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Douglas, Heather --- "The Participation of Indigenous Australians in Legal Education 1991-2000" [2001] UNSWLawJl 32; (2001) 24(2) UNSW Law Journal 485

[*] Lecturer, Law School, Griffith University. Thanks to the Griffith University Law School for providing funding for this project, to Frances Ng for her assistance, to the editors and to the anonymous reviewer. Thank you also to all the staff at law schools and Indigenous centres around Australia who assisted with this research. I note that I write this paper as a white woman with all the privileges and biases that this position entails. For a discussion of the relevance of my being white to the way I, as a white woman, may approach the subject of this paper, see especially Aileen Moreton-Robinson, Talkin’ up to the White Woman: Indigenous Women and Feminism (2000) xviii, 61, 133.

[1] See Daniel Lavery, ‘The Participation of Indigenous Australians in Legal Education’ [1993] LegEdRev 8; (1993) 4 Legal Education Review 177. My article does not set out to emphasise or examine in detail the factors which assist or discourage Indigenous students’ participation in mainstream law schools. There is some research available that has examined these issues. See, eg, Colin J Bourke et al, Factors Affecting Performance of Aboriginal and Torres Strait Islander Students at Australian Universities: A Case Study (1996); Heather Douglas, ‘“It’s Not Just About Me”: Indigenous Students Insights About Law School Study’ [1998] AdelLawRw 23; (1998) 20 Adelaide Law Review 315; and Carolyn Penfold, ‘Indigenous Perceptions of Factors Contributing to Successful Law Studies’ (1996) 7 Legal Education Review 155.

[2] Law schools were the first to be contacted about the survey, but on many occasions surveys were forwarded to Indigenous centres, which then became involved in completing them.

[3] A survey response was not received from James Cook University. A draft of this article was also circulated to all university law schools in January 2001 and comments and responses to the draft have been included in the final article. In 1990 Lavery sent out 20 surveys and 18 were returned: see Lavery, above n 1, 178.

[4] Flinders University Law School reported employing a casual tutor to assist Indigenous students within the faculty and that usually this person has been an Indigenous person. Flinders University also reported that some Indigenous graduates and students are employed by the Indigenous centre as Aboriginal and Torres Strait Islander Assistance Scheme (‘ATAS’) (see below n 113) and peer tutors. Southern Cross University and Monash University reported that both of their law schools employed two Indigenous administrative staff.

[5] Since that time, the Law School of the University of Technology, Sydney has appointed an Indigenous academic to the position of Professor.

[6] This program is discussed in more detail below 495.

[7] Queensland University of Technology advised that a target of their Law School’s Faculty Equity Plan is to employ an Indigenous academic by 2002. Griffith University employed an ‘Indigenous Law Lecturer’ in 2001. Unfortunately, this person is employed on a part time basis at the Associate Lecturer level.

[8] Carol Aylward, ‘Adding Colour – A Critique of “An Essay on Institutional Responsibility: The Indigenous, Blacks and Micmac Programme at Dalhousie Law School”’ (1999) 14 (2) Canadian Journal of Law and Society 470, 478. See also Douglas, above n 1, 336-7.

[9] Martin Nakata argues that ‘[f]or some Indigenous academics, opposition means separation. Such agendas urge the development of knowledge and ways of learning as something quite distinct from Western Knowledge’: Martin Nakata, ‘Cross-cultural Consideration: Indigenous Academics are on Foreign Ground in Their Own Land’, The Australian (Sydney), 21 February 2001, 41.

[10] Ibid.

[11] Lavery, above n 1, 179.

[12] Ibid 182.

[13] See Lisa Briscoe and Elizabeth Baxter, Report on the Aboriginal and Torres Strait Islander Alternative Entry and Support Scheme in the Law School 1999 (1999) 5. Available from Lisa Briscoe, Law School, Australian National University (copy on file with author).

[14] Gloria Latham and Pam Green, ‘The Journey to University: A Study of “the First Year Experience”’ (Interim Report, Royal Melbourne Institute of Technology, 1998).

[15] Timothy Spencer, ‘First Year Students Face Unique Problems’ (1995) 5 Campus Review: Indigenous Education Special 12; Neil Baumgart and Christina Halse, Meeting The Needs of Indigenous Students: Evaluation of Bachelor College (1995) 133.

[16] Using the information in Table 1, even if we assume that all students in first year from 1991 to 1995 enrolled in a five year course of study, there should have been 295 graduates by 2000. Instead less than half this number had graduated by 2000.

[17] Lavery, above n 1, 179.

[18] University of Sydney, Participation of Indigenous Students in Legal Education – Survey Response (2000): it was noted that ‘life crises and family obligations [and] ... the temptation to take up employment before finishing a degree’ were the major reasons for Indigenous students not completing degrees. It is also recognised that the distinction between withdrawal because of academic failure and voluntary withdrawal is difficult to make. See also Vincent Tinto, ‘Dropout from Higher Education: A Theoretical Synthesis of Recent Research’ (1975) 45 Review of Educational Research 89.

[19] See Douglas, above n 1, 333-6.

[20] Fiona Hussin, Killing off Captain Cook – Indigenous Law Students at Northern Territory University (1999) 1. Copy available from Fiona Hussin, Law School, Northern Territory University (copy on file with author). See also Douglas, above n 1, 321-5.

[21] Cathryn McConaghy, Rethinking Indigenous Education (2000) 255. In a similar vein, Henrietta Fourmile points out that ‘Aboriginal people feel ill-at-ease and self conscious when entering white institutions which emanate an entirely alien cultural presence’: Henrietta Fourmile, ‘Who owns the past? Aborigines as Captives of the Archives’ (1989) 13 Aboriginal History 2.

[22] Hussin above n 20, 1-2, where Hussin also notes that Indigenous students at Northern Territory University often comment that history materials at high school glorified ‘Captain Cook and the colonisation process, including the “settlement” of Australia and overland expeditions by so called explorers’.

[23] Douglas, above n 1, 319-20.

[24] Such changes were reported to be taking place in some law schools: see, eg, Australian National University, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author) and University of New South Wales, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author).

[25] See Penfold, above n 1, 172-5; Douglas, above n 1, 343-4; Peter Christensen and Ian Lilley, The Road Forward? Alternative Assessment for Aboriginal and Torres Strait Islander Students at Tertiary Level (1997).

[26] Research supports this view: see Northern Territory University, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author); Carolyn Penfold, Support for Indigenous Students in the Faculty of Law, University of New South Wales, 1989-1995 (Unpublished, 1996) 8 (copy on file with author); Donald Purich, ‘Affirmative Action in Canadian Law Schools: The Native Student in Law School’ (1986) 51 Saskatchewan Law Review 79, 82; Douglas, above n 1, 345-6.

[27] Survey respondent wished not to be identified.

[28] See below pp 502-3.

[29] It should be noted that some universities have only recently begun to offer an LLB course, so it is not always meaningful to compare graduate numbers across universities. However, it is interesting to note the large numbers of graduates from Western Australian universities, particularly the University of Western Australia. The University of New South Wales also reports an especially high number of Indigenous graduates.

[30] List of Abbreviations: Australian National University (‘ANU’); Bond University (‘BND’); Deakin University (‘DEA’); Flinders University (‘FLI’); Griffith University (‘GTH’); Latrobe University (‘LAT’); Macquarie University (‘MAC’); University of Melbourne (‘MEL’); Monash University (‘MON’); Murdoch University (‘MUR’); Newcastle University (‘NEW’); Notre Dame University (‘NOT’); Northern Territory University (‘NTU’); Queensland University of Technology (‘QUT’); Southern Cross University (‘SCU’); University of Sydney (‘SYD’); University of Tasmania (‘TAS’); University of Adelaide (‘UAD’); University of New England (‘UNE’); University of New South Wales (‘UNSW’); University of Queensland (‘UQ’); University of Technology, Sydney (‘UTS’); University of Western Australia (‘UWA’); University of Western Sydney (‘UWS’); University of Wollongong (‘WOL’).

[31] See Mandawuy Yunupingu et al, National Review of Education for Aboriginal and Torres Strait Islander Peoples: Final Report (1994) 144-5.

[32] Notre Dame University, based in Fremantle in Western Australia, is the only university that reported having no alternative entry scheme for Indigenous students: Notre Dame University, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author). However a later comment from the University did note that general entry to the Law School is based on interview and is flexible with respect to past academic results. The response also noted that Notre Dame University operates a campus in Broome in Western Australia which is dedicated to Indigenous people, and although no Indigenous students had commenced law by 2000 the Broome program is a gateway program for Indigenous students to the programs (such as law) which are offered at the Fremantle campus: Notre Dame University, Participation of Indigenous Students in Legal Education – Later Comment on Survey Response (2000) (copy on file with author).

[33] Lavery, above n 1, 180.

[34] Eight new law schools have been established since Lavery conducted his research.

[35] The centre’s full name is Yunggorendi First Nations Centre for Higher Education and Research; it is the Flinders University Indigenous centre.

[36] University of Sydney, The University of Sydney - Koori Centre: Cadigal Program (1992) at 13 September 2001.

[37] University of Sydney, above n 18.

[38] Deakin University, Institute of Koorie Education, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author). The policy underlying the establishment of the program evolved through the agreement process which took place between representatives of the Indigenous community and Deakin University.

[39] Deakin Law School commenced operation in 1993 and the program discussed here commenced in 1999.

[40] Kelly Gallagher-McKay, ‘Affirmative Action and Aboriginal Government: The Case for Legal Education in Nunavut’ (1999) 8(2) Canadian Journal of Women and the Law 21, 26.

[41] Ibid.

[42] See Mary Ann Bin-Sallick, Aboriginal Tertiary Education in Australia: How Well is it Serving the Needs of Aborigines? (1990) 4-14, for an historical overview of Indigenous involvement in mainstream education.

[43] Mandawuy Yunupingu et al, National Review of Education for Aboriginal and Torres Strait Islander Peoples Summary and Recommendations (1994) 18-19.

[44] Briscoe and Baxter, above n 13, 5. The Deakin University survey response made a similar point: Deakin University, above n 37.

[45] Roy Killen, ‘Differences between Students’ and Lecturers’ Perceptions of Factors Influencing Students’ Academic Success at University’ (1994) 13 Higher Education, Research and Development 199, 200.

[46] See Donald E Lewis, The Performance at University of Equity Groups and Students Admitted via Alternative Modes of Entry (1994) 8, where the author reviews a number of studies which have examined the reliability of final year high school scores as a predictor of performance at university. Few of the studies he mentions demonstrate a strong correlation between HSC scores and performance in humanities courses.

[47] See Briscoe and Baxter, above n 13; Penfold, above n 26.

[48] Dolores Blonde et al, ‘The Impact of Law School Admission Criteria: Evaluating the Broad-based Admission Policy at the University of Windsor Faculty of Law’ (1998) 61 Saskatchewan School of Law 529, 534.

[49] Ibid 560. The Flinders University alternative entry scheme is also of note, given its focus on planning abilities as an alternative to academic achievement.

[50] Ibid 557.

[51] Ibid.

[52] See University of Newcastle, Bachelor of Medicine (2001) buck.newcastle.edu.au/

production/sfc/buildpage.cfm?tpww_url=10379> at 28 May 2001.

[53] Douglas, above n 1, 346.

[54] This has been recognised by some law schools such as the Australian National University. See Briscoe and Baxter, above n 13, 2.

[55] Lavery, above n 1, 182.

[56] Ten of the survey respondents reported that their law school operated a pre-law program or an alternative law program. However the author is aware that James Cook University also operates a pre-law program.

[57] See Table 4.

[58] Lavery, above n 1, 182.

[59] Ibid.

[60] See Hugh McAulay, ‘Improving Access to Legal Education for Native People in Canada’ (1991) 14 Dalhousie Law Journal 133.

[61] For example, at the University of Western Australia and University of New South Wales. See Carolyn Penfold, Supporting Aboriginal Students Through Transition to University – A Law School Experience (Unpublished, 1995) 5 (copy on file with author). Also available from Carolyn Penfold, Law School, University of New South Wales.

[62] The reasons noted here are drawn from the publicity material and course outlines from a number of programs surveyed.

[63] For an explanation of abbreviations, see above n 30.

[64] See below pp 500-1.

[65] Flinders University has no specific pre-law program but the Law School has input into the general orientation program offered by the Yunggorendi First Nations Centre.

[66] See below pp 500-1.

[67] For example, Griffith University, Queensland University of Technology, Monash University and the University of New England.

[68] For example, the length of the University of New South Wales and the Griffith University pre-law courses have fluctuated. The number of weeks the UNSW program has been run for has changed markedly: from five weeks in 1995-97, to four weeks in 1998, to three weeks in 1999.

[69] For example, Monash University and the University of Western Australia.

[70] University of New England, Indigenous Nations Pre-Law Program (2000).

[71] Ibid 3.

[72] University of Western Australia, The Aboriginal Pre-Law Programme: Western Australia (2000). The program is run with full collaboration between the Law School and the Centre for Aboriginal Programs. The co-director from the Law School is Neil Morgan and the co-director from the Centre for Aboriginal Programs is Jill Milroy.

[73] University of Western Australia, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author).

[74] Including an Associate Degree in Law (Paralegal), a Bachelor of Legal and Justice Studies and Certificate in Completion in Indigenous Legal Practice, run by the School of Law and Justice, and an Associate Degree in Law (Aboriginal Paralegal), run by the College of Indigenous Australian Peoples.

[75] Southern Cross University, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author).

[76] Another survey respondent suggested this as well but did not wish to be identified.

[77] Research has noted that Indigenous students are more likely to complete their education if they study off-campus: Madeleine Coorey, ‘Indigenous Pupils Prefer External Courses’, The Australian (Sydney), 9 April 1997, 35, referring to the study reported by Bourke et al, above n 1.

[78] See generally Deakin University, above n 37.

[79] University of Sydney, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author).

[80] There may be other reasons to run pre-law programs: see below 503-4.

[81] Lavery, above n 1, 183.

[82] Richard Bartlett, ‘Legal Education: The Aboriginal Pre-law Program (WA and NT)’ (1994) 19 Alternative Law Journal 141.

[83] See Hussin, above n 20, 7.

[84] A couple of survey respondents (who did not wish to be identified) suggested that they did not recommend their students attend the pre-law programs at other universities because they are often ‘de facto recruitment channels’ and because they questioned their quality.

[85] One survey respondent (who did not wish to be named) pointed out that once a pre-law program is operating in a city it tends to make setting up an alternative not economically viable.

[86] See Heather Douglas, ‘Indigenous Australians and Legal Education: Looking to the Future’ (1996) 7 Legal Education Review 225, 243-4.

[87] The survey response from the University of Western Australia also pointed out that the pre-law program there has triggered the development of ‘pre-medicine’ and ‘pre-dentistry’ programs: University of Western Australia, above n 73. These programs have also seen a significant increase in the number of Indigenous students admitted to dentistry and medicine courses. A special program for Indigenous medical students also exists at Newcastle University. For a discussion of that program: see Sophie Morris, ‘Aborigines Urged to Gain Medical Degrees’, The Weekend Australian (Sydney), July 8-9 2000, 7.

[88] Previously this program was run in conjunction with the University of Western Australia and Murdoch University, taking place in Western Australia.

[89] Northern Territory University, above n 26.

[90] Hussin, above n 20, 7.

[91] Interview with Mary Heath, University of Technology, Sydney (Sydney, 19 April 2001).

[92] See Purich, above n 26, 82; and Penfold, above n 1, 8, where she notes that where students had access to larger groups of Indigenous students they were able to rely on each other for assistance and motivation.

[93] For example, the University of Western Australia and Murdoch University.

[94] Douglas, above n 1, 346.

[95] Association with a pre-law program may have a similar effect, as it has at the Australian National University. The offering of alternative law programs may also have this effect, as is the case at Deakin University.

[96] Their existence also seems to assist in reducing attrition rates (eg, at the University of New South Wales, University of Western Australia and Northern Territory University), although this issue was not directly examined by this study.

[97] Note the Newcastle University alternative entry scheme which often recommends that students complete attend other courses before law.

[98] University of Tasmania, Admission to the University – Admission Rules (2000) [4(c)].

[99] University of Tasmania, Law Faculty – Admission Rules (2000) [5].

[100] For example , the University of Western Australia.

[101] Hopwood v State of Texas 95 F2d 53 (5th Cir, 1996). For an examination of this case and a discussion of why Hand believes that it is difficult to justify using race at the college admission stage, see W Brevard Hand, ‘Affirmative Action: La Mort de la Republique? A Second Cry From the Wilderness’ (1997) 48 Alabama Law Review 799, 827-8.

[102] Racial Discrimination Act 1975 (Cth) s 8. See also my previous comments on this issue: Douglas, above n 86, 235.

[103] Positive discrimination which supports Indigenous people is likely to be justifiable as a special measure under the Racial Discrimination Act 1975 (Cth) s 8, whereas discrimination which does not support Indigenous people is likely to be unjustifiable: see the Racial Discrimination Act 1975 (Cth) s 10.

[104] Aylward, above n 8, 472.

[105] For an explanation of abbreviations, see above n 30.

[106] Graeme LaMaccia, ‘Empowerment or Otherwise? Indigenous Australians Within the University Sector’ (1996) July NTEU Advocate 15.

[107] Department of Education, Training and Youth Affairs, Higher Education Division, Higher Education: Indigenous Education Strategies 1999-2001 (1999) 2.

[108] See Patricia A Monture, ‘Now that the Door is Open: First Nations and The Law School Experience’ (1990) 15 Queens Law Journal 179.

[109] Lavery, above n 1, 179.

[110] One staff member from University of Technology, Sydney suggested that the emphasis on the Indigenous studies program made post graduate study more attractive: Interview with Mary Heath, University of Technology, Sydney (Sydney, 20 April 2001).

[111] The University of Queensland.

[112] Including, for example , the Northern Territory University, Monash University, the University of Western Sydney, the Australian National University and Deakin University.

[113] ATAS is usually administered by the university’s Indigenous centre. The unit pairs appropriate tutors with students.

[114] The Australia National University reported a similar program.

[115] For example, University of Tasmania, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author).

[116] Briscoe and Baxter, above n 13, 4.

[117] For an explanation of abbreviations, see above n 30.

[118] There are no Indigenous students at Latrobe University.

[119] For example, Newcastle University and Southern Cross University.

[120] For example, Wollongong University and Murdoch University.

[121] For example, the Queensland University of Technology and Monash University.

[122] For example, the Australian National University and the Northern Territory University.

[123] Douglas, above n 1, 340, 344-5; Penfold, above n 1, 189.

[124] For example, the Northern Territory University, the Australian National University and the University of New South Wales.

[125] For example, the Queensland University of Technology.

[126] For example, Griffith University.

[127] The Australian National University also provides a tutorial room.

[128] Murdoch University, Participation of Indigenous Students in Legal Education – Survey Response (2000) (copy on file with author).

[129] For example, the Queensland University of Technology.

[130] For example, Griffith University.

[131] For example, the University of New England.

[132] Sydney University, above n 18. The Deakin University survey response pointed out that the Institute of Koorie Education provides full and independent infrastructure for the funding and direction of Indigenous tertiary education: Deakin University, above n 38.

[133] How this may be done was not explored by the survey but examples may include changes to curriculum content and changes in assessment regimes.

[134] For example, the University of New South Wales and the University of Western Australia.

[135] McConaghy, above n 21, 187. See also Moreton-Robinson, n *, 132.

[136] Lavery, above n 1, 200. See also Douglas, above n 1, 321-2.