I recently re-watched the 1989 Disney animated masterpiece, The Little Mermaid, a movie that holds a bit of nostalgia for me from childhood. You will definitely be seeing me throw my money at Disney for the live-action version of this film coming out in 2023 starring Halle Bailey, Melissa McCarthy, Daveed Diggs and more, with new music by none other than Lin-Manuel Miranda. No, this is not a paid advertisement or endorsement of the movies, I am just a fan! But watching the movie as an adult I had so many thoughts and plot questions, which I won’t go through here. Although I will say that when Sebastian says, “Ariel, listen to me, the human world is a mess”, I felt that in my bones. It also affirmed for me as the eldest sibling in my own family, how much the youngest sibling gets away with everything. I also had some thoughts about how the movie in some ways reflected interesting points that we can, or already, utilise as lawyers in legal practice but specifically in relation to the right to freedom of expression. I hope this Talanoa will be useful for early career lawyers who are passionate about empowering their clients.
As lawyers, our role is either as an advocate, or an adviser, to assist our client to understand their rights and legal matters. The right to speak and have your voice heard is important whether it’s at work, in a relationship, or in keeping with civil obligations like voting or being called as a juror to name a few. Our state government recognises the ‘right to freedom of expression’ as one of 23 categories of human rights encapsulated in Queensland’s Human Rights Act (2019).(1) That is the ‘right to hold an opinion without interference, the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Queensland, orally, in writing, print, by way of art, or other medium of choice’.
Colloquially, the right to freedom of expression is often discussed in the context of ‘hate speech. However, what I love about this right to freely express yourself is that it encompasses the right to communicate, to be able to communicate and to be understood.(2) It makes this right so important to all of us but especially those with communication barriers. This person could be a child or adult, with a communication barrier such as a hearing/speaking impairment, disability or language barrier.
I list below the intersections between this human right and The Little Mermaid that I believe are relevant to how we can better practice and enliven this right:
1. Enabling our client’s right to make decisions that we may not necessarily agree with. Our role is to ensure that we provide the best legal advice and that our clients have the necessary information needed to prosecute their case, including understanding the consequences of making certain legal decisions. Flounder and Scuttle always acted in Ariel’s best interests, to a fault, even when they were unsure or disagreed with Ariel. Similarly, we must also ensure we act in our client’s best interests, after all that is one of our several ethical obligations as officers of the Court. This can be challenging if you don’t agree with your client, and there are definitely nuances here where you may have to carefully and thoughtfully ensure you are not going outside the ethical bounds of your role. In saying that, it can be easy to silence or ignore a client (particularly vulnerable clients) if we disagree with what they are saying, or using our ‘legal filter’ to understand what’s relevant. I think it’s important to be mindful that justice for our client may look different from what we have in mind. So, whilst we are not employed to be our client’s mouthpiece, being able to listen and understand what it is our client needs is a crucial part of lawyering.
2. Assisted decision making is of particular importance when working with clients who may have a communication impairment or disability. Sometimes called ‘supported decision making’, this framework is derived from the Convention on the Rights of Persons with Disabilities and requires us to get to know our clients. Australia is a signatory to this convention but it isn’t specifically adopted as law by the federal or state governments. However, the convention provides to us what could be considered ‘best practice’ when working with persons with disabilities. One of my favourite songs from The Little Mermaid is “Kiss the Girl” crooned by the loveable crab, Sebastian. In some ways, Sebastian is utilising Supported Decision Making by:
Knowing Ariel well.
Understanding Ariel’s special needs. Ariel’s voice was literally taken away from her by the evil (or fabulous anti-hero?) sea witch, Ursula.
Identifying and utilising other supports (other singing animals) around Ariel to support her to have Eric give her true love’s kiss (ugh!).
Simplifying the options for Ariel. In a previous song, Sebastian sang “Under the Sea” where he laid out plainly for Ariel her options of living under the sea or on land. Although admittedly, he was more than slightly biased.
Putting his own wishes and views aside.
Helping Ariel to communicate and be understood by Eric.
In practice, this could look like us utilising an interpreter, ensuring the client is in a safe environment to disclose information or provide instructions, meeting and discussing the matter multiple times or ways (in writing, and in person etc) and if in court, ensuring the court is aware of the client’s needs and providing the client with a captioner, or interpreter, or cultural or other support to ensure they are able to express themselves, and understand what is happening.
Now, one might argue that Ursula was also using supported decision making when she helped Ariel become a human for a limited time to be with Eric. But I wouldn’t agree because Ursula had her own motives and she really wasn’t centering Ariel at all. If you take anything away from this essay at all, be a Sebastian-like lawyer, not an Ursula-like lawyer.
3. Utilising empathy, compassion and being aware of the big picture. King Triton was a single father of seven daughters, so of course he was going to be overprotective when his youngest daughter, Ariel, told him she was in love with a human boy she hadn’t met. Like King Triton, we cannot protect our clients from everything and everyone, and our role as officers of the court is to ensure the administration of justice. The lesson King Triton teaches us is the importance of understanding how our personal skills like empathy and compassion can help us to be better lawyers. For this reason, it can be helpful to have a ‘birds-eye view’ of the intersections of the law with other parts of our client’s lives to ensure they receive the access to justice and equity they may require. This might mean we need to consider referring them, with their consent, to other supports or services (social workers, speech pathologists, financial counsellors, therapists, educators, etc.) that could address other barriers in their lives that, if resolved or eased, could improve the way they move, participate and express themselves in justice or legal systems.
In my experience working in domestic and family violence matters, this is of significant relevance to those clients who are coming to you seeking legal help. Besides the legal advice that I would provide to either the victim or perpetrator, I would also think about what services I could refer them to help them move forward. As one of my senior mentors put it, ‘we are just one point on their journey through the legal system’. The supports I would offer ranged from crisis, therapeutic, accommodation, education, and domestic violence organisations that could continue to support them.
A referral to another lawyer for advice that might be outside your jurisdiction/practice area is also important. As a family lawyer, I will often refer my clients to a wills and estates lawyer to update their testamentary and enduring documents if they are going through a divorce. Many people may have multiple legal issues that they are not even aware of. As a community legal centre lawyer, I might identify my client has social security legal issues so I might refer them to Basic Rights Queensland, or that they need immigration advice, so I might refer them to the Refugee and Immigration Legal Service, or even to Legal Aid or in-house at Caxton, for a consumer lawyer or a multitude of other legal services. If they were victim to a crime, or injured, I would also refer them to a service like Victim’s Assist Queensland, or to a personal injuries lawyer. It’s important to remember we (individually) don’t have to have all the answers, but it’s helpful to have a referral pathway in mind because it gives your clients confidence you know how to help them. In the recently reported case of Adamson v Enever & Anor(3), the court was asked to determine Mrs Adamson’s capacity for financial or legal matters after a settlement agreement was reached in relation to a motor vehicle accident. Mrs Adamson was 69 years of age at the time of the hearing, and was living with comorbidity that impacted her capacity. The court expressed its disappointment at Mrs Adamson’s personal injuries lawyers for failing to refer her to obtain advice about a Will and Enduring Power of Attorney, or to think about ways to maximise Mrs Adamson’s capacity to engage in her legal and financial decision making.(4) In the end, the court found that Mrs Adamson did have capacity. In particular, the court acknowledged her capacity was maximised through her supported decision-making network (although it didn’t use those words specifically) through her daughters and other professionals, and also considered that she is unlikely to be at risk of financial elder abuse. The court then took it upon itself to consider what should be done to support Mrs Adamson’s capacity in relation to another legal issue to do with costs differential (again, in my opinion, applying supported decision-making principles to help Mrs Adamson). It outlined, in a compassionate way, I thought, how the court would assist her, and identified steps she could take herself with her supported decision-making network to resolve her other legal issue.(5) We should definitely follow the lead of the courts in thinking about how we can support our clients to maximise their capacity through supported decision-making or through referrals to other lawyers and professionals.
4. “Don’t underestimate the importance of body language”. You absolutely have to say this line with Ursula’s voice. It’s one of the best lines (or if not, the best delivered line) in the whole movie. I want to emphasise this quote from her villain song (which, as fun as it might be, we won’t go into the broader context of this quote being an interesting commentary on the male gaze and women) in the way that it’s relevant for us as lawyers. Silence, body language, lack of eye contact, and so forth, are all person-specific and we have probably been taught all this at university, or in our continued professional development. The importance of understanding gratuitous concurrence or understanding your implicit and unconscious biases.
If you work in youth justice, for example, you might be very surprised with data from New South Wales showing 60% of young offenders within institutional settings have communication support needs, with only 5% being diagnosed before they entered the correctional facility.(6) I am going to take a wild guess here and posit that the statistics across all Australian states would likely be similar. I wonder how many of those youth feel truly heard in our legal system and feel empowered to make difficult legal, social and economic decisions.
In a day and age where there are more and more discussions about diversity, equity and inclusion, it is of utmost importance that we show accountability as lawyers in how we help shape the legal system. We cannot be passive actors in the legal system. We must be learning lawyers willing to re-think how we maximise our clients (and community) participation and access to justice. How can we help them realise their right to expression, to communicate and engage in a way that is meaningful for them?
As I walk down the, ‘what’s it called again? Oh, street’, I remember that my ability to walk, talk, sing and dance, is a privilege that is not afforded to everyone. For us whom are Pasifika lawyers, we may already have some understanding, and potentially, a good foundation for understanding cultural communication and expression. I hope that this Talanoa inspires early career lawyers to keep learning and thinking outside the box as you lean into your practice. And if we are friends in 2023, let me know if you want to join me to watch The Little Mermaid together.
Author: Tile Imo
Edited by: Vani Tamanivale
References
(1) Section 21, Human Rights Act (Qld) 2019.
(2) Jane McCormack, Elise Baker & Kathryn Crowe (2018) The human right to communicate and our need to listen: Learning from people with a history of childhood communication disorder, International Journal of Speech-Language Pathology, 20:1, 142-151, DOI: 10.1080/17549507.2018.1397747.
(3) [2021] QSC 221.
(4) Ibid, at paragraph 71-78.
(5) Ibid, at paragraphs 133-141.
(6) Stella Martin, The Role of the Speech language Pathologist in Support Young People in Youth Justice, Journal of Clinical Practice in Speech-Language Pathology, Volume 21, Number 1, 2019.
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