Law Institute of Victoria Legal Sector Dinner

Melbourne, 29 August 2024

It’s so good to be here tonight amongst so many friends, to talk about and reflect on the role of the legal profession.

We’re on Aboriginal land. I acknowledge the Wurundjeri people - and their Bunurong Boonwurrung neighbours. I acknowledge Wurundjeri ancestors and elders. I acknowledge First Nations peoples’ ancient systems of law and enduring cultures.

It’s easy to acknowledge Aboriginal land. It’s hard to do justice to those words.

I’ll come back to this.

Introduction

When my son was five or six and I was working at the Human Rights Law Centre, I asked him if he knew what I did for a job.

He said: Yes, you’re a lawyer.

I said: Do you know what lawyers do?

He said: Yes - You work for rich people.

I was stunned.

I asked him where he had heard that and he said they were talking about it in school.

I told him I started in law working for big companies but that for a long time I’d been working to help people who were struggling. I then tried my best to explain human rights law to him.

A couple of weeks later I asked him again if he knew what I did for a job.

He said: Yes dad – you used to work for rich people.

Unequal access to justice

The law has a problem when people associate lawyers with helping rich people.

But it’s understandable why they do.

Our legal system often delivers unequal access to justice – different standards of justice depending on who you are, where you live and how much is in your bank account.

Laws granting people rights are meaningless if people can’t enforce them.

Quality legal help and fair, user-friendly dispute resolution are critical for people to realise their rights.

There many people and organisations in this room working to fix the access to justice gap – and I particularly want to pay tribute to the lawyers working in community legal centres, legal aid and pro bono.

Our work at the Human Rights Law Centre relied heavily on pro bono contributions from many of the firms and barristers here tonight.

Your contributions were vital to achieving more equal access to justice.

For refugee families at risk of deportation or separated from loved ones detained offshore.

For LGBTQI+ communities advocating for equality.

Or for Aboriginal families grieving for loved ones who died in custody and wanting to stop what happened to them from happening ever again.

Access to justice is more than access to lawyers

But of course access to justice is much more than access to lawyers.

It’s not access to justice to receive accurate legal advice that what happened to you is unfair but perfectly legal.

At the Federal level, the Australian Governments has just walked back on its promise to amend laws to protect gay, lesbian, bisexual, queer and trans children from discrimination in religious schools.

This means in some states like NSW (thankfully not Victoria) it’s legal for religious schools to harm children because of who they are.

A legal system which facilitates this isn’t one which provides access to justice.

Another example is the very low age of criminal responsibility in Australia.

Hundreds of children aged 10-13 are locked up every year across the country.

For every one locked up there are many more arrested and prosecuted.

What’s worse is the unequal impact of these laws. First Nations children, families and communities are being hit the hardest. Around 70% of 10-13 year old children locked up are First Nations.

It’s good that the Victorian Parliament has just passed laws to raise the age of criminal responsibility to 12, but deeply disappointing the government has walked back on its commitment to raise the age to 14.

Even more disturbing is the fact that the new Northern Territory government says one of its key priorities is to reverse recent changes and lower the age of criminal responsibility there from 12 to 10.

They want the power to arrest, charge, prosecute and lock up primary school children.

This isn’t the way to build safer, healthier, fairer communities.

This isn’t the path to access to justice.

Those with power shape the law

To ensure the law delivers justice we need lawyers and allies speaking up about problems with the law and how to fix them.

I learned this early on working in community legal centres seeing how the legal system failed to properly protect the rights and interests of people experiencing poverty and disadvantage.

Too often our laws are shaped by the voices and perspectives of those who hold power in our society.

Too often our laws harm those who don’t.

I used to do a presentation for new community lawyers in Victoria where I’d share this quote from Barack Obama on the law.

He says: “The study of the law can be disappointing at times – a sort of glorified accounting that services to regulate the affairs of those who have power – and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.”

It was good coming back to that quote after my experience working at the Yoorrook Justice Commission.

The quote helps to explain how it is that the British law facilitated the theft of land from Aboriginal and Torres Strait Islander people.

It helps explain why British law legitimised the inherent racist ideology that saw Captain James Cook claim possession of the east coast of this land simply by being the first European to “discover” and plant his flag on it.

It helps explain why the law facilitated the doubling down on this claim when the British Government gave Arthur Phillip his commission that arrogantly created the colony of New South Wales over some millions of square kilometres inhabited by hundreds of sovereign Aboriginal nations for tens of thousands of years.

This may have been a form of law but it wasn’t justice.

Aboriginal justice in Victoria

It was a privilege to work at the Yoorrook Justice Commission.

It changed the way I look at the world.

I now look differently at the Mabo decision.

Despite its undeniable importance and the incredible strength and resistance of Eddie Koiki Mabo and others who won the case, I don’t look at Mabo as a landmark step forward.

I look at Mabo as the very least the High Court could have done to recognise what was obvious for the previous two hundred years – it was always Aboriginal and Torres Strait Islander land.

I look at Mabo through the prism of the Charles Perkins quote when he said “We live off the crumbs of the white Australian table and are told to be grateful.”

In many ways native title is the crumbs off the white Australian table.

Aboriginal and Torres Strait Islander people have a chance to get what’s left over after everyone else has had their feed.

And Aboriginal nations most damaged by colonisation are least likely to have a valid native title claim.

Thankfully Aboriginal people in Victoria, with the Victorian Government, are working to change this.

Remarkable work is being done through the elected First Peoples Assembly of Victoria to represent the interests of Aboriginal and Torres Strait Islander people and negotiate treaties with the state.

Remarkable work is being done at the Yoorrook Justice Commission to tell the true history of injustice against First Peoples in Victoria since colonisation and to recommend changes to address it.

I acknowledge Yoorrook’s Chair Aunty Eleanor Bourke who is here tonight.

Aunt you are one of the greatest people I’ve ever met.

I am constantly reminded of your words that the past is present.

That the ongoing injustice against First Peoples in this country is just an adapted form of the injustice that has been going on since 1788.

Thank you for the work you and all the team at Yoorrook are doing.

And to the Attorney – thank you for government’s leadership in being willing to engage with First Peoples as equals to negotiate how we can create a different story in Victoria for future generations.

One where First Peoples have power and control over the issues that affect them.

One where First Peoples families have access to quality education, housing and healthcare.

One where First Peoples communities are prosperous, where country is healthy and where culture and language is thriving.

What the legal profession stands for

I want to end by talking about the legal profession.

I’ve been lucky in my career to see the law from many sides.

Corporate law.

Community law.

Law reform.

Aboriginal justice

And human rights.

In some ways the choice to study law for me was accidental – but as soon as I started I loved it.

I love the promise of what law can be and the positive role in can play in shaping the kind of society we all want to live in – a society with human rights at its heart.

I’m encouraged by the work being done to address the problems in the practice of law – the overwork, the pressure to bill, the sexual harassment, the lack of diversity in leadership roles and more.

One of the things that has helped me stay happy in the practice of law and law reform is a sense of purpose and an alignment of values.

And you need be a human rights lawyer to have this.

When I think about what we stand for as a legal profession - I think about values like the rule of law, access to justice, fairness and human rights.

Conclusion

So to end I’d just say thank you to those people here who are working to stand up for these values.

And for those who are looking for purpose and ways to do more I’d say: Do something.

Act ethically in your work.

Speak up when you see something wrong.

Learn about the work of Yoorrook and how the law has treated Aboriginal people.

Volunteer in a community legal centre.

Do some pro bono work.

Join a non-profit board.

Donate to a good cause.

Support calls for positive law and policy reform – like the push for an Australian Human Rights Act which will be a key priority for my five year term in this new role.

The law can be the best and worst of us. There is enormous power and privilege in a room like this tonight. I look forward to working with you over the next five years to help make the law the best it can be, reflecting the values we share.