority on case workers and legal professionals being FV- and trauma-informed, and understanding the intersection between gender, FV and other forms of structural oppression including the social construction of disability, race, ethnicity and sexuality.lviii They suggest the case management team could include specialist FV case managers who are trauma-informed in their practice (see Chapters 5 and 9), as well as specialist non-legal Aboriginal and Torres Strait Islander case workers and cultural liaison workers. A fact-finding approach might also lead to conversations that explore durable and sustainable outcomes under advice of experts that follow and work with families along the way, including the legal team.lix Unfortunately, the ALRC was unreceptive to calls for change despite the practice-informed suggestions and direct client experience quoted in the DVV submission. In my view, the ALRC missed yet another opportunity to improve family law in Australia by taking a narrow, legalistic and reductionist response by redistributing court activity around the states and territories and ignoring the problems and solutions raised in submissions including those discussed in this chapter. Batagol has noted: One of the key barriers to increased collaboration between lawyers and dispute resolution professionals is client attitudes to lawyers. The fomenters of strife and, to a lesser extent, the gladiatorial champion views have been powerfully imprinted in the minds of family disputants. In the study described in this article, these attitudes resulted in few parties seeking legal advice in conjunction with family mediation, exacerbating the level of uncertainty about the law. Parties who were willing to exploit that uncertainty in mediation were able to bargain the other party below their legal entitlements.lx This suggests that developed skills in clear communication and client-centred practice are also needed to recalibrate clients’ expectations. Problems with changes in government policies including the politicisation of family law and the role of media remain a challenge. Another barrier is that most lawyers lack the training necessary to work collaboratively with non-legal professionals. I address the need and benefits of multidisciplinary (MD) training for all professions in Chapter 6, which may assist readers in how this might be done.

30  The case for change Case study 2.3: Child abuse and the Catholic Church The case of Ellis v Pell (2006)lxi (the Ellis case) highlights how a narrow legalistic view by the courts, without consideration for the impact on community members, can lead to absurd results. It also highlights how the law and legal mechanisms can thwart justice, if the substantive application of the law on wider society and a complainant is not a key consideration of a court. Although the Ellis case appeared in the civil realm as a negligence and assault case, it barely considered the implications of Mr Ellis and others’ experience of abuse to seek recompense for harm caused. In the Ellis case, Mr Ellis (a former altar boy) alleged childhood sexual abuse by an assistant priest, Father Duggan, in the Bass Hill Parish of the Roman Catholic Church between 1974 and 1979. Although the case considered a range of issues including the statute of limitations, this discussion will focus on the result of the case and its ongoing precedent for future complainants. The church (the first and second defendants in the case) as an unincorporated association could not (at common law) sue or be sued in its own name because, among other reasons, it did not exist as a juridical entity. The court noted this situation might be varied by statute. It held that a liability remains personal and not representative. The Court of Appeal also held the claim by Ellis against the church as an incorporated entity could not be upheld. The fact that the trustees held property on behalf of the church was not held to be sufficient to expose them to a legal claim. The court held the trustees had no role in the appointment, management or removal of priests under the Roman Catholic Church Trust Property Act 1936 (NSW). Cardinal Pell, as first defendant, could not be made liable for the alleged torts of his deceased predecessor, the archbishop. The court also held that first and second defendants were not liable at law or in equity with respect to the matters alleged. Astoundingly, the primary judge said that there could be no suggestion that Father Duggan was wrongfully performing part of his ecclesiastical duties when he sexually assaulted the plaintiff. The court held with the primary judge and did not find it necessary to grapple with this issue. Nor did the court consider it necessary to decide whether a priest in the Roman Catholic Church appointed to a parish is an employee in the eye of the law or in a relationship apt to generate vicarious liability of the superior. The Ellis case was reaffirmed in a number of later decisions.lxii In a detailed analysis, Morrisonlxiii argues that the Ellis case added legal abuse to the other abuse suffered by Mr Ellis. Morrison concludes that the decision is problematic in its rulings on vicarious liability. He also criticises the decisions as enabling the church in Australia to evade its obligations and duties to those who are abused. Technical defences and protections merely due to the structuring of organisational entities trumped the rights of Mr Ellis. He further notes that the decision in the Ellis case is unique to Australia. Responses in England and Wales at the time accepted that the church’s trustees are its secular arm and are the appropriate body to be

Adversarial approaches 31 sued. By contrast in the United Kingdom, in a similar case of clergy abuse, the trustees of the Roman Catholic Church were found liable to the plaintiff for sexual abuse and rape by a Roman Catholic clergyman. It found the trustees stood in the shoes of the bishop for present purposes, and that for the purposes of litigation, its trustees holding its property were its secular arm and were a proper defendant if vicarious liability arose.lxiv In Canada, the United States and Ireland, the church is treated as a corporation liable of the actions of its agents and thus is liable to be sued as a statutory corporation. Morrison makes the point that despite the Catholic Church in Australia being rich in assets and having many funds (including receiving taxpayer funds in the schools where sexual abuse occurred), its assets were protected (until legislation recently enacted)lxv by the Ellis precedent. Morrison explores the alternative in the Canadian Supreme Court which has a close connection test. This looks at whether power, intimacy and vulnerability extend vicarious liability even for acts that were manifestly criminal.lxvi In a similar case, NSW v Lepore (2003),lxvii the High Court of Australia considered the matter but was vague on the level of connection sending the case back for a retrial, whereupon the case was settled. In the United Kingdom House of Lords, Lord Phillips described the High Court of Australia in NSW v Lepore had ‘shown a bewildering variety of analysis’.lxviii In the United Kingdom context, Lord Phillips found liability of the church is possible for an unincorporated association and could be vicariously liable for the tortious acts of its members if the necessary connection required had been established. The Ellis defence was subsequently ‘… used by the church to obfuscate, and to avoid accountability’.lxix Luckily, after over a decade seeing the Ellis defence discouraging complainants, the legislature responded to a call by the Royal Commission into Institutional Childhood Sexual Abuse (2017) to remove the Ellis defence. This was adopted and announced in Victoria in June 2018, with New South Wales (NSW), Queensland, Western Australia (WA) and the Australian Capital Territory (ACT) also passing legislation in 2018–2019.lxx I will now contrast the approach taken in the Ellis case to the approach taken in County Court and Court of Appeal cases in Victoria in decisions in Trustees of the Roman Catholic Church v Ellis & Anor (2007) (the Pell case) in the County Court and its subsequent decision on appeal to the Court of Appeal in 2019.lxxi In an appeal to the Court of Appeal, Cardinal George Pell was first defendant as the Cardinal of the Catholic Church (he had no association with this diocese pre-2001).lxxii The trustees of the Roman Catholic Church for the Archdiocese of Sydney were the second defendant and the alleged abuser was the third defendant. On 7 April 2020, the Pell conviction was overturned by the High Court of Australialxxiii on the basis it found that the jury, acting rationally on the whole of the evidence, ought to have entertained doubt as to the applicant’s guilt ordering the convictions be quashed and appellant, and Pell be acquitted. Nonetheless, this chapter would like to focus on the County Court and Court of Appeal,

32  The case for change specifically in how they use compassion as an added dimension to the legalistic approach taken in the Ellis case. I want to open up the discourse in judicial administration to see whether there could be a place for compassion in how we administer justice in a way that need not compromise the balancing of all the parties in proceedings. This possibility for the consideration of compassion has been prompted by reading the work of Bartels and Hopkinslxxiv (see Chapter 3). This consideration, if managed well, could open up a way for making the legal system more responsive to community through acknowledging and encompassing human dimensions, such as the impact on memory of trauma, loss of familial supports due to abuse, impact of aggressive cross examination on mental health, suicidal ideation and well-being, loss of trust in institutions, shame, embarrassment, fragility and so on that exist in such cases before the courts. The criminal case against Pell has received worldwide attention given his ranking as the highest church official to be found guilty of childhood sexual abuse. We saw the County Court case in the first instance, then the Court of Appeal cases as central to the complainant, defendant and community, and the need to balance these concerns with the way the law is administered. An analysis shows a stark contrast to the narrow technical concerns of the Ellis case. The clear, simply explained exposition of the role of the law, taking into account the human concerns of all parties (not just the legal technical aspects (in contrast to the Ellis decision discussed above), was articulated in the decisions. In the initial County Court decision, after five days of jury deliberation, a jury unanimously found Pell guilty of five charges of sexual offending against two young boys’ R and J in 1996 and 1997 (R was deceased at the time of the decision). In Judge Kidd’s decision in relation to the plea, explained in plain English, the process by which a finding of guilty occurs and the role of the jury in this. He also laid out some of the complications of the case including the very public nature of the case and of the position of Pell in the church and how publicity involved ‘strong, trenchant and sometimes emotional criticism’.lxxv He made it clear that his role as a judge was to honour ‘the rule of law’ by making his decisions based on the evidence and jury decision. Judge Kidd made it clear in his decision he was not making Pell a scapegoat for failings in the Catholic Church nor making a finding on the Catholic Church. He condemned those who sought to use the case as a witch hunt and noted that the ‘courts stand as a bulwark against such irresponsible behaviour’.lxxvi The judgement of Judge Kidd then takes the audience through considerations on each of the parties, the defendant and complainant, with a detailed explanation of how the law applies to them. It is clearly stated, using simple language, making the parameters of the judgement and application of the law and evidence presented clear. This is also for the benefit of the public and media as keen observers on this high-profile case. He also underlines the complexity and difficulty of the task for judges in sentencing. He explores the position of trust and abuse of power of an archbishop and vulnerability

Adversarial approaches 33 of the two boys and age, poor health, lack of remorse, impact of public ridicule, uniqueness of circumstances and reduced risk of reoffending of the defendant having been found guilty by the jury. In carefully considering all aspects in this way, Judge Kidd exhibits compassion, as described by the Dalai Lama, ‘a sensitivity to suffering in self and others with a commitment to try to alleviate and prevent it’.lxxvii The broadcast of his sentencing remarks demonstrates transparent and open justice and accessible communication to the community about the rationale and role of the court. The majority of the Court of Appeal in this case on appeal exhibited similar compassion and the centrality of people in the way justice was administered. Judge Kidd’s decision in the County Court unpacked the factors of sentencing of Pell in a 319-page judgement, whereas the Court of Appeal looked more to the victims and the questions raised in relation to the evidence, given its more limited role as a court of review.lxxviii These include questions on the circumstances in the sacristy at the time of the offending. In dealing with arguments that the victim fabricated or was a fantasist and that the account of the living complainant was either impossible or not realistic, the majority decision noted it reviewed the evidence presented to the jury. It then asked whether on that factual material it was reasonably open to the jury to convict the accused. As noted, the high court has found it did not require the verdict to be beyond reasonable doubt leading to the acquittal of Pell. After the verdict in the Court of Appeal, a statement from the surviving complainant was read to the media by his lawyer Dr Vivian Waller: I am relieved by the decision of the Court of Appeal. It is four years since I reported to the police. The criminal process has been stressful ... The justice machine rolls on with all of its processes and punditry almost forgetting about the people at the heart of the matter.lxxix ‘Case study 2.3’ highlights how in a court context the law has a long way to go to balance the various needs of victims of childhood sexual abuse. Yes, it needs to ensure that people have a fair trial and are not wrongly convicted, but does it have to be conducted with a process that can harm and traumatise victims and witnesses along the way? The use of compassion (see Chapter 3) might be one stream of consideration that leads to finding a better way for our justice system to deal with this vexed issue.

Conclusion Another landmark case in Australia is a good note to end on, namely Mabo v Queensland (No. 2) (1992) (the Mabo case).lxxx To note: Aboriginal and Torres Strait Islander Peoples are the oldest continuous cultures in the world. Science confirms their presence for at least 65,000 years.lxxxi In this case, the majority (with Justice Dawson dissenting) held that the Meriam people were entitled to the Mer Islands ‘as owners; as possessors; as occupiers; or

34  The case for change as persons entitled to use and enjoy the said islands’lxxxii and debunked the previously long-held legal position that Australia had been terra nullius when colonised, meaning land that is legally deemed to be unoccupied or uninhabited. The high court held that there was a concept of native title at common law. It rejected the proposition that on colonisation all ownership of all the lands of the colony vested in the Crown. Particularly for the international reader, the Mabo case highlights the absurdity of overly legalistic decisions which ignore the human and the real-life contexts and history that sit behind the law and its purpose. This chapter has demonstrated how deficient the law can be when isolated from the lived experiences of parties to the proceedings. Could compassion processes or greater effort in legal processes that do no further harm to parties and consideration of the real-life contexts be better integrated in the legal processes? How can the conduct and decision-making processes that are so important (as they can govern our lives long after court cases are over) be improved to ensure public confidence in a role for law in what is fair and just?

Questions for discussion 1 Do you agree that there are there issues with the adversarial system? In what ways does the adversarial system impact on family law, institutional abuse and FV? 2 What are the alternatives? Are there other ways of approaching lawyering to better meet the needs of the community? 3 Have you seen any successful examples? 4 Do things need to change? Why/why not?

Notes

i Australian Government Productivity Commission (2014c), 2. CC-BY-3.0-AU licence. ii List of the royal commissions: RCFV; Royal Commission into the Protection and Detention of Children in the Northern Territory; Royal Commission into Institutional Responses to Child Sexual Abuse; Royal Commission into Financial Services; Productivity Commission’s Inquiry into Access to Justice Arrangements; Law Council of Australia’s Justice Project. iii OECD (2015), 5. iv Australian Government Productivity Commission (2014c), 30. v Ibid. 36–7. CC-BY-3.0-AU licence. vi State of Victoria (2016). vii Note: by way of disclosure, the author made a submission to the first three royal commissions discussed in this chapter. viii State of Victoria (2016), 34, 7, 9, 14, 24. © State of Victoria. CC-BY-4.0 licence. ix Ibid. Recommendation 122; Vol. 1, Chapter 22, 38. x Australian Government (2017e), 9. © Commonwealth of Australia 2019. CC-BY-4.0 licence.

Adversarial approaches 35

xi Australian Broadcasting Commission (2016). xii Australian Government (2017a), 9–10. © Commonwealth of Australia 2019. CC-BY-4.0 licence. xiii Ibid. 318. © Commonwealth of Australia 2019. CC-BY-4.0 licence. xiv Australian Government (2017c). xv Australian Government (2017d), Criminal Justice Executive Summary and Parts I–II, 181. © Commonwealth of Australia 2017. CC-BY-4.0 licence. xvi Ibid. Vol. 10, 124. xvii NZ has an Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions, which began initial hearings in February 2019 and the Unite Kingdom has Independent Panel Inquiry into Child Sexual Abuse, which was called on 8 July 2014. See Curran (2018a). xviii Consumer Action (2018), Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, Day 51, 11 September, 5446–7; Transcripts, 6210, 6159, 6216; Exhibit 6.332, 6281, Transcript, 6333; Witness statement, WIT.0001.0072.0001, 6−9, 3765−6. Australian Government (2018) – further case studies are detailed in Case Studies Vol. 2 of the Final Report. xix Ibid. Closing remarks from counsel assisting summarise these case studies. xx Ibid. 8. © 2020 Consumer Action Law Centre. Used with permission. xxi Hutchens (2018). xxii CALC (2018), 19–50. xxiii Family Procedure Rules, UK. xxiv Robertson, Broadhurst (2019), 181–203. xxv Boyd (n.d.). xxvi Bala, Birnbaum, Watt (2017), 71–128; Boyd (2019); Phillimore (2019). xxvii Price (2019). xxviii ALRC (2019). xxix Sheehan, Smyth (2000), 102, 112. xxx Sheehan (2000), 550. xxxi Kaye, Wangmann (2019). xxxii Maloney, McIntosh (2014), 71–86. xxxiii Curran (2019), 4–5. xxxiv R v Watson, Ex parte Armstrong (1976), 348. xxxv Brown, Frederico, Hewitt, Sheehan (1998); Hume (1997). Note: Australian Senator Pauline Hanson (under cover of parliamentary privilege) revealed that her son had been found to have engaged in FV in family court proceedings and argued such claims were fallacious. She was appointed in September 2019 to lead an Inquiry into the Family Law System within months of the ALRC Final report. Also appointed to chair the inquiry was a former minister, Kevin Andrews, who had previously expressed firm views about the sanctity of marriage and the family court raising questions about their open-mindedness in leading yet another inquiry. See Price (2019). xxxvi Hill (2015). xxxvii Loxley (2017). xxxviii DVV (2018). xxxix Parkinson (1999), 345. xl Kaye, Wangmann (2018). xli Eekelaar, Maclean, Beinart (2000). xlii Hunter (2003), 156–76. xliii Batagol (2008), 37. xliv Ibid. 24–45. xlv Ibid. 30. CC-BY-4.0 licence. xlvi Family Law Council, Family Law Section of the Law Council of Australia (2010).

36  The case for change xlvii Ibid. 1. © Commonwealth of Australia 2019. CC-BY-4.0 licence. xlviii Fairman (2002–2003), 505–28. xlix ALRC (2019). l Ibid. 135. li Maloney, McIntosh (2014), 83. Reprinted by permission of the publisher. lii Standing Committee on Family and Community Affairs (2003), 52. Used with permission. liii Easteal, Grey (2013), 76. liv DVV (2018), v–vii. © Domestic Violence Victoria. Used with permission. lv ALRC (2019), 135. lvi Anonymous (2019), 10–18, 340–2. lvii Note: the submission was prepared by a large range of agencies including Crossroads Family Violence Service (The Salvation Army); EDVOS; Elizabeth Morgan House Aboriginal Women’s Services; PartnerSPEAK; Project Respect; Safe Futures; Safe Steps; WAYSS; Victorian Legal Aid, Women with Disabilities Victoria, Djirra, inTouch Multicultural Centre Against Family Violence, and the Victorian Forced Marriage Network. lviii DVV (2018). lix Ibid. 7–9. lx Batagol (2008), 45. CC-BY-4.0 licence. lxi Ellis v Pell (2006), NSWSC 109; Trustees of the Roman Catholic Church v Ellis & Anor (2007), NSWCA, 117. lxii PAO, BJH, SBM, IDF & TMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Ors (2011) (Hoeben J), NSWSC 1216; Uttinger v The Trustees of the Hospitaller Order of St John of God Brothers (2008), NSWSC 1354. lxiii Morrison (2014). lxiv JGE v The English Province of Our Lady of Charity & The Trustees of the Portsmouth Roman Catholic Diocesan Trust (2011), EWHC 2871. lxv In Victoria, for example, Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) assented to on 5 June 2018. lxvi Jacobi v Griffiths (1999), 9 WWR 1; see also UK House of Lords decision: Lister & Ors v Hesley Hall Ltd (2001), UKHL 22. lxvii NSW v Lepore (2003), HCA 4. lxviii The Catholic Child Welfare Society & Ors (Appellants) v Various Claimants (FC) & The Institute of the Brothers of the Christian Schools & Ors (Respondents) (2012) UKSC 56. lxix Davey (2018). Courtesy of Guardian News & Media Ltd. lxx Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic). lxxi DPP v Pell ((2019), VCC 260. lxxii George Pell v The Queen (2019), VSCA 186. lxxiii Pell v The Queen (2020), HCA 12, Case M112/2019. lxxiv Hopkins, Bartels (2019), 107–27. lxxv DPP v Pell (2019), VCC 260. lxxvi Ibid. lxxvii Dalai Lama (1995). lxxviii DPP v Pell (2019), 369. lxxix Fairfax Media Australia (2019). lxxx High Court of Australia (1992). lxxxi https://theconversation.com /buried-tools-and-pigments-tell-a-newhistory-­of-humans-in-australia-for-65-000-years-81021 lxxxii High Court of Australia (1992). © Commonwealth of Australia 2010.

3

Rationale for new approaches to law and the teaching of law

As demonstrated in Chapters 1 and 2, ‘legal mechanisms’ are highly problematic for certain members of the community. Is ‘the rule of law’ a principle, or in the way that laws are administered, benefitting all people as the theory suggests it should? Chapters 1 and 2 suggest the answer to this question is ‘no’. This chapter challenges existing orthodoxies and posits new pathways to reinforce the rule of law.

What is the ‘rule of law’ and its importance in a democracy? The Australia Constitution recognises a doctrine of separation of powers between the parliament, executive and judiciary.i The ‘judiciary’ is an independent entity of government. It is a check and balance on the power of the executive arm of government. It interprets and applies the law to ensure that government actions are within lawful authority and power. Each arm is not to intrude on the role of the other.ii The executive and parliamentary arm should not interfere in judicial spheres.iii The rule of law ensures that judges are independent of these institutions and provides a check on the exercise of power to determine if it is within lawful authority. The concept of the rule of law is often cited as a pre-condition for an effective democracy, but how well is it understood by the general public? The rule of law can be assumed by the legal profession and politicians to be well understood; however, definitions vary, are mysterious and vague.iv This goes some way to explaining, as observed in Chapter 2, why justice is not given precedence in the public’s perceived priorities for government funding by comparison with health or education. Put simply, the rule of law is required for a predictable and ordered society. It promotes justice, fairness and individual freedom. The rule of law provides a shield against the arbitrary exercise of power, so that people cannot be punished or have their rights affected other than in accordance with a law. The rule of law acknowledges that while being bound by laws, we should also have the benefit of laws, and they should be consistent, understandable, predictable, fair, efficient and accessible.v Laws should be capable of being known and understood by anyone.

38  The case for change The rule of law is a universal concept contained in the ‘Preamble’ of the ‘Charter of the United Nations’.vi It was reaffirmed in 2012 where it was acknowledged to overlap with justice, human rights, development and security.vii Yet the law can be inconsistently applied to different people or groups due to a lack of power, complexity, navigability, resources and/or lack of money. This impacts on accessibility, fairness and understandability and can also lead to inefficiency. The National Human Rights Network of the National Association of Community Legal Centres (including the Human Rights Law Centre) Joint NGO Submission on behalf of the Australian NGO coalition together with the Australian Law Reform Commission’s (ALRC) Pathways to justice report highlight gaps in adherence to the rule of law in Australia in a range of areas.viii They show how laws, although superficially equal in application, are substantively unequal when applied and can lead to poor outcomes often for the most disadvantaged.ix After conducting a large-scale survey of the UK population, Genn and Beinart et al.x concluded that many people feel alienated from the institutions and processes of the law, including a problem with obscure legal language, mystifying court procedures and the closed nature of the legal profession – including an unease at the apparent camaraderie between advocates who are supposed to be opposing each other in court. People who experience ‘trauma’ can be re-traumatised by the very legal mechanisms they seek to have recourse to. Such systems, as discussed in Chapter 1, are hard to navigate; voices are often excluded, and many people lack the wherewithal, capacity or confidence to persist. As the case studies in Chapter 2 highlight, some have their legitimate concerns thwarted due to the legal system being unresponsive. In addition, new entrants to legal action often face well-­resourced repeat players in the legal system. These repeat plays can wear down their opponents with tactics that exhaust, limit resources and can lead to risks that deter new entrants.xi Rules of evidence can inhibit truth telling and remedies can be inadequate (see Chapter 7). Where voices are heard, such as in the royal commissions discussed in Chapter 2, the frameworks for operationalising reforms can be compromised by vested interests and power elites. Consequently, when reforms from these numerous inquiries are eventually rolled out, they are often minimal and miss the mark.xii Consider the example of the implementation of the recommendations of the Royal Commission into Financial Services (see Chapter 2). Despite the government rhetoric, the banking industry has lobbied hard and the reforms are unlikely to have impact, many poor practices are likely to remain. The system still relies on the complainant to initiate; pushing most of the onus back on the victim to make the complaint, rather than preventing the conduct in the first place.xiii As Linden and Staples observe: One is the rhythm of public inquiries followed by reports, then (sometimes) trials, then books, then almost everyone forgetting (except for

Rationale for new approaches 39 those personally scarred) only for problems to resurface later … The flurry of prosecutions and actions will again reveal problems with the law – gaps in coverage, inadequate penalties and cases the law won’t allow to stand up.xiv The Royal Commission into the Protection and Detention of Children in the Northern Territory is another good example. After exposing, at great expense, highly problematic systems responses, very few recommendations have been enacted, and children remain in poor and degrading conditions in youth justice centres.xv Despite the huge cost of holding these inquiries and the large numbers of lawyers retained by parties and commissions themselves, the outcomes rarely result in recommendations being implemented.xvi If they are operationalised, it is in a way that is not necessarily consistent with the intent of those recommendations.xvii While the inquiries enable people to be heard and place offending parties under the spotlight, all too often after the airing of public grievances, the recommendations see little action, or lip-­service at best, with very little real change. Sheldrickxviii suggests a new focus on accountability and governance rather than the limited notion of the rule of law could shift the focus on legal systems and mechanisms that provide limited solutions. As the Law Council of Australia’s Justice Project noted: 1.1 The future design of justice and related administrative systems should be nuanced, evidence-based and people-centred. It should be informed by, and responsive to, the likely legal capability – the knowledge, skills and readiness to act – of target users, given that it is often pivotal to their ability to negotiate such systems effectively.xix The chapters that follow explore new approaches to the practice of law and show how multidisciplinary practice (MDP), restorative practice (RP), and problem-solving courts might respond to clients and community. They suggest ways of hearing their voices, providing language to express experiences of ‘harm’ and increased ‘collaboration’ in problem-solving. These new ways of working are helping to address the systemic problems inherent in how the traditional legal system is structured. Too often, the rule of law as a principle is problematic, and interpreted as offering ‘procedural rights’ only. These procedural rights may not lead to justice by ignoring substantive and human rights.xx As Narajanxxi highlights, a strong rule of law can only occur if considered in light of historical cultural and economic factors. Perhaps we need a new paradigm, one that flips the emphasis so legal institutions must respond to community, rather than the community having to respond to the requirements of legal institutions (as suggested in Figure 3.1). This emphasis places the affected person at the head of any hierarchy/pyramid, making them the primary concern, with the legal institutions being the tool for enabling the rule of law, such that it benefits all.

40  The case for change

Figure 3.1  Flipping the paradigm: the centrality of the community.xxii Source: Liz Curran © 2020. Explanation of Figure 1.3: Affected person (client and/or community with a need, right or interest and social determinant of health outcomes that needs addressing) Legal systems, mechanisms and decision-makers • • •

Compassion, expertise and humility. Context of the person including social determinants of health, human rights and justice. Law – substantive application not merely formulaic or procedural, accountability and good governance.

The lawyer or non-legal support person (including community development and all client work through client-centred practice) • • •

Compassion, expertise and humility. Context of the person including social determinants of health, human rights and justice. Law – substantive application not merely formulaic or procedural, accountability and good governance.

Courts/laws • • •

Compassion, expertise and humility. Context of the person including social determinants of health, human rights and justice. Law – substantive application not merely formulaic or procedural, accountability and good governance.

Rationale for new approaches 41 The aim is to make a shift from what systems require, to what people need. This shift in discourse may help frame new and innovative ways for systems to respond to community and be more effective and accountable. Diversity of the legal profession A cookie-cutter version of the typical lawyer reflects privilege and elite, which is then reinforced in law firm recruitment of university graduates that reflect the privilege and values of the partners. This limits the breadth of solutions that could be designed for a diverse client base in a multi-cultural world. If the rule of law is to benefit all in the community, those who distil key facts, apply the law and make determinations on people’s legal rights, should reflect or represent the broader community. Until practitioners, judges, lawmakers and students of law better reflect the communities they serve, there may be bias; be it conscious or unconscious. This comes from a limited experience and knowledge of what it is to be different. This can result in the limited capacity for the law to be tailored to different client contexts, as noted in Chapters 1 and 2. Law schools need to ensure their student cohorts come from diverse cultural and socio-economic backgrounds. Similarly, law firms and the bar could be more open in their recruitment to different pathways and attainments. They also need to facilitate processes that enable inclusion and diverse entry and retention strategies. This is starting to occur in some spheres, which is encouraging. In time, we might then see a shift from the wealthy, dominant, Western traditions that make up the current legal profession. It is up to managers to change how they hire new entrants and encourage alternative perspectives. Processes facilitating and supporting new entrants from diverse background into the decision-making roles previously held by elites are also needed beyond recruitment. With the rise of competitive technologies, the legal profession will need to respond better to its client base so to stay relevant.xxiii The legal professional will not be able to adapt sufficiently if it does not diversify its membership. This is how we will create the shift needed for the law to better respond to community. Alternative frameworks with client-centred and community-focused outcomes In the discussion of church abuse in Chapter 2, I highlighted the relevance of compassion in how court cases might be determined. I also examined how often the traditional legal approach overlooks broader context. New paradigms: a role for compassion and emotion in law – flipping the current paradigm to place people at the core of the rule of law Hopkins and Bartelsxxiv argue, in the examination of sentencing, for compassion and attention to the person be an underpinning of the justice

42  The case for change system. They propose that compassion can lead to a desire to act to alleviate suffering and that it ought to have a role to play in therapeutic jurisprudence and administering justice. They distinguish compassion from notions of mercy that already are a part of the sentencing regimes in most ‘common law’ jurisdictions.xxv They use the definition of compassion as quoted by the Dalai Lama in Chapter 2.xxvi Hopkins and Bartels outline how in a number of different disciplines including psychology and neuroscience, the role of compassion is acknowledged as a way of moving to alleviate suffering by those with a responsibility to respond or assist. The risk of paternalism (which traditional approaches could be seen as favouring) they note, denies the inherent equality of human beings, which is central to a robust account of compassion. If compassion operated to motivate and guide lawyers and judicial officers who deal with suffering and pain routinely, then perhaps the legal system might overcome some of the problems identified in Chapter 2. They also argue a side benefit that allowing compassion in the legal profession might be a way of addressing current levels of compassion fatigue and vicarious trauma. Alongside compassion is the need for ‘emotional intelligence’. This is defined by Sternberg as ‘the ability to engage in sophisticated information processing about one’s own and other’s emotions and to use this information as a guide to thinking and behaviour.’xxvii Kentonxxviii has noted that the emotionally intelligent lawyer is more likely to serve the needs of clients and the legal community than the lawyer who has less understanding of, and control over, emotions. The lawyer who integrates emotions with cognition is better able to reason, problem-­ solve, appreciate different perspectives, can communicate with clients, and becomes a more effective decision-maker. He argues that a lawyer’s ability to integrate emotions and cognition can transform the lawyer-client relationship into a richer, deeper and trusting relationship.xxix Daicoffxxx agrees, noting that such approaches may enable better responses to changing demands of society for sustainable, holistic, problem-solving and rehabilitative resolutions of legal problems. Gardner looks at this human intellectual competence as ‘a set of skills of problem-solving enabling the individual to resolve genuine problems or difficulties’.xxxi The limitations of traditional notions of ‘thinking like a lawyer’xxxii can be inadequate in meeting the often-emotional aspects and multidimensional aspects of a client’s problems and concerns, and so can reduce its capacity to repair harm or build sustainable solutions. What would happen if, as a core competency, lawyers exercised compassion and emotional intelligence when managing clients’ problems? What if judges did so when making judicial determinations and administering justice? Would it necessarily compromise their application of the law? Or would it make it more sophisticated and tailored by contrast to decisions that do not take account of the human side of laws?

Rationale for new approaches 43 Hopkins and Bartels tackle some of the criticism of using compassion in the sentencing context. Rather than impede fairness, the rule of law and consistency, they argue that compassion need not be mutually exclusive to these other requirements of justice. They note the inherent equality of human beings and proportionality (central to a robust account of compassion) is often overlooked by critics. They argue that: … compassion involves turning towards a person – and any and all persons – in their full humanity and dignity as equals, answers a charge made against compassion that it conflicts with the rule of law … Returning to the example of a sentencing Court and those facing sentencing, we quickly see that coming to terms with equality requires us to face the fact of deep and abiding social inequality. These inequalities are visible in and often painfully rendered by the intersecting disadvantages associated with childhood trauma, poverty, mental ill-health, addiction, discrimination and exclusion. What can equality, and equality before the law, mean in this context? Fundamentally, equality requires treating like cases alike and unlike cases differently.xxxiii Hopkins and Bartels note that judges, in undertaking their work (noting their discourse is specifically on sentencing), ought to take a non-­paternalistic, human-to-human engagement, seeing the other and stretching their perspective to engage with the lived experience of the defendant/complainant. This perspective may be very different from their own. It might reduce biases or enculturated lenses of categorisation or perceiving people as other, which can play out subconsciously placing humans/community at the core of the legal system rather than the other way around. The legal system operates in such a way that people need to fit into legal categorisations. Flipping this, to make the law adapt to the human condition, might enable the legal system to be responsive. This also resonates with findings of a recent Victoria Law Foundation report, Law … What is it good for?xxxiv on how people see the law, legal profession and courts in Australia, where the law is not seen as benefitting all. Hannathxxxv identifies that adversarial litigation is at odds with how First Nations’ cultures deal with human interaction and problems with a lack of cultural interpreters in court processes. Hopkins and Bartels further observe that: The contention here is that giving equal consideration starts with the act of paying attention, in the moment, in the courtroom; this requires the judicial officer (and others in the courtroom) to ‘show up’ – physically, mentally and emotionally – for each person, as a unique human, in whatever time is available. Those of us who have spent time in a courtroom, representing defendants or otherwise, know when this quality of attention is present. It infuses the experience of all those within the courtroom.xxxvi

44  The case for change The legal profession is required to assist, represent and make judicial determinations over human lives. Permitting compassion might enable it to broaden perspective and face the emotional aspect of their work. For this to occur, support in developing the requisite skills and evidence of professional benefits will be needed. It might also lead them to combat this fatigue, so they learn not just how to survive, but to thrive. Allowing compassion into the law could acknowledge and permit people to be more open, honest and transparent about suffering, emotions and past experiences. Also, law school training that is purely doctrinal and encourages thinking like a lawyer without any training as to the inevitable human side to legal problem-solving, leads to the harsh dissonance in the work students will find they have to do on admission to practice. Social determinants of health as a useful consideration in legal problem-solving It is also worthwhile considering the social determinants of health (SDH) as a new underpinning integral to justice models and the core aim of a legal system. The SDH are defined by the World Health Organization (WHO) as: … the conditions in which people are born, grow, live, work and age. These circumstances are shaped by the distribution of money, power and resources at global, national and local levels. The social determinants of health are mostly responsible for health inequities – the unfair and avoidable differences in health status seen within and between countries.xxxvii The SDH framework is useful to bring the social, cultural and economic factors, and their connection to the law into the equation. It enables a greater capacity to examine the contexts that sit behind and cause legal problems. It can also sometimes be critical to effective responses to problems and problem-solving and problem prevention. Narajanxxxviii notes these factors ought to be critical to the rule of law. Skill sets that are different and go beyond traditional lawyering of legal interpretation and application of the law will need to be deployed to create non-hierarchical, respectful relationships that also incorporate SDH frameworks into the analysis. The legal profession, with developed interpersonal and communication skills, can assist a range of people to help better navigate and provide legal help acknowledging the wider context of where problems sit, intersect and overlap, which can lead to longer-term positive solutions. Other disciplines, such as the public health sphere, already integrate this SDH framework in their training and professional development. A similar focus by lawyers and law students on the SDH would build knowledge, capacity, confidence, improve engagement with the most vulnerable capacity of clients, community and non-legal professionals alike, enabling professional collaboration and a greater understanding of context.

Rationale for new approaches 45 Using the prism of SDH to guide responses in law has the potential to open up more responsive and proactive ways for the legal system to deal with people’s problems and find more sustainable solutions. This, in turn, will help build/rebuild public confidence in the law, and the way it is administered, and maintain its integrity; all of which, in my view, are currently at risk.

Conclusion This chapter has argued for some new ways of framing the way we approach the law, legal practice and legal education. It suggests a paradigm shift from merely legal technical application of the law to recalibrating it to the centrality of community and client, and the consideration of the broader contexts in which the law is situated. It argues for a movement from the siloed, legal-technical approach, to considerations that might proffer more effective legal problem-identification and engagement with the needs of clients put first. Such a movement could improve problem-solving by encompassing human contexts and concerns through a great appreciation of emotional intelligence, compassion and the SDH outcomes. This might broaden the potential of the law to be more relevant and responsive to community.

Questions for discussion 1 What is your view on making people fit into pre-existing categorisations of the legal system and laws rather than a legal system that is more responsive and tailored to the needs of the people coming before it? 2 What are some of the current deficiencies in the way legal profession operates? 3 What are some of the ways discussed in this chapter that the legal profession and legal system might change their practices to be more responsive to community? 4 Do you think there needs to be a paradigm shift, and what might it look like? Formulate your own model. 5 What are the ways you would like to change your approaches to better respond to complex client and community need? What might be the first steps for you to take?

Notes

i Commonwealth of Australia Constitution Act 1900 (Cwlth), Chapter III, The Judicature. ii Australian Communist Party v The Commonwealth of Australia  (The Communist Party Case) (1951), Latham CJ, Clause 4, 54, 69 and Dixon J, Clause 35. Note: this decision also highlights the complex long-winded judicial language used to explain the rule of law that can confound lay persons. iii NSW v Commonwealth (1915) HCA 17; Re Drake and Minister for Immigration & Ethnic Affairs (No. 2) (1979).

46  The case for change

iv Walker (1988). v Access to justice is also a requirement of Article 14 of the International Covenant on Civil and Political Rights. vi See Charter of the United Nations. vii United Nations Resolution adopted by the General Assembly, 67/1. viii ALRC (2017), 9–10, 17; National Human Law Centre, Kingsford Legal Centre, National Association of Community Legal Centres (2015). ix Gerhardy v Brown (1985), 129, Brennan J. x Genn & Beinart et al. (1999), 247. xi Australian Government Productivity Commission (2014a), 109; Australian Law Reform Commission (1999), 109. xii Assies (2009), 909–24; van Rooij (2012), 299. xiii Ferguson (2013); Linden, Staples (2019). xiv Linden, Staples (2019). CC-BY-ND-4.0 licence. xv Allam (2019). xvi Hewett (2018). xvii Curran (2018a). xviii Sheldrick (2012), 11. xix Law Council of Australia (2018), 3. Used with permission. xx Charlesworth, Farrell (2016), 1–10. xxi Narajan (2016), 43–57. xxii Curran © 2020. xxiii McKeith (2019); The Law Society (2020). xxiv Hopkins, Bartels (2019), 107–27. xxv Ibid. 114. xxvi Dalai Lama (1995). xxvii Sternberg (2001), 9–10. xxviii Kelton (2015), 493. xxix Ibid. 460. xxx Daicoff (2012), 795–874. xxxi Gardner (2011), ix. xxxii Payton (1985), 233–50. xxxiii Hopkins, Bartels (2019), 115. xxxiv Balmer, Pleasence, Hagland, McRae (2019), 2, 8, 36, 51. xxxv Hannath (2019), 203–6. xxxvi Hopkins, Bartels (2019), 116. xxxvii WHO (n.d.). Used with permission. xxxviii Narajan (2016), 43–57.

4

Empowerment models

This chapter considers empowerment theories, and some models in law and why they are important. The theories discussed differ and there is little consensus among theorists; many of whom are critical of the status quo that precludes the voice of those without power. However, some common themes might inform genuine elements for empowerment to occur. The discussion provides both the limitations and pitfalls in current conceptions of the ‘rule of law’. There are significant tensions between the rule of law, dominant Western power structures, static institutions and deliberative democracy. Also explored are some of the limitations in the current structures that have the effect of locking out sections of the community so that they have little say in the very laws and policymaking that impact their daily lives.

The vexed issue of legal empowerment: the literature examined For three decades, my research into access to justice, with its specific focus on the poor, has highlighted power imbalance and lack of voice for people experiencing some form of disadvantage (for example, disability, poor housing and sole parents) with vulnerability (for example, children and the elder abuse) or the socially excluded (for example, poverty or cultural background). Even though these cohorts are a part of civil society and a democracy, they are often excluded. The formal feedback processes (for example, law reform bodies or departmental methods calling for policy input) tend to reach a limited range of organisations. This is because the routine methods of calling for input on policy initiatives or reform are limited and unimaginative (for example, advertisements in journals of professional associations, or press releases that only a small proportion of people might read or have access to). The groups who experience disadvantage (as noted above) often lack either the capability, confidence, skills or the resources that are needed to be heard in such formal avenues to contribute to the discourse around decisions affecting their lives.i In my practical experience and research, these groups are rarely aware of public inquiries on matters directly affecting

48  The case for change them. This often leads to the most significant influence on decision-making being shaped by the well-resourced, repeat players and influential lobbies. Inquiries often miss the views of the people directly affected by the policy areas under consideration. This gap in informed decision-making can work to the detriment of individual clients and community, and reduce effective and responsive policymaking as it is isolated from lived experience. For example, in 2010, the Residents Group of West Heidelberg were unaware of the first public inquiry in decades into public housing in Victoria (this is designated housing for the most disadvantaged).ii Although publicised on one day in daily newspapers, many of the residents told me they were not aware of the inquiry, either because they could not read or had not read the notice as they could not afford to buy the newspaper. ‘Legal empowerment’ is where individuals, communities and non-legal professionals have legal knowledge, awareness of how to apply it, confidence, capacity and the circumstances, opportunities and contexts to organise either individually or collectively to shape and advocate on how decisions are made. This enables their human rights to be realised and their circumstances, resources and those of their community to be improved. ‘Empowerment’ means having the voice and the power to shape lives and positive outcomes by equalising opportunities to access local, national and international forums and decision-making. My treatise is that legal empowerment is a critical feature of a truly representative democracy. This is consistent with the notion of ‘due consideration’, which is required in a legal context. Due consideration is the proper consideration that can only occur after an assessment is made; after facts and all relevant matters are carefully weighed and considered. It is often used in relation to the exercise of judicial discretion. It will vary according to context and depend on the legal application required. It is my view that policies need to meet and respond to lived experiences. Policymakers can be removed from how policies play out in community. Lawyers are skilled in understanding the law, how it is made, the legislature and the art of argument, and how the rights and responsibilities can affect people. However, due to their wealth and status in society, policymakers and lawyers are not in my experience, always in the same space as everyday people, as is demonstrated by the feedback of community members to the royal commissions outlined in Chapter 2. The legal profession has a critical role to play in enabling people to understand their legal rights and responsibilities, and in building their competency and capacity to gain confidence to better respond to their individual legal problems and responsibilities. Accordingly, I believe that lawyers are ideally placed to share their skills by humbly assisting clients and community to find their own voice. Lawyers can help community to develop the wherewithal and resources to advocate, and thereby empower them to contribute to shaping the development and operation of laws, policies and decision-making in civil society for the public good and rule of law.iii

Empowerment models 49 The United Nations (UN) has examined legal empowerment of the poor, noting that a range of strategies are necessary to create a climate for empowerment to occur. These include the role and responsibilities of state entities, and business and support services in fostering the necessary conditions and having a greater accountability to clients and communities than just as funders or regulators. These strategies include a role for information, dedicated resources, participatory processes for grassroots community, long-term vision and coordination.iv However, the UN has also been widely criticised for overlooking existing blockages to legal empowerment of the poor and/or people experiencing disadvantage. Responses to addressing development goals often rest largely with elite-based organisations (this can include corporate elites, intellectual and political elites or large cumbersome organisations with significant bureaucratic and political imperatives, such as the UN itself) rather than, for example, a greater inclusion of civil society including non-government organisations that work closely with affected communities.v Such limited engagement, with realities of power inequality, assumes capacity building is mainly about information and education. This can ignore the more difficult inhibitors that can include the systemic absence of inclusion; lack of resources, capability, confidence and factors such as corruption, subsistence and survival – all of which can be significant impediments to empowerment. By way of example, when I was in the Philippines working for a humanitarian agency capacity training women in an unused local classroom, I noticed a large pile of student textbooks in the rain outside. I was advised that no matter how many times the local school mentioned they did not have enough teachers to utilise the books, the humanitarian agencies continued to send them glossy new books advising that ‘this is what the sponsors think is needed’. This chapter will explore critics’ concerns that this ‘top-down, privileged approach’ does not involve local organisations who work with the poor or the people directly assisted by such programs. The views in much of the literature discussed in this chapter observe that the UN and current governmental and decision-making practices are seen as sidestepping issues of power, inequality and their control and the limits of existing ‘legal mechanisms’vi and the range of factors that impact on capacity and capability. These factors and how they might be addressed are discussed in an examination of empowerment models in this chapter.vii The literature and theories Much of the literature and theories about legal empowerment emerge from the non-Western world. This is not surprising as it arises from a concern for the poor; those on the margins of society with little resources, voice or power to determine and influence decision-making. The research below highlights deficiencies in the way decisions and institutions are shaped

50  The case for change and managed by elite organisations and the powerful in community and government. Maruviii describes legal empowerment as growing out of the tradition of legal aid for the poor, where the task is to assist citizens in seeking remedies to breaches of rights. He sees it as having a critical link to social accountability interventions employing information and participation to demand fairer, more effective public services. He also seeks to broaden the notion of legal empowerment beyond just the legal and argues that legal empowerment and social accountability are linked. He sees legal empowerment as critical in keeping accountability through citizen participation year-round, not just at election time. Assiesix is critical of approaches to empowerment that are reduced to legal issues. He suggests such reductionist approaches fail to link the broader social, cultural, labour market rigidities and political contexts that can impact on the legal landscape and that block participation in the legal system. Maru observes the scarcity of lawyers prepared to take action to build legal empowerment and the limited capacity and legal aid funding available. This means that many people do not/cannot use or do not have access to avenues provided by litigation and formal legal process. He sees legal empowerment as a way that is practical, flexible and responsive to socio-­ legal context. He sees lawyers working closely in community and employing a wider range of approaches or tools to work around state structures that can be unresponsive or dysfunctional. Also, I suggest we can add the increasing tendency to move avenues for complaint or social support to online portals. This ignores the lack of access to technology.x Often, improvements seem designed to frustrate and obfuscate rather than provide a genuine resolution to a problem. Maru argues that legal empowerment, in contrast to traditional legal approaches, does not wait for community to raise legal problems but utilises data and empirical evaluation for community action so to address inequity of recurring legal problems or solutions, thus being responsive to issues affecting community and ensuring social responsibility and accountability.xi Maru is critical of ideas that legal interventions will bluntly trickle down in the hope that everyone might benefit. He calls for systemic institutional reforms that specifically take account of the needs and preferences of the poor by providing them with a constructive voice and enabling them to participate as the basis for interventions. Maru’s view in this regard is supported by Van Rooj, whose view is discussed below.xii Chapter 11 discusses some practical ways to empower using community development. Sheldrickxiii also explores legal empowerment, noting there are contradictions between access to justice and the rule of law. He argues that with four billion people worldwide currently excluded from legal help, major deficiencies exist in the application of rule of law and legalist approaches. He explores possibilities for moving beyond just ‘the rule of law’ to reconfigure governance to facilitate more flexibility for a greater range of voices to be heard.

Empowerment models 51 Sheldrick is critical of current access to justice debates being limited to a focus on low-cost delivery methods, concern over costs of legal services and capacity of the poor to pay or navigate existing systems and law reforms. This deficiency shows how access to justice discussions is narrowed to the fiscal rather than the rule of law and shaping and ensuring a good life. He laments that regardless of significant effort from advocates of the poor and marginalised, changes are often minimal, conventional and with limited spending allocated, as mentioned in Chapter 3 in relation to the implementation of recommendations for various royal commissions. Sheldrick criticises the way the processes and mechanisms for shaping law, policy and program delivery ignore the interconnectedness of the law with relationships and power structures, even though they permeate society. He argues that the law is seen as the one main entry point where it should be seen as one, but not necessarily the best one. He notes that this structure is established by the elites.xiv He argues that legal empowerment is not procedural and that often in discourse, the impacts of internal domestic power relations, property rights-based systems (for those without property), colonialism, conflict, and economic and political imperialism are ignored or discounted. He concludes that asking lawyers, judges, corporate elites and many government officials to participate in the empowerment of the poorest and the most vulnerable of society is highly unrealistic. This is because the formal institutions of the state, including the courts and the legal profession, are viewed with suspicion and distrust.xv Van Rooij,xvi writing in the humanitarian context, argues that ‘bottom-up approaches’ are an important addition to existing practices and may solve diagnosed problems within the legal system.xvii Examining emerging criticisms of the rule of law as inadequate, top-down, state centred and again as a concept favouring elites. He gives support for his conclusions by citingxviii the work of Kennedy, who also sees the rule of law as misunderstood or having a limited desire for donors to avoid sensitive or practical questions. Accordingly, the rule of law is seen as limited in its operationalisation in specific projects, remaining a concept that is hard to define with clarity and practical meaning.xix Golub’sxx theory of legal empowerment demonstrates that a use of legal services and related development activities can increase disadvantaged populations’ control over their lives. This theory focuses on the needs of the poor; enabling self-expression, going beyond a human rights approach to explore power, or the lack thereof, and how this might be shifted through greater strategies, such as engagement, facilitated participation, gathering data and building and funding civil society. This is desired rather than reforming state institutions which are, Golub argues thwarted by the elites.xxi Molanderxxii states that trust and equality have a strong correlation, observing that the more equal a society is, the more trust people feel and that society functions better as a result. This returns to the critical notions of confidence in the legal system and its integrity which are currently under threat.

52  The case for change Van Rooijxxiii posits that legal empowerment might be an alternative to the flawed focus on the rule of law. Like Sheldrick, he argues that legal reform has been too state centred and has focused on the courts and lawmaking processes to the exclusion of the communities they are meant to serve, benefit and protect. Van Rooij notes that evaluations and data on the impact of bottom-up approaches are problematic because the data on effectiveness and challenges establishing causal links limit extrapolation given the small-scale nature of studies and lack of good data. This is consistent with observations of the Productivity Commission in 2012 on the limited funding for research and findings relating to causal links to outcomes.xxiv He does not fully discount the rule of law, which although problematic, does provide normative guidance with its range of elements including legal equality, law and order, predictability and the protection of human rights.

A human rights approach to empowerment? Hassainxxv has noted that civil and political rights and economic, social and cultural rights are recognised as the minimum human rights standards by the UN and that these are inextricably linked to the people-oriented responses needed to attain justice. He highlights that too often legislators and governments exercise arbitrary discretion behind closed doors and make policies without asking those affected by these very policies, a point noted in Chapter 3.xxvi Hassainxxvii argues that an integrated approach to human rights and development is needed as well as the concrete implementation and ability to action these rights. He identifies some preconditions for it to occur; such as education and awareness of the people it affects, information and communication, effective participation (including access to information, legal resources, media, officials, agencies, institutions, freedom of communication, self-managed organisations and ability to engage in organised activities), accountability and transparency. Carmona and Donaldxxviii argue for a theory of legal empowerment that adopts a comprehensive and holistic approach that looks beyond judicial and legal reforms. This theory tackles broader structural, social and economic factors with a wider human rights approach that puts the emphasis on challenging existing asymmetries of power. They assert that building consensus to meaningfully improve access to justice can be assisted by the explicit use of human rights discourse and principles. Van Rooij,xxix however, is sceptical about limiting approaches to human rights alone. This is because the realisation of human rights often requires a change in the legal system. At the same time, the international discourse on the human rights, with its focus on international norms, can lose sight of the local reforms needed. This is noted as a criticism of the UN in the

Empowerment models 53 introduction to this chapter. Van Rooij argues that resources can be scarce in different countries and universal efforts to gain agreement about the norms can detract from the need for local action. In the end, van Rooij argues that the rule of law and human rights ought to be considered together. This is because legal empowerment through bottom-up approaches, although important, is not an answer on its own.xxx Decision-makers hold the power to make the necessary changes.

Legal empowerment models The capability and development model Senxxxi has a framework based on his ‘capability approach’ which requires, as a starting point, that capabilities should be equally guaranteed for all. Although an economist, Sen has argued for more than just the economic perspective and shifted the established paradigm of economics and law to look at the social and structural. His model looks at what people are able to be and do. Literacy, health, resources, shelter, money, employment, environment, well-being and political freedom depend on specific local requirements in order to be realised. This model can include personal factors including psychological, physiological as well as broader settings, such as political, economic, gender, class, ethnicity and cultural dimensions. In this way, it incorporates the social determinants of health (SDH) discussed in Chapter 3. Sen’s theory looks at why there are capability failures and diagnoses their causes. If people are not experiencing a capability that has been collectively agreed to be a significant one, then justice would require addressing the shortfall. Sen has critics who argue individuals should have a right to shape their own views of what is a good life, and that justice is about fairness and neutrality, rather than assessments of capability.xxxii They have stated Sen’s theory is obscure as to what objectives a just society should be seeking, who will pay and how capabilities should be prioritised, the neglect of social values,xxxiii and how rights are balanced.xxxiv They comment on the individualised nature of Sen’s approach. Sen has nevertheless shaped much of the discourse around empowerment and defended his theory by arguing that individuals are not all equal and that there are variables in distribution and access to resources and justice. Fundamentally, he contends that although people should enjoy liberty to make choices, not everyone has the underpinning capability to be able to access such choice. He maintains that society needs to strive to resolve the unequal nature of peoples’ capabilities. Ignoring it, is not good for society. Sen places as central features of empowerment, the need to enable human potential to address inequalities and justice moving beyond what

54  The case for change institutions alone can achieve. Rather than identifying existing injustices alone, Sen believes addressing capability and freedom are critical, and in this way, his theory is an empowerment model.xxxv Nussbaumxxxvi builds on Sen’s capability theory looking at how capabilities can be created. Improving people’s quality of life requires wise policy choices. Theories are a large part of the academic world, but she notes they can be helpful in influencing a debate, and some approaches over others may not actually be borne out by evidence or lived experience. She argues that an understanding of the ‘complication elements of human experience’xxxvii should be part of policy frameworks. She also suggests that the empowerment of citizens through democratic processes be a shared aim, noting that the notion of democracy can be vague about who gets to participate and who does not. Such empowerment, she argues, is integral to addressing problems. Sen and Nussbaum recognise in their empowerment models the reality of power and powerlessness in society. It is all too often convenient for libertarians to state people have choices or that the law is neutral, when both claims are dubious. Governance and accountability as a legal empowerment model Sheldrickxxxviii suggests a model of legal empowerment that reduces law to principles of governance and political accountability. This is a radical and challenging notion that invites immediate scepticism. What is meant by a principle of governance and in what circumstances such a principle would trump the law needs more thinking. In my view, it is problematic, given the role of law in providing consistency and standards for conduct and remedies for incursions (even though they are hard for many to access). Nevertheless, this concern with governance and political accountability is increasingly relevant with the growing and current alienation of the public. Wood and Griffithxxxix also highlight the empirical basis that demonstrates the lack of trust in public institutions that are seen to favour powerful interests and lack accountability in Australia. Sheldrick argues that the legal empowerment agenda offers a promising road forward if there is an openness to alternative conceptions of law, with the use of grassroots, bottom-up development strategies. These require empowering and enabling communities toward genuinely local, community-driven responses which, he argues, can be facilitated by more concrete and diverse practices, customary dispute resolution mechanisms and community-­based/ local consultations, increasing the ‘collaboration’ between practitioners linking state, society and community within a development paradigm. This would link access, rights and capacity in a way that is richer than traditional rule of law approaches. He further argues it offers a conceptual framework that is also more inclusive of First Nations people with more genuine structures of autonomy.

Empowerment models 55 What is required are alternative, bottom-up approaches to formulating laws facilitating community engagement and parallel avenues for resolving disputes and are not reliant on or subject to the law or supervision of the courts. These approaches will be discussed in Chapter 7.xl

Client empowerment: a role for lawyers Legal empowerment enables self-determination and agency for clients to shape outcomes and address the situations that give rise to poor outcomes in social determinants of health and justice. This includes naming the deficiencies in laws, lack of adherence and poor administration of them. This agency is informed by the lived experience of community and strengthened through additional skills that a lawyer can help build, including elaborations on legal requirements and advocacy skills. Maru’sxli model of legal empowerment sees the lawyer’s role as not just providing technical advice to clients but working with clients to give them agency to resolve their own problems. Unlike traditional lawyering models, where the lawyer advises and represents clients or community, in this paradigm, clients are also provided with the tools they may need to resolve problems themselves. It promotes skills in self-advocacy including sustaining an argument with persuasion and the information to enable this, an awareness of rights, and also the responsibilities, possibilities and obligations of the client and those around them (including decision-makers and institutions), so they can individually and collectively ensure accountabilities without necessarily relying on a lawyer each time. This model also requires the pre-conditions that Sen discusses, such as literacy, health, resources, shelter, money, employment, environment, well-being and political freedom. It does not mean the individualising of problems that are actually caused by systemic issues, such as saying someone should lead a healthier life when they live in poor substandard public housing (which contributes to their asthma), or that they should manage their income better when their income is too low to cover basis necessities. One of my research participants highlights the power of such a model: I was in a bad place. I had thoughts of finishing it all as what was the point if I couldn’t see my boy. The lawyer changed all that. Now I have hope and there is a reason to live. Shows you should not listen to the Department. They will not tell you your legal rights but she [the lawyer] did and it is made me much less depressed.xlii Paralegals can also have a critical role in legal empowerment as a compliment to, rather than a substitute for legal services, not just relaying information but assisting clients in how to use, understand and take action on this information.xliii Carmona and Donaldxliv detail how paralegals have

56  The case for change been able to assist clients and community in developing countries by educating them on their rights, suggesting remedies and making government entities more responsive to client needs.

Community empowerment: a role for lawyers Schukoskexlv sees lawyers as having a critical role in empowerment via ‘community legal education’ and community lawyering. Shahxlvi also identifies the goal of empowerment within ‘community development’ when addressing poverty. Some practical examples will be discussed in more detail in Chapter 11 ‘Community Development’. Shah argues that lawyers play a key role in education through working with community and within community organisations. He notes it is important that the relationship between lawyer and client is balanced, that clients understand their legal rights and the range of options available to them so to enable social change within the community. This is a point that has also been made by Fraserxlvii writing in the Australian context. Schakowskyxlviii emphasises the role of lawyers in raising awareness of the law and access to relevant and practical information within the community. Legal help in the formation of community organisations, collection of data from community to influence public policy, and bringing about law reform is the role of lawyers in her approach. She argues that lawyers should offer legal representation being mindful of the goal of empowerment for any community group and this includes engaging community in all phases of their work in preparing a case. To best represent clients, she states the lawyer should know their clients’ community and details around impacts on that community. Her model in my view needs recalibration as it can be stretched so the community is enabled to not just participate and shape their cases but have a pivotal role in providing solutions. Richxlix writes of the need for community organising as a way of gaining empowerment with the role of lawyers to enable collaborative counselling so community can evaluate their legal risks and obligations in relation to their conflicting social goals and relationships. Other disciplines have established credentials that the legal profession can learn from.l For example, Leeli suggests that through community organising, some of the power differentials and implications of growing inequality in play can be challenged. Broadening community empowerment includes community development and community organising, with a focus on sharing the information and skills the community members need to better support themselves and each other is becoming more imperative.lii This is in light of reductions, worldwide, in legal assistance service resources, concerns about system integrity and reductions in trust for institutions. Increasing inclusion in deliberative democracy may reorientate communities away from alienationliii by enlivening their capability in advocacy and legal empowerment. It has a potential to reach many more people than just

Empowerment models 57 a focus on individual case work. By better equipping and enabling community at every opportunity to shape better informed decision-making and responsiveness.liv To illustrate this approach, when I was working as a lawyer assisting residents of public housing in Victoria, I used human rights legislation and other legislative provisions to get the Department of Housing to address their legal responsibilities to maintain public housing. One client had an instance of mould growing on their infant’s basinet, which caused asthma, resulting in frequent visits to the children’s hospital for life-threatening asthma attacks. Other housing issues included instances of asbestos crumbling, indoor temperatures for the elderly in summer of up to 52°C and violent intrusions and/or attacks due to unsafe premises in high crime neighbourhoods. Working side by side with the residents/clients, I learned that while I had the legal technical skills, my clients were the experts in life on a public housing estate. At night, I would return to my safe and comfortable existence. By contrast, my clients had to live daily with stress, poor income support and lack of control in their lives on the housing estate with a recalcitrant public authority who had ignored their plight for 40 years. At one point in a public forum with the minister present, the department admitted that four street blocks had disappeared from the department’s data (even though deductions for accommodation rental had continued) with the result that maintenance of public housing stock had been ignored. I worked with the residents to use our joint expertise to hold public authority to account through legal channels (albeit a slow, unwieldy and expensive process), media exposure, community-based action and mutual skill development. By recognising different critical players and each person’s expertise, we started to make inroads and finally gained the ear of the parliament.lv Wrightlvi argues for ‘integrative law’ wherein the legal profession is seen as having a role in ensuring a conscious, inclusive model of justice, peace and humanism. She notes the imperative for this role emerges due to society becoming more complex, increasing the need to make the law more workable and understandable. Integrative law focuses on out-of-court solutions and well-being of all players. This can include some of the new approaches to lawyering and the law discussed in later chapters, such as mediation, restorative justice (RJ), reflective practice and collaborative practice. She notes a growing importance for proactivity, sustainable practice and earlier intervention in the prevention of problems.

Non-legal professional supporter empowerment The role of non-legal professionals in supporting client empowerment and advocating on their behalf as they encounter poor or unresponsive decision-­making is rarely fully explored in the literature to date (other than cursory references to paralegals). Yet, there is a significant role for lawyers

58  The case for change in empowering non-legal professional supports to take action early. My own research (see Chapters 6 and 13) highlights that when lawyers work collaboratively with different disciplines, they enhance the ability of non-­ legal professionals to navigate legal obligations and frameworks. They can then deploy this knowledge to inform and encourage decision-makers to be more responsive. This kind of collaboration is known as ‘secondary consultation’ (SC). This is where lawyers provide on-the-spot legal information and advice to busy non-legal professionals whose clients/patients may be reticent to see lawyers or have limited access to them. SC is defined in more detail in Chapter 6. Practical examples As an example, in the context of child protection, young mothers are often told by departmental administrators that there is no point in pursuing parenting claims as the decision is already set, whereas a maternal and child health nurse skilled in legal requirements of the department will learn that such advice is problematic; that it can prejudice the mother’s position by causing delay and that it overrides their patient’s right to be heard. Knowing this, the nurse can work with mothers, who are often overwhelmed with the complexity of the system, and gently intervene to insist the department meet its responsibilities. Empowered non-legal professionals can ensure accountability and due consideration of the rights of the mother and child. As a community health nurse in one of my research studies noted: I now know that sometimes when the department says it is a ‘no’ to my client, that they may be wrong and I feel better able to question it, as the legal advice shows me a ‘no’ is often a ‘maybe’.lvii This intervention becomes critical early on as there are so few legal aid services to assist in child protection cases given the limits on funding for civil legal aid matters. In Victoria and the ACT in Australia, as well as in the United Kingdom, the human rights framework provides an additional opportunity to build such capacity.lviii Public authorities can often operate in a vacuum and within rigid settings and some can be ignorant of the laws and their context and intent, be lazy or inflexible. For example, some case studies in a parliamentary submission illustrate the power of building the art of advocacy beyond lawyers to other professionals who are entrusted with solving client problems:lix On the same day as receiving advocacy training on how to use the charter, a community nurse who had been trying to assist a very ill asylum seeker access a hospital used the charter to remedy the refused

Empowerment models 59 treatment. The hospital was refusing treatment on the basis the asylum seeker could not afford to pay and did not have a health care card. The woman who had children was at risk of haemorrhaging due to a rupturing caused by significant organ damage acquired from previous brutality in a refugee camp. Whilst a more senior person had assured the nurse the asylum seeker would be able to have access to the hospital’s health service, when it came to receive the access it was indicated the service would be denied unless the patient paid, insisting on prior proof of capacity to pay from the lady. On questioning the staff member on whether this ‘contravened the charter’, the staff member said she did not know. The community nurse then sent an email to senior staff at the hospital raising the charter rights. On receiving her email, a further email from the hospital was sent out to all hospital staff in Victoria. This email directed staff to follow a DHS directive stating all asylum seekers and refugees were to receive free services from the hospitals and alerting them to the charter obligations. The woman received treatment which saved her life. An occupational therapist used the charter on behalf of a woman unable to leave her house because of a departmental refusal to provide a ramp by a local authority on the grounds of cost and argument between departments about who had the responsibility. The woman was in a wheelchair and without a wheelchair was effectively imprisoned in her small house. The woman had been trapped in her house for six months and could not visit her two children who lived away from home and they had significant disabilities as well. The lady became increasingly depressed and distressed about not being able to leave the home. Sections 12 (freedom of movement), 18 (right to take part in public life), section 17 (right to protection of families and children) and 10 (inhuman and degrading treatment) were used to argue that a ramp was required. After charter arguments, the department reconsidered their position.lx These examples demonstrate legal empowerment of non-legal professionals and show how sound outcomes can be achieved without recourse to costly legal proceedings and associated delays.

Empowerment to participate in policy and systemic reform Carmona and Donaldlxi see a role for legal empowerment in the context of access to justice and addressing inequality, noting the increasing marginalisation and the breaking down of faith in effective institutions and the rule of law. Although their article is about countries in transition, it is also increasingly relevant in Australia and other Western countries where there is a growing gap between rich and poor and growing suspicion of institutions, for example, the role of social security departments (see Chapter 12 ‘Robo debt’).

60  The case for change Like Maru, they highlight the barriers in existing traditional models for redress for the poor and marginalised in accessing lawyers, costs, navigability, delay and complexity and formal requirements that are defeating participation in justice systems. They note that it is: Often, a failure to reach the most excluded and marginalised members of society is not a matter of lacking resources but rather the fact that the programme is not designed in a way that responds to their real needs.lxii A final example of Maru’s concerns has occurred in Australia. After consultation with First Nations representatives from across Australia, a consensus was reached to call for inclusion and a voice in decision-making in the ‘Uluru Statement from the Heart’.lxiii This sentiment has since largely been ignored by government and decision-makers. It is a sign of the need for authorities to respond better to the needs of First Nations people, and that legal empowerment alone may not be enough. This demonstrates van Rooij’s point discussed earlier, namely that legal empowerment through bottom-up approaches, although important and necessary, is not guaranteed on their own. This bottom-up First Nations call for responsiveness and empowerment are a salutary and disappointing illustration of shortcomings of traditional approaches to decision-making. Even where there has been empowerment at a level that brings local First Nations communities across the nation to suggest solutions to their plight, the political elites can still ignore the people affected. Chapter 12 examines skills and ideas for empowerment for engaging in policy and advocacy for change.

Conclusion This discussion has explored various models and approaches to legal empowerment. In democracies, participation in decision-making is critical day-to-day, not just during election periods. Sheldrick has highlighted that improving governance and accountability is key to giving meaning to the rule of law that underpins democracy. Maru has called for stronger connection to social accountability and better ways of participation so that citizens’ voices can be heard. This chapter has also explored ways of seeking input and shaping conversations led by community, including the poor or those who are on the margins and too often have little say in how they are governed. Often, they are less able to find the recourse in law than those with power, money and resources. Ensuring new models to share the knowledge, capacity or confidence to be heard, in ways that have an impact, can lead to more responsive laws and policies. As with Rich and Wright, I go further than most of the researchers, models and theorists discussed in this chapter, to roles of lawyers. Recognising the limits of the theories posed by

Empowerment models 61 Sheldrick, Van Rooij, Molander, Golub, Sen and Nussbaum, more can be done by ‘law practitioners’ to address existing skills deficits and encourage local voices. There is a role for lawyers that include building skills in communities, such as knowing the legal obligations of decision-makers to community members, facilitating round table discussions conducted by the community and supporting communities so they can represent themselves at inquiries (rather than speaking for them) and facilitate their drafting of their own recommendations. It means lawyers share their skills in advocacy with affected communities. This expanded role works to empower communities to self-advocate and have self-determination.lxiv

Questions for discussion 1 Do you think the concept of the ‘rule of law’ is understood by the public? 2 Are you troubled by the alienation of community from the legal system and parliamentary representatives? Why/why not? 3 Do the theories outlined offer any concrete directions for legal empowerment? 4 Do you have your own theory for legal empowerment? What does it entail? 5 What models or combination of models discussed in this chapter might be a way forward? Do you have your own model and if so, what does it look like?

Notes i Curran, Noone (2008), 195−229. ii Curran, Taylor-Barnett, Vernon (2017a), 67–73. iii Curran (2017b), 517–27; Curran, Taylor-Barnett, Vernon (2017). iv Golub (2003), 3; United Nations Commission on Legal Empowerment of the Poor (CLEP) (2008), 87–9. v Sheldrick (2012), 4. vi Assies (2009), 915–8. vii Carmona, Donald (2015), 244. viii Maru (2010), 83. See also discussion in Golub, McInerney (2010), 16–17. ix Assies (2009), 918–9. x Smith (2014). xi Maru (2010), 84–5. xii van Rooij (2012), 286. xiii Sheldrick (2012), 7–13. xiv Ibid. 10. xv Ibid. 11. xvi van Rooij (2012), 288. xvii Ibid. 288. xviii Ibid. 298. xix Kennedy (2006), 95–128.

62  The case for change xx Golub (2003), 4. xxi Ibid. 3. xxii Molander (2016), 178–9. xxiii van Rooij (2012), 288. xxiv Curran (2007). xxv Hassain (2001), 1–8. xxvi Curran (2017b), 518. xxvii Hassain (2001), 1–8. xxviii Carmona, Donald (2015). xxix van Rooij (2012), 315–8. xxx Ibid. 315–8. xxxi Sen (1999). xxxii Rawls (1985), 223–51. xxxiii Gore (1997), 235–50. xxxiv Pogge (2002), 167–228. xxxv Sen (2009). xxxvi Nussbaum (2011). xxxvii Ibid. xxxviii Sheldrick (2012), 13. xxxix Wood, Griffiths (2018), 10–13. xl Curran (2017b), 517–27. xli Maru (2010), 85. xlii Curran (2017a), 10. xliii Maloney (2010). xliv Carmona, Donald (2015), 249; Maloney, McIntosh (2014). xlv Schukoske (2001), 102–9. xlvi Shah (1999), 257. xlvii Fraser (2010). xlviii Schukoske (2001), 102–9. xlix Rich (2009), 88–99. l Lane (2013). li Lee (2011). lii Maloney, McIntosh (2014). liii Curran (2017b) 517–27; Curran, Taylor-Barnett, Vernon (2017). liv Curran, Taylor-Barnett, Vernon (2017), 37–88; Rich (2009), 62–99. lv Family and Community Services Committee (2010). lvi Wright (2016). lvii Curran (2017a). lviii Human Rights Act 2004 (ACT); Human Rights Act 1998 (UK), see The Human Rights Act – Changing Lives 2006 (UK); The British Institute of Human Rights (2006), 7–14; The Charter of Human Rights and Responsibilities 2006 (Vic). lix Curran (2011). lx Ibid. 7–8. lxi Carmona, Donald (2015), 242. lxii Ibid. 254. lxiii Referendum Council (2017). lxiv Curran (2017b), 524–7; Rich (2009), 73–9.

5

Client-centred approaches

This chapter canvasses new ways of applying the law, lawyering and legal education, which have at their heart effective communication, holistic client care and interpersonal and collaboration skills. Client-centred lawyering relates to empowerment, as it creates a space for clients to tell their story in their own words, articulates their concerns and involves the client in decision-making alongside the lawyer who can bring their legal expertise into the equation. This contrasts with more traditional ‘top-down approaches’ to legal practice. The skills necessary for client-centred practice will be explored in Part 2 of this text. This practice theory is client led and focused on problem-solving and future outcomes. It emphasises people’s self-determination and strengths, so critical for empowering community and clients. In this way, this chapter builds on practices that also build legal empowerment that were flagged in the models in Chapter 4. A ‘client-centred approach’ views the client as resourceful and resilient in the face of adversity and crisis. A client-centred approach is consistent with the legal profession’s ethical duties. Enos and Kanteri discuss how traditional lawyering encourages hierarchy by assuming the legal system knows all and alienates other professionals.

Background to client-centred approaches A hierarchical/traditional model of lawyering situates the lawyer in control and the key determiner of how the client should act. This can be a default setting of lawyers. Perhaps because of their doctrinal training and established/traditional modes of practice are hard to shift. Despite those who argue for a literalist/neutral rather than interpretive conception of the law, the reality is that the law will be subject to the biases and agendas of those who interpret it. Narrow gene pools of those who constitute the judiciary, and legislature who make our laws, does not preclude them from being influenced and informed by their worldview. This does not equate to neutrality. The Australian Constitution was written centuries ago and sometimes, as is still the case in Australia, without being shaped by a human rights framework. The Constitution is limited by its

64  The case for change primary content around power sharing arrangements between the States and Commonwealth and the protection of property interests rather than human rights and the protection of citizens, as is the case in constitutions in other countries around the world. In my empirical studies, non-legal professionals have identified that more traditional approaches to lawyering, which are hierarchical or too focused on legal technical categorisation, can fail to respond to client needs. Clients can see problems with how the law is administered and that claims of neutrality in law are fictional. This need to factor in the human dimension in legal responses is illustrated by a recent study focused on young clients in regional NSW and Victoria which found that: • • • •

Young people will wait and observe how the lawyer interacts with others first, sometimes for up to six months before feeling they can approach a lawyer or their worker about a legal issue. [Young people will only open up if] they feel safe, the lawyer is approachable, non-hierarchical, non-judgemental and speaks simply. Many young people relied on family members or friends for legal opinions and often, these sources were suspicious of lawyers and the legal system [early intervention was missed]. [Young first Nations people with a lived experience of The Stolen Generations perpetrated by the government of the day are distrustful of the legal system. Many First Nations families see the second round of The Stolen Generations embodied in child protection.]ii

My studies reveal communication problems arising from lawyers using legal jargon, making snap judgements not only about clients’ legal situations but also about them as individuals. Concern includes lawyers being too transactional with minimal consideration for the clients’ concerns. This leads to client distrust. This is compounded where there is disability or language deficit. Lawyers in my studies were seen as often so preoccupied with narrow legalistic considerations (which although relevant) during client interactions, that it reduced their ability to tailor advice suitable to a clients’ context. This in turn leads to misconceptions and reticence in seeking help by those who are likely to have legal problems and often multiple legal problems. The qualitative data shows a need for lawyers to engage with clients in a client-centred way, as highlighted by these extracts from the evaluation of the Invisible Hurdles Project: [their attitude comes from their] parents’ experience – intergenerational fear of the legal system and lack of positive outcomes. It has been really hard for them to see that [lawyer] is here for them. I have had to really shift their thinking to believe that [lawyer] is there for them. You just

Client-centred approaches 65 keep saying it over and over and over again the same way until they believe you. [Lawyer] is a calm gentle person; personality has a huge role here. Your personality weighs a lot in a place like this and they have bullshit meters on them. They can read your mood like anybody’s business. Clients with trauma are very good at being on the alert for any untoward things. If you get anyone who is in any way adversarial, it is verbal and non-verbal messages. All those things affect the trust. … a lot of them have some form of intellectual disability or brain dysfunction. Poor vocabulary and poor and low levels of literacy. So, a lawyer needs to make the connections. Low literacy and low levels of understanding are serious impediments to taking legal advice. When we are talking about the qualities of the lawyer, it is important.iii These are further examples from non-legal professional staff who support victims of family violence (FV) are from the evaluation report of the Why Didn’t You Ask? (WDYA) FV study in Victoria: NOT listening, not making time for clients concerns to be heard and addressed in a professional matter. I know lawyers are very busy on the day of Court, but clients are people with feelings and often they really are not heard by the legal system. Impatient manner when client finds options difficult to process quickly. Hanging up on a vulnerable client where there was a conflict instead of providing a referral. Sending a legal letter with complex information with no attempt to ensure that the client could understand it. Disrespectful of my skills and knowledge just because I do not have a law degree.iv This quote is from an interview with a community professional for an evaluation of a health-justice partnership (HJP) in Bendigo in regional Victoria: Not always the best experience with lawyers at court. Many have encountered legal issues at very early age. The experience here would positively challenge the clients’ perceptions of the legal system/lawyer.v In the Bendigo study,vi mental health and drug and alcohol practitioners suggested that before the HJP was implemented, lawyers would sometimes insist the legal case took precedence over treatment requirements, without taking into account the health and well-being of their client. This narrowly focused approach was identified as an issue for clients at risk of relapse into drug addiction. Stress, created by the often-blunt legal assessment, might lead to setbacks in health treatment. This could impact on the client’s

66  The case for change ability to respond in their legal matter, as if their mental health is impacted, then the client testimony/participation is compromised. For example, one research participant noted when the lawyer said (in the client’s presence) that the client’s situation was ‘hopeless’, this led to an increase in the patient’s suicidal ideation. When the health professional later sought clarification from the lawyer, it turned out the patient’s case was not hopeless but involved ‘complicated arguments’. Other non-legal professionals observe that client bewilderment is further compounded by lawyers using legal jargon, failing to update their clients and explain situations as to what was happening in their case, in a language the client could understand. As Kruse has observed: As a result of their legal professional training, lawyers have a tendency to over-value their clients’ legal rights and interests relative to the weight that their clients might assign to the protection of those rights and interests when the clients compare them to the other things that the clients value. If a lawyer is not careful, a client’s human problem can disappear, and the client can appear instead as a bundle of legal rights and interests walking around in a human body. The client’s important non-legal interests – the client’s relationships with others, reputation and standing in the community, values, and commitments that the client wants to honor – can fade into the background as the client’s legal rights and interests come more sharply into focus.vii My studies of multidisciplinary practice (MDP) (including HJP, see Chapter 6) find that where the lawyers reverted back to the traditional model of lawyering with a top-down approach, it was often due to a change in personnel. New staff would revert to staying in their legal office, not be visible, wait for clients and non-lawyers to come to them, not interact or make assumptions in a paternalistic fashion about what their client cohort needed without asking them. From the data collected in these studies, it set back engagement and referrals, which would remain static or plummet and non-legal professional staff would report a lack of trust. These setbacks could be tracked back to the hiring of new lawyers in these roles who did not fully understand the model. This is a cautionary tale.viii My definition of ‘client-centred lawyering’ does not compromise the giving of fearless and frank advice. Rather, it enhances their ability to do this through active listening and rapport building that enables clients’ voices to be heard. This, in turn, enables the lawyer to tailor their discussion of legal options in a way that has more resonance with the client and their situation. For the client, this is more suited to their considerations and concerns. Why? Because the lawyer has heard them and has taken time to learn of their situation, fears and concerns beyond their legal problems and in good conscience.ix It also enables advice giving in a context of respect and dignity for the clients.

Client-centred approaches 67 The challenge in private practice is to try to implement a client-centred approach in the context of billable hours and time pressures. In my experience in both private and public practice, this approach has many benefits. Time spent at the outset to establish a client-centred approach can lead to savings later and more efficiencies (as the lawyer is more familiar with the legal issue and context). This does not reverse the requirement for the lawyer to keep checking in with the client’s concerns or context which may alter over time.

Linking lawyer duties with conduct rules and client-centred practice Tylerx has suggested client-centred practice can enhance trust in the law. This goes back to ‘the rule of law’ and the need for confidence in the integrity and administration of justice, and the central duties of lawyers in upholding these attributes, but with the added paradigm of ensuring it has community/client as the centrepiece, as discussed in Chapters 3 and 4. As Freedman states: One of the essential values of a just society is respect for the dignity of each member of that society. Essential to each individual’s dignity is the free exercise of his autonomy. Toward that end, each person is entitled to know his rights with respect to society and other individuals, and to decide whether to seek fulfillment of those rights through the due processes of law … [T]he attorney acts both professionally and morally in assisting clients to maximize their autonomy … [T]he attorney acts unprofessionally and immorally by depriving clients of their autonomy, that is, by denying them information regarding their legal rights, by otherwise pre-empting their moral decisions, or by depriving them of the ability to carry out their lawful decisions.xi Client-centred practice can place a lawyer in a setting where the process is more meaningful for the client, which makes for better, responsive lawyers.xii It responsively involves people in the legal enterprise and can build on an individual’s strengths, instead of placing or pigeon-holing and can be a way of empowering people with their legal problems. The essence of the rule of law (see ‘Introduction’ and Chapter 3) is that the law has to benefit and protect all people. However, where some people feel traumatised and re-traumatised by the legal system and how laws are administered and managed, then it becomes a significant disincentive for them to avail themselves of this protection. Instances of lawyers being rude, aggressive and abusive when cross-examining witnesses do not promote confidence in the legal system as a fair processxiii nor do they align with the professional responsibilities under the ‘Australian Solicitors Conduct Rules’

68  The case for change (ASCR) or the ‘Legal Profession Uniform Conduct (Barristers) Rules’ (see ‘Guiding principles’ under ‘References’). As lawyers and legal educators, our manner of practice must try to minimise ‘harm’ to other participants. This approach need not reduce or override our role in ensuring a fair trial, or meeting our duty to clients, the courts or students. It is possible to be a good advocate without being a bully. It just requires some sophistication. As the ethics scholar, Dal Pont notes: Approaching professional rules as if they were legislative rules carries (as many commentators have noted) the risk of ‘legalising’ ethical rules, shifting the focus of attention to interpreting the words, looking for specific exemptions or permissions, rather than focusing on whether a particular course of action would or would not be unprofessional because it offends the principle underlying the rule – leading to an ‘abdication of professional judgment’ and a ‘spiritless compliance’ with ever more prescriptive rules.xiv In Australia a lawyer has a paramount duty to the court and the administration of justice.xv The ASCR state: 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. 4.1  A solicitor must also: 4.1.1 Act in the best interests of a client in any matter in which the solicitor represents the client. 4.1.2 B e honest and courteous in all dealings in the course of legal practice. 4.1.3  Deliver legal services competently, diligently and as promptly as reasonably possible. 4.1.4 Avoid any compromise to their integrity and professional independence.xvi Client-centred practice is consistent with the following ethical rules: 7. Communication of advice. 7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement. 7.2 A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client

Client-centred approaches 69 already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the matter … 8.  Client instructions. 8.1 A solicitor must follow a client’s lawful, proper and competent instructions: 42  Anti-discrimination and harassment. 42.1 A solicitor must not in the course of practice, engage in conduct which constitutes: 42.1.1 discrimination.xvii A number of legal scholars have written about client-centred lawyering in different contexts both in an adversarial setting and general legal practice.xviii A review of this literature reveals that people have very different views/definitions of what client-centred practice looks like. Definitions have caused disagreement, and at times, some have argued that professional and ethical legal obligations conflict with client-centred lawyering, which I disagree with. This is common in the commentary from the United States, but arguably, their legal system differs and sits within a different ethical setting to that of Australian legal profession legislation, ASCR and applicable case law referred to earlier in the chapter.xix Some argue that their lawyering responsibilities are reasons against client-­centred practice, namely: • • •

not actively misleading the court (including tribunals) assisting the court to resolve cases in a just and efficient manner not making unsupported, irrelevant, scurrilous or scandalous allegations, which the advocate knows they cannot prove or does not intend to prove.

I believe that client-centred practice does not contradict any of these requirements. Another argument is that a lawyer is not to use their privileges by using the right of audience for ulterior motives unconnected with vindicating a client’s rights and interests, for example, by using the court merely as a political platform to embarrass third persons or to ventilate general issues.xx Again, I do not think that client-centred practices need compromise or contradicts any of these requirements. The ASCR are not in competition with the notion that the legal professional can take a more client-centred approach. Lawyers in Australia are not merely a mouthpiece for a client. Client-centred practice is consistent with this (see ASCR 17.1 and 20.1.5).xxi Client-centred practice still requires the use of judgement and expertise. Using ethical rules and legal professional duties in common law to argue against more client input is itself unethical and a misinterpretation of the rules. Client input is needed for ensuring lawyers are in fact acting on client

70  The case for change instruction, early problem solving in initial and follow-up client interviews, devising strategies in the conduct of a matter and alternative dispute resolution (ADR). Discourse on ethical rules is often focused on courts and litigation and can overlook other realms outside courts, in which lawyers work, such as supporting disadvantaged people to solve problems. Often in day-to-day legal work, there is no prospect of going to a court as clients could not face the ‘trauma’ or cost. An example of this is the ‘conflict of interest’ rules that emerge from commercial practice and litigious matters. Rigid application of these rules becomes problematic in contexts where there is poor access to justice and a limited choice of legal help. ‘Good practice’ in the way we handle each client enables them to gain a sense of trust and relate to their lawyer. They will feel more comfortable in providing the information lawyers may need in order to provide full and comprehensive advice if they trust that lawyer. In addition, clients and their professional supporters have indicated that the process of how a service treats them is just as important as an outcome.xxii Effective lawyering can be hampered if we do not have the ability to meld both our legal technical expertise with our interpersonal skills. Too often, legal education and training has focused on the former to the exclusion of the latter.

What is client-centred practice? This section explores aspects of client-centred lawyering in practice, and how it accords with the ethical obligations of other service providers to focus on their clients’ lives, not just their clients’ problems. It sees lawyers as being part of a team of professionals who work to support and strengthen clients’ capacity to manage their lives and solve their own problems. A client-centred approach to lawyering values and seeks real input from clients and aims to fully inform them in a way they can understand.xxiii It involves initially allowing clients a free narrative, actively listening to concerns, and later questioning and prompting (see Chapter 9). Clientcentred lawyering requires collaborating with clients to fully explore their legal, social and/or health issues together so as to determine the best strategy given their clients’ context. Together they explore a range of legal and non-legal solutions by working with other professionals, as appropriate to their clients’ situation and the professional’s expertise. Client-centred lawyers recognise that issues such as poverty and ill health (social determinants of health/SDH) are factors in the resolution of their clients’ current legal problems as well as the prevention of future legal issues. Siegel, Hussemann and Van Hoek discuss the concept of client-centred practice in a US criminal appellate context: Client-centered lawyering promotes client participation and decision-­ making while recognizing the limited role of lawyers’ professional

Client-centred approaches 71 expertise … Another key component of client-centered lawyering is an increased focus on the non-legal aspects of clients and cases. Thinking more holistically about clients provides [lawyers] appellate defenders with the opportunity to consider how non-legal circumstances may influence and limit positive outcomes for clients who are, by definition, vulnerable.xxiv Additionally, Lawton elaborates in a general context about lawyering: Two of the foundational principles of client-centered lawyering are: i respecting the importance of the client’s role in client decision-making; and ii respecting the importance of the attorney’s appreciation for their clients’ ‘perspectives, emotions and values’. Client-centered lawyering requires attorneys to respect the ‘primacy of client decision-making’ and ‘client empowerment’. The presumption is that clients will have the better understanding of what is most important to the client and the client should be able to make the decision about their case based on the client’s own understanding of what is best … Client-centered lawyering does not prevent lawyers from offering legal counsel to the client for consideration, obviously; but it encourages lawyers to respect the client’s input, perspective and decisions.xxv

Why centrality of client care is critical for underpinning law and ethical practice A client-centred and strengths-based approach encourages a client’s self-­ determination and emphasises personal context; including non-legal issues and strengths, rather than seeing clients as legal problems to be solved. Client-centred practice can be defined as an approach that sees clients and their circumstances as central to their legal problem, where the lawyer is not just concerned about the legal result but conscious of respectfully engaging the client in the process. It allows for a more nuanced approach that considers each client’s context as a human being and seeks to support them. As an aside, this can also include, in commercial law, where lawyers ought to canvas fully the implications of their conduct, including requirements to act in good conscience in meeting client expectations.xxvi This chapter gathers work from other professional disciplines that are relevant to the legal context. Together we can help build awareness, or the argument, for a need to shift from only traditional legal approaches to include client care as a central underpinning for the legal system and a way of ensuring ethical practice. There was also a perception among

72  The case for change some research participants in my studies that some lawyers see their ethical obligations as somehow trumping the ethics of other professionals. Professionals are expected to abide by their own profession’s code of conduct. There is no ranking system that puts lawyers above everyone else. The chapter also draws on findings from my empirical research that highlights the need for client-centred practice. Legal education has a role in readying future practitioners for the issues legal practice will expose them to, as noted by a law student: … my LPE at [de-identified] legal centre taught me a lot about what client care means, and I have a deeper understanding now of what being ‘a professional’ means. I understand more fully now that this also includes other emotional elements – having empathy for clients and for colleagues, working together to solve problems but also simply listening to clients and being someone they can call with questions.xxvii As lawyers and legal educators, our ways and manner of practice ought to minimise harm to other participants. This approach need not reduce or override our role in ensuring a fair trial or meeting our duties in each of these roles.

Client-care centrality in a legal professional practice context This section examines some ways in which legal professional practice contexts might expand its capacity to increase its client-centred approaches. What other professional disciplines can offer I have explored scholar’s work from within public health, allied health, social sciences, social work and psychology. Some of the approaches from these non-legal spheres proffer suggestions for practicing law in a more client-centred way, which, in turn, might enable the legal professional to increase client confidence in them and the law. A strengths-based approach to client care including multidisciplinary practice A ‘strengths-based practice’ is a collaborative process between a client supported by services and those supporting them, allowing a team to work together to determine an outcome that draws on the client’s strengths and assets. This would see a legal professional including in their repertoire the ways in which they might work with non-legal professionals to support their clients as a normalised way of working. Strength-based practice concerns itself principally with the quality of the relationship that develops between those providing advice and support, and the person receiving it.

Client-centred approaches 73 It factors in the elements that the client seeking support brings to the process.xxviii This approach will not be appropriate for all lawyering contexts, but the literature from social sciences and social work disciplines may be instructive for lawyers. The Social Care Institute for Excellence (SCIE) gives some practical tips for how to implement a strength-based approach.xxix The strength-based approach has, at its core, the aim of identifying client strengths, harnessing these to achieve positive change by building supportive relationships that can make the planned intervention sustainable and lead to improved legal outcomes. This includes mapping the client’s existing contacts to help build an understanding of the people and organisations they already interact with and may trust. For example, this may better support and encourage a homeless client to turn up to a criminal court hearing and be able to demonstrate a turnaround in their behaviour to a magistrate. This strength-based approach challenges the historical focus of legal, health and social services’ on clients’ deficiencies towards possibilities and solutions.xxx Often, in traditional practice, the patient or client’s role is no more than the repository of the disease or legal problem: their personal characteristics or individual decisions are rarely considered, except where these support diagnoses or legal strategies. Health-based research examining strength-based approaches in Aboriginal and Torres Strait Islander Peoples is also marking a shift away from deficit discourse and towards a focus on outcomes and processes that are more holistic and culturally appropriate.xxxi Much can be learned in general practice from these developments in relation to First Nations people. The SCIE makes a very important point stating that, usually in professional services (in this case the law), it is formal qualifications and professional expertise that are valued, when, in fact, it is attributes and qualities such as local knowledge, communication skills and a desire to contribute and participate that deliver the most beneficial help. Incorporating these skills enables a more equal and respectful relationship between lawyer and client. This can lead to positive outcomes for the client by fixing their legal problem or at least making inroads into these and other problems which might have not been previously identified. Further positive benefits can include making the client feel heard, and for the legal professional, the benefits that flow from an improved client relationship, for example, a client returning for services, a more fulsome picture of the client’s situation or improved well-being (see Chapter 14). The SCIE suggests that, in using this strength-based approach, assessment is a collaborative process of gathering information through a conversation drawn from open questions with the client.xxxii Assessment of the full impact and nature of the problem can lead to interventions not just in solving the legal problem at hand but in addressing its causes, solutions and addressing flow on effects earlier. For instance, through linking a client up to support services.

74  The case for change This gathering information from the client is collaborative in the sense that typically, the lawyer asks the questions and a client answers. Some lawyers can make assumptions and their questions can be based on these assumptions. This can mean that they can miss crucial bits of information, or the client can feel as if they are being interrogated. Chapter 9 and a study by Moorhead, Robinson, Matrix Research and Consultancyxxxiii highlight the implications of hierarchical models of legal service delivery and problems with linear questioning. The study by Moorhead, Robinson, Matrix Research and Consultancy shows that the advisers often failed to identify through their interviews, the true extent of the clients’ problems. As clients often have multiple problems that occur in clusters, improved exploration and an identification of intersecting problems with capacity to build trust through acknowledging emotional impact on clients are skills that legal advisers require (see discussion in Chapter 6).xxxiv If the client feels uncomfortable or believes there is no point in sharing information as nothing can be done (a factor identified in the study by Moorhead, Robinson, Matrix Research and Consultancy), it can inhibit a client in sharing information or being able to see the linkages that might be important to resolving a problem/s. A strength-based approach values the capacity, skills, knowledge, connections and potential in individuals and communities. Importantly, focusing on strengths does not mean ignoring challenges or being naive about realities of service delivery, policy settings or options. What the approach does do is open up a dialogue that may lead to more information sharing, practical and tailored options that are more effective because they are responding to the client’s context. Research by Hook and Andrewsxxxv suggests that a client seeking support contributes as much to the chance of a successful outcome in an intervention as either the practitioner or the practitioner’s technical skill. This supports the argument for routinely considering the individual’s contribution (strengths) to the effectiveness of solutions, rather than treating the person as a passive recipient. Rapp, Saleebey and Sullivanxxxvi suggest a strength-based approach can also be an indication that the relationship is hope-inducing and offers meaningful choice. Although there has been a limited amount of research evaluating the efficacy of strengths-based practice,xxxvii Pattonixxxviii has noted that strength-based approaches offer alternatives to traditional expert, deficit-based models and that the evidence about their effectiveness is beginning to emerge. Solution-focused therapy Although the word therapy is not so helpful in a legal context, ‘solution-­ focused therapy’ (SFT) focuses on what people want to achieve rather than on the problem(s). It seeks to determine pathways and solutions for

Client-centred approaches 75 reaching client goals and pursues lateral answers to problems. SFT (and solution-­focused brief therapy) have been used in family service and mental health settings, in public social services and child welfare, in prisons and residential treatment centres and in schools and hospitals.xxxix Again, considering such an approach in interacting with clients and developing problem-­ solving strategies might be worthy of consideration in a legal context. Narrative The ‘narrative’ concept highlights the role of the client and others affected by the problem or harm. It privileges their voice in explaining what occurred, how it occurred, why it occurred and their feelings and consequences about what occurred. The power of narrative was brought to the fore in the royal commissions discussed in Chapter 2, although as noted in Chapter 3, this detail can subsequently be forgotten, and little change results from it/ knowing this information. The role of the narrative takes centre stage in developing restorative practice (RP) and is explored again in Chapter 7. Integrating the place of narrative earlier in solving problems might lead to earlier intervention through deeper awareness and understanding of the impacts of the problem and prevent it from escalating. Practitioners using this approach assume that hidden inside any problem narrative is a story of strength and resilience. Chapter 7 will explore examples of how a narrative is being used in client-centred practice in the RP context. Separating the problem from the person by externalising it can, in certain circumstances, allow clients to begin to deal with their problems in a constructive way. It can also provide a powerful form of advocacy in policy and law reform settings.xl Trauma-informed practice In my experience teaching clinical legal education (which is often taught as an elective offering) and legal practice experience (LPE) programs to graduate lawyers, when students commence the course, they lack the necessary training to consider or manage the impact of clients’ emotional and traumatic experiences. This suggests other law curriculum may be ignoring the development of these critical skills. Yet, this training is equally pertinent for lawyers who practice in areas such as family law, care and protection, FV and poverty law. No matter where the lawyer works, there will be a need to manage emotional content. Trauma-informed practice has been guiding a range of professionals in their work for some time. It is a part of social work training and scholarship.xli Many of our clients have been through traumatic events. This can include areas already discussed in Chapter 2 such as childhood sexual institutional abuse, FV or trauma of torture or war. As lawyers we

76  The case for change need to understand and work out the effect of trauma on clients and on their behaviours to not only adequately represent them in court cases but to understand issues behind client behaviours, such as paralysis, depression, low self-esteem, self-harm, destructive behaviours including self-sabotage, distrust, agoraphobia, memory loss and panic, all of which can manifest when we work with clients. Knowing about how trauma can impact on behaviours and impede psychological development can help lawyers be more effective in how we interact with our clients (see Chapter 9).xlii This is also discussed in relation to RP in Chapter 7. Adopting a client-centred approach also assists lawyers in trauma-­ informed practice to avert the disconnect of traditional think like a lawyer models with their accompanying false expectations that the law is neutral and impartial. Such expectations give rise to a dissonance between the idea and the reality of real-life practice where lawyers are dealing with the human condition and dimensions of client problems. If legal education, legal practice experience and ‘clinical legal education’ settings can better position lawyers and students to work with challenging client contexts that look to client-centred methods, then lawyers may be better able to assist them.xliii

Continuous learning, development and improvement Learning from other disciplines and applying these skills can assist the legal professional and legal institutions better meet and respond to the needs of clients and community. From this wider perspective, the role of the professional becomes less about being a fixer of problems and more about being a co-facilitator of solutions, beyond the traditional hierarchical approach, as outlined earlier in the chapter. With the poor experiences and trauma often experienced by many in our community and the problems already identified with traditional ways of doing law, embracing such ideas and possibilities from other professions where there is evidence-based practice is worth considering. Being a professional does not always mean having all the answers. Opening up discussions with individuals creates an opportunity for them to contribute with practitioners who are also continuing to learn.xliv Reflecting on practices of different disciplines and working to improve and refine our ‘law practice’ in a world of complex clients and situations together can have a positive and lasting effect on service development.xlv The nature and benefits of MDP are explored next, in Chapter 6. A hierarchical ordering of legal concerns over other professional’s needs for their client, and a siloed view of the prioritisation of legal issues over the client’s other problems (which may be relevant) ignores the sometimes more pressing non-legal issues. Sometimes, even though the lawyer sees the benefits of new ways of practicing; such as client centred or MDP, they find the change in behaviour that it requires hard to sustain or implement.

Client-centred approaches 77 Through more client-centred practice, lawyers can meet the human needs of their clients, maintain ethical standards, show compassion and acknowledge cultural and power differentials. Clients and their lawyers can feel more empowered, connected, understood and useful in the process.

Conclusion This chapter has identified new ways of lawyering by drawing on client-­ centred practices from related professional disciplines. Building the capacity of lawyers is key to realising the benefits of these new practices. Legal education needs to go beyond learning by statute and case law alone and encourage students to think about inclusion and broader problem-solving apparatus. This will be discussed in more detail in Chapter 9. Such enhancements may also provide a repertoire for meeting obligations as legal professionals, in particular, ASCR 7.1 cited earlier in the chapter: A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.xlvi

Questions for discussion 1 If you were a client, how would you like to be treated by: a your lawyer b the other side’s lawyer c the court? 2 What does your answers to Question 1 mean for how you think models in this chapter might have relevance in your future lawyering?

Notes i ii iii iv v vi vii viii ix x xi xii xiii xiv

Enos, Kanter (2002), 83. Curran, Taylor-Barnett (2018), 7. Curran, Taylor-Barnett (2018), 47. Curran (2015b), 66. Curran (2017a), 121. Ibid. 121. Kruse (2011), 577–94. Curran (2015b), 66; Curran (2017a), 121; Curran, Taylor-Barnett (2018). Commercial Bank of Australia v Amadio (1983), 461. Tyler (1990); Tyler (2003), 283. Freedman (2011). Kruse (2011), 584–5. Davey (2019). Dal Pont (2016), paras 1.125–30.

78  The case for change

xv Note: the ‘Australian Solicitors Conduct Rules’ (ASCR) were collaboratively developed by the Law Council of Australia and promulgated in June 2011 with minor revisions in 2015, as a common set of professional obligations and ethical principles for Australian solicitors ASCR have been adopted in SA, Queensland, Victoria, NSW and the ACT. xvi Law Council of Australia (2015), 5–6. Used with permission. xvii Ibid. 18. Used with permission. xviii Freedman (2011); Kruse (2011), 577–94; Lawton (2014), 149; Siegel, Hussemann, Van Hoek (2017), 595–6. xix For an example, see Lawton (2014), 149. xx Clyne v NSW Bar Association (1960); White Industries v Flower & Hart (1998). xxi Law Council of Australia (2015), ASCR 17.1, 20.1.5. xxii Crockett, Curran (2013), 70−95; Crockett, Curran (2016). xxiii Chay, Smith (1996), 67–71; Dal Pont (2016), 83–110; Hyams, Evans, Campbell (2014), 19–22; Wolski (2011); Wortham, Brooks, Scherr, Maurer (2016). xxiv Siegel, Hussemann, Van Hoek (2017), 595–6. xxv Lawton (2014), 149. xxvi Butler (2019), Victoria Law Foundation Law Oration, 14 August 2019. xxvii Note: de-identified student portfolio reflection in course work in 2019. xxviii Social Care Institute for Excellence (2015). xxix Ibid. xxx Saleebey (Ed) (2006). xxxi Fogarty, Lovell, Langenberg, Heron (2018). xxxii Social Care Institute for Excellence (2015). xxxiii Moorhead, Robinson, Matrix Research and Consultancy (2006), 2, 13, 55–6. xxxiv Ibid. 62, 95–6. xxxv Hook, Andrews (2005), 425–38. xxxvi Rapp, Saleebey, Sullivan (2005). xxxvii Lietz (2009), 85–7. xxxviii Pattoni (2012). xxxix Duncan, Miller (2000). xl White (1992). xli Knight (2015), 25–37. xlii Ko & Ford et al. (2008), 396–404. xliii Katz, Haldar (2016), 359–94. xliv Boyle, Slay, Stephens (2010). xlv O’Neil (2003), 113–29. xlvi Law Council of Australia (2015), 5. Used with permission.

6

Multidisciplinary practice

This chapter explains and defines multidisciplinary practice (MDP). It provides examples of models that have been undertaken in Australia. It examines some findings in research and evaluation, with references for readers seeking further detail. The discussion examines the history and landscape of MDPs in a legal context, which has not been the focus of previous literature. ‘Multidisciplinary practice’ is defined here as multiple service professions working together to provide a holistic and cohesive service for clients/ patients. MDPs offer access to the expertise of multiple professions in one place, as is appropriate to respond to a client’s combination of issues. Successful models are client centred with different services responding to the different issues, needs and concerns in conjunction and in ‘collaboration’. Often, all services are located in one setting or are closely linked through for instance onsite visits or technology (for example, if the setting is statewide, remote, rural or regional). The legal literature and new reporting of the 1990s and 2000s discussed MDPs in the (limited) context of law, accounting and financial planning firms.i Less visible in research and news reporting were MDPs operating in non-­ commercial contexts to address a range of issues impacting and intersecting with legal issues.ii West Heidelberg Community Legal Service in Melbourne, Australia, had a form of MDP established as early as the 1970s. Also, the statewide Victorian Consumer Law Centre has had an MDP model since 1985.iii MDP has been around for a long time in other service settings, such as hospitals and among community health providers where it is common for doctors to work alongside nurses, counsellors, physiotherapists and social workers.iv Since 2013, the application of MDP, with a law component, has broadened beyond commercial contexts. This is largely in order to better help and reach clients/patients with an array of legal problems, such as poor access to justice, poverty, disadvantage and poor health outcomes.v This wider application may be due, in part, to the Australia-wide Law Surveyvi which drew attention to problems capable of a legal solution and barriers to legal help. The study identified a need for services to work more closely together.vii Similar recommendations occurred in the Productivity Commission, Department of Justice Access to Justice Review and the Allen Consulting Report.viii

80  The case for change

Background to multidisciplinary practice According to the National Association of Community Legal Centres (now Community Legal Centres Australia), ‘79.1% (102 CLCs from 129 respondents) reported offering legal outreach at a location or locations other than their main or branch offices’.ix Whether this outreach takes the form of MDP is unclear as the nature of the activity and of the non-legal service coverage is not described. It is therefore hard to discern how many MDPs there are in Australia. An MDP in a legal practice context can include an array of services working together, for example, in schools alongside teachers or health-justice partnerships (HJPs discussed later in this chapter). The primary aim of the MDP in this context is to break down the silos between legal and other professionals to reach and address the human rights and social, legal, economic and health needs of vulnerable populations. In my experience, a key purpose of MDPs is to link with services out of reach for some vulnerable clients. As mentioned in Chapter 1, the research findings are that vulnerable, poor people and others experiencing other forms of disadvantage or social exclusion are excluded from elite services, such as lawyers for a range of reasons. These can include lack of money, not identifying their problem as having a legal dimension, poor access to information and distrust of lawyers and or the legal system. An MDP can extend to a broader array of contexts including services for homelessness, multicultural and resettlement, women’s refuges, drug and alcohol, youth, environment and planning. In Australia in recent years, HJPs have flourished and evaluation, research and funding have grown.x Most of the MDPs under discussion in this chapter started as innovations to reach vulnerable people who had legal problems not being addressed, which were impacting poorly on their health and well-being. Many of these MDPs have been underfunded, are redeploying already stretched resources or are being partly funded by philanthropy, government or council. Nevertheless, most have been evaluated as having a positive impact on health, social and legal outcomes. It is encouraging that the innovators of the first MDPs in Australia did not wait until their programs were fully funded. They acted as they saw MDPs as a service response to better reach groups who were identified as most in need but unlikely to access legal help. MDP approaches include co-location, outreach, partnership and integrated service delivery.xi These terms are often used interchangeably (and often inaccurately), but all can be forms of MDP practice. Services are also described as partnerships or integrated when, in fact, they stand side by side or still work in silos and are merely networked. It is important to delineate how the MDP operates in each instance as, different contexts may call for particular approaches, or services may be working alongside one another, but are not actually integrated. The Victorian Health Promotion Authority (VicHealth) has highlighted that there is a continuum and that the pathway to integration and partnership can be overstated, complex and claimed prematurely.xii This can also have a bearing on service effectiveness and so it is an important point.

Multidisciplinary practice 81 Integrated justice practice ‘Integrated justice practice’ is an emerging model of MDP being developed in rural and regional Victoria and NSW through the Invisible Hurdles Project – a youth family violence (FV) project (a partnership between Hume Riverina Community Legal Service, Albury–Wodonga Aboriginal Health Service, Wodonga Flexible Learning Centre and North East Support and Action for Youth in Wangaratta).xiii This project of Upper Murray Family Care is an example of MDP in Australia. Legal secondary consultations as a critical role in MDPs One area of activity emerging as a significant part of effective MDPs is the use secondary consultants (SCs).xiv I have used SC for two decades in my practice to great effect. Legal secondary consultations (LSCs) are where the lawyer offers a non-legal professional or other support worker information or advice on legal processes, for example, what happens at court, giving evidence and writing reports, ethics processes and professional obligations or guides them through tricky legal situations. SCs are emerging as a critical method of building the professional capacity of health/allied-health professionals so they can provide timely and responsive legal advice to time-poor professionals.xv

Examples of multidisciplinary practice (non-HJPs) in Australia This next section takes a look at some of the different MDP models in Australia. The nature of HJP models and settings will be explored later in this chapter. As I have practiced in this area and conducted research on emerging models in Australia, the United Kingdom and Canada, my focus here will be on the services I am most familiar with. Information about other models is provided in the ‘References’ and ‘Appendix 2 – Author publications’. Consumer Action Law Centre Consumer Action Law Centre (Consumer Action) was one of the early models of MDP in Australia and is a statewide specialist community legal centre (CLC) in Victoria targeting clients experiencing disadvantage on consumer and debt issues.xvi It provides legal advice, representation, community and professional development and undertakes policy work. The service also runs a statewide financial counselling service and has had financial counselling services co-located as a core part of practice since 1985. Consumer Action also runs a worker advice line that provides SC to onsite financial counsellors and to external non-legal professionals across the state (by phone and email) for a range of service providers who work with clients experiencing disadvantage.xvii

82  The case for change The service utilises distinct spaces within the office and operates separate systems for the financial counsellors’ records and the lawyers’ casework files. This ensures ‘client confidentiality’ is protected. However, financial counsellors, community engagement personnel and lawyers also work together closely to support and reach out to clients on consumer protection laws and to advocate to regulators and companies. The MDP has a shared staff room, human resources department and other organisational support functions. The legal service and financial counsellors combine on policy initiatives and have joint social events. This MDP has been routinely positively evaluated.xviii Homeless Persons’ Legal Clinic The Homeless Persons’ Legal Clinic started in Victoria in October 2001 in large part as a result of a Churchill Fellowship Report.xix It was part of the then Public Interest Law Clearing House (now Justice Connect).xx Other clinics opened in 2002 (Queensland), 2004 (NSW) and 2006 (South Australia). These clinics work alongside other agencies to whom the homeless are likely to turn or seek services from, such as breakfast programs and soup kitchens, in the knowledge that homeless people are itinerant and often have unresolved legal issues. It operates as an ‘outreach model’ of legal service where the clinic staff go out and work with different agencies and then return to a main legal office. However, since 2015, Justice Connect in Victoria has provided an onsite lawyer at Launch Housing in the Melbourne inner suburb of St Kilda, to work in an MDP alongside housing, health and homelessness workers in the Under One Roof Project. A three-year evaluation of this project found that it ‘enhances strong relationships with frontline homelessness agencies and non-legal workers, enabling Homeless Law’s early intervention in resolving legal and non-legal issues for homeless or at-risk Victorians prior to crisis point’.xxi The project experienced a 50% increase in referrals to the senior criminal lawyer from Launch Housing between the first and third years. The evaluation noted that having a lawyer onsite increased non-lawyers’ understanding of legal issues affecting clients, with 88% being more confident in asking clients about legal issues because of the co-location.xxii Upper Murray Family Care Upper Murray Family Care (UMFC) is an independent, non-government, community-managed agency established in 1979. It offers a range of quality services that are responsive to the varying needs of communities extending from the Victorian cities of Albury–Wodonga (head office), Wangaratta, Benalla, Towong and Mansfield, and the Alpine and Indigo shires, with a primary goal of strengthening, nurturing and caring for children and

Multidisciplinary practice 83 families. A range of services are co-located under one roof and are offered as programs of UMFC, including the Hume Riverina Community Legal Service (HRCLS) (which joined in 1999), child and family services, foster and kinship care services, financial counselling, aged and disability services and family relationships services. As well as being a program of UMFC and part of the broader MDP of this service, the HRCLS has been re-funded to extend a three-year pilot project (2015–2018), the Invisible Hurdles Project, to increase access to free legal assistance for young people experiencing, or at-risk of FV. Phase 2 of the project has been expanded to increase professional and ‘community development’ and policy action undertaken collectively by all project partners working collaboratively. The Invisible Hurdles Project was described in its early days as an integrated justice practice model. It is co-funded by the Legal Services Board and Commissioner of Victoria, and Legal Aid NSW. The project involved the HRCLS embedding a no-cost lawyer into three organisations across three regions: Albury–Wodonga Aboriginal Health Service, Wodonga Flexible Learning Centre and North East Support and Action for Youth in Wangaratta. An evaluation of the project found that it was meeting it aims and had assisted over 100 people with legal problems who would not have otherwise accessed a lawyer.xxiii Djirra Djirra is an Aboriginal community-controlled organisation based in Melbourne. It supports Aboriginal women’s journey to safety and well-­ being, aiming to prevent and address FV in a culturally appropriate and safe space. Djirra provides legal support, community education and early intervention and prevention programs. In this model, the legal service also offers practical non-legal supports onsite through the MDP, including counselling, Aboriginal workers accompanying Aboriginal women to appointments and providing financial assistance and personalised referrals to specialist support services for help with issues, such as housing and homelessness, drugs and alcohol, parenting, debt and employment (some of which may be offsite). They also have an onsite Koori women’s place at their head office, which conducts cultural and social activities. All these services are linked into the work of the lawyers. The service also has offices in regional and rural Victoria. Evaluation of the Djirra early intervention and prevention programs in 2014 and 2017 found that the programs were effective, with women reporting that they felt confident, positive and empowered by their participation with corresponding significant changes to lifestyle, living arrangements, and matters relating to custody of children, reduction in isolation and improved community networks.xxiv

84  The case for change The Asylum Seeker Resource Centre The Asylum Seeker Resource Centre (ASRC) in Victoria is an independent community agency providing a varied range of services to support asylum seekers. It relies heavily on volunteers and donations at its bases in the metropolitan Melbourne suburbs of Footscray and Dandenong. It provides aid, justice and empowerment programs to over 1000 asylum seekers (in the 2017–2018 financial year) living in the community. ASRC is an MDP providing a large range of services and professional support including food and groceries at the ASRC food bank; legal, counselling and mental health support for people experiencing grief, ‘trauma’ and loss; a health clinic offering primary health services including: general practitioner and nurse consultations; physiotherapy; psychiatry; diabetes screening and management and immunisations. ASRC has a free legal advice service through the ASRC Human Rights Law Program and is not funded by government. It also offers an employment program including entrepreneurial training, a catering service, English classes and programs for sports, arts and recreation. In addition, the ASRC offers casework and advocacy for people in immigration detention in Australia (including Christmas Island), Nauru and Manus Island. In the 2017−2018 financial year, ASRC provided 3,871 services with an increase of 86% in requests for support, in particular, with homelessness, destitution, acute mental health issues, domestic violence, food insecurity, material aid and financial assistance.xxv School lawyer programs School lawyer programs are predominantly funded through philanthropy. In this MDP model, a lawyer is embedded in the well-being team at a school and provides accessible, free, confidential and trusted advice to school students. The school lawyer is employed by a local CLC, Victoria Legal Aid or other legal organisations.xxvi WEstjustice has been supporting school lawyer programs in a number of schools in the disadvantaged west of Melbourne for several years including a pilot program at The Grange P–12 College in Hoppers Crossing in 2015. Young people aged 15–24 years old are 2.4 times more likely to experience a legal problem when compared with older age groups yet are less likely to seek advice from professionals for their legal problem.xxvii As with the Invisible Hurdles Project discussed earlier in the chapter, WEstjustice also works with teachers in schools. Key elements of these programs are visibility, approachability and engagement with staff, teachers, young people and their families and other in-school supports such as social workers. These programs have assisted young people and their parents with a broad range of legal issues including consumer law problems, criminal law matters, family law and FV matters, homelessness, fines and employment law problems. The lawyers also provide ‘community legal education’ to staff,

Multidisciplinary practice 85 students and their families on diverse topics including sexting, bullying and cyberbullying, online safety, debt, employment law and criminal law.xxviii

Health-justice partnerships Research shows that unresolved legal problems lead to stress and anxiety which in turn causes poor health outcomes. Disadvantaged people only consult lawyers for about 16% of their legal problems.xxix People who are disadvantaged and experiencing legal difficulty often have not just one problem but multiple and complex problems.xxx Trusted professionals, such as the health profession, teachers and allied-health professionals, can help bridge this gap.xxxi All of these services have shaped the development of HJPs and are compelling reasons for taking new approaches to legal practice and working more closely with health and allied-health services. The international context The United States In the United States, HJPs are called medical-legal partnerships (MLPs) and have developed over many years in a context where there is no free universal access to health services. The National Center for Medical-Legal Partnership in the United States indicates that there are 330 MLPs.xxxii Much has been written about why there is a need for HJPs based on the merits of MLPs in the United States.xxxiii The United Kingdom The GOSH Project in the United Kingdom, a partnership between the Great Ormond Street Hospital, NHS Foundation Trust and Camden Citizens Advice Service (CCAS), is effectively an HJP.xxxiv It has been operating since 2008 providing social welfare legal support in a tertiary health setting. The premise for the project is that there is a link between poverty and health and that families struggle with social welfare problems at the very time their resilience is low. Such stressors can impact on parents’ ability to care for their dependents and even affect their own health. CCAS provides an onsite social welfare law advice service for parents and carers of children attending the hospital. An analysis of the service data in 2014–2015 concluded that, because of the HJP, the number of contacts with families had increased from 1282 to 2508 as a result of providing advice through channels such as face to face, telephone and email, in ways that best suited GOSH-participant families. Nottingham Law Centre operated a service with lawyers working in general practice (GP) clinics in their catchment area over 2015. However, this service was not re-funded in 2016 despite having been positively evaluated.xxxv

86  The case for change University College London (UCL), through their Centre for Access to Justice, has also operated a student law clinic as a small HJP within a GP practice in East London since January 2016.xxxvi The centre has recently published a report mapping HJPs in the United Kingdom that states that there is a ‘strong case for integrating and embedding social welfare legal services in the health sphere, providing these services where people most need them and at the earliest opportunity’.xxxvii Since the release of the Low Commission Report in 2015, there has been more interest in establishing HJPs in the United Kingdom, given the inquiry’s finding that health outcomes would be improved through MDPs.xxxviii Between 2016 and 2020, I was invited to speak about HJPs at a variety of forums in the United Kingdom including the pro bono lawyer network, Law Centres Network, UK, University of London, University of Oxford and Nottingham Trent University. These engagements provided the opportunity to discuss the logistics for starting up HJPs and the growing evidence base for their impact on health and social outcomes. Sue James, from the Hammersmith and Fulham Law Centre, has a Winston Churchill Fellowship to research innovative ways of delivering legal assistance services in the United Kingdom, including HJPs. This is due to be published in 2021. Canada In Canada, there has also been interest and some HJPs or SC initiatives emerging.xxxix The Canadian Bar has also called for a multidimensional form of lawyering that engages with health, allied-health and social service agencies to build trust and enable preventative strategies.xl Asia and Europe There is interest in the HJP model in jurisdictions including China, Denmark, Indonesia, Malaysia and the Ukraine.xli The Australian context: community health setting models The first HJP in Australia to co-located services was the West Heidelberg Legal Service and the West Heidelberg Community Health in 1975. In 2012, Noblexlii published a report arguing for similar services to be explored in the rest of Australia. This was part of a fellowship following Noble’s trip to the United States to explore what were then described as ‘health-justice advocacy alliances’ but were later called HJPs. Noble’s report has since gained traction in Australia, and Pleasence and Balmer et al.xliii research has further demonstrated that legal problems, if left unresolved, can negatively impact on health and well-being. Most HJP/MLP models both in Australia and the United States seek to positively impact on the social determinants of health (SDH).

Multidisciplinary practice 87 There has been a proliferation of HJPs in Australia in a short time.xliv A large number appear in Victoria, partly in response to the Legal Services Board and Commissioner’s Victoria Grants Program in 2014–2015, which developed a theme for FV prevention involving HJPs and later HJPs in general.xlv Many of the resulting service innovations do not have designated funding and are operated by organisations using volunteers or redeploying existing staff. Others have short-term funding, are still fledging or in their infancy, while others are more established. This section looks at several of these HJPs in community health settings, and two examples within hospital settings. West Heidelberg In 1975, the health and allied-health services were co-located with the community health centre in West Heidelberg, Melbourne. The West Heidelberg Community Legal Service was established as a separate entity. In 2014, the service merged into a program at Banyule Community Health Service and remains today the first and longest running HJP (although the term HJP was not used until 2013) in Australia. This is where my first engagement with an HJP began.xlvi The HJP at West Heidelberg emerged in response to the 1970s Commission into the Inquiry into Poverty,xlvii which established a link between poverty, health and law and the relevance of each in leading to improved health and well-being. As noted earlier, the development of this HJP was influenced by MLPs operating in the United States at the time. The West Heidelberg HJP model involves lawyers working closely with health and allied-health professionals on a single site to respond holistically to client need. An evaluation by Noone and Digneyxlviii from 2010 highlights that integrated models of legal and health services require effort, positive relationships and support, not just at practitioner level but also at a governance level, and the collection of good data. This is a point that has been reiterated in numerous studies on HJPs since.xlix Bendigo The HJP in Bendigo, Victoria, is a partnership between Loddon-Campaspe CLC and Bendigo Community Health Service (BCHS). In this partnership, a lawyer works in an MDP three days per week, alongside health and allied-health professionals. The service is specifically targeted to the suburb of Kangaroo Flat in Bendigo, with a part-time lawyer working onsite at the local community health service. This is an area of socioeconomic disadvantage, where the health service targets vulnerable families many of whom have children with a disability. The aim of the HJP is to reach those clients currently excluded from legal help and to have a positive impact on their health and well-being. After working in legal service delivery for 10 years at the West Heidelberg HJP, I wanted to test the evidence base as to whether the HJP model could

88  The case for change make a difference in other services and districts. The evaluation I was subsequently engaged to conduct of the Bendigo HJP aimed to assess whether the HJP model improved legal, health and social outcomes. I evaluated the project over three years and found that almost all clients interviewed would not have accessed legal help or engaged with their legal problem if it had not been for an HJP referral from a BCHS professional.l Most of the clients I interviewed would not otherwise have known that the presenting issue was capable of a legal solution,li with their situation exacerbated by poor prior experiences of the legal system, lawyers and legal costs. Clients’ legal problems were often reported as compounding their health and other issues, such as drug addiction or relapse into poor mental health. The HJP referral led to positive health outcomes including being less stressed and anxious as a result of understanding their legal position.lii Central Highlands The Central Highlands HJP in country Victoria is a program delivering health and legal services to young people through access to a CLC lawyer located at Ballarat Community Health (BCH). Funded through a grant by the Victoria Legal Services Board (LSB) and Commissioner, this HJP delivers integrated health-justice services.liii The program commenced in 2015 forming a partnership between Federation University Australia, BCH and the Central Highlands CLC. According to the 2018 evaluation, a range of factors assisted the HJP including the use of SCs, a legal health check and a simplified checklist tool for the BCH on a dedicated website.liv These factors were integral in assisting and building the capacity of the health professionals to engage with young people about their legal problems. Many of the health professionals and young people had not sought legal help prior to the HJP. The final evaluation report, as with the Bendigo HJP evaluation, stressed the importance of program promotion, visibility and approachability of the legal team as critical to the building of trust and relationships. These are necessary to gain referrals and engagement in the hard to reach the target group of this program, namely young people.lv Mabels Project The Mabels Project is an HJP between the Eastern Community Legal Centre, Boorndawan William Aboriginal Healing Service, Maroondah City Council and Yarra Ranges Council in Victoria. What is unusual about this project is that it has engaged local councils with large catchment areas, also providing service delivery into community. The project aims to intervene earlier so to prevent problems from starting or escalating. It does this by better supporting women and children who are experiencing FV, through linking up services early with women in a health context, and where possible, before any involvement with police or the courts. The Mabels Project is

Multidisciplinary practice 89 an HJP that relies on trusting relationships between lawyers and the women’s health and allied-health professionals. Its evaluation report stresses the need for interconnectivity of different services, including legal, to identify risk earlier and address safety issues.lvi It further highlights the complexities around engagement and trust when trying to reach clients who are at risk and the importance of long-term relationships, building capacity and the role of empowerment.lvii The evaluation highlighted that health and legal professionals working over a longer time with complex clients (those likely to have legal problems and often cascading and multiple issues) can lead to relationships of trust. Trust is gained and the momentum for change and client empowerment develops,lviii which then leads to referrals and the subsequent growth of the service’s client reach. Models in community agencies and community health settings that are given the time to establish are likely to be more successful. Goulburn Valley The Goulburn Valley HJP was another LSB-funded project, which sits within a therapeutic justice model (see Chapter 7). The rationale for the project was that law often intersects with people’s lives affecting overall well-being and health outcomes.lix Based in the Victorian regional city of Shepparton, the partnership involved the Goulburn Valley CLC and Primary Care Connect (PCC), a local community health centre, and was located in the Shepparton Magistrates Court. This HJP offered support for drug and alcohol abuse, refugees, primary health care, Aboriginal and Torres Strait Islander services, financial counselling and family and child services. The case manager for the HJP project and the social worker at the Goulburn Valley CLC worked side by side with clients who had criminal issues and related complex health and social issues, connecting them to appropriate support services; coordinating information sharing between these services and monitoring the clients’ progress. The social worker’s role could ensure that not just legal needs were considered. By using a therapeutic justice model, the courts were made aware of relevant information concerning a client’s underlying issues (such as mental health, substance abuse and disability impacts).The court could utilise this information to understand how the client’s engagement with appropriate services was reducing the likelihood of them reoffending. The project’s lawyer provided clients with legal information, advice and representation at court, and offered training through SCs to workers at PCC and other local health and social services. Unfortunately, funding for the project ended in May 2018 despite a positive evaluation (conducted in-house due to a shortage of funds).lx The evaluation noted the project had improved collaboration and coordination

90  The case for change between services and had started to break down silos, which lead to a greater willingness of clients in the court to engage with other services (to address underlying health and social needs that impacted on offending). Again, this evaluation made it clear that working closely, in the one setting, over time, enabled relationships of trust to develop between service providers and clients.lxi As previously noted, this is problematic when project funding is short termlxii By way of contrast, the Neighbourhood Justice Centres in the Melbourne suburbs of Moorabbin and Collingwood provide an example of a long running and positively evaluated court-based MDP model (mentioned again in Chapter 7).lxiii It is unclear whether their longevity lies in the fact they receive ongoing funding, or that their model of therapeutic justice is different. The Australian context: hospital models Hospital HJP models are different to the community health setting HJP models as they have particular challenges due to high number of patients accessing hospital services for short periods. This scenario makes engagement, referral and follow-up difficult. Hospital HJPs also have more personnel, staff turnover, complex bureaucracies, diverse professional cultures, formalities and requirements for funding, demands for quick discharge and long waiting lists, especially those in the urban settings under discussion here.lxiv Many of the existing hospital HJPs work closely with the hospital’s social work team or focus on a specific patient/client cohort, to avoid spreading their usually modest resources too thinly, and to target services to people most at risk.lxv By contrast, community health settings are locally based, and generally work with children and families for long periods of time. This allows greater scope for trusted relationships with the service to develop over time. Prince Alfred Hospital and the Redfern Legal Centre In mid-2015, the Royal Prince Alfred (RPA) Hospital and the Redfern Legal Centre in Sydney developed the first hospital based HJP in NSW. The RPA HJP provides legal assistance as a preventive health measure for First Nations’ patients while they are accessing care and health services. This focus was informed by emerging research on the negative impacts of unresolved legal problems on the health outcomes of First Nations people, and the prospect that co-location of services might improve access to justice.lxvi The HJP project lawyer works closely with the medical team at the hospital’s existing Aboriginal and Torres Strait Islander medical and health services clinic. Referrals to the HJP come from all areas of the RPA, including First Nations liaison officers, social work staff and nursing staff. The

Multidisciplinary practice 91 service was part funded by an external fund, the Gandevia Foundation, but due to government budget shortfalls a year after it opened, it has had to rely on further external funding. After six months of starting, a pro bono evaluation was conducted with a very small sample (5 clients and 12 staff).lxvii This was one of the earliest evaluations of a hospital HJP. It looked at whether inroads had been made into the project aims, namely to provide effective early legal intervention for First Nations people who would not otherwise access legal advice. Capacity among health professionals to identify legal issues and to improve health outcomes for clients of the legal service increased. In the short period, the partnership had assisted 62 clients. Prior to contact with the partnership, 80% of clients in the evaluation did not know their issue was a legal problem. Despite the small sample size, the evaluation findings were consistent with other evaluations of HJPs. Inner Community Legal Centre Inner Community Legal Centre (ICLC) has started several HJPs in hospitals in Victoria. A key theme identified in a recent report was the interrelationship between a patient’s stress from legal issues and their reduced ability to focus on their health or that of their children.lxviii Royal Women’s Hospital and Inner Melbourne Community Legal As the longest running hospital-based HJP service in Australia, this example is examined in greater detail. The first HJP started by ICLC was the Acting on the Warning Signs (AWS) Project at the Royal Women’s Hospital (the Women’s), which informally commenced in 2011.lxix This partnership between the Women’s and Inner Melbourne Community Legal (IMCL) was funded by the LSB, and was first evaluated in 2014, predating the RPA HJP project already discussed.lxx The AWS evaluation reported that health professionals felt significantly more comfortable asking client’s about FV after the training (20% very comfortable prior and 40% very comfortable post training), although one in five health professionals still felt overwhelmed when responding to such sensitive issues. The evaluation reported that health professionals’ post training reported a significantly greater understanding of the role of lawyers in a hospital setting (66% prior and 90% post-training). Health professionals also reported having greater awareness about intervention orders and how to tailor them to client needs. The evaluation found there had been a notable increase in referrals to IMCL in 2013 compared with 2011 and 2012, including FV and non-FV-related clients’ circumstances and needs.lxxi Patient participation in the evaluation was low, but this is to be expected given issues around safety, disclosure and the short-term nature of hospital visits. Again, this evaluation noted that building professional relationships takes time.

92  The case for change The evaluators noted that the large size of the women’s setting required more staff to be trained and more resources than were available. They further noted the complications and hard work required in truly embedding and integrating the service and awareness within workplace culture and the need for changes in practice.lxxii The project was discussed in a seminal and early Australian report on HJPs by Gyorkilxxiii who was the original manager of the AWS Project. Her report examines some of the international initiatives already discussed in this chapter and the benefits of a hospital model that integrated legal assistance into healthcare settings. She notes, in accessing people vulnerable to FV, the need to build understanding between the professionals who work with them. She further noted the need to break down silos in order for practitioners to better see and act on warning signs of ‘harm’. Most importantly, she talks of a need for reciprocity of training and understanding of the various roles of different service providers in responding effectively. This includes the ethical awareness of each profession’s role and associated obligations and contributions to holistic problem-solving for clients/ patients to address poor health and safety outcomes. Evaluations to inform what works and does not work and why to better respond are also noted as critical.lxxiv Inner Melbourne Community Legal and Royal Melbourne Hospital The IMCL also developed the Melbourne Legal Care project in partnership with the Royal Melbourne Hospital.lxxv The evaluation report of this HJP highlighted problems in general with collecting hospital and legal data, and discusses the value of qualitative data in working out what works and why, and what the barriers to enacting some of the recommendations are. Consistent with other HJP data findings, IMCL was the first point of contact for legal assistance for 80% of the 25 patients surveyed. The main reasons were: • • •

they didn’t know where to find a lawyer they didn’t think they could afford it they didn’t recognise they had a legal problem.

The evaluation reported that 95% of patients found it easy to see a lawyer at the hospital, due to the location, linking of appointments due to the close work between the disciplines. Forty-eight per cent of patients would not have seen a lawyer if they had not had access via the HJP. Cost and accessibility were the main reasons provided. Eighty-eight per cent of referrals came from social workers within the hospital. This highlights again the vital role for social workers as a gateway for patients in busy urban hospitals. Sixty per cent of patients were more confident to deal with their

Multidisciplinary practice 93 legal issue after the consultation. Forty-eight per cent of patients thought that the legal advice they had received would have a positive impact on their health and well-being. After the legal consultation, 76% of patients felt that they were able to manage with their legal issues, compared to before the legal consultation (44%).lxxvi The evaluation found that addressing legal issues has a demonstrated positive effect on a person’s health. Social workers at the Royal Melbourne Hospital commented that patients were better able to focus on therapies when their legal issues were being addressed or were resolved. They noted that a legal team can become an integral part of the care coordination processes within an MDP and facilitate direct access to legal expertise, which can have positive flow-on impacts on patient health. The latter point is consistent with my findings in the Bendigo HJP evaluation. Summary of health-justice projects This chapter has examined a number of HJP models and noted evaluation findings of the factors that make them effective. These examples provide valuable and salutary warnings for decision-makers, organisations, potential project partners, funders and policymakers that MDPs are not a quick fix but need to be carefully designed and implemented. Furthermore, collaboration and trust cannot be imposed in a ‘top-down way’ but are dynamic and organic, based on shared vision, understanding, trust and longevity. Where these exist, they can combine to lead to effective reach and impact.

Note of caution for services starting up multidisciplinary practice In many Australian MDPs, including HJP start-ups, the tendency might be to withdraw services due to low client numbers in the early months of operation. In fact, low initial referrals and client numbers are understandable in the early stages of any arrangement in HJPs. It takes time to build trust with the other professionals and their clients who are being targeted as groups that legal services traditionally find hard to reach. From my research, it is apparent the issues of these types of clients are often complex and multilayered, making such access problematic in short timeframes where trust issues, a lack of information about the relevance of legal issues to their problems, and poor previous experience of the legal system need to be overcome. Multidisciplinary practice requires a different approach to client care. This can include using the period of time to build referrals through SCs, which can be utilised within the service so to become visible and counter poor stereotypes of lawyers being aloof and hierarchical in their approach. This strategy has been shown to be effective in research studies by Noone and myself with Taylor-Barnett.lxxvii Lawyers can build trust and

94  The case for change approachability by being visible in shared staff places, such as the lunchroom, reception and corridors, and at the photocopier/printer; and having informal conversations with staff to build trust and approachability. Having a highly visible location for the legal office within a building can trigger non-legal staff to consider justice issues when assessing client or patient needs. Joint collaborations between lawyers and non-legal staff in conducting community and ‘professional development’ and training, together with SCs, contribute towards building a client base. Lawyer visibility and availability brings an understanding that lawyers are onsite and can help non-legal professionals recommend their service to clients affected by legal matters, and explain how legal help might in turn ease their other problems. For example, a doctor treating a distressed child discovers their anxiety has derived from mobile phone debt. The doctor confers with the lawyer who knows that if the telecommunications’ company did not obtain guardian consent regarding the phone contract, the contract will not be valid, and a request can be made to cancel the debt. As Noone and Digney’s study highlights, the role of law in solving an array of problems is not commonly understood even by other professionals. In an example from their study, the surveyed doctors initially indicated they would not often refer a client to a lawyer as clients rarely had legal matters that they knew about. Yet, later part of the evaluation, when asked to identify problems affecting patients, they identified many areas that were capable of a legal solution. This study led to a significant professional development strategy for the health and allied-health staff to highlight the relevance of lawyers to their patients. This, in turn, led to a significant increase in clients and heath and allied-health professionals using the service. Pleasence and Balmer et al.lxxviii made a compelling case as to the impact that public legal education and legal advice can make to the promotion of public health. While I agree with their conclusions that the public literacy needs to be a focus and undertaken in conjunction with non-legal services, a note of caution is needed. There are lessons to be learned from experience, namely my research findings of needing to take a long-term approach to projects of this nature, including ensuring agencies have similar objectives/ values and the adequate training and mentoring of new staff. Working in an HJP, just as in other MDPs is not easy. It requires building relationships of trust that need to be sustained, and a common vision and set of values that underpin the partnership objectives and aims. Such factors are rarely understood or valued by funders or boards of agencies. HJPs work very differently to traditional legal models that wait for clients to come to legal services and make appointments. As recounted in this chapter, in many of the HJPs I have researched, there is often a period where referrals are slow and client numbers are low. There are often setbacks when new staff are uninitiated in the new models and revert to traditional modes of lawyering (such as waiting in an office for appointments to be made, assuming

Multidisciplinary practice 95 people can identify legal issues, and not being visible or approachable). My research data from multiple studies consistently correlates setbacks in referrals, trust, reductions in SCs and lower levels of engagement to this reversion to traditional lawyering practice. Some readers may be wondering at this point whether alternative approaches to practice, and the experience of MDPs, are only relevant to lawyers working in community or public practice, rather than in the commercial sphere. A clear difference is that MDPs and HJPs in the public sphere rely on government or philanthropic funding. Commercial MDPs do exist in Australia and overseas, but evaluations of these are scarce. Outside the scope of this text, it would be interesting to consider the potential and practicalities of extending the MDP model into other areas of private practice such as family law. As noted in Chapters 1 and 2, many participants in empirical research in Australia over the past two decades had experienced the legal profession in an adversarial setting, either as a witness under cross-examination or had poor personal experiences of lawyers. What little research there is in this area suggests that community lawyers accustomed to working in community settings were considered easier to work with than lawyers in some private/legal aid practices which operate as businesses where time is money. Clients reported previous poor lawyer interpersonal skills including feeling ‘judged’, ‘not listened to’ and ‘not respected’, and had poor understanding of their legal issues through too much use of ‘legal jargon’ and ‘not being told clearly what was happening’ by their lawyers.lxxix In the research presented, working in an MD way and departing from traditional lawyering models, perceptions of lawyers changed over time. Trust and type of lawyer were key to this breakthrough. Non-legal professionals perceived that their clients received short shrift when lawyers’ key focus was on court outcomes rather than client outcomes. The impact of legal setbacks on clients often led to relapse or devastation.lxxx This outcome conflicted with their duty of care to not re-traumatise clients. Consequently, health professionals indicated that they were reticent to refer clients for legal help. This was reinforced by an allied-health professional participating in the Bendigo HJP evaluation: There are lots of clients historically who have been in the criminal system or who are still in it, who have had drug problems. The drugs have been used sometimes because of that involvement in the criminal justice system as it is so traumatic. This use has an impact on the health and so the legal system is not disconnected from their health. Here at the HJP my clients have had a better experience of lawyers than they have ever had before. I have to be frank: most have not had a really great experience of lawyers. One client told me his lawyer suggested he plead guilty, and he had not done anything, but it was just easier. The ramifications for the client were ongoing.lxxxi

96  The case for change In adopting the MDP approach, however, it is critical to develop new shared language. In order to start to break down silos and reduce reticence to seek legal help, lawyers need to hone and develop hard skills in interpersonal collaboration and communication.lxxxii It is critical to the success of MDPs that the lawyer be onsite and actively involved in the day-to-day environment of non-legal teams, such as being visible, approachable, non-judgemental and readily available so to engage with non-legal professionals and clients. Participants noted that the HJP lawyers were ‘responsive, ‘approachable’ and ‘part of the team’, ‘easy to work with seamlessly over time’. It was noted as a significant deterrent in seeking legal help if lawyers were ‘stuffy’ and ‘too technical’. Our clients want to see a human being and not be judged or dismissed. These lawyers in the HJP are great. No question is silly, and they make time even though I know they do not have it.lxxxiii In most of my empirical studies, research participants have noted that some lawyers are better at humane and responsive lawyering than others. They felt that greater collaboration with non-legal professionals, such as through HJP projects, would help traditional lawyers understand the needs of the client. Similar findings have also been noted in studies in the United States.lxxxiv The HJP has reached clients who would not otherwise have sought help. The use of trusted health/allied health professionals linking them in, a service that is co-located and ‘visible’, accessible, ‘responsive’ and the ‘opportunistic’ [sic] service at times when clients are there and ready, combine to not merely enable clients to have access to legal information and knowledge but to know about options they otherwise would not have known that they had. One might speculate that knowing of other options might lead to better and informed decision-making.lxxxv The Goulburn Valley CLCs shows that MDPs are not only relevant for non-legal professionals in community agencies but can also be integrated into the way of working of other presence of justice service providers such as the courts (including registrars, magistrates, judges and other non-legal professional participants such as correctional services). The model which has lawyers advising alongside other disciplines enhanced decision-­making, and a deeper understanding of legal options at agency and at a court determination level. Having access to a community lawyer, for me as a teacher, through legal secondary consultations, is incredibly valuable – it enables me to

Multidisciplinary practice 97 build trust before I hand over a vulnerable client. It is a level of trust I never had before in lawyers, to be honest. It is on the job training and saves time and reaches those who would otherwise be invisible.lxxxvi

Conclusion The data across my many studies show collaborative service delivery has been transformative for all the participants. The lawyers have questioned their traditional methods and are now lawyering differently, and the non-­ legal professionals have come to realise that the law can be a useful tool for resolving many of their clients’ problems. Non-legal staff responding to clients were also initially distrustful of the lawyers. However, through working in the MDP with lawyers who adopted a collaborative and approachable manner and having a joint focus on client care and holistic joint problem-solving across the different professions, they came to recognise the lawyers as responsive allies. This experience boosted the non-lawyers’ capacity to respond effectively to their clients’ needs and had the knock-on effect of reducing stress and anxiety in themselves and their clients. These hard communication skills cannot be automatically developed through practice. Therefore, Part 2 of this text directly addresses these skills in higher education or ‘professional development’ settings. Harris and Advocat et al.lxxxvii highlight that interdisciplinary practice can lead to improved relationships, changes in practice and increased job satisfaction and greater opportunity for collaboration, but these skills need to be acquired and are not easy. They note that such interdisciplinary practice, if done well, can improve client outcomes including health and the quality of care, lead to earlier intervention, reduce duplication and improve navigability through improved coordination and referral and planning. MDPs also give rise to opportunities for different disciplines to bring their unique expertise together to argue for policy reform.lxxxviii One under-researched aspect of MDP is its application in system reform where professionals bring their particular expertise to collaborative initiatives to advocate and help to shape policy reform or solve the root causes of systemic problems, as is currently occurring in the United States.lxxxix The recent extension of funding for the Invisible Hurdles Project includes a component in the evaluation to measure and assess collaboration among MDP partners in policy reform with a planned release date for the final research and evaluation report in 2021–2022.

Questions for discussion 1 How might an integrated justice practice or MDP work with different groups of people experiencing disadvantage in your home/country/ workplace contexts?

98  The case for change 2 Do you agree that agencies working in an MDP should share a common vision or purpose? Why or why not? 3 Are there any other disciplines that you consider would be able to work together with lawyers in an MDP to resolve the broad range of client problems that have not been canvassed in the chapter? Why would such inclusion be of benefit?

Notes

i Fischel (2000), 951–74; McGarry (2002), 107–204, 116 Stat. 745; Shroder (2014). ii Clarke, Forell (2007); Curran (2005); Curran (2008), 47−56; Hum, Faulkner (2009), 105–18; Legal and Constitutional Affairs References Committee (2009). iii Note: West Heidelberg HJP: the author worked at this service in an academic clinical supervisor role from January 2001 to July 2008 and then as director from March 2009 to January 2011. iv Curran (2008), 47−56; Willcox, Williams, Curran (2016). v Gyorki (2014); Noble (2012). vi Coumarelos & MacCourt et al. (2012). vii Pleasence, Coumarelos, Forell, McDonald (2015). viii Allen Consulting Group (2014); Australian Government Productivity Commission (2014a); Victorian Government (2016). ix National Association of Community Legal Centre (2016), 15. Note: new business name is Community Legal Centres Australia, www.clcs.org.au. Used with permission. x Ball, Wong, Curran (2016). xi Co-located services: Buck & Day et al. (2009); Forell, Gray (2009); Noone, Digney (2010); Pleasence, Coumarelos, Forell, McDonald (2015). xii VicHealth (2006). Note the author has developed the Partnership Analysis Tool and adapted it in the course of her evaluation work to create a Collaborative Survey Measurement Tool. See Curran (2017a). xiii Curran, Taylor-Barnett (2018). xiv Curran (2017e), 27. xv Curran (2017a); Curran, Taylor-Barnett (2018). xvi Note: the author has been a secondment to the CALC since June 2012 as in-house adviser. xvii Willcox, Williams, Curran (2016). xviii Curran (2017c); Sanderson, Edwards, Curran (2017); Willcox, Williams, Curran (2016). xix English (2001), 68. xx Homeless Law Clinic. xxi Lavery, Somerwine, Ho (2018), 4. xxii Ibid. 5–6. xxiii Curran, Taylor-Barnett (2018). xxiv Aboriginal Family Violence Prevention and Legal Service Victoria (now Djirra) (2014), 12, 17. See also Aboriginal Family Violence Prevention and Legal Service Victoria (now Djirra) & VicHealth (2018). xxv ASRC (2018), 8–9. xxvi WEstjustice, SVA Consulting (2018). xxvii Moore (2012); Coumarelos & Mac Court et al. (2012). xxviii See WEstjustice.

Multidisciplinary practice 99 xxix Coumarelos & Mac Court et al. (2012). xxx Pleasence & Balmer et al. (2004b), 301–29. xxxi Beeson, McCallister, Regenstein (2013), 2–13; Tobin-Tyler (2008b), 249; Tobin-Tyler (2012), 211–47. xxxii See National Centre for Medical-Legal Partnerships. xxxiii Cohen & Fullerton et al. (2010); Colvin, Nelson, Cronin (2012), 333–41; Fleishman, Retkin, Brandfield, Braun (2006), 2123–6; Health Justice Australia (2018); Locke & Caum et al. (2011), 237–45; Retkin & Brandfield et al. (2007); Tobin-Tyler (2012), 211; Zuckerman, Sandel, Lawton, Morton (2008), 1615–7. xxxiv Camden Citizens Advice Bureaux & GOSH (2016) project partnership. PowerPoint provided by Nick Wright of the Camden Citizens Advice Bureaux after we were on a joint panel at the pro bono lawyer forum on HJPs in London on 14 September 2016. xxxv Gyorki (2014), 27–8. xxxvi UCL (2018). xxxvii Beardon, Genn (2018), 4. © UCL Centre for Access to Justice, 2018. xxxviii The Low Commission (2015). xxxix Note: the author was invited to spend a part of 2016 visiting a number of legal assistance services and ran a series of workshops on the role for secondary consultations in Canada involving the CALC (2016) and the Pro Bono Law Ontario at the Hospital for Sick Children, which each have HJPs. See Currie (2019); Roberts, Currie (2012). xl Canadian Bar Association (2013). xli Note: the author was invited and presented a paper (in absentia; delivered by Professor Simon Rice) on MDPs for the EU High Level Legal Aid Policy Dialogue Meeting, Beijing, 1–2 September 2016, Malaysia. The author was invited to present a paper on MDP at the International Legal Aid Group Conference in the Ukraine in July 2019 but was unable to attend. After a keynote address at the FLE Conference in Oxford in March 2019; the author was asked to share materials on MDP, various models and how to start up such a model in health settings in remote settings in Indonesia and Malaysia. In 2016 and 2019, the author was invited to speak at the WELMA Centre at the University of Copenhagen. xlii Noble (2012). xliii Pleasence & Balmer et al. (2004b), 301–29. xliv See Appendix 3 for a list of HJPs in Australia. xlv Ball, Wong, Curran (2016). xlvi Note: the author worked at the West Heidelberg Community Legal Services, which is co-located with the Banyule Community Health. xlvii Commission into the Inquiry into Poverty (The Sackville Inquiry), Australian Government (1972–75). xlviii Noone, Digney (2010). xlix Curran (2017a); Curran, Taylor-Barnett (2018). l Curran (2017a), 84, 88, 91, 106. li Ibid. 146. lii Ibid. 17–25. liii Camilleri & Ollerenshaw et al. (2018), 1. liv Ibid. 5, 9, 25. lv Ibid. 51. lvi Eastern Community Legal Service (2018), 7–9. lvii Ibid. 99. lviii Pleasence & Balmer et al. (2004b), 301–29. lix Ibid. 552–7.

100  The case for change

lx Using the measurement tools developed by the author under limited licence. lxi Goulburn Valley Community Legal Centre (2018), 5. lxii See ‘Findings and recommendations’ in Curran, Taylor-Barnett (2018), 97, 104. lxiii Ross (2015), 499. lxiv Hegarty & Humphreys et al. (2014), 2–3. lxv Gyorki (2014); Roberts, Currie (2012). lxvi National Aboriginal Controlled Health Organisation (2019). lxvii Note: the author provided pro bono support with Professor Paul Haber, the Clinical Director, Drug Health Services, Sydney Local Health District and the Aboriginal MLP Redfern Legal Centre team including its CEO and solicitor to design a snapshot evaluation of clients and service providers. lxviii IMCL (2018), 5. lxix Ibid. 40. lxx Hegarty & Humphreys et al. (2014). lxxi Ibid. 2–3. lxxii Ibid. 5. lxxiii Gyorki (2014). lxxiv Curran (2017d), 11–36. lxxv IMCL (2018). lxxvi Ibid. 4–6. lxxvii Curran (2017a); Curran, Taylor-Barnett (2018); Noone, Digney (2010). Note: the author was Director of the West Heidelberg Community Legal Service and had some input into the research design and as a participant. lxxviii Pleasence & Balmer et al. (2004a), 552–7. lxxix Ball, Wong, Curran (2016); Curran (2015b, 2017a); Curran, Taylor-­ Barnett (2018). lxxx Curran (2015b). lxxxi Curran (2017a), 56. lxxxii Curran (2018b), 33–47. lxxxiii Curran (2017a), 56. lxxxiv Sandefur (2014–15), 722–7; Sandel & Hansen et al. (2010), 1697–705; Tobin-Tyler (2012), 211–47. lxxxv Ibid, 68. lxxxvi Curran, Taylor-Barnett (2018), 2. lxxxvii Harris & Advocat et al. (2016). lxxxviii Biuso, Newton (2008), 46–52; Harris & Advocat et al. (2016), 35–46; Robinson, Cottrell (2005), 547–60. lxxxix Cohen & Fullerton et al. (2010), 9.

7

Restorative practice

This chapter defines ‘restorative practice’ (RP) and explores how it might enhance the skills and problem-solving repertoire of legal professionals, providing additional options for justice to the traditional offerings of the law. The discussion shows how RP operates within client-centred approaches and a legal empowerment framework, as outlined in Chapters 3 and 5.i Examples from Australia demonstrate how the use of RP has expanded, from the criminal and youth justice spheres (that have been the subject of most of the research to date), to civil spheres such as employment, defence and institutional abuse contexts. Daly and Holder have observed that: A number of scholars suggest that perhaps ‘justice’ is not viewed in a singular manner … there are ‘intermingled’ aspirations for justice that may be meaningful in different ways and at different times.ii It is important to note that the term ‘restorative justice’ (RJ) is often used in legal literature and encompasses the overarching theory and philosophy within which RP sits, and may also include applications for RJ,iii whereas RP focuses on the processes undertaken in RP. This chapter’s focus will be on RP in order to progress this text’s aim of being forward-looking and on practice improvement. Restorative practice has an advantage compared to a rigid court process, as it does not view justice in a singular manner (examined in Chapter 2). For example, in criminal court cases they have an offender as the centrepiece and it is an action taken by the state rather than the specific complainant with a defence, a prosecution and a determination by a judge. This latter method can prevent truth telling, with rules of evidence and questioning from counsel, which can be selective and end up excluding certain aspects of the story (see more detailed discussion by Foleyiv). While acknowledging this is an important cornerstone of a fair trial system, it can leave the victim, the offender or their friends/family (and other related people such as witnesses) traumatised or disenchanted. As Foley notes, ‘Missing is a focus on removing the harm and damage caused to individuals and relationships’.v

102  The case for change This discussion highlights the need for a recalibration in traditional legal training to lessen the focus on adversarial settings and move towards increasing lawyers’ skills in counselling and facilitation. Such skills can better support victims, witnesses and others affected by ‘trauma’ or who might be further harmed by the legal process and its ways of working. For an example of such ‘harm’, a person who has recovered from a mental health problem might find it is exacerbated by the legal experience and it can cause a relapse (an issue highlighted in the case studies in Chapters 1, 2 and 5). RP has new responses to family violence (FV), care of children and institutional abuse responses, given the problems identified in the case studies in Chapter 2. In this chapter, I draw from the work of various academics and practitioners. I build on these elements by including some recent practice learnings particularly from the work of Moore,vi Vernon,vii and Robinson and Hamilton et al.viii Moore and Vernon have been deconstructing, critically analysing and distilling the elements of ‘good practice’ for RP. In RP, new practice protocols, processes and applications of different ways of working adapted to suit complex situations (for example, FV and institutional abuse) are being developed through training, facilitation and mentoring in the RP area to operationalise this good practice.ix This training is not exclusively the remit of legal professionals but is being broadened to people with other forms of expertise, such as social work, youth work and psychologists as examples. This work of Moore and Vernon in RP has been critical in the development of my ideas.x A note to research academics, as mentioned in the ‘Introduction’, this text draws on a range of sources beyond available research, including practise and experience. As will be demonstrated, much RP in the civil setting may not yet have been the subject of empirical research or evaluation. One of the aims of this chapter is to broaden the discussion and explore ways for making the law better by the discussion of new approaches. In researching this chapter, there were limitations in the existing research literature, which focuses on the criminal justice system. The discussion in this chapter broadens the use and applicability of RP to beyond the criminal justice system.xi It considers the need for variations in RP processes to meet program demands and legislative requirements.

What is restorative practice? ‘Restorative practice’ sits within the broader principles or theory of RJ discussed above. RP describes any process whereby all the parties with a stake in a particular issue or conflict come together to resolve collectively how to deal with the issue or aftermath of the conflict and its implications for the future.xii\ Braithwaite describes RJ as: … the idea that because crime hurts, justice should heal, and especially heal relationships. It is a process in which all stakeholders have

Restorative practice 103 an opportunity to discuss the hurts of a crime, how they might be repaired, how recurrence might be prevented, and how other needs of stakeholders can be met’.xiii Braithwaite notes that 80–99% of people report good experiences in studies on RJ, including victims, offenders, supporters or attending police. RP is democratic in its inclusionary practices and feedback from victims and their supporters speak about its ‘healing effect’.xiv In 2000, the UN Congress on Crime Prevention and Criminal Justice unanimously passed a resolution that RJ be an active consideration in processes. A Handbook on Restorative Justice Programmes was published by the UN in 2006.xv A number of different approaches to resolving disputes are emerging including therapeutic justice, RP, problem-solving, cultural courts, drug courts and different forms of conferencing. Each approach needs to be applied in the circumstance in which it is appropriate. Critical is the careful assessment of the matter and appropriateness for RP and the type of RP and detailed preparation.xvi Clarity in explanation and processes, taking time and managing relationships is essential if the RP is to succeed.xvii The best examples of RJ have been identified as non-punitive and non-shaming. They incorporate fairness, responsiveness, participation, accountability, forgiveness and healing and reintegration. As Maxwell and Hayes note, if done well, RP is: … an effective alternative to the use of the harsh and punitive responses that are so often damaging to all who are directly involved and to the health of the wider society’.xviii One interesting point of difference for readers within a European context is a preference for the language of ‘community of care’, ‘community in process’ and ‘community in the making’ instead of ‘community’ in RJ dialogue. This is due to historical suspicions of the use of the word ‘community’ in Europe and connotations of coerced or pre-fixed membership with which it is associated.xix In the Pacific region, customary practices in Māori, Aboriginal, Torres Strait Islander, Melanesian, Polynesian and other islanders have shaped and informed RP, specifically in NZ, which is noteworthy with the potency of age old practices that have been integrated into RP that resolve disputes and conflict, and seek to address trauma and reduce harm with community and healing.xx Abramson and Moorexxi have also noted care is needed in making the distinction between disputes and conflict to work out which process is suitable for which situation. Alternative dispute resolution (ADR) processes like mediation may be appropriate for disputes. There is a call for different and sophisticated responses to complex conflict and trauma cases.

104  The case for change Distinguishing restorative practice from mediation Restorative practice is different to other resolution processes, such as mediation.xxii Zinsstag, Teukens and Pali,xxiii distinguish RP from mediation which, they note, is used in many conflict situations, such as family law, commercial disputes and other civil court conflicts where parties are called ‘disputants’.xxiv If the focus is on interests rather than taking positions throughout the mediation, then sustainable relationships can occur.xxv Mediation tends to focus on reaching a settlement or agreement through facilitation by an ‘independent third party’.xxvi Whereas RP is more about the process itself, the different perspectives and truth telling; looking at the detail of the harm, circumstance and context in which the harm occurred, and working out how to repair the harm while doing no further harm in the RP process.

Restorative practice and responsiveness to community One of the benefits of RP is its capacity to include a greater range of people who may have been affected or involved in the harm caused. As such, it includes more community perspectives providing opportunities for them to have their voice and perspective added to the mix. This dialogue moves to find solutions that might be sustainable, compassionate and enable healing and, even on occasion, restoration of relationships. This makes it different from the court process experiences, which have been found wanting (see case studies in Chapter 2). This commentary highlights the more traditional processes, such as the courts can be selective in the range of information gathered and limited in its ability to enable the voice of affected parties to be heard. RP provides a useful counterpoint or alternative but not a substitute to court’s which still provide a critical source of legal precedent and rulings in lawfulness as explored in Chapter 3. Narrative component The role of the narrative was discussed in Chapter 5 when looking at models of client-centred practice. The ‘narrative component’ forms a truth telling underpinning in RP where in the group conferencing process, the eliciting of what occurred, why it occurred and its impact on all parties involves allowing this non-interrupted narrative to take form. This is different to the ‘problem-solving component’ which flows on from the narrative component. The narrative needs to be undertaken slowly as it is critical to shaping and informing the problem-solving component. Later questions such as ‘What can we do to address the situation?’ will occur but critically important is the opportunity for people to acknowledge that something happened and describe their actions, thoughts and feelings, even where different recollections exist about what happened and the impact of certain events. Facilitators take a back seat but also ensure all participants have a time and space to recount their narrative from their perspective. It allows

Restorative practice 105 for complexity and creates the space for listening and scope for dialogue among participants. This emphasis helps the group to gain a more complete collective understanding through hearing the various vantage points of lived experience that they previously had not been aware of. This experience can be transformative and is not as narrow in focus as a court case can be.xxvii Often people feel left out or are traumatised by the existing rigid and traditional approaches of the law and legal system. Existing criminology and legal literature has focused on using RP in youth-offending programs; restorative processes in adult offending and corrections settings, court-­annexed programs and some care and protection cases involving parents and their children. However, RP also has much to offer in the civil and problem-­solving spheres and is now being used in community, schools,xxviii workplaces, industry, Indigenous settings and family breakdown resolution. For example, recently RP has been adapted and used for families dealing with adolescent FV in the homexxix and in family reunification. As Vernonxxx has noted, RP has evolved and developed into sophisticated case management. The need for more understanding around effective practice in problem-­ solving procedures led to the formation of the Australian Association for Restorative Justice (AARJ) (previously Victorian Association for Restorative Justice) by RP practitioners including Moore and Vernon. In an absence of funding for empirical research and the time that this research takes to rollout, the AARJ has backed the testing and review of new protocols, improved training of conference conveners (explained next), mentorship, testing and recalibration of new and differing demonstration models. These techniques can be employed for earlier intervention in circumstances that may have previously escalated, thereby building on good practice to elicit the appropriate application of RP. In exploring the practicalities of RP, it is important to distinguish between program considerations such as funding and follow-up, and process issues including how a conference is structured, how people participate and are supported to do so.xxxi

The restorative practice process This section will focus on the process of RP. One of the key underpinnings of RP is that the process and the creation of a respectful and participatory engagement are critical and as important as any outcome. Good RP acknowledges that such a process in fact brings about a more sophisticated and durable response to the problem. Conferencing Central to the processes for RP is the dialogue based on the narrative. This is achieved by a process called ‘conferencing’ – a carefully structured and facilitated conversation by a conference convener after detailed

106  The case for change pre-conference assessments. It can include the individual/s concerned, their families, extended families and can be supported by a range of services and other appropriate assistance including state agencies vested with responsibilities for managing these. For instance, in institutional abuse group conferencing, it can include the child/person harmed, their family, their supporter, a counsellor for the person harmed, the school teacher, who the child initially disclosed to, the principal of the school at the time the harm occurred and the head of the education division of the religious body where the abuse occurred. This broad inclusion of participants, as appropriate, allows for a more complete picture to be drawn and is different to other ADR, such as mediation, as the number of parties included is wider. It enables outcomes to be determined that respond to needs beyond just the victim or offending party (for example, changing practices that leads to harm) and to identify the necessary actions to be undertaken, because a range of parties are all included beyond just the victim or offending party and all of them bear witness to the process and can commit to addressing issues moving forward. As Moorexxxii notes, conferencing provides conversation with a formal structure. Having a guiding respectful structure in the preparation and running of a conference is critical. However, unlike other adversarial processes or some mediation, there is with minimal facilitation intervention from the conference convener. Their role is to use prompting questions, engage in active listening, carefully summarise what is said at relevant junctures, enable all present to speak and give their personal narrative and when information has been gathered relevant to each phase, move on to the next phase. It is organic and requires the conference convener to also be flexible and adaptable to those present in the room. This structured RP conference process enables participants to speak, listen and hear each other addressing the incident or issue that has caused significant conflict between them.xxxiii The convener’s role also includes detailed pre-assessment, checking for appropriateness for RP and detailed pre-conference preparation of participants, and the formulation of an agenda as well as post-­conference debriefing, as may be appropriate. These are sophisticated facilitation techniques. Uniquely, and by contrast to other legal processes discussed in Chapters 2 and 3, the convener of the conference is no single participant’s advocate in RP. The convener, as facilitator, clearly explains at the opening of the conference the process developed for the specific conference. Then stands back, and with careful open-ended questions and active listening, allows participant engagement. Importantly, in appropriate settings, RP can afford some of those often left out of the traditional court process the scope and opportunity to be involved, and to shape meaningful outcomes which may be more sustainable in the longer term due to their involvement.xxxiv While the person, people or agency that commits the harm or series of harms is involved in the process, RP also brings other affected parties into

Restorative practice 107 the conversation. It can include the victim/s and sometimes the offending party, be it in a civil or criminal context. This is what can make RP powerful, as sometimes these parties may be considered peripheral or not included in traditional court processes as witnesses or as participants. For example, they can also include representatives of government offices, such as senior leadership in the military, the Department of Education or the Department of Housing or corporate employers, who may be positioned to take the necessary steps required to action any outcome plan or to follow-­up process on undertakings into the future. The strength of RP is that it acknowledges that multiple parties may have suffered harm. By bringing together these parties, support people, family members and other professionals who had a role to play in the harm, a complete picture can emerge that so often demonstrates how the circumstances are more complicated than previously realised. The depth of understanding can assist in finding a more sustained way of remedying a harm, which is owned by participants who acknowledge, through the RP process, multiple forms of harm and the toll they might have taken on individuals concerned.xxxv The inclusionary process and presence of a range of parties who are vested with power to take further steps in remedying harm, or future prevention of harm, can be an overlooked or glossed over aspect in a court case. For instance, ‘victim impact statements’ can be limited in what they convey about harm and in their contribution to the outcome. I am not advocating RP as a substitute to court proceedings that serve an important function but offering a further option to cater for other community needs.

Practice-informed theoretical framework Theory and practice can inform one another, and this section will discuss the theoretical underpinnings of RP. The criminal context Foleyxxxvi has provided a history, description and critique of some criminal justice restorative programs around the world. He applies Roche’s levels of participation, personalism, reparation and reintegration to select examples of effective programs to examine. Foley indicates the criteria and features of those programs that are fully restorative or mostly restorative including indicators of responsiveness. The United States is not examined, as he identified the lack of a national framework was resulting in disparate programs.xxxvii Foley distils interviews with restorative practitioners about what RP entails in criminal and undisputed harm cases to enable justice and restorative impact. He concludes that the deliberative RP process enables a story to be told with significantly more depth, than for instance in a court proceeding with its constant questioning of counsel and rules of evidence at

108  The case for change play that interrupt the flow and nuance of perspectives on truth from being integrated. Although, there is planning and structuring in how the facilitator asks questions, they are considered open-type questions and follow a pattern of stages. This allows other aspects of the story to be told (without the exclusionary tendencies of rules of evidence), for detail, feelings and motivations to be unpacked with RP’s focus on the process as important. Voice for all participants, and trust, respect and genuineness in what occurs in exchanges are all critical elements in Foley’s framework. Critical and, in sequence: • • • • • • • •

discussion of the impact on self and others with the consequent exchange of emotions leading to an awareness that can lead to the acceptance of responsibility of harm a shift in attitude and behaviours (this may occur at different times/ more than once, depending on the RP) possible emergence of vindication/safety/remorse (this is not punitive and can look different) including ‘censure’ or ‘reproach’ (this can look different not punitive) moving on to compassion, which can seek to move to examine and address the cause then the process of healing (this need not be instantaneous and can take time) the beginning of a repairing or restoration.xxxviii

To be effective, Foley notes that the process has to be underpinned with a reciprocal spirit of respect from the facilitator and participants. It is critical they all plan and prepare before the group conference, so it is clear what to expect and that the process will facilitate an airing of all views, and all participants will be invited to speak at the relevant time.xxxix Preparation is key not only for supporting respectful engagement but to help ensure people can participate equally and effectively, and to be ready to revisit particular events in a safe way. The emphasis is on participants knowing what to expect from the process and being prepared to contribute by both speaking and listening in an unstructured way. It requires skilled facilitation that creates a safe space for people to speak and avoids any individual dominating. The main aim is to enable in-depth storytelling to elicit details of the harm done, why it was done, how it has had an effect and the flow-on impacts that can assist in identifying what may be needed to heal. While traditional court-based ‘legal mechanisms’ have their place in protecting rights, providing normative warnings, creating precedent and addressing unlawful behaviour that offends societal norms. Foley notes that the inability of such mechanisms to provide restorative opportunities limits the likelihood of delivering justice. With many new RP programs, magistrates, lawyers and police initially expressed concern that participating in

Restorative practice 109 restorative processes might re-traumatise victims of violent crime. Once they experienced RP, their initial scepticism shifted, and they held more positive views on its usefulness, effectiveness and value.xl Foley suggests what he calls a ‘minimalist mode’, in the criminal context in that a legislative basis for RP, as has occurred in NZ and Canada, could open a way to accommodate RP. He suggests requiring judges to ask a series of questions around harm to trigger consideration of whether a restorative approach might be warranted. Since Foley’s publication, RP has progressed. The Central Victorian Restorative Justice Alliance has the legislative basis that Foley said was needed. This process covers 15% of Victoria’s regional population. The Youth Justice Group Conferencing Program became a legislative provision in the Children, Youth and Families Act 2005 (Vic). In an encouraging sign, the legislation allowed for the court to consider the non-mandatory option of group conferencing as part of the sentencing process. Sustaining restorative practice programs in criminal contexts New Zealand has been at the vanguard of developing and implementing RP. Maxwell has conducted seminal empirical research over many years there, studying RP, group conferencing and family group conferencing, being the main forums for bringing together players for the restorative dialogue in NZ. Her research suggests that ‘being held to account’ by external authorities can be perceived as coming from outside and imposed upon the offender and so is less likely to gain buy-in by an offender. Where participants in surveys felt they were not truly involved in the decision-making and there were some restrictive/punitive outcomes, these were seen as not restorative. The research suggests that outcome that have been developed jointly and where all participate in their design, tend to be more sustainable than those imposed, for example, in an adversarial or by a government department. Another downfall is where rehabilitative and re-integrative services are not made available even though they were identified as key in the outcome plan.xli Foley, and Maxwell and Hayesxlii note that some criminally based restorative initiatives have failed due to poor design, lack of legislative support, limited buy-in (for example, by police), poor promotion (leading to lack of referrals) and a lack of trust in what the process might be and, of course, lack of or discontinued funding. In Australia, the ACT RJ unit has moved into Phase 3 of a project. It has demonstrated how legislative backing for a RJ framework, which emphasises the needs of the victims, along with a dedicated RJ unit with skilled facilitators,xliii can address some of the concerns raised by Foley about the problems with RP not having being legislative, and the resources that flow from this.xliv Noting limitations in the ACT RJ unit study (mainly in relation to measuring reductions in recidivism where causation can be difficult

110  The case for change to determine), the evaluators conclude the program is successful in delivering a positive experience for victims, as well as other conference participants.xlv In its evaluation, research participants reported that: Overall, 93% of all conference participants … reported being pleased with the outcome of their conference, and between 97 and 99% of all participants and felt treated with respect, able to say what they wanted as part of the process, that the process was fair for them and the offender, and that their rights had been respected.xlvi By way of example, my doctoral researchxlvii comparing NZ and Victorian Youth Justice systems through 172 observations and 8 interviews (with restorative practitioners and judicial members) revealed that RP came unstuck for young people where there were inadequate resourcing of services or follow-through by school or protective services. Often, there was little accountability for the lack of follow-up. Properly resourcing services is critical in making inroads for justice and better responding to community. It can have flow-on effects in reducing harm, minimising crime and violence and creating safe, empowered communities. Foley, and Zinsstag, Teunkens and Pali,xlviii note that despite RP programs in the United Kingdom being positively evaluated for effectiveness and impact by participants, had been defunded as part of austerity decisions by the United Kingdom central government in Westminster and some cash-strapped local councils.xlix What is encouraging, however, is the emerging empirical data that suggests the experiences of participants who have been through good restorative programs recognise and value the effectiveness of RP. The outcomes include perceived procedural fairness; reductions in levels of anger, fear, anxiety; finding the process to be fair and helpful, and that they would be inclined to participate in such a process again. Some participants reported that despite the high-emotional intensity, they felt the process was likely to lead to ‘positive improvements’.l Broadening the context Beyond criminal law, RP has wider applications into civil spheres including environmental, planning, employment, equal opportunity and human rights situations. There are already examples of RP emerging in family law from institutional abuse and FV cases, where repairing and restoring harm is critical, such as in First Nations communities and in adolescent FV cases with parents and their children. If done carefully and mindfully, benefits are evident. For example, the Netherlands runs RP outside the criminal process, through non-governmental organisations.li The models emerging in Australia have wider application and possibilities for programs to be replicated in other countries and adjusted to suit local contexts.

Restorative practice 111 Paraphrasing Moore and Vernon,lii they have argued that RP is still widely misunderstood. Some lawyers have a limited approach to RP and use it primarily or solely: • • • • •

to respond to low-level (less serious) incidents in cases of undisputed harm (that is, where guilt is not contested) where that harm has been caused by young people to divert these less serious cases of undisputed harm from the formal youth justice system to focus on the harm, rather than on the underlying causes and as a single (one-off) intervention, with little or no follow-up.

This has led to a widespread view that a restorative process is essentially about youth justice diversion programs. In fact, RP can and are used far more broadly.liii As Vernon explains: Improving dispute and conflict resolution and management systems requires: i a set of principles that can apply across a variety of situations and processes ii a broader view of justice and governance which involves fostering collaboration among social agencies, the State, judiciary and community groups iii ‘built in’ ongoing review mechanisms in program administration which involve reflective and progressive problem-solving to address issues and adjust service delivery, and to support a ‘community of practice’ who can collectively develop and increase their skills through a culture of reflective practice.liv Use of a case management approach goes beyond the criminal justice application to a variety of contexts. A restorative process can provide an additional therapeutic intervention in response to harmful, violent or abusive situations and can also be offered in civil justice cases. In civil legal applications, RP typically enables a group of people to deal with not only specific incidents of undisputed harm, but harm which is part of a sequence of poorly resolved incidents that have caused conflict and can also result in other underlying causes of conflict and harm. The RP process is flexible as it can be modified depending on the situation and the needs of those participating. RP processes can be provided in ‘response to harm’ or proactively to support ‘good things happening’. It can occur where there is ‘undisputed harm’, meaning there is no dispute that harm was caused or by whom (for instance, in criminal context where there has been an admission of guilt), so that it can be broadened to other situations where there is no one person who has either stated that they have caused

112  The case for change harm or is the only person to have acted in a way that has caused harm.lv Moore and Vernon’s work will be examined here in this latter context.lvi Moore and Vernonlvii move beyond Foley’s discussion in criminal contexts. Their approach in civil contexts of harm (including the sorts of harm considered in the case studies from Chapter 2) allowing for a nuanced approach that acknowledges levels of complexity, and the need for diversity in approaches as well as considered thought as to what is appropriate in different contexts and for different participants. The ACT has led other Australian jurisdictions in making RJ available as part of the response to FV and sexual assault, cases which sit in the civil law realm. Since November 2018, the option of RP has been available in cases of FV and sexual offences. In the words of the Territory Justice Minister: Feedback to date has been positive, with the view that many victims want to have the option to participate in their own justice process … Restorative justice processes are not an alternative to the prosecution of a family or sexual violence offence, but rather, sit alongside the criminal justice process.lviii Facilitators in the ACT RJ unit have developed guidelines for managing different types of categories, gained capacity to manage complex offences, and established service provision agreements with educational and therapeutic service providers. Careful management of the practice-informed process A restorative process, in a civil context within the group conference, can be provided for a community of people who share a common concern in an educational, residential or workplace community, and within a nuclear/ extended family network. It is important to emphasise that a restorative process can be provided as a one-off exercise, or in a systematic way, as part of a formal program. The format for the RP or types of RP may vary, depending on the situation. What works, and why, and in what circumstances. The AARJ through an open discussion of demonstration models and reflective practice through support and debriefs from RP conveners are developing informative materials and training for conveners to advance good practice and support the growing body of RP practitioners. This feedback loop is important to develop good practice in RP work that is underway and in development.lix What restorative practice can look like? The person who has done the harm is asked to give an account of what occurred. Vernon and Moore have suggested that the key questions ought to be: what has happened, who has been affected and how to address the

Restorative practice 113 harm and prevent it in the future?lx Implicit in this is the acknowledgement that the participant has done the harmful act and was involved in the circumstances that gave rise to it. This is not done so they can justify the action; it is a ‘fact telling’ explanation that may include contexts. By starting at this point, others in the room can understand the context and this may be the start of the critical acknowledgment and responsibility. This is foundational to moving to the restorative outcome. There is then opportunity for others to add missing information, which can include impact on self and others and an expression of emotions and feelings. Eliciting different vantage points will often lead the people in the room to see the complexity behind the act, so it is important the room is a safe environment for all to speak up. It requires skilled facilitation to do this effectively and includes an examination of the harm done, why it occurred, and an understanding of cause and effect. This makes people look at the harm differently from when they first came into the room, with greater awareness that can lead to an even greater acceptance of responsibility and a transformative shift. Depending on the situation this can lead to a sense of safety as the victim realises, they were not targeted, and it helps them to develop understanding, vindication and remorse.lxi Detailed storytelling must involve a process that enables genuineness and respect as foundations for effectiveness. This can then lead to an outcome plan that is consented to and designed by participants, and which may start to address the second question: ‘How do we avoid this happening again?’ This is in line with the legal empowerment principles discussed in Chapter 4. It can lead to healing, recovery, repair, relief and release, not necessarily all in one sitting or while the conference is moving to the second question. Moore and Vernonlxii are developing ‘good practice’ guidelines and training that are shaped and informed by reflective practice, and feedback from participants and the use of pilots as demonstration models to build a ‘community of practice’ as well as materials for good practice. This is worthwhile examining for readers interested in learning more and developing practical application. They note the principles common across effective restorative programs are cause no further harm, work with those involved, and rebuild relationships. They have also developed useful models that have different applications depending on the context, harm caused, nature of the harm and different settings.

Applications of restorative practice in the civil law area This section will discuss some uses of RP in specific civil contexts. All of these contexts involve complex situations either in the home, institutional setting or workplace (including the defence forces). It will also more briefly touch on child welfare, schools and international conflict providing references for readers for further follow-up if they wish to look at these areas in more detail (the issue was raised as problematic in Chapter 2).

114  The case for change Vernon and Moorelxiii argue that when used appropriately within well-­ designed programs, the group conferencing process can also support systemic improvements to prevent future harm. In arguing the wider applications for RP, they draw on pilot programs. Each uses different terminologies for the ‘conferencing’ approaches that suit the specific context and different modes of RP to be applied as appropriate to the nature of the matter. For example, interventions to address adolescent FV in the home; working with the families, as well as responding to victims who have experienced childhood institutional abuse; will require calibrations to the appropriate type of conferencing that might be called for. They have applied ‘restorative conferencing’ to this situation, as well as other detailed suggestions for conferencing approaches in the justice realm including FV, youth justice and family reunions. They describe these as models that through practice demonstrate and provide a growing evidence base for practice. They argue that there are important lessons from these experiences about what might be required in the way of policy development, program management, and training and mentoring, not only of specialist group conference facilitators, but of other professionals involved in the administration of justice. This correlates with the importance of grounded experiences informing policy and decision-making, which are discussed in Chapter 12. Sexual assault and abuse Sexual assault had often been excluded from RP for valid reasons given concerns about issues of safety, disempowerment complexity, risk and ideology. As noted in Chapters 1 and 2, the treatment of victims in sexual assault and FV cases has been highly problematic, so RP has been excluded from sexual assault applications. RP, however, can be useful in enabling the voice of victims if cases are carefully assessed at intake and managed with sensitivity. In 2015, the Institute of Criminology in Belgium produced a universal sexual assault RP, Doing Restorative Justice in Cases of Sexual Violence: A practice guidelxiv (the Guide). The Guide was aimed at practitioners in programs that work in the area of sexual assault for adolescents and adults, and where there is an ongoing familial relationship or where the parties are strangers. The authors of the Guide independently surveyed RP practitioners in Denmark and the United Kingdom. And so, it took great care in developing the Guide to acknowledge the need to assess safety, timing, readiness, culture, intake procedures, preparation of all participants and risk assessments, with debriefs throughout, and care in managing power imbalance. Importantly, the Guide stresses that it is to not be done in a manner which sublimates the voice and needs of the victims. The Guide is explicitly cautious noting the harm, personal nature of the harm and relationships can be part of the offending and stigma. As a survivor of FV in the home as child, I understand that some of the hesitation and paternalism around excluding sexual and FV cases can

Restorative practice 115 be ideologically driven, rather than allowing for individual personalised responses and self-determination of victims. The choice ought to lie with the individual survivors, empowered and supported through the process, without pressure, so that it is truly voluntary. This support includes clearly and transparently explaining intake processes, preparation tasks and outcomes. The Guide explicitly states this support includes considerations of physical and emotional safety, not only during a meeting with the offender but also before and after a meeting. The Guide is specifically for practitioners with significant expertise in managing power imbalances, tackling myths around sexual assault and identifying participant capacity to cope with the forum. It is for those who are well trained in restorative methods and who have expertise in complex, sensitive cases and, interestingly, are familiar with co-work and multidisciplinary practice (MDP) (including pre, during and post counselling and other supports).lxv The central focus of the Guide is on creating safety for victims who elect to participate in RP and who wish to meet with their offender and see it as a chance to reclaim their voice – not as a victim, but as a survivor.lxvi Timing of participation in RP from an offender’s perspective needs to be assessed to consider acceptance of responsibility, remorse, empathy and shame acknowledgement.lxvii Rather than taking a proscriptive approach, the Guide looks to the needs and provision of a voice for victims. This consideration was raised in both the Royal Commission into Family Violence (RCFV) and the Why Didn’t You Ask? (WDYA) study discussed in Chapters 2 and 5. The Guide stresses the importance in the realm of sexual assault cases not to cut corners or make compromises in the preparation phases. It identifies two key questions commonly asked by victims that are also consistent with submissions to the RCFV; ‘how could you do this to me?’ and ‘why did you do this to me?’ It notes this is also a question that many who have been sexually harmed in childhood want to ask of the person who abused them (also consistent with submissions to the Royal Commission into Institutional Responses to Child Sexual Abuse/RCIRCSA). It is critical to note that victims are not a homogenous group and the process needs to be personalised accordingly. They identify the critical importance of trust in the process, alongside personalisation, voice and respect as an underpinning of the whole process.lxviii Adolescent family violence In Victoria, the first civil-based restorative program addressing ‘adolescent FV’ commenced at the Melbourne Children’s Court in August 2018.lxix The Jesuit Social Services’ (JSS) RESTORE program is unique in Australia. It provides a family group conference process for civil cases involving young people who are experiencing FV in the home. The program assists families to address the harm caused by FV and other dynamics, prevents further harm being caused, helps restore or reset right relationships and supports

116  The case for change therapeutic and restorative outcomes that promote safe and healthier relationships. This program is providing restorative processes to deal with complex cases requiring both a justice response along with dealing with family systems and ongoing relationship management. The group conferencing program works with all family members to: • • •

address complex issues of harm help restore or reset right relationships transform conflict into cooperation.

The process brings together a family network and their support persons who can assist to identify broader underlying conflicts and issues in order to provide therapeutic outcomes. Group conferencing expands the network of people who can provide support, insight and oversight, and help the young person and their family gain an understanding about violence and the harm caused. It can also work to develop practical strategies to achieve safety, make appropriate changes and improve relationships.lxx This is still a developing area of RP but worth consideration in view of the emerging problem of increasing adolescent FV.lxxi Lessons drawn from sexual assault and abuse practice demonstrate how RP can be offered within a court context or provided elsewhere by a well-designed program with proper funding. Processes are tailored for the specific needs of the victims. Institutional abuse There is need for better and improved mechanisms to provide for voice and healing processes for victims of childhood sexual abuse.lxxii It is known that there are significant short- and long-term impacts of historical institutional abuse and a pressing need for new ways to respond.lxxiii Vernon, Moore and Jeffreylxxiv in a recent conference paper have highlighted new movements to using RP in this fraught area (in combination with FV) since the royal commission on Institutional Childhood Sexual Abuse. There are commonalities and overlaps with the RCFV given the relevance of the RP approach for both abuse in institutional settings and efforts to address FV. I have concerns about how the redress scheme that has been announced emerging from the recommendations of the RCIRCSA is currently being operationalised in Australia. This is because the thresholds in this redress scheme preclude people with conditions and behaviours, ignoring that these may be the direct manifestations of the harm caused. I have written elsewhere about these limitations of the reparation thresholds which are conditions to qualify.lxxv One positive outcome, however, is the emerging place for RP. Its focus on narrative truth telling can help the victim realise why they should

Restorative practice 117 not feel shame. In some RP, they have can come to understand that sometimes people may have acted to protect them along the way (for example, their teachers or school counsellors) and tried to act to prevent harm but were silenced by institutional blockages and by situations previously cloaked in secrecy and cover up. This can help all parties come to understandings about harm and impact, and work to reverse victims’ sense of being alone or not heard and can reduce future suspicion as they realise not everyone agreed or was complicit in the harm caused. This process can start to recalibrate post traumatic behaviours. For participants it can lead to identifying what needs to change or be recalibrated in policies, procedures, attitudes and in the law, which can also lead to empowerment. Defence abuse response taskforce A review into institutional abuse and sexual offending in the Australian Defence Force was undertaken by law firm DLP Piper in 2012. This established the Defence Abuse Response Taskforce (DART) programlxxvi (2013–2016), which adopts RP and implemented a restorative engagement conference (REC), to address systemic problems as well as complainant concerns. This variant of group conference is known as ‘restorative engagement’ or ‘direct personal response’ and is designed to address betrayal trauma.lxxvii Betrayal trauma is often caused by a person in authority with a high level of control, where trust is broken by someone the victim is close to and may even be reliant upon for support and survival. The DART program is now being offered as part of the redress package within Australia’s National Redress Scheme, which commenced in 2018. In addition, a direct personal response with a redress package may include a reparation payment and a program of counselling. The DART program now sits in the remit of the Commonwealth Ombudsman.lxxviii Moorelxxix notes that DART sought advice on the preliminary guidelines and program design from experts in the field of dispute resolution, conflict management, trauma and sexual abuse. The program was underpinned by best practice principles and values of RP, conciliation and mediation, including ‘to do no further harm’, and maintain confidentiality, safety and privacy.lxxx It was also predicated on the application of trauma-informed principles, using as a reference point Judith Hermann’s book, Trauma and Recovery.lxxxi The objective of the DART program was to assess specific complaints of sexual and other forms of abuse within the defence forces and to work with complainants to determine appropriate responses, acknowledge harm and its impact, and what measures might be needed at a systemic level to address poor practices. Many of the complaints of abuse made to the DART involved allegations of serious sexual assaults. For a complaint to

118  The case for change be taken into DART, they had to meet time limitations, reach a threshold standard of plausibility whereby the complaint had the appearance of reasonableness. When the program ended in March 2016, over 700 restorative engagement conferences had been facilitated for people who experienced sexual and other forms of serious abuse during their military service. Around 300 senior defence representatives at high levels, including the chief and vice chief of the defence force, and chiefs of army, navy and air force, participated in restorative engagement conferences with 40 trained restorative facilitators conducting the process. The DART reviews found the REC were therapeutic for the individuals involved and became a source of learning and cultural reform for the organisation.lxxxii Workplace restorative practice The need for RP in employment law, to deal with workplace conflict, is emerging as a complement to more formal processes, such as disciplinary committees, professional conduct tribunals, the Human Rights and Equal Opportunity Commission (which itself has utilised RP), the Fair Work Commission and the Federal Court of Australia. These processes are now not sufficient and/or appropriate in certain circumstances and different workplace types, processes, traditions and cultures. In any given workplace, occurrences of harm can have flow-on effects. Workplace conflict may be an organisation-wide problem or confined to a team, and it may involve weak management responses. What makes workplace conflict even more difficult is that, as with institutional abuse described above, it can do harm to other staff and not just the victim. Workplace RP brings together a wide range of people affected by workplace conflict, including those who might have caused the harm or conditions for the harm to emerge (including management). It acknowledges that the harm may affect more than just one person. It uses ‘conflict conferencing’ approaches, and as with any RP, requires a well thought out and careful intake assessment process to ensure it is appropriate for RP and which parties are relevant and critical to participate in the conference. It is of critical importance that workplace RP is convened by a skilled facilitator who allows participants to tell their stories in an honest and open way, until a shared understanding is reached. Having discussed and identified the harm and how it occurred, discussions can ascertain what might need to occur to prevent the harm in future, and identify what needs to happen and by whom or what levels of management or policies, protocols and practices need to be put in place to enable this. Outcomes are recorded as a workplace agreement. RP in the workplace is being used in a widening range of industries, in governmentlxxxiii and non-government organisations, and businesses.

Restorative practice 119 Child welfare Other opportunities for RP include family group conferencing and child welfare. Much has been written elsewhere on the use of ‘family group conferencing’ as a method of resolving, or attempting to resolve, family issues in relation to child protection. It involves bringing together the child or young person, members of their immediate and extended family, and child protection professionals in order to discuss issues, come to a resolution and develop a plan for future action. The model is based on the following assumptions: families have a right to make choices and participate in decisions that affect them, families are competent to make decisions if properly engaged, prepared and provided with necessary information, decisions made within families are more likely to succeed than those imposed by outsiders. Family group conferencing puts the child, their parents and the extended family at the heart of the decision-making process. The model in the context of child welfare has developed extensively in NZ.lxxxiv Schools Restorative practice is also used widely in schools to avert the traditional disciplinary and punishment responses to poor behaviour. It is undertaken with a view to finding lasting ways of changing behaviours. Unfortunately, the widespread rollout does not necessarily mean it has been done well. Often staff are insufficiently trained and have little appreciation of contexts from which the behaviours may emerge. Feedback from educators and some principals express concern that some RP in schools, and those retained by education departments to run RP, have tended to be reactive, isolated from relationships and not embedded across school practice and curriculum.lxxxv

International conflict Restorative practice has also been used in international conflict. Northern Ireland is an example where long and violent conflict has been the subject of RP through foreign financial support. Community Restorative Justice Ireland and Northern Ireland Alternatives are two organisations using RJ and RP. They have worked, mostly with volunteers, for over a decade. Beckett and Campbell et al.lxxxvi distinguish the model from others, as the Northern Ireland model gives more importance to the victim, rather than the family as the NZ model does. In South Africa, the Truth and Reconciliation Commission (TRC) has been seen by some, as a RJ exercise with mixed views on whether it was actually a RJ approach given the process is only mentioned three times in TRC hearings. It was seen as a further form of colonial transference and there were questions on the appropriateness and effectiveness of its administration and the skill of practitioners and the lack of follow-up. This underscores the point made earlier, that, each model needs to emerge and be

120  The case for change designed for each context and be appropriate to the circumstance and setting in which it is being used. It is this factor that distinguishes it from the more inflexible rules-based alternatives in the traditional legal system.lxxxvii These international RP experiences go beyond my personal knowledge and so are only mentioned briefly as this chapter focuses on the ones with which I have a working knowledge. The ‘Endnotes’ and ‘References’ provide more information if readers wish to follow up.

Challenges This chapter has explored ideas on the different possibilities in which RP can and is being utilised. This does not mean that in future it may not be adapted also in different ways and in different circumstances, but I hope that it will open the reader up to the possibilities around how we might increase participation, enable the voice of people and increase and enable more perspective to be heard to find ways to empower and think of creative solutions. However, RP is not easy, and the following discussion is designed to help people interested in RP to go into it with their eyes wide open. Restorative practice is not easy Vernon notes: There is evidence that punitive interventions, and further reform to both criminal and civil litigation, may not alone produce optimal results. An appropriate mix of interventions can supplement current legal system responses and more effectively deter harmful behaviour, provide reparation where harm does occur, and address individual needs.lxxxviii Unfortunately, in the early usage of RP in the criminal context, measures for its success or failure were overstated. For example, one measure was reductions in offending,lxxxix which ignores other factors that impact offending. More recent measures look at the healing, inclusionary participation and restoration of relationship as measures for success.xc Impacts on reoffending have been a measure but are not a realistic requirement of a program’s success or failure. Restorative practice, however, is complex, demanding and not easy, as it requires well-trained facilitation and sensitive application. Nevertheless, there is an emerging and compelling case for its integration and application. Building on elements identified by Vernon and Moorexci these are some factors practitioners need to consider: •

RP is fraught because it is complex as it involves people, their relationships, situations and experience. RP cannot be inserted into proceedings. It needs sophisticated design and supports.

Restorative practice 121 • • • • •

• •

•

Recognition, acknowledgement and understanding of emotions and some psychology.xcii Practice must be trauma- and ethics-informed. An understanding of effects of post-traumatic stress disorder (PTSD), potential triggers, cultural competency and the impact on behaviour of memories that can be experienced and re-experienced. Different situations require different approaches, for example, FV, care and protections, adolescent FV, institutional abuse, workplace harm (bullying and harassment). The need for careful preparation, timing, appropriate method and approaches to situations. Having trained personnel who can assess and frame situations is critical, in preparing people pre-conference, facilitating dialogue during the conference, summarising and developing outcome plans. Elements of administration and facilitation need to be carefully planned under a guiding principle of ‘do no harm’ but ‘do most good’. Demonstration models are useful to examine how to best practice and manage diverse situations and contexts given the dearth of written evaluations of RP to date and limited published research that relates mainly to criminal contexts. The process of RP can acknowledge calls for outcomes from victims/ survivors that are not as damaging or removed as court process, such as incarceration can be.xciii

Funding The funding of RP worldwide remains a challenge. The United Kingdom has especially fallen victim to the defunding of RP programs due to the changes of government in the 2000s, and this has happened regardless of what studies have revealed about the positive outcomes in well-run and effective programs. Bringing good restorative practice into other realms The role of MDP in RP is an understudied area of most assessments of RP outcomes and practice.xciv More study is needed to unpack the elements of MDP that shape and appear critical in RP. Limited education about restorative practice in law schools In terms of legal education around RP, there are dedicated Master of Laws programs available at some universities. These tend often to focus on RJ rather than RP. Some elements of RP may be being taught in ADR courses, but it is not strongly represented in legal education, even when compared to mediation. Some of the requisite skills students and practitioners can learn

122  The case for change for RP are canvassed in Part 2 of this text with a view to encouraging a wider repertoire of skill offerings to students. Hopefully this chapter might broaden awareness so they can explore RP opportunities through formal accreditation and training in RP. These are necessary given the client and contextual complexities of the work in the RP realm as discussed in this chapter.

Doing court differently Other new approaches to the law include developing court practices to find differing ways to identify the causes of offending. Boronskixcv has also identified the need for a non-adversarial problem-­ solving approach. In child protection matters, with case complexity and the dissatisfaction with an adversarial approach for protecting children, a therapeutic jurisprudence-oriented problem-solving approach may be more suited. Evaluation work has concluded that culturally supported approaches that recognise First Nations Peoples involvement is critical and that new models like Koori courts have made inroads.xcvi These non-adversarial problem-­solving courts are discussed below with some further references should the reader wish to explore them in more detail. Most of these have been positively evaluated, but some have been limited to trials, postcodes or limited catchments. From time to time, there have been endeavours to integrate various approaches across the court system, but these efforts often lack the political drive and so are not sustained. Traditional approaches to administering justice in courts or departments have tended to resist such innovations. Often law and order campaigns that focus on imprisonment and harsher sentences can cloud the waters where other interventions may be more effective for community safety or deeper interventions. I will now flag some further examples of innovative approaches which readers can look into more deeply, if they wish, through the further references provided. Problem-solving courts, bring together services and the courts, often under the supervision of the judge or magistrate. They try to work out the causes of the offending, and find to solutions.xcvii The following courts can also be described as subsets of a problem-solving court: •

Youth courts are less formal than an adult court. They often involve family, the school, young person, as well as the police. Different jurisdictions differ in how they are conducted and what sorts of offending they deal with. The focus tends to be on reform and rehabilitation, and an understanding of the harm caused. Often as a collaborative process with the young person and their family, and the police prosecutor and sometimes the victim, they will work out a plan to address issues in the young person’s life and a strategy for preventing further offending or harm and make amends. Often the young person will sign an ‘outcome plan’ and be bought back to court to see how they are progressing with this plan before the same judge.xcviii

Restorative practice 123 •

•

•

•

•

•

•

•

Koori and Aboriginal courts encourage participation of Aboriginal communities and cultures in the legal system. In some, Aboriginal Elders join with the judicial officer to explore what has occurred, why it has occurred, and what might be needed to address offending in a culturally appropriate way. They emerged in order to address Indigenous over-representation in the criminal justice system and to improve justice outcomes given the impacts and ongoing trauma caused by Western practices.xcix Circle sentencing, again, emerged in order to address Indigenous over-representation in the criminal justice system and to improve justice outcomes given the impacts and ongoing trauma caused by Western practices. They are often used where jail time is threatened, and bring together Elders and the courts/judge, or Elders and the charged, after an offender pleads guilty.c Drug courts differ between jurisdictions. These are judicially supervised courts where the sentencing examines alternative treatments for offenders with addictions. It may involve drug testing with statutory imprimatur, and inclusion of offenders into hard to access drug detoxification and rehabilitation services. It will often involve supervision for people living with serious substance use and mental health issues.ci Special circumstances’ lists for homeless and mentally unwell offenders’ fines. This looks to cancel fines in specific circumstances if at the time of the fine the offender had mental or intellectual disability, mental illness or was homeless. Detailed criteria and doctors’ evidence would often be required by the presiding magistrate (disbanded in Victoria in 2019).cii Mental health courts examine the mental health condition that may surround or even be the cause of the offending. The court identifies treatment and support resources within the community, and offender engagement in treatment programs. After assessment it will involve the development of a treatment plan that may include related problems such as homelessness and substance abuse.ciii Specialist FV divisions were introduced to improve courts’ response to FV. These often provide a separate entry to the perpetrator at court, and safe waiting spaces for victims and their families or support persons. Often there are changes to listing and operating procedures, court staff are specially trained, and the process uses victim-centred approaches.civ Therapeutic justice draws on different disciplines, such as social welfare, health, allied health, housing and law professionals and identify and support the offenders psychological and emotional wellbeing in order to reduce the harm of traditional forms of law which can cause trauma. It is often used where trauma or associated harm is a high risk and where medical and health interventions may add value and enable rehabilitation.cv Neighbourhood Justice Centres are also relevant as court annexed MDP (discussed in Chapter 2).cvi

124  The case for change Other positive outcomes arise from building capacity, resilience, autonomy, wellbeing and self-determination.cvii In Australia, the poor treatment of First Nations people impacted by Western practices, including the removal of children from families, and racist policing practices, has been well documented. Finding a way of doing justice differently is compelling.cviii The call to First Nations Peoples in the ‘Uluru Statement from the Heart’ to have a greater voice in matters affecting them resonates with the ideas behind RJ: These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness. We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country. We call for the establishment of a First Nations Voice enshrined in the Constitution. Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.cix

Conclusion Central and critical to RP is the development of approaches and processes that are community-led, with outcomes and solutions that come from the bottom-up. Those on the ground often have a more nuanced view and awareness of complications and can suggest effective solutions that are not removed from lived experiences and what might be practicably achievable. This contrasts with the traditional paradigm of government policy setting which is driven from the top-down. This resonates with the strengths-based approaches discussed in Chapter 5 and its importance is further explored in Chapter 12. RP because it works actively to include a range of different and affected people during the process, is a way to build truth telling and the diversity of perspectives to help shape and inform approaches in problem-solving. This chapter has flagged new and emerging approaches that increase individual and community engagement and voice, problem-solving and problem prevention. I hope by shining a light on these new and emerging practices we can find ways to adapt, better respond to community and improve systems for a better world that caters for diverse needs and repairs and prevents harm. Retraining, inclusion of different interpersonal skills and modes of practice in law school curriculum, sharing of good practice and nuanced and client-centred, empowerment models will, I hope, help strengthen our system of law and practice.

Restorative practice 125

Questions for discussion (group activity) 1 In a group, watch the following videos: Giving Victims a Voice – Restorative Justice (Ministry of Justice UK, 2013) (3:35), https://www.youtube.com/watch?v=WrEApuJ-DTE Moving on – A Short Film about Restorative Justice (Restorative Justice Council, 2015) (1:52), https://www.youtube.com/watch?v= fWtFtWY3Hh8 Transforming the Criminal Justice System: Victim’s experience, ‘Nicole’s story’ (Department of Justice, Canada, 2017) (4:56), https:// www.youtube.com/watch?v=BOrwmgd_l5g a

Discuss with the person next to you: Do the comments in ‘Nicole’s story’ resonate with you? Why? How might it feel to walk in the shoes of non-lawyers having to experience the adversarial system? How might lawyers be affected by the adversarial system? Do you have any experiences from the lawyer or non-legal professionals as to the impacts? b What alternatives are there to the adversarial system? 2 In groups of similar interests; such as family, children, prisons, criminal justice, employment, etc., discuss the following: a

Are there issues with the adversarial system? How does it impact on family law, institutional abuse or FV for example? What are the alternatives: problem-solving, therapeutic, cultural, MD courts or conflict conferencing RP? b Are there better ways of approaching lawyering to better meet the needs of the community? What might they be? Have you seen any successful examples? c What might it take to initiate some of these approaches or to build on them? d What policy setting exists to help/or are needed?

Notes i Willis, Kapira (2018), 45. ii Daly, Holder (2018), 789. iii For information about the history, theories, ideologies and applications of restorative justice, see Braithwaite (1994), 199–216; Braithwaite (1989), 1–18; Braithwaite, Strang (2001), 1–13; Daly (2000), 33–54; Gavrielides (2007); Zinsstag, Teunkens, Pali (2011). iv Foley (2014). v Ibid. vi Moore (2004a), 71–91. vii Vernon (2017). viii Robinson & Hamilton et al. (2015). ix See as an example the newsletters produced to update practitioners: AARJ (Victorian Association for Restorative Justice 2017). Note: the author is member of the Victorian Association for Restorative Justice, recently renamed the Australian Association of Restorative Justice.

126  The case for change

x Note: the author wishes to acknowledge the invaluable in put into this chapter by A Vernon & D Moore who provided helpful feedback as subject experts on a draft version of this chapter. xi Graves, Gray, Schub (2005), 219–28; Hopkins (2012), 121–32; Miller, Schacter (2000), 405–11. xii AARJ (Victorian Association for Restorative Justice 2017). Note: the author is member of the Victorian Association for Restorative Justice, recently renamed the Australian Association of Restorative Justice. xiii Braithwaite (2007), 689. xiv Ibid. 692. xv UNODC (2006). xvi Maxwell, Hayes (2006), 127–54. xvii Foley (2014); AARJ (Victorian Association for Restorative Justice 2017). Note: the author is member of the Victorian Association for Restorative Justice, recently renamed the Australian Association of Restorative Justice. xviii Maxwell, Hayes (2006), 149. xix Zinsstag, Teunkens, Pali (2011). xx Maxwell, Hayes (2006), 127–54. xxi Abramson, Moore (2014), 12. xxii Ibid. 12. xxiii Zinsstag, Teunkens, Pali (2011). xxiv Ibid. xxv Brett, Barsness, Goldberg (1996); Brown (2003–2004), 279; Goldberg (2004–2005), 8–15. xxvi Zinsstag, Teunkens, Pali (2011). xxvii Note: informed by the training notes and materials provided for the author’s Conflict Resolution Certificate and refresher training in 2014 and 2017 by A Vernon & D Moore, experts in RP. xxviii For a discussion of RP in schools and also examination of programs in Brazil, see Zinsstag, Teunkens, Pali (2011), 64–8, 235–7. xxix For study on the complexity and impacts, see Gabriel & Tizro et al. (2018), 161–9. xxx Vernon (2017), 2. xxxi Note: informed by the training notes and materials provided for the author’s Conflict Resolution Certificate and refresher training in 2014 and 2017 by A Vernon & D Moore, experts in RP. xxxii Moore (2004a), 71–91. xxxiii Ibid. xxxiv Maxwell, Hayes (2006), 130. xxxv Ibid. 127–54, 149. xxxvi Roche (2003). xxxvii A point also noted by Zinsstag, Teunkens, Pali (2011). xxxviii Adapted from Foley (2014). xxxix Maxwell, Hayes (2006), 130. xl Daly, Hayes (2001), 1–6; Maxwell, Morris (1993, 1999); Maxwell, Paulin (2005). xli Maxwell, Hayes (2006). xlii Foley (2014), 199–200; Maxwell, Hayes (2006), 148–9. xliii Broadhurst, Morgans Payne, Maller (2018, revised 2019). xliv Rattenbury (2018). xlv Broadhurst, Morgans Payne, Maller (2018, revised 2019), 5. xlvi Ibid. 5. Used with permission. xlvii Curran, La Trobe University (2007). xlviii Zinsstag, Teunkens, Pali (2011).

Restorative practice 127 xlix Ibid. 23. l Foley (2014), 164–74. li Zinsstag, Teunkens, Pali (2011), 267–74. lii Moore, Vernon (2019). Informed by the training notes and materials provided for the author’s Conflict Resolution Certificate and refresher training in 2014 and 2017 by A Vernon & D Moore, experts in RP. liii Note: based on the author’s professional practice experience, but also shaped and informed by the training notes and materials provided for the author’s Conflict Resolution Certificate and refresher training in 2014 and 2017 by A Vernon & D Moore, experts in RP. liv Vernon (2018), 157–8. Used with permission. lv AARJ (Victorian Association for Restorative Justice 2007). Note: the author is member of the Victorian Association for Restorative Justice, recently renamed the Australian Association of Restorative Justice. lvi Ibid. lvii Moore, Vernon (2019) lviii Rattenbury (2018). Used with permission. lix Australian Restorative Justice Association, ‘Practice networks’. lx Note: informed by the training notes and materials provided for the author’s Conflict Resolution Certificate and refresher training in 2014 and 2017 by A Vernon & D Moore, experts in RP. lxi Emerging from Foley’s interviews with practitioners summarised in Foley (2014), 183–98. lxii Moore, Vernon (2019). lxiii Note: informed by the training notes and materials provided to the author by A Vernon & D Moore, experts in RP. lxiv Mercer, Madsen (2015). lxv Ibid. 16–25. lxvi Ibid. 12. lxvii State of Victoria (2016), Recommendation 122. lxviii Zinsstag, Teunkens, Pali (2011), 311. lxix JSS (2019). lxx Note: the RESTORE program is currently being evaluated by the University of Melbourne. A Vernon is employed by JSS as an independent expert consultant to work with senior management and practitioners on the pilot designing the program’s guidelines, providing training and mentoring for the convenors, and monitoring the processes provided in the pilot. A Vernon provided detail on the program to the author for this chapter. lxxi Douglas, Walsh (2018), 499; Miles, Condry (2015), 1076. lxxii Wright, Swain (2018), 139–52. lxxiii Fernandez, Lee (2017), 419–60; Sköld (2013). lxxiv Vernon, Moore, Jeffrey (2017). lxxv Curran (2018a). lxxvi DART (2014). lxxvii Moore, Vernon (2019); Vernon (2017). lxxviii AARJ (Victorian Association for Restorative Justice 2017). Note: the author is member of the Victorian Association for Restorative Justice, recently renamed the Australian Association of Restorative Justice. lxxix Note: informed by the training notes and materials provided to the author by A Vernon & D Moore. The Australian Restorative Justice Association formerly the Victorian Restorative Justice Association, changed its name in early 2020 and removed some of the ‘best practice’ materials in June 2020 from its webpage that were relied on for this chapter in June 2020. These may be available on request to the association by interested readers.

128  The case for change lxxx Ibid. lxxxi Hermann (1997). lxxxii DART (2014). lxxxiii State Services Authority (2010), 12. lxxxiv Blad, Van Lieshout (2010), 59–66; Cashmore, Kiely (2000), 242–52; Crozier (2000), 218–23; Maxwell, Hayes (2006), 148–9; Zinsstag, Teunkens, Pali (2011), 67–8. lxxxv Blood, Thorsborne (2005); Mccluskey (2008), 415. lxxxvi Beckett & Campbell et al. (2005), lxxxvii Beckett & Campbell et al. (2005); Gade (2013),10–35; Reddy (2012). lxxxviii Vernon (2018), 141. Used with permission. lxxxix Basire (2007), 37. xc Maxwell, Morris (1999). xci Note: training and materials provided by A Vernon & D Moore. xcii Moore (2004b). xciii Note: some of these items are based on the author’s professional practice experience but have also been shaped and informed by the ongoing training and materials provided by A Vernon & D Moore. xciv Suzuki, Wood (2017), 277–92. xcv Borowski (2013), 285. xcvi Borowski (2010), 1129–30. xcvii Richardson, Thom, McKenna (2013). xcviii Borowski (2013), 268–88. xcix Borowski (2010), 1110–34. c Daly, Prioetti-Scifoni (2011), 724. ci Freiberg (2000), 213. cii Popovic (2004), 53. ciii Brown, Landsell, Saunders, Eriksson (2013), 375–93. civ Ely (2005), 113. cv King (2003), 1–3. cvi Murray (2009), 74. cvii Ryan, Deci (2011), 244–5. cviii Australian Government Productivity Commission (2014a); Blagg (2016); Blagg, Tulich, Bush (2015–2016), 4–16; Crawford (2010), 464–75; Fitzgerald (2014), 233–45. cix Referendum Council (2017). © Commonwealth of Australia 2016. CC-BY-4.0 licence.

8

Interdisciplinary student clinics and joint learning opportunities

This chapter explores the emergence of interdisciplinary student clinics (IDSCs) and joint learning opportunities (JLOs) being undertaken in some universities in Australia, Canada, the United Kingdom and the United States. These are relatively new initiatives. The aim of JLO is that students and teachers of different disciplines study together; collaborating on learning content, curriculum and outcomes. The idea behind JLO is that different disciplines can learn from each other to deepen their learning experiences. This helps avert stereotypes around different professions by learning about their particular roles and how they can contribute. For example, nursing, law, social work and psychology students take subjects in common where they learn about justice, the social determinants of health (SDH) and developmental psychological factors. A practical example of this took place in 2020, on study leave at the University of Portsmouth, where I worked in collaboration with nursing educators to develop skills of nursing students in Giving Voice to Values (GVV).i Working in an interdisciplinary way, nursing and legal educators collaborated to develop GVV (see Chapter 14) within a health context; devising, preparing and practising simulations; which led to insights. The nursing module aimed to enable students to find your voice as a member of an interprofessional team, as part of human factors in healthcare. The GVV specific content was adapted from the legal professional ethical context to suit skill development for nurses on how to act ethically when they were being asked to compromise their ethical duties or patient care. As a staff, we reflected that working together to co-teach and design the course gave us all stronger insights into our various areas and the necessary interaction and relevance of different disciplines. This strategy was delivered to final-year nursing students, who were about to be released onto the National Health Service (NHS) frontline. Educators and nursing students in the debrief, both during and post module, reflected on the power of working together, particularly helpful for the nursing students about to embrace a real work setting; having difficult conversations where they need to minimise patient error, act on their ethical and regulatory obligations and protect staff in the wearing of personal protective equipment.

130  The case for change After such JLO, the idea is that if students wish to proceed further, JLO can prepare them for an IDSC. This student-clinic model goes further than the law clinic context where law students provide legal advice to a health or allied-health service and its clients. IDSC sees the model extending beyond just law clinic students to encompass an array of clinical students from different disciplines (law, nursing, physiotherapy, social work, psychology and podiatry) working together to give collaborative advice to clients and patients, thus providing holistic care. This service provides a one-stop response to an array of client problems including social, health, allied health, cultural legal and economic. Each profession has different skills, and expert assistance is rendered in a collaboration of clinical supervisors of the different disciplines and their students. Client care is the central concern here. This system of collaborative working addresses some of the barriers that clients and patients have, finding out about other services that might help resolve their problems, finding all these services under one roof and in an environment that is familiar to them (as identified in Chapter 1). It also enables students to develop skills in working collaboratively with other disciplines before leaving university. I have been an adviser on JLO and IDSC initiatives in Australia, Canada and the United Kingdom. This chapter examines the models with which I am most familiar and explores some of the challenges to course aims, objectives and interdisciplinary approaches, as well as some workarounds. This discussion is primarily aimed at legal educators and clinical supervisors. It explores some of the challenges and benefits for universities as they work across disciplines and in interdisciplinary course design (discussed further in Chapter 13). This understanding is relevant as students are able to see the challenges their teachers and clinical supervisors face in breaking down the stereotypes and silos that can exist between different professionals that can impede seamless service delivery and responsiveness (see the discussion of my empirical findings in Chapter 5). Some of the skills required for such joint learning and IDSC will be explored in Part II.

Background to interdisciplinary student clinics and joint learning opportunities The idea behind JLO and IDSC is for different disciplines to learn together about different approaches. Exploration of interdisciplinary practice within other professions rarely considers or includes justice or law, even though it may shape their practice.ii There are many definitions of ‘interdisciplinary learning’,iii among them, ‘integrative learning.’ This describes activities that bridge experiences and praxis in the classroom, theory and practice, disciplines and fields. ‘Interdisciplinary study’ is a subset of integrative learning, which sees students in different fields learning together in class. For example, law students having joint classes on SDH with nursing, physiotherapy and podiatry

Context and recent research 131 students. A true interdisciplinary model restructures the curriculum with explicit integrative learning that includes theme-based, problem-based or question-based approaches throughout a curriculum of core courses, ensuring attention is paid throughout to interdisciplinary theory, concepts and methods.iv Interdisciplinary learning also includes the knowledge base of other disciplines, communication and problem-solving skill development, mutual respect and reciprocity. It involves coming to an understanding of the various roles of different disciplines, and the application of collaboration skills. It includes an active appreciation of the ethical principles applicable to different professions. It also encompasses understanding reasons for health and legal inequities and their impact on certain populations. It involves client interviewing that broadens the scope of information considered relevant to not just legal issues but including triage and assessment. It explores how ethics play out, in reality/on the ground, and how the responsibilities can differ from profession to profession. The latter is pivotal given some of the misunderstandings between professionals (see Chapter 5) that can hinder service access.v It is also important for each student to be exposed to dialogue, language and discourse within and between other professions. Interdisciplinary learning explores the different forms of diagnosis and different responses that are broader than just the legal, medical and social, and recognises the intersectionality of these contexts for clients and populations from different socio-economic and cultures and life conditions. The practice of JLO and IDSC could break down some of the barriers to collaborative service delivery and prevent distrust from forming by enlightening students to as to what other professions and disciplines can offer. This broadens an appreciation of the roles each can play in responding to client/patient need. By doing this in university training, my experience is that it enables students to build the skills they will need in future practice. It also breaks down some of the misunderstandings that can occur in practice before they become a habit (see Chapter 6). IDSC is a relatively new phenomenon in the discipline of legal education in Australia, but one I have been exploring since 2001 when I taught a clinical program and becoming aware of the work of Tobin-Tyler in the United States.vi There is a new momentum for implementation and learning about how to undertake JLO and IDSCs.vii De Greef, Ger Post, Christianne Vink and Wenting viii from the Amsterdam University’s Institute of Interdisciplinary Studies have recently produced a useful educational handbook on interdisciplinary learning. They argue interdisciplinary learning is now key because of the interconnectedness of problems and their complexity. That working to improve education and facilitating greater interdisciplinary education is critical, and they call for a new type of professional and educational curriculum to deal with contemporary problems.

132  The case for change The United States The United States has pioneered the delivery of JLOs and IDSCs. In the law clinic context, delivery has developed alongside their system of medical-­ legal partnerships (MLPs). US academic, Tobin-Tyler, has heavily shaped my thinking on this topic. Tobin-Tyler and colleagues took the initiative of bringing parties together to actualise an IDSC in the Rhode Island Medical-Legal Partnership for Children (RIMLPC) with Roger Williams University School of Law partnering with the Brown University Medical School. They articulate the rationale for JLO and IDSC and detailed lessons with the rollout of their program providing detailed lessons for others. The pedagogical component of their model offers law and medical students a collaborative learning experience through a joint course, as well as legal ‘externship/internship’ and medical clerkship placements, to achieve social justice and better health outcomes for poor children. Tobin-Tylerix writes of how intentions align for both medical and law students in the United States, with each emphasising professional responsibility and engagement with issues of social inequity and cultural competency. In Chapter 4 of Tobin-Tyler’s seminal text, Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership, examining poverty, health and law in the United States, Tobin-Tyler, Rogers and Weintraubx explore bridging health and legal professions through education and training, including teaching of law students and nursing, social work and public health and medical students together. The editors of the volume argue that integrating such interdisciplinary understandings into joint curriculum is possible. They state that it allows students to engage with the important social issues that can affect community in a deeper and holistic way. They can learn about population health principles such as the SDH and also examine connected justice outcomes. By learning together, in this way, they can test assumptions, learn new ways of doing things from other disciplines and start to see how they can combine as professionals and in study projects so as to improve health and policy and service delivery. At the RIMLPC, students participate through the law school’s public interest law internship program, under the supervision of the service director or lawyer, and receive academic credit for their work. Law students participate in client interviewing at the hospital, managing cases, developing and delivering training materials for medical providers. In some cases, the health and law students work jointly on the materials. Medical students participate through the medical school’s community health clerkship program. Students identify a specific project and work collaboratively with the law students, lawyer/supervisors and/or their supervising physician on the project. Where possible, medical students and law students work together on projects, offering a chance to explore a topic from an interdisciplinary perspective. Joint medical-legal seminars are offered by the law school and

Context and recent research 133 medical school, engaging staff, law and medical students in thinking about the extent of their obligation to serve poor clients and patients who have complex social problems. Students’ progress to eventually working together to develop responses to address systemic problems. In a 2008 paper, Tobin-Tylerxi highlighted an initial reluctance among students to see their role as more than winning and losing client cases or quick patient diagnosis to gain a deeper understanding of the SDH and justice factors that may impact on legal problems or poor patient health. She relates how transformative the experience of interdisciplinary learning can be for students as they extend beyond original thinking to more creative, holistic problem-solving, beyond the narrow medical or legal contexts contemplating ethics and the value of collaboration in finding solutions. Bliss, Caley and Pettignanoxii have also examined and operationalised interdisciplinary JLO and IDSC and provided some scholarly input as to its rationale and implementation. They write of the programs at Georgia State University College of Law where law students learn side-by-side with medical students, residents, attending physicians and students of social work and public health in a MLP known as the Health Law Partnership. This educational program engages students in various activities to build their understanding of health disparities and learning about the effects that socioeconomic determinants have on health. Bliss, Caley and Pettignano give examples of how students interact and learn in a clinical setting with opportunities to engage with client and patients. For example, fourthyear medical students participate in a four-week law and medicine elective offered at Morehouse School of Medicine. Clinical students attend joint classes with third-year medical students where they engage in group learning exercises and residents from the Emory University School of Medicine. They attend patient rounds within the hospital, perform client intake in the hospital’s emergency department and primary care clinic and attend clinic class case rounds to discuss ongoing clinic cases and engage in interdisciplinary problem-solving. In addition, masters’ students in social work and public health from Georgia State University spend hours at the clinic using their learnings to assist clinical work. Bliss, Caley and Pettignano provide helpful insight into how professional students from multiple disciplines have been incorporated into a law school clinic environment and explain students’ reactions to their interdisciplinary learning experiences. They underscore the critical importance of relationships of trust in any JLO and IDSC. This is a recurrent theme in most of the empirical studies outlined in previous chapters. Additionally, Bliss, Caley and Pettignano note the differences in schedules and program requirements for law students, medical students, and medical residents, observing that scheduling is easier for some disciplines, such as social work. They further note that a willingness of the different university departments to work around these constraints and flexibly experiment, it is possible to provide different kinds of JLO. For example, including different disciplines in ward

134  The case for change rounds, the questioning and participating actively in rounds, collaboration sessions or debriefs to resolve a problem and debates on an ethical issue. It can also include working together on a policy response or collaboration in the performance and critique of mock counselling sessions, moot hearings and witness preparation where students work together preparing for hearings or prepare health students for risk mitigation, document keeping and giving evidence in court, or other aspects of case work. Open dialogue and an ability to try new things by course conveners and teaching staff are key to JLO and IDSC courses. Bliss, Caley and Pettignano also note an example; in one activity, they describe where each profession separately identifies the qualities that, as a client/patient, they would like to see in their lawyer/medical professional. This draws out comparisons and differences between the two disciplines. Students learn from each other informally and through these interdisciplinary discussions. In terms of assessment, law students in the IDSC are assessed on multiple learning objectives of the course, including professionalism in relationships and client-centred practice, legal problem-solving, research and writing, professional identity, independent learning, ethical and professional practice, case management, and collaboration with legal and other professionals. Medical students are assessed on knowledge, academic preparedness, oral presentations, case notes, interpersonal relationships, insight, student effort, reaction to supervision and overall performance. Galowitzxiii has also described joint curriculum activities and assessment tasks for developing shared expertise and for capitalising on the knowledge of participating disciplines. Canada Although there have been interdisciplinary student-run free clinics in Canada since 1971,xiv they rarely have included justice as a part of the (multidisciplinary practice) MDP approach. Law clinics in Ontario, specifically the Community Advocacy & Legal Centre (CALC), are undertaking JLO, and more recently CALC has stepped into the IDSC domain.xv My awareness of the CALC initiative has come firsthand from practitioners involved in the program. Findings and commentary about the program are yet to be captured by researchers and evaluators. I was invited to Canada to advise on HJPs and subsequently have been in regular contact with the program’s former director, Michele Leering, who is the main source of my information. Within their existing externship program for law students, they have now included nursing and occupational therapy students through developing new partnerships with university faculties. Students work directly with clinical staff and clients, and on projects such as creating new legal rights awareness sessions for health care providers using adult learning strategies. CALC also provides introductory seminars to nursing classes about the links between SDH and legal rights.xvi

Context and recent research 135 Leering spoke to me about the CALC initiatives in October 2019.xvii CALC engages students across disciplines in JLO research projects to increase access to justice, including cross-disciplinary projects or community-­based action research projects. For example, CALC has nursing and social work students on placement who have undertaken training of law staff and law clinic students. They have also provided training to Masters’ students who have taken a research or policy position on a justice issue and provided the specific lens of their profession. According to Leering, this learning has been an enlightening experience for all participants and staff. The United Kingdom Lyall, Meagher, Bandola and Kettlexviii have noted the pressures for tertiary graduates to find employment, given the growing complexity and interconnectedness of the social and economic issues they will face. The Higher Education Academy commissioned a literature review and short survey, which is the subject of Lyall, Meagher, Bandola and Kettle’s report. De Greef, Ger Post, Christianne Vink and Wentingxix make a similar point, further noting that there is a demand for higher education institutions to entail the practical application of interdisciplinary learning in the courses they offer. Prompted by a workshop I conducted in August 2016 calling for more JLO and the development of IDSC, the University of Portsmouth (UoP) commenced a pilot project with a view to extending to an IDSC. This project is being championed by the leaders of the departments of law and nursing and is the first IDSC in development in the United Kingdom (at the time of writing), although there has been recent interest in the model from other universities in the United Kingdom.xx To date, the UoP has undertaken preparatory work through exploring JLO in the disciplines of law and nursing. Sadly, this was put on hold in 2020 due to the COVID-19 pandemic as the university halted law clinic offerings during this time. Other disciplines including social work, pharmacy and dentistry have expressed an interest in joining the fold, depending on the success of the pilot. Already, through the experience of designing curriculum, juggling timetables and developing the competencies required for each discipline, staff are realising and coming to appreciate differences in teaching approaches and contexts for each professional. To date, this has been an eye-opening experience for the academic staff and for me as project adviser. The lack of teaching of reflective practice, for instance, in most traditional law curriculum from first year law directly contrasts with nursing where it is seen as integral from the first year of the nursing degree. Chapter 13 explores some of the lessons and challenges of developing JLO and an IDSC.xxi One exercise that I undertook with Ryder and Strevens, the academics from the UoP pilot project, in preparation for the 2017 International Journal of Clinical Legal Education Conference in Newcastle, was the

136  The case for change design of tables highlighting SDH and justice intersections. This [exercise/ table] has since been used by others to develop interdisciplinary courses and HJP start-ups. We also listed in our paper for that conference some of the emerging differences in approaches to learning that we believe need to be unpacked and form part of the dialogue between academic staff, clinical supervisors and students. This is a work in progress but is critical in raising awareness of underlying philosophies, language and approaches from different disciplines, and find ways to integrate the best of these to enhance interdisciplinary understanding and learning. An interdisciplinary article on this is currently in planning. The tables we developed are publicly available for readers to explore.xxii The pilot, however, faces many challenges which have included changes in course designed and pre-requisites for practice and university restructuring which has presented it challenges to the progress of the pilot IDSC and JLO. Australia Monash University has operated what may be the first IDSC in Australia, through their partnership with Monash Oakleigh Legal Service.xxiii One of the stated reasons for establishing this IDSC was that law students and clinical supervisors believed they were missing some of the clients’ issues by taking an overly legalistic approach. It was thought that law students might improve their communication skills to elicit more information from their clients by working alongside other disciplines, in this case, social work students.xxiv Hyams and Gertnerxxv highlight some of the challenges that the clinic faced with some of the differing views of the role and relevance of professions and hierarchies forming between the student cohorts. They note the importance of preparation and a clear need for student preparation before embarking on an IDSC. However, the information they provide about the approach to the clinic lacks some of the interdisciplinary mutual respect and reciprocity that the literature canvassed in this chapter suggests are important pre-conditions for deeper collaboration and learning. The Monash Oakleigh IDSC appears to be very lawyer driven. This is problematic given some of the empirical findings outlined in Chapter 6 in relation to the need for reciprocity, willingness of other disciplines to participate given the critical importance to engagement of respect, trust and equality in roles that leads to effective MDP. The University of South Australia (UniSA) has commenced a pilot IDSC described as the interdisciplinary student health-justice clinic (IDSHJC) and published a peer reviewed articlexxvi on their development, process and first run of the course in order to share and encourage others to undertake IDSC. I have been an advisor to the program since April 2018. The pilot is a UniSA student-led integrated legal and health care clinic model for adults in Adelaide in crisis and experiencing homelessness. The project seeks to build on the existing services of the Open Door Health Clinic (ODHC), provided

Context and recent research 137 through a partnership between UniSA and the Salvation Army, which offers student-led physiotherapy and podiatry care. The expanded interdisciplinary collaboration involves the UniSA School of Health Sciences, the UniSA Legal Advice Clinic (School of Law) and the Salvation Army, thereby bringing law students into the service provision. The intention is to work collectively to improve the SDH and justice outcomes of patients and clients. There has been clear management support from UniSA for this initiative. A stakeholder group finalised a procedure manual and operational framework to govern the integrated ODHC in May 2018, followed by a student module detailing the learning outcomes and objectives for students. An introductory workshop was held by way of induction and prior to the clinic’s commencement to prepare students. Scenarios and discussion were used to explore the nature of client varied experiences and contexts, and the roles and ethics of each student practitioner.xxvii Students participated in co-designing training materials and online modules as part of their learning and as a resource for future student cohorts. This process itself has potential for great self-determinative student learning. Atkinson, Curran, Ferrar and Kontolianxxviii identify the need for careful navigation of ethical considerations, protocols and client consent and communication skills. The teaching team recognised that these issues and discussions pose theoretical and procedural challenges but conclude they offer rich interdisciplinary learning opportunities. Initially, the planned IDSHJC pilot involved law students from the Legal Advice Clinic joining with five physiotherapy and podiatry students from the School of Health Sciences at the ODHC. Nine health students and 10 law students were part of the eight-week pilot trial. A lot of time and effort have gone into integrating knowledge and modes of thinking from each discipline, and participant feedback including from students and clinical supervisors has been positive to date. A formal evaluation is now in development. Within the University of Queensland, the Mater Young Adult Health Centre and Health Advocacy Legal Clinic (the Mater Clinic) has a small IDSC component. Like the IDSC programs at the UoP, there is a focus on improving the SDH of chronically ill young adults (16–25 years) in the partnering hospital, which in this case, is the Mater Hospital in Brisbane. The IDSC is staffed predominately by students under the supervision of a lawyer. Ewais and Banksxxix have examined the pilot and described the purpose, operations and outcomes of the Mater Clinic. However, they do not detail the process by which the curriculum was designed, courses were taught in an interdisciplinary way. It is hoped an article detailing this aspect is forthcoming. Similarly, to Atkinson, Curran, Ferrar and Kontolian,xxx Bliss, Caley and Pettignanoxxxi note that the small number of credit hours in clinical courses can impinge on the depth of content the courses can reach. Also

138  The case for change raised are the professional and educational requirements that need to be satisfied (especially for medical students) and the problems with low client uptake or the initial lag in referrals. Chapter 6, in the MDP context, provided some ways in which these issues can be addressed. Facilitating conversations between clinical supervisors, academic and service staff and students can, in my experience, often lead to finding ways to solve problems of timing and curriculum. The key is making the space to have these conversations on a regular basis, so there are more people contributing to finding solutions. When I visited the UniSA IDSHJC in April 2019, it was evident that the law students had not yet seen the value in being visible to the podiatry and physiotherapy students. Like the traditional lawyer, they tended to sit in the clinic office and wait for people to come to them. As a result of realising this, in future, clinical teaching staff agreed that the induction and practice will now encourage and facilitate students moving out of their comfort zones by underlining the importance of formal and informal interactions. This means student expectation will move outside the law clinics office. For instance, by attending agency in staff meetings and training together with students of other disciplines, going to the staff lunchrooms and mingling with the clients of the service in the waiting rooms or at agency events for clients. This need to mingle with other students from different disciplines, as is the idea behind the IDSC. Building relationships of trust and easing awkwardness (that can sometimes result from limiting interactions to only referrals and appointment) risk missing the full extent of their reach and understandings of perspectives that can be the flow from the visibility and familiarity through informal conversations as the students from different disciplines to get to know each other. This interaction of student and clinical supervisor alike is key. Interestingly, I observed that the podiatry students were readily mingling with the physiotherapy students in informal settings and referrals were flowing between them. The law students tended to arrive and go straight into the law clinic office and remain there waiting for referrals to come. They would undertake other work/study, wondering why they were not busy. I identified a similar trend in some MDP start-ups in Chapter 6 in the initial stages of some MDPs. For others interested in trialling IDSC, I suggest encouraging mingling, and for clinical supervisors to facilitate some ice-breaker activities to help build relationships. For example, by law students helping the physiotherapy students set up the treatment tables, their informal conversations help build rapport and can remind the physiotherapy and podiatry students that a legal service is available for patients who need it. This relationship building has flow-on effects in bringing lawyers front of mind and encouraging referrals, in much the same way as the trust and visibility assist in MDPs discussed in Chapter 6. Allowing time for joint debriefs and discussions, as part of routine case management sessions, can also allow for a greater exploration of options for clients and patients, and more intensive

Context and recent research 139 immersion in ways of thinking and different pathways of care or opportunities not initially considered. The next phase of the IDSHJC is to operationalise this learning.

Challenges for universities working across disciplines In their study in the United Kingdom, Lyall, Meagher, Bandola and Kettlexxxii found that most academic staff wanted to teach only their usual modules in familiar subjects, not become involved in synthesis or interdisciplinary learning. They noted concerns about the logistics of timetabling, teaching credit and resource allocation. Murdoch, Epp and Vinekxxxiii noted that large student cohorts, while a challenge, are not an excuse for failing to design curriculum that exposes students to learning the interdisciplinary skills that are so much needed in practice. Bliss, Caley and Pettignanoxxxiv noted that medical students were not accustomed to doing considerable class preparation, for example, pre-class reading of conduct rules of each profession and papers on the role of law and health, whereas law students see such pre-reading as normal. Bliss, Caley and Pettignano noted although class preparation is kept to a minimum, some is needed. Inertia and resistance is not surprising given some of the issues confronting staff in higher education institutions with pushes to high class sizes, crowded curriculum and a resistance to teach in new ways preferring lecture formats and tutorial and working in silos.xxxv Key elements of IDSC’s induction are understanding of different working environments such as a hospital, visibility and the identification of patients experiencing both medical and legal problems with the efficient, clear referral processes and clear consent and privacy protections and protocols. Atkinson, Curran, Ferrar and Kontolianxxxvi also note that interdisciplinary practice is difficult to orchestrate in Australian universities, as teaching disciplines tend to be siloed with curriculum and timetables often difficult to coordinate. Tobin-Tylerxxxvii notes that interdisciplinary teaching can also be challenging for faculty. Preparation of the joint sessions can be labour and time intensive, requiring staff to keep open communication channels about goals for the class and learning outcomes. She notes that faculty also can make assumptions about other professions that can be misinformed. The handbook from De Greef and Ger Post et al.xxxviii is a great starting point for educators interested in developing JLO and IDSC. It contains ideas to help develop, implement and sustain an interdisciplinary approach to their teaching at the classroom, course or program level. They note that there are few resources for designing courses and programs that foster interdisciplinary thinking in students. They warn the key challenge in interdisciplinary education design is to obtain coherence within the curriculum and that underpinnings should include a clear shared philosophy with opportunities for team teaching. Shared learning opportunities need to exist not just for students, but also for teaching and academic staff. They

140  The case for change recommend practitioners jointly discuss and design the assessment of learning objectives, for example, through portfolios, group and individual work from multiple perspectives, and student-centred assessment which focuses on their growth and development.

Benefits for universities working across disciplines Despite these challenges, there are significant benefits for students, their teachers, clinicians and the community in such early interdisciplinary cross-fertilisation. Aligning with some of the key themes outlined in previous chapters, interdisciplinary learning can bring law students to the understanding of context and the human dimensions of client work not possible through traditional and doctrinal learning. Reflective practice, if taught early and undertaken regularly before, during, and after action, can become engrained in students are in practice (see Chapter 14). Students can be introduced to and shown the place for client narrative and storytelling (predominant in other disciplines). JLO and IDSC can also highlight the value of client voice and instil the active listening skills that other disciplines emphasise to elicit client experiences, interests and perspectives. This enables improved problem identification skills, beyond traditional legal pigeon-holing towards a greater appreciation of the contexts of others. Self-determination of the client, improved communication and interpersonal skills (borrowed from the health and allied-health disciplines) and better understandings of the broader role in improving justice and the SDH can improve service outcomes. Along with Tobin-Tyler, I have found that interdisciplinary collaboration in designing such courses increases the understandings of all participating professionals as they work together to better respond to client and community need. Interdisciplinary courses may not be easy to design, construct, teach and sustain but they do lead to a much stronger appreciation for the complexities of the different roles, be they as lawyer, social worker, psychologist, physiotherapist, podiatrist, nurse, doctor and so on. This creates a fertile environment for growth, inspiration and making a difference.

Conclusion Through interdisciplinary learning, students come to appreciate the importance and benefits of treating clients with dignity and respect, rather than as a legal or medical problem only. IDSC and joint learning programs empower all students by building more sophisticated understanding of ethical and legal implications and expanded notions of client care. They push beyond what Leeringxxxix describes as impoverished thinking like a lawyer mantra to stimulate thinking about new paradigms of legal practice that could better meet the needs of the public. Likewise, non-legal disciplines

Context and recent research 141 gain an appreciation of the relevance of laws and legal advocacy in advancing their patients situations, just as the law students see that their clients’ legal problems are situated within a raft of other circumstances which may sometimes need to take priority over the law. My view is that it presents a rich opportunity to better prepare students for the changing world and to be able to better respond to the issues they will face when they graduate to practice.

Questions for discussion 1 Do you think IDSC and JLO have merit? Why or why not? 2 Re-read the chapter and identify what some of the challenges of starting an IDSC or JLO might be for you in your own context? 3 How might these challenges be addressed and at what levels would support/or is support likely to occur? Who might be the champions in your university/agency for the initiative or building on the initiative if you already have it?

Notes

i Note: GVV is the concept that we can hold true to our personal ethics and values, even in high-pressure work situations. By practising would-be scenarios and outcomes, we become familiar with responding to challenging ethical situations (see Chapter 14 for more detail). ii Curran (2017f). iii Lyall, Meagher, Bandola, Kettle (2015), v. iv Klein (2005), 8–10. v Curran (2017e), 11–36. vi Buck, Curran (2009), 1–29; Curran (2005); Tobin-Tyler (2008a), 249–94; Tobin-Tyler, Rogers, Weintraub (2011). vii Curran (2017f), 46–64; Tobin-Tyler & Anderson et al. (2014), 149–77. viii de Greef, Ger Post, Christianne Vink, Wenting (2017). ix Tobin-Tyler (2008b), 12, 17. x Tobin-Tyler, Rogers, Weintraub (2011), 117–20. xi Tobin-Tyler (2008b), 27–33. xii Bliss, Caley, Pettignano (2012), 149. xiii Galowitz (2012), 172–3. xiv Nung, Hu (2017). xv Leering (2017), 206. xvi Ibid. 217. xvii Note: this is information from a discussion with Michelle Leering in October 2019. She noted their program has not been the subject of a journal article. xviii Lyall, Meagher, Bandola, Kettle (2015). xix de Greef, Ger Post, Christianne Vink, Wenting (2017). xx Note: two workshops on the topic have been hosted by Nottingham Trent University in June 2017 and 2018 with interest from Essex, Sheffield and other universities. xxi Curran, Ryder, Strevens (2018), 32. xxii Ryder, Strevens, Curran (2017).

142  The case for change xxiii Hyams, Gertner (2012), 23. xxiv Brown (2014). xxv Hyams (2012), 103; Hyams & Gertner (2012), 23–26. xxvi Atkinson, Curran, Ferrar, Kontolian (2020). xxvii Ibid. xxviii Ibid. xxix Ewais, Banks (2018), 656. xxx Atkinson, Curran, Ferrar, Kontolian (2020). xxxi Bliss, Caley, Pettignano (2012), 162–3. xxxii Lyall, Meagher, Bandola, Kettle (2015), viii. xxxiii Murdoch, Epp, Vinek (2017), 744–53. xxxiv Bliss, Caley, Pettignano (2012), 162–3. xxxv Thornton (2017), 101–17. xxxvi Atkinson, Curran, Ferrar, Kontolian (2020), 3, 5. xxxvii Tobin-Tyler (2008b), 34. xxxviii de Greef, Ger Post, Christianne Vink, Wenting (2017). xxxix Leering (2017a), 208.

Part II

Practical skills for new approaches to lawyering

Part II focuses on essential skills for the new approaches outlined in Part I, Chapters 3–8. Most of the chapters in this part contain some contextual background, skill development activities and processes to assist educators, law teachers, professional development practitioners and professionals from different disciplines. Part II draws on my many years as an educator, trainer and practitioner. Chapters 9, 11 and 12 commence with aims and objectives, methodology, and learning outcomes for the specific skills. Some of the chapter activities, scenarios and questions can be adapted depending on the course, stage of course, student or practitioner cohort, and exigencies in different jurisdictions. Chapters 10 and 13 lay groundwork suggestions for learning, practice and interdisciplinary learning, which emphasises collaborative ways of working and the elements required for this to occur. These two chapters draw on what the literature suggests are important pre-conditions to enable these skills to be taught, perhaps reflective of how rarely these skills are actually taught in legal education settings. The aim is to provide readers with some ideas on how they might approach or operationalise such skill development in their courses or organisations. All the suggestions are general in nature given each course, program or context will differ. They proffer a starting point for readers. Some references/resources are provided within the chapters (additionally to the references at the end of the book) should readers wish to further investigate the learning materials and educational approaches and practice.

9

Effective communication and problem-solving skills

Aims and objectives •

Emphasise that effective communication and problem-solving is the underpinning of ethical legal practice.

Methodology 1 Provide planning approaches for the development of effective communication and problem-solving skills. 2 Identify tips for effective communication and problem-solving skills. 3 Provide some questioning techniques to broaden capacity for problem-solving strategies. 4 Present scenarios based on real-life practice; provide activities, reflective questions and debriefs that can be completed in groups or individually by students or practitioners. Learning outcomes • • •

Increase exposure to and practice of interpersonal communication to better respond to clients and other professionals. Expand the scope for problem-solving strategies through improved communication, problem identification and assessment. Encourage practices that integrate cultural competency and trauma-informed practice.

Background to effective communication skills Effective communication for a lawyer includes respect and engagement with a client and their support networks, compassion, active listening, clear explanations, tailored advice (to their concerns and issues) and routine ‘concept checking’ (summarising and checking in with a client so they can correct, feel heard and know what is going on at each step of the way). It involves more than just written skills. The traditional focus

146  Practical skills for new approaches of legal education has often been on written forms of communication, case law and statute with essays or exams undertaken for a readership versed in legal discourse; namely, the lecturer. This chapter focuses on oral communication; however, some of the suggestions are just as pertinent to written communication. References are provided for each area covered at the end of chapter so readers can follow-up or read them prior to undertaking the activities, reflective questions or to inform their debrief. Cultural competency has been underexplored in traditional legal education and professional development but is discussed in this chapter. Practitioners and students have learned law from the vantage point of Western culture, which may not represent some of your clients. Having some understanding of the impact of ‘trauma’ on people and how this can affect behaviours is also often overlooked. ‘Clinical legal education’ has developed some useful resources and activities for their students to improve their interviewing skills. Equally relevant in helping hone/develop communication skills are approaches from other disciplines including medicine, social work, nursing, education and psychology. Some nomenclature can be unhelpful. Often, interpersonal and communication skills are described as soft skills. Describing them as soft skills implies that they are optional.i They are in fact hard skills because they are not easy. This chapter also touches on ways law students and practitioners can improve triage and their assessment capabilities as they conduct an effective client interview using a client-centred approach.

Effective communication skills Aristotle said,ii ‘Clearness is secured by using words that are current and ordinary’. Wisely he also suggests a need for humbleness in this adage, ‘I am the wisest man alive, for I know one thing, and that is that I know nothing’. Even if you do not understand your own clients’ choices, or things do not make sense, do not jump to conclusions too early. This chapter seeks to suggest that ‘good practice’ requires we take time to explore who our clients are and what factors may be at play. This means we need to go beyond just taking a legal technical approach if we are to be effective. We need to develop interpersonal and communication skills that incorporate cultural competency and trauma-informed practice. As an illustration of the dangers of jumping to conclusions, I once had a clinical student who could not believe her client’s story as she thought it was fanciful and because the client had a mental illness. The client alleged she had been digitally (sexually) assaulted by a doctor during a medical consultation. When the student apprised me of the client’s situation and her view on the client’s story, I suggested that before the student came to a

Effective communication skills 147 conclusion and dismissed the clients concerns, that she should do some further research. Later that day, the clinical student came to me having found that the particular doctor had previously been accused of sexually assaulting other patients and was before the regulatory board. It was a salutary lesson. There was some interesting research conducted at Cardiff University, where clients were interviewed immediately after the lawyer–client interview, and it was established that the lawyer had not listened or accurately identified the problem the client had come to see them about.iii This is an example highlighting the importance of improving communication skills so that such unfortunate situations are minimised. Ethical consideration as an underpinning Ethical practice needs to underpin all effective communication and problem-solving. Ethical situations emerge all the time and, without being mindful, we can miss them. Being conversant in ethical obligations (flowing from the common law, legislation or our ethical codes of conduct) and an awareness of them at all times, means that, in the interactions we have with others, in our role as ‘law practitioners’, we can prevent inadvertent courses of action that can have implications down the track for client and professional alike. Similarly, a vigilance and an awareness of ethical concerns can be important in managing client expectations and ensuring we do not unwittingly follow solutions that can have poor flow on effects. As professionals with training, education and experience, we can sometimes forget that we do not know everything. The more experienced we are, the easier it is to forget what it is like to exist in a place where you do not know the law; you are worried about your legal position and you are overwhelmed by a complicated system and law that is hard to navigate without insider knowledge. We should not abuse the privilege of our qualifications by using them to further mystify through the use of opaque language. Some lawyers use technical language and keep legal concepts obscure so to make clients feel they need their lawyer. This is seen as a way to make clients reliant, driving up client legal costs by utilising their lack of understanding. This does nothing to enhance confidence in the law or the profession or to deliver on our duty to fully inform our client of their position and their options. I recall as a young lawyer being told by my supervisors not to tell the client too much and to stagger advice to ensure the firm could charge more. Their view was the less the client knew, the more they would need to use our services. Some of my students’, as recently as November 2019, have told me that they have also been given similar directions by their supervisors. This approach to legal advice is poor and contrary to 7.1 and 7.2 of the ‘Australian Solicitors Conduct Rules’ detailed in Chapter 5, which require advice that assists understanding and enables clients to make informed

148  Practical skills for new approaches choice (7.1) and information about all alternatives/options to permit a client to make decisions about their best interests (7.2). In addition, the Legal Profession Uniform Law (in NSW/Victoria) imposes an explicit, mandatory obligation that legal costs must be fair and reasonable (s. 172). Additionally, under s. 173: A law practice must not act in a way that unnecessarily results in increased legal costs payable by a client, and in particular must act reasonably to avoid unnecessary delay resulting in increased legal costs.iv Plain English skills ‘Plain English’ is using language that is clear and simple and avoiding unnecessary jargon. It conveys information in an understandable format for its intended audience to aid understanding. By adopting plain English, a law practitioner increases the chances of their advice being understood and a client’s capacity to make informed decisions about their options. One useful process I adopt as a legal professional is to try to understand what it is like to be in the shoes of a client. Having done this, I adjust the message and tailor it and use plain English. This process can lead professionals to take into account client educational attainment, culture, distress, embarrassment, confusion, anger or reticence. It requires planning, mindfulness and careful thing throughout, pausing and listening, rather than just jumping in and talking.v To enable effective communication, we must tailor our language and delivery to the particular audience (community, other professionals, the legal system, etc.). Written communication needs to be understood by a variety of clients and non-legal professionals that the lawyer may come into contact with. On leaving law school, interpersonal communication is the most significant part of legal intercourse as we need to interact with clients, work colleagues and other relevant stakeholders in order to apply the law.vi Little is canvassed on what non-verbal skills, tone of voice and body language, can convey and ways lawyers can be mindful and adapt these skills to be more effective in how they communicate respectfully. Scenario 9.1: Simulation to practice communication skills Your new client has been directed by their youth worker to meet with a lawyer. The client has never met a lawyer before and is unaware of what they do. They have only seen lawyers on US television, where they come across as intimidating and aggressive. The client has an educational level of Grade 6, having left school early due to family problems. The client has been a ward of the state since they were 11 years old, has been abused,

Effective communication skills 149 lived on the streets and been in and out of foster homes. As a result, the client has experienced periodic bouts of depression and anger management issues. The client has poor relationships with police and authority figures, so tends not to trust people in authority such as lawyers. The client trusts their youth worker who has been a consistent advocate and ally in many different situations. Having protested about having to see a lawyer, the youth worker has encouraged them to see you. Your client has a series of fines that are outstanding. These include urinating in a public place (this is because public toilets are often locked or not available in places where they have been living) and travelling on public transport without a ticket (this is because they have no money to pay for tickets). The police recently arrested your client as a result of outstanding fines and warrants due to the client not attending court in cases pertaining to those fines. The client is now on conditional bail. Reflective question Imagine you are this young client. How would you be feeling about going to see a lawyer given your fines and warrants? Activity 9.1: Reflection activity After assessing how the client might be feeling, write down a list of adjectives to describe their emotions, fears and hesitations about sharing information. This can also include listing behaviours that the client might exhibit, given the client’s scepticism about your role as an authority figure. Debrief: reflective questions on reflection activity Now you have written this list of adjectives, how will this list shape or adjust your way of communicating with this client? Tips for effective communication • • • • • •

Consider who your audience is and tailor your message and delivery accordingly vii Be aware of your tone of voice and body language Use accurate language and terminology; without vagueness or ambiguity Use short sentences, omit surplus words and err on the side of simplicity; especially if the client/audience has low comprehension Get to the point quickly; before you lose the interest of your audience Use colloquial language (familiar, everyday words); avoid legal jargon, archaic expressions and pomposity

150  Practical skills for new approaches • • •

Do not be judgemental of your audience Take time to listen to their story Take time to establish rapport and trust with your audience.viii

Tip: Later in this chapter, you will be practicing various skills as you interview a client. One thing that can assist you, in critically assessing your interview skills, is to film yourself on your mobile phone and replay to review. Client-interviewing – incorporating ways to triage and assess Prior to an interview, some planning and preparation is needed. When a client booking is made, you may have been provided with the nature of the problem and so a little legal research in advance can help you prepare. Be careful that this research does not lead you to pre-empt or jump too quickly to conclusions. Keep an open mind and listen to what the client is saying. After an initial conflict check (do you or your law firm already represent the other side or have confidential information that might breach duties of loyalty to other clients) utilise the seven stages for interviewing, which are: rapport building and preliminaries; free narrative; questioning; summary and concept checking; advice; closing the interview and recording the advice. BUILDING RAPPORT AND PRELIMINARY MATTERS

1 Rapport building and preliminaries a Create a positive, warm and compassionate client experience. Create meaningful engagement. Make sure the physical environment is not alienating or threatening. Sitting next to a client while talking, might be preferable to over a desk, which is a barrier between you and your client. You need to be professional. They are not your friend, but this does not preclude being approachable, affable and kind. The more challenges the client has, the more skill you need to exercise to make the client feel respected and that they can share their story with you. b Depending on circumstances meet and greet the client in reception and walk them to the office or the interview space. c I always ask a client what name they would like to be called by. I make small talk to put them at ease, such as talking about the weather, ‘it is hot today isn’t it?’ Some clients might be abrupt and business-like. You have to be adaptable but putting a client at ease is important. Clients can be concerned about sharing confidential information with a stranger, have negative stereotypes about lawyers, be embarrassed, suspicious or uncertain and so putting a client at ease and letting them know you want to help them and are

Effective communication skills 151 interested is a good way to start. Other things you can say include: ‘All that you say is confidential in the context of the firm unless you consent to it being shared’. d As lawyers in Australia we are also obliged to be transparent about legal costs so you will need to canvas this as a preliminary point too. For example, ‘this is our arrangement for costs/we are a free legal service/this first consultation will cost …’ e I find at various junctures throughout the interview, it is helpful to let the client know what is happening and how the interview will progress so the client can follow what is occurring and doesn’t feel overwhelmed. f If other people, who are not your client, want to be present in the interview, for example, a case worker from a different discipline, make sure they know that it is a legal interview. This means being clear that it is covered by client–legal privilege and that if they remain in the interview, then they are also bound by client confidentiality and cannot share any information from the interview with another party. You may need to get this consent in writing from both the client and the other professional (discussed in Chapter 13). g If the client is a child (for example, a teenager), it may be better to interview them without their parent present. This is advised as a child may not be comfortable sharing the information you need in front of a parental figure. Even if their parent is paying, the child is still the client, your loyalty must be to them. h For people from a culturally diverse background who need an interpreter, it is never advisable to have a child, partner or other family member interpret in legal matters especially in FV, family or criminal matters as they may edit or have influence. GETTING TO KNOW YOUR CLIENT

2 Free narrative a Do not prejudge the nature of the client’s problems or jump to conclusions too early. You need to give your client time to gather their thoughts and to unpack how they are feeling. The client’s story may come across initially as a disorganised jumble. Be patient, this may be because they are charged with emotion and bewilderment at the beginning of the interview. Enabling them to have the space to get things off their chest can often be quite therapeutic for a client and gives you early insights into the clients concerns and their personality. This can be priceless information later on in the process. It enables you to tailor your advice and to ensure that you can meet their concerns.

152  Practical skills for new approaches b The free narrative does not close down the conversation too early. This runs the risk of you, as their lawyer, not getting all the information that you might need if you do not ask the right questions. I have always found that the free narrative gives a client the sense that they are being listened to and heard, gives them a chance to speak their thoughts and allows them to make sense of what they’re feeling and what has happened. It is for you at a later stage in the interview to try and organise what has occurred into a chronological order. The free narrative is often omitted by lawyers who can too quickly jump to conclusions that may limit questions to a point where critical information is overlooked. This can run the risk of actually not getting a sense of what the clients concerns are by narrowing the issues down to early and too prematurely. The free narrative should occur with minimal notetaking and questioning. Suggestions for opening lines include: ‘How can I help you today? How can I help you? What can I do for you?’ c Short questions are okay if the client is not forthcoming. This might include ‘and then what?’ Sometimes a nod of the head or a short open question will encourage the client to continue. This also continues to build your client rapport. If you are getting the information you need from a free narrative, then there is little need to interrupt the client if the information is being provided. d If the client mentions something that you think is important, take a note of it and follow up later rather than interrupting the flow. UNDERSTANDING THE CLIENT’S CIRCUMSTANCES: WHAT INFORMATION IS NEEDED?

3 Questioning a An open question such as ‘and then what happened?’ elicits a range of responses, whereas a closed question limits the range of response, for example, a ‘yes’ or ‘no’ response to ‘was the car blue?’ b Avoid leading questions like ‘did Bob hit you with a closed fist?’ instead ask ‘what did Bob do?’ c Seek the facts you need by asking both open and closed questions, establish the client’s expectations, take detailed notes, establish the chronology. The what, when, where and how questions can help you when you feel stuck. This will give you information, space and time to get back on track as well as time to think of the more specific questions you may need. d Gaining specific detail is critical in this phase. Try to resist a question and answer format. By doing this it makes the interview respectful and conversational, so the client feels it is a collaborative process. They hold the information and expertise in their own lives, you hold the technical expertise. Being too pre-prepared with formulaic

Effective communication skills 153

e

questions or checklists may make you feel more confident, but it can mean you miss vital information/body language, etc. Identify through your questioning what the clients concerns and issues might be. This includes not just their legal concerns and issues, but also their non-legal concerns. The latter is important as it can be relevant to your problem-solving later on. Summarise the facts along the way too, if you do not understand responses, even though this is a questioning time, it can also allow the client time to clarify their responses. Do not hesitate to explain what you need in order for you to assist them. Sometimes clients can feel reticent in answering questions when they do not see why you need the information or when it is very personal.

CHECKING IN WITH THE CLIENT: ASCERTAINING IF YOU HAVE UNDERSTOOD

4 Summary and concept checking a Sometimes, for the client, the process of hearing back in a more ordered way from you what they have relayed can help them clarify things in their mind too. Once this has been done, check in with client and ascertain what the client’s key concerns might be. b It is useful to summarise at different stages throughout the interview where you think you have quite a lot of information. Check in with the client to see if you have the correct understanding of their story. It needs to be a two-way conversation in order for the client to add what they might not have felt was relevant earlier. Often over the course of the interview, as their trust is built, they may feel more confident in sharing further information. c Sometimes, without realising it, we can make assumptions. So, the process of going back and having to extract the critical and most salient pieces of information and repeat them to the client is beneficial. Again, the client gets a sense they are being listened to and heard, which leads to greater respect for you as their lawyer. If you have misunderstood or there is an additional fact that the client left out, this may be the opportunity where the client will add the information or clarify the point. Summarising and concept checking enables us to ensure that our advice is accurate. ADVISING THE CLIENT: CHECKING THE FACTS

Be mindful that you may not have all the material you need from a first interview to be able to advise yet. 5 Advice a Ensure you have all relevant information and understand the law. Explain the relevant law and discuss all options at a measured pace. Do not rush.

154  Practical skills for new approaches b You may have other imperatives, such as workload and time constraints but do not let the client get a sense of this pressure. c Do not edit options because the client only seems interested in one course of action. Sometimes, the client might not have thought about costs, risks of their desired course of action or may not know the range of options available to them. It is your role to advise them of all relevant options. d Do not give advice because you feel pressured for time or when you are unsure. Rarely will you have all the documentation or information before you. Feeling pressured into giving advice or giving advice prematurely, without all the facts, and having cited documentation and checking the law, can be foolhardy. e There are always many sides to one story. Be open, clear and honest about realistic time frames. Some tips on how to explain this include ‘the law can be complex and depend on many things and so I need time to look into it’ or ‘i’ll need to do some research to be sure I give you the right advice’. Being clear in this way can also help manage client expectations early on in the relationship. f You can outline strong and weaker options, but it is the client’s life and they have to live with outcomes and so it is their choice. This is also consistent with our duty as lawyers, legal empowerment and client-centred practice. Facilitate the client’s informed decision, but do not tell them what you think they should do. g Advising on their legal position and pros and cons helps clients make an informed decision. h The advice must be clear, comprehensible information and provide support for self-care, which may include referrals to other appropriate services and gaining informed consent for sharing information if it is required and agreed to by the client. i One technique I use, if I think the client may not understand the concept or a process, is to ask them to ‘repeat in your own words a summary of what I have advised’. CHECKING IN AGAIN AND ESTABLISHING NEXT STEPS

6 Closing the interview a Outline the next steps (including yours and the clients). b Be mindful of any continuity of care, any ethical concerns (for example, if a person who has been mentioned in the interview, you need to do a conflict check them), additional supports that may be required, problematic environments raised and facilitate if possible smooth transitions including referrals averting referral roundabouts. c Ask if the client has any questions/or anything further to add (allow time). I often count to 10 in my head. In my many years of experience in interviewing clients, I find that most often at the count of

Effective communication skills 155 seven or eight the client will ask a question or raise a concern and you may have to recalibrate your advice at this point. d Remember a client may be overwhelmed by information, be upset and unable to absorb the information. If they are stressed or anxious, it can affect their ability to digest information and so this closure of the interview can be a critical time for them to reflect. e Emotional support, empathy and respect are all critical throughout the interview process. 7 Recording the advice a Lawyers and clinical legal education students often record the facts really well. However, when giving advice, often notes are very cursory if any are taken at all. This can be due to the fact that it is hard to talk, think about the application of the law, and respond to client reactions all simultaneously. This is a time that you still need to keep notes. These notes give you the scope of your retainer and also enable you to ensure that you are following client instructions. They also protect you in the event that the client complains that they were never advised of something or that you have acted beyond your client’s instructions. For this reason, it is important to keep just as detailed notes about the advice provided as it is for recording the information provided by the client. b Interview notes need to be legible as you will need to refer back to them, as will colleagues and support staff. They should be taken while you are conducting your interview or straight after if you could not write quickly enough at the time. c If the instructions are complex or technical, getting the client to draw a diagram or chart can help. For example, if your client is a civil engineer, a basic drawing may help you understand and be useful later on. d Record all people who are present in the interview room, the time, date and sign the notes. If others were present, for example, a parent (where your client is a child), a case worker of a different discipline or teacher, then reiterate again at the end of the interview that as it is a legal interview, which is covered by client–legal privilege. As such, they are also bound by this confidentiality and cannot share any information from the interview with another party. e If there is a need to share this information, then the client’s consent should be formally obtained in writing. The client should be appraised of any risks associated with divulging information at interview in a later proceeding, and of this prejudicing their position if such a risk exists. This conversation should also be recorded in the event that at a later stage you become aware that the client’s confidentiality has been breached by one of the participants in the legal interview. The reasons for this are discussed later in Chapter 13.

156  Practical skills for new approaches Tips for interviewing • • • • • • • •

Make sure your questions are not too general but will provide you with all the information you and the client need to take the next steps. Generate a variety of options. Be flexible and adaptable. Give the client time to think and to make decisions. Do not ignore emotions. The client and you are human. Acknowledge it and manage it professionally but humanely. Explore non-legal options not just legal ones. Check in and summarise what you are hearing. The client wants to confirm you have heard correctly. Be prepared to look for and receive feedback especially from your clients and colleagues and to shape your improvement.

Tip: The more experienced and seasoned you become as a practitioner, the more you have to take care. It is easy to stop hearing. Do not assume that every story is going to be similar because you have heard it all before. Lawyers who do this can risk missing important information or make assumptions based on previous experience.

Activity 9.2: Active listening The next time you are with a friend or colleague for a meal or coffee, when they are telling you a story or describing an incident, see how long you can go being silent and not questioning them or adding to the conversation. Try to just listen. Focus on what they are saying rather than what you think they are saying. Observe their body language and tone of voice. You can use body language such as nodding your head to let them know you are listening. Try to do this at three separate intervals in the conversation, not speaking, unless invited to (which may occur if the friend is accustomed to you interrupting). Even this response will be feedback for you. Debrief: reflective questions on active listening • • • •

When you have finished the catch up, write down whether you have successfully listened? Were you tempted to share your own similar experience with them during the conversation? Did you find yourself judging them as they spoke? During the conversation did your friend or colleague comment on the fact that you were quiet? Do you think they attributed this to you listening or to your lack of interest in their story?

Effective communication skills 157 • • • • • • •

Did you notice anything about their body language, tone of voice or the depth of the conversation in light of your silence? Did you find it difficult to resist asking questions? Did you find it difficult to not add your thoughts to the conversation? What did this exercise teach you, if anything, about your active listening skills? You might like to consider whether you found it difficult to be silent. Were there any benefits from pausing? Were there any benefits from not adding your opinion or questions or expressing your views, but just listening quietly? Did you learn something about your friend or colleague during the conversation that you might not have understood if you had interrupted?

Tips for active listening • • • • • •

It is okay to not fill the silence. You do not have to talk all the time. Pausing can be an appropriate technique for all concerned. It gives space to think, digest information and gather thoughts/respond and reflect on what’s happening/happened. Be professional, friendly, honest, open and approachable. Be clear that ‘you often can’t fix everything in one session’; this is an ongoing process. Build trust with people. Be aware and guard against bias. Avoid pre-judging the facts or the truth of what the client is saying.ix Tip: sometimes when we are trying to listen, our mind takes us in other directions and to other trajectories. This includes trying to think through whether what the client is saying is making sense or waiting for them to finish. Resist the temptation to share your own personal insights and similar experiences when they finish speaking. As this prevents active listening.

Activity 9.3: Concept checking This activity needs to be done in a pair. Using ‘Scenario 9.1’, decide which of you in your group will role-play the young client. Although this is a role-play, it is an opportunity to really develop and test new skills. If you play the role of client, make it convincing, and test your partner’s skill in the role of lawyer. This will also help you identify the skills needed for a lawyer to be responsive by taking a perspective of the client they seek to assist and thus enhance your existing lawyer skills too. If you are not a good actor, try and put yourself in the shoes of this young person who has no support other than the youth worker, who has had long periods of

158  Practical skills for new approaches homelessness, who has been disappointed due to their life circumstances and who feels unwanted and unloved. Remember your client has been homeless for periods of time.

ROLE-PLAY INSTRUCTIONS – CLIENT

•

•

The person role-playing the client will need to think what they would be feeling like if they were the young client. Think about how they would feel, in light of their educational attainment, their reticence about lawyers and people in authority and their doubts that anyone can or will want to help them. When you are being interviewed feel free to present the personality that you think a client such as this will have. Develop your own back story as to the client’s history where you think it is necessary to fill in gaps. Feel free to make this up but please make sure it is authentic and realistic.

ROLE-PLAY INSTRUCTIONS – LAWYER

•

Interview your client. You do not need to undertake the ‘advice’ in stage 5. Try to focus for now on stage 1, 2, 3, 4 and 6. If you are the lawyer, use the information provided above to phrase a summary and concept check with this client during the interview; outlining the key facts and issues of their life gleaned from the scenario above.

Debrief: reflective questions on concept checking 1 The person, who has role-played the young client, will provide the lawyer with feedback as to whether or not their lawyer has worded the summary or the concept check in such a way as it will resonate with the young client. 2 Does the client believe that the way the lawyer framed the summary might be distressing for the client? 3 Does the lawyer elicit the information in too much detail, so it is not a summary? 4 Does the client feel that the lawyer has correctly understood their story? 5 Did the client feel comfortable correcting any incorrect information or recalibrating the summary that the lawyer has provided them with? 6 Was the summary understandable to a client such as the one you are role-playing? 7 Are there any areas that you think could improve the lawyer’s interactions with you and if so, what are they?

Effective communication skills 159 Activity 9.4: Non-verbal skills This activity needs to be done in a pair. If you have done ‘Activity 9.3 – Concept checking’, switch roles between who plays the client and who plays the lawyer. For this activity, use the interview in ‘Scenario 9.1’ and the client-interviewing assessment list above. See if you can implement the strategies for improvement you have identified in the debrief with the person role-playing the client above. Go through the same questions again. If you have not done the concept checking activity using the interview scenario above, decide which of you in your group will role-play the young client. The person role-playing the client will need to think what they would be feeling like if they were the young client. Think about how they would feel, in light of their educational attainment, their reticence about lawyers and people in authority and their doubts that anyone can or will want to help them. The other member of the group will be the lawyer. Use the video facility on your mobile phone and film the first four stages of an interview (rapport building and preliminaries; free narrative; questioning; summary and concept checking). You do not need to advise the client. This is an exercise on your non-verbal skills. Once you have conducted the first four stages of the interview with the client, review the video. This is a good way of observing your non-verbal language as you will not be aware of it in your role as a lawyer. If you do not have access to a mobile phone or videoing facility, this activity can be done in a group of three with one person being the observer face-to-face or you could use an online platform like Zoom or Skype. You could also pre-record it in Microsoft Teams or Google Hangouts and play it later on and observe and discuss the recording. If you have an observer instead of a video, they can add their observations as an impartial person to the debrief. Debrief: reflective questions on non-verbal skills 1 Watch the video carefully (or base on the face-to-face observation) and observe your non-verbal language. 2 The lawyer: What did you do with your hands? Did you nod your head with reassurance? Did you do anything in your non-verbal language including your tone of voice that might be off putting to a client? 3 The client: Was there anything that your lawyer did all in terms of their non-verbal language (this could include the use of hands, the nodding of the head, there tone of voice, their intonation) that you think would be off putting for the young person given their past history and context?

160  Practical skills for new approaches 4 Was the lawyer’s tone of voice and body language appropriate to the client? Why or why not? Be specific about what worked or did not work rather than just making general overall statements (as you will not learn a lot from the exercise if you are too general to help you in real-life practice). It is the ability to deconstruct in concrete ways what worked and did not work that will help you refine and improve upon your practice. 5 Are there any areas that you think could improve the lawyer’s interactions with you and if so, what are they?

Cultural competency Being aware of different cultures and approaches to communication is important in lawyering. It helps us understand how to interact with our clients, understand their contexts and be able to represent them. ‘Cultural competency’ involves being aware of your own cultural biases and how these can impede communication. It builds an appreciation or understanding of other cultures, including how we can better interact in ways that enable respect, reflection, improved relationships, choices, trust and empowerment. The University of Sydney provides some useful information about cultural competency.x Scenario 9.2: Simulation for cultural competency Use ‘Scenario 9.1’ again, but this time, we are going to change the cultural background of the client to South Sudanese and build on the scenario for the skill development as follows: Prior to arriving in Australia as a refugee, the client had been a child soldier. Although they speak English, they have not had much schooling so their English is poor when it goes beyond the basics and they cannot read or write other than very simple text. This means that written communications to them are often not understood or misunderstood. As noted above, your client has been homeless for periods of time and has experienced periodic bouts of depression and anger management issues, but you now know this is largely due to their history prior to coming to Australia. Before looking at the questions and undertaking the debrief below where you analyse the scenario in a context of cultural competency, it is suggested the reader look at the references at the end of this chapter. For this activity, the client does not need to be interviewed. Resources will be provided and some questions around culturally competent practice will be asked. Note: for students thinking this scenario is unrealistic, please note this is a scenario based on a real-life client situation which has been de-identified.

Effective communication skills 161 Reflective questions These questions can be answered either individually or in groups of two. 1 Imagine that you are the lawyer acting for this client. Identify potential cross-cultural issues, including those values, standpoints, biases, experiences and perspectives, that may impact on: a your relationship with the client b the client’s relationship with you c whether your own background and different experiences might in any way provide a barrier to building rapport with this client and getting their trust d how might your own perception of your own culture influence your interactions with this client or subsequent work for this client? e do you think there are any values that may differ between the two of you and how will you reconcile these values? f how will you ensure that you do not make assumptions based on your own culture? 2 Discuss how: a

these issues could affect your ability to act for the client, taking into account communication skills, the client’s needs and expectations and any additional dimensions you consider relevant b in concrete, practical ways and based on your reading of the resources provided, these issues could be addressed c given all of this, you will be able to meet your client’s expectations and give them the advice and possible representation moving forward? d you might know if these techniques were successful.

Debrief: reflective questions on cultural competency 1 Discuss some of the issues that you have thought about in the process of answering Questions 1 and 2, integrating what you have learned from the reading material for this section. 2 In this discussion, you may want to consider whether there are any surprises in the readings? Were there any aspects of cultural competency that you had not thought about before? 3 Do you have any concrete strategies for how you might approach the array of clients who may come from different cultural backgrounds to those revealed in this scenario; for example, First Nations clients, the elderly, clients from other backgrounds Somalia, China, Italy, Greece, etc.?

162  Practical skills for new approaches

Trauma-informed practice Trauma can affect people differently. It may be one a one-off event that causes trauma or it may be after a series or sequence of traumatic events over a period of time. Trauma can cause grief, sadness, temporary or permanent memory loss, anger, guilt, shame and embarrassment to name a few consequent effects. It can affect personal relationships, family relationships, self-worth and can in some instances lead to behaviours that are self-destructive or self-defeating. It can also affect a person’s emotional development. It can also manifest in self-medication to manage the symptoms through alcohol and drug abuse or self-destructive or generally destructive behaviours. Sometimes the impacts of the trauma, if it is repeated over time, can make people behave in a way that prejudices themselves. For example, this can include sabotaging relationships when they start to feel trust as they feel unworthy, or, based on previous experience do not want to run the risk of being let down again. Some people put up a barrier, so they do not get hurt again. They may behave or manage trauma in a particular way. Sometimes this may not be productive. When our clients have experienced trauma, it is important to be across the effects it can have on their behaviour. An awareness of this can assist us in how we interact with a client, understand them better and enable us to properly assist and advocate for them. Scenario 9.3: Simulation for trauma-informed practice You are forewarned by the referring agency for the client you are about to interview, that the client has a tendency to miss appointments and be easily distracted and is unpredictable. This has also been noted on the file by the previous male lawyer handling the client. When you meet this client after a detailed first client interview, you learn that he has the following history. The client is a man in his late 40s. In his late teens, he had served in the military forces having been called up for service during the war in the former Yugoslavia. During his service, he was locked in a room with a male superior officer and repeatedly raped. In the course of armed combat, the client had to fight and kill people of his own background some of whom he recognised from his village. He not only had to kill people but saw the ravages of war on villagers. People had been maimed, bombed, raped and tortured. He has never been assessed or treated for post-traumatic stress disorder (PTSD). This is the first time the client has disclosed his history to any professional. He rarely sleeps, he tends to overreact in situations that do not warrant it, and this had led to him previously committing assaults and being imprisoned. He admits to you that he does not like being in a room alone with men, like the previous lawyer, as it brings back memories of his abuse and he tends to avoid such situations by shutting down. He also says that often

Effective communication skills 163 when his wife is at work, he roams the streets and shopping centres to be around people, rather than be at home alone as this is when he feels frightened and tends to relive events from the past. He says that this was why he would often miss appointments. Before looking at the questions and undertaking the debrief below, where you analyse the scenario in a context of trauma-informed practice, it is suggested the reader look at the references at the end of this chapter. Reflective questions 1 Have you ever thought about the impacts on a person who may be the victim of previous trauma? 2 What strategies might you adopt in acting on behalf of a client in these circumstances? Think about the previous skills and tips in this chapter in your response to this question. For example, as his lawyer, rather than insist he attend appointments (which is unlikely) in your questioning you might try to find a practical memory trigger that will enable him to remember his appointments? Any ideas around how you might find this out? You might also reconnect him with a specialised support service that has expertise in the effects of past trauma? How might you work with him to make such a referral given his past experience? Debrief: reflective questions on trauma-informed practice 1 Discuss some of the issues that you have thought about in the process of answering Questions 1 and 2, integrating what you have learned from the reading material for this section. 2 In this discussion, you may want to consider whether there are any surprises in the readings? Were there any aspects of trauma-informed practice that you had not thought about before?

Background to effective problem-solving skills Problem-solving is an important part of the role of any legal practitioner. If someone has a problem, they will want to know is how to resolve the problem. Litigation is costly and often will not lead to the sort a satisfying solution for your client. You can potentially find a solution that is quick, repairs relationships rather than exacerbates them or improves the situation. This requires some lateral and creative thinking, and providing a combination of choices; the generation of a range of options and reliance on a range of other agencies or personnel to assist in addressing the identified problem/s. The Social Care Institute for Excellence (SCIE) has some great questions to ask that might assist in client problem-solving.xi It suggests examining

164  Practical skills for new approaches the client’s support network (friends, family, neighbours, professionals, etc.), the client’s strengths, abilities and knowledge be explored. They suggest exploring questions such as: • • • • •

Who can they (the client) count on? Who visits them frequently? How often? Who do they communicate with? How? With what frequency? Are there any other people helping the individual? Any other professionals? What has been working until now, and how have things changed? Rather than taking a discipline specific approach, try to incorporate a holistic/whole-person approach to problem-solving and then work out how you might work with others including your client to address some of the underlying issues that create their legal problems.xii Some additional questions to consider might include:

• • • • • • • • •

• •

Who is my client/other client/ultimate client? What is/are the problem(s) posed by their situation? Are there any ethical considerations I need to think through and how will I manage them? What are the problem(s)/issue(s)/want(s)/need(s)/interests/concerns of my client? What are possible approaches in discussing these client interests with them? What possible solution(s)/recommendation(s) can I provide to my client and how can I collaborate with them in exploring these? What are issues capable of a legal solution? What are other issues that intersect and what professional expertise can I offer this client from other disciplines? Should I be making any referrals? Who to and why? Do I have client consent? What might be some of the interests of other parties involved in the issue and what can we do to address/accommodate or advance my client’s interests in ways that are sustainable into the future, address my client’s needs and do not do harm? Who else might be needed to enable these solutions to occur and how might this be achieved? What are the ways I can say or do things that might resonate with this specific client?

‘Mindtools’ suggest that reality for people is often based on their lived experience, which comes with history, perceptions, context, emotion and personal wherewithal and coping mechanisms and different views of what is a fact can be highly subjective.xiii At each step, the reasoning process may

Effective communication skills 165 amount to jumping to conclusions. Be aware we all have our own biases and can make quick judgements based on what we know, which may be limited. Slow down your thinking. Be vigilant about being in the present moment. Be thoughtful about what the client is saying rather than what you think you are hearing. Use active listening and some of the other skills in this chapter as these are relevant to help you problem-solve by considering different perspectives and options. Tips for problem-solving Things critical for problem-solving: •

• • • • • • •

researching the nature of the problem; including context and causes, what the law says, what others have done in similar situations, problem-solving mechanisms and which agencies can or might assist inquiry that is borne of curiosity and exploration of new ways of doing things asking a variety of questions; specific and general awareness of other services in your locality options that are legal and non-legal looking at the problem from another perspective taking time away to regain perspective debriefing with others (mindful of client confidentiality and client– legal privilege if you are a lawyer).

Again, the SCIE proffers some more useful tips on its webpage that are important in any lawyer: • •

Allow others to be different. Notice how often you use the phrases ‘that’s wrong’ or ‘you’re wrong’. What if they are just different? Allow yourself to be different and apply your reasoning and critique your approach. Just because other lawyers do things in a certain way due to tradition, does not make it necessarily the best way.xiv

Conclusion This chapter is not suggesting the exercise of judgement be dispensed with. Rather, this exercise of judgement ought only to be done after careful and detailed instructions are taken so that is based on all the relevant information. Legal professionals should always exercise judgement when advising clients, and this includes judgements about the truth of instructions. Lawyers should not suspend their critical faculties when analysing a client’s story (particularly if credibility might become an issue in legal proceedings), or when forming an impression of a client’s mental or physical state,

166  Practical skills for new approaches since it might assume importance to the way the case is handled. However, too often judgements formed can miss critical pieces of the puzzle. It is hoped that the tips, scenarios and reflective questions in this chapter will assist in ensuring that complexity, nuance and contextual factors are taken into account leading to better communication and tailored, sustainable, client centred practise and problem-solving. Reading materials for effective communication and problem-solving skills Cultural competency These reading materials will prepare you for practising the skill of cultural competency. •

•

•

•

Definitions of culture: NIH https://www.nih.gov/institutes-nih/nih-office-director/officecommunications-public-liaison/clear-communication/cultural-respect National Centre for Cultural Competency https://www.sydney.edu. au/nccc/about-us/what-is-cultural-competence.html First Nations client guidelines: Law Society of Western Australia (n.d.) ‘Protocols for Lawyers with Aboriginal and Torres Strait Islander Clients in WA’, https://lawsocietywa.asn.au and http://www.atsils.org.au/guiding-principles/ Stolen generation impacts/First Nations’ cultural awareness: Davies M (2016) ‘A Culture of Disrespect: Indigenous Peoples and Australian public institutions’, UTS Law Review, http://www.austlii. edu.au/au/journals/UTSLawRw/2006/9.pdf Culturally linguistically diverse: Centre for Multicultural Youth (2011) Good Practice Guide: Youth work in the Family Context, https://www.cmy.net.au/sites/default/files/ publication-documents/Youth%20work%20family%20context%20 2011.pdf Law and Justice Foundation of NSW (2008) Checklist for Working with CALD Communities, https://www.nlaf.org.au-public Polaron (2015) Guide to Better Communication with CALD Communities, https://polaron.com.au/wp-content/uploads/2015/03/ POLARON-Language-Services_Guide-to-better-communicationwith-CALD-communities-1.pdf

Trauma-informed practice Kezelman CA, Stavropoulos PA (2019) Complementary Guidelines to Practice Guidelines for Clinical Treatment of Complex Trauma, Blue Knot Foundation, https://www.blueknot.org.au/Workers-

Effective communication skills 167 Practitioners/For-Health-Professionals/Resources-for-HealthProfessionals/Best-Practice-Guidelines The Phoenix Foundations (n.d.) Recovery: The effects of trauma, https://www.phoenixaustralia.org/recovery/effects-of-trauma/ Problem-solving skills General background references that have helped me, over the years, in effective communication and problem-solving include: Asprey M (2010) Plain Language for Lawyers, 4th edn, The Federation Press. Heath S (2018) Effective nurse communication skills and strategies: Developing quality nurse communication skills is essential to creating a positive patient experience, Patient Engagement Hit, https://patientengage menthit.com/features/effective-nurse-communication-skills-and-strategies Hyams R, Campbell S, Evans A (2007) Practical Legal Skills, 3rd edn, Oxford University Press, Sydney, Australia. Ivy A, Ivy M, Zalaquett C (2017) Intentional Interviewing and Counseling: Facilitating Client Development in a Multicultural Society, 9th edn, Cengage Learning Inc, US. Kieft RA, de Brouwer BB, Francke AL, Delnoij DM (2014) ‘How Nurses and Their Work Environment Affect Patient Experiences of the Quality of Care: A qualitative study’, 14, BMC Health Services Research, 249, doi: 10.1186/1472-6963-14-249. Lauchland KA, Le Brun MJ (1996) Legal Interviewing: Theory, Tactics and Techniques, Butterworth Skills Series, Butterworths, Reed International Books Australia Pty Ltd, North Ryde, Australia. Miller WR, Rollnick S (2013) Applications of Motivational Interviewing. Motivational Interviewing: Helping People Change, 3rd edn, Guilford Press, US. Stuckey R (2007) Best Practices for Legal Education: A Vision and a Road Map, 1st edn, University of South Carolina, US. Wolski B, Field D, Bahrij J (2006) Legal Skills: A Practical Guide for Students, Lawbook Company, Sydney, Australia. Wortham L, Scherr A, Maurer N, Brooks SL (2016) Learning from Practice: A Text for Experiential Legal Education, 3rd edn, West Academic Publishing, 83–468. Wydick R, Sloan A (2019) Plain English for Lawyers, 6th edn, Carolina Academic Press, US.

Notes i Curran (2019). ii Aristotle (n.d.). iii Moorhead, Robinson, Matrix Research and Consultancy (2006), ii.

168  Practical skills for new approaches iv Legal Profession Uniform Law Application Act 2014 (Vic & NSW), s. 173. Sourced from the Federal Register of Legislation at 11 April 2020. For the latest information on Australian Government law please go to https://www. legislation.gov.au. CC-BY-4.0 licence. v Note: some of the background ideas for Part II have been formed through collaboration with my teaching colleagues. Accordingly, I acknowledge A Crockett, P Taylor-Barnett and V Marshall, and training from M Dimopoulos on working with culturally and linguistically different people. vi Curran, Foley (2014), 69–92. vii Work being done by legal educators on legal design, for example, M Doherty and T McKee and the team at Lancashire University in the UK, and E Albion and the team at City Law School. They have used texts such as: Hagan (2017); Stickdorn, Schneider (2011) to inform their work. viii Note: thanks to A Crockett, the subject expert for this book, for his insight into plain English that have informed this section. ix Social Care Institute for Excellence (2015). x National Centre for Cultural Competency. xi SCIE (2015). xii SCIE (2014). xiii Adapted from MindTools.com (2014). xiv SCIE (2014).

10 Collaboration

Background to collaboration Recent studies have emerged that share the elements and practices that are important stages in working together towards a common goal. This chapter explores the ingredients necessary for effective ‘collaboration’. The scenario in this chapter is a group work activity based on an allied-health training course.i The pedagogy around how to teach collaboration is an area where there is little guidance in existing educational literature. Although often mentioned as an aim or learning outcome in course materials, explicit methods of teaching collaboration as a skill is rare; often it is presumed to be a by-product of other activities. This chapter lays down some of the groundwork that might underpin the development of teaching collaboration by bringing the key existing studies (from mainly health disciplines) that explore what conditions need to exist for collaboration. I also suggest some assessment frameworks that educators might use as a foundation for developing more deliberate collaboration learning. Ideas for assessment and competency rubrics are provided and I hope these might provide a framework for educators to build on. Developing curriculum in collaboration that might provide more concrete skill-based practice scenarios for legal education or professional training is going to be important to meet the challenges of ‘law practice’ in the 21st century. When law students commence in a workplace, they will find that a lot of legal work is done in teams, and each participant will have a differing work style and personality. Managing these and their own behaviours will be critical to positive outcomes for community and clients. When they have to work with other professions and support staff to advance their clients best interests or administer justice, they will need to be equipped to manage group dynamics and workplace conflict to work together as required. In order to be able to manage many of the new approaches suggested in this text, the skill of collaboration is vital.

170  Practical skills for new approaches What is collaboration? It is easy to define collaboration, but it is much harder to achieve; given different people are motivated differently, behave differently, have different personalities and motivations or styles of working. In law, this is more accentuated by the competitive nature of the profession and its tendency towards hierarchy. A simple definition of ‘collaboration’, for the purposes of this book, is when we work with another person or group or different disciplines in order to achieve a common goal.

Context of collaboration This chapter focuses on relationship-building, engagement between groups of people to achieve joint outcomes and identifies the elements that lead to collaboration and effective teamwork. It will examine this in higher education and law practice settings. It utilises recent research and practice emerging from the health sphere, which is more developed than the legal sphere. Victorian Health Promotion Authority (VicHealth) has observed that collaboration, when done well, can also potentially have a positive impact on health outcomes.ii Collaboration within a higher education setting Teaching collaboration to students in higher education settings has been found to be beneficial to students as it helps in future work practice.iii However, it remains difficult to teach due to silos and structural impediments in university settings and the interruption it is perceived to cause to the status quo of teaching in universities.iv The workforce is requiring students be gain skill development in this area to better prepare them for their future lives. This has led to calls for universities and their management structure to better support collaborative efforts fiscally and allow flexibility for it to occur and develop by being less ‘top-down’ and proscriptive thereby enabling collaboration to thrive and develop.v In terms of teaching collaboration in an interdisciplinary way, it also requires teachers of different disciplines to team-teach or co-teach and develop curriculum together to service students’ requirements for qualification. The teaching of collaboration skills requires moving students from passive learning to active learning with structured activities that require students to work together. It requires students to engage in peer teaching; to work through problems; engage in and practise simulations in teams based on real-life experiences. It requires participation in group discussion and seminars where diverse experiences and interplay of synthesis and analysis can occur and cross-fertilise, debriefs and all, with the

Collaboration 171 guidance and supervision of different disciplines and facilitation. All of this is considered difficult because higher educational institutions often favour traditional lecture based and reward systems that favour competitive approaches.vi Collaboration within a practice setting In a practice context, similar impediments to collaborative work and learning between different professions exist as in higher education and can occur even with members of the one profession. Harris and Advocat et al.vii examined collaborative work in the health care setting in the United States, Canada and Australia, to see if such teamwork can enhance outcomes in the care of patients and work satisfaction. Their study was in a similar context to that being argued for in this text, namely a context of creating a service model that has as its basis client-centred practice and empowerment. Harris and Advocat et al.viii developed a matrix comparing the country settings (the United States, Canada and Australia) to provide a useful summary of what fosters teamwork and good collaboration, and what factors can pull against this. It is a useful resource for identifying what factors might encourage law practices keen to increase their service or staff’s capacity to develop a collaborative approach. This includes the role of trust, formal and informal communication between professional, managerial and administrative staff, clear leadership and governance that encourages and supports teamwork through space (both physical and in terms of time) and resources. Successful teamwork and collaboration drawing on the availability of specialised expertise requires that each party be mindful of their own limitations and a preparedness to go to others for their expertise in the collaboration. This interestingly was also found to be critical in the provision of secondary consultations (SCs) (see explanation in Chapter 6) in some of my recent research.ix I would argue that SCs, if done well, as the evidence suggests, build a capacity for teamwork with this accessibility of specialised expertise, leading to greater collaboration.x Factors also relevant for effective collaboration include: the shared understanding of distinct philosophies; the scope of each other’s practice; co-location; the active mediation of workplace negativity, concerns; permission for constructive challenging decision-making processes and different ways that each can engage with their work and combine to interact to generate resolutions to common problems with integration of service providers. Also, factors in smoothing a path of collaboration are the participation of the team in decision-­ making, the generation of new ideas or exploration of new roles or modes of collaboration. A tool developed by VicHealthxi in 2005, and since updated, is designed to outline certain pre-conditions for collaboration for organisations and

172  Practical skills for new approaches staff. The elements detailed, reiterate those identified by the Harris and Advocat et al. study. These include the deliberate joint planning, training and staff support that is required for collaboration to occur. The tool suggests strategies and provides a checklist to reach collaboration and partnership as well as indicators of whether true collaboration is occurring and demonstrated to work towards seamless service delivery. I have used and adapted the VicHealth tool for teaching collaboration to practitioners and students and for evaluation work to measure collaboration as part of testing impact of service delivery. The VicHealth tool is a useful resource for readers planning to build their own skills at evaluation and training and encouraging others to do so, either in law, health, allied-health practices, organisational contexts or in higher education. A further recent study undertaken in Norwayxii notes that leadership styles in organisations and the design of services can play a role in enabling collaboration in a practice (again, in a study of health services). This study concludes organisational leaders and managers also need to engage in and model collaborative practice. If the leadership does not foster manoeuvrability the responsiveness to risk is reduced or a problematic atmosphere resulting in occupational and professional interests competing with each other or being prioritised. This subjugates the common outcomes sought by the collaborative model. Again, the Norwegian study reiterates the findings of Harris and Advocat et al., that leaders and managers need to facilitate change at a macro- and micro-level allowing for creativity and organic initiative with individual and collective support for their staff. This has also been found to lead to staff job satisfaction and empowerment. The study also suggests that a common goal of patient care, if the key focus, can overcome differences of professional approach. This common goal of patient care was found to move issues beyond the one-­ dimensional to multidimensional responses that can be created by patient care as the key motivating factor. This facilitates working collectively with diverse ways of responding that different professionals use in their clinical approaches being articulated in dialogue leading to broader solutions in problems solving.

Collaboration and teamwork skills in higher education and professional development Nancarrow and Booth et al.xiii outline 10 useful principles for good teamwork and collaboration. These could form the basis of teaching the skills and devising activities that elicit collaboration and teamwork for future workplace, multidisciplinary practice (MDP) or interdisciplinary practice (as noted in Chapter 8, these terms being often used inter-changeably, have varied definitions that cause confusion). These 10 principles can be adapted as learning aims, objectives, outcomes or competencies in higher educational teaching and in the ‘professional

Collaboration 173 development’ of practitioners. Nancarrow and Booth et al. also identify competency statements for effective team functioning. The principles they provide might be a useful tool for the development of a grading rubric, learning outcomes, grading or accreditation attainment levels for both educational and professional development contexts. A further useful table is provided by Nancarrow and Booth et al.xiv that could be used for teaching and professional development purposes to delineate what the composition of skills a student or practitioner or team would need to demonstrate to show the elements suggestive of collaboration and teamwork skills. In addition, a second table (see ‘References’ for the source should readers wish to look into this further) in the same article provides a list of 13 good characteristics for teamwork, which could easily be used and adapted as a training tool by educators and provided to students so they can clearly understand the expectations, traits and skills that they would need to develop or practice to be competent at collaboration. Summarising this second table identifies the elements that demonstrate effective and good collaborative practice as follows: 1 Good communication 2 Respecting/understanding roles … and the limitations and boundaries of each role 3 Appropriate skill mix … [including the] personalities, individual attributes, professions and experience 4 Quality and outcomes of care 5 Appropriate team processes and resources 6 Clear vision 7 Flexibility (of the team and the individuals within it) 8 Leadership and management 9 Team culture [including] camaraderie and team support [and supportive] relationships 10 Training and development opportunities 11 External image of the service 12 Personal attributes 13 Individual rewards and opportunity.xv Nancarrow and Booth et al. unpack what each of the 13 categories looks like. ‘Item 12 –personal attributes’, interestingly correlates with some of the research discussed in Chapter 6 (on what clients and non-legal professionals indicate they want in a lawyer). These include approachability, appropriate delegation, being able to compromise, confidentiality, decisiveness, empathy, good organisational skills, initiative, knowing one’s strengths and weaknesses (honesty and frankness), being open to learning, demonstrating and sharing new skills and knowledge, patience and personal responsibility, and reflective practice.

174  Practical skills for new approaches

Rubric to assist in identifying collaboration skills Based on the work of Nancarrow and Booth et al., together with my own experience in teaching collaboration skills to undergraduates, graduate lawyers, ‘practical legal training’ courses and practitioners over many years, I have added to their insights in order to create a rubric that might be used by readers as a basis or starting point for educators, organisations and those conducting professional development in collaboration skills. Rubric for assessment and competency Collaboration skills and core professional competencies (indictors in italics): Sharing – of knowledge/information/skills, centrality of client concerns and care, exploration and acceptance of role overlap and difference and finding a place and accommodate for each, mutual support, nurturing a learning culture. Joint goal planning – team building, discussion of values, philosophy, priorities, work styles and maximising these, shared goals/objectives, unpacking practice context and complexity, identification of deficits and ways as a team these might be addressed. Clear vision, role and the reason/rationale for the team to steer the direction of the team to establish referral criteria and work. Planned strategies to support the team – central to client concerns and care, plan and ability to manage and resolve conflict, nurturing a learning culture, rotation of leadership, finding a shared language, a chairperson role, a facilitator of perspectives role ensuring all have ability to be included and share views without any one role dominating, case planning roles, regular team meetings/case conferences, work load sharing and planning, clarifying client centred options and how to reach optimal outcomes together and separately as appropriate. Commitment – positive attitude, not over relying on others, willingness to find out and discover new knowledge and applications, explore in a constructive way different opinions/perception, mutual support, willingness to share. Indicators for learning, leadership and client-centred collaboration: Team development – identification of team member characteristics, capacity, size, accessibility, communication of these and when workload issues or can’t deliver on task and strategy to pitch in evenly, nurturing a learning culture within the team, value diversity, and clearly need input from a range of staff/team members.

Collaboration 175 Interdependence – mutual support, willingness to share, professional synergy, reciprocity within team, nurturing a learning culture. Autonomy and respect – individual characteristics acknowledged including role differentials and different ethical requirements and duties and ways these can be managed and respected. Leaders in collaboration – clear direction and vision for the team, listen and provide support and supervision for each other. Equality of relationships – assertiveness/confidence, willingness to respectfully voice opinions and raise concerns and ethical dilemmas and share information and ideas. Problem-solving/decision-making – proactive approach, ability to overcome or try and overcome adversity by jointly problem-­solving, use of different roles to share or help with a problem, creativity, willingness to respectfully voice opinions and raise concerns and ethical dilemmas. Professional commitment – professional identity, explaining or reducing professional jargon, appreciation and awareness of role expectations, awareness of what each team member can offer in terms of knowledge/skills, utilisation of each other’s knowledge skills and expertise and give and take but equally, role clarity, boundaries/ delineation/, role modelling, ability to innovate.xvi Examples of teaching collaboration skills Other educators and professional trainers may have their own collaboration skills, but I have not been able to access these in a public forum. The following examples are provided to suggest ways collaboration as a skill can be assessed (Example 10.1) or taught through a deliberate set of tasks for groups of students who work on a set of situations where good collaboration is key (Examples 10.2, 10.2 and 10.3). Example 10.1: ‘Engaging with service improvement’ module This example, team-teaches collaboration skills as a part of a module at the University of Portsmouth for students of nursing and a range of alliedhealth disciples.xvii The subject’s focus is on service improvement (including person-centred care, interventions and reducing and managing errors and near misses), leadership, patient care and meeting regulatory requirements. Key components assessed and sought through this module need to be demonstrated by students, including the development of skills where individual students can contribute to collaboration and partnership. The module assesses and exposes students to independently, analytically and creatively, and engage imaginatively with new areas of investigation within and across discipline boundaries. For nurses and allied-health students

176  Practical skills for new approaches in the ‘Engaging with service improvement’ module includes demonstrating their contribution and responsibilities in delivering safe and effective person-­centred care as a member of an inter-professional team in the simulated environment. Example 10.2: Group dynamics exercise This is an exercise I used as part of the introduction to an intensive in a ‘practical legal training’ course, which is a pre-requisite to legal practice. I have run this exercise in at least 50 courses and the debriefs lead to overwhelmingly consistent patterns of behaviour and post-activity reflections from student participants. Simulation Students work in a team of junior lawyers asked by a senior partner (me in role-play) to resolve each problem and are given an equal period of time to prepare advice (10 minutes for each) to the senior partner for two separate scenarios. SCENARIO 1

A student is allocated the negative role in the group, such as a disinterested, uncommitted team member. The team is aware of this, but even though it is transparent, as the group work on their task the team dynamic is compromised. The task To work on a problem facing the senior partner and come up with suggestions as to how the partner might tackle it and what they need to do for the client. The instructions are that the client is coming in 10 minutes and the team of junior lawyers need to think, research and come up with suggestions to the problem. Debrief part 1 Report to their busy, pressed for time senior partner a solution to the problem. Debrief part 2 Report on whether the group dynamic worked and what factors helped or hindered the process. Outcome Consistently, in reporting to me as senior partner on how to advise the client, they have very few constructive actions for the client, and often, unethical suggestions can flow. I note their suggestions for action on a whiteboard, which there is very little. In response to the part 2 reflection, they talk about the factors that helped or hindered the team. Even though students know a negative role has been nominated, they still report being confounded, frustrated and adopt, sometimes, problematic strategies to

Collaboration 177 manage the team. They always admit in their post-simulation debrief strategies, such as the isolating of the problem person from the rest of the team and ignoring them or being rude to them due to the pressures of time. Strategies they admit are unlikely to be sustainable over time or in a real workplace. SCENARIO 2

The same student takes on positive or constructive role such a facilitator. The task Repeat the same problem-solving activity (with a different dilemma), but the facilitator takes the role in encouraging the team. Debrief part 1 The list of strategies and steps for action and identification of ethical landmines is detailed. Without exception in this simulation, I cannot write quickly enough on the whiteboard to get down each of the groups’ ideas. This visually strikes students. As senior partner, I have lots of material to work with from this second task when the team was working together. Debrief part 2 Students make comparisons with the first simulation. Students always reflect on the higher quality outcome for the client from a good team dynamic and how they were able to come up with better ideas. Outcome Students inevitably conclude that by working constructively, it is better in generating a range of client outcomes. They are always astounded when they realise that the same amount of time was allocated for each simulation and report that time went much more quickly in the second simulation as they did not have to manage problematic behaviours. Some other ideas for developing collaboration skills in an educational or workplace context might include the following examples. Example 10.3: Joint project Students or staff work as a team on a joint project, which requires input from all team members, such as a law reform report or policy paper, where team members have to work. They have to produce a chapter each (within the team) or they work together on one chapter based on their area of endeavour or expertise.xviii Example 10.4: Case study report Team members reflect on and identify how in their work, joint tasks or client work, they function together. This would include the identification of what are the obstacles, barriers and breakthroughs that lead to practices

178  Practical skills for new approaches that improve collaborative work. This can include reporting on features of their collaborative practice guided by and marked against the benchmarks of learning outcomes and grading rubrics provided earlier in the chapter. Examples of what a case study report might include aspects such as the analysis of the role of individuals, teams, employers and professional, statutory and regulatory bodies in delivery services to clients or patients. This can be a deeper analysis through the use of guiding questions.

Conclusion This chapter has given some general guidance only, as to setting the environment for collaboration to occur. It provides some suggestions for ways in which collaborative practice might be fostered, assessed or benchmarked by borrowing from other professional disciplines, such as the health sector. The teaching of collaborative skills is a little researched area particularly in an educational or teaching context. Chapter 13 ‘Interdisciplinary educational practice’ also explores some further collaborative practices that are critical and should be read as a compliment to this chapter. What emerges from recent research are some ideas around the sorts of elements that need to exist for collaboration to occur and the skill sets that might combined to enable collaboration. This chapter has used the research to make suggestions on how collaboration skills might be assessed, noting that for it to occur, a very deliberate atmosphere has to be developed and supported by leadership, training and governance for it to be effective and to thrive. It is clear that collaboration is not easy.

Notes

i Note: the author acknowledges Dr I Ryder, the Program Lead for Nursing, School of Health and Care Professionals at the University of Portsmouth who willingly shared her insights and class materials. ii VicHealth (2016). iii Bryant, Niewolny, Clark, Watson (2014). iv Lester, Evans (2009). v Ibid. vi Goodsell, Smith (1992). vii Harris & Advocat et al. (2016). viii Ibid. 45–6. Table S1 shows the matrix used to compare impacts across studies and jurisdictions in relation to collaborative practices in health contexts. ix Curran (2020), 24. x Curran (2017d), 69. xi MacLeod (2005). xii Falkman, Tviet, Sverdrup (2019). xiii Nancarrow & Booth et al. (2013). xiv Ibid. 5, Table 1. xv Ibid. 6, Table 2. CC-BY-2.0 licence. Note: the author has made changes in a reasonable manner (see brackets), but not in any way that suggests the licensor endorses me or my use. Square brackets denote my updates to the edited text.

Collaboration 179 xvi The source for much of the rubric is Nancarrow & Booth et al. (2013), 5, Table 1, with adaptations based on my own experience in teaching collaboration over the years. xvii Note: I am unable to provide access to the details of the module as this is regulated by username and password so this is a summary only to assist the reader. xviii See an example in Curran (2004), 291.

11 Community development and professional development

Aims and objectives • • • •

Highlight the differences between community legal education and community development approaches. Understand ways of planning for and delivering community development approaches. Learn ways of planning for and delivering professional development to non-legal professionals. Recognise the different expertise and roles that non-legal professionals contribute to the holistic, client-centred delivery of services.

Methodology 1 After sharing: • • • • • • • • •

Tips for active listening and points for discussion in community development Tips for good professional development Tips for government and community decision-makers Tips for the implementation of a community plan Tips for secondary consultation Tips for undertaking community development Tips on negotiation skills in community development work Tips on planning and the conduct of community development work Tips on what a plan will look like.

2 Through scenarios and a range of activities that require the application of ‘tips’, enable the practice of skills in community development and professional development. 3 After this practice, reflect by responding to questions on lessons learned and any future steps that might be important in future community development and professional development work.

Community and professional development 181 Learning outcomes • •

Highlight the importance for lawyers in building capability, confidence and capacity for community members to exercise their legal rights and feel empowered to take action and advocate for themselves. Highlight the importance for lawyers in building capability, confidence and capacity for non-legal professionals to exercise their legal rights so to take action and advocate on behalf of their clients/patients.

Background to community development Legal students and legal professionals may be expected to deliver legal training and/or education to the community, other legal entitles or to other professionals but may have little educational preparation on how to train the community or other professionals effectively. I have been fortunate enough to have educational qualifications that complement my legal training. Having spent time at university as a tutor near the end of my undergraduate years and then (after initial practice in commercial law) retraining as a secondary teacher, I was fortunate enough to learn about interactive and responsive approaches to the delivery of education. This grounding, and further ‘professional development’ around adult learning and reflective practice approaches that inform teaching practice, equip me to deliver community education, ‘community development’ and professional training. Even though, in practice, there is an expectation that legal professionals will train others, it is rare that they have exposure to educational theory (including adult learning approaches), pedagogy and developmental psychology. These are necessary features to work out ways to ensure learning approaches resonate with the student, leading to lasting learning and changes in practice or behaviour. Resources to guide readers in the delivery of community and professional development are provided at the end of the chapter.

The community In my legal career, I have delivered training to an array of people that make up our community. This has included newly arrived refugees from Africa; children and young people who have lived most of their lives in residential care; prisoners; people who have intellectual disabilities; people with poor literacy and numeracy; and people who have experienced ‘trauma’. At the other end of the scale, I have delivered training and professional development to highly articulate and sophisticated commercial operators, doctors, nurses, civil engineers and others with professional expertise. Most of these groups have little experience of the law. Often it emerges that any of these people may have underlying misconceptions and misunderstandings about the law, which previously had shaped their decision-making in relation to

182  Practical skills for new approaches the role of law. In my experience, it helps to check in with the intended audience about what might work for them and determine the approach to training informed by this. There is a difference between community legal education and community development. For this reason, it is important to distinguish and define the key terms. Each has a valid purpose but ought to be used in different and appropriate circumstances. Community legal education ‘Community legal education’ is the general imparting of legal information to an audience to give them greater legal literacy. However, it too is limited in impact if there is no consideration of the community or individual capacity to digest newfound knowledge in a practical way. Community development A community development approach is consistent with the legal empowerment models and strength-based approaches outlined in previous chapters in this text. Community development is defined here, as the provision of information and learning that can be used to strengthen an individual or a community’s capacity to act on legal information with confidence in the given situation and circumstances. Balkwill and Fairleyi note participatory planning draws on the life experience and intelligence of participants as well as expert input grounded in reality and the experience of the participants. Community development is often provided in the context of the phased delivery of information, building of confidence in capacity and rehearsal, and practise of the newfound knowledge. It is shaped and informed by the community’s own needs thereby providing opportunities for the communities to feed into how the information is delivered to them. They also shape what information is relevant to them and have input into the methods and ways of receiving and implementing this newfound knowledge.ii People study community development as a degree and so it is a very specific and specialised skill. Leeiii suggests that by community organising (which can form part of the community development approach) some of the power differentials and implications of growing inequality at play can be challenged. This chapter is not designed to be definitive as every situation or circumstance for community development and ‘professional development’ (that is, the ongoing training of professionals) needs to take into account the local context’s peculiarities that give rise to the need. The chapter seeks to slow people down and make them think through some of the implications and complexities that might arise both prior to, during and after their work. Dialogue, discussion and deeper thinking are encouraged as challenging, complex and complicated situations in real-life practice can give rise to

Community and professional development 183 vexing issues. It is my belief that the comment made by Socrates that he was the wisest man alive, for he knew nothing, is just as relevant for this sort of work. Undertaking community development Often in the provision of community legal education, community development lawyers and law students (in clinical legal education Street Law programs where they teach community about legal issues) can lack the basic skills needed to effectively deliver this information. In my view, it is unfair to expect legal professionals or students to know how to undertake such a task effectively without providing them with the requisite skills to do so. In addition, legal professionals will often be asked to participate in community and professional development sessions. Some may impart technical content-based knowledge on laws and case law in ways that may not resonate with their audience. This is modelled on the lecture style formats they are accustomed to at law school. I have observed and evaluated some poor examples of Street Law and professional development. Although fine in legal content, these sessions are not always practical, useful, in plain English or relevant. Adult learning research demonstrates such sessions will not be remembered, understood or effective. Tips for undertaking community development • • • • • • • • • •

In general, people are good-natured and if you are trying to make an effort, they generally appreciate it. Be patient. Relationships take time. Be guided by the underlying aim of community empowerment (see Chapter 4). Take a strengths-based approach (see Chapter 5). Factor in time to understand the level of support that your community has or does not have. Think about barriers that might exist to community participation in community development. Think about what you may need in order to overcome or navigate the barriers that might exist. Work out a plan and strategy to address these barriers and any opposition that may present. Do not let pragmatism override community led initiatives or the processes that enable respectful dialogue and interactions to promote self-determination. Research demographic information and best practice guidelines in any cultural engagement materials you can access. Do not make any assumptions about the community as you need to be informed by them and their experiences firsthand.

184  Practical skills for new approaches • • •

Be humble and interested in the people rather than rushing to an end objective. Do not ask too many questions initially just be prepared to actively listen (see Chapter 9). Research your audience in advance. Spend time getting to know them, their interests and their motivations. This research includes more informal ways of getting to know your community by joining them at lunches, sporting events and visiting them in the environs and where places in which they feel comfortable.

Preliminary plan Before embarking on community development work, it is good to plan how you will go about engaging with your community to build their interest and trust. Fostering participant feedback, cooperation and participation will lead you to the development of a strategic framework and a more detailed plan of action that will resonate with the community as they have ownership of it through this process. Tips on planning and the conduct of community development work • • • • • • • •

Acknowledge that you are not the only expert. Be humble and recognise that, although you have skills, you do not live the lives or the circumstance of the people you are working with. Be open to learning from the community and those who work successfully with them. Think about your venue. What is an appropriate setting for you to meet with community? Think about catering (dietary requirements), seating, breaks, etc. Be prepared to play a low-key role. Avoid legal jargon. Don’t make assumptions on members of the group’s viewpoint or levels of knowledge. Ask questions about what the group knows. Discuss what is important to the group and who the significant people are. Ask and examine how they acquire knowledge, capacity, access to resources, capability and confidence.

Looking at external factors relevant to community development You may need to look at the state of knowledge of the groups and how they think decisions are made or shaped. So this by using statements like ‘what does justice look like for you?’, ‘what choices in life do you have/want?’ and ‘what are the barriers and what enables you to have these choices?’ By

Community and professional development 185 doing this, you can explore what justice and problems, or enablers look like for them. It may result in very different conceptions to your own and from each other. Then it can be unpacked so you do not make assumptions. Tips for government and community decision-makers • •

Community members may incorrectly identify key decision-makers. Do not be surprised if you need to spend time looking at and mapping who the key decision-makers are within government departments or local council. You need to know who has the power to make change.

Consultation Chapter 4 highlighted how little voice some members in the community have and how disempowering and alienating this can be. Also, decision-­ making can be improved if such a voice is facilitated. This is why community development is an important approach to facilitating voice and assisting community in developing methods to ensure their voice is heard. Genuine consultation in any community development is therefore critical. Allowing for choice and self-determination of participants in the way that you approach conversations and in how you develop and being prepared to adapt and be flexible to feedback is all part of such genuine consultation. Tips on active listening and points for discussion in community development • •

• • • •

Active listening is important in any planning process. Avoid going into a community meeting with a settled plan. A draft can be a starting point but remember to ask the group if they have anything they want to add or any better ideas (see Chapter 9 for tips and activities on active listening skills). Questioning and listening to responses fully is an important part of community development. Remember, silence is golden. Enable everyone in a group setting to participate and share their views and experiences. This creates an environment of safety. Respond to every body’s point of view with respect and enquiry and learn how to manage those that dominate the conversation, including yourself. Ask why people think, what they think. You may learn a lot from this.

Some sample questions might include: • •

What brings you here today? Why is this issue important to you?

186  Practical skills for new approaches • • • • • • • • • • •

Is it important to other people in the group and if so, why? How do you feel about this? What would you like to see happen? What steps and resources you think we need to be able to have a say or progress this? Who would like to be involved? In what way would you like to be involved? What do you think you can offer as we move towards responding to these issues? What training or skills development do you think you need? What people do we need to become involved in our work? How do we enlist them? Who are the decision-makers? Are there any other decision-makers you haven’t thought about? What would you like to do first in order to take the first steps towards having skills and making a difference?

Tips on negotiation skills in community development work • •

• • • •

In planning any community development process, it is important to confer with the group with whom you intend to work, as to the best mode of communication that will work for them. Once participants feel comfortable and confident in sharing, find what discussion format works for them. This might include use of PowerPoint, free-ranging conversation, conversations over dinner or during other activities, such as sporting activities, cooking classes, sewing circles and in other settings where they feel comfortable. Be realistic. It often takes more time than we think to roll-out community development, so overestimate the schedule. Working with diverse groups requires considerable skill. You will need to acknowledge the differences and commonalities within the community group. Check-in with the community about whether or not they think the approach or plan that you are suggesting will work and what they think may need to be enhanced. Ask them about any problems they foresee and how they would advise you to proceed. What sort of process would they employ to resolve difficulties? Share some tips on group negotiation and how to resolve group issues.

Tips on what a plan will look like • •

It is only from this process of listening to the group, and gathering information, that you can actually start to plan. The plan will look different in different circumstances. So, you will have to be prepared to be open to the input of others.

Community and professional development 187 • • • • • • • • •

• •

A plan is not true community development if it hasn’t got input and inclusion from the targeted community. If you develop a plan and are rolling it out for multiple communities, check in with those different communities and make adjustments accordingly. Always remember, many heads are better than one and bursts of creativity can occur when a number of people have input (see Chapter 10 ‘Collaboration’). Some people like to have a theory of change that sits behind their community development work. Be careful that your theory of change is actually the sort of change and process your community wants. Avoid being paternalistic and include and enable participation of the target community. This is not easy, but it is good community development. Be aware of the bigger picture but also be aware of what is feasible, practical and within the resources that you have available. Avoid making promises that you can’t keep as this can lead to a breach of trust. Do not be discouraged about setbacks. Frame conversations about these and how you will manage them with your community. Respect, clarity of purpose, aims and objectives, reflective practice, dialogue and desired outcomes identified by the community. Be aware that community members may come to this interaction with anger or frustration and low expectations. They may feel exhausted, defeated and not see the point. Acknowledging this and their struggle can be important as a process for moving beyond this disenchantment and striving for change together rather than singly. Once you have done these steps, try to set priorities and a logical sequence of what you are going to do, how, when and over what period of time. It is okay to share your ideas, expertise and previous experience with participants, so that they can explore what their community development program may or may not look like. What is key, is that you do not dominate but merely facilitate and proffer examples of what might occur with your expertise.

Once the plan is in place – constantly check in with the community on progress, continued relevance, any implementation problems. The following scenario builds on the cultural competency exercises in Chapter 9. Scenario 11.1: An illustration of a community development approach Members of a First Nations community are not using your legal service even though you know that many of them have legal problems. The issues faced by First Nations Peoples today are as a direct result of colonisation;

188  Practical skills for new approaches the removal of children through the policy of assimilation and discrimination, which has led to mistrust and suspicion of mainstream services and government help, particularly when they are provided by Western/traditional personnel. In trying to address the lack of participation with your service, you discuss the issue with local allied-health professionals, local agencies and Elders whom you know communicate with the First Nations community. You seek their advice and tips on how to engage and build trust with the community. Do not assume that this community will be the same as others. Every community is different, so you need to be informed about how things work in this community. There is a local men’s shed. This is a program in the local community targeting men who experience depression. The idea of the program is to connect men experiencing depression through engaging them in activities to reduce their isolation and to give them opportunities in a safe space to have conversations. The men’s shed program has had significant success in addressing isolation and poor mental health. One of the programs of the men’s shed is a weekly Indigenous cooking class. The men gather, learn about cooking, prepare the food and then sit down to eat and chat. You are provided with the name of one of the key participants. You ring him and ask if you can come along and help out. You attend the cooking classes; helping them chop vegetables and so on, and over a period of six months you have many chats with the attendees and build relationships. You find, over time in this informal safe setting, that they talk to you about their issues many of which are legal. In many of these conversations, their initial indications to you have been that they would never have realised that their problem was legal and capable of having a solution. Most of the cooking participants had assumed that legal matters were only criminal law matters, fines or involved family law and care and protection matters. They had no idea that there were legal protections from discrimination, and what that might look like, or for other issues such as debt and credit matters where predatory practices by industry might be unlawful. They chat with you about what they might do and how the law could help. Over time they visit you in your law office and sometimes they bring along their children, friends and partners who have issues that they think might be legal. Reflective questions These can be answered either individually or preferably in a pair. 1 What do you think will be some of the barriers to you, given your own personality traits and background, in engaging with professionals from a different discipline that you do not know a lot about?

Community and professional development 189 2 What do you think will be some of the barriers to you given your own personality traits and background in engaging with a cultural group that may see you as threatening, privileged or just different? Activity 11.1: Strategies to gain trust 1 Using the strategies within the scenario, plan a staged approach as to how you will build your relationship and trust with the men during their cooking class. In doing this, canvas what things you think will work and why, and what things may not work and why not. Do not be limited by the suggestions in the scenario. Think carefully about your personal style and how you might be able to use it to develop trust and engagement. Remember this is about relationships and trust, and your personality and attributes will be unique and may assist in building the engagement. 2 How much do you know about this group? How will you find out more about them and their motivations, experiences and circumstances? Debrief: reflective questions In light of your answers to these questions, what reflections emerge on how you might engage people like those in the scenario (including factoring in your own personal style) to start to develop a community development approach to involve and engage them in improving their legal rights?

Community planning: an ongoing and rolling process Community planning is an integral and ongoing part of community development. You will always be planning, delivering, reflecting and reviewing both with your team and with your community. Tips for implementation of a community plan • • • • • •

Ask if community members want to take on specific roles, such as being the note-taker and keeping a record of people’s responsibilities. It is advised that community members report back about their progress. This keeps everybody informed and on the same page. Over time people will step up and take on leadership roles. Peer-to-peer learning can be a fantastic way for people to develop their skills, make new connections and build community. It is important in a community development approach to try to delegate to the community itself and enable it to shape the next steps and actions over time. Make sure you record decisions.

190  Practical skills for new approaches • • •

If emerging from your plan, a community group is established, for example, a residents’ group, they may also want to develop strategy for negotiating disagreements in their group, etc. Observe what people are passionate about and enjoy doing and include them in approaches to keep the passion alive. Do not ignore collective trauma, individual trauma, struggles and experience of historical and ongoing depression. Think about intra and extra group considerations and discuss this openly or privately as appropriate for respecting people’s confidentiality.

Evaluation •

• •

Be prepared at the end of each meeting with your community, to ask them how they think things went. Encourage each other and celebrate achievements and wins, checking if there are any surprises and ask if things could have gone better, why and how? At the end of each meeting, in a participatory way, clarify next steps and an agenda for next time. Djirraiv has an excellent evaluation framework for community development evaluations (mentioned in Chapter 6) and this may be useful for people considering a formal evaluation of their community development work.

Scenario 11.2: Practicing community development skills You have built a relationship with seven men who participate in the men’s shed cooking class from ‘Scenario 11.1’. This has taken about four months. They now trust you and have started to confide in you. This had been especially hard as they did not initially think lawyers could offer them much other than heartache and stress. Now these men have put you in touch with and encouraged their sons and daughters and nieces and nephews who have fines and child protection problems to visit your clinic. In the course of your conversations with both the men and their families, it has become evident that there is a very poor understanding of their legal entitlements and rights. On occasion they have been wrongly advised by authorities that they have no rights and even if they tried to pursue them, they would make things harder for themselves. These rights relate to the substandard accommodation in which they live, their rights in relation to rent increases, evictions, and being able to have decisions reviewed at a tenancy tribunal, as well as child removal threats that appear to run contrary to law. Reflective questions These questions would preferably be discussed in a pair or group of three. 1 What are you going to do to change their understandings and to enable them to address their housing situation or child protection concerns (select one of these issues)?

Community and professional development 191 2 Do you think that a one-off legal information session telling them about the law will address their plight? 3 If you do not think this will be adequate, what might you do? 4 If you think a one-off legal information session will be enough, why do you think this? 5 How might you approach planning a community development program with this group of men and their families? Discuss this with your group. Share ideas. What steps and in what order would you need to take. What research about the community would you need to undertake? In undertaking this research, have a look at some of the resources and references in Chapter 9. 6 In the group, discuss what things need to think about as you engage the men and their families in a community development plan? Debrief: reflective questions In light of your process of answering the questions, and knowing yourself, what do you think will be the challenges for you and what skill development or steps do you think you might need?

Background to professional development Legal professionals can play an active part in professional development of non-legal professionals so that they are better able to advocate for and respond to their client’s or patient’s problems. This professional development work also builds professional competency around how to navigate the legal system for their clients or patients. This includes gaining greater clarity around the rights and responsibilities of clients and authorities that can often have control and power over lives, for example, in providing habitable accommodation or social supports. Emerging empirical research suggests that empowering non-legal professionals to identify issues that are capable of a legal solution assists their clients or patients to navigate the complexities of the legal system.v This enables clients who may previously have been excluded from gaining legal help have their legal needs addressed.vi

Being equipped for professional development This section of the chapter is geared at both legal and non-legal professionals who may be engaged in the joint delivery of training. It may also be of relevance to clinical legal education students and their supervisors. As will be discussed in Chapter 12, students in clinical programs can engage in a range of activities beyond advice and information services. They too can be asked to work with their supervisors to provide community development and professional development either by doing the background research or delivering components of training either as a team or in conjunction with their supervisors. This work is good preparation for them as lawyers as

192  Practical skills for new approaches they will often be asked to deliver community development or professional development especially in legal assistance services offered by legal aid commissions (LACs) or community legal centres (CLCs). Whether we like it or not, the law governs everything that we do. From the moment we get out of bed in the morning to the moment we go to sleep. Research shows that the role of the law in our lives is often misunderstood or ignored until we are forced into situations where we have to address it.vii My research has indicated the problems where people rely heavily on friends or word-of-mouth about the operation of the law, which can often lead people to ignore problems, to handle them poorly without the correct information and guidance on the law. This can in turn lead to an escalation of the problem. Non-legal professionals (this includes doctors, nurses, social workers and other professionals – see Chapters 1 and 6) can also be sceptical about the role of law and its relevance in their work. Training non-lawyers to recognise when their clients/patients may have a legal problem can have immense impact. As well as enabling them to be able to better respond to their clients with legal problems, they can respond to decision-makers, in the moment, who may be trying to override their patient or client’s legal rights. Knowing that the law can respond, in itself, can recalibrate the power differentials for these workers and empower them to articulate concerns, quicken the slow or poor decision-making that affects their clients/ patients down and encourage them seek legal help when something does not seem right. Because legal professionals are seen as a complication or hindrance, being able to convince other professionals that lawyers can be of assistance is always going to be challenging. Trust needs to be earned and respect is pivotal to the creation of trust. Trust can easily be lost and so, effort needs to be made in sustaining this trust and delivering on promises or not making promises that are impossible to meet. The limited capacity of the law or the lawyer to make change within a system that can be intransigent, need not be fatal to a relationship. Honesty and frankness about limitations of the law or someone’s legal position can lead to more trust rather than less trust. What is important is good, clear, humane, tactful and honest communication rather than blunt and abrasive approaches. The latter (discussed in Chapters 1, 2 and 6) makes people feel judged, and ignores the fact that bad news can have serious mental health impacts for clients. One example of this was when a court official advised a Somali woman that a warrant for execution was going to be issued. This legal jargon describes the process of taking some items to pay a debt. The woman, given her past experiences in a war-torn country, thought she was going to be executed for not being able to pay her debt. She presented to her counsellor in a state of extreme distress and, even her counsellor was worried, prior to coming to see me. This example also illustrates that the law plays only a part of the other things that may be

Community and professional development 193 affecting the client/patient and as lawyers we need to take care about how we deliver our advice or relay information. A good professional development approach by a lawyer respects the roles of other professionals. Similarly, to the community development approach discussed above, effective professional development seeks input from other professionals about their struggles and the barriers they face. You may need to examine the different ethical frameworks that other professions work within for the tailoring of good professional development. Time needs to be taken to find out this information prior to the delivery of the professional development training. Lawyers are often ridiculed because of the use of legal jargon, so well-delivered professional development can build respect for lawyers and combat stereotypes of the typical lawyer. Clinical students can be a helpful resource for assisting in such research. Many professionals are time poor and have heavy caseloads. Thinking about the best timing for professional development, including at existing staff meetings, can overcome such difficulties. Tips for good professional development • • •

• • •

•

Those undertaking professional development should be conversant in adult learning approaches. In this model, it is acknowledged that adults learn in different ways. Traditional lecturing formats are not effective. Professional development should connect with the audience’s interests and needs. The integration and acknowledgement of lived experience and expertise in the room should shape and inform delivery. Lawyers tend to use too much legal jargon. Professional development is not about showing what you know but enabling others to understand and use it. Empower your audience to act on the information for it to be useful, relevant and an effective use of their time. The belief that legal terminologies have particular meaning may be relevant in the context of court submissions, but when training other professionals, the intricacies of legal terminologies and court interpretations should be kept to a minimum. Use plain English as recommended in Chapter 9. There is a tendency to assume that it is important to get through a lot of legal content. Be realistic about what you can achieve in any one session. People need time to absorb the information and use it. Be mindful of your body language and tone of voice, checking with your audience to confirm understanding and questions. Do not leave questions until the end of the activity. By checking in with your audience you can see if your presentation or activities are being understood and whether you need to recalibrate or reiterate some points or adopt a different mode of delivery. This means you need to be flexible and adaptable. Professional development plans should engage the professionals to whom the training is targeted in identifying what they need to know,

194  Practical skills for new approaches

•

• • • • • •

•

• •

their experiences and the expectations on them to deliver services need to be explored. Make sure your goals are realistic and rejig this if your participants are taking longer than you expected to get through content. The point is to resist the temptation to rush to other content and find that participants are not ready to move on or that the task has more nuances or complexity than anticipated. Think about timing and location of your training. Can it be done online or can it be done onsite? Listen to your audience, think about what is important to them and what is critical for them to know. Deliver this information in a way that has relevance to them. Connect the dots so that they can see the connection between the information and their work so they know the next steps they may need to take when assisting a client/patient. Where possible use realistic scenarios. Ask the training participants what the common problems they encounter are in the area of the training and try to incorporate these problems as a part of the scenarios. We learn by doing. Passive learning does not allow people to put into practice what they are learning. Opportunities for debrief and discussion after practical activities should occur. This can include reflections on what worked well and why. What did not work so well and why not? What might be done differently next time? What was observed that others did that were thought to be effective and might be operationalised? Professional development can be integrated into other professional training. It can be undertaken through mentorship and observation. It can be done online, through legal secondary consultations (LSCs), undertaken in staff meetings, and can include the keeping of professional journals with guiding questions as noted in the previous bullet point. Start on time and end on time. Professionals are busy people with heavy workloads and people who are relying on them. Be motivating, engaging, relevant and timely, have utility and provide guidance as to how to take the next steps.

The next scenario is based on a real-life situation, where child protection authorities are investigating a young mother. It is by no means a straightforward scenario, but it is one which is typical of the professional development training that may arise from the casework of a variety of non-legal professionals for which they might seek training and guidance from lawyers. Such training might occur organisationally, within the leadership team, or with the profession that have requested the training. It might also take the form of one on one training through secondary consultation (SC) (see Chapter 6 for discussion).

Community and professional development 195 Scenario 11.3: Advocating for your patient/client A maternal and child health nurse comes to you with a specific case in which she has been involved. She instructs you that this specific case is not the first time she has encountered the difficulty that she is identifying. She explains that the relevant government department is intervening to see if a young mother is a good mother and investigating whether the child should be removed and placed in state care. The basis for the department’s interest in this young mother is because she had been in care herself. The department has had no complaints about the young mother from her former partner or the services that are supporting her. In this case, the department has been keeping the mother unaware of what was happening in the investigation. The maternal and child health nurse believes the department has been misinforming the young mother of her rights and suggesting if she does everything the department says, there is no need for her to worry. The nurse is concerned that the refusal of the department to explain what is happening or to explain the process is creating uncertainty and distress in the mother who for this reason is making mistakes. The mother is anxious, frightened and fearful, which is creating a self-fulfilling prophecy for the department. They could conclude that the mother is unable to be a good parent on the basis that she has heightened levels of stress and anxiety and is not coping. Note: this practice is more problematic in the state of Victoria in Australia, as from 2016, less cases are being determined by courts and decisions around removal and fast tracking into permanent care can be made administratively by the department under legislative provisions.viii These provisions can fast track a child into permanent care; away from their biological mother through an administrative process within the short time of 12 months. The case worker from the department is advising this young mother that there is no need for her to get legal advice at this early stage as the department is looking after the mother and the child’s interests. The maternal and child health nurse comes to you saying that she has heard from other maternal and child health nurses in your council region that they have been having similar dilemmas but that they do not know how to handle the situation. She wonders if you might be able to deliver some professional development for maternal and child health nurses on what the legal rights of the mothers might be, what avenues they might have and how the maternal and child health nurses can respond to the decision-makers on behalf of the young mothers that they support. Reflective questions 1 What are the various issues that this scenario presents? 2 Your legal service has limited resources to undertake this sort of casework repeatedly. So, what are the various modes of professional

196  Practical skills for new approaches

3

4 5 6 7

8 9

development that might assist the maternal and child health nurses in this situation? If you were to deliver a SC to this maternal and child health nurse, what sort of information would she require, what research would you need to do and how would you deliver the SC to her in a way that was usable, relevant and practical, enabling this maternal and child health nurse to take the next steps? How do you think you will develop the relationship of trust that you might need with maternal and child health nurses to be able to deliver professional development training to them as a group? What sorts of legal information might they need to be able to have a discussion with the department on the young mother’s behalf? What sort of information does the maternal and child health nurse need to have a discussion with the young mother to enable her to interact with the department on a more equal footing? If you provide the legal information that the maternal and child health nurses need, what other strategies will you need in your professional development training to build confidence and empower them as a support person to the client or in their role as empowering their clients to be able to take the steps they may need to advocate with the department? Is there a checklist or fact sheet that you might develop after the training to better support the maternal and child health nurses in situations such as the one in this scenario? What would it contain? Does this scenario present you with a broader issue around the practice within the department and need for some systemic reform? (If it does, Chapter 12 might build on your skills to address this.)

Activity 11.2: Developing a professional development plan 1 In a group, draft a professional development plan that you might use to assist the maternal and child health nurses to respond to the issues confronting young vulnerable mothers. 2 What factors will you need to think about as you develop and roll out this plan? 3 Is a knowledge of the law alone going to be enough to deliver an effective, usable and relevant professional development plan? Are you going to need to incorporate other knowledge and if so, what might this knowledge be? 4 How are you going to engage the maternal and child health nurses in the training in a way that respects their professionalism and their expertise as well as acknowledges their experience? How will you integrate this into your mode of delivery? 5 In your group, have a discussion about some of the ethical dilemmas that might arise both for you as a legal professional and for the maternal

Community and professional development 197 and child health nurses as they try to navigate their relationship with their client and the decision-maker, namely the department? 6 What will be the role of scenarios, role-plays and reflection and debrief in your professional development plan? Debrief: reflective questions on developing a professional development plan 1 Having undertaken this discussion in your group, what are some of the key challenges and difficulties that you have encountered or might encounter in trying to provide professional development on the rights of the young mother in care and protection cases? What obligations does the department have in the manner in which they conduct themselves in a care and protection case? 2 In your group, discuss the things that you had not thought about in the delivery of professional development previously that emerged from your discussion about this scenario? 3 Think about your own personal traits and attributes and make a list of the things that you think you would have to be mindful of in your professional development for the maternal and child health nurses and in general in professional development that you might engage in yourself in future?

Legal secondary consultation – a form of professional development There is a need for lawyers to understand their audience, and when explaining their role, contextualise their duties in terms of the whole system. There is a fear of people not seeking advice because their confidence might be breached. It should be clearly explained that any non-legal professional who brings a client to a lawyer is bound by ‘client–legal privilege’. Explaining how breaches in confidence can have ramifications, delays in court proceedings, etc. can help secure trust. In my research, lawyers often felt they had explained what ‘conflict of interest’ and ‘client–legal privilege’ was to a non-legal professional. Testing this assumption with the non-legal audience revealed the lawyers had not always explained the ethical underpinnings for the practice of law in a simple, clear and understandable way. Especially in secondary consultations, which can be quick and where there is often a time imperative; lawyers need to be able to explain simply and plain English why these protections exist. This can minimise the risk to being seen as ‘unhelpful’. Using legal secondary consultation (LSC) can break down negative perceptions of lawyers and can assist overwhelmed clients to ensure timely and efficient advice is given through a trusted intermediary, such as a social worker, doctor, psychologist or nurse. SCs rely on the visibility of

198  Practical skills for new approaches the lawyer: in the relevant office, participating in informal conversations in corridors and at work events. The role of SCs cannot be overlooked as a professional development opportunity. This on-the-spot training for staff can be timely, efficient and useful, given heavy caseloads that make attending formal training problematic.ix LSCs still remain an aspect of legal service delivery that is undervalued and not offered as often as it could be but, to be effective it must be done well. Secondary consultations do not have to occur only in an office setting. For example, Consumer Action Law Centre (Consumer Action) in Melbourne operates a SC service over the telephone and by email that is available Victoria-wide. There are certain preconditions however, that my research suggests, need to occur in the delivery of effective LSC consultation for non-legal professionals to take them up. The following tips summarise these preconditions. Tips for secondary consultations • • • • • •

• • •

Do not use legal jargon. Use simple language clearly explaining concepts and their application in a practical way. Step-by-step strategies and the provision of further support as required can be critical. Ensure your services are easy to access, you offer a quick response rate and follow-up if you cannot provide the legal advice on-the-spot. Flexibility to be adaptable to the circumstances of the non-legal professional provider or the client. Some clients will be unwilling to see a lawyer but may need immediate legal help to navigate the system to prevent further harm. The lawyer needs to be clear and succinct about the legal issue, the processes that might be ahead and offer fact sheets for the non-legal professional to refer to. Be mindful of other people’s ethical obligations. Do not assume that they do not have them. Most other professionals have a duty of care, for example, to their clients that may involve not causing further trauma. There may also be other duties, including confidentiality. Recognition of professional codes of conduct might be pertinent (see Chapter 13). Often there is a perception that clients will be further harmed because of the way the legal system operates and so there will be reticence to refer to a lawyer. This is where LSCs can become critical as an intervention. Although lawyers have ethical obligations (such as not to act when there is a conflict of interest, client confidentiality and client–legal privilege, etc.), these are not widely understood by non-lawyers. There are many ways to avoid conflicts of interest in the provision of LSCs (see Chapters 6 and 13). This can include having clear consent forms and referral protocols. They can involve the lawyer attending

Community and professional development 199

•

•

case management meetings and asking for general legal problems or issues of concern to be raised so that these questions or queries can be resolved or addressed before any detailed discussion of clients’ matters and names occurs. The lawyer can leave the room before this occurs. When a non-legal professional approaches a lawyer informally, the lawyer can make clear sign language suggesting the non-legal professional not say anything further. This is a reminder to keep things general, so that the lawyer is able to help without knowing specifics of the individual client. Mindfulness and clear communication about the sort of information that the lawyer can need without breaching client confidentiality or creating a conflict of interest can assist the non-legal professional in sorting out how to have a conversation with the lawyer.

Activity 11.3: Managing the secondary consultation request The maternal and child health nurse has lunch with you in the staff lunchroom. There are other staff present. In general, conversation she mentions how disheartened she is with the department, in relation to this young mother. She says it seems to her that the mother will lose her child as the mother has no legal rights because the department can do what it likes. You are aware that this is not the case. You believe the maternal and child health nurse needs some support in supporting her young patient. Reflective questions 1 2 3 4

How will you approach the conversation? What steps do you need to take given it is in a public area? What are the parameters of the advice that you can give? What are other factors will you need to be aware of and mindful of in providing a SC? 5 How will you build the capacity of the maternal and child health nurse to be able to advocate with the authorities on behalf of this young mother, given you do not have the resources or time to represent the young mother yourself? Activity 11.4: Providing the secondary consultation In a group of three, role-play with one of you being the maternal and child health nurse asking the questions and another taking on the role of the lawyer providing the SC. The third person will take on the role of observer, using the tips on LSC above, to ascertain whether or not they think it is a successful SC, and comment why/why not and how could it be improved upon.

200  Practical skills for new approaches Debrief: reflective questions on secondary consultations After completing the initial SC, discuss the different perspectives of the maternal and child health nurse, observer and the lawyer roles: 1 What worked well and why? 2 What did not work so well and why not? 3 Is there anything that you would do differently next time be done in future?

Conclusion It is hoped that the scenarios, questions and activities flagged in this chapter might deepen the insights of those who currently undertake community development or professional development. This can provide an opportunity for readers to rethink current practice or for those to whom this is a novel experience, given the opportunity to think more deeply and reflect on some of the exigencies before they undertake such work. It is my view that this sort of work, because it involves different professionals and different communities will always leave us on a learning trajectory. In delivering community development and professional development, it is important that we are humble and that we are prepared to learn from others. Allow participant information and experiences to shape and inform the way that you deliver these models. Much community development work is under evaluated and I have been in the process of developing tools to remedy and address this. Professional development work that is evaluated can have a tendency to be a tick-a-box process and can be overly concerned with activities and numbers of people participating rather than measuring the actual experience and quality of the professional development itself. It is important that evaluation of professional development examines whether it is useful and where possible, revisit the evaluation to see if there has been a later change in practice as a result of the training. This would demonstrate that the professional development has had an impact.

Reading material for community and professional development Community Places (2012) Community Planning Toolkit – Community Planning, Big Lottery Fund, UK, https://www.communityplanningtoolkit.org/sites/default/files/ CommunityPlanning.pdf Lane M, Boulet J, Rees S, Ife J (2013) People Power Participation: Living Community Development, Borderlands Cooperative Limited, Victoria, Australia. O’Gorman F (1992) Charity and Change: From Band-aid to Beacon, World Vision, Melbourne, Australia. Lee B (2011) Pragmatics of Community Organisation, 4th edn, Common Act Press, Toronto, Canada.

Community and professional development 201 Maloney J (2010) ‘I feel empowered, I know my rights: Communities empowered by peer education and paralegals’, Fellowship report, The Victoria Law Foundation, Australia. Rich N (2009) Reclaiming Community Legal Centres: Maximising Our Potential So We can Help Our Clients Realise Theirs, Victoria Law Foundation, Australia.

Notes

i Balkwill, Fairley (2013). Note: this text was kindly given to the author by M Balkwill when visiting Canada in 2016. ii Curran, Taylor-Barnett (2019). iii Lee (2011). iv Aboriginal Family Violence Prevention and Legal Service Victoria (now Djirra), VicHealth (2018). v Ball, Wong, Curran (2016); Curran (2015b, 2017c, 2017e, 2020); Curran, Taylor-Barnett (2018); Hegarty & Humphreys et al. (2014); Inner Melbourne Community Legal (2018). vi Curran (2017a, 2017c); Curran, Taylor-Barnett (2018). vii Balmer, Pleasence, Hagland, McRae (2019); Curran, Taylor-Barnett (2018). viii See a discussion of the impact of amendments to the Children and Young Persons Act 2005 (Vic) by the Children Legislation Amendment Act 2016 (Vic) in the Judicial College Notes and the State of Victoria CCYP (2019). ix In a number of my empirical studies, professional staff noted that secondary consultations as an effective form of on-the-spot training. See Curran (2017a, 2017d, 2020); Curran, Taylor-Barnett (2018); Sanderson, Edwards, Williams, Curran (2017).

12 Policy research, submission writing and advocacy for change

Aims and objectives • • •

Demonstrate to policymakers the important role of lawyers in identifying problematic trends. Communicate that policy and law reform undertaken in isolation does not always benefit the community. Reduce exploitation and provide protection from others of people’s legal rights.

Methodology 1 Provide a series of contexts detailing effective law reform initiatives along with detailed examples of policy research and law reform. 2 Assist lawyers and students of law (and other professional disciplines) to undertake law reform or policy work in collaboration with other professions and using multi-pronged strategies. 3 Identify tips on policy research, advocacy for change and tips for lobbying. 4 Present case studies and activities to enable a deeper understanding of what might be entailed in policy and law reform and how to apply these in real-world contexts. Learning outcomes •

Enhance lawyers’ and law students’ practical skills in being able to conduct research, participate in the writing of submissions and other strategies to advocate for change.

Background to policy research, submission writing and advocacy for change A lawyer, clinical legal education and law students’ engagement in law reform activities is a hallmark of a healthy democracy. Each has the vantage point of looking at the law in operation and its impact on clients and community. Articulating clients’ lived experiences so they are incorporated

Policy research and advocacy for change 203 in policy, research and consequent submission writing is key to our democracy and accountability. Too often, our legislators and our politicians do what is popular with short termism that ignores the evidence base. Policy often sits within a legislative framework and so the scope of policy must consider matters of law and legality. Understanding the limitations of case law and the exploration of new and effective ways of applying problem-solving skills in a practical way can also be empowering for legal practitioners and law students. Such work underscores the place of law in society and develops transferable skills if students do not want to necessarily practice law but wish to contribute or work in policy and research settings. As noted in Chapters 3 and 4, hierarchy, control and the protection of vested and powerful interests tend to capture any real policy gains. The rise of neoliberalism and slavish adherence of governments to new public management with its splitting of policy from lived experiences and a steering not rowing mantra from the 1980s and 1990s stresses efficiency over other important societal aims, such as the common good and public interest. The idea that policy can be developed yet be removed from lived experience can only lead to blunt, ineffective and inefficient policy; a policy’s legitimacy should be questioned when it is developed in isolation from community impacts. This goes to the heart of a real democracy. Without diverse input into policies by those likely to be affected, those who work closely with affected communities and those who advocate on their behalf, the complexities and intricacies of the operationalisation of policy can see ‘harm’ occurring in policy roll-out. Law students and legal professionals can learn skills in policy work and this chapter proffers some ideas and case studies. ‘Case study 12.1’ illustrates the immense value of lawyers and academics joining with community organisations to bring about good policy outcomes. Case study 12.1: The ‘Robo-debt’ debacle in Australia The Australian Government relies on an algorithm to determine when debt is owed. This algorithm averages taxpayer income based on the Australian Tax Office (ATO) annual income data averaged across fortnightly periods, as if this were the actual income in each period. If a person is deemed by the algorithm to owe money, the system generates an average income that is then aligned with that person. This distorts and overstates income as it uses set comparisons on income for periods of time, which can fluctuate. Between July 2016 and March 2019, 500,281 ‘Robo-debt’ notices claiming debts of A$1.25 billion averaging $2184–10,000 from beneficiaries were alleged. The algorithm generated thousands of letters of demand to collect revenue for the government, reversing the onus of proof for the alleged debt to the recipient on welfare. This was done with little consideration of

204  Practical skills for new approaches individual circumstances or the legitimate basis for the debt, and without court deliberation or determination. Welfare recipients were pursued, demands for repayment made and debts collected. This caused distress and death.i The policy was questioned. It became the subject of a multi-pronged campaign, which included policy submissions from an array of community organisations including the Australian Council of Social Service, Anglicare and Get-Up. Their submissions used anonymous case studies exploring the harsh impact of a poorly designed policy with minimal human intervention by reliance on a problematic computer program. Most of the recipients were on social support due to complex needs like drug addiction, mental illness, disabilities or were victims of domestic violence. This campaign led to a scathing report in 2017 by the Commonwealth Ombudsman, which led to some recalibration, but then further concerns were raised in April 2019ii via a majority report by the Parliamentary Community Affairs Committee in 2019.iii The work of collecting case studies and making submissions was conducted alongside test cases by Victoria Legal Aid, Social Security Rights Victoria and a private law firm (Gordon Legal) before the Administrative Appeals Tribunal and in the Federal Court of Australia challenging the practice. Late in 2019, many of the debts were found to be invalid in law by federal court order, with some debts found not to be owed.iv This finding established that the government erroneously requested the money. Given the scheme targeted those on already tight social support services it affected Australia’s poorest people. This action has led to the government committing to abandoning the automation of its debt recovery policy. This case highlights the value of policy engagement when there has been intransigent refusal by government to rectify the position for recipients who were overcharged. When these public concerns were raised through a multi-­pronged strategy of policy submissions, parliamentary scrutiny and a test case, the policy work and advocacy of community agencies and the private profession led to evidence and a court precedent on the unlawfulness of the practice. False news While the internet gives us easy access to information, it can bring some significant downsides, which undermine good policymaking. Increasingly, we see a world governed by populism, opinion and assertion. This can have implications for those who may have little recourse to correct information, especially as the reach of these forms of communication can be international and wide reaching. Many people experiencing disadvantage in the world have limited access to technology to run a counter-narrative on opinions (often not based on factual information) that damage them.v The past decade has seen the rise in social networks and online providers whose main aim is to grab attention using advertising to make its pitch. This is to generate money from their feeds. This has seen a trend to sensationalise

Policy research and advocacy for change 205 information with a disregard for the facts in order to bring their site to public notice. False news, the promotion of bigotry and bias and the tailoring of news to suit the audience get in the way of accurate information. People online can say what they like, whether it is true or untrue, with little consequence due to the protection of anonymity. Such techniques have a significant and broad reach, with well-resourced backing and sophisticated methods of infiltration to manipulate facts.vi It is for this reason, that increasingly, there is a role for the legal profession and academics to provide research, cases and evidence-based data on the lived experience and the impacts of policies that are poorly designed. Lawyers witness this in their day-to-day legal practice. This can hopefully counter such misinformation and enable evidence-based policymaking and decision-making be it in the courts, industry, by parliament and government departments or informing public debate.

Policy research and advocacy for change This section looks at how having systems in place for issue identification can provide an evidence base for identifying capacity and capability, mobilising and collaboration opportunities where policy reform is needed, and identifying stakeholders to enable multidimensional campaign and policy engagement. The legal assistance sector has been the subject of criticism from politicians for its advocacy for change and has suffered funding reallocations as a consequence. It can be inconvenient for politicians to have their policies come under public scrutiny. Policy research and advocacy can at times be fraught for this reason. Accordingly, it can be important to reduce political partisanship so to reduce the attacks of political bias from policy reformers and stay focused on the issues and justifications for the concern. Having a clear evidence base grounded in the lived realities of impacts of laws and their administration can assist in repelling such attacks.vii Tips on policy research and reform •

Issue identification: •

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Legal practices and clinical legal education programs can develop a system to track recurring administrative issues caused by laws and their administration. This can inform the research base for advocacy for change. At the end of each tax quarter, use this tracking information to inform detailed discussion about what is occurring, why it is occurring and the factors in common. Look into the issue and undertake an analysis of what the cause of the issue is, how it manifests, whether it is occurring in a specific region or more widely, who is administering the policy and in what way, and how, it impacts on your clients or community.

206  Practical skills for new approaches • • •

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Capacity and capability: • •

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Check if there is existing research or any studies, be they legal or non-legal around this issue. Bring this information back to the team for discussion and brainstorming as to what course of action or strategies might develop a policy position on the emerging issue. If your agency or legal practice has its own policy arm, make sure that it is in constant communication with those involved in the case work, those undertaking client intake, community development work, community legal education, those conducting SCs and professional development work. Their work can be rich pickings for ascertaining the extent, prevalence and nature of the trend. Make a determination about whether you have the resources, the staffing and the capacity to respond to this issue and whether it is a priority of your organisation to take action. If you do not have the resources and capacity, you could still write a letter to the regulator articulating the issue and what you have discovered. You can ask them to give it closer examination and scrutiny. This is a quick and efficient way of bringing the issue to the attention of decision-makers and might be a way of utilising their resources to address the issue, given you do not have them. Try not to avoid taking action because of limitations in resources. A short succinct letter (as noted above) might suffice to bring the issue to the attention of the relevant authority. If you have the resources or the matter is of significant priority to your organisation, you may wish to take further action. If you decide the matter is of priority, then the following steps are worth consideration.

Mobilising: • •

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Scope out the main stakeholders of the policy/issue. Identify those who are likely to be your allies, resistant to change, and at a level of decision-making that would be helpful to your plight. Map out who these people and agencies are alongside determining who are the influencers of the key decision-makers you need to get on board. Consider the layers of government, statutory authorities, regulators, the media, activists, political parties and so on. Bring legal and non-legal professionals together in a network to discuss the issue and see whether or not there might be a collaborative approach to the policy response that brings together a range of key stakeholders. Brainstorm with them all the possible steps that you need to take and levers that you might need to use to bring more people and organisations and community on board.

Policy research and advocacy for change 207 •

Collaboration: •

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Collaboration and working with like-minded agencies can mean you share resources and have more people from different perspectives sharing and identifying strategies you may not have thought of on your own. Think about whether this is appropriate for your policy work on the issue. It may take some coordination and management, so, be ready for this. It is more powerful for decision-makers where there are multiple, but uniform voices, expressing concern about the issue. In brainstorming, try to use multipronged approaches rather than narrow lines of attack, such as submissions to government. Work out which of the collaborating agencies have specific expertise and utilise this. You may also like to look to those agencies that are listened to and highly regarded, and they may take the front foot if they are likely to have more clout in gaining the attention of either the public or decision-makers depending on your strategy. Take the public along with you. Keep them informed of what is happening, how it is happening and why it is important to achieve change. This can also apply pressure on decision-makers if they feel the voters/market might be affected.

Policy reform: • • • • • •

Be patient, policy reform takes time. There is no substitute for detailed research, discussion and brainstorming. Sometimes, you might find that you are the first agency or lawyer to identify the issue. It may take time to bring others on board. Often you can be working on a policy issue for many years but at a point in time there is momentum for change and then you can act as you are prepared often referred to as a tipping point. You may need to be primed for action to take advantage of when these tipping points occur. If you have done the groundwork, however, you will be ready when the time comes. If you have limited resources, you can repackage your policy submission for a range of purposes: media, other inquiries, lobbying, community awareness raising and community organising (see Chapters 4 and 11).

Multidimensional campaign and policy engagement You may find someone more influential than yourself to lead the campaign. Although you may never be acknowledged as having been instrumental in

208  Practical skills for new approaches the change, this should not matter as the focus is on bringing about the necessary reform. Sometimes a quiet, behind the scenes approach to advocacy can have utility and lead to change through averting people from becoming defensive and hence resistant to the change required. Consider inviting relevant bodies (agencies or regulators) to public forums. One powerful example is the Bring Your Bill days now occurring around Australia in rural and urban settings. These sessions are held with migrant communities where financial interpreters are present. Energy bills, outstanding fines, legal issues, disability, pension and benefit problems are all brought to the table. Bills can be scrutinised on-the-spot by community lawyers to see if they are appropriate and in order. If they are not, the regulator who is also in the room can work out the appropriate steps to ensure proper compliance or policy recalibration. The Do Not Knock Campaign in conjunction with the lead agency, Consumer Action Law Centre (Consumer Action), encouraged individuals and agencies to facilitate complaints about exploitative door to door sales-people who ignored the stickers (developed by Consumer Action) that were placed by consumers on their front door to ask salespeople not to knock. These door to door salespeople would entice people into contracts often misrepresenting the contract. The Australian Competition and Consumer Commission (ACCC) took a case against a utility company to the Federal Court of Australia, which was upheld on appeal. The court concluded the utility company was trespassing due to the sticker. This led to consequential hefty fines for individuals and their corporate employers. These are now enforced when breached.Vii Lawyers can play a pivotal legal empowerment role in assisting communities in the skills to run such meetings and conduct them on their own and in their own communities (see Chapter 4). Tips for multidimensional campaigns • • • •

Policy research and submission writing on their own are often not enough to gain traction and to highlight the issue. The campaign may need to employ multiple forums and strategies. It may be prudent to hand over the campaign to a more influential candidate. Your resources may be better spent as an inside influence; commentary in forums and on social media, writing letters to the editor, journalist briefings, lobbying parliamentarians and local political figures, etc. Your policy research and policy submissions can form a good basis/ plank for developing simpler and punchier messaging. Try holding public meetings about the issue; roundtables with affected service providers; workshops that bring together affected persons who can tell their stories and explain the impacts of the policy on their lives; meetings in public with decision makers, etc.

Policy research and advocacy for change 209 •

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Approach the problem from another perspective; like using different forms of multimedia to spread your message; creating YouTube videos around the issue/victims; influencing screen writers to include political statements in television scripts; likewise, with comedians who perform stand up or comedy sketches for television. Meet with statutory regulators and present all your case studies and ask them to take action. This is especially useful if you or your practice do not have the resources to bring a complaint/action.viii A repeated message is a powerful message!

Lobbying In my early years as a junior lawyer undertaking policy advocacy, Australian Senator Barney Cooney gave me this invaluable advice, which has served me well: If visiting parliament for the purpose of doing the rounds of different parliamentarians to bring an issue to their notice, do not base yourself in the office of one political party that you have an affinity with. It is important when doing policy work that you are doing it for the advantage of community and clients, so try to not enter into partisan politics. If you do this, it makes it easy for politicians to pigeonhole you and dismiss your concerns on the issue. Tips for lobbying •

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Present briefing notes to parliamentarians that are no longer than one A4 page. Be succinct, to the point, outlining the nature of the problem, why it is a problem, who experiences the problem, the impact of the problem and the solution that you think might address the problem. Indicate who is responsible for ensuring such solution can materialise and what the politician can do to help. Ensure that you are clear and that your focus is on the issue and not on party political partisanship. Make the issues relevant to the powerholder, politician and their electorates where possible. Do the homework on who you are visiting, look at previous speeches they have made in the parliament or in other forums. See if there are any synergies or correlations in relation to your issue and issues that matter to that particular parliamentarian you are to meet with. This also makes polite conversation so that you can build your rapport with the relevant parliamentarian. Organise in advance to have a base with a different party on each day. I got to meet (and discuss why I was in Canberra) with a range of parliamentarians including Liberals, the Nationals, Labour Party, the Democrats, the Greens, independents and other minor parties. Each would take an interest in the issue and give me sound advice as to how to approach the different identities that I needed to speak with and advise me on what might work with each of them. They would also

210  Practical skills for new approaches

• •

•

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identify people who might be sympathetic to the concerns being raised and make useful suggestions as to how I might approach them. Do not overlook the role of advisers to parliamentarians, the press gallery nor senior departmental policy units. Senior departmental policy units are increasingly keen to develop connections with people who can discern the problems of policies and how they might be addressed. I have specifically noticed this trend among the new generation of policymakers. They seem keen to learn as much as they can about how policies play out on the ground. Such relationships can be critical in bringing about policy change. They also mean that you can develop inroads with people who will become the future directors of policy in government departments. If you are making a policy submission to a parliamentary or statutory enquiry, sometimes it can be prudent (subject to the requirements of the relevant enquiry around publication) to share your submission with the media and/or departmental officials. This can have the effect of doubling your impact and making them sense that you are someone who they need to listen to. You might approach a parliamentarian and ask them to consider a Private Member’s Bill. Unfortunately, you will be pitted against professional lobbyists who have significant resources. What you have in your favour though is the lived experience and the powerful stories that flow from it. Use these wisely. They can be disarming and persuasive. Appeal to the sense of why they might have entered parliament in the first place and make them feel they can make a difference again.

Multidimensional campaign and policy engagement One innovative practice in Australia is bulk negotiation. This has been used successfully to reform systems as it is cost effective for both industry and clients (as demonstrated below). When trying to change policies and reform practices, the value of thinking laterally and coming up with creative ways of bringing about change cannot be underestimated. As noted in Part I, the courts do not always provide quick, just and responsive solutions. Coming up with new ways of bringing about accountability in the way that policies are administered or in ensuring adherence to the law can be just as effective, if not better than the court process. The following case study is one example of creative problem-solving in relation to poor policy processes. Bulk negotiation ‘Bulk debt negotiation’ has been used to great effect in Australia. Instead of negotiations taking place for clients separately (which takes time and

Policy research and advocacy for change 211 resources), they were bundled together into a bulk negotiation. Client cases are collected en masse by financial counsellors, legal aid commissions (LACs), community legal centre (CLC) lawyers and other services, and a volunteer law student documents the client’s circumstance. These are then compiled into detailed case histories and taken in bulk to the relevant agency. This bulk negotiation approach enlists a range of services beyond just legal who are able to work together to mobilise for an outcome. This collaboration demonstrates that such projects can be done without significant expense, which a legal court case would. By bringing together a set of bulk de-identified cases, this process shows corporations how their systems can fail; that proper processes haven’t been adhered to; that legal protections can be ignored and how poor policy and/or administration impacts the community. This process is powerful in highlighting and shaming maladministration on the ground. The threat of the media can pressure banks, telecommunications companies and utilities into fixing poor practice.ix Bulk debt negotiation has averted court and encouraged corporate responsibility. Australia has seen in excess of $27 million of claimed monies written off by the corporations and changes to industry practice.x This has led to reductions in stress and anxiety for the people who were being chased by debt collectors and the realisation that industry can be held to account even by under resourced, cash-strapped community organisations working together.

Policy research and submission writing in legal education As educators, a compelling question to consider when devising curriculum and activities is: ‘What skills do students need to equip them for the changing world, and to be effective, well-rounded and compassionate lawyers?’ Questions for legal educators Over many years, at various conferences around the world, educators have commented that ‘it is not part of their role’ to equip their students to engage in law reform or policy. These are some of the questions I would ask educators to take time to respond to: 1 What kind of lawyers do we want to be or want our students to be? 2 To what extent is it a lawyer’s role to provide a voice or a pathway for others (who are invisible) to find a voice? 3 As (legal) educators what impact do we have on students’ future professionalism, decision-making and effectiveness? 4 If your student was to identify a problem with how the law is administered for a number of clients, what skills have you imparted for them to protect confidence in the legal system or to urge the necessary change?

212  Practical skills for new approaches 5 What is the role of restorative justice (RJ) and non-adversarial lawyering in legal education (for the professions and otherwise)? Are they just as relevant for those working outside the social justice field? 6 Where will the next generation of social justice-oriented lawyers come from? 7 How can you still teach your substantive law subjects but cover the content using more creative techniques that can build skills in policy research and submission writing at the same time? Student policy research This activity introduces students to policy making in traditional law subjects by breaking away from rote learning, and introducing practical exercises into the classroom so students can learn the different perspectives in a legal narrative. Integrating this into curriculum need not be difficult and here are some examples. Activity 12.1: The hypothetical exercise I use ‘hypotheticals’ when teaching core undergraduate subjects and in clinical legal education to enrich dry traditional subjects including legal ethics. The technique varies the more traditional teaching approaches of lectures and tutorials, for example, of a tort or contract problem, by broadening the analysis including through a policy lens. The hypothetical required a role-play by students of a range of different people, including lawyers, a former client, departmental officials, politicians and journalists in response to a developing situation with lots of ethical questions and twists and turns. I have used hypotheticals for human rights courses involving practitioners from different disciplines. The method involves them in all the different dimensions and perspectives of human rights practice. This example highlighted the complex tensions at play for the different professionals, exposing them to the differing imperatives. Using hypothetical examples enable the participants to see beyond their own perspective and gain a greater understanding of the different roles, expectations and challenges in practice. Planning and executing steps: 1 Preparing for, and conducting, a hypothetical would take two onehour classes or one double period over two hours. 2 The teacher/tutor would present a legal problem in a specific area of law or touching on an array of areas. 3 Students would be allocated a role within the scenario, and would research the area of law, its implications and lived experience through the lens or vantage point of their role. For example, in a torts

Policy research and advocacy for change 213 problem, the characters would be property owner, tenant, real-estate agent, local council representative and lawyer. Students would also investigate the various responsibilities of the other characters in the hypothetical. 4 Students then prepare for the running of the actual hypothetical the following week. The hypothetical would start with students in character, sitting at an arc-shaped table with the teacher/tutor as facilitator. Ideas for characters that students research and role play for the hypothetical might include: the relevant minister; the secretary of the relevant government departments; the lawyer advocating on behalf of the particular client; a person in the media; victims’ rights advocate; a corporation or business sector representative; a non-government organisation or a multicultural organisation. 5 The teacher/tutor would facilitate dialogue between all of the participants. This would include questioning them about the problem, from the perspective of their character, and every now and then introducing a different fact or element to the problem; a twist and turn to keep them thinking, and to add a little humour. Students need to be adaptable, flexible and think on their feet. The twists and turns exude an element of uncertainty and unfolding of the problem. This emulates real-life practice where often the full story is not always known at the outset. Students would be warned that this might occur in advance, and that they would need to be prepared and have researched the problem from all perspectives so that they can respond appropriately in the actual hypothetical. 6 This activity covers off on all the content that might have otherwise been taught in a didactic lecture format with a follow-up tutorial. It has the additional benefit of increasing the critical thinking required to examine an issue from different vantage points. This assists students when they come to write the final assessable essay that in this case, required both content knowledge and an ability to examine different perspectives and arguments in the problem analysis. Students find hypothetical role-play fun, while, at the same time actively engaging with the material, participating in the class, and collaborating with each other. They can see how a black-and-white legal interpretive approach can be extremely limiting, when looking at the legal system through a policy lens. Student law reform submission The case study below outlines a student policy submission unpacking some of the fundamental approaches to policy research and submission writing that emerged in the context of the submission. This is provided to offer some concrete ideas for legal educators supervising students, and for students in

214  Practical skills for new approaches their policy research and submission writing. This case study will give the reader some guidance as to the sort of conversations, support, facilitation and questions that an educator might provide for their own students in the conduct of law reform projects. While the specific example that I use here relates to law students, there is no reason this approach to policy research and submission writing cannot be undertaken by students of other disciplines. In addition, it can be undertaken by law students in conjunction with students in multiple disciplines working together on the one policy submission (see Chapters 8 and 13). Interdisciplinary policy work can only enhance the richness of any submission. By bringing together social scientists, students of health and allied health, scientists, environmental scientists, social workers and law students, the dimension and breadth of research approach can only add weight. It makes a compelling case for change, which cannot be reduced to the adage of the legal industry ‘drumming up more work’. It uses the expertise from a diverse range of areas leading to sophisticated, multidimensional and improved decision-making that takes into account the many factors that can be at play. Case study 12.2: Student engagement in policy My most recent involvement with student policy research and submission writing was the supervision of a small group of students in 2019, who made a submission (Submission 87)xi to the Senate Community Affairs References Committee’s Inquiry into the Adequacy of Newstart and Related Payments and Alternative Mechanisms to Determine the Level of Income Support Payments in Australia (Newstart Inquiry). The committee was due to report by 27 March 2020. At the time of writing, this had been extended three times. By way of background, Newstart (and related allowances) is the income support system that makes up a large component of social security payments for unemployed people in Australia. The maximum rate of Newstart for a single adult is $278 per week, plus a $4.40 per week energy supplement. Newstart has not been adjusted since March 1994 other than for the Consumer Price Index. A Job Search Allowance is for people who were unemployed for less than 12 months. The Organisation for Economic Co-operation and Development (OECD) Benefits and Wages database (2017) locates Newstart at the (equal) lowest unemployment payment (compared with the after-tax wage of a single adult production worker, including housing benefits) for people recently unemployed among 33 OECD countries. This insubstantial income for living is leaving people and their families in poverty. There have been repeated calls for government to increase Newstart across the business and community sectors, but little has been done (other than during the COVID-19 pandemic for a maximum of six months) to address the allowance despite this pressure.

Policy research and advocacy for change 215 Background to student engagement in policy The Australian National University (ANU) Research Hub Project brings together law students with research skills who can conduct applied legal research in making submissions to inquiries on law reform issues or respond to research needs of various lawyers and groups. In late August 2019, I was approached by a group of four students who were participating in this Research Hub Project and asked to supervise their submission to the Newstart Inquiry. Prior to our first meeting, I sent students a weblink to Social Security Rights Victoria and asked them to familiarise themselves with the work of this agency for people receiving social security, and some of the legal struggles that social security participants had to navigate that were evidenced on the website. Scoping the problem, the nature of the research and content required In the initial online meeting, there was a tendency for students to want to focus only on legal interpretation, given this was a law course, however, when I questioned students on their motivation for making the submission it became clear that it was about their concern of the inadequacy of the Newstart allowance. This included that Newstart was pushing people into poverty and reducing their chances of an education, ability to gain employment, participate in society and shape futures for their children. It is important to identify the values and motivators that may underpin any policy submission early in the exercise, as this can bring about ownership of the exercise and a passion for the topic from students. This will sustain them for the length of the enterprise. It also has the benefit of getting students inspired and excited about policy and law reform work. This is different to political bias or political partisanship, which as noted earlier, is problematic in policy reform. In this first meeting, we discussed the basic underpinnings as to why income support exists and its purpose. We discussed the purpose of taxation and social contract with government to use the income they generate from taxpayers for the public good. This then became the springboard for situating the emergent problems with Newstart in the context of the purpose of the payment. It became clear some of students had direct experience of the inadequacy of Newstart either through contact with family members or friends. I noted that in any law reform submission writing, it was important to unpack the context in which the legislation or policy settings sit, and the lived experience of those policies. I noted that as lawyers engaged in policy making, we had to appraise ourselves not only of the legislation and the laws, but their application in the broader context of the social, political, cultural and economic. We next focused on identifying the questions around the problem.

216  Practical skills for new approaches Identifying questions and considerations 1 What is the purpose of income support and where is the income for the support derived? 2 Is there a problem? Why is there a problem? How widespread is the problem? What is the impact of the problem on the people affected by the policy and legal setting? 3 How do we know this is a problem, for example, do we have access to empirical research that suggests there is a problem or direct lived experience of the problem? 4 Where do we find the best information to the extent, impact and flow on effects for individuals and society that we can use to substantiate that there is a problem and that as a society we should be concerned about fixing the problem? 5 What are legal and other settings that may need to be changed or recalibrated to fix the problem? 6 Are there any other settings such as economic, social or cultural that we need to also be considering in our approach to addressing this problem? 7 Who is the key decision-maker that can address the problem or make the necessary changes? 8 Who are the key stakeholders in the problem including this decision-­ makers and what perspectives do they hold, or do we think they will hold? 9 Are these key stakeholders already engaged with the problem and if so what research, policy work or lobbying have they done on the topic and what perspective do they bring to the issue? How will we access this information to be incorporated in our brainstorming and background material for our submission? 10 What are the legal settings and legislative frameworks within which the problem sits? How can we use our knowledge of this to work towards an improvement so as to solve or address the problem? 11 Rather than an abstract exercise in legal application what are the practical considerations that we need to take into account in making a submission? How can we make a compelling case for change and include the voice and experiences of people directly affected by the problem in our submission? 12 What different skills and insights do each of the members of the group bring to this submission writing exercise? How can we best utilise each student’s unique insights and skills to strengthen our submission to the committee? Who will take responsibility for which aspects of the submission, what might the chapter headings and the structure of the submission look like? Who will be allocated to do the work under each heading and by when? Having brainstormed and identified the key questions above, students went away and did some research to find out the answers to those questions. I prepared some guidance points for their journey into the unknown.

Policy research and advocacy for change 217 Guidance and suggestions 1 Start thinking about solutions to the problem as you do your research, and when you write these solutions down, rank the possibilities with some criteria; such as whether they are – practical, achievable or realistic. It is important to do this as you go along as it will inform and shape the direction of the whole submission and also ideas will come to you in the process of undertaking your research. 2 What are our next steps in finding out all of the relevant information that we will need to write a submission? Which students will undertake to do which tasks and by when? 3 What are the timelines that we have given the inquiry is calling for submissions within the next few weeks? I provided students with some of literature such as reports from non-­ government agencies and newsletters that might be hard for them to access, as well as some scholarly articles around poverty, Newstart and the social implications of an inadequate system of social supports. Students did their own detailed research explored de-identified cases from the literature provided and spoke to other agencies and people who they knew were on Newstart. They then started drafting the submission and playing around with the structure. Students tended to work singly or in pairs and then reviewed each other’s work. The reviewing of each other’s work meant each was able to add further insights from their own vantage point given they were all looking at different aspects of the problem. This added a richness and connectedness for students in this joint endeavour. The next meeting was set before the document was ready for submission, with various earlier drafts circulated by email (Google Docs). Reporting back: progressing their research and investigations At the second online meeting, following circulation of their draft policy submission, we were able to look at the structure and identify different ways we could position the arguments to have the most impact on the decision-­ makers. We did this after having worked through factors that might shape and influence their willingness to take on board the arguments put forward in the submission. Broadening of their understandings beyond the legal Students had initially been keen to look only at legal cases and the legislative framework but in their research had looked at a raft of other materials that gave them more insights and ideas about how to feed into this submission the lived experience of the problem by the recipients of Newstart. This meant that they were able to include case studies in their submission as well to ground the legal argument in such lived experience.

218  Practical skills for new approaches Reviewing and refining drafts – the exchange of opinions and information Students emailed me, a late and penultimate draft. In the process of reviewing these drafts I made suggestions to the document (with track changes) tidying up some of the legal jargon, stressing the need for them to use plain English. In this policy feedback to students, I noted it was important not to assume that the audience of their submission would be only people with law qualifications. It is important to stress the importance of being readable to a wider audience to students in this process. In doing this, I indicated their submission could have a greater impact if it was clearly expressed as it could capable of being redeployed at a later stage and adopted by others. Teamwork leading to collaborative practices including negotiation Despite the very short timeframe (under a month) that students had to do this work, they were organised and communicative. They used email and exchanged ideas and drafts to further polish and improve upon their submission. This was a rich and meaningful process not only in producing the final submission but also for students to learn about working together on a joint policy and reform submission. Students learned that research in policy goes beyond just legal application and understanding to incorporate a range of other disciplines and considerations. They reflected on the importance of brainstorming, checking in with each other on new information and learnings and ideas and the value of clear communication with each other. They demonstrated organisation with action lists and responsible persons for action, as well as a coming together of different minds and perspectives. As their supervisor, I also learned a lot from students too. The process of policy reform and development involved this group of students in having to conciliate what was relevant and not relevant to their submission to make it pithy and compelling. The process of engaging students in such policy activity also enables the development of other transferable skills including working with others, negotiating through different perspectives coming together to produce a polished piece of work for an external audience.

Conclusion Inclusionary processes that enable ownership by those for whom the policy is developed can be sadly lacking, leading to a sense of alienation. Interestingly, in the past five years, my observation is that policymakers increasingly seek to collaborate with a range of perspectives. This is encouraging. The challenge, however, is how to reach those experiencing

Policy research and advocacy for change 219 disadvantage or vulnerability who so often miss out. Avoiding paternalism and the prevailing Western culture can occur if there is a deliberate effort to bring together diverse expertise and lived experience of the problem being exposed. Also, a willingness to incorporate multiple goals, the trialling programs, gathering evidence and recalibrating things when they are found not to be working is good reflective practice. Laws should provide certainty and consistency for the public but if these laws are unduly harsh in their impact on certain sections of the community, cause harm, are unnavigable, or outmoded or otherwise problematic they need to be recalibrated and in a way that is shaped by lived experience. This policy research and submission writing skill set is important for the legal professionals’ oath of office to be meaningful so as to protect the confidence in the legal system. It was also acknowledged as critical for lawyers to engage in such systemic reform by the Productivity Commission.xii

Notes i ii iii iv v vi vii viii ix

x xi xii

Medhora (2019). Manthorpe (2019). Parliamentary Community Affairs Committee (2017). Mato v The Commonwealth of Australia (2019). Newman, Biedrzycki, Baum (2010); Soltan (2016). Bradshaw, Howard (2017). Curran (2014a). Australian Competition and Consumer Commission v AGL Sales Pty Ltd (2013). Note: the author acknowledges D Nelthrope who came up with the ‘Bulk debt negotiation’ idea, which got funding during the author’s time as Director of the West Heidelberg Community Legal Service. Also, the hard work of the student volunteer, Liz, on a law externship placement from the University of Melbourne. State of Victoria (2015), Clauses 31–39. Parliament of Australia (2019). Submission 87, Inquiry into the Adequacy of Newstart and Related Payments and Alternative Mechanisms to Determine the Level of Income Support Payments in Australia (Newstart Inquiry). Australian Government Productivity Commission (2014b), Recommendations 21.1–21.9.

13 Interdisciplinary learning in higher education

This chapter builds on Chapter 8, which explored interdisciplinary learning and interdisciplinary practice opportunities for law, health and alliedhealth students, educators and their service partners. Currently, many professionals work together in a multidisciplinary practice (MDP), such as doctors, nurses, podiatrists, occupational therapists and social workers. Often, as noted in Chapters 6 and 8, it is the justice component that is not common. Also, often absent is the earlier integration of interdisciplinary learning and practice opportunities in the higher educational settings to better prepare future practitioners. This chapter’s focus is on the higher educational setting. This setting will have to navigate ethical issues that arise in interdisciplinary practice (this can also include the mandatory reporting of child abuse, which bind many non-­ legal disciplines, but where lawyers are exempt). The chapter provides some practical workarounds for the implementation of interdisciplinary student clinic (IDSC) and some ideas for legal clinical supervisors and law teachers. The chapter also provides practical guidance for students of different disciplines, their supervisors and cross-departmental work to further break down barriers between professionals. Although ethical hurdles (such as ‘client confidentiality’ and ‘conflict of interest’) exist, they are possible to overcome through facilitating dialogue, training and ‘collaboration’ across different disciplines. One sure way these ethical hurdles can be overcome is through the shared commitment in practice to help and assist clients/ patients with problems (as discussed in Chapter 10) and improve the reach to people who may not be seeking legal help but who have significant and compounding legal problems. The shared objective of making a concerted effort, through this interdisciplinary setting, to jointly learn about and address the SDH both in education and practice has been a useful motivator for successful navigation to get to this destination.i Although this chapter’s focus is on interdisciplinary educational practice, it correlates with the issues that would be experienced in the operation of a MDP, so this chapter is also relevant to readers from MDP. It also builds on my existing work on ethics and practical navigations in MDPsii by examining it in the interdisciplinary educational practice context.

Interdisciplinary learning 221

The practical side of interdisciplinary practice in educational settings Some ‘clinical legal education clinics’ are run by the university with onsite academic supervisors/practitioners. Other clinics are run by the university but are situated with a partner agency and may have a blend of either agency clinical supervisors and academic supervisors or both. This will depend on the higher education arrangements. Another model is a local agency hosts clinical students and has its own on-staff clinical supervisors who might liaise with the university academic staff (sometimes in exchange for a fee paid to the host by the university). Student and supervisor preparation In developing interdisciplinary practice and learning within higher education, it is critical that students, academic supervisors or clinical supervisors involved, understand the paradigms of how each different discipline works, what resources will be needed to work together and who is responsible for creating/delivering/supplying these resources. This is critical so that the systems and staffing are adequate to support the interdisciplinary model. It is also important to identify which different disciplines are a good fit to work together. This can be easier to understand if services are already involved in an established MDP and where a justice component is needed. It is important that the scope of the work and any parameters are identified clearly amongst all parties to avert misunderstandings. The partner agency may also have some critical input into contribution of resources and the discussions. In IDSCs, this includes management systems.iii Another essential part of any interdisciplinary practice preparation is to be clear on which client group you are targeting for your service. It is a good idea to not cast the net too wide but to focus on particular client cohort so that the interdisciplinary care team does not overreach itself and can deliver on its promises. These plans may need to be tweaked depending on what the service actually looks like in operation. It is critical that everyone is clear on the services that will be offered by each discipline. For example, physiotherapists and podiatrists will be working within the framework of improving the social determinants of health (SDH). Lawyers may be looking to improve access to justice by reaching vulnerable or disadvantaged groups. What is the interdisciplinary clinic and why is it important? Nursing, psychology and medicine often run their student clinics discipline specific. Law has its own clinics. What the IDSC does is bring all of them together to deliver joint legal, health and allied-health services for clients/patients as appropriate so that pathways for patients and clients are made easier and reach

222  Practical skills for new approaches the most vulnerable clients. Educationally, as discussed in Chapter 9, the aim is to increase each discipline’s knowledge of what the other disciplines offer. The different aims/objectives of each disciplinary team can be addressed/ included by identifying how each service can cross-promote other services to their clients. This might ensure earlier intervention and prevention of legal, health and social matters and the opportunity for clients to access legal services (at the same time as they are accessing other services). It is really critical that preparation work be done around ensuring that all of the disciplines in the interdisciplinary practice or clinic that is being established have the same objectives. This means that they all have a similar vision, commitment and aim even though their professional obligations may differ. It is suggested that the elements described in Chapters 4 and 5 around legal empowerment and client-centred practice may be a starting point in these discussions. This will bring to the surface differences of view or perspectives the disciplines might hold. It is critical that these discussions occur amongst the academic staff, host partner/agency and the clinical supervisors prior to the enlistment of students. If the clinical supervisors and supervising academic staff are not clear on the different aims and objectives of the interdisciplinary practices, then this makes it more confusing for students coming on board to provide service in an interdisciplinary way. Where the IDSC is in start-up phase, time will need to be taken to identify not just the client cohort, but the disciplines available and willing within the university are a good fit to the client cohort. In some examples of IDSC, the health and allied-health students are already providing services into an agency and the justice dimension was added at a later stage. It is important to be mindful of such pre-existing relationships. This was the case in UniSA’s IDSC.iv Examples of only selecting services that provide the right fit for the clients included the Bendigo health-justice partnership (HJP) at Kangaroo Flat (see Chapter 6), which was a specific demographic area with a high rate of public housing and the service targeted parents with children who have a disability. IMCL HJP (see Chapter 6) focused its initial program within the well-­ being team (social workers) at the Women in the Sexual Assault Unit with a specific focus on assisting women experiencing family violence (FV). The Justice Connect has a HJP (see Appendix 3), with a focus on elder abuse, so its cohort was the elderly. The interdisciplinary student health-­justice student clinic (IDSHJC) that I have been advising at UniSA (see Chapter 8) has as its focus homeless clients who present at the ODHC program at the Salvation Army. This IDSHJC engages law students alongside podiatry and physiotherapy students who were already offering a clinic at Open Door Health Clinic (ODHC) previous to the law school clinic joining them. What all of these clinics have in common is that they try to provide generalist legal services as they know that their clients are from vulnerable cohorts and will often have multiple legal problems. This averts having to refer clients to other services, if they have more than one legal problem, thus avoiding a referral roundabout, enabling a more holistic service. For

Interdisciplinary learning 223 this reason, it can also be useful, for IDSCs helping the poor and disadvantaged, to have a relationship with pro bono services with specialised expertise so that when matters arise that need specialist knowledge, the clinic can gain access to this specialist advice and if necessary the clinical students can support the client along the way to help the client engage with the pro bono lawyer or other discipline experts, such as mental health services. In my experience as a clinical supervisor, it is also important to spend considerable time (given many of our students have led privileged lives and had the opportunity of going to university) familiarising students with the context within which their clients live. This might include ramifications of exclusion, low literacy and/or numeracy, the impacts of poverty, the complications of different cultural backgrounds and norms, the impact of ‘trauma’, implications of poor health and so on. Engaging students in challenging environments, without orientation, is neither fair on students nor the clients/patients attending the interdisciplinary practice. Tools and training The development of practice tools, prompts and training modules will be needed. One suggestion is to utilise students’ work in the initial run, by asking them to develop training models after doing the research themselves. This can then be built into assessment tasks. Another suggestion is to get past clinical students involved. The newer students can video and interview past clinical students (on their mobile phones) about their experiences in an interdisciplinary practice or clinic, sharing their stories and perspectives on some of the challenges. This is a good way of inducting new students into any given interdisciplinary practice program and it can be re-used for later semester IDSC programs with the consent of participating students. Additionally, enlisting clinical students in the clinic to research the law to find simple legal solutions and checklists suitable for training is helpful. I would ask them to prepare the power points and a training plan with activities. I would then give them feedback on their training plan. Depending on the topic, I would either deliver the training alongside my clinical students and other disciplines or have students deliver the training on their own while I observed. Note: de-identification of clients is essential in any of these materials and in any offsite teaching. Developing the interdisciplinary care team Developing students, clinicians and collaborative personnel as a care team, rather than in isolation, is one of the key challenges for any IDSC. Practical matters will need to be taught, such as understanding the referral requirements of each discipline; how to complete official paperwork, meeting with intake and reception staff and building good relationships with them,

224  Practical skills for new approaches as they will be the referral point for many clients/patients. This practical training for the clinical students familiarises them in doing this intake and referral process (information gathering), which is a reality in future MDP practice. Such practical training in differing processes of each discipline applies as equally to the clinical supervisors as it does to students. By students knowing the boundaries of their expertise and understanding the roles of each other within those boundaries is also important. The clinical students need to be encouraged within their interdisciplinary setting to be visible and sociable with students of different disciplines and their supervising staff. Icebreaker activities may help students meet and converse with their new colleagues. This gives all of the clinical students and supervision academic staff or clinical supervisors an opportunity to interact in an informal social setting and to know each other. This will later make referrals between disciplines easier and more likely. Barriers and stereotypes that different disciplines may have of each other can also exist among students. Humility, respect and active listening skills ought to be reinforced before launching into any interdisciplinary practice or clinic so that collegiality and collaboration can develop and thrive (see Chapter 10). Promotion of the interdisciplinary clinic Promotion of the clinic and its services to the community and frontline staff, such as the receptionists in the clinic, cannot be underestimated and should be done routinely. This might include a leaflet handed to clients/ patients at the reception desk, or to clients and community members as they enter the building; it might be the provision of such leaflets on public housing estates or at the local social security office. I routinely dropped off leaflets at social service agencies in my area and would always have a discussion with the receptionists about what the leaflet contained and what services were offered. After these drop-offs, there would often be a peak in new clients turning to the service for help. You can utilise clinical students to create their own tailored cartoons, posters, simple video clips or social-media messaging, but know that digital resources are out of reach of many clients, although their professional supports can use them for marketing to clients, patients and within their own team. Clinical students or law students from other courses in the higher education facility can also be deployed to develop such resources as part of their learning. Explaining what you do, who you have helped and how you have helped them can all assist in building the profile of your practice. This has the benefit of involving students in not only creative endeavour but also in applying their legal knowledge using plain English to communicate legal and non-legal information. Note: if the students are borrowing materials from other sources, they will need to get permission from the copyright owner before they can repurpose the content. What is important is that you can simply explain what your service can do to help them and the sorts of situations in which you can help. For

Interdisciplinary learning 225 example: ‘Are you being chased by debt collectors?’, ‘Are you being harassed for a debt you don’t owe?’ and ‘This may be unlawful, have a look at this webpage, which will tell you what your rights are’. It is important to never take the support of the higher educational facility for granted. Clinicians and academic supervisors will need to regularly demonstrate the impact and importance of their work to the higher education facility to demonstrate that it is an important investment and that it leads to student outcomes. A lot of universities worldwide are now being required by government (as part of their accountabilities) to demonstrate the employability of their students and graduates. This is critical leverage for innovative clinical programs such as an IDSC as the practical skills they develop in their IDSC training prepare them for future jobs. In my experience, these conversations about the benefits of clinics for the students need to be occurring routinely within faculties, central university management and at dean and chancellor level. I make it a habit at the end of each semester to report on the value of the clinic to either my dean or head of school. This can be done by using de-identified case studies around the breakthroughs in a clinic, its work with clients and the challenging learning outcomes that students were able to reflect on in their evaluations and feedback on the course. Similarly, it is important to get into a routine reporting phase of the work of your IDSC with your partner agency and not take their support of your work for granted. Case studies about breakthroughs in the clinic can be used to report to their board and/or to the leaders of critical care teams within the organisation. It is important to demonstrate the ongoing value of their support to the service. This is especially the case when not-for-profit organisations go through austerity phases with losses to their funding, losses to parts of their programs or feel that their resources are being stripped. Being able to report and demonstrate that by having students working together in an interdisciplinary way not only benefits the clients/patients of the partner agency but also enhances and energises the capacity of the staff to deliver services in a broader way. In some of the clinical/legal training programs, I have taught or supervised students in, it has often been the case that the partner agency has recruited students from the clinic because they have been impressed with their performance during clinical placement. This ability to act as a feeder for the recruitment of future professional staff for the partner agency is attractive to them. This is because they know that students are already grounded in good practical skills and they understand the values and aims of the partner agency. This advantage to the partner agency, as a reservoir of future staff, can also be something to report back to the higher education facility. Protocols, policies, procedures and regulatory frameworks Being mindful of each discipline’s funding arrangements, privacy laws, policies, procedures and accountabilities may also be something to explore

226  Practical skills for new approaches early on. This can include issues around public liability insurance and conditions of accreditation. One of the complications can be that arrangements for funding do not necessarily reflect intentions to work in an interdisciplinary way. Government departments that arrange funding often work in silos despite the rhetoric around joined-up services. None of these things need be fatal to an interdisciplinary practice, it is more about a consciousness and appreciation of the context in which other professions need to operate that will lead to workarounds that can facilitate and accommodate. Again, the main point is to have ongoing conversations so that each discipline is aware of the constraints and leniencies of the other. Gyorki’sv report around breaking down silos is pertinent. She notes that Pro Bono Law Ontario (PBLO) at the SickKids Hospital in Canada has clinical medical and law students onsite with the clinical law students supporting patients to complete paperwork for social welfare and social support payments. At Duke University in North Carolina, supervisors observe students interacting with patients through the use of (consensual) videos from interview rooms. Taking time to develop protocols for referrals, intake, assessment, processing, sharing information, privacy, security, confidentiality and triggers to pre-empt likely problems and problem-solve in advance is important to work out how these will be managed.vi Every type of practice will differ from the personnel involved to the particular exigencies that need to be covered for different client groups, for example, children with intellectual disabilities, victims of FV, the homeless, elderly or people with multiple/ complex needs that can exist within one client cohort.

Duties Confidentiality When engaging in interdisciplinary work, partners should be aware of the different reporting requirements that different disciplines might have. For example, in Australia, legislation requires most professions to mandatorily report any indication of a child’s risk to sexual or physical abuse to the relevant authorities. Note that one profession exempt from this is the legal profession. As indicated in Chapter 6 on MDPs, this may mean that a social worker or teacher may feel obliged to report child abuse if they hear reference to it in a legal interview. This is tricky territory for an interdisciplinary practice to navigate. The lawyers need to be clear about how they handle such situations. This may include having separate interviews with the client and only including other professional staff to discuss specific matters pertaining to their help. Or, suspending a client interview when it looks like confidential information might be about to be shared. The lawyer can then see the client independently and provide advice in relation to their matter. Separately, the

Interdisciplinary learning 227 social worker or teacher can interact with the child or parent and, if issues arise that trigger mandatory reporting, honour their legal obligations. Client confidentiality, conflict checks and duty of loyalty ‘Conflict of interest’ (as described in Chapter 9) is an ongoing process that should be ascertained at intake, post-interview and throughout the advisory process; as over time, different parties may be involved. This becomes especially relevant when in assisting one client, you may have clinical students of different disciplines working together holistically for other clients and their families. This increases the chance of conflict of interest, and so all parties need to be vigilant so that clients are not precluded from receiving help. The development of intake tools that pre-empt the risk of conflict is invaluable. One way is to only provide general advice at case management meetings with other disciplines. Then the lawyer or law clinical student can leave the meeting prior to any specifics being discussed. Both lawyers and non-legal professionals need to be trained to develop a method of signalling when a conversation may need to take a different direction. This ensures that clients can gain access to justice without disclosure being inadvertently made that would preclude the lawyer from helping, as the lawyers’ ‘duty of loyalty’ to clients means they cannot act for either client once they are privy to certain information. So, great care is needed. ‘Vigilance’, careful consideration of the use of information and its appropriateness are constants in interdisciplinary work; however, this does not make working collaboratively impossible. Different disciplines can work alongside each other to achieve the best outcomes for their clients, mindful of ‘client confidentiality’ and the ‘duty of loyalty’ the lawyer has to their client. There are other murky areas, such as not advising on medical negligence in relation to the partner agency, or a complaint about the poor conduct of someone who is part of the interdisciplinary care team. Clearly this would represent a conflict of interest. For instance, a conflict between the interest of the client in pursuing a remedy against the non-legal partner agency, and the personal interest of the lawyer in preserving multidisciplinary (MD) working relationships in that partner agency. It would be incumbent on any lawyer in such a situation to refer the client to another agency or a private law firm with expertise in medical negligence. Again, in such a situation, if it arose in a client confidential situation in a client interview with a lawyer, the lawyer would have a duty of confidentiality not to tip off the relevant non-legal health professional or the interdisciplinary partner agency. This would be a breach of client–patient confidentiality by the lawyer. These examples serve to illustrate the importance in any interdisciplinary clinic or practice of good training around ethical hurdles and how these operate and intersect between the organisations that are working in collaboration for the client’s best interests.

228  Practical skills for new approaches Document privacy and security In my experience working on MDPs, different models exist to protect document privacy and security. When I worked at a community health centre, their files were kept in a completely different location from the legal service files. Although the staff work together, the holding of documents was maintained according to the discipline and according to the rules guarding privacy and security that operated within that discipline. The legal service had its own separate offices in the building with a locked room and a locked compactum in which all files were kept. It had not yet gone onto a virtual file system and so this was not relevant. In another MDP I worked at more recently, all of the hard copy documents and virtual files for each discipline were stored separately and also on separate IT systems, which other disciplines could not access. Again, although software being used is the same, it was kept under a different and secure arrangement to protect privacy and the different disciplines could not access information from each other. Firewalls were also in place. In Australia, the rulings around the establishment of ‘Chinese walls’ are very strict. This is important in order to protect client confidentiality. This, however, does not preclude effective MDP as long as care and thoughtful processes that enable separation and preclude access are in place. Protecting client–legal privilege Medical files can be subpoenaed in a court process as can other health and allied-health material. Therefore, great care is needed in giving legal advice (alongside other disciplines or with other disciplines in attendance) so that it does not compromise the clients’ right to confidentiality in such cases. This could prejudice a client’s situation were a matter to later go to court. Also the lawyer would be in breach of their client–legal privilege obligations. This is the fundamental underpinning of ‘the rule of law’ that a client should be able to seek frank legal advice about their legal position and options without risk of disclosure of the information they share with a lawyer. If clients were not able to do this, they may be reticent to seek legal advice. If the lawyer does not take care to circumscribe what is discussed, and at what times, then a court may hold that the client has waived their client–legal privilege. When you work in a MDP with disciplines on a regular basis who have been trained and understand the implications of breach of client–legal privilege, then not only do they trust you, but you will also trust them. They will have participated in ethics training about both their own profession’s ethics and your legal ethics, and so you can have confidence that their focus is on your joint client and doing the right thing by them. Third-party consents As noted in Chapter 8, if it is appropriate for a third party to attend a legal interview, it is wisest to gain their consent, which includes them signing a

Interdisciplinary learning 229 non-disclosure agreement. It might be that such a document can contain areas where the other discipline sits in with the law discipline and conducts a joint health-justice assessment. This might be to share, for example, client health contexts, complications and information around treatment and so on. In my experience, this can be navigated through careful thought, discussion and dialogue between the disciplines about the specific roles in relation to a client and a frank and honest discussion with the client themselves. It need not be difficult if the disciplines involved are cognisant. A cautionary tale This cautionary tale, although not in an interdisciplinary context, alerts readers to the vagaries of third-party consent. This was a big lesson for both myself and my clinical student. The client, a young mother, was very distressed about the removal of her child by the department. The main basis for the removal was around the mother having spent time as an adolescent in care; therefore, she would be more likely to be of risk to her child. Having explained to both the client and the social worker (who was from a separate agency) separately regarding the risk of having a social worker present in the legal interview (including the implications for client–legal privilege), the client was adamant that she needed the social worker as support. We secured a signed third-party consent in writing not to disclose from the social worker. During a break in the interview (as the client was overwhelmed and distressed), the social worker, who had taken a cigarette break at the rear of the building, was on the phone to the department discussing the legal interview. She felt that her obligation was to her agency’s funder, the government department in the care and protection case and that this trumped her obligation to the client. My clinical student overheard the social worker outlining the measures that the client was going to take to assert her rights as a parent. She conveyed the advice that had been provided to the client in the legal interview, about her rights and the flaws in the department’s arguments and their lack of evidence. The clinical student reported overhearing this conversation immediately to me (sensing it was wrong) and while the social worker was still on the phone to the department. She was then asked by me to go to the social worker and tell her to end the call and to wait in reception room, as we would need to talk to her. The client was called into a separate interview. We explained the events that had transpired in the break. The client was furious with the social worker and instructed us to remove her from the rest of the interview and to take action to protect her interests. The clinical student quickly researched the ethical obligations of the social worker and then contacted the legal ethics support line of the law society about what to do. I dealt with the social worker in a separate room. Our first step after the separate interviews was to contact the children’s court and alert them to the fact that a social worker had breached client–legal privilege. We argued that the department’s case was fully compromised, as

230  Practical skills for new approaches a result of the conversation that had occurred between the department and the social worker. We then contacted the chief executive of the agency from which this social worker was employed. We also noted that she had signed a third-party consent. The chief executive agreed that it should be the subject of disciplinary action and professional development. We then contacted the department and spoke to the legal office advising them there had been a clear breach of our client’s legal privilege. We made it clear that the department could not rely on any material that had been disclosed. We advised that we had notified the court of the breach in order to protect the client’s interests. Without any further detail on what occurred, suffice it to say that the department was forced to withdraw its case against the client. After this case, I became vigilant about what I would discuss with the client if a support person was present. I would streamline the conversation or ask the support person to leave the room when necessary. If there was detailed advice, I wished to give my client, I would do so at a later point over the phone or wait until a social worker had left the room. Safety planning Home visits are often undertaken by health professionals or allied-health professionals that the interdisciplinary clinic will have working alongside. Lawyers could learn from this practice. Many people are frail, elderly, suffer from chronic conditions, have a disability or for other reasons are unable to leave their home. Being isolated from the help of a legal professional because they need to attend the lawyer’s offices is problematic. One of the complications in a clinical context is university requirement about students being offsite from where the legal service or clinic is operating. However, universities usually have a flexible public liability framework, which if certain protections are in place, may be operational. For example, this may include the provision for a student to be accompanied by another clinical law student or clinical supervisor during home visits. The other possibility in an interdisciplinary clinic context is for the legal student and the health or an allied-health student to conduct the assessment jointly. This can be very helpful where someone is unwell and wants to make a will or apply for a social security benefit. I have attended a home visit with an occupational therapist and a law student to assess whether or not the elderly client was being unduly influenced by their adult child in the making of a will. Given that in an IDSC home visits will be likely; so, to reach the most disadvantaged of clients; thought should be given in discussion with your partner agency and the university about their policies and procedures for offsite visits. My golden rule in practice was, ‘if in doubt, don’t’. It will of course depend on the type of case, for example, a family law, child abuse issue or a personal injuries claim. Another issue is whether a lawyer can enter into a legally binding contract of retainer with a child under 18. Also, the

Interdisciplinary learning 231 appropriateness of taking instructions from a child in the absence of an adult would also depend on the age and maturity of the child. The Gillick test vii is often used in medical assessments of children. This assesses whether the child has sufficient maturity and intelligence to understand the nature and implications of that treatment. The use of this test is a matter of lively debate both in medical and legal circles. McLean,viii for example, raises concern about the test’s application and has noted that children may be silent about their wishes as they are intimidated by their parents’ presence, or unaware they could give or refuse consent themselves. It may be appropriate to ask parents to leave and to speak to the child alone. Alternatively, Gillick competence may be discussed with children and parents together. Burtonix also outlines some ethical and human rights reservations around applying the Gillick test where a young person or child’s confidentiality may need protection, for example, matters of sexual identity, where the child understands and can deal with advice and implications. It is unwise to invite a caseworker who may not understand the nature of ‘client–legal privilege’ present to a client interview. As noted in Chapter 9, I would make sure, prior to any legal interview (were a caseworker might be present from a different discipline) that the client is fully aware of the implications of having that person sitting on the interview. This includes checking that the client has fully understand the implications by asking them to repeat their understanding in their own words. I also secure a signed consent from the caseworker to not disclose on the basis that the interview is for the primary purpose of legal advice. If I am still not confident about the case worker, I interview the client separately and explain why I feel uncomfortable. One never fully knows the power dynamic between a client and their support worker, and so great care is needed. This discourse highlights that planning to keep a child safe from abuse or FV is a vexed area and that careful thought and referral to ethical experts/ and your ‘community of practice’ (noting client confidentiality) for guidance is necessary. Mandatory reporting In the vexed area of mandatory reporting of child abuse, discussed above in ‘Confidentiality’, I would avoid including a non-legal professional in a client meeting if a controversial topic might be exposed, as it would require them to report the situation. Instead, I would separately interview the client to ensure we had a safety plan in place, or counsel them around their options and the apparent risks. The other discipline, in the capacity of their discipline, would in a separate interview, work/advise as they normally do with the client/patient in line with their obligations. It is merely a matter of explaining to the non-legal personnel, if they alert you to the possibility of a mandatory reporting issue, that it is unwise for them to attend the legal consultation.

232  Practical skills for new approaches In these situations, if it is a maternal and child health nurse, they will often be the only person that the client is engaging with. If they were to stop working with the client, then the client may be in danger of being isolated from legal help, and exposed to further abuse (that is, if FV is involved). The lawyer can have a role in developing a safety plan separately to the work of the maternal and child health nurse. The client and nurse can then proceed to continue with the appointment secure in the knowledge that any concerns around FV are being dealt with by the lawyer. By way of example, if a maternal and child health nurse working with a cohort of young parents and disadvantaged young people (a group often more likely to be exposed to FV or some form of child abuse) can refer them on to a legal professional early, and as a matter-of-course, then the legal component of the service can advise about their rights and choices. Then the maternal and child health nurse can work with the group in the knowledge that a safety plan has been put in place, and that the correct advice has been given in relation to FV or child abuse.

Debrief It is important to have opportunities for debrief in the early stages of setting up an interdisciplinary clinical practice so that issues can be identified early, and workarounds found. It is important to note that this is a new way of working and learning, and not easy as it is seen as time consuming, which is challenging for students and supervisors alike. In a debrief, patient/client rights and the acknowledgement of different disciplines’ ethical duties can all be canvassed. Improvements to practice can be ongoing and needs for further support identified through the debrief process. Legal health checks and assessment tools It is my suggestion that any one discipline wants to engage in an interdisciplinary clinic or practice look to the partner and other members of the practice to see what intake tools are already in place, so to see if your questions can be incorporated into an existing framework. In Australia, HJPs use legal health checks to assist health professionals to identify the range of problems for which legal help can be possible. This overcomes some of the misunderstandings about the narrowness of the perceptions on the scope of what law can help with (see Chapter 1) that can limit people from getting legal help when it is available. In the developmental days of HJPs, health agencies told me that when asked to use these legal checks they were resistant. When they asked me to scrutinise some of the tools, many were convoluted, complex and impractical. A range of disciplines have already developed effective legal checks for example family violence services, which can be adapted for the HJP purpose. What is critical is that this extra layer of checks not adds unnecessary burden to the work

Interdisciplinary learning 233 of other disciplines who may also conduct checks for discipline-­specific purposes or a history of FV. In the United States, the HJP network has developed an IHELP tool.x Health Justice Australiaxi has also developed a start-up toolkit and Queensland Public Interest Law Clearing House (QPILCH)xii has also developed an effective assessment tool. In Canada, the Halton Community Legal Servicesxiii has developed its own evaluated legal health check tools and Community Advocacy & Legal Centre (CALC) has a legal health checklist.xiv PBLO at SickKids Hospital, paediatricians, has developed a poverty screening tool.xv Referral pathways Reaching into communities, not previously assisted by legal services, through working with non-legal agencies will take time. If referrals to the legal component of the interdisciplinary clinic are slow, it is not realistic to reduce hours or close shop but to offer non-legal professionals from other disciplines, legal secondary consultations (LSCs). You can then reach clients who may be apprehensive about seeing a lawyer or too overwhelmed. Being visible, socialising in the lunchroom (see Chapter 6), chatting to people who are likely to refer clients/patients is key to making your service visible. Being prepared to sit in the waiting room with clients and engage in informal conversation with staff from other disciplines will help build these referrals and confidence in people making the first steps towards an appointment. In time, this will lead to referrals and client caseloads. Also, a lot of people have great trepidation in seeking help from lawyers or may not be aware that their problems are capable of a legal solution. Another way of streamlining a referral process is to allow for ‘warm referrals’. This is where the client is supported into the referral by either a trusted intermediary or support person, or a conversation occurring, after consent has been received. The person making the referral talks directly to the referring agency to facilitate an appointment, and in turn the client feels supported. It is my practice as a lawyer, to spend time informally chatting to clients in the waiting room (and encourage my students to do so). I do not disclose that I am a lawyer, but ask a few questions, and inevitably I find that people disclose problems with a justice dimension, not knowing that lawyers can help. An example of this was in 2019, when I was chatting to an elderly woman in a HJP as she waited for her physiotherapy appointment. I discovered that she was about to be evicted from her rental premises. I suggested she chat to the legal clinic, ‘oh no I don’t like lawyers’, she said. She was able to share with me the documentation that she carried around with her everywhere. I was able to quickly make an assessment; it was evident that the proper procedures had not been followed by the relevant authorities. Then, with the support of the partners’ administration staff, I suggested she have chat to the student lawyers in the IDSC, which she then did quite enthusiastically.

234  Practical skills for new approaches Clear, simple and transparent referral pathways are critical. Unless the process is clear, understandable and not cumbersome, it is unlikely to be used if non-legal professionals are busy. Some agencies have existing online processes that can facilitate quick turnaround and information gathering. These can be utilised to develop common referral pathways simplifying the bureaucratic process. The use of online forms that can be easily completed and shared is also useful. Of course, client/patient consent will be a critical component of this. For lawyers, they will not be familiar with some of the detailed assessment and intake procedures other non-legal professionals are required to undertake. It is important to respect the referral and intake protocols of other agencies you need to refer your clients to, as it is likely that these are required by the agency’s funding bodies. Secondary consultations The use of secondary consultants (SCs) (see Chapter 6) can assist in encouraging referral pathways if the non-legal professionals have had a positive experience of the clinical supervisor/lawyer and their clinical students during the SC. This is also the case if they are accustomed to seeking SCs from the non-legal service or IDSC in general. It was common when I was a clinical supervisor in a HJP, for me to get a call from a doctor or a nurse asking if they could come to my office and bring a patient with them. Obviously, this is not always going to be possible if you have a lot of appointments. However, building into the practice the flexibility and preparedness to allow this to occur and making time for such unexpected consultations has huge benefits, particularly if the client being referred is homeless or has a history to not follow through. It also demonstrates to the non-legal professional, such as the doctor, that you will make time for their patients. Such facilitative practices are important in an interdisciplinary context so to build trust and confidence in referral. Another suggestion is to demonstrate how the legal assistance might simplify the non-legal professional’s job. I found there was often scepticism from doctors particularly about involving lawyers in their patients’ affairs. Doctors tend to have short consultations and quick turnarounds. The 10-minute sessions under government guidelines and health funding arrangements can be limiting. For the lawyers to be able to facilitate their ability to sort out a patient’s issues can be resolved through a quick SC before or after their patient appointment might help. Another useful service a clinical legal education student can provide is the provision of a template form for the doctor to fill out. This can be provided by the law student and may be a much more effective use of the doctor’s time and may lead to positive outcomes. An example of this was, in the HJP where I was a clinical supervisor, doctors were repeatedly required to provide letters to the government for patients every three months stating that patients with permanent ongoing disabilities still had them, in order for social supports to

Interdisciplinary learning 235 continue. Students researched the requirement and drafted a template letter for the doctors, where all they needed to do was incorporate the client’s specific medical condition, and the criterion was already outlined. This made the doctor’s job much quicker and easier and they realised that both students and lawyers could value add. These are simple ways that students can build trust. Another example of support of a non-legal professional through SC is having a quick chat through SC to a psychologist who has to give evidence or write a report for a court on behalf of a client/patient. I was able to take the psychologist through the criterion that the judicial officer needed to consider before they could make a finding in favour of the client/patient. The psychologist then, knowing very specifically what the judge needed to take into account, would have clarity about what she needed to include in the report about the patient’s condition by having the relevant criteria to hand. The psychologists would say that this gave them peace of mind and that they felt much better able to write an appropriate report or give evidence with less trepidation and anxiety. In over two decades of providing SCs, the last six years of studying them have shown a sophistication with which non-legal professionals now know their limitations, and know to check in if the situation or circumstances slightly different or complex before acting on legal information or legal advice that have been if they have been previously given. Most non-legal professionals are very attuned to the limits of their own legal expertise and will defer to the lawyer through the SC process rather than give advice that they are uncertain about. This is verified in a number of empirical studies undertaken exploring how SCs are used at a later time to assist other clients or members of their leadership team.xvi Reciprocal training ‘Reciprocal training’ is where lawyers train non-legal professionals in legal issues, and other professionals reciprocate by training lawyers in regard to relevant aspects of their discipline. One practice I developed, after conducting ‘professional development’ alongside non-legal professionals, was to offer blocked legal appointments for clients after any training offered. This prevented non-legal professional raising their specific case during training, where they might be at risk of compromising their own confidentiality or increase the chance of a later conflict of interest, which might preclude them or other parties from gaining help. Participants in the training could then avail themselves of these appointments by making them for later in the week if they felt that they had identified a patient that might need assistance. Many of the non-legal professional participants were not aware that a client problem could have a legal solution or the possibility of a legal solution prior to the training. I could say to the person in the training, ‘this is sounding very specific, I’m happy to see you after the training to advise in person’.

236  Practical skills for new approaches Having lawyers onsite who can do on-spot training at staff meetings, team meetings, joint professional development days, during rounds, in the induction of new staff, etc., leads to an increase in referrals and the relationships are enhanced breaking down the poor stereotypes discussed in Chapter 5. But similarly, having students from different disciplines and their clinical or academic supervisors, the exchanges and learning is equally valuable. An example of this collaboration was attending staff meeting with my students, where the impacts of people on psychotropic medication were discussed. This cross-learning reshaped how we worked with this client group and clarified any misconceptions we previously held about the subject matter. Enlisting students collectively in their mixed disciplines, or on a specific topic, to do background research and attend these cross-learning sessions and to participate in them is a wonderful experience for students. Some clinical students have never attended a staff meeting in their lives, so including them in this sort of activity gives them some further on-the-job training and if they had come prepared (having done research), I would often defer to them which they also enjoy and find empowering. Chapter 11 discusses the approaches to such training that need to be considered to make it effective. This can also be a student offering in IDSCs. Initially, this training may be simple seeking to demonstrate the sorts of problems that might be capable of a legal solution. This information can assist other disciplines in being able to identify the sorts of issues that their clients/patients have that a lawyer can assist with. This can form part of the student assessment with a component for reflection and feedback. Over time, the topics might become more sophisticated for members of staff who have already had some initial training. Given high staff turnover in some workplace’s reiteration and repetition of some of these training sessions may be useful for new staff or those who missed the original session. Topics can be varied but should reflect the interests or imperatives of the partner and other disciplines in attendance and should also reflect the sorts of problems that clients are presenting with. Topics that assist non-legal professionals juggling their ethical responsibilities and knowing the parameters around their responsibilities can also be useful in assisting them to make the right decisions on behalf of their patients/clients. Client consent and feedback to interdisciplinary teams One of the areas that Gyorkixvii reports on is that legal professionals have to be very careful that they do not discuss their client’s case openly with others. She notes that other professionals are accustomed to being open about client problems and issues as they work jointly together to meet their duty of care to their client. This can set up a pressure point as lawyers can be seen as being uncooperative or not working as a team by not sharing information about joint clients.

Interdisciplinary learning 237 Strategies to avoid confidentiality issues Some strategies for managing client confidentiality include: • •

• • •

Secure confidentiality waivers so that organisations within the IDSC or practice can discuss the needs of the client in a MD context. At the start of the service explaining the nature of the MDP and seek the client’s consent for the different providers to be able to talk to each other about their case or set limits around the nature of any discussions between the disciplines. Consider not involving the lawyer in case planning so to reduce their conflict of interest and not jeopardise duty of loyalty to the client.xviii Gain trust with your interdisciplinary partners by explaining your legal obligations to the client; dos and don’ts, client permission, etc. Clarify the issues for lawyers in working with other disciplines.

Client consent Non-legal colleagues will naturally want updates and feedback as to what is happening with the clients/patients that they refer and continuing to assist with their non-legal issues. For this reason, it might seem strange to other disciplines that the legal profession needs to keep client information private, even from collaborators in the client’s care team. A workaround is for the lawyer/law student to gain clear written client consent about which professionals the lawyer can talk to and about what. This may also facilitate a feedback loop. Working with interdisciplinary teams Being clear and honest about the limitations to why the legal profession cannot disclose client information and confidence goes part of the way to reducing disappointment in non-legal team members. They need to learn to adjust to the limitations of information sharing when there is a justice component to an interdisciplinary team. It is possible for the legal professional to provide general feedback, for example, the sorts of things the service is assisting with and how the referral process is working in general, and what breakthroughs are occurring without specifically disclosing client confidential information or identifying information.

Conclusion Allowing time to develop, learn and build relationships with opportunities for interdisciplinary debrief and reflective practice is critical. Over time, different disciplines in an interdisciplinary clinic or practice will not hesitate in talking to each other across disciplinary lines. It

238  Practical skills for new approaches can be done so seamlessly and effortlessly; having worked through all the safeguards mentioned in this chapter, with a holistic and client-focussed brief. Client care, client autonomy and self-determination, and seamless wraparound services are an indication that integration is occurring. It suggests that partnerships have been bedded down. This is not a time for complacency as the relationships to be sustainable, need to be continually discussed, debriefs need to be regular and reflective practice should be ingrained (see Chapter 14). When an interdisciplinary practice is working well, it can make great inroads to client care (see Chapter 5), however, it needs to be constantly recalibrated, evaluated and nurtured and is always a work in progress with reflective practice shaping and improving on service and individual approaches to service delivery and personal growth.

Notes i ii iii iv v vi vii viii ix x xi xii xiii xiv

A useful health chart from Community Advocacy & Legal Service (2018). Curran (2017e), 25–35. Roberts, Currie (2012). Atkinson, Curran, Ferrar, Kontolian (2020). Gyorki (2014), 77–80. Tobin-Tyler (2008b), 17. Gillick v West Norfolk and Wisbech (1986). McLean (2000), 551. Burton (2016), 708. Marple (2015). Health Justice Australia (2018 reprint of 2015). QPILCH (n.d.). Halton Community Legal Services (2014). A legal health awareness poster from Community Advocacy & Legal Service (2014). xv Gyorki (2014), 77–80. xvi Curran (2017a, 2017c, 2020); Curran, Taylor-Barnett (2018). xvii Gyorki (2014), 77–80. xviii Ibid., 61–2.

Part III

The ethics of reflective practice and evaluation

Aside from reflecting about our interactions with our clients, reflective practice is important for self-care and care for colleagues. Well-being is an area of increasing interest due to high rates of stress, anxiety and poor mental health in both students of law and legal professionals. This text is not complete unless it acknowledges this. Thinking about what we do, how we do it and why we do it form important foundations for a reflective practice that should inform how we work. Evaluation research compliments this by assessing whether aims are being achieved, measuring outcomes for the targeted audience or investigating why or why not desired outcomes are or are not occurring. Evaluations can provide an evidence base to ensure that what is being implemented is the most effective way to produce positive outcomes (outcomes that are factually found to be occurring). For these reasons, a text such as this, while recommending new ways of working, is not complete unless it encourages practices that critically assess whether these ways of working are effective or need recalibration. Chapters 14 and 15 seek to examine this through looking at reflective practice and evaluation as ways to be vigilant to ensure we are meeting the needs of the communities we serve.

14 Reflective practice

In order to be an effective practitioner of law, educator or judicial officer, making reflective practice routine in your day-to-day work is key. Those involved in the law, just like in other disciplines, may need guidance on what reflective practice is, why it is important and how to do it.

Background to reflective practice As a junior lawyer working alongside First Nations communities, I learned from Elders the importance of reflection. Then, as a clinical legal education educator, I used reflective practice to show students how to see their clients’ contexts, and the role of their work in assisting clients to examine their own approach, biases and assumptions. Through the use of reflective exercises in courses, students can learn how reflective practice can deepen understanding of how the legal system impacts human lives. I have always found reflective practice a powerful tool by which we can all examine what might happen, what is happening and what did happen. By slowing down and reflecting on these three concepts, we gain a better appreciation of how we can do better. It is for this reason that I have dedicated a chapter to reflective practice.

What is reflective practice? It is hard to define reflective practice and some of the theory is contested, but I will look to one of the pioneers for the start of a definition that is appropriate for the context of this text. Schöni in the early 1980s defined ‘reflective practice’ as a process to describe what happens when we learn from our actions, specifically by intentionally thinking about them. By doing and then thinking consciously about what we do, why we do it and how we do it, we become more skilled at what we are doing. Reflective practice can reflect in action (during the event), reflect on action (after the event) and post action (later than the event when there is time for deeper thinking). It enables us to critically look back at what was planned, what was done and what happened. By doing this we can uncover why it happened, whether

242  Ethics of reflective practice and evaluation this was effective and why or why not. This can then shape what we do next. This consistent reflection enables us to build on experience and in time turns into wisdom. Leeringii has undertaken a PhD at Queens University in Canada to investigate reflective practice in education and for future legal professionalism. I mentioned her work in Chapter 8, in relation to developing joint interdisciplinary learning opportunities and an IDSC as the Executive Director/ Lawyer, Community Advocacy & Legal Centre (CALC) in Ontario. She has published some practical and useful frameworks and argues on behalf of the integrated reflective practitioner. This involves the praxis between theory and practice, a commitment to lifelong learning, constant questioning in planning and execution and further reflection on the execution of your work to inform future you and your next steps. Vernoniii (see her quote in Chapter 7) observed the importance of restorative practice (RP) in ensuring progressive practice and supporting a ‘community of practice’. Leering iv notes that reflective practice can be done as an individual, in a team, with peers, colleagues, in organisations or in a community of practice. This then positions us to advance professional knowledge and to ensure rigour and an openness to new insights. She notes that engagement in reflective practice increases capacity, creativity, awareness of others and our own interactions, biases and assumptions. This she posits makes us more attuned and better equipped not only as learners and practitioners but also as leaders, who are facing challenges in the world and the future. I have embraced Leering’s work as we have a shared background in private practice, in community legal centres (CLCs) and in education. Her framework has provided a further structure around my thinking and she is building an empirical base as she progressively publishes her research during her PhD.

Rationale for reflective practice in law practice and education Services like ‘knowmore’,v who offer free legal advice and support to survivors of institutional child sexual abuse, have developed tools and suggestions for client self-care, as has the medical profession for its practitioners.vi This information is pertinent for lawyers and future practitioners in how they practice and work in traumatic areas. Similarly, there are now great resources, such as Being Well in the Law: A guide for lawyers,vii with practical suggestions for students and legal practitioners as well as informative texts for legal educators.viii Extending reflective practice into organisational behaviour and decision-­ making, and organisational and management literature, can enable broader societal learning about systemic issues and to shape and inform

Reflective practice 243 governance. It is noted that such reflective practice can improve participation and decision-­making to tackle complex issues around diversity and dilemmas in the world. This is often described as a triple loop reflection.ix This approach is relevant to Chapter 12, with its focus on public policy input. It is important for reflective practice that a ‘growth mindset’ is taken. This is when you take whatever happens and see it as an opportunity to learn, improve and grow by uncovering assumptions, applying intelligence, adopting a level of curiosity and questioning, and looking at the positive. It encourages a person to be strategic, look at things from multiple angles and perspectives and see the making of mistakes as an opportunity to learn rather than being paralysed and disempowered by the experience. Education Australian graduates of law, who have done their ‘practical legal training’ course, advise me they have rarely been taught the importance of reflective practice in law school, or how to do it. This contrasts with other disciplines such as nursing, social work and psychology where reflective practices are integrated in student learning from year one.x Given law students will one day be in practice, this is a deficiency in their learning. Why? because reflective practice enables a less automatic, uncritical response compared with traditional approaches to our work. Reflective practice also assists in acquiring the skills outlined in Part II, around improved communication and problem-solving, and enables us to be more attuned to client-centred practice and legal empowerment opportunities (discussed in Chapter 4). In my view, the law needs to change its emphasis to ensure it produces future practitioners capable of such thinking if we are going to practice humanely and appropriately in this changing world. To not start to integrate reflective practice early in curriculum and practice has implications as to what level of insight these legal professionals can have in the effectiveness of what they undertake. Through reflection we can develop constant mindfulness of what is working, what is not working, our impact and interaction with others; so, we can grow and improve. This applies not only to students but also to educators, whether engaged in legal education, ‘professional development’ or interdisciplinary education. As educators, we need to engage in reflective practice within our teaching, learning outcomes and effectiveness in our own role in these undertakings. (This concept is explored in Chapter 15.) Students learning reflective practice, who are not accustomed to questioning their approach to a problem or their impact on others, is challenging both for them as individuals and for us as educators. Trying to make them see beyond their own limits of experience and values to those of

244  Ethics of reflective practice and evaluation others may not align or be within their previous self-awareness, experience or background. Law school has traditionally been about marks, grades and based on written assessment. So, a change in thinking is challenging. More law schools are looking to new ways of working with students to encourage lifelong learning and a critical approach to the law. One such way is reflective practice, which requires students to go beyond theory and examine interactions. It moves from the age-old notion of ‘thinking like a lawyer’; a term often associated with a need to be neutral, focus on technical legal categorisations and be objective. In reality (as Chapters 1–3 and 5 demonstrate), human interactions require compassion, emotional intelligence, an ability to listen, interpersonal skills, an awareness and appreciation of the context (social, cultural, health, economic, impact of trauma) of client’s lives that relate or intersect with their legal problems, and problem-solving that is shaped by all these factors. Many legal educators are actively seeking to assist in how to educate for reflective practice, for example, Leering and Spencer.xi ‘Clinical legal education’ already incorporates reflective practice in its educational pedagogy and assessment. Asking graduates of law, to reflect on what they do and why (instead of, as many have learned over 3–5 years at law school, the hierarchy of applying statute and common law applications to abstract problems) can be challenging. If their law course has had minimal focus on the human dimensions to problems or what skills they need beyond the legal technical focus with its narrow categorisations, then questioning behaviours and assumptions, including their own, will be difficult. Acknowledging that reflective practice is a challenging task for anyone, even people who are experienced, can be important in providing a safe space for law graduates and legal educators (who themselves may not know how to undertake reflective practice). Reflective practice enables students to explore a more dynamic and often emotional unpacking of their actions, which can be confronting. For graduates or legal educators (integrating reflection in their undergraduate courses), it is important that a safe environment is created so that reflective practice can be honest and frank with constructive feedback being a part of this environment. My view is that learning reflective practice should not occur only after graduation but as early as possible; even in high school given its benefits and the difficult process to understand and manage its implications, which can be very personal. The more often students are asked to engage in reflection rather than moving from task to task, activity to activity, then the more engrained it will become. Law practitioners Reflective practice can be just as confronting for the seasoned practitioner. The role of reflective practice in good decision-making is highly important

Reflective practice 245 for judiciary. It can assist in their work in managing court processes, making judicial determinations and in developing strategies for self-care (especially in light of recent suicides among judicial officers). As noted in the ‘Introduction’ and ‘Legal terminology’ sections of this book, I refer to the term ‘law practitioner’ rather than ‘legal practitioner’. There are a whole lot of personnel, other than legal practitioners, who will be interacting with clients. This includes court clerks, paralegals, courts reception and intake, law clerks, registrars of courts, tips staffs, etc., who are often not lawyers. I want this text to shape, inform, capture and inform all those in the legal system who play an integral part in it. The challenges of being exposed to adversarial environments, traumatic information and the emotional impact of being a problem-solver for clients is a further reason for learning reflective practice. The skills of reflective practice assist in dealing with and acknowledging high-pressure situations, which can negatively impact clients, patients and law practitioners. I have seen the benefits of a reflective practice culture in a workplace. This is not easy to introduce, as discussed above, a law practitioner can go through their entire law degree and early practice without having been required to reflect on what they do, how or why they do it. I have observed that law practitioners with a background in either social work or psychology take on reflective practice more easily and adopt the practice within their legal work approach. Leering was invited to share her thoughts on reflective practice with the Consumer Action Law Centre (Consumer Action) team (mentioned in Chapters 2 and 6) and other legal assistance services when she was visited Melbourne in 2017. Some of the attendees were keen to integrate an integrated reflective practitioner framework into their work. As a result, the Consumer Action built reflective practice into its organisational impact framework and day-to-day practice. Following, is this example of how reflective practice can be introduced organisation wide. Case study 14.1: Consumer Action Law Centre Consumer Action in Melbourne is a busy legal practice specialising in consumer law.xii At a time when there was a significant increase in workload due to the Royal Commission into Financial Services, the organisation introduced space for reflection to be scheduled within debriefs with supervising lawyers, teams of professionals, clients and non-legal professional surveys, and staff surveys. The organisation also included mindful recruitment, stressing the importance of a reflective mindset. Case management meetings included a deliberate question to determine whether there were areas for improvement, matters of public interest arising from casework that needed action or opportunities for further ‘community development’ or professional development work either in-house or with other legal and non-legal professionals.

246  Ethics of reflective practice and evaluation The organisation also routinely included reflective practice training for its staff and encouraged staff to question and participate in matters to do with client work, organisational operation and system impacts. It took a while for reflective practice to permeate the culture of the organisation, and now reflects a different way of doing the business of law. In my view it has led to more proactive staff and organisational responses, a sensitivity to different client contexts and experiences and the need to be able to accommodate these, alongside a deliberate effort to constantly look to how the organisation can improve. In seeking to achieve this, the organisation has established an ‘engagement, partnerships and evaluation team’, which includes people with community development, cultural diversity and evaluation skills to feed its work and findings back into the organisation. This is consistent with the continuous learning, development and improvement cycle of reflective practice. The organisation aims to introduce the practice of reflection at board level too. Implementing a feedback loop to encourage reflection What is incredibly important in any organisation, be it a law firm, legal aid commission (LAC), CLC, a court, tribunal or other service delivery program including a multidisciplinary practice (MDP) (see Chapter 6) or RP (see Chapter 7) is to also create a feedback loop that runs from the bottom of the organisation, through middle management up to the executive and board level. Again, this should include not just lawyers, but others involved in the operation of the law. This can include secretarial staff, paralegals, volunteers, registrars, law clerks, judges, law students and placement and other non-legal professionals that work with the agency. Such a feedback loop should also run from the top of the organisation down and from the middle up and down. This opens up dialogue between those charged with the doing and operational sides and those who have the responsibility of the strategic vision of the organisation. By using a feedback loop, we can see joint learning. This leads to an appreciation of what each part of the organisation is seeking to achieve. It breaks down misunderstandings and will enable critical thinking and innovation. It also energises a workplace, as I have seen occur at the Consumer Action since it started its journey to embed and implement opportunities for developing the integrated reflective practitioner.

Questions to prompt reflective practice Over the years of teaching reflective practice with colleagues, we have developed a range of teaching approaches.xiii These approaches can be summarised as a set of simple, generic, reflective questions. These questions used have been trialled in many teaching environments, including with junior,

Reflective practice 247 middle-ranking and senior partner/director professionals, to encourage a culture of reflective practice within the legal profession. Equally, these questions can be refined and adapted so they can be utilised by judicial officers, court staff, systems administrators, boards, executives, front-line staff and others engaged in ‘law practice’ in whatever work they are engaging in. To avoid students/practitioners/educators being superficial or too general with their answers, it pays to encourage them to break their responses down into concrete steps as to what they did so to deconstruct the elements. This requirement to critique each step they took, to get to the nitty gritty and depth of the action, obviates naysayers resistant to reflective practice, with criticism such as ‘naval gazing’, ‘self-indulgent’ and ‘self-­ congratulatory’. Effective reflection should not be any of these things if structured well. What it is about is improving, learning and gaining insight into the personal interaction and broader issues affecting clients, colleagues and systems. These questions, which are sequential, should each be considered in turn: 1 What worked well and why? 2 What did not work so well and why not? 3 What would you do differently next time? Critique each thing you may need to do in a step by step format. 4 Were there any surprises or areas you were unsure of that occurred in the interaction/task? 5 Are there any broader system issues that you may need to think through? If so, what are they? What are the problems or barriers that you can deconstruct to critique what is occurring or needs to occur to address the problems you have identified? 6 What are the next steps to improve/take further action/recalibrate/ improve/innovate/change? 7 Do you rely on anything or anyone to help you? 8 How will you start that conversation? Sometimes I change the questions to reflect the stage and change in circumstances, or student behaviour in order to deepen the dialogue, further scaffolding as we move through these building blocks to join and making linkages across areas.

Giving Voice to Values: a reflective tool for students and law practice One of the things about reflective practice is that it can involve us being self-critical and incredibly honest with ourselves. It also leads us to question our assumptions about how good, ethical or effective we are. This includes

248  Ethics of reflective practice and evaluation judges, lawyers and court officials (who are often the front-line point of contact for people experiencing FV or for victims or the parties to proceedings). For this reason, it is important that we wrap reflective practice in a safe environment in which questions can be asked without reprisals. A lawyer should, as part of their ability to gain information and problem-solve, ask lots of questions and act ethically even when at times it may not be easy due to organisational or client pressure on us to act otherwise. For without questioning it is very difficult to undertake the job of forensic analysis and the exploration of options that being an effective lawyer requires. As noted above in ‘What is reflective practice?’, reflection need not only occur individually but can occur in a collective. It may mean having difficult and challenging conversations as we explore what is happening, why it is happening, whether it has ethical and other implications. Even though (as I state above) a lawyer should ask lots of questions, sometimes in law firm culture, this may not be encouraged as it is seen as challenging the hierarchy. Hopefully, this is changing as legal practices realise the importance of joint decision-making; however, in some workplace cultures, if you are in a junior position be that as a legal secretary, law clerk, registrar, paralegal or as a junior lawyer, it may be difficult to question authority.xiv Speaking up can be risky, including the possibility of losing a job or being compared to others who are more compliant in the workplace. Law firms are often very competitive environments that can create ‘group think’ (where people confirm or reinforce their own biases or assumptions) and silencing of different points of view and diverse ways of thinking and at times suggest unethical practice either inadvertently or to gain some advantage. This is hopefully changing as a new generation of lawyers from diverse backgrounds start to take on positions in management and leadership roles. In almost a decade of teaching practical legal training, I have been encouraged by the preparedness of former graduates as they move through up the ranks of legal hierarchy, to lead changes in law practices to encourage safe, ethical and vibrant workplaces by encouraging respectful engagement. One approach I recommend is Giving Voice to Values (GVV), developed by Gentilexv in the United States. I have been teaching GVV to graduate lawyers completing their qualification to enter practice for seven years.xvi Since I started, the GVV methodology has extended into other disciplines including health (nursing and medicine),xvii my discipline of lawxviii and educationxix and accounting.xx GVV teaches that it is not enough to be taught how to identify an ethical issue or adhere to our values: identifying does not mean that we have the wherewithal and the toolkit to confidently act if our ethics or values are challenged. The GVV approach is based on taking action and the idea that having difficult conversations, often with people who are in powerful positions, such as a client who is a chief executive officer of the company or a senior partner in a law firm. Voicing concerns, when we are junior lawyers, is not easy. The GVV approach provides a framework within which to build the

Reflective practice 249 practice of acting on our values and ethics. It is based on a view that the more we practise having difficult conversations, the better we become at having such conversations. The methodology is that the more we plan, forward think, look at different rationalisations and perspectives from not only our own point of view but from the point of view of the person we will be conversing with, then more flexible and adaptable we will be in actually dealing with such conversations. The GVV approach also allows for the exploration in such conversations of a range of other important factors such as the impacts on our clients of the proposed course of action, the impacts on community and the impacts on the profession more broadly. The GVV approach also encourages people to prepare a plan of their conversation, not a script. In such a plan, the toolkit provided by Gentile enables the participant to consider all of the different trajectories that a conversation might take. It is this thought process that better prepares us for the actual conversation. The idea of practising and rehearsing GVV is similar to what Schön xxi describes the process of reflective practice to be about, in that we become more proficient, wiser and better able to have conversations by this practice. This means that, if taken by surprise by being asked to do something we think is wrong, we may be better prepared to manage a well-­considered response. What makes GVV different is that the pedagogical approach requires not only the theoretical assessment and consideration of an approach (taking into account the rationalisations, justifications or perspectives of others we might need to converse with) but requires us to take action; by rehearsal of the conversation with peers and reflective debriefs underlining the adage that we learn most by doing.

Conclusion Reflective practice and GVV allow space for critical thinking and discussion. They require us to keep testing their relevance, applicability and change or recalibrate as required. Reflective practice enables us to do this and can be complimented by research and tools to gather evidence to shape and inform our reflection (see Chapter 15).

Notes i ii iii iv v vi vii viii

Schön (1983). Leering (2017b). Vernon (2018), 157–8. Leering (2017b). knowmore (2013). Royal Australian College of Practitioners (2018). Foley & Hickie et al. (2016). Streven, Field (Eds) (2019).

250  Ethics of reflective practice and evaluation

ix x xi xii

Georges, Romme, van Witteloostuijn (1999). Curran, Ryder, Strevens (2018). Leering (2017b); Spencer (2014). Note: the author has been an in-house advisor (pro bono) to Consumer Action for many years. xiii Note: the author acknowledges teaching reflective practice alongside colleagues A Ferguson, P Taylor-Barnett, B Yau & J Harrison. xiv Victorian Legal Services Board and Commissioners (2020), 38–54. xv Gentile (2012). xvi Curran (2014). xvii Bedzow (2018). xviii Holmes (2015); Plump (2018). xix See Gentile’s (n.d.) Resources for educators on her website. xx Shawver, Miller (2018). xxi Schön (1983).

15 The importance of evaluation

This chapter looks at evaluation in the context of legal education (including ‘clinical legal education’) and also its role in shaping and informing ‘law practice’ and legal organisations.

Background to evaluation ‘Evaluation’ is the critical process by which a program or service is examined to measure a range of factors through evidence. It can include whether it is effective and/or efficient, whether its aims and outcomes are positive, what works well, and why or why not, or whether the program or service is achieving its objectives. Evaluation can inform future delivery. The process examines the program or service’s activities, practices and effectiveness. Analysis can include qualitative or quantitative data and examine other relevant information. These findings are often benchmarked against indicators to determine if it is achieving its aim. There are a wide range of differing approaches to evaluation.i Evaluation can inform the development of new approaches to the practice of law, which, in turn, addresses the needs of clients and community. Evaluation in both legal education and law practice provides feedback that can shape and informs this work and its effectiveness or impact. Key, in my view to evaluation, is transparent techniques that enable an ongoing evaluative process in combination with reflective practice (as discussed in Chapter 14). We will discuss why it is ethical to evaluate, and how ethical evaluation might be conducted. The text presents simple techniques that both teachers and practitioners can implement; some pitfalls, frameworks and approaches to evaluation; as well as methods that might be adapted for extracting feedback and debriefing. These suggestions are not specific or proscriptive, as each service, course or program will differ.

Ethical evaluation The alternative approaches to evaluation that are identified in this text are suggested to make better law for a better world. However, as an evaluator of both education and service programs, I am of the firm view that it

252  Ethics of reflective practice and evaluation is not enough to just try new approaches. The operationalisation of these approaches should be the subject of critical thinking through the use of research and evaluation, in order to determine their effectiveness in terms of quality, reach, impact, educational outcomes and learning and to ensure what we do has an evidence base. Evaluation should not be seen as a performance tool to grade students or manage staff, but rather a way to enable law students, legal professionals and law practice more broadly to participate in a community of practice, which then develops into a ‘growth mindset’ (see Chapter 14), leading to continuous improvement and a sense of ‘collaboration’. This is a constructive alternative to working in isolation from others, which can lead to tired curriculum or lazy practice. Barnett and Camfieldii suggest that evaluation findings can constitute research if they are open to peer-review, analysis and re-analysis. These findings could shape and inform other services, legal and non-legal, with replicable models. Where evaluation is timely and relevant, it should also inform key decision-making bodies and consequently the appropriate allocation of resources. They argue for a ‘right of inclusion’ approach to evaluation, which engages all parties privy to the process, and protects against any power imbalance or favouritism. Their views align with the arguments made around increasing legal empowerment (see Chapter 4) and the need for client-centred approaches (see Chapter 5). This inclusive approach to evaluation does not preclude evaluation rigor; in fact, it could be argued that, by having a more inclusive approach to evaluation, it can lead to increased rigor and take a fuller account of complexity, because its application would be more realistic; being informed by a variety of key and critical stakeholders.iii

The need for embedded evaluation ‘Embedded evaluation’ means that the evaluation process is the underpinning of the program from the beginning; meaning comparisons can be made over time about the program or service’s intervention. Data is collected around the methods employed in servicing clients, how it is happening, if it is effective and why it is effective. An embedded evaluation can also be helpful where it works within the cycle of continuous learning, development, reflection and improvement. This is because it can identify changes in legal practice over time and inroads made or not made as a result and whether these changes are having flow-on effects for community, clients or for non-legal professional or client confidence, capability and whether the quality of the service and its impact has increased over time. Evaluation is a way of facilitating the reflective practice discussed in Chapter 14 as evidence gathering of evaluations can inform reflections around our impact that go beyond assumptions or speculation about our work. It tests impact from a range of vantage points and by using tools that

The importance of evaluation 253 test and very findings. In this way evaluation and reflective practice can go hand in hand. An effective embedded evaluation is one that includes clients, community, staff and key stakeholders as it is appropriate for the particular endeavour being evaluated. In this way, it is the inclusive type of evaluation that Barnett and Camfield refer to. Adequate funding for meaningful evaluation can be hard to secure. This chapter aims to fill the gap in knowledge and advise educators and service providers in creating ‘legal mechanisms’ to achieve effective practice. Evaluation, in the context of legal education and law practice, need not be difficult to do well. Evaluation can be complicated, complex and sophisticated. However, simplified approaches are possible and can be informative. Effective evaluation can shape future practice and gauge whether or not what whether what the law practitioner/legal practice/legal educator is doing is having an impact or is effective and allow for them to recalibrate based on the evidence or feedback. It is important not to ignore or be put off evaluation because legal educators and legal services do not have the resources to commission their own evaluation. With time constraints and limited resources, mini evaluations can be built that ensure inbuilt bias is counteracted by using specific and multiple tools (which are explained later in this chapter). This chapter will introduce evaluation methods that university law programs and legal practices can integrate into existing systems. The results from these evaluations can provide sound feedback and influence how the organisation progresses. This chapter is not specific or prescriptive as every educational course or service program differs. What it will deliver, however, is simple ideas as tips for educators using ethical evaluation in law programs on to how an embedded evaluative process and how these ideas/techniques might be implemented in a way that does not create additional workload. This is in light of already crowded curriculum and busy caseloads in the service delivery context. It merely seeks to give some suggestions that might be weaved or crafted into existing programs to enable deeper thinking about whether what is being done is actually achieving its key aims and objectives and seeking feedback in an inclusive way from a range of stakeholders.

Course-based evaluation One area often neglected in the evaluation space is the evaluation of teaching that is done through university law programs. Education and good teaching should be based on sound pedagogy and informed by an evidence base. It should also be tailored to the nature and intent of the course to ensure it is meeting its stated aims and improving and enabling student learning. All too often, especially in the study of law, teaching of the content is based on what has been before. So often,

254  Ethics of reflective practice and evaluation student evaluations conducted by the university are generic or homogenised because they are not tailored to the actual course content. Some of these evaluations require ‘yes’ or ‘no’ answers or are done on scales of ‘very satisfactory’ to ‘not satisfactory’. The problem here is that very little information is provided by a quantitative evaluation to inform whether there is a problem with the quality of the teaching, content or educational experience being undertaken. A simple example of ways of enriching evaluation to compliment generic university survey evaluations is after each lecture or tutorial, ask the students ‘what was the main thing that they learned during the session that they did not know before’. This not only helps with student engagement but is invaluable feedback to enable you to refine, reiterate or adapt your teaching or the materials. Another way is by use of a rubric to tailor a student evaluation to the specific content, and the way that content was taught. The use of a rubric as a benchmark from the beginning to the end of the course also helps the teacher clarify at the outset what it is that they are seeking from the students and gives them a framework within which to benchmark student performance against the assessment tasks. So often, what we see in training and education at university is the teaching of the subject rather than the teaching of the student. Some teachers I have encountered, and from my own experience, feel that the mere transmission of educational content is enough without consideration of whether the actual information taught is received, understood and can be applied by the student in the context where it is likely to be needed. Many students in undergraduate and graduate courses, no matter what their discipline, will be future practitioners and so, it is important that their education equips them for the job they will be expected to do in the real world. For this reason, the evaluation of educational impact should illicit information on whether the mode of teaching and how things are taught are effective. Using rubrics and asking for feedback Before you start teaching, one way of embedding an evaluation into a course is to develop a teaching and grading rubric that sets out clearly what students are being asked to do and how they are being graded or measured or assessed. This provides clear and concise information about the learning outcomes that are expected. This rubric can be provided to all students from the outset in each of their subjects. It should link the aims, objectives and learning outcomes to the actual activities and classwork. This can include in clinical programs, connections to client work, case studies, law reform work and the skills and competencies expected from students along with the levels of attainment. In the interests of full transparency, if students are provided with this grading rubric/s from the first class of each course, they are aware of what the course is seeking to achieve, and the ways it is going to try and achieve this.

The importance of evaluation 255 In a sense what this does is elevate the student’s understanding of the metrics behind the course, to that of the teacher. By supplying this rubric early, the student can understand the intent and connection of classes to their learning outcomes. This means that they too can reflect on the aims and objectives of the course, whether the expectations of the course are being met, and become attuned as to what the content seeking to do. It provides students with a benchmark as to how they are progressing and gives them the tools for constructive feedback to their teachers and course designers about whether the aims and objectives are being met, and if so how, and if not, why not. Tips for creating rubrics •

Areas that should be considered in a rubric are: • • • • • • • •

demonstrated understanding of content and the application of that content skills or competencies in each of the specific areas that students are expected to achieve capacities you expect them to achieve in each of the specific areas ability to identify problems and issues accuracy timeliness professionalism and ethical conduct the understanding to differentiate between ‘needs further attainment’, ‘adequate’, ‘more than adequate’, a ‘high standard’, ‘insightful’ and ‘comprehensive’.

Strategies for getting the most out of feedback Any use of evaluation feedback needs to be clearly linked to staff professional development. The feedback identifies if the teacher lacks skills, which can then be addressed and remedied. This strategy also encourages a growth mindset for teaching staff rather than entrenched, static intransigence. Teaching staff can often feel overwhelmed being assessed, which must be managed. Evaluation should never be used as a management tool, which can be disempowering, but rather, staff can see it as a facilitator for developing improved practice. Having a useful and relevant ‘professional development’ program to support any educational framework is critical to ensuring quality of educational outcomes and services. Methods of extracting feedback from students The rubric establishes the platform for which students are asked to feedback on the course. It is important to explain to both your colleagues and students why you teach in the way that you do, and why you are asking them

256  Ethics of reflective practice and evaluation particular evaluation questions. In my experience, when this is explained in a genuine way, most students are keen to assist. This will of course depend on their relationship with their teacher. In setting the scene for an evaluative process, I might say: •

•

• •

•

The school values your feedback. We would like to know how we can assist you in making the critical knowledge of this subject something that you can utilise in future and so at the end of each class/assessment, I will check in with you to see how we are tracking. Learning is a two-way process and we need you to apply yourselves and make an effort, but at the same time, we need to know whether how we are teaching is working and if so, how, and if not, how we might adjust things. You all have different ways of learning, which we try to accommodate, so your feedback is important to us, so we know if you need further assistance in the classroom. This is to empower you with the requisite skills for the future and to help you out in the real world. Sometimes, learning is tiresome, but it will make a difference to the outcome of your life, and so the teaching staff need find effective ways to relay information that is meaningful and useful These feedback questions are designed to help you, by you helping us to better tailor the course to your needs. Your input is invaluable.

Evaluation questions for legal courses The evaluation itself consists of questions informed by the rubric. Following are examples of such questions. •

Revisit aspects of the rubric covered in the course: after class, after task or after assessment, with two simple questions for students to respond to, such as: • •

• • •

Did you learn something that you did not know before? What was it, and why might this be important to you in your general understanding of this topic? Is there anything that might help you to achieve the elements in the rubric that is not currently happening?

Write surveys for students to complete after each course, program or annually. Ask students to complete surveys after they have completed the course or program. Introduce peer assessment, where students assess each other against the rubric that is used for a specific activity or task in class. Note: before peer assessment, it is important to educate students on how to provide

The importance of evaluation 257

•

•

•

•

constructive feedback. This is a helpful lifelong skill as one day your students may be supervisors, tutors or mentors themselves. Participate in team teaching, where teachers collaborate in delivering course content and then evaluate each other in terms of whether or not observing the student interactions in class matched the aims of the rubric for teaching outcomes. Encourage teacher-to-teacher observation, where teachers sit in on each other’s lectures or classes and observe the interaction between students and the teacher, and the way the subject is taught. The observing teacher also engages in the debrief. Note: this need not occur often but could involve the same two teachers so that there is a sense of a shared experience. The use of constructive feedback is important. Add a short question at the end of each assessment task or activity, asking students whether they found the task helpful, interesting and engaging, and whether they think the task will be useful in their further work. Include an ‘individual self-assessment’ that students do in the middle of the course using the rubric for direction. This is to assess how they feel they are progressing, and what steps they can take to achieve the rubric outcomes. Note: this approach establishes student autonomy; a realisation that they are responsible for their own learning. This task happens midway so to slow the student to ask them self what they need to do to reach competency. The teacher can meet with the student or read the self-assessment.

The value of the rubric By setting up the rubric from the outset and using it as the constant guide, a teacher can, in fact, be setting up a process by which they can start to embed an evaluation while at the same time doing the work that is necessitated in a well-designed course in articulating aims, objectives and methodologies and the activities and the assessment tasks by designing the rubric alongside. In this way, the evaluation need not be separate to the work that would have to be done in any event is used as a benchmark in an evaluation process. By setting up the rubric from the outset, and using it as a constant guide, the teacher has established an evaluation process that addresses the aims, objectives, methodologies, activities and assessment tasks of the course.

Using evaluation in law practice There is an ethical need for the evaluation of legal practice programs and/or professional development offerings, within the legal profession, as they provide services to the community. ‘Ethical importance’ stems from the understanding that legal practitioners are held accountable as experts in their field of service. They therefore have an ethical obligation not only

258  Ethics of reflective practice and evaluation to provide high-quality services but also to continuously seek to improve their services through reflection, evaluation and professional development. Accordingly, the quality and impacts of these services should be checked and verified. Also, as much of the funding is generated by taxpayers or through philanthropic contributions, accountability is important. The funding context of legal practices In Australia and Canada, the legal assistance sector is described as a ‘mixed model’. This is a blend of publicly funded legal agencies working side by side with the private legal sector with considerable flexibility in the nature of legal work that can be undertaken. This service delivery model not only includes the provision of advice, information, ongoing casework assistance and representation but also includes the provision of ‘community development’, ‘community legal education’ and law reform. Over the past decade, there has been a willingness from legal practices to participate and learn from evaluation and feedback. This has been particularly the case in the community legal sector and with legal aid organisations in Australia and Canada. This desire to learn and innovate, in my view, is that it flows from having such a mixed model. This contrasts with the United Kingdom and NZ jurisdictions, which have a judicare model of legal assistance service delivery. The ‘judicare model’ consists of legal aid commission (LACs) contracting out legal private law firms, thus fragmenting the service provision. This model circumscribes the legal work that each service can deliver under the contract. For example, that the law centre can only do tenancy. It usually limits the legal service activity to information, advice or representation only. The LAC rarely has salaried lawyers providing services to the community, but they are contracted by their LAC equivalent, which acts as a contracting board or contract manager. If readers are interested in learning more about the history and operations of these two models, they can read the work of Noonan and Tomsen.iv The mixed model can better shape and inform the delivery of legal services to both the community and private legal services. This enables a cross-fertilisation that comes from offering services to both, with each sector learning from the other. For example, in Australia, it is quite common for the private profession to participate in professional development training that is run in-house by LACs and community legal centres (CLCs). It is acknowledged that the expertise that LACs and CLCs have attained, given their specialised work around the most vulnerable and disadvantaged members of the community, is valuable. Similarly, the private profession can share its specialised expertise in areas of law and refine how it provides services to the vulnerable and disadvantaged in a pro bono capacity. This interrelationship has developed over the past three decades and can only better service those most in need in our community.

The importance of evaluation 259 Extracting feedback from clients Embedding evaluation practice in the delivery of legal services is essential. Evaluation can provide a comparison between what went before and what is happening now, particularly when changes in practice are occurring. Ways for legal services to gain feedback do exist although they may not have the rigour of a full-scale evaluation. These tools still serve an evaluative function giving feedback around the legal service’s impact and effectiveness and thereby enabling these services to recalibrate and adapt to be more effective and responsive to the community. After a service has been provided, legal and multidisciplinary (MD) services may ask a series of evaluation questions to clients regarding the experience of the service that they received. To ensure a lessening of bias, the lawyers do not ask questions themselves; rather, other members of staff who have not been directly involved in the service delivery. Evaluation questions for legal practice The evaluation consists of a series of questions. A selection of questions is provided to guide and stimulate ideas of what you can measure in line with the aims and objectives of your legal operation, for example, your effectiveness and impact, which can help you reflect and improve the quality of your service. I have used these examples in legal evaluations.v Questions to non-legal professionals: 1 The lawyer/s are responsive to my client’s need/s? Note: you might provide a scale such as ‘strongly agree’ to ‘strongly disagree’. 2 The lawyer/s are responsive to the issue presented and are trying to support my client’s/patient’s need/s. Note: you might provide a scale such as ‘strongly agree’ to ‘strongly disagree’. 3 What, if any, have been the benefits for you as worker/support person, seeing the client’s legal issues responded to in the context of multidisciplinary practice, for example, training, support through process, secondary consultations? 4 I trust and feel confident in turning to the lawyer/s as a result of my contact with them thus far? Note: you might provide a scale such as ‘strongly agree’ to ‘strongly disagree’. 5 What has been the value to you of secondary consultations if you have received any? 6 Does the secondary consultation with the lawyer help you understand and navigate the legal system? ‘Yes/no’ 7 Where a client may not be ready to see a lawyer does a secondary consultation provide you with help for the client and build your confidence to provide support and information on legal matters? 8 Has any of the training or community legal education offered to you by this legal service empowered you to advocate on the client’s/patient’s

260  Ethics of reflective practice and evaluation behalf in a way that you wouldn’t have been able to do before such training? 9 What has been the impact on your support practice of any training or support you have received? 10 Has this legal service completed any extra work, in response to the issues above, in addition to assisting the client, for example, on a broader level of systems reform to stop it happening to others? What did this look like? Do you think this work is useful? 11 Do you have any suggestions on the ways this legal service can assist you better in your work? Questions to clients: Note: some can be answered with a scale of ‘strongly agree’ to ‘strongly disagree’, which combines quantitative and qualitative data, or simply a ‘yes/no’. 1 Did the interviewing lawyer/s listen as you explained your situation? 2 Did the lawyer/s make you feel safe, comfortable and respected during the interview? 3 Did the lawyer/s ask questions that extracted all you think they needed to know, and did they check with you to see they had understood? 4 Did the lawyer/s explain how the law affects your problem, the various options open to you, and what might happen next in a way that you could understand? 5 Would you feel comfortable seeking help from this lawyer/s again if required? 6 If you had another problem, would you seek legal help earlier than this time? Explain. 7 If your matter has been ongoing, does your lawyer/s keep you informed of progress? 8 Was the lawyer/s direct and honest with you about your legal position? 9 Did the lawyer/s give you an opportunity to ask questions or clarify all you wanted to know? 10 Do you have a better sense now of how the law operates and how this effects your case than before you contacted the legal service? 11 Did you act on the lawyer’s advice? Why/why not? 12 As a result of the advice you received has your stress: • • •

reduced (a bit/a lot/completely) stayed the same increased?

13 Do you feel any of the following? Yes/no; why/why not? • •

My voice is being heard. I know more about my rights and where I sit in the legal system process.

The importance of evaluation 261 • •

I feel I now have options that I did not know I had before. Overall, I have had a positive experience with this service.

14 Do you have any suggestions on the ways this legal service can assist you, or other clients like you, in the way we work? Other tools to gather data A tool used by researchers is to survey the client, after their interview with the lawyer, and ask them their experience of the interview. The same researcher can then survey the lawyer. An assessment can be made as to whether the client felt comfortable and that the issue was understood by comparing the two interviews and the perspectives of the two parties to the interview. For example, asking both the client and the lawyer what the nature of the client’s problem was. Another is to ask the client if they felt ‘listened to and heard’ by their lawyer? Then, the researcher can compare responses and see if the lawyer and client have the same understanding of what occurred in the interview. A tool that can be used to promote learning in the workplace and an understanding of underlying complexity in client interaction is a ‘professional development journal’. This is where the legal service staff reflect on a series of specific guiding questions over a period of one month each year. Feedback has been that this tool can be quite therapeutic for the lawyers as it gives them an opportunity to pause and reflect on what happens on any given day. It also enables the service to unpack some of the complexities, barriers and reasons for breakthroughs that may exist in the work that is done. Debriefing Sometimes the process of debriefing can identify good and bad practice and with the support of other colleagues, new strategies can be developed to improve either individual practice, collective practice or to recalibrate the way in which an organisation responds to issues as they emerge. This can be considered to be another variation on an evaluation tool. Professional development training In terms of professional development training, it is useful to administer a pre- and post-workshop/training evaluations. For this tool, the participants are asked before they receive the training/professional development, their views and understandings of certain areas that are to be covered. Then, after the workshop or training, the same participants are asked whether or not their understandings of those issues have been enhanced, developed, deepened or even if they have changed their understanding and way in which they will practice as a result.

262  Ethics of reflective practice and evaluation For legal services with more resources, being able to collect data that records whether or not non-legal professionals, who have engaged in specialist, interdisciplinary or MD training offered by the service, have turned back to the service for more help or referred their clients is extremely helpful. This demonstrates whether or not the training is effective and leads to a change in practice. Unfortunately, most data collection does not enable this sort of linkage to occur, although it is interesting to see whether the training actually leads to a take-up in service by non-legal professionals for their clients. Strategies for getting the most out of feedback In my experience, the challenges that face people in evaluating legal services and legal service delivery go back to the hierarchical nature of the legal profession. When I first started evaluating legal service delivery a decade ago, lawyers were reticent to accept that they were not the best placed people to gauge whether a legal service was being delivered with quality or effectively. What is promising is to see that this attitude is changing as more legal services are prepared to acknowledge that they need to listen to both their clients and key stakeholders about whether or not the services are in fact effective. Sometimes, legal assistance services conduct what are called crosschecks, which are often done for liability purposes. Some legal assistance services have considered them to also be a form of evaluation. This sort of approach can be limiting by way of feedback because it is one lawyer’s view of their own performance, which may not be the most insightful or reliable form of information. This is because it can be related to self-perception rather than independent or objective criterion. Also problematic in such an approach, the crosschecks were not purposely involved for the purpose of measuring effectiveness but as a public indemnity tool. Services should resist the temptation to only see evaluation as about the numbers of clients seen or the number of activities completed. Legal services can see a large number of clients or conduct a large number of activities, but the real question is whether or not the clients are getting an effective and quality service, or whether the activities meet the objectives and aims that they are supposed to be delivering. Traditionally, LACs that fund CLCs have been focused on deliverables that are largely outputs such as cases opened or cases closed, but which tell us very little about whether or not the actual service delivery is having the desired impact on the community and the clients for which the services serve. For example, I once witnessed a lawyer so keen to close files that I had to later manage client’s calling to ask how their case was progressing. Such measures place pressure on staff and can distort their conduct. Similarly, private law firms have tended to gauge client satisfaction; a term borrowed from other industries. I have written elsewhere that client

The importance of evaluation 263 satisfaction is a problematic term to use in the context of legal service delivery.vi Our role is not to satisfy our client. Our role and ethical duty are to give client’s advice on their legal position, legal rights and responsibilities, and how to navigate their way through to solve their legal problems. Often, when their legal position is explained to a client, they will not be satisfied. The test should be how we assist the client in tailoring the advice and ensuring that they have a quality of service experience that is respectful, that listens to what they have to say and that comes up with solutions or options. Evaluation tools can help us find out whether this is the case.

Conclusion A problem noted in Chapter 1 is that there is very little funding for research and evaluations to occur even though governments increasingly require such evaluations be conducted. I question the use of formulaic evaluation approaches that are not tailored to the specific program circumstances, context or available resources of the service or program being evaluated. Impact measurement is a concept that has gained precedence worldwide and is increasingly used to make decisions as to the allocation of resources. This is despite the research that shows how difficult it is to conduct impact evaluation other than the specific interventions being measured, and how inexact and complex it can be (especially as change, which impact measurement seeks to examine, takes time and is rarely linear). I have grappled with this question of how to measure impact as have others. I have come to the view that qualitative data can ascertain if good processes are in place, what a good outcome looks like, and how one gets there to inform and shape service delivery. But, as Ebrahim and Ranganvii warn it is a precarious and fraught quest. Many modern legal services have developed their own impact framework that work backwards to try and understand out how they might have an impact on various sorts of activities, approaches and philosophies, and values will support them in having that impact. This means there has been in many legal assistance services the development of a mindfulness that legal practice is not only the art of delivering technical legal services but also involves great skill in ensuring appropriate independent personal interaction, competency and awareness of context and cultural sensitivity. Some services are also including in their service evaluation benchmarks, the hiring of diverse staff to build their team and the ability of their team to respond to the diverse range of clients that they may come into contact with. These measures are all promising for the future of the profession and for the community that they serve. An example with which I am most familiar is the Consumer Action Law Centre (Consumer Action)viii in Victoria, Australia, which has made publicly available their impact framework and an in-house evaluation team working alongside its lawyers, financial counsellors, operational services staff and policy and ‘community development’

264  Ethics of reflective practice and evaluation team. The Federation of CLCs in Victoria has recently, as a peak body, encouraged member CLCs to develop such a framework.ix This emerging body of evaluation some law practices are doing to measure what they do and the quality of what they do for clients and communities is encouraging. Even more so are the efforts to examine how the legal profession needs to change to have a positive impact on people’s SDH and access to justice. Some law schools have been slow to evaluate courses in ways that capture the nuances in learning. This is probably symptomatic of their limited resources at local school level. Broadening the scope of evaluation, as this chapter highlights, can include evaluating levels of autonomous learning, acquisition of skills learned, cultural sensitivity and the quality and impact of their learning (indicative of effective teaching). I hope this text gives the reader something to consider. I hope it spurs the legal profession on to make the law better so we can make our world better. With the various challenges we face right now and continue to face in the future, we need to be more flexible, humane and responsive to our community.

Notes

i ii iii iv v

vi vii viii ix

Guyadeen, Season (2018), 98–110. Barnett, Camfield (2016), 528–33. Curran, Taylor-Barnett (2019), 34–5. Noone, Tomsen (2006) Note: the author has spent many years devising ideas around questions and tools for their research so it would be appreciated, if the reader wishes to use this information, that they acknowledge the author’s work. Curran (2013). Ebrahim, Rangan (2010), 4, 8. CALC (2018ac). Victorian Community Legal Sector (2019).

Part IV

Resources

This part contains a list of resources for readers should they seek to explore areas in more depth or examine some of the research that has led to the views and foundations that have formed ideas to the dialogue and conclusions drawn in this book.

Appendix 1 Checklists and tips

Mindfulness checklist for students, legal practitioners and educators, judges and non-legal professionals This checklist distils some of the key points in this book to form 10 simple reminders for law practitioners, educators and students that might facilitate mindfulness around the practice of law: 1 Be humble – do not assume you have all the answers or that you understand the situation and contexts of other people’s lives. 2 Channel your inner Socrates – think of how much you do not know and have an open mind. 3 Look at the evidence – this includes knowing the law, but also other factors and contexts so that you can assist in making evidence-based assessments and help in informed decision-making. 4 Be creative – open yourself to new ideas and ways of doing things. 5 Listen actively – you do not have to speak or respond immediately. Pause and allow a person time to think about and answer your questions. Get rid of distractions and thoughts that lead you to pre-empt or draw conclusions too early. 6 Practice sound judgement – an important skill for any law professional, active listening assists in ensuring it is wisely exercised. 7 Keep up-to-date – look to recent evaluations of service delivery, changes in the law and new legal approaches, including: educational ways of working and best practice guidance (from both yours and other disciplines). 8 Challenge your own assumptions, biases and experiences – resist the temptation to apply you own experiences and opinions without considering the vantage point of the person or people who are your clients or audience. Be culturally aware and sensitive, understand a little about behaviour sciences and aspects that might affect your client. For example, mental illness and trauma-informed practice. 9 Respect others’ expertise – clients, community and disciplines other than you own. 10 Reflect, evaluate and learn – constantly look to improve.

268  Resources

Tips Active listening  00 Active listening and points for discussion in community development  00 Creating rubrics  00 Effective communication  00 Good professional development  00 Government and community decision-makers  00 Implementation of a community plan  00 Interviewing  00 Lobbying  00 Multidimensional campaigns  00 Negotiation skills in community development work  00 Planning and the conduct of community development work  00 Policy research and reform  00 Problem-solving  00 Secondary consultations  00 Undertaking community development  00 What a plan will look like  00

Essential skills Ethical considerations and an ability to act ethically  00, 00 Plain English skills  00 Client-interviewing – incorporating ways to triage and assess  00 Active listening  00 Non-verbal skills  00 Cultural competency  00 Trauma-informed practice  00 Problem-solving skills  00 Collaboration  00 Community development informed by adult learning approaches  00 Negotiation skills in community development  00 Professional development informed by adult learning approaches  00 Legal secondary consultation  00 Multidisciplinary and interdisciplinary approaches  00, 00, 00 Restorative practice  00 Policy research and advocacy for change  00 Lobbying  00 Multidimensional approaches  00 Submission writing  00 Reflective practice  00

Appendix 2 Author publications

Chapters and journals 2020 With P Taylor-Barnett ‘Wellness and Going Bush’, Eds JM Church, A Sifris, P Taylor-Barnett, Wellness for Law: Making Wellness Core Business, Reed International Books Australia Pty Ltd, LexisNexis, Australia, https://store.lexisnexis.com.au/products/wellness-for-lawmaking-wellness-core-business-skuwellness_for_law_making_ wellness_core_business With M Atkinson, K Ferrar & P Kontolian ‘Interdisciplinary Learning Opportunities for Clinical Students and Teachers – A case study shared’, Special edition, ‘Teaching and Learning in Interdisciplinary Higher Education: Law and social and health sciences’, Ed C Strevens, 6 (1), Australian Journal of Clinical Legal Education, https://ajce.scholasticahq.com/issues 2019 ‘Sharing Elements of Effective Practice to Address Earlier, Signs of Family Violence’, 44 (3), Alternative Law Journal, 4–5, https:// journals.sagepub.com/doi/full/10.1177/1037969X19843624 With P Taylor-Barnett ‘Evaluating Projects in Multifaceted and Marginalised Communities: The need for mixed approaches’, Evaluation Journal of Australasia, https://journals.sagepub.com/ eprint/ZKNthDuA6yJpAPTih8ez/full 2018 Lessons for the Future: The Australian Royal Commission into Institutional Childhood Abuse, https://ohrh.law.ox.ac.uk/lessonsfor-the-future-the-australian-royal-commission-into-­institutionalchildhood-abuse/

270  Resources ‘Social Justice – Making it come alive and a reality for students, and enabling them to become engaged future ethical practitioners’, Fall (2), Nottingham Law Journal, 33–47, https://www4.ntu. ac.uk/nls/document_uploads/nlj-vol-27-2-2018.pdf With I Ryder & C Strevens ‘Educating Future Practitioners Through an Interdisciplinary Student Clinic’, 25 (1), International Journal of Clinical Legal Education, 32, http://www.northumbriajournals. co.uk/index.php/ijcle/article/view/693 Lessons for the Future: The Australian Royal Commission into Institutional Childhood Abuse, https://ohrh.law.ox.ac.uk/ lessons-for-the-future-the-australian-royal-commission-intoinstitutional-childhood-abuse/ 2017 With P Taylor-Barnett & A Vernon ‘Reflecting on Community Development Practice: Working with communities for effective change by enabling access to justice’, 19 (1), Flinders Law Journal, 37–88. ‘Multidisciplinary Practice Health Justice Partnerships – Working ethically to ensure reach to the most in need’, 26, Nottingham Law Journal, 11–36, https://www.questia.com/library/p439300/ nottingham-law-journal A research and evaluation report for the Bendigo health-justice partnership: A partnership between Loddon Campaspe Community Legal Centre and Bendigo Community Health Services, ARC Justice Bendigo Ltd, Bendigo, Australia, https://ssrn.com/ abstract=3076407 First research and evaluation report – Phase one. Consumer Action Law Centre project: Responding effectively to family violence dimensions of debt and credit through secondary consultations & training with community professionals, Consumer Action Law Centre & Australian National University, https://workers. consumeraction.org.au/wp-content/uploads/sites/12/2017/12/ Final-CALC-FV-Research-Evaluation-Report-Phase-One-29November-2017.pdf ‘Lawyer Secondary Consultations: Improving access to justice and human rights: Reaching clients otherwise excluded through professional support in a multidisciplinary practice’, 8 (1), Journal of Social Inclusion, ‘Enabling Marginalised Voices to Be Heard: The challenge to law reform bodies’, Eds R Levy, M O’Brien, S Rice, P Ridge, M Thornton, New Directions for Law in Australia: Essays in Contemporary Law Reform, ANU Press, The Australian National University, Canberra, Australia, 517–2, dx.doi.org/10.22459/ NDLA.09.2017.48

Author publications 271 ‘Reflections on Practice and Recent Research to Enable Future Practitioners to Learn About Working Collaboratively Across Disciplines to Better Help the Community’, 12 (1), Autumn, Journal of Commonwealth Law and Legal Education, 46–64. With I Ryder & C Strevens An Interdisciplinary Student Clinic at University of Portsmouth (UoP): Future Practitioners Working Collaboratively to Improve Health and Wellbeing of Clients, Presentation slides, 5 July 2017, http://dx.doi.org/10.2139/ssrn.2997597 2016 With A Crockett ‘Measuring the Impact, Quality and Effectiveness of Legal Assistance Services in a Climate of Reduced Funding and Increased Government Expectations: The Australian experience’, 22 (3), European Journal of Current Legal Issues, http://webjcli. org/article/view/468 2014 With T Foley ‘Integrating Two Measures of Quality Practice into Clinical and Practical Legal Education Assessment: Good client interviewing and effective community legal education’, 21 (1), International Journal of Clinical Legal Education, 69–92. Building Capacity to Cope with Ethical Dilemmas in Legal Practice Through Teaching ‘Giving Voice to Values’ Techniques, Presentation slides, VI International Legal Ethics Conference, London, UK, http://dx.doi.org/10.2139/ssrn.2788472 2013 With A Crockett ‘Measuring Legal Services: A practical methodology for measuring quality and outcomes of legal assistance services’, 32 (1), University of Tasmania Law Review, 70–9. ‘Legal Review: Not all in the statistics’, 87 (7), Law Institute Journal, 36–9. 2010 Review of the Charter of Human Rights and Responsibilities Victoria 2016, Scrutiny of Acts Committee, Submission 267, 7–8, Parliament of Victoria, Australia, https://www.parliament.vic.gov. au/sarc/article/1447 2008 With MA Noone ‘Access to Justice: A new approach using human rights standards’, 15 (3), International Journal of the Legal Profession, 195−229.

272  Resources ‘Relieving Some of the Legal Burdens on Clients: Legal aid services working alongside psychologists and other health and social service professionals’, 20 (1), Australian Community Psychologist, 47−56. 2007 With La Trobe University A Comparison of Different Approaches to Children and Young Offenders in the Criminal Court in New Zealand and Victoria, Theses, School of Law and Legal Studies, La Trobe University, Australia, https://trove.nla.gov.au/version/32977626 2005 ‘Making Connections: The benefits of working holistically to resolve people’s legal problems,’ 12, E Law, Murdoch University Electronic Journal of Law, http://www.murdoch.edu.au/elaw/issues/v12n1_2/ Curran12_1.html 2004 ‘Responsive Law Reform Initiatives by Students on Clinical Placement at La Trobe Law’, 7 (1), The Flinders Journal of Law Reform, 287−301.

Reports 2020 Getting Out of Debt: The road to recovery for victim/survivors of family violence, Research paper no. 20.3, Australian National University & Consumer Action Law Centre, Australia https://ssrn. com/abstract=3512672 2018 With P Taylor-Barnett P (2018) Overcoming the Invisible Hurdles to Justice for Young People: The final research and evaluation report of the Invisible Hurdles Project, http://www.hrcls.org.au/ wp-content/uploads/2018/11/DESIGNED_Full-final-Report_ October_20181102.pdf 2017 A research and evaluation report for the Bendigo health-justice partnership: A partnership between Loddon Campaspe Community Legal Centre and Bendigo Community Health Services, ARC Justice Bendigo Ltd, Bendigo, Australia, https://ssrn.com/abstract=3076407

Author publications 273 First research and evaluation report – Phase one. Consumer Action Law Centre project: Responding effectively to family violence dimensions of debt and credit through secondary consultations & training with community professionals, Consumer Action Law Centre & Australian National University, https://workers.consumeraction.org. au/wp-content/uploads/sites/12/2017/12/Final-CALC-FV-ResearchEvaluation-Report-Phase-One-29-November-2017.pdf With K Sanderson, L Edwards & J Williams Second evaluation report of Consumer Action Law Centre’s worker advice service – A legal secondary consultation service to community sector professionals: One year on, 18 October 2017, Australian National University, School of Legal Practice and Consumer Action Law Centre, https://workers.consumeraction.org.au/wp-content/uploads/ sites/12/2017/11/171018-Evaluation-Report-Worker-Advice-Servicefinal.pdf 2016 With T Willcox & J Williams Evaluating Consumer Action’s Worker Advice Service, Australian National University and Consumer Action Law Centre, https://papers.ssrn.com/sol3/papers.cfm? abstract_id=2835377 With S Ball & C Wong Health justice partnerships development report, Victoria Legal Services Board and Commissioners, http://www.lsbc.vic.gov.au/documents/Report-Health_ Justice_ Partnership_Development-2016.PDF 2015 Why Didn’t You Ask? – Evaluation of the family violence project of Loddon Campaspe Community Legal Community Legal Centre, Final evaluation report (2011–MG008), Australian National University, Canberra, Australia, http://lcclc.org.au/wp-content/ uploads/2015/05/FV_FULL_online_v2.pdf Aboriginal Health Justice Partnership: Evaluation of the first six months of operation, Redfern Community Legal Service & Royal Prince Alfred Hospital, https://rlc.org.au/evaluation-rlcs-healthjustice-partnership-royal-prince-alfred-hospital 2012 We Can See there’s Light at the End of the Tunnel Now’: Demonstrating and ensuring quality service to clients, Legal Aid ACT, Canberra, Australia, http://www.legalaidact.org.au/pdf/Light_at_the_end_ of_the_Tunnel_Legal_Aid_Services_Quality_and_Outcomes.pdf

274  Resources 2009 With A Buck ‘Delivery of Advice to Marginalised Groups: The need for innovative approaches,’ 3 (7), Journal of Public Space, 1–29. 2007 Making the legal system more responsive to community: A report on the impact of Victorian Community Legal Centre law reform initiatives, Research and report, Reichstein Foundation and the West Heidelberg Community Legal Centre, Melbourne, Australia, http:// trove.nla.gov.au/work/5544060?selectedversion=NBD41897818

Media This list is not an exhaustive list of my publications, but those relevant to the theme of this book. 2018 ‘The Australian legal assistance sector and the critical importance of justice to human lives’, May 2018, Oxford University, Faculty of Law, Oxford Human Rights Hub, UK, http://ohrh.law. ox.ac.uk/the-australian-legal-assistance-sector-and-the-critical-­ importance-of-justice-to-human-lives/ 2017 ‘Freedom of speech or enabling a right to insult? The Australian debate over section 18c of the Racial Discrimination Act 1975’, 16 May 2017, OxHRH, UK, http://ohrh.law.ox.ac.uk/freedom-ofspeech-or-enabling-a-right-to-insult-the-australian-debate-oversection-18c-of-the-racial-discrimination-act-1975 2016 ‘The partnership between health and law to ensure human rights’, 28 November 2016, Oxford Human Rights Hub Blog, OxHRH, http://ohrh.law.ox.ac.uk/the-partnership-between-health-andlaw-to-ensure-human-rights ‘Government response to the productivity commission ignores substance and significance of the problems of access to justice in Australia, International Legal Aid Group, 31 October 2016, http:// internationallegalaidgroup.org/index.php/papers-publications/ articles/19-government-response-to-productivity-commission-

Author publications 275 ignores-substance-and-significance-of-the-problems-for-access-tojustice-in-australia 2006 ‘Aborigines are still treated with disdain’, 16 December 2006, Opinion piece, The Age, Fairfax Media Australia, https://openresearchrepository.anu.edu.au/handle/1885/100564?mode=full 2002 ‘Reform for the people’s sake’, 28 December 2002, Opinion piece with cartoon, The Age, Fairfax Media Australia, https://www. theage.com.au/national/reform-for-the-peoples-sake-20021228gduzmx.html

Appendix 3 Established health-justice partnerships in Australia

The Australian HJP peak body This list of HJPs is derived from the peak body, Health Justice Australia: https://www.healthjustice.org.au/hjp/health-justice-partnerships-in-­ australia/. For further information about HJPs and up-to-date links, contact Health Justice Australia or refer to Mapping a New Path: Service models on the health justice landscape – a closer look at partnership.i New South Wales • • • • • • • • • • •

Blacktown Hospital – partnership between Legal Aid NSW & Blacktown Hospital Bungee Bidgel Aboriginal Health Clinic – partnership between Legal Aid NSW & Northern Sydney Local Health District Aboriginal Health Service Campbelltown Hospital HJP – partnership between Macarthur Legal & Campbelltown Hospital Coffs Harbour Legal Advice HJP Service – partnership between Legal Aid NSW & Coffs Harbour Health Campus Health One, Sutherland Hospital – partnership between Legal Aid NSW & Sutherland Hospital HJP Randwick – partnership between Legal Aid NSW & Royal Hospital for Women at Randwick Redlink, Waterloo – partnership between Department of Families and Community Services, Legal Aid NSW & Redfern Legal Centre Tharawal MLC HJP – partnership between Macarthur Legal Centre & Tharawal Aboriginal Corporation and Medical Services The Hub, Miller – partnership between Legal Aid NSW & South West Sydney Community Legal Centre St Vincent’s Health Network HJP/Sydney Seniors Legal Service – partnership between Justice Connect & St Joseph’s and St Vincent’s Hospital Women’s Legal Service, NSW – partnership between Legal Aid NSW & Sydney Children’s Hospital Network at Westmead Northern Territory

Established health-justice partnerships in Australia 277 • •

Danila Dilba Health Service Justice Partnership, Darwin – partnership between Northern Territory Legal Aid Commission & Danila Dilba Health Service Women’s HeLP, Alice Springs – partnership between Women’s Legal Service & Central Australia Health Service, Alice Springs

Queensland • • • •

Cairns Mental Health Legal Service – partnership between the Cairns Community Legal Centre & Cairns Hospital Health Advocacy Legal Clinic, Brisbane – partnership between LawRight & Mater Hospital Logan – partnership between Women’s Legal Service Queensland & Logan Hospital Wuchopperen Legal Clinic, Cairns – partnership between Law Right Homeless Persons’ Legal Clinic & Wuchopperen Health Service

South Australia •

South Australia Northern Suburbs – partnership between Legal Services Commission of South Australia & Lyell McEwin Health Service

Victoria • • • • • • • • • •

Bacchus Marsh Family Violence Project – partnership between Brimbank Melton Community Legal Centre & Moorabool Shire Council Early Years’ Service Caulfield HJP – partnership between Justice Connect & Caulfield Hospital Community Mental Health Justice Project, Gippsland – partnership between Gippsland Community Legal Service & Latrobe Regional Hospital Family Violence Legal Clinic – partnership between Brimbank Melton Community Legal Centre & Western Health First Step Legal, St Kilda – partnership with First Step & St Kilda Legal Service HeLP Patient Legal Health Clinic, Melbourne – partnership between The Alfred Hospital & Maurice Blackburn lawyers Holistic Assistance and Legal Outreach (HALO) – partnership between Hume Riverina Community Legal Services & Gateway Health Legal service for older people (55+), North West Melbourne – partnership between Co-health & Justice Connect Seniors Law Mallee Legal Impact – partnership between Victoria Legal Aid & Sunraysia Community Health Services Monash Health Law Clinic – partnership between Springvale Monash Legal Service & Monash Health

278  Resources • • •

• • • •

Preventing and Responding to Elder Abuse – partnership between Justice Connect Seniors Law & St Vincent’s Hospital Melbourne Partners in the Community, Melbourne – partnership between Mental Health Legal Centre & Royal District Nursing Service Homeless Person Project Rumbalara Therapeutic Justice Practice –partnership between the Goulburn Valley Community Legal Centre & Rumbalara Aboriginal Cooperative Limited, funded by a Victoria Legal Aid Transformation and Innovation Grant SMLS/SECASA Joint Legal Clinic – partnership between South Eastern Centre Against Sexual Assault & Monash Legal Service Sunshine Hospital Family Violence Project, Sunshine – partnership between Brimbank Melton Community Legal Centre & Western Hospital South Eastern HJP – partnership between Springvale Monash Legal Service & Monash Health Supporting CALD Women Experiencing Family Violence – partnership between InTouch Multicultural Centre against Family Violence & Monash Health

Western Australia •

Women’s Resource and Engagement Network (WREN), North East Perth – partnership between Northern Suburbs Community Legal Centre & Joondalup Health Campus

Appendix 4 Relevant legal principles and inquiries

Legislation Australia Children and Young Persons Act 2005 (Vic) Children Legislation Amendment Act 2016 (Vic) Children, Youth and Families Act 2005 (Vic) Competition and Consumer Act 2010 (Australian Consumer Law) (Cwlth) Commonwealth of Australia Constitution Act 1900 Family Law Act 1975 (Cwlth) Human Rights Act 2004 (ACT) Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) Legal Profession Uniform Law Application Act 2014 (Vic & NSW) National Consumer Credit Protection Act 2009 (Cwlth) Roman Catholic Church Trust Property Act 1936 (NSW) Canada Corporate and Criminal Fraud Accountability Act 2002 Divorce Act 1985 Family Law Act 1990 United Kingdom Human Rights Act 1998 The Human Rights Act – Changing Lives 2006 Family Procedure Rules 1996

Charters, conventions and treaties Australia The Charter of Human Rights and Responsibilities 2006 (Vic)

280  Resources International International Covenant on Civil and Political Rights, Article 14 United Nations Resolution adopted by the General Assembly, 67/1, Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, Sixtyseventh session Agenda item 83, paragraph 2, 2012, https://www. un.org/ruleoflaw/files/A-RES-67-1.pdf United Nations ‘Charter of the United Nations’, ‘Preamble’, https:// www.un.org/en/sections/un-charter/preamble/ World Health Organisation (WHO) (n.d.) ‘Social Determinants of Health’, https://www.who.int/social_determinants/sdh_ definition/en/

Guiding principles Australia Law Council of Australia (2015) ‘Australian Solicitors Conduct Rules’, https://www.lawcouncil.asn.au/files/web-pdf/Aus_ Solicitors_ Conduct_Rules.pdf Referendum Council (2017) ‘Uluru Statement from the Heart’, https:// www.referendumcouncil.org.au/event/uluru-statement-from-theheart.html NSW Government (2015) ‘Legal Profession Uniform Conduct (Barristers) Rules’, https://www.legislation.nsw.gov.au/#/view/ regulation/2015/243

Cases Australia Australian Communist Party v The Commonwealth of Australia (The Communist Party Case) (1951) 83 CLR Latham CJ, Clause 4, 54, 69 and Dixon J, Clause 35. This decision also highlights the complex long-winded judicial language used to explain the rule of law that can confound lay persons. Australian Competition and Consumer Commission v AGL Sales Pty Ltd (2013) FCA 1030 Clyne v NSW Bar Association (1960) HCA 40 Commercial Bank of Australia v Amadio (1983) 151 CLR 447, 461 DPP v Pell (2019) VCC 260 Ellis v Pell (2006) NSWSC 109 George Pell v The Queen (2019) VSCA 186 Gerhardy v Brown (1985) 159 CLR 70, 129, Brennan J

Relevant legal principles and inquiries 281 Mabo v Queensland (No. 2) (1992) HCA 23, (1992) 175 CLR 1 (3 June 2019), High Court Mato v The Commonwealth of Australia (2019) Order, Federal Court of Australia, 27 November 2019, no. VID611/2019 NSW v Lepore (2003) HCA 4 NSW v Commonwealth (1915) HCA 17 PAO, BJH, SBM, IDF & TMA v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Ors (2011) NSWSC 1216 (Hoeben J) Pell v The Queen (2020) HCA 12 Case M112/2019 R v Watson; Ex parte Armstrong (1976) 136 CLR 348 Re Drake and Minister for Immigration & Ethnic Affairs (No. 2) (1979) AATA 179, (1979) 11 FLR 203 Trustees of the Roman Catholic Church v Ellis & Anor (2007) NSWCA 117 Uttinger v The Trustees of the Hospitaller Order of St John of God Brothers (2008) NSWSC 1354 White Industries v Flower & Hart (1998) FCA 806 Wik Peoples v The State of Queensland (1996) HCA 40 Canada Jacobi v Griffiths (1999) 174 DLR (4th) 71 United Kingdom All ER Rep 233 Gordon Hewart J (1870–1943) Gillick v West Norfolk and Wisbech (1986) AHA AC 112 (HL) JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocesan Trust (2011) EWHC 2871 Lister & Ors v Hesley Hall Ltd (2001) UKHL 22 All ER 769 (see also UK House of Lords decision) R v Sussex Justices, ex parte McCarthy (1924) 1 KB 256, (1923) The Catholic Child Welfare Society & Ors (Appellants) v Various Claimants (FC) & The Institute of the Brothers of the Christian Schools & Ors (Respondents) (2012) UKSC 56

Commissions and inquiries Australia Inquiry into Access to Justice Arrangements (2014) Inquiry into Joint Custody Arrangements in the Event of Family Separation (2003)

282  Resources Inquiry into Poverty (The Sackville Inquiry) (1977) Inquiry into the Adequacy of Newstart and Related Payments and Alternative Mechanisms to Determine the Level of Income Support Payments in Australia (Newstart Inquiry) (2019) Inquiry into the Family Law System (2019) Royal Commission into Family Violence (RCFV) (Vic) (2016) Royal Commission into Institutional Childhood Sexual Abuse (2017) Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) (2017) Royal Commission into Misconduct in the Banking, Superannuation and Financial Industry (Royal Commission into Financial Services) (2018) Royal Commission into the Protection and Detention of Children in the Northern Territory (2017) New Zealand Inquiry into Historical Abuse in State Care and in the Care of Faithbased Institutions (2019) United Kingdom Inquiry into Child Sexual Abuse (2014) Low Commission on the Future of advice and Legal Support (The Low Commission of Inquiry) (2012)

Note i Forell, Boyd-Caine (2018).

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Index

Italicized and bold pages refer to figures and tables respectively, and page numbers followed by “n” refer to notes. Access to justice arrangements: Inquiry report 7 Acting on Warning Signs (AWS) Project 91 adversarial system: adversarial family court system and alternatives, case studies 22–29; Australian royal commissions, case studies 18–22; case studies 17; child abuse and Catholic Church, case studies 30–33; children, on 24; problems with 17 advocacy for change 202–203 Advocat, J. 97, 171 Albury–Wodonga Aboriginal Health Service 81, 83 Allen Consulting Report 79 alternative dispute resolution (ADR): conduct of matter 69–70; processes 22–23 alternative frameworks: client-centred and community-focused outcomes 41–44 Andrews, B. 74 Ariss, S. 172, 173, 174 Assies, W. 50 Asylum Seeker Resource Centre (ASRC) 84 Atkinson, M. 137, 139 Australia, empirical research in: Australian Government’s Productivity Commission in 2014, view on 8; findings and conclusions 9–10; Law Survey 9; legal remedy 8; money available for 8; unresolved legal problems 8–9 Australian Capital Territory (ACT) 31

Australian Law Reform Commission (ALRC) 23; children in decisionmaking 26; family law options 26; legalistic position 26; pathways to justice report 38; recommendations of 26 Australian Solicitors Conduct Rules (ASCR) 67–68 Australia-wide Law Survey 79 author publications 269–275 Ballarat Community Health (BCH) 88 Balmer, N. 94 Bandola, J. 135 Banyule Community Health Service 87 Bartels, L. 32, 41, 42, 43 Batagol, B. 25, 29 Beinart, S. 38 Best Practice Guidelines for Lawyers Doing Family Law Work 25 betrayal trauma 117 Bliss, L. 133, 134, 137, 139 Booth, A. 172, 173, 174 Braithwaite, J. 102–103 Brown University Medical School 132 bulk debt negotiation 210–211 Caley, S. 133, 134, 137, 139 capability and development model 53–54 Carmona, M. S. 52, 55, 59 Central Victorian Restorative Justice Alliance 109 Chase, S. M. 97, 171 checklists and tips 267–268

Index 309 child abuse and Catholic Church 30 Children, Youth and Families Act 2005 109 Christianne, Vink C. 131, 135, 139 civil law area, application of RP 113; adolescent family violence 115–116; child welfare 119; conferencing approaches 114; defence abuse response taskforce 117–118; institutional abuse 116–117; schools, in 119; sexual assault and abuse 114–115; workplace restorative practice 118 client-centred approaches: Bendigo study 65–66; centrality, underpinning law and ethical practice 71–72; communication problems 64; ethical rules 68–69; evaluation report, WDYA and FV study 65; HJP, evaluation of 65; human rights framework 63; lawyer duties with conduct rules 67–70; lawyering responsibilities 69; legal professional practice context 72–76; in practice 70–71; qualitative data 64–65; recent study 64; respect and dignity for clients 66; studies of MDP 66; time spent 67 clinical legal education 75 close connection test 31 collaboration 169; defined 170; examples of teaching skills 175–178; higher education setting, within 170–171; practice setting, within 171–172; rubric, in identifying skill in 174–178; teamwork skills 172–173 communication skills see effective communication skills community 181–182; development (see community development); legal education 182; reading material for 200–201 Community Advocacy & Legal Centre (CALC) 134 community development 182–183; active listening and points for discussion 185–186; community planning, tips for implementation 189–191; government and community decision-makers, tips 185; negotiation skills 186; plan on 187–189; preliminary plan 184; tips on planning and conduct work 184–185; undertaking 183–184

Competition and Consumer Act 2010 22 conflict of interest rules 70 Consumer Action Law Centre (Consumer Action) 21, 81–82 continuous learning, development and improvement 76–77 4 Corners television program 20 course-based evaluation 253; feedback, strategies for 255; methods of extracting feedback 255–256; questions for legal courses 256–257; tips 255; using rubrics and asking for feedback 254–255 Crabtree, B. F. 97, 171 cultural competency 146, 160–161 Curran, L. 137, 139 Daicoff, S. 42 Dal Pont, G. E. 68 Daly, K. 101 debrief process: client consent and feedback 236–237; legal health checks and assessment tools 232–233; reciprocal training 235–236; referral pathways 233–234; secondary consultations 234–235 Defence Abuse Response Taskforce (DART) program 117–118 de Greef, L. 131, 135, 139 direct personal response 117 Divorce Act 23 Djirra 83 Doing Restorative Justice in Cases of Sexual Violence: A practice guide 114 Domestic Violence Victoria (DVV) 27–28; model 29; specialist and holistic psychosocial independent case management system 29 Donald, K. 52, 55, 59 duties in interdisciplinary practice in educational settings: client confidentiality, conflict checks and duty of loyalty 227; confidentiality 226–227; document privacy and security 228; mandatory reporting 231–232; protecting client–legal privilege 228; safety planning 230–231; third-party consents 228–230 Easteal, P. 27 effective communication skills 145; ethical consideration 147–148;

310  Index oral 146; plain English skills 148–149; reading materials 166; tips for 149–160; trauma-informed practice 162–163 Ellis v Pell 30 Emory University School of Medicine 133 emotional content 75 empirical research: Australian 8–10; international 14; study 10–14 Enderby, P. 172, 173, 174 established health-justice partnerships in Australia 276–278 evaluation: course-based (see course-based evaluation); defined 251; embedded, need for 252–253; ethical 251–252; law practice, in 257–263 Family Law Act: federal system, evidentiary mechanisms, Australia 23; guidelines 25; protection of children and wellbeing 24; provincial courts, parenting and children care, Canada 23 Family Procedure Rules 23 family violence (FV): child-centred practice 24; experiences 12–13; system 18; women, and 23 Ferrar, K. 137, 139 Finch, S. 38 fixer of problems 76 flipping paradigm, centrality of community 40 Foley, T. 101, 107, 108, 109, 110, 112 Freedman, M. H. 67 Galowitz, P. 134 Gardner, H. 42 Genn, H. 38 Ger Post, G. 131, 135, 139 Gertner, F. 136 Giving Voice to Values (GVV) 129, 248–249 Golub, S. 51, 61 GOSH Project in United Kingdom 85 Goulburn Valley HJP 89–90 governance and accountability: legal empowerment model 54–55 Great Ormond Street Hospital 85 Grey, D. 27 Gunn, J. M. 97, 171 Gyorki, L. 92

Halma, L. 97, 171 Handbook on Restorative Justice Programmes 103 Hannath, L. 43 hard skills 96, 146 Harris, M. F. 97, 171 Hassain, K. 52, 53 Hayes, H. 101, 103 health-justice partnerships (HJPs): Australian context 86–93; Australian report on, by Gyorki 92; international context 85–86; summary of 93 Hermann, J. 117 Hogg, W. 97, 171 holistic care 130 Homeless Law 82 Hook, A. 74 Hopkins, A. 32, 41, 42, 43 Human Rights and Equal Opportunity Commission 118 Hume Riverina Community Legal Service (HRCLS) 81, 83 Hunter, R. 24 Hussemann, J. 70 Hyams, R. 136 indicators for learning, leadership and client-centred collaboration 174–175 Inner Community Legal Centre (ICLC) 91 Inner Melbourne Community Legal (IMCL) 91; Royal Melbourne Hospital, and 92–93 Inquiry into Access to Justice Arrangements 17 Inquiry into Joint Custody Arrangements in the Event of Family Separation 27 Institutional Childhood Sexual Abuse 31, 116 integrated justice practice 81, 83 interdisciplinary educational practice 220; debrief 232–237; duties 226–232; practical side 221–226 interdisciplinary student clinics (IDSCs): Australia in 136–139; benefits for 140; CALC initiative, in Canada 134–135; challenges 139–140; definitions of 130–131; delivery, United States in 132–134; development in United Kingdom

Index 311 135–136; emergence of 129; implementation and learning 131; practice 131 interdisciplinary student health-justice clinic (IDSHJC) 136, 222 interests-based approach 28 International Journal of Clinical Legal Education Conference 135–136 Invisible Hurdles Project 64–65, 81, 83 Jesuit Social Services’ (JSS) RESTORE program 115–116 joint learning opportunities (JLOs): Australia in 136–139; benefits for 140; CALC initiative, in Canada 134–135; challenges 139–140; definitions of 130–131; delivery, United States in 132–134; development in United Kingdom 135–136; emergence of 129; implementation and learning 131; practice 131 Kettle, A. 135 Kontolian, P. 137, 139 Korovessis, C. 38 Law Council of Australia’s Justice Project 39 lawyers: effective lawyering 70; role in conciliating 24 Leering, M. 242 legal aid commissions (LAC) 25–26 Legal Australia-wide Survey (Law Survey) 9 legal empowerment 47–49; client, role for lawyers 55–56; community, role for lawyers 56–57; human rights approach 52–53; literature and theories 49–52; models 53–55; policy and systemic reform 59–60 legal practice experience (LPE) programs 75 legal profession, diversity 41 Legal Profession Uniform Conduct (Barristers) Rules 67–68 Legal Profession Uniform Law 148 legal secondary consultations (LSCs) 81 Legal Services Board and Commissioner’s Victoria Grants Program 87 Legal Services Board (LSB) 88 Levesque, J. 97, 171

Linden, A. 38 litigation 7 lobbying, tips 209–210 Loddon Campaspe Community Legal Centre (LCCLC) survey 12–13 Low Commission Report in 2015 86 Lyall, C. 135 Mabels Project 88–89 Mabo v Queensland 33 Maloney, L. 26 Maru, V. 50, 55, 60 Mater Young Adult Health Centre and Health Advocacy Legal Clinic (the Mater Clinic) 137 Maxwell, G. 103 McIntosh, J. 26 Meagher, L. 135 medical-legal partnerships (MLPs) 85 Miller, W. L. 97, 171 Molander, P. 51, 61 Monash Oakleigh Legal Service 136 Moore, D. 102 Morehouse School of Medicine 133 Morrison, A. 30 multidimensional campaign and policy engagement: bulk negotiation 210–211 multidisciplinary practice (MDP) 39, 220; application of 79; approaches 80–81; examples, in Australia 81–85; legal practice context 80; legal secondary consultations as critical role in 81; model 79; note of caution for services 93–97; secondary consultants (SCs), role in 81 Nancarrow, S. A. 172, 173, 174 Narajan, U. 39 narrative concept 75 National Association of Community Legal Centres 38, 80 National Center for Medical-Legal Partnership 85 National Consumer Credit Protection Act 2009 22 National Consumer Credit Protection Regulations 2010 22 National Credit Code 22 National Human Rights Network 38 National Redress Scheme 117 Newstart Inquiry 214

312  Index NHS Foundation Trust and Camden Citizens Advice Service (CCAS) 85 Noble, P. 86 non-legal professional supporter 57; practical examples 58–59 North East Support and Action for Youth in Wangaratta 81 Nottingham Law Centre 85 NSW v Lepore 31 Open Door Health Clinic (ODHC) 136–137, 222 Organisation for Economic Co-operation and Development (OECD) 17–18; Benefits and Wages database 214 Pali, B. 104, 110 paternalism 42 Pettignano, R. 133, 134, 137, 139 plain English skills 148–149; see also effective communication skills Pleasence, P. 94 policy research 202–203; multidimensional campaign and 207–209; submission writing in legal education 211–218; tips on, and reform 205–207 Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership 132 practical side of interdisciplinary practice in educational settings: care team, developing 223–224; clinic, promotion of 224–225; importance of 221–223; protocols, policies, procedures and regulatory frameworks 225–226; student and supervisor preparation 221; tools and training 223 practice-informed theoretical framework: broadening 110–112; careful management 112; criminal context 107–109; guidelines and training 113; sustaining programs 109–110 Primary Care Connect (PCC) 89 problem narrative 75 problem-solving court: circle sentencing 123; drug courts 123; Koori and Aboriginal courts 123; mental health courts 123; neighbourhood Justice Centres 123–124; special circumstances’ lists 123;

specialist FV divisions 123; therapeutic justice 123; youth courts 122 problem-solving skills 163; exploring questions 164; mindtools 164–165; reading materials 167; tips for 165–166 Productivity Commission: inquiry report 18; main proposals 19 Productivity Commission, Department of Justice Access to Justice Review 79 professional development: equipped for 191–193; legal secondary consultation 197–200; reading material for 200–201; tips for 193–197 Protection and Detention of Children in Northern Territory 39; report 20 Public Interest Law Clearing House (Justice Connect) 82 Rapp, C. 74 reflective practice: defined 241–242; questions to prompt 246–247; rationale for 242–246; students and law practice 247–249 relevant legal principles and inquiries 279–282 restorative engagement conference (REC) 117 restorative practice (RP) 39, 75; applications of, in civil law area (see civil law area, application of RP); Braithwaite notes 102–103; challenges 120–122; conflict and trauma cases 103; court practices 122–124; international conflict 119–120; mediation, and 104; practice-informed theoretical framework (see practice-informed theoretical framework); principles 102–103; process 105–107; responsiveness to community 104–105; theory and philosophy 101; work of Moore and Vernon in 102 Rhode, D. L. 7 Rhode Island Medical-Legal Partnership for Children (RIMLPC) 132 Rich, N. 56, 60 ‘Robo-debt’ debacle in Australia 203–205 Rogers, M. A. 132

Index 313 Roger Williams University School of Law 132 Roman Catholic Church Trust Property Act 1936 30 Roots, A. 172, 173, 174 Royal Commission into Family Violence (RCFV) 18, 115 Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA) 115; report, key extracts 20–21 Royal Commission into Misconduct in Banking, Superannuation and Financial Industry (Royal Commission into Financial Services) 21 rubric for assessment and competency 174 rule of law, and democracy: legal profession and politicians 37; predictable and ordered society 37 Russell, G. M. 97, 171 Saleebey, D. 74 school lawyer programs 84–85 Schukoske, J. E. 56 Scott, C. M. 97, 171 secondary consultation (SC) 58 Shah, D. S. 56 Sheldrick, B. M. 39, 50, 51, 52, 54, 60, 61 Siegel, J. A. 70 Smith, P. 38 Smith, T. 172, 173, 174 Social Care Institute for Excellence (SCIE) 73, 163 social determinants of health (SDH) 86; developmental psychological factors 129; legal problem-solving, in 44–45 soft skills 146 solution-focused therapy (SFT) 74–75 Staples, W. 38 Street Law programs 183 strengths-based practice 72, 74; health-based research examining 73 student engagement in policy 214; guidance and suggestions 217; nature of research and content 215; questions and considerations 216; research and investigations 217;

reviewing and refining drafts 218; teamwork 218; understandings beyond legal 217 Submission 87 214 submission writing 202–203 Sullivan, P. W. 74 Taylor-Barnett, P. 93 Teunkens, M. 104, 110 Trauma and Recovery 117 trauma-informed practice 75–76, 162–163, 166–167 Trustees of the Roman Catholic Church v Ellis & Anor 31 Truth and Reconciliation Commission (TRC) in South Africa 119 Tyler, T. R. 67 Uluru Statement 60, 124 Under One Roof Project 82 UniSA Legal Advice Clinic (School of Law) 137 Upper Murray Family Care (UMFC) 81–83 Van Hoek, D. 70 van Rooij, B. 51, 52, 53, 60, 61 Vernon, A. 102 Victorian Health Promotion Authority (VicHealth) 80, 170; tool developed by 171–172 Victorian Youth Justice systems 110 Weintraub, D. L. 132 Wenting, L. 131, 135, 139 West Heidelberg Community Health 86 West Heidelberg Community Legal Service 76, 86 WEstjustice program 84 Why Didn’t You Ask? (WDYA) study 12–13 Wodonga Flexible Learning Centre 81 workplace conflict 118 Wright, S. 56, 60 Youth Justice Group Conferencing Program 109 Zinsstag, E. 104, 110