Every day around Tasmania hundreds of men, women and children appear in our courts. For most the experience is intimidating and stressful. In part this is because of the possible outcomes, but also by virtue of the fact that the language used in, and by, our legal system is difficult to comprehend even for well-educated citizens.
Many of the clients I represent and work with in the criminal justice system and the broader human rights framework struggle with literacy. Yes, some might be able to read, write and understand at a fairly basic level but legal documents and the way in which lawyers, judges and magistrates write and speak is exceedingly difficult to understand.
On many occasions after a person has been dealt with by a court they will look at their lawyer – and it has happened to me more times than I care to remember – and say, ‘what happened’? This should not be the case.
The situation is even more outrageous if you are a self-represented litigant. On many occasions I have sat in courts in Tasmania and Victoria and seen a man or woman stand at the bar table and have to answer questions from the bench or be given documents and asked to read them. In many of those cases the person will be struggling with literacy.
Access to justice is a fundamental human right but access must not just mean a citizen is able to appear before a court to argue their claim or defend themselves against allegations. Instead access to justice only has meaning in a substantive sense if the citizen is participating in the legal process in a manner that is knowing.
Whether it is criminal law, family law or civil law the reality is that if you are one of the 48 percent of Tasmanians with a literacy issue then participating in the legal system is going to be difficult, frustrating and more stressful than it already is by its very nature.
We ask our clients to read over legal documents in their case. In fact, it is a requirement for a lawyer to do so. But how can those, even with functional literacy, properly comprehend what is on the page in front of them given the technical language, long sentences and references to archaic English words and phrases?
Simple, they cannot.
So how do we address this endemic problem of lack of meaningful access to justice for those living with the daily challenge of a low level of literacy?
A good start would be for the courts to work in partnership with each other –federal and state – and develop a culture of clear and simple communication. Each court should have available support workers whose job it is to assist any person that requires support in the court or in accessing justice through filling out of legal forms.
Importantly, we need to skill lawyers and judicial officers in literacy and communication. In California there is now a guide for judges to help them recognise low literacy and then use techniques to address it. To address low literacy in the courtroom, the Californian Benchbook recommends firstly that judges and lawyers need to “be aware of their own biases relating to low literacy and remember – low literacy does not equal low intelligence”. It recommends judges use “plain language instead of “legalese,”; use “short sentences and clear language”; use words consistently; use “the active voice”, and; avoid “strings of infinitives (“authorize and empower”).”
Legal training, right from the first day aspiring lawyers turn up at law school, should emphasise plain English, nonverbal skills and communication. Learning how to assess for literacy in clients and users of the court system must be in the tool kit of the 21st century lawyer.
Citizens with low levels of literacy should not be subjected to daily discrimination in our court system. We have, as a community, an obligation to invest in ensuring that barriers to those with literacy challenges are removed.
Greg Barns is a barrister, Chair of the Prisoners Legal Service in Tasmania, and a former National President of the Australian Lawyers Alliance. Here he writes for the Communicating: The Heart of Literacy initiative – find out more at chattermatters.com.au.