Supporting the call for a national disability law service
Blind Citizens has added its voice to the call for the current Auckland Disability Law service to be “saved” and developed into a true national disability law service. The issue arises because the Ministry of Justice is reviewing funding for all community law centres in New Zealand and this includes Auckland Disability Law. The Ministry’s proposal to replace specialist law centres such as Auckland Disability Law with a “capacity building” service, would result in a lack of specialist disability legal services.
Blind Citizens has added its voice to the call for the current Auckland Disability Law service to be “saved” and developed into a true national disability law service. The issue arises because the Ministry of Justice is reviewing funding for all community law centres in New Zealand and this includes Auckland Disability Law. The Ministry’s proposal to replace specialist law centres such as Auckland Disability Law with a “capacity building” service, would result in a lack of specialist disability legal services. The Board’s approach therefore, is not just about saving Auckland Disability Law, it is to ensure it remains and that other specialist disability legal services around the country, are available.
The following comments come from an address I recently gave at a gathering hosted by Auckland Disability Law to discuss this issue. I make the case for a national disability law service. I believe I can share this with you now in my President’s Blog since Blind Citizens has decided to add its voice to the call.
Probably all people with disabilities know that deep feeling of pain that comes from being discriminated against by people who misjudge us because of their misconceptions of our disabilities. We are not alone of course; life is full of hard knocks for almost everyone. But it cuts deep into your soul when someone else misjudges you as a person because you are in a wheelchair, or you have a major speech defect, or you can’t make eye contact, and so on. I can recall such instances in my life dating back to when I was a child. Sometimes these things are deeply painful, certainly they are character building, and if we are to survive at all in this world, we must chalk them up to experience and keep boxing on.
As a qualified lawyer, although I am not currently practising, I am aware of just how much our adversarial system of justice relies on the assessment of credibility of the person, whether that person is an accused party, a litigant in a civil proceeding or a witness, and whether or not that assessment of credibility is by a judge or a jury. This became particularly apparent to me during my two years as a Judge’s Clerk in the Auckland High Court. This gave me the opportunity to closely watch many cases as they went through the Court system. I learned to appreciate at first hand the immense power in the hands of judges, because once that judicial order is signed, the full power of the state is then unleashed and may have a profound impact on the parties. During my time at the High Court, I got to know some judges on an almost personal basis, and I got to appreciate that they do deeply feel the need to make the right decisions, but at the same time they are under a lot of pressure to quickly understand all the evidence put to them and make a decision. Then they must quickly clear their mind and move on to the next case.
This in turn led me to better understand the critical role lawyers play in how our system of justice works. If a case involves disability in any way, we rely on our lawyer to fully understand how disability relates to the case and then articulate that clearly to the Court. Any failure on our lawyer’s part is likely to lead to injustice.
And let us not forget the possibility that a lawyer on the opposing side might deliberately play the disability card as a tactic to attack our credibility. We know only too well I think that when we become the focus of attention, it is our disability that people see first. For example, if you see a man has a stain on his tie or is wearing non-matching socks, you might just laugh it off as nothing more than an instance of a man’s absent mindedness. But if I stand before you as a blind person with a stain on my tie or odd socks on, your first instinct will be to conclude that this is because I am blind. Somehow we are not entitled to the same lapses of attention as other people. You can easily see I think how this way of thinking might impact on something as emotionally charged as, for example, a child custody case involving a parent who is disabled. We all know I think that children of all walks of life can be hit with a problem like head lice at least some time in their life. We all know I think that despite people’s best intentions, children can get into difficulty when a parent’s attention is distracted even for a moment, and in some cases the consequences are tragic. But imagine now that such instances involve a child where the primary caregiver is disabled and is seeking to have on-going custody. It is easy to imagine I think how a lawyer on the opposing side could try to have a field day with any such instances involving the disabled parent, arguing that they prove the child is simply not safe in that person’s custody because of their disability.
A fundamental principle of justice is that All people are equal before the law. But if we accept that disabled people can be misjudged by others because of our disabilities, you can see why having a disability might lead to an unfair assessment of our credibility, or of a critical issue in a proceeding, whether this be by judges, lawyers or a jury. Unless something is done to address this possibility, there is a real danger that our right to fair justice is compromised.
At the same time, disabled people are more and more claiming our rights as citizens. This is reflected in the United Nations Convention on the Rights of Persons with Disabilities which New Zealand has ratified. We can therefore expect a trend towards more disputes and possibly litigation involving disability as a central issue, as we challenge Society to uphold our right to the same equitable access to goods and services as is enjoyed by everyone else.
A well-established disability law service can address such concerns in at least the following ways:
- It can raise awareness of disability amongst lawyers and judges. This will help to ensure that people with disabilities will not be misunderstood but will be correctly assessed by courts in a legal proceeding. It will also help Courts to correctly assess the true impact and relevance of disability in cases where it is argued that disability is a key issue.
- It can also raise awareness of disability amongst people involved in the general administration of law. This will help ensure disabled people can have full access to the supports we may need as participants in a legal process, such as legal documents in accessible formats, sign language interpreters, other supports related to physical accessibility of facilities, and so on.
- It can give us direct access to lawyers who have made it their business to focus on disability in law. If a disabled person has to face a significant legal issue in their life, and if disability is or could be a significant factor in that case, then in my view that person has the right to be represented by a lawyer who is experienced in this field, a lawyer who can confidently address arguments concerning disability and how disability might relate to the other legal issues in the case.
- Finally, it can create a body of knowledge in the field of disability law itself. Although it is argued that some 20% of the population has a disability, if we focus on serious life changing disabilities of the type that could require a special accommodation or could impact on a person’s access to fair justice, the percentage is much much less. Given also that very few cases actually reach a court of law, it can be easily seen that disability law is a very specialised area. We need to build up a body of knowledge concerning disability law and we need to encourage lawyers to specialise in this field of practice.
It is well established in New Zealand, both by convention and by legislation such as the Bill of Rights Act 1990, that everyone enjoys the basic right to justice and to be treated fairly and equally by our courts. Under Article 13 of the Convention on the Rights of Persons with Disabilities, there is an obligation on New Zealand to (and I quote from the Convention) “ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings …”
A disability law service is vital if New Zealand is to meet its obligations under the Convention. Such a service must not only focus on raising awareness of disability in the legal profession, but it must also address the other outcomes I referred to earlier. It is not enough to just provide advice to lawyers. It is well established I think that cases involving particular issues should be handled by lawyers who understand those issues. I’m sure for instance that if you were to find yourself in hot water with the Inland Revenue, you would want an experienced tax lawyer to look after your interests. Likewise, when disability itself may be a key issue in a case, New Zealand must meet its obligations under the Convention by providing access to lawyers who specialise in the field.
I hope these are persuasive arguments for why New Zealand needs a truly national community law service that meets the needs of disabled people by being properly grounded in modern disability philosophy and giving us access to lawyers who specialise in disability law. We look forward to the outcome of the review currently being carried out by the Ministry of Justice.