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Falk, Phil --- "Racism in Legal Education Special - Law School and the Indigenous Student Experience" [2005] IndigLawB 2; (2005) 6(8) Indigenous Law Bulletin 8


Law School and the Indigenous Student Experience

by Phil Falk

[M]ost non-Indigenous Australians alive today ...received an abysmal education about Aboriginal and Torres Strait Islander history and culture. Not only did our education not tell us things that were important to understand ... but in many ways our own text book and our education taught us to be prejudicial.[1]

Introduction

Historically, and until as recently as the early 1970s, Indigenous Australian people were, on the whole, excluded from educational institutes throughout Australia as a direct result of racially discriminatory policies.[2] There was very little positive inclusion of Indigenous content in curricula[3] and Indigenous peoples’ knowledge, perspectives and issues were invisible. Indeed, ‘European culture [has been] assumed to be superior to all others’[4] and therefore, throughout most of the history of education ‘Aboriginal culture [has been] seen as not only worthless but inimical to education.’[5]

For Indigenous students today, poor attendance, participation and retention rates at all levels of schooling are a flow-on effect from these historical impacts. Nonetheless, many Indigenous Australians have managed to overcome the obstacles and succeed in acquiring an education at University level.

Why is the University Experience Different for Indigenous Students?

To answer this question is to understand the nature of the many disadvantages experienced by Indigenous tertiary students. No other racial group in this country has suffered the brutal history of invasion, dispossession and assimilation that has been inflicted on Indigenous Australians whilst living in this country. Nor have other minority groups suffered the same disproportionate levels of socioeconomic disadvantage as that of the current Indigenous Australian population.

Consequently, a lot of Indigenous law students have grown up with no sense of a future; the horizon has been pretty bleak. They are a minority, both in their communities and at university, and are isolated in their endeavours to get ahead.

It is recognised that geographical isolation contributes to educational disadvantage. In 2001, approximately 30 per cent of Indigenous higher education students Australia-wide were from rural areas, with an additional 15 per cent from isolated areas.[6] At Griffith University’s Law School in Brisbane there are currently around 40 Indigenous students enrolled who have come from all around the country including the Northern Territory, all parts of Queensland, the Torres Strait Islands, New South Wales (‘NSW’), Victoria and Tasmania. Well over half of these students are from rural and remote areas.

As may be imagined, university life is a whole new world for most Indigenous students. For some, the university campus is bigger than their home town. For all, it is both foreign and intimidating. As Douglas puts it, Indigenous students at law school feel ‘disorientated by the system, under siege and in an alien environment.’[7] The traditional lecture format can be intimidating as well. To walk into a lecture theatre for the first time with some 200 other students and be the only Indigenous person present, is a scary experience.

Specific to law school studies, Douglas reports that there were 256 undergraduate Indigenous law students studying law throughout Australian universities in 2000, compared with 50 in 1990.[8] She further states that an approximate attrition rate of 75 per cent existed in 1990, and in 2000, ‘there [was] still an unacceptable level of attrition amongst Indigenous law students but that the attrition rate is probably now much lower than 75 per cent’.[9]

Douglas’ research also indicates that in the nine years from 1991-2000 there were 636 commencing 1st year Indigenous law students throughout Australia, with only 118 having completed their degree discipline in the same time period.[10] Clearly, there are a lot more Indigenous students commencing law studies than are completing. These figures suggest that national attrition rates of Indigenous law students continue at an unacceptable level.

Gaining entry into university doesn’t automatically mean Indigenous students get to throw away their baggage, rather it comes with them and if anything it compounds on them. Basically, they end up in the same cycle of disadvantage within the university environment as they would outside because all of these broader issues that follow them. Complicating this, students have extra community and family responsibilities, pressures, obligations and expectations placed on them simply because they are at university, and more so because they are studying law. Against this backdrop, they are expected to keep up with their university commitments.

Some of the factors compounding Indigenous students’ experience extend from the historical past into the socioeconomic present. They include criminalisation, health, finance and education. For example, NSW Aboriginal Justice Advisory Committee statistical data on Indigenous criminalisation is a national disgrace. These statistics indicate that approximately 20 per cent of all men and 22 per cent of all women in correctional institutions are Indigenous whilst 40 per cent of all youth in juvenile centres are Indigenous.[11]

What this suggests is that students may have a direct family member and/or extended family members and/or friends who are currently caught up in the criminal system. This potentially impacts on Indigenous students in several ways. Firstly, there is a good chance that some students will be caught up in the criminal justice system themselves at some time. Secondly, Indigenous law students may be called upon by their family and community members to mediate or assist them in matters involving the law. On the other hand, students at times will have police or social workers knocking on their door seeking their assistance in community policing matters. Furthermore, they may be called upon by schools, government agencies, local councils, community or environmental groups to be involved in committees, meetings, community consultations, and/or to provide advice on management plans and submissions, simply because they are ‘educated’. This creates enormous pressures for Indigenous law students who have to somehow juggle university commitments alongside these expectations and obligations.

The next socioeconomic factor to consider is health for it behoves us to be mindful of the health status of Indigenous Australians. In 2001, for example, the Human Rights and Equal Opportunity Commission statistics revealed that:

  • life expectancy is estimated at 63 years for Indigenous females compared to 82 for non-Indigenous females and 56 years for Indigenous males compared to 77 for non-Indigenous males;
  • the death rate of Indigenous Australians is twice that of the national average;
  • infectious diseases are 12 times higher for Indigenous Australians than the national average; and
  • the rate of hospitalisation for the Indigenous population was twice as high as that for the total non-Indigenous population in 1998.[12]

These facts, combined with Indigenous students’ obligations to their communities and extended families means that, for example, they may have to attend more funerals than a non-Indigenous student. I remember as a student having three close community members die during exam week and the obligations on me to attend these funerals. I also remember how unaccommodating university staff were regarding this.

The above statistics also indicate that students are more likely to be sick or to have a direct family member who is sick and in need of care or hospitalisation than a non-Indigenous student. University teachers need to keep these considerations in mind when an Indigenous student is frequently absent from class; has not done their readings; is looking for an assignment extension or a deferred exam; or simply has not filled in a required form.

On the issue of finances, university life creates enormous strains on Indigenous students’ financial situation. Low income and a lack of financial support are amongst the biggest barriers for tertiary Indigenous students, as most come from low income families. They struggle to pay their fees and often cannot purchase textbooks or reading materials. If a library fine arises they can take months to pay it off. Many students don’t have home computers and very few can afford internet access. Most struggle to survive on a day to day basis with very little or no financial assistance from their families. Their families are often in no position to help them, because they too are struggling to survive. Consequently, students end up in the same cycle of disadvantage within the university environment as their brothers and sisters in the outside world.

Finally, looking at educational disadvantage, Indigenous people have been excluded and segregated from schools and educational institutions throughout the country until as late as the 1970s. In fact the number of Indigenous university graduates Australia-wide in 1970 was less than ten.[13] Their current poor attendance, participation and retention rates at all levels of schooling are a flow on effect from these historical impacts. On the whole, Indigenous students today have grown up without western-educated parents or any other mentors to assist them, particularly with the study of law. Many have also grown up without educational resources like books or computers within their home environments.

Apart from these socioeconomic factors, other considerations drastically affect the experience of Indigenous tertiary students at University.

The University Experience

From my previous experience as a law student and now as an academic, I have learnt that another substantial obstacle in the path of Indigenous law students is that of racism on campus. For example, Indigenous students regularly complain to me about expressions of racism after a class where Indigenous issues such as land rights or deaths in custody have been discussed. Non-Indigenous students often use such issues as a platform to express their racist views, at times relying on the excuse of ignorance. In response, Indigenous students are often compelled to speak up in defence of their people, which can lead to compromised friendships with non-Indigenous students and possibly eventual isolation.

Indigenous students have also complained of being singled out by lecturers during class to either present a coherent response on complex matters relating to Indigenous issues, or even to present arguments in defence of the Indigenous race as a whole, simply because of their heritage. We must not presume that an Indigenous student is both knowledgeable and able to articulate on subject matter simply because they are Indigenous.

At times Indigenous students have used the word ‘paternalism’ to describe some lecturers’ attitudes. Students sometimes feel that lecturers are too dismissive of issues relevant to Indigenous people including Indigenous sovereignty, customary law, high Indigenous incarceration rates and native title, to name a few. A survey in British Columbia of Indigenous law graduates concluded that ‘66% indicated that they had experienced some form of discriminatory barrier as a result of their aboriginal ancestry at law school. Three quarters of these indicated that insensitivity to aboriginal issues in course materials and by the instructor was the most significant problem.’[14]

Law School Curricula

Curriculum is of critical importance to Indigenous education at universities, yet curriculum that accurately portrays Indigenous perspectives is inconspicuous in our educational institutions. This lack of inclusion inevitably presents a one-sided view which is mostly evident to Indigenous students who ‘experience [racism] daily ... in the covert taken-for-granted assumptions of the curriculum that effectively exclude their cultural traditions.’[15] I feel there is a need to implement Indigenous perspectives within curricula at university level which are developed and delivered by Indigenous academics.

Indigenous perspectives are imperative in the law curriculum as the law can play on Indigenous students’ emotions and psyche somewhat differently to that of non-Indigenous students. For example, whilst most students approach study with a view to learning how the law works, this is a double-edged sword from an Indigenous perspective. Indigenous students learn as others do but outside of this paradigm they also learn how the law has affected their way of being, their identity, culture, social order and their everyday life. Basically, Indigenous students become familiar with a system that took their land from them, they learn how the system kept social, economic and political control of their community and they learn how the status quo is maintained.

From a teaching perspective, it is imperative to understand that the law we teach has grossly impacted on Indigenous peoples’ lives and ways of being in this country. Academics need to remember that disputes over the legal validity and history of Australian colonisation, widespread mistreatment of Indigenous people following the European invasion, and unequal treatment under the law remain understandable sources of contention between Indigenous and non-Indigenous people to this day.

From an Indigenous perspective, the law has provided a way of maintaining dispossession and control and legitimates ‘excessive policing and the use of state violence; it permits an historical and political amnesia in relation to prior ownership, land rights, sovereignty and self-determination.’[16] In light of this, when articulating subject matter within a law curriculum, we need to be aware of the sensitive nature of issues and how the law has impacted upon Indigenous Australians. This is more applicable to some law subjects than others. For example, international law is the foundation for the claim to sovereignty; constitutional law excluded Indigenous peoples’ participation in civil society; property law legitimised the stealing of the land; criminal law is responsible for high incarceration rates; intellectual property rights provide inadequate protection for Indigenous culture; corporations law cuts across the authority of the Elders; whilst legal history covers it all.

Conclusion

As you can see, an Indigenous student’s experience at university and more specifically at law school is somewhat different to that of a non-Indigenous student. Given all the above factors, we may begin to acknowledge that Indigenous students currently studying at university level are indeed a minority of individuals who are exhibiting courage and determination to better themselves and their people amidst disproportionate levels of adversity.

Any attempt to create a successful relationship between non-Indigenous and Indigenous people must be one based on equal respect and principles of social justice. This will serve to provide a fundamental shift beyond a relationship of domination to one based on coexistence.

Many of our Indigenous students will someday become advocates for positive change. For them, studying law is a pathway for this journey. For us as academics, working within a university is an opportunity to work towards creating a balanced teaching and learning environment that is culturally inclusive, respectful and sensitive. If we take time to reflect on the past and present injustices as well as the current social and economic situation experienced by Indigenous Australians, we may be better able to embrace and respect the challenges these students are willing to undertake to progress their people.

Phillip Falk, LLB (Hons), BIndigS, Grad Dip Leg Prac is a lecturer with the School of Law at Griffith University, Queensland. Phillip would like to thank and acknowledge Penny Young (BIndigS) and Graham Irvine LLB (Hons), BA (Hons) for their valuable comments and editing skills. Responsibility for all comments and errors remains that of the author. A version of this paper was presented at the Indigenous Legal Education Seminar, Law Faculty, University of New South Wales, 15 November 2004.


[1] Robert Tickner, cited in B Malezer and C Sim, Indigenous Teaching Program: Benefits of Teaching Indigenous Australian Studies in a Cross-Cultural Context (Paper presented at the AARE Conference, Brisbane, 4 December 2002).

[2] For example, the early NSW Department of Education policy denied Indigenous people the right to attend public school. In 1949 a policy shift explicitly encouraged the assimilation of Indigenous people into mainstream schools with a remaining proviso that they could exclude Indigenous people if desired. These provisos were not deleted from the NSW Teachers’ Handbook until late 1972.

[3] N Parbury, ’Aboriginal Education: A History’ in R Craven (ed), Teaching Aboriginal Studies (1999) 64.

[4] Ibid 64.

[5] Ibid 64.

[6] Commonwealth Department of Education, Science and Training (2002) Higher Education Review Process, Achieving Equitable and Appropriate Outcomes, Indigenous Australians in Higher Education, <http://www.backingaustraliasfuture.gov.au/publications/achieving_equitable_outcomes/default.htm> [62] at 25 January 2005.

[7] Heather Douglas, ‘The Participation of Indigenous Australians in Legal Education 1991-2001’ [2001] UNSWLawJl 32; (2001) 24 University of New South Wales Law Journal 485.

[8] Ibid 9.

[9] Ibid.

[10] Ibid.

[11] NSW Aboriginal Justice Advisory Committee, Facts and Figures Sheet, (2000) <http://www.lawlink.nsw.gov.ajac.nsf/pages/indignenousprisoners> at 20 May 2002.

[12] The Human Rights and Equal Opportunity Commission, Face the Facts, Some Questions and Answers about Immigration Refugees and Indigenous Affairs (2000) <http://www.humanrights.gov.au/racial_discrimination/face_facts/atsi_htm> at 25 January 2005.

[13] Owen Stanley and Geoff Hansen, Abstudy: An Investment for Tomorrow’s Employment, a Review of ABSTUDY for the Aboriginal and Torres Strait Islander Commission (1997) [5.2.5.1] <http://www.atsic.gov.au/issues/Disadvantage/Education/ABSTUDY/Default.asp> at 25 January 2005.

[14] Kevin Dolman, ‘Indigenous Lawyers: Success or Sacrifice?’ [1997] IndigLawB 28; (1997) 4 Indigenous Law Bulletin 2.

[15] M Christie, ‘Constructing a Galtha Curriculum’ (1993) 22 Education Australia 17.

[16] C Cunneen, ‘Detention, Torture and the Australian State: Aboriginal People, Criminal Justice and Neo-Colonialism’ in G Bird, G Martin and J Nielsen (eds), Majah- Indigenous Legal Issues (1998) 5.

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