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Explain how your understanding of legal theory facilitates a critical analysis of issues related to access to law and justice in the Australian legal system. Illustrate your answer by reference to one of the following groups in the Law Council of Australia’s Justice Project. A proficient understanding of legal theory enables an individual to engage in a critical analysis of issues related to access to law and justice in the Australian legal system. “Reading and participating in jurisprudential discussions”1 facilitates active criticism of the law and its systems in relation to disadvantaged groups such as people with disability. This is because they are a group that is extremely vulnerable to a broad range of legal problems 2. This analysis formulates active criticism of current Australian legislation and formal proceedings, opening up discussion about the access and use of current support services. Further, engaging in critical analysis of issues related to access to law and justice highlights the major gap between formal and substantive justice for people with disability. It can therefore be established that differing legal theories create a framework of understanding which allows jurisprudential discussion to formulate active criticism of access to law and justice in the Australian legal system.

Understanding social legal theory introduces the analysis of current legislation defining ‘disability’. The Disability Discrimination Act 1992 (Cth)3 adopts a medical rather than social definition which can perpetuate disadvantage. For example, it can be established that employing a social perspective4 on issues of access to law and justice in current Australian law would allow groups, such as people with disability, to have greater access to law and justice. There are international conventions in place to better protect people with 1 Michelle Sanson and Thalia Anthony, Connecting With Law (Oxford University Press, 3rd ed, 2014) 303. 2 Law Council of Australia, The Justice Project: People With Disability – Consultation Paper (2017) 2. 3 Ibid 5. 4 Wacks R, Understanding Jurisprudence (Oxford University Press, 4th ed, 2015) 188.

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disability and although there is support from Australian legislative bodies, they have not yet enacted any. For example, the United Nations Human Rights Council (UNHRC) approved the Resolution on Mental Health and Human Rights5. Although not legally binding, it is a step in the right direction to allow people with disability to better access “the support they may require in exercising their legal capacity”6. Maker and McSherry posit that there is a general consensus that persons with psychological disabilities do not possess the fundamental rights they should be legally given.7 This is evident within the Australian legal system, with the United Nations (UN) Committee on the Rights of Persons with Disabilities finding that Australia had breached its obligations under the UN Convention on the Rights of Persons with Disabilities. This was because an Aboriginal man in Western Australia (WA) was detained indefinitely, even though he was unfit to stand trial under the Mentally Impaired Defendants Act 1966 (WA).8 Therefore, the barrier exists for people with disability accessing justice in the Australian legal system and “the law may appear to protect certain interests, yet achieving its objects may be problematic in practice”.9 Consequently, a critical analysis of domestic and international legislation can be formed form understanding social legal theory and its origins.

A grasp of postmodern legal theory as the subject of critique10 forms an analysis of gaps in resources or facilities available within the Australian legal system. Consequently,

5 Bernadette McSherry and Yvette Maker, ‘International Human Rights and Mental Health: Challenges for Law and Practice’ (2018) 25 Journal of Law and Medicine 315, 315. 6 Ibid. 7 Ibid 319. 8 Blagg, Harry, McGaughey Fiona and Tulich, Tamara, ‘UN Decision on Marlon Noble Case : Imprisonment of an Aboriginal man with intel3lctual disability found unfit to stand trial in Western Australia’ (2017) 41(1) Alternative Law Journal 67. 9 Ellis E, Access to Law (Thomson Reuters Professional, 3rd ed, 2013) 143. 10 Michelle Sanson and Thalia Anthony, Connecting With Law (Oxford University Press, 3rd ed, 2014) 305.

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there are significant “gaps in services necessary to deliver justice to people with disability”. 11 The Law Council of Australia’s Justice Report found that for people with disability to properly engage with the justice system, they require court support services such as services for hearing impaired individuals. For example, the Uniform Evidence Acts governs the availability of services being provided to people with disability. This includes allowing adjustments to be made regarding delivering evidence by people who have a hearing or speech impairment.12 Further, critical legal scholars argue it is impossible to remove social, political and personal viewpoints from the process of legal reasoning.13 This forms the basis of an argument that critical gaps in access to legal services for people with disability should be improved to increase accessibility to law and justice in the Australian legal system. For example, the ‘hostility of cross-examination, the use of coercive questioning strategies and the delay between the event and proceedings” negatively impact upon witnesses with disability.14 Therefore, being able to critique the critical gaps in legal services available to people with disability is assisted by a strong grasp of legal theory and its role in producing “jurisprudential discussions”15

Understanding Posner’s economic theory of law16 grants the skills which allow one to engage in critical analysis. For example, the economic position of people with disability can heavily influence their legal capabilities. For example, “the organisation for economic cooperation and Development (OECD) estimate that 45 per cent of the two million Australians living with disability live in or near poverty”17 This can affect the accessibility of services for 11 Law Council of Australia, The Justice Project: People With Disability – Consultation Paper (2017) 25. 12 Ibid 29. 13 Michelle Sanson and Thalia Anthony, above n10, 332. 14 Law Council of Australia, above n 11, 30. 15 Michelle Sanson and Thalia Anthony, above n 10, 303. 16 Richard A. Posner, ‘An Economic Theory of the Criminal Law’ (1985) 85(6) Columbia Law Review, 1195. 17 Law Council of Australia, above n 11, 25.

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people living with disability and ultimately determines their ability to access justice. Legal aid receives the majority of its funding for criminal proceedings and for people with disability, a majority of their legal need is for civil matters. “Disability discrimination complaints, for example, often do not receive legal aid grants.”18 This is a major miscarriage of justice, highlighting how equality before the law is not upheld for people with disability.

A focus on just formal equality is reflective of the values and traditions relevant to that of positivist legal theory.19 The ‘social contract’ theory in positivists beliefs holds that “people sacrifice their natural liberty in exchange for the sovereign’s protection and the administration of justice”.20 However, it can be argued that people with disability in fact do not receive sovereign protection and access to justice. Comprehension of this highlights the lack of substantive equality in the Australian legal system for people with disability. The Law Council of Australia’s ‘The Justice Project’ found that inadequate training is a major barrier in achieving substantive justice.21 This means, a possible way to increase a person with disability accessing substantive justice could be through proper training for law students. Cody posits that “working effectively and sensitively … is crucial” and future lawyers must possess the skills to be able to be a tool for upholding the values contained within the Convention on the Rights of Persons with Disabilities.22 Along with this, a 2014 survey of Community legal Centres across Australia showed that only half of the 53 surveyed employed strategies to ensure that people with disability had services directed to them.23 Therefore, a large strain on accessing formal procedures fails to achieve substantive justice 18 Law Council of Australia, above n 11, 27. 19 Ellis E, Access to Law (Thomson Reuters Professional, 3rd ed, 2013) 140. 20 Michelle Sanson and Thalia Anthony, above n 10, 311. 21 Law Council of Australia, above n 11, 37. 22 Anna Cody, ‘Changing Law Student’ Ideas about Dis/ability: Can We? Should We? How Would We?’ (2018) 25 Journal of Law and Medicine 1056, 1. 23 Law Council of Australia, above n 11, 28.

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for people with disability. Therefore, “reading and participating in jurisprudential discussions”24allows for rational criticism, facilitating suggestions to overcome the large gap between formal and substantive laws and justice.

Consequently, by understanding legal theorists and their theories on the law, an individual is able to have a “deeper understanding of law”25 which gives them the ability to critically analyse issues such as access to law and justice within the Australian legal system. As illustrated, people with disability are a group in need of a better access to justice and the law within the Australian legal system.

200978 LEGAL ANALYSIS AND CRITIQUE LEGAL RESEARCH DIARY Anna Cody, ‘Changing Law Student’ Ideas about Dis/ability: Can We? Should We? How Would We?’ (2018) 25 Journal of Law and Medicine 1056 Bernadette McSherry and Yvette Maker, ‘International Human Rights and 24 Michelle Sanson and Thalia Anthony, above n 10, 303. 25 Ibid.

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Mental Health: Challenges for Law and Practice’ (2018) 25 Journal of Law and Medicine 315 Blagg, Harry, McGaughey Fiona and Tulich, Tamara, ‘UN Decision on Marlon Noble Case : Imprisonment of an Aboriginal man with intel3lctual disability found unfit to stand trial in Western Australia’

Critical Evaluation:

(2017) 41(1) Alternative Law Journal 67 Anna Cody, ‘Changing Law Student’ Ideas about Dis/ability: Can We? Should We? How Would We?’ (2018) 25 Journal of Law and Medicine

Critically evaluate the

1056 Using the “APPEAL” method, I have come to the conclusion that this is a

relevance and

reliable source;

reliability of that

The Author, Anna Cody, has multiple pieces in law journals and her work

source.

has been peer reviewed. Her article has a scholarly intent, being in a law journal to provide expert knowledge on the field of disabled people in the Australian legal system. Being published by the Journal of Law and Medicine, it is evidently a scholarly organisation. Her article has many references and citations from other credible sources which she used to conduct her work. The Audience is clearly academic. Lastly, the information is extremely useful as it was published this year, meaning all information is current to this year.

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Methodology:

It was quite simple to find this source. First, I went to Westlaw via the library website. Following a screencast on research Sandy conducted, I searched similarly to herself “access to justice” “disabled”. I ticked for only journals and it was the second result to come up.

Screenshots:

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