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Barker, David --- "Academic Law Associations - legal education" [2009] ALRS 12

Last Updated: 31 May 2010

Components of the Scene – What effect have Academic Law Associations

had on the development of Australian Legal Education?



Emeritus Professor David Barker AM



*** Paper presented at the 2009 ALTA Conference – Legal Education Interest Group at the School of Law, University of Western Sydney on 6th July 2009 ***

1. INTRODUCTION

Whenever there is a publication or report relating to the development of legal education such as the 1987 Pearce Report[1] on Australian law schools, it is interesting to reflect that whilst the focus is on the Government, University and Law Schools, there is little or no emphasis ever made of the effect or influence of the various academic law associations.

Is this because they are regarded as ineffectual or of no consequence, or is it because no account has ever been taken of their existence or influence?

This attitude is not confined to Australian legal education. One of the criticisms of Robert B Stevens’ seminal text on American legal education: Law School: Legal Education in America from the 1850s to the 1980s,[2] is that whilst it deals in depth with to the development of individual law schools in the United States of America, there is no mention of the effect of the establishment of the Association of American Law Schools in 1900. Neither is there any reference to the many academic law associations such as the Society of American Law Teachers, American Legal Studies Association, Legal Writing Institute or the Clinical Legal Education Association, all of which have had such a profound effect on the development of American legal education.

2. ORGANISATIONS AS A UNIFYING FACTOR?

In the Australian Law Reform Commission Report No 89 – Managing Justice A review of the federal civil justice system[3] there is a statement under the heading Towards an Australian Academy of Law which, at the time of publication of the Report – 2000, questions the effectiveness of any institution in existence at that time to influence legal education; ‘In the Commission’s view, there is a need for an institution which can draw together the various strands of the legal community to facilitate effective intellectual interchange of discussion and research of issues of concern, and nurture coalitions of interest. Such an institution should have a special focus on issues of professionalism (including ethics) and professional identity, and on education and training.’[4]

The Report then went on to state that ‘No institutions currently exists to fill this need – or which readily could be adapted to do so.’

This statement led to the Australian Law Reform Commission recommending in its Report that ‘The Attorney –General should facilitate a process bringing together the major stakeholders (including the Council of Chief justices, the Law Council of Australia, the Council of Australian Law Deans, the Australasian Professional Legal Education Council and the Australian Law Students Association) to establish an Australian Academy of Law. The Academy would serve as a means of involving all members of the legal profession - students, practitioners, academics and judges- in promoting high standards of learning and conduct and appropriate collegiality across the profession.’[5]



It is tempting to continue on from the ALRC Report and follow on with the establishment of the Australian Academy of Law. However, the Report has been quoted at this stage in the paper to emphasis the point made by ALRC of the importance of an Academic Law Association to play its part in the future development of Australian Legal Education.

3. AUSTRALASIAN UNIVERSITIES LAW SCHOOLS ASSOCIATION/

AUSTRALASIAN LAW TEACHERS ASSOCIATION

The oldest of such Associations is the Australasian Law Teachers Association which was believed to have been established in 1945, with its first Conference being held in 1946 at the University of Melbourne. At the time its title was the Australasian Universities Law Schools Association with the name change taking place when a new Constitution was approved at its Annual General Meeting at Sydney University in July 1988. Its first President was Professor G.W.Paton who held this position from 1946 to 1948.[6]

In following the theme of this paper it is necessary to have a snapshot of some of the achievements of the Association during its long period of serving the legal education sector.

The impression which one gains from an examination of the Association’s documents is that at certain periods of the Association’s history it has been a powerhouse for ongoing developments in legal education.

The range of topics discussed at the Association’s Annual General Meeting at the University of Papua New Guinea from the 12th to 15th August 1973 were:

‘(a) Questions of academic policy to be adopted by AULSA concerning inter alia, general standards, research and library resources, staff-student ratios, scholarships, level of first appointments. credits etc;

(b) New developments in legal education, including the establishing of new law schools, the development of older law schools, changes in teaching methods, etc;

(c) Improvements in the general exchange of routine information by Law Schools;

(d) Liaison with other legal and professional bodies;

(e) The representing of the interests of membership, discussions with governments, universities, AUC, FAUSA and other bodies.’[7]

Nevertheless it was still mindful of the implications of the Association exceeding the terms of it Constitution when a Committee reported that:

‘We have considered whether there is a danger of the secretariat developing into a lobby which puts forward views without mandate. Members of the Association, in the past have carefully guarded their rights against infringements by the Association.’[8]

However, if one was seeking evidence of how the Association has influenced legal education the following outcomes could be cited:

The Establishment of a Committee of Deans



In the Minutes of the Association’s Annual General Meeting held at the University of Western Australia on the 25th August 1978 the President’s Report contained the following

Item at Page 3:

(g) Committee of Deans

‘As a result of a request from the Australian Legal Education Council, the Executive (of AULSA) proposed the establishment of a Committee of Deans for Australian Law Schools. After correspondence between the Executive Vice-President and the Deans of various law schools it had been proposed that the proposed Committee of Deans should remain outside the AULSA organisation but should liaise with AULSA and report to the Annual General Meeting of the Association. The Committee of Deans had met during the Conference and a report would be made later.’[9]

The Introduction of the Australasian Law Teaching Clinic

The first national law teaching clinic in Australia (The New South Wales Law Teaching Workshop) was conducted under the auspices of AULSA by Professors Neil Gold and Mary Gerace, both of the University of Windsor, Canada, in July 1987, at Mount Broughton, New South Wales. It was co-ordinated by Professor Jack Goldring of the School of Law, Macquarie University. Following on the success of this inaugural venture, in 1988 the Annual General Meeting of AULSA requested that Professor Goldring organize another Teaching Workshop to be held later in the same year. A small committee was established and plans for this workshop were formulated. It was decided that the workshop should be named the Australasian Law Teaching Clinic, and in order to conform with terms of the AULSA Charter it included Australian, New Zealand and Papua New Guinea law teaching institutions. At about this time Professor Goldring took up a three year appointment as a Commissioner of the Australian Law Reform Commission and so Ben Boer and Graeme Cooper took over the role of co-ordinating the re-named Australian Law Teaching Clinic assisted by Marlene Le Brun, Richard Johnstone and Richard Chisholm. The Clinic was again conducted at Mount Broughton, with the materials being provided by Ben Boar and Graeme Cooper.[10]

The Clinic was the forerunner of a number of Law Teaching Clinics, later re-named the ALTA Law Teaching Workshop.

Another outcome was the publication in1994 of The Quiet Revolution by Marlene Le Brun and Richard Johnstone which was concerned with the improvement of student learning in law and in which the authors acknowledge the influence of the Australasian Law Teaching Workshop: ‘The most successful development, however, has been the Australasian Law Teaching Workshop, which over the last several years has taken the work that began in Canada and extended it to particular applications for the region. Indeed, this book is the culmination of the efforts and commitment demonstrated by staff of the Workshop who were determined to ensure that appropriate text and materials were available to teachers in Australasia.’

The activities of the ALTA Law Teaching Workshop were finally terminated at the ALTA Annual General Meeting in Freemantle 2003. At this meeting t was decided that because of the number of teaching courses being conducted by the Universities there was no further need for a specialist teaching workshop of the kind being then operated by ALTA. However, when ALTA conducted a Survey of all its members in 2007 there was an interesting surprise for the ALTA Executive when a majority of members requested a revival of the Law Teaching Workshop. The Executive has responded to this request by providing a major teaching workshop exercise on the day preceding the ALTA Annual Conference for 2009.

The Legal Education Review

The publication of the first edition of the Legal Education Review in 1989 was yet another outcome of the ALTA Conference held at the University of Sydney Law Faculty in August 1988. It is interesting that it took approximately 35 years for such a Journal to evolve but the 1988 Conference had been a major milestone in the development of the Association (see below) and the Review itself incorporated many of the articles and comments which had been delivered at the 1988 Conference under the theme Theory in Legal Education.[11] The most controversial of these had been A Critical Theory of Law by Gerald Frug of the Faculty of Law, Harvard University[12] and Critical Legal Studies as a Teaching Method, Against the Background of the Intellectual Politics of Modern Legal Education in the United States by Robert W Gordon of the Faculty of Law, Stanford University[13], both concerned, as the titles suggest, with teaching methods of critical legal theory. Just as controversial had been three articles relating to women in legal education; the first entitled Feminism in Legal Education by Catharine MacKinnon of Osgoode Hall and Yale Law Schools,[14] Women and Legal Hierarchy by Margaret Thornton,[15] who was then at Marquarie Law School, but who is now a Professor at the Australian National University College of Law, and Womens’ Experience in Legal Education: Silencing and Alienation by Lucinda Finley of Law School, State University of New York at Buffalo. [16]

Transition

Within the confines of a Conference Paper such as this which is endeavouring to cover the whole landscape of the ongoing history of AULSA/ALTA, it is only possible to touch on one or two aspects of its organisation during the years of its existence.

The 1988 Conference has been mentioned under the heading of the establishment of the Legal Education Review, but it also resulted in the Association undergoing a name change from the Australasian Universities Law Schools Association to the Australasian Law Teachers Association. There was a further change to the Constitution approved at the Annual General Meeting whereby full membership of the newly named Association was granted to both all teachers of law and practical legal training courses in tertiary institutions in the constituent jurisdictions of the Association. Previously full membership had been confined to law teachers in universities. There was some confusion with regard to the name change as Victoria University of Wellington, New Zealand had already pre-printed its conference material for the 1989 Conference to be held in Wellington. There was the same problem with regard to the 1989 Directory of Members which also retained the former title of the Australasian Universities Law Schools Association.[17] In the same way the practice of member law schools submitting their Annual Report to the Annual General Meeting of the Conference gradually disappeared.

On-Going outcomes and the Future



It is helpful to reflect on the current role of ALTA as it enters its 65th Year as a major association representing Australian law academics. The Association currently operates out of a permanent headquarters on the Kuring-gai Campus (Lindfield) of the University of Technology, Sydney with a paid Administrator Coordinator. There is a General Executive which embraces representatives from most States and Territories in Australia and also a New Zealand Executive. It publishes two major journals annually, the Legal Education Review (LER) and the Journal of Australasian Law Teachers Association (JALTA) and sponsors a third, the Legal Education Digest (LED), published on a tri-annual basis, all three being published in hard copy and distributed electronically to members. Whilst the LER is a refereed journal, JALTA was launched in order to assist members who publish papers in the ALTA Conference Proceedings by providing a double-blind refereed journal. This satisfies both the current Higher Education Research Date Collection specifications and also meets the description of a refereed journal as designated by the Department of Education, Employment and Workplace Relations categories.[18]

The focal point for most members is the Annual Conference, normally hosted by a member law school, which takes place over approximately 3 days and is attended in most years by 200 to 250 members, approximately one- fifth of the membership. As well as the featured speakers who deal with contemporary law issues in the plenary sessions, a major part of the conference is the activities of the interest groups of which there are now thirty, and the social activities, There are also sponsored awards such as the LexisNexis-ALTA Award for Excellence and Innovation in the Teaching of Law and the CCH-ALTA Best Conference Paper Award.[19]

With a membership base in excess of a thousand members, strong links with government bodies and other national and international key agencies, ALTA can both reflect on its past achievements and its future business plan providing for the promotion of legal research and scholarship throughout both Australia, New Zealand and the South Pacific Region.

4. The Committee of Deans/Council of Australian Law Deans



The Early Years

As already forecasted under the Heading of 3. ALTA (above), the Committee of Deans, the forerunner of the Committee of Australian Law Deans and subsequently the Council of Australian Law Deans (CALD), was established at the Annual General Meeting of AULSA on the 25th August 1978 (see above).

Its development further progressed in 1979, when the Minutes of the Thirty-Fourth AULSA Annual General Meeting held at the University of Melbourne on the 31st August 1979, reported that Professor G Nash submitted the Report of the Committee of Deans. The the most illuminating part of the Report was that dealing with:

‘(1) Future Role of the Committee of Deans – The Deans discussed whether the Committee should remain in existence and were unanimously of the view that there was a significant role for the Committee of Deans to play as representing the Law Schools as institutions. The Committee can speak on behalf of the Law Schools as a whole in relation to matters of educational policy and educational funding, can liaise with such bodies as the Law Council of Australia and the Australian Legal Education Council and provide a central clearing house for information emanating from these bodies and also for information generated by particular law schools.’[20]

Other matters discussed at this meeting included: ‘The Portabililty of Qualifications and Rationalization of Admission Requirements; Copyright; Activities of the Australian Legal Education Council; and Exchange Programmes.’[21]

During the early years of its existence the Committee retained close links with AULSA. It would appear that the President of AULSA was also the Convenor of the Committee of Deans. However a conflict arose in 1982 when the Committee of Deans reported to the Annual General Meeting of AULSA held on the 14th August, 1982 at the University of Tasmania that:

‘The President (of AULSA) reported on the meeting of the Committee of Deans held on the 12 august 1982 and the minutes of that meeting were circulated. The Vice-President pointed out that in 1983 the President of AULSA would be the Dean of the Law Faculty of the University of Auckland, New Zealand. In the circumstances he suggested that Mr Blackwood would remain as Convenor of the Committee of Deans to ensure that the current business before that Committee was dispatched. The Meeting accepted this recommendation.’[22]

It could be argued that this decision marked the growing separation of the Law Deans as a group from ALTA. Whilst some traditions have been maintained such as the Law Deans holding one of their tri-annual meetings either before or after the annual ALTA Conference and the Chairperson of the Law Deans reporting to the ALTA Annual General Meeting, these are just matters of convention and not derived from any formal agreement.

Increasing influence of Council of Australian Law Deans

It should be noted that until quite recently the Law Deans as an organisation had been faced

with problems relating to the nature of their organisation. It is accepted that the first duty of

a Law Dean is to their University. If one follows the actions of the Law Deans as reported in Minutes of their meetings, it will indicate that they have often been prevented from making collective decisions because of the overriding sectional interests of the Law Schools whom they represent. This is not to underestimate their influence over the ensuing years of their establishment as a representational body of law academics on the ongoing development of legal education. This empahises the degree of pragmatism which has been needed to obtain a consensus among the Australian Law Deans as a group.

However, an example where they were able to co-operate was in the submission of Australian Law School Deans to the Commonwealth Tertiary Education Commission Assessment Committee for the Discipline of Law in April 1986.[23] It was helped by the fact that at that time there were only 12 Australian Law Schools offering an LL.B course.

The conclusion to the submission encapsulates what has been an ongoing problem for Australian law schools in the modern era – that of lack of resources and ‘the absurdly low level of law’s relative share of tertiary education funding.’[24]

In their submission the Deans stated:

‘The contemporary state of tertiary legal education is marked by confusion, irony, paradox and inequity. There is confusion as to the nature and aims of legal education. The common perception is that law schools are vocational or trade schools. The reality is otherwise. The modern law school is an academic rather than a professional institution. Its academic aims are consistent not only with the training of legal practitioners; achievement of the aims is essential if socially-aware graduates with advanced intellectual skills are to be produced. Law schools believe that such graduates serve the profession and the community well. But the confusion as what law schools are about has doubtless been partly responsible for their

parlous resource position.’ [25]

‘Coogee Sands Resolution’

At the last ALTA Conference 2008 held at James Cook University, Cairns, I presented a paper to the Legal Education Interest Group entitled: ‘Re-thinking Legal Education – A Comparative Study of Recent Developments in Legal Education in Australia and the United States.’[26]

In this paper I drew attention to the fact that for the first time CALD had agreed on a generally accepted view with regard to a system of national standards or accreditation of law schools. Again, as has been mentioned on more than one occasion in this part of my paper, I pointed out that the previous lack of consensus had been exacerbated in recent years by the strong competition between law schools for funding and enrolment of full-fee paying students.

As I emphasised in my 2008 paper the standards were 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 and because of the location of the meeting, the resolution was entitled the ‘Coogee Sands’ Resolution. The importance of the Resolution was that it incorporated in an all embracing document matters which would have been considered unacceptable in a CALD resolution a few years ago. I would suggest that one of the outcomes of this decision would be that this heralded an new era for CALD in presenting, where possible, a united front in seeking the enhancement of legal education, whether this involved agreement on resources and infrastructure, curriculum design, teaching standards or government support for teaching and research.

5. AUSTRALIAN ACADEMY OF LAW

It is interesting to note that just as the ALTA’S predecessor body was responsible for the establishment of CALD, it was an initiative by CALD that eventually led to the formation of the Australian Academy of Law. It was this author who originally presented a paper advocating the establishment of an Academy of Law at a meeting of CALD in 1996[27].

This, with subsequent other suggestions, was incorporated in Chapter 2 of the Australian Law Reform Commission’s report No.89, Managing Justice: A Review of the Federal Civil Justice System published in (2000)[28].

Despite the Law Commission’s Recommendation, there was further delay whilst CALD discussed the implications which the establishment of such an Academy would have on the furtherance of legal education.

Because of this, the initiative for furthering the formation of the Academy was taken by Professor David Weisbrot, the President of the Australian Law Reform Commission and former Dean of the Law Faculty at the University of Sydney. He met with CALD Representatives, including Professor Michael Coper, the then Chair of CALD. The outcome was the drafting of a Constitution for the establishment of the Academy and the selection of thirty six Foundation Fellows.

The inaugural meeting of the Fellows took place in October 2005, but there was a further delay until the launch of the Academy at Government House, Brisbane on the 17th July 2007. This location was chosen because one of the Foundation Fellows of the Academy was Her Excellency Professor Quentin Bryce, the then Governor of Queensland.

The opening Symposium of the Academy, held at the same time as the launch of the Academy, was on the topic: ‘Fragmentation or consolidation? Fostering a coherent professional identity for lawyers’.

This has been followed by a further major symposium and its first annual General Meeting in Sydney in July 2008, followed by two more symposiums. The one in December 2008 was addressed by the Hon. Chief Justice French, the Patron of the Academy, and another in May of this year was conducted by Hon. Justice Allsop, the President of the New South Wales Court of Appeal.

The Academy is now established with its administrative office based at the College of Law, Australian National University. Negotiations are now proceeding for the President of the Academy, the Hon. Robert Nicholson (a former Justice of the Federal Court), to be provided with an office within the Law Faculty of the University of Western Australia with financial support from CALD. The support offered by the ANU and University of West Australia Faculties of Law with CALD will ensure that law academics will continue to have a major influence on the activities of the Academy. It will have to be seen whether the Academy, which draws its membership from the Judiciary, the legal profession and law academics, will live up to the expectations of its stated object to ‘Advance the discipline of law’.

6. CONCLUSION

The objective of this paper has been to examine whether academic law associations have had an effect on the development of Australian legal education. In examining the origins of the leading academic law associations, one is able to conclude that their effect has to be judged over a long period of time and the increasing realisation on the part of all involved in their development is that greater co-operation can only enhance the opportunities for the advancement of legal education in Australia.

As an epilogue, it is necessary to draw attention to the establishment of the Law Council Education Committee in 2007. This was the result of a collaborative outcome of the Law Council Convention which took place in Sydney in 2007. In negotiations between the Law Council of Australia, CALD, ALTA, the Australian Law Students Association (ALSA) and other legal representative bodies, it was agreed that there was a need for the professional legal associations and law education associations to maintain a unanimous stance. This is relevant to all aspects of legal education, to both Central and State Governments, the University Sector and other funding and accrediting bodies. Apart from the associations involved in the negotiations, there are also representatives from the Australasian Professional Legal Education Council (APLEC), Australian Young Lawyers, with a representative from the Federal Attorney General’s Department having observer status.

Whilst it is too early to judge the long term effects of the decisions of the Committee there is no doubt that already the Committee has been able to have an influence on decisions by major funding and accrediting authorities. This has occurred both at Federal and State level, relating to the cost of law degrees for students, the funding of law degrees for law schools, and recently the re-visiting of the evaluation of practical legal training.

6th July 2009 DB


[1] Pearce, Dennis, Campbell, Enid and Harding, Don, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission, (1987).

[2] Stevens, Robert B, Law School: Legal Education in America from the 1850s to the 1980s, (1983).

[3] Australian Law Reform Commission, Managing Justice A review of the federal justice system, Report No 89 (2000).

[4] Ibid 2.118.

[5] Ibid 2.128.

[6] Patrick Parkinson (ed), Australasian Universities Law Schools Association, Directory of Members 1988, 5.

[7] Australasian Universities Law Schools Association, Minutes AGM 1973. 1.

[8] Ibid.

[9] Australasian Universities Law Schools Association, Minutes AGM 1978, 3.

[10] Ben Boer, ‘The Australasian Law Teaching Clinic: Its Past, Present and Future’ (1989) 1 Legal Education Review145.

[11] Editorial[1989] LegEdRev 1; , (1989) 1 Legal Education Review 1.

[12] Gerald E Frug, ‘A Critical Theory of Law’ [1989] LegEdRev 5; (1989) 1 Legal Education Review 43.

[13] Robert W Gordon, ‘Critical Legal Studies as a Teaching Method, Against the Background of the Intellectual

Politics of Modern Legal Education in the United States’ [1989] LegEdRev 6; (1989) 1 Legal Education Review 59.

[14] Catherine MacKinnon, ‘Feminism in Legal Education’ [1989] LegEdRev 7; (1989) 1 Legal Education Review 85.

[15] Margaret Thornton, ‘Women and Legal Hierarchy’ [1989] LegEdRev 8; (1989) 1 Legal Education Review 97.

[16] Lucinda Finley, Womens’ Experience in Legal Education: Silencing and Alienation’ (1989) 1 Legal

Education Review 101.

[17] Eili S. Magner (ed), Australasian Universities Law Schools Association, Directory of Members 1989, i .

[18] ALTA Welcome Booklet 2009,

[19] Ibid.

[20] Australasian Universities Law Schools Association, Minutes AGM 1979, 9.

[21] Ibid.

[22] Australasian Universities Law Schools Association, Minutes AGM 1982, 5.

[23] Pearce, Dennis, Campbell, Enid and Harding, Don, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission, (1987).

[24] Ibid. Statement of Australian Law Deans, attached as appendix 3 to the Pearce Report, 32.

[25] Ibid.

[26] David Barker, ‘Re-thinking Legal Education – A comparative Study of Recent Developments in Legal Education in Australia and the United States’ (Paper presented to the Legal Education Group, ALTA Conference, James Cook University, Cairns, July 2008, 1.

[27] David Barker , Proposed Australian Academy of Law, Paper, Council of Australian Law Deans, (1999).

[28] Australian Law Reform Commission, Managing Justice A review of the federal justice system, Report No 89 (2000), 154.