ALT - 47 Annual Conference – (Re) assessing Legal Education
Lady Margaret Hall – Oxford University
Topic Stream: The review (and assessment) of legal education
Emeritus Professor David Barker AM[1]
The Review and Assessment of Legal Education within the Australian Context
Abstract: Within the last decade Australian Legal Education has been subject to progressive periods of assessment by the Australian Learning and Teaching Council (ALTC) – now abolished, the Council of Australian Law Deans (CALD), the Law Admissions Consultative Committee (LACC) and the International Legal Advisory Council (ILSAC) together with various State admission boards. This paper not only reviews the contents of these various projects but seeks to make an assessment of the claims by the various authors as to how the approach and outcomes incorporated in the projects will affect the future of Australian legal education.
Reflecting in particular on the aims expressed in the CALD/ALTC final Report on Learning and Teaching in the Discipline of Law this paper not only attempts to record exemplars of successful innovative practices currently in use within Australian law schools such as mapping the current diversity of student profiles and legal education programs, it also focuses on the development of Law Graduate Attributes and explores the settling of formal standards for Australian law schools.
The paper also recognises the necessity for the introduction into any such study of the incorporation of Threshold Learning Outcomes (TLOs) within undergraduate and postgraduate law degree programs. The intention of this proposal is that TLOSs will assist Australian law schools in their implementation at the requisite qualification level. It is intended to place this review within the international context by taking account in particular of the Browne Review within the United Kingdom, and also in the United State of America, the Carnegie foundation for the Advancement of Teaching’s recent report: Educating Lawyers: Preparation for the Profession of Law in the United States.
The proposer of this paper intends to draw on his experience of recent conference paper presentations on this topic together with both his editorial and book review experience in his capacity as the Editor of the Legal Education Digest
1. Introduction
There is a great deal of similarity between the current dilemmas faced by legal educators throughout various common law jurisdictions, particularly Australia, England and Wales and the United States.
Until recently for Australian legal educators there has been an undue effect of the Pearce Report[2] which it has to be realised was published as long ago as 1987. Account has also to be taken of the outcomes of the Consultative Committee of State and Territorial Admitting Authorities formerly chaired by Justice Priestley of the NSW Supreme Court. This compiled a list of compulsory subjects for academic legal study which became known as the Priestley Eleven[3] which was subsequently expanded to the Priestley Twelve to take account of practical legal training.
2. Australian Legal Education
Constraints of space restrict the explanation of the manner in which legal education operates in Australia. Anyone requiring an in-depth exposition should read Chapter 2 Education, training and accountability contained in the Australian Law Reform Commission Report No 89 Managing Justice – A review of the federal civil justice system.[4] This states that ‘Legal education in English speaking countries also has been affected by their traditional common law paradigm of private legal practice, regulation of the profession, the courts, and the appointment of senior practitioners (usually counsel) to the judiciary.’ It has generally been described as being ‘divided into three relatively discrete stages, involving (1) academic training at a university; (2) subsequent practical training with both institutional and in-service components; and (3) continuing education.’ Relevant to this discussion is the fact that with the rapid growth in the numbers of law undergraduates and law schools. In 1960, there were six university law schools, one in each State capital, but at the time of the publication of the Pearce Report in 1987 this number had increased to twelve law schools although it is difficult to keep pace with the establishment of new law schools, as at the last count, there were thirty four law schools, so that there has been an expectation for some form of national standards and/or accreditation.
3. The Establishment of National Standards – Council of Australian Law Deans
Standards for Australian Law Schools
In Chapter 2 of the ALRC Report 89 there is an interesting account of a previous attempt by the Law Council of Australia in 1994 to establish a National Appraisal and Standards Committee to accredit law schools and the reason why it failed. This was principally because of the ‘suggested composition of the Appraisal Committee (with only four of the eleven members being legal educators); the intrusive nature of the terms of reference, which included internal matters of personnel and resource management; and the unexplained method for funding such a labour-intensive system.[5]
Since this occurrence there has been no serious attempt either by a central organisation or by any of the State Supreme Court Admission Bodies to exercise a form of control with regard to National Standards or the accreditation of law schools.
However, in 2007 there was greater co-operation between the Law Council and CALD with regard to this question of the review of standards and accreditation. Following a meeting with all the relevant parties at the Law Convention in Sydney in 2007, the Law Council established a Legal Education committee which included representatives from CALD, ALTA, APLEC and ALSA to discuss mutual problems and developments relating to legal education.
It also has to be appreciated that until this time, within CALD itself there had never been a generally accepted view with regard to a system of national standards or accreditation of law schools. To a certain extent this had been exacerbated in recent years by the strong competition between law schools for during and enrolment of fee-paying students. An outcome of this greater co-operation within CALD was the establishment of a CALD Standing committee on Standards and Accreditation which sought the assistance of Christopher Roper AM in the drafting of a document ‘Standards for Australian Law Schools.’[6] Christopher Roper has had an outstanding record in legal education having been Head of both the Leo Cussen Institute in Melbourne and the College of Law in Sydney, the Director of the Centre for Legal Education and the College of Law Alliance and former Adjunct Professor at the City University, Hong Kong.
A brief history of the standards project has been drafted by Professor Michael Coper, the then Chair of the Standards Committee, and was published on the 9 March 2008.[7] To ensure that the exercise should be inclusive this was circulated with a copy of the ‘Standards’ to all Law Deans so that it could be considered at their appropriate law school meetings. The brief history is a useful explanation of the main standards document. It encapsulates the history and purpose of the CALD standards project. The most significant statement within this account is the paragraph which states: ‘It should be said immediately that the overwhelming purpose of the CALD standards project is to enhance the quality of Australian law schools in all of their diverse endeavours, and to do so by assisting all Australian law schools to strive for and reach a clearly articulated set of standards.’[8] This was linked with the previous explanation regarding the project which was published in an edition of the ALTA Newsletter at the time which drew attention to the fact the standards project was part of , and within the context of, another CALD project funded by the former Carrick Institute for improving learning and teaching the discipline of law and reviewed later in this Paper.[9] The paragraph concludes with: ‘The point is that the standards are intended to be beneficial, not punitive, they are written largely in general rather than tightly prescriptive terms, and allow for diversity in the different ways in which law schools might seek to fulful their particular missions. The object is to lift the quality of our various contributions to the discipline of law as a whole, and work together to do so.’[10]
As to the standards themselves their relevance is incorporated in an unanimous resolution adopted by CALD at its first meeting in 2008 at the University of New South Wales, Faculty of Law, Sydney on the 4 March. Because of the location of the meeting the resolution has been entitled the ‘Coogee Sands’ Resolution.[11]
The Resolution , which is in three parts, commits members of CALD to the principle of the standards for Australian law schools as set out in the Roper Report. They have also agreed to a process of certification of compliance with the standards, and in particular with regard to identifying which of these should be core or minimum standards and which should be aspirational.
With regard to the standards document much of it is concerned with matters which have been the cause of discussion and debate within most law schools over recent years. It is however important that such matters are now incorporated in an all embracing document subscribed to by the representatives of all Australian law schools. This means a commitment to graduate attributes, a clear understanding of curriculum design and educational methods, curriculum dissemination and assessment of students. More relevant within a document of this nature is that CALD is willing to define a basic requirement for academic staff, their profile and an outline of their duties. Even more significant is their willingness to define the basic expectations with respect to the law library or law collection, resources and infrastructure, the nexus between teaching and research, governance and administration of the law school. Because of a lack of consensus of its members in the past these were topics which CALD had been unwilling to consider as part of its remit. Statements such as ‘the the title of the academic head of the law school is dean’ and ‘the law school has a dedicated operational budget and the responsibility for managing it,’[12] would have been considered unacceptable in a CALD resolution a few years ago.
4. Critique of the Standard for Australian Law Schools
It was very interesting to observe the questions which were raised after the adoption of the Coogee Sands Resolution as to its acceptability within the legal education community. In an article in the May 2008 edition of the NSW Law Society Journal,[13] Luke Slattery stated that ‘Australian legal education is set to undergo an historic overhaul as law school heads consider a controversial proposal to set both minimum and aspirational standards for incorporation into a national accreditation process.’ In this article he was adept in focusing on those issues which had divided members of CALD in the past, and which could create divisions in the future within CALD when it was to meet again later in the year. He based this on the view that some law deans might consider that the implementation of the recommended standards was a move ‘by deans from the Group-of-Eight law schools - to stratify legal education and formalize and institutional hierarchy.[14] There was also a view articulated by Professor Tryone Carlin, the then Dean of Law at Macquarie University concerning the danger that the Standards would result in ‘a move towards greater curriculum uniformity’.[15] In contrast was the quotation by Arie Freberg, the Dean of Monash University’s Faculty of Law who stated that: ‘What’s important now is to maintain our national and international reputation. You’ve got to have some way of accrediting or backing up the quality of the lawyers we’re putting out.’[16]
Actually none of the concerns voiced by Slattery and Carlin transpired and the consensus view at the time was that if CALD had not developed this draft national charter of standards then the initiative would have been taken up by some other formal body such the Law Council of Australia or the Standing Committee of Attorneys-General (SCAG). Although this document did not create a form of self-regulation by CALD, it did mean that at the time there was a high probability, as was suggested by Professor Bill Ford, the CALD Chair, ‘that it will be available to the Law Admissions consultative committee, which will use it as the basis for its discussion on accreditation from jurisdiction to jurisdiction.’[17]
Up and until the current time of the writing of this paper there does not appear to have been a general implementation of the standards document by Australian law schools. However where it has been useful is in its use as a bench mark document for those universities such as the Royal Melbourne Institute of Technology University and Central Queensland University who have both recently introduced a law degree programme into their institution.
5. Complementary Related Project - Learning and Teaching in the Discipline of Law
Building on the success of their major Report in 2008, Standards for Australian Law Schools, adopted by the Council of Australian Law Deans (CALD) in March 2008 and ratified by the ‘Coogee Sands’ Resolution, a complementary related project was finalised by CALD in 2009. Entitled: Learning and Teaching in the Discipline of Law: Achieving and sustaining Excellence in a Changed and Changing Environment, it was funded by the former Australian Learning and Teaching Council (ALTC). The contents of this Report (CALD/ALTC Report) are also the subject of this paper (subsequently referred to, for the sake of brevity, as the ‘CALD Project /Report’).
By way of explanation with regard to the financing of the Project, funding was channelled through the Australian National University (ANU) which was the higher education institution in formal receipt of what are described as an ALTC Discipline-based Initiative (DBI) Grant Scheme funds.
The motivation for this paper was the realization that it was only recently that CALD had become involved in the undertaking of or sponsoring research into legal education. The fact that CALD has been in existence for 32 years (originally established as an Interest Group of ALTA in 1978), makes its previous lack of willingness or enthusiasm to involve itself in such undertakings appear strange to an outsider, but to those who have been involved with operations of CALD it comes as no surprise. CALD, after all, is an association of the 34 law schools in Australia. Until recently there have been disparities in the size, status and the way in which these law schools have been funded by their respective universities. This has meant intensive competition between them for students, particularly international students, and also for the receipt of government funding especially with regard to Australian Research Council (ARC) grants. However recently there was a realization that if the CALD membership did not support their representative association in providing a united front in its negotiations with government organisations and in its dealings with similar discipline based associations and professional legal bodies such as the Law Council, then legal education would miss out in maintaining itself as a legitimate form of major study within the tertiary education sector.
This semi-supportive approach may be illustrated by the background to the former Australian Universities Teaching (Committee) AUTC funded project on which the current project has been built – Learning Outcomes and Curriculum Development in Law[18]. The background to this project indicates that in the first instance it was supported by a minority of Australian law schools and it was only in the final stages that it received the general backing of CALD and was launched at the 2003 Commonwealth Law Conference in Melbourne. This Report will be referred to in fuller detail later in this paper.