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Redefining administrative law to prevent harm.
The legal profession increasingly recognises the profound impact trauma has on individuals engaging with complex legal systems. Lawyers working in areas such as medical negligence, catastrophic injury, coronial inquests, child prostitution, child sexual abuse & child suicide, disability law, and veterans affairs frequently encounter clients affected by trauma. This work content can lead to psychological harm, underscoring the need for trauma-informed approaches within legal practice.
Trauma-informed legal practice is a critical framework that assumes all clients may have experienced trauma and seeks to minimise re-traumatisation while fostering safety, transparency, and respect throughout legal processes.
As government lawyers, many of us have walked away from interactions feeling helpless. Wondering what might have been different if trauma-informed approaches were embedded from the start. It is from this reflection that the call for trauma-informed legal practice arises, not only to prevent harm to citizens but also to help lawyers manage burnout, compassion fatigue, and vicarious trauma.
Today, we propose a new way to apply administrative law that incorporates trauma-informed principles to prevent unlawful interpretation and implementation of legislation within government decision-making processes. This preventative approach is central to fostering a safer legal environment for all parties involved.
Understanding Trauma and Its Legal Implications
Trauma, as defined by the Macquarie Dictionary, is a startling experience that has a lasting effect on mental life. Trauma is a shared human experience that everyone is likely to encounter at some point. The way individuals respond to trauma varies widely based on numerous factors such as prior experiences, mental health, and resilience.
Recognising trauma’s impact is crucial in legal practice. A trauma-informed approach assumes that everyone we encounter may have experienced trauma and therefore adopts strategies to minimise re-traumatisation, empower individuals, and create safe, transparent, and respectful processes.
Law firms and legal departments must foster supportive workplaces that educate staff about trauma, recognise early warning signs of psychological harm, and provide options such as job rotation or counselling.
Administrative Law as a Tool for Prevention
Administrative law governs government decision-making and serves as a bridge between individuals and state power. While historically seen as a system to mitigate abuses of power, administrative law can also proactively prevent harm by embedding principles of lawfulness, transparency, accountability, voice, safety, and recognition into the everday practice of government decision-makers.
For example, decisions made without legal authority or proper consideration of individual circumstances, such as the denial of benefits based on conflicting policies, highlight the need for rigorous application of legal principles to protect vulnerable individuals.
The Role of Automation and AI
Emerging technologies such as automated decision-making systems present an opportunity to embed trauma-informed administrative law principles systematically. Automated systems, when properly designed, can apply legislation consistently, reduce human bias, and enhance procedural fairness.
However, care must be taken to ensure these systems uphold privacy, human rights, and transparency, avoiding the perpetuation of existing biases within their design. Lawyers must be proactive in shaping these technologies to serve justice in trauma‑informed ways.
Trauma-Informed Legal Practice in Action
Practicing trauma-informed law means adapting processes to reduce harm. This includes refining evidence requirements to avoid unnecessary trauma, for example, narrowing the scope of subpoenas to prevent intrusive disclosures and empowering clients with choice and control during litigation proceedings.
Moreover, lawyers must acknowledge wider systemic issues, such as historical oppression and bureaucratic complexity, that contribute to mistrust and trauma, working to foster environments that prioritise safety, openness, and respect.
Emerging technologies such as automated decision-making systems present an opportunity to embed trauma-informed administrative law principles systematically.
Supporting Lawyer Wellbeing
The High Court’s decision in Kozarov and the State of Victoria underscored employers’ obligations to protect employees from psychological injury caused by work-related trauma. Law firms and legal departments must foster supportive workplaces that educate staff about trauma, recognise early warning signs of psychological harm, and provide options such as job rotation or counselling.
Lawyers themselves should champion trauma-informed principles to protect not only their clients but also themselves and their colleagues from compassion fatigue and burnout.
Trauma-informed legal practice is fundamentally about practising with humanity. It challenges us to rethink how administrative law can be applied to prevent harm before it occurs, embed fairness and transparency in decision-making, and support both those we serve and ourselves.
By embracing trauma-informed principles, continuing education, and technological innovation, lawyers can practice with empathy and become active agents of change in creating legal systems that respect and protect the vulnerable, championing a fairer, safer future.
This preventative approach is central to fostering a safer legal environment for all parties involved.
