You defied your solitude; I came through alone… On Dutton’s comments about lawyers

The Minister for Immigration and Border Protection, Peter Dutton, commented this week that refugee lawyers are ‘unAustralian’.  Of course, as night follows day, there was the expected backlash.  How dare the Minister make these comments?  Rule of Law!  There’s nothing more Australian than being a lawyer!  Laws are Australian.

For me, the surprise was how tone-deaf the response to the Minister has been.  Lawyers and legal groups have all tut-tutted with censorious rhetoric without understanding the enormity of the puzzle behind Dutton’s comments: society does not trust lawyers.

A friend of the family was involved in a dispute about a fence.  The neighbouring farmer had put up a fence in such a way that it redirected a significant amount of water into our friend’s property when it rained.

This is a fairly classic legal dispute.  If you’re studying law, this will be presented as a question of what legal remedies are available to the parties, the competing interests, and the names of relevant cases.  If you’re not studying law, if this is your property and your fence, you don’t think about what legal remedies are available, the competing interests, or even the names of the relevant cases.  What you do is you push the fence over.  Then your neighbour comes and makes bravado claims that he’ll thump you.  Then somebody who’s a mate to both you and your neighbour tells you both to settle down.

The vast majority of Australia’s legal need is not resolved by seeking legal advice.  On the contrary, we have social norms that lawyers are for people who can’t resolve their problems ‘properly’.  If you’re a coward, you sue.  If you can’t handle your own problems, you talk to a lawyer.  If you can’t get your own way, you try your luck with the legal system.

One political party is building capital in the idea that the legal system designed by feminists to short change fathers.  Evil women with their evil women lawyers are using the family court system to take kids away from dads, and to make the dads pay for it.  Even though women (and other minorities) are crushed in every other part of the legal system, it’s somehow a priority to make sure men are not crushed by this very specific area of the legal system.  There’s something neurotic about this performance: the fear that the legal system has always been there to protect men and now our own toys are being used against us.  This is somehow more illegitimate than the legal system incarcerating Indigenous Australians at genocidal rates, or more illegitimate than denying female victims of violence justice against their male aggressors.  Those injustices are normal; guys getting ripped off by women is some kind of topsy-turvy, Enchanted Faraway Tree nonsense.

And then there’s the ‘lawfare’ concept: activist lawyers who can’t change government policies through legitimate, democratic means are going to the courts to force the issue.  Lawyers keep trying to stop offshore detention even though the wider Australian public votes for it and supports it.  Environmental activists keep challenging work-creating projects on the basis of legal technicality.  And judges siding with terrorists?!

Taken together, those two issues point to an underlying resentment about the legal system that seems to prioritise the needs of Others over ‘ordinary’ Australians.  Everybody else uses our legal system against us.  The few use the system against the majority.  And we sort out our issues properly, like real men, while they use sneaky rules to undermine us.

Here’s the controversial part: I do not think it is the fault of ordinary Australians that they feel this way.

Our legal system puts the onus on individuals to assess their own legal needs.  Even to understand that a person has a legal issue is a task that requires specialist knowledge and skill.  I had a recent meeting where the topic of legal ‘bots’ were raised: people could ask the bot if they had a legal issue and the bot would ask them questions before screening people in or out and scheduling a meeting with a lawyer.  My point was that people don’t even know that they should go looking for that bot.  People do not have a good background understanding of the legal system to inform them that they might have a legal issue.

Dutton was only able to make the comments he did because of the complete failure of the legal profession to keep engaged with the wider public that it is supposed to serve.  I write fairly frequently about the failure of academic legal theorists in particular to lead public debate on legal issues.

Framed differently, for the legal profession to say that Dutton is wrong about lawyers defending the Other being ‘un-Australian’, they show how disconnected they are from the Australian community that resents the legal system.  Instead, there needs to be acknowledgement that, although Dutton’s comment were deplorable, they were only possible because of a problem that needs urgent attention.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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