Rethinking Legal Information for Vulnerable People in Australia

Plain language and the law: Rethinking legal information for vulnerable people in Australia Dorothy Ann Fauls Bachelor of Arts, The University of Queensland Bachelor of Laws, The University of Queensland Master of Arts (Writing, Editing and Publishing), The University of Queensland A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2018 School of Communication and Arts Abstract This thesis evaluates the effectiveness of plain language legal information resources for vulnerable people from the perspective of legal service providers working in the community legal sector in Australia. Plain language legal information aims to improve individuals’ access to the legal system. However, limited research is available that tests the effectiveness of legal information resources. Some studies have considered the effectiveness of self-help legal services, and others have studied the effectiveness of applying plain language to legislation and legal documents such as contracts. This thesis specifically considers the target audience of vulnerable groups, who are more likely to experience unmet legal need, turn to legal assistance services, and be expected to use legal information resources. The research method involves semi-structured qualitative interviews with 20 participants working in community legal services and legal aid commissions. Participants were asked whether using plain language principles to draft legal information resources helped to make those resources more useful for the people who accessed their services. The thesis adopts Amartya Sen’s capability approach and applies Iris Marion Young’s theory of structural injustice in the context of the research. It argues that the limitations of our justice system and access-to-justice reforms create structural disadvantage, particularly for people who are already vulnerable. My findings show that difficulty in translating legal concepts into plain language comes not only from the concepts themselves, but from their positioning within a complex legal system, which requires specialised knowledge to understand. Funding shortages limit the time participants can spend on community engagement and properly researching, testing, and evaluating resources. Participants did not have the skills required to translate complex legal concepts into plain language. Further, in the context of vulnerability, the availability of plain language legal information is less relevant than other factors, such as an individuals’ capability and access to advocacy services. This thesis shows that using clear and plain language in complex legal matters is more difficult than plain language advocates suggest, and that even clearly presented information is not always used by, or useful for, vulnerable people, even when they have the support of legal advice. Even if vulnerable people receive specific information that is directly related to a legal problem they have sought help to resolve, this does not guarantee that they will read it or have the capability to understand and apply it. 2 Although the findings show that legal information is not always useful for vulnerable people, whether written in plain language or not, participants felt that providing such information is essential. This is due to an underlying belief across the community legal sector that legal information resources can empower people to help themselves. In the broad access-to-justice landscape, the expectations of personal responsibility placed on vulnerable people are disproportionate, and the expectation that the provision of legal information resources to vulnerable people will empower them to resolve their own legal problems is unrealistic and unjust. These research findings lead to the recommendation that the burden of legal information provision should be moved away from the services whose target group is vulnerable people, and that other bodies—with the necessary skills and resources—should be funded to create appropriate legal information resources. The thesis encourages a cultural shift within the legal assistance sector away from the idea that legal information can empower vulnerable people. More research should be conducted to consult vulnerable people and engage them in finding solutions that work when determining how best to meet their legal needs. Finally, the study supports a shift in focus to improving the structures that affect access to legal assistance, and the legal system generally, for vulnerable people. 3 Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, financial support and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my higher degree by research candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the policy and procedures of The University of Queensland, the thesis be made available for research and study in accordance with the Copyright Act 1968 unless a period of embargo has been approved by the Dean of the Graduate School. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis and have sought permission from co-authors for any jointly authored works included in the thesis. 4 Publications included in this thesis No publications included. Submitted manuscripts included in this thesis No manuscripts submitted for publication. Other publications during candidature No other publications. Contributions by others to the thesis No contributions by others. Statement of parts of the thesis submitted to qualify for the award of another degree No works submitted towards another degree have been included in this thesis. 5 Research Involving Human or Animal Subjects Institutional Human Research Ethics Approval This project complies with the provisions contained in the National Statement on Ethical Conduct in Human Research and complies with the regulations governing experimentation on humans. Behavioural & Social Sciences Ethical Review Committee Expedited review—low risk Name of Ethics Committee representative: Associate Processor Elizabeth MacKinlay (Chairperson) Project title: Plain language and the law: Legal information in Australia Chief investigator: Ms Dorothy Fauls Approval number: 2016000948 Approval date: 28 July 2016 Duration: 30 June 2017 A copy of the ethics approval is included in the thesis appendices (see Appendix 1). 6 Acknowledgements While completing my thesis was often individual, isolating work, I have many people to thank for getting me to a place where I had the privilege of being able to do that work. I want to start by acknowledging my participants, for giving their time and thoughts so generously and enthusiastically to this project, and for encouraging me along the way. They are representatives of a group of people who demonstrate an unflagging commitment to seeking justice for the most vulnerable people in our communities, and their dedication to this work inspires me. I also want to thank the community legal service that gave me the opportunity to be a volunteer and see how a community legal service works from the inside, and for supporting this project. Thank you to the Community Legal Education Legal Assistance Forum (QLD) and the Northern Territory Community Legal Education Network, for valuable feedback on the importance and use of this project for the legal assistance sector. To Associate Professor Roslyn Petelin, thank you for keen-eyed proofreading and writing instruction, and support through early stages of candidature. You started me on this path with the well-timed question: “Have you considered doing a PhD?” Dr Josephine Robertson, thank you for feedback on early drafts, and support through the early stages of my candidature. You recognised the passion for justice that drives me and lent your own passion to the project. Professor Tamara Walsh picked up this project at a critical juncture and guided me towards a realistic and useful project design. Thank you for your advice on data collection and analysis, for your encouragement, support, and important insight into the legal assistance sector. You are skilled at providing positive, constructive, and direct feedback, and I have appreciated the way you have engaged with my ideas and expressed such enthusiasm about my findings. Professor Jane Stadler has taken an interest in my work from initial acceptance to HDR study right through to completion. Thank you for taking on the task of supervision at crucial stages throughout my candidature, and particularly for supporting the project through the final stages. Thank

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