O'Connor, Pamela; Gaze, Beth --- "Training for Better Decisions: Designing a Computer" [2002] LegEdRev 2; (2002) 13(1) Legal Education Review 21
Training for Better Decisions:
Designing a
Computer-mediated Distance Education Subject for Tribunal Members
PAMELA O’CONNOR & BETH GAZE
*
The post-war expansion of government programs has seen the establishment of
numerous tribunals to make decisions, or to hear appeals
from government
decisions, in areas as diverse as planning, migration and guardianship. At the
same time, the need to regulate occupational
groups has led to a proliferation
of industry-specific disciplinary tribunals. All of these can be considered to
be administrative
tribunals,1 although no clear line
separates them from “court- substitute” tribunals which adjudicate
disputes relating to private
rights and
liabilities.2
While there are no general entry-level
qualifications required for appointment to administrative tribunals, a great
deal is asked
of the members. In many tribunals, members combine the roles of
investigator and adjudicator, and some are also expected to be skilled
in
alternative dispute resolution processes. Effectiveness as a tribunal
adjudicator requires the ability to identify the issues,
elicit information,
evaluate evidence, interpret and apply legislation, precedents and policy, and
to communicate reasons for decision.3 Kathryn Cronin
has observed, “such an array of skills and roles is not easily combined in
the one person”.4 Many of the required skills,
values and knowledge will need to be learned or improved after
appointment.5
Despite widespread agreement that
members of administrative tribunals should be trained for their role, no clear
model for providing
the training has emerged. The Australian Law Reform
Commission (ALRC) has recently reported that, while tribunals are endeavouring
to provide induction training for new members and some continuing professional
education for existing members, “there is a
need for greater
comprehensiveness, coherence and coordination”.6
The existing system under which individual tribunals arrange their own in-house
training programs is costly.
Costs can be reduced if tribunals integrate
their programs and share educational resources. The Canadian Council of
Administrative
Tribunals (CCAT)7 has indicated that the
starting point for devising an effective national approach to tribunal training
is to distinguish between
the common or generic skills and knowledge required of
all tribunal members, and other learning needs that are specific to a particular
tribunal. The training model proposed by the CCAT is based on this functional
distinction:
For subjects that are tribunal-specific, they are best delivered by the
tribunal. For some subjects common to all tribunals, such
as principles of
administrative justice, generic training may be most efficient. This also
provides consistency in practice.8
In Australia the
ALRC and the Administrative Review Council (ARC) have also recognised that there
are certain core skills required
for tribunal members, and that training
programs should be based on recognition of the common
features.9 University law schools can assist in the
delivery of generic training for tribunal members. The ALRC has recently
observed that some
universities already have the required expertise and
infrastructure for learner support, and have the economies of scale to provide
cost-effective training.10
This article reflects
upon the experience of Monash University in developing a new graduate law
subject for members of administrative
tribunals, called “Decision Making
for Tribunal Members”.11 The subject gives a
broad introduction to the role of tribunal members, the framework of legal
regulation in which they operate,
and the legal and ethical requirements for
administrative adjudication. The learning activities for the subject are
designed to develop
core skills of statutory interpretation, use of precedents,
identification of issues, analysis of problems and writing reasons for
decisions. The intended student group is people currently serving as tribunal
adjudicators, including those who have legal
qualifications.12
OVERCOMING THE OBSTACLES TO COMMON TRAINING
The impetus for developing the subject came from a discussion at the 1998 National Forum of the Australian Institute of Administrative Law at a workshop session on Tribunals and Training. One of the tribunal heads observed that there were two major obstacles to greater cooperation by tribunals in the delivery of training: the geographic dispersion of tribunal members and the specialist nature of tribunal practice.
Geographic Dispersion of Learners
From our perspective as educators, these obstacles
were by no means insuperable. Geographic dispersion of the learner group could
be addressed by delivering training via distance education, provided that the
mode of delivery was suited to the educational objectives.
Although some of the
core skills identified by the ARC might require some face-to-face teaching (for
example, inter-personal communication),
many of the areas of learning relating
to the process of adjudication could be studied at a distance.
We saw a
number of benefits for tribunal members in developing the subject for delivery
by distance education. Members, whether studying
locally or at a distance, would
appreciate the convenience of being able to study at home or at work, at times
that suited themselves.
Through computer conferencing and group activities
undertaken via the Internet, they could enjoy collegial interaction with members
of their own and other tribunals.
Diversity of Learning Contexts
The second obstacle to generic training identified at the AIAL workshop was the diverse and specialised nature of tribunal practice. The problem was how to teach generic skills and knowledge in a way that would satisfy the learners’ need to see the practical application to their own tribunal context. Our proposed solution was to design learning activities that require students to formulate their own problem and then to solve it by applying their newly learned skills and knowledge. The students are the experts at identifying the current issues and problems facing their tribunal. Requiring them to devise a problem would ensure that students were working on problems that they had themselves identified as significant and relevant. For example, a problem-based activity designed to promote learning of skills and principles of statutory interpretation would instruct the students to begin as follows:
- Take a statute under which you have a decision making function.
- Identify a provision which, when applied to a set of facts invented by you, is ambiguous, unclear, or which appears to produce an unjust or unreasonable result.
We expected that requiring students to formulate and answer
problems of their own devising would promote the transfer of skills from
one
problem to another. Stephen Nathanson points out that law students sometimes
fail to see that problem-solving skills that they
use in one legal context can
be applied to another.13 He recommends that teachers
build into the design of learning activities devices for reminding students to
make the necessary connections.14 The exercise of
formulating a problem would promote transfer by prompting students to review
their experience and construct factual
scenarios in which their new learning
could be applied.
A further way of demonstrating the transferability of
skills and knowledge is to enable students to share their answers. The provision
of many examples helps students not just to apply their new learning but to
distinguish situations where it is necessary from those
where it is
not.15 If students work on self-devised problems, their
answers could form a rich store of varied examples. This would be a valuable
learning
resource which fellow students could access from a database on the
Internet. Naturally, the learning activities should be designed
to discourage
disclosure of confidential or restricted information, and students should have
the opportunity to ask for their answers
to be kept private.
To share student
answers is a departure from standard university practice. Generally law teachers
are reluctant to allow students
unmediated access to the answers of other
students because of the risk of plagiarism, or fear that errors and
misconceptions may
spread. Plagiarism is not a concern where each learner is
addressing a unique problem; nor is the spread of errors a significant
concern
where the focus of the activity is on process rather than outcome. Tribunal
members read decisions of other members in the
course of their work, and have to
make their own assessment of the quality of others’ reasoning. Errors and
misconceptions
can be addressed in feedback to the individual learner, and
raised in a general way in an online tutorial.
Planning the Subject
We decided that the proposed subject should focus on
teaching generic skills and knowledge that learners would apply to actual or
simulated problems arising from their own tribunal context, that their answers
would be shared, and that the subject would be delivered
by distance education.
We were confident that with these design features, we could largely overcome the
obstacles of geographic dispersion
of learners and the diverse and specialised
nature of tribunal practice.
The decision to deliver our subject by distance
education required no compromise in quality. A wide variety of law subjects are
already
offered for external study by a number of Australian law
schools,16 and are widely regarded as equivalent to
qualifications awarded for on-campus study.17
Particularly when supported by appropriate use of computer technology, distance
education can provide a rich learning environment
that is in no way inferior to
the quality offered by many on-campus courses.18
The Web offers the potential to improve student learning in various ways: it
supports interaction (teacher to student and student
to student), enables
students to work collaboratively, provides free access to a vast array of
primary and secondary materials, and
allows flexible sequencing of teaching
materials by means of hypertext and links.19
To
make effective use of this potential requires a restructuring of the traditional
university model of teaching.20 Laurillard suggests the
following 3-step approach: first, analyse the learning activities that students
will be given; second, analyse
the strengths and limitations of the various
educational media; and third, select the combination of media that will
facilitate the
learning activities.21 This approach
ensures that educational considerations will determine the choice of media and
not vice versa.
THE EDUCATIONAL DESIGN
Selecting Content and Objectives
The first step in developing the subject was to determine what the subject
matter or curriculum was to be. Adult education theory
holds that adults are
motivated to learn when they experience gaps in their knowledge that learning
will satisfy. So analysis of
the learners’ needs is the starting point for
developing a curriculum for tribunal members.22
We
found little published evidence of what tribunal members perceive their learning
needs to be. No one in Australia has undertaken
a multi-tribunal analysis of
member learning needs, like the one completed by the Canadian Council of
Administrative Tribunals (CCAT).23 In January 1998 the
CCAT’s Training Committee undertook a national survey of Chairs and
tribunal members, asking them to identify
and prioritise areas of training
need.24 The 160 survey respondents (among whom were 50
Chairs) identified the following training needs:
- As areas of high importance, they listed conduct of a hearing; fairness and natural justice; decision-making; administrative law; evidence; ethics; conflict of interest; and statutory interpretation.
- As areas of medium importance, they identified computer skills; mock hearings; gender/cultural sensitivity; and structure and function of government.25
Ramsden suggests a range of
other sources that can be used in defining the content of a new
subject.26 These include recognised knowledge lacunae
and learning needs identified in reports of review bodies. The ARC’s
Better Decisions report set out a list of the skills and abilities that
had been suggested as “necessary or desirable” for members of
administrative
tribunals.27 Without endorsing the list,
the ARC proposed that tribunals jointly specify “a minimum set of core
skills and abilities required
of an effective tribunal
member”.28 These specifications could then be
used as the starting point for developing courses and training
activities.29 The ALRC has since endorsed the
ARC’s recommendation.30 Until very recently,
however, there has been no national forum or peak body for Australian
administrative tribunals to co-ordinate
the specification
process.31
Ultimately our selection of subject
content was based on the Canadian survey findings, the list of skills and
abilities in the ARC’s
Better Decisions Report, and our reflection
on the nature of the activities that tribunal members are required to undertake
in order to perform their
adjudicative role effectively. This was informed by
our own experience as tribunal members,32 and of
teaching Administrative Law to undergraduate law students. We decided to proceed
in an experimental way, designing a subject
and offering it on a pilot basis. We
would then modify our curriculum and objectives after obtaining evaluative
feedback from a selected
group of tribunal members enrolled in a pilot offering
of the course, other persons with responsibilities for tribunal training,
and an
external academic assessor.
Learning objectives are frequently organised in a
hierarchy, stated as broad aims at course level and becoming more specific at
subject
and unit level.33 We started by formulating the
subject aims and objectives, and broke them down into more specific and concrete
objectives for each
topic unit. This exercise helped us to identify what was
common or generic, to discriminate between core and peripheral material,
to make
explicit the links between topics, and to re-assemble the topics as a coherent
whole.
IMPLEMENTING THE DESIGN
Problem-based Learning
Biggs’ “constructive alignment” model proposes that
teaching and learning activities should be selected that are
most likely to
elicit the kinds of student performance specified in the subject
objectives.34 We selected a variety of learning
approaches to serve different objectives or aspects of the subject, including
keeping a professional
journal, analysis of a case, reflective writing
exercises, online investigation and reporting, asynchronous computer
conferencing
and problem- based learning.
Problem-based learning was our
principal method for teaching the core skills of analytic reasoning, statutory
interpretation, problem-solving
and writing reasons for decision. In this
approach the focus of student learning is on the problems they are likely to
encounter
in professional life, rather than on the assimilation of academic
knowledge abstracted from context.
Problem-based learning is highly regarded
in constructivist theories of education.35 The central
tenet of constructivism is that knowledge is constructed by the learner, not
transmitted by the teacher. Learners construct
meaning by relating new
information to what they already know or believe. Teachers facilitate learning
by helping students to make
connections between the new information and the
students’ prior knowledge.
Adult education theory also strongly
supports the anchoring of learning activities in an “authentic” task
or problem based
in the learner’s own experience. According to Knowles,
the educator’s first task is to persuade the adult learner that
it is
worth investing the time and effort to learn. Presenting tribunal members with
problems from their own practice will promote
their readiness to
learn.36 Knowles suggests further that the analysis of
life experience is central to adult learning; and that teaching methods that
draw upon
the learner’s workplace experience are therefore most
effective.37
We envisaged that the students would
attain the subject objectives by completing the learning activities. While the
subject was heavily
text-based, we did not expect that the learning would occur
through reading and assimilating instructional material. The text was
designed
as a resource that would enable students to undertake the problem-based
activities. Additional resources were provided via
online links, and students
could search the library catalogue on the Web. Requests for books and
photocopied articles could also
be submitted by email to the University’s
Flexible Library Service for external students. In addition, most students would
have access to some resources at their tribunal workplaces.
By designating
the key learning activities as assessable, we could align our assessment methods
with our learning objectives.38 Since the learning
activities required students to demonstrate competence in the core skills and
knowledge, their answers would provide
a valid measure of their attainment of
the objectives.
Opportunities for Interaction
Opportunities for interaction with teachers and
fellow students are highly desirable features of an integrated learning
environment.
Goldring reports that students studying law off-campus place a high
value on contact with other students and teachers.39 An
internal training needs survey conducted by the Administrative Appeals Tribunal
(Cth) in 1992 showed that, among the benefits
that members hoped for from
professional training was “‘exchanging experience with
peers”.40
We decided against including a
compulsory face to face component, as this would impose substantial costs on
interstate students. Instead
we incorporated interactive features into the
subject by use of the Internet. We designed learning activities that would
encourage
or require students to interact with each other and the teacher by
email, by sharing their answers to activities and by participating
in online
conferencing. A different topic unit was scheduled for each week of the
semester, with a related series of open-ended questions
for online discussion.
The questions for discussion were posed by the teacher, by the students and by
“visiting experts”.
Among the visiting experts were tribunal
members, academic commentators and others who could inject fresh perspectives on
the weekly
topic area.
One-to-one interaction among students can be promoted
by setting learning activities for them to complete in pairs. Paired activities
break down the isolation of students and also provide opportunities for
formative self-assessment and peer assessment. As well as
promoting
collaborative study, paired activities model co-operative work practices. We
provided one paired activity at an early stage
in the program. Students were
asked to obtain their study partner’s feedback on a draft answer to a
problem-based activity,
and to report on the revisions that they had made to the
draft in response to the feedback.
Encouraging Reflective Practice
Along with an emphasis on the professional knowledge
base and competence in practice, contemporary approaches to professional
education
place value on prompting students to reflect on their professional
role and experiences.41 Since professionals acquire
much of their competence through practice, educational theorists have become
interested in the reflective
process by which professionals learn from
experience.42 Fostering the cycle of action and
reflection is seen as a means of enabling professionals to adapt to external
change, to reappraise
their values and to become life-long learners.
We
provided activities to prompt students to reflect upon their professional role
and what they had learned from particular experiences
in their tribunal
practice. Over a period of four consecutive weeks, students made entries in a
professional journal, recording each
step in the process of reaching a decision
in an actual case from their tribunal practice. Journal entries were kept
privately, although
students were invited to share their reflections on the
general issues, dilemmas and solutions that arose. At the end of the four
weeks,
they used the journal entries to prepare a statement of reasons for the
decision. As a final activity, they were asked to
review their journal entry and
to write a short essay reflecting upon what they had learned in the process of
making the decision.
Reflective practice was also encouraged by in-text
activities and questions inserted into the print materials, and by the questions
posed by the teacher and visiting expert for online discussion.
The process
of reflection in action required by these activities challenges students’
understandings of what counts as knowledge
and how one learns
it.43 It challenges the epistemology of technical
rationality that accompanied the shift of professional education from the
apprenticeship
system to the universities.44 It also
demands a degree of introspection, self-evaluation and frankness that some
students may find uncomfortable. The student response
was a matter that would
require careful monitoring in the evaluation process.
DESIGNING THE WEB-BASED LEARNING ENVIRONMENT
To support the online delivery of the subject we used Interlearn, a program
developed by Monash University’s Centre for Higher
Education. As
Interlearn had been developed for the delivery of CHED’s professional
education course in higher education, its
functions had been designed
specifically to support online delivery of professional education courses.
The Interlearn site structure features a password-guarded personal worksite
for each student. The personalised home page consists
of a subject map with
links to each of the thirteen weekly topics. Each topic site provides
instructions for the learning activities,
links to online resources and a
dialogue box for online submission of the student’s response. When the
student completes the
activities for a topic and submits them online, the title
of the topic in the subject map changes colour and displays a tick, to
provide a
record of work completion.
A series of buttons on the side of the home page
provide links to student and teacher email and phone contact details, a
resources
page, a news page, online discussion forum and activity search. The
activity search function enables students to search a database
of student
answers to the learning activities, by selecting from drop-down boxes the
student’s name and the number of the activity.
The activities that would
be available to be searched were clearly indicated, and students were given the
opportunity to request
that their answers be kept private.
We decided against
putting all the instructional materials online. The subject is text-intensive,
and we anticipated that students
would prefer to read it in print. It was
acknowledged that this would restrict the potential of online teaching for
flexible sequencing
of instructional material through the use of
hypertext.45 However print media can also provide
opportunities for students to choose their own route through the materials, by
providing self-navigational
aids such as tables of contents and
cross-referencing.
The resources page provides links to a rich variety of
online primary and secondary sources, including statutes, cases, articles,
conference papers, Halsbury’s Laws of Australia and tribunal
websites. Direct hypertext links to selected resources are also provided from
the online instructions for learning activities
in the student’s worksite.
EVALUATION
The subject was delivered during 2001 as a pilot offering to a group of 19
students, drawn from seven different State and Commonwealth
tribunals across
four states.46 They were of diverse professional and
disciplinary backgrounds, and included six students with legal training. Most
were members
of tribunals but five were case management staff whose
responsibility was to prepare a case for hearing by a tribunal member, even,
in
some cases, to the extent of identifying what if any further evidence should be
sought (either at a hearing or in another way)
or preparing all or part of a
draft decision. Among tribunal members, some held full time life appointments,
while others held full
time, part time and sessional fixed term appointments.
The subject was evaluated by both external and internal methods. External
sources of evaluation included comments from the heads (or
nominees) of four
major tribunals who reviewed the printed materials, and evaluative feedback from
an external academic assessor
who had access to the online worksites and
discussion forum as well as the printed materials.47
Internal feedback mechanisms included:
- a review of how students performed in the assessable activities and discussion forum
- analysis of the students’ comments and queries to the subject teacher throughout the course
- feedback comments sought informally about half way through the subject
- final assessable activity, which asked students to reflect on what they had learned
- evaluation questionnaires completed by students at the end of the subject.
External Evaluation
The external academic assessor commented on the high
standard of written materials, which represented a major synthesis of
administrative
and other laws pertaining to tribunal work, and the practical
focus of the assessment activities. She suggested that the
satisfactory/unsatisfactory
assessment scheme, appropriate for a non-award
professional skills course, was less suitable for setting appropriate quality
benchmarks
where the subject is offered for credit in a postgraduate award
course.
Comments provided by the tribunal heads on the written materials
illustrated the diversity of the tribunals and of their positioning
in relation
to this subject, given the variation in levels and areas of training they
provide to members. For example, some tribunals
have trained members mainly on
areas of law and legislation relevant to their decision- making, others have
focussed on tribunal
related skills training such as conducting hearings and
writing decisions, while others have also trained members on public service
conduct requirements. A major benefit of the subject was the sharing of
information and making contacts between members of different
tribunals.48
Internal Evaluations
The subject evaluation questionnaire, completed by 10
students, showed that students were very happy with the subject content,
teaching
methods, study guide and activities. Completing the subject enhanced
their ability to perform their functions as tribunal members,
and stimulated
their interest in further study. Some commented, however, that their workloads
meant that they could do no more than
complete minimum subject requirements.
Even lawyers who had previously studied administrative law benefited from the
focus on tribunal
issues and updating of systematic administrative law
knowledge. In particular, the students found that the subject provided them
with
an overall legal framework for understanding the context of and guiding
principles for their function, including the relationship
of tribunals to the
court system, to the federal system of government, and, especially for federal
tribunals, their positioning within
the executive, between law and
administration. This provided a framework within which to make sense of the
separate more specialised
training provided by the tribunals
themselves.
Overall, the use of online delivery enabled this subject to be
delivered to an important target group for whom this sort of specialised
education would not otherwise be accessible. For most students, the key element
which enabled them to take the subject was its flexible
delivery. Some aspects
of flexible delivery, however, were not seen as advantages. Students would have
preferred to include some
interactive discussion, whether face to face, by
telephone linkup, or by some other method. They found the on-line discussion
forum
not completely satisfactory for class discussion, as contributions could
not be edited or deleted by the contributor, and its asynchronous
nature made
ongoing discussion disjointed. The very flexibility of being able to do the
subject at their own pace meant that meaningful
class discussion was hard to
achieve.
MAJOR ISSUES IN SUBJECT DESIGN/TECHNOLOGY
Several areas of subject design and implementation are considered in more detail as they generally pose a challenge in distance or online education, and in this subject. They include the use of the on line components, the problem of making effective use of the discussion forum, the use of the activity search function, and the role of assessment activities.
1 On-line components/interface
The first challenge for students was coming to grips
with the technical interface, in ensuring both that students’ computers
were running the necessary software to provide access to all subject facilities,
and that all students had the confidence and familiarity
with computers to use
all the functions necessary for their own subject participation. Some students
had effective computer help
provided by their tribunals, while others,
especially sessional members, had to deal with these challenges on their own
home computers
with only the phone and email help provided by the University.
Problems relating to running the necessary software were resolved
during the
first two to three weeks. What remained were problems of slow internet access
for some members using home computers and
a modem, which made access to the
on-line components of the subject slow and discouraged their use. This is a
reminder that to be
effective, on line education requires student access to
computer equipment well above minimum standards.
Some limitations arose from
the software used for the subject. The Interlearn software used did not retain
text formatting applied
by the student in their word processor when the text was
copied into the student work-site or posted to the discussion forum. This
problem can be improved by clear instructions to students or improvements to the
software. The discussion forum software did not
permit students to delete or
edit contributions they had made, which meant they could not revise or improve
upon their contributions.
This operated to deter contributions which were not
the result of detailed and formal thought, which made the discussion forum
rather
less spontaneous than it was intended to be.
2 Discussion forum
Use of the discussion forum was the least
satisfactory aspect of the subject. While all students read the forum, only
about one third
regularly contributed to it and engaged in discussion. Although
the standard of the contributions made was uniformly high, it was
not really
used as intended for informal, open and friendly student-student discussion of
the subject and surrounding issues. Among
the factors mentioned by students as
limiting their contribution to the forum were: slow modem access, lack of time,
the fact that
contributions were not assessable and therefore not essential, or
because they didn’t know the other students well enough.
Where students
were running behind the nominal class schedule (as most were at some stage), the
discussion had often moved on before
they could contribute. One student felt the
discussion was often too technical in relation to tribunals with which they were
not
involved.
While students who do not contribute benefit from reading
postings (just like students who listen but do not contribute to class
discussion
in a face-to-face class), their limited participation represents a
significant lost opportunity in a professional and expert group
of students. Not
only do non- participants not offer their experience and perspectives to others,
but they also miss the opportunity
for more active learning and engagement with
their peers. Students in face to face classes also listen to discussion without
contributing
and continue to learn, but the literature suggests that it is
possible to get better participation in on-line discussion groups because
they
allow better for reflective participation and student-student interchange than
face to face classes.49
How can more extensive
student use of the discussion forum be encouraged? The external factors such as
slow access and lack of time
(meaning only minimal requirements are completed)
could only be addressed by making participation in the forum assessable, for
example
by requiring 4 or more posts of substance over the course. However, this
would inhibit the informality of the forum and probably
limit its use for
student-student discussion. To encourage participation rather than requiring it
means the motivational and inhibiting
factors must be dealt
with.50 This would include coming to terms with the
online medium for discussion, as well as factors internal to the student group,
the subject
environment and software such as the group not knowing each other
well and thus being unable to build up trust in each other necessary
for
discussion, the permanence of contributions, and the timing problems arising
from different progress rates through the subject.
The online medium for
teaching has specific characteristics, and in particular, as it is text-based,
“social cues are absent
and, as humans are used to the high bandwidth of
face-to-face communications, this can cause
problems.”51 In particular, the nature of the
online environment requires an instructional model whereby the teacher acts as
facilitator who is one of the participants and whose role is to guide and
support the learning process. ... [this] engenders a radical
shift in the power
and interaction structures in the classroom as the students must accept the
responsibility for their own [learning],
and the instructor must relinquish a
certain amount of control over the process.52
Taking
this sort of responsibility can be challenging for the students, and the
presenter needs to assist students to understand and
undertake this path.
Trust
Student reluctance to take responsibility for their learning
may be manifest as reduced participation in the discussion forum, or
as
reluctance to take risks by making postings which show uncertainty. When
students either do not use the forum or post only when
they have thoroughly
prepared and are sure of their material, the forum is not fulfilling its
potential as a place for student discussion,
questioning and learning. Without
knowledge of and trust in each other, the group cannot develop the confidence
which will enable
self- protective behaviours to be discarded. In an electronic
context, lack of participation by many students exacerbates this problem,
as
students cannot get to know non-participants, and therefore could not feel
confident about the audience or comfortable contributing.
By contrast, in a
face-to-face class, the non-participants can be seen and their non-verbal
communication is available to the class.
Where students are spread across the
country and cannot meet in person, knowledge and trust in each other can only be
built through
the electronic forum. Specific training on the potential and
importance of the forum is important, but requiring students to actually
engage
with the forum and the group is vital. This could be done through an assessable
exercise early in the semester which requires
introducing oneself and engaging
(through more than one posting) in discussion with other students on an issue in
the course of direct
relevance to them, which carried some (significant but not
too heavy) marks. This would ensure all students could see the
“voices”
of all the other students, and may build some confidence in
the group.
The permanence of contributions may have inhibited informal
participation. A student who is diffident may be uncomfortable in a permanent
discussion forum where they may have been prepared to participate in a face to
face verbal discussion because of its transience.
The ability to edit or delete
contributions would alter the written record of the forum and could be
confusing. Building trust in
fellow students is the best solution to this
problem, as well as giving clear instructions about how the presenter can delete
postings
on request where appropriate.
Timing
Last, but not least, is the problem of timing. Many students
may have felt that they needed time to reflect before contributing, but
once
they had taken this time, found that the moment for that topic had passed, or
else could not find time to return to the point
as well as keeping up with class
work and their employment. Some of the features which make flexible education
attractive to busy
professionals can also make it difficult to achieve effective
class discussion. Students are generally very busy with their professional
and
other obligations, and value the ability to control their own study timing, but
this means that they are not all ready to discuss
the same topic at the same
time, and many had moved on by the time others reached the topic. However,
although they did not utilise
the discussion forum to its potential, the
students commented that they wanted better class discussion, and more
opportunities for
personal interaction.
Trying to schedule a regular weekly
time for class discussion online would not solve the problem as it would
severely reduce the timing
flexibility students valued so highly. This is
already limited to some extent by the due dates for assessable activities, but
further
inflexibility is not desirable. An alternative is better education about
the potential advantages of asynchronous on line communication
in this context.
Students can learn that the ability to run multiple discussion threads within a
class, which need not be contemporaneous
and to which students can contribute
when it suits them is a major advantage, not a disadvantage, of online
discussion groups which
is not achievable in a face to face
context.53 Where the reality for many tribunal members
is heavy and variable workloads which make any work above the required
assessment activities
difficult to achieve, contributions to the discussion
forum have to be made when the student is immersed in the relevant material,
or
later in responses to discussion. Given workloads of professional postgraduate
students, probably the best one can aim for is
to offer a tailored discussion
forum with clear aims and functions for those who are able to take advantage of
it.
3 Activity search function
The software activity search function allowed
students to look at the work which other students had posted for assessable
activities.
Almost all students used it.54 This
function was an important element in the subject’s educational basis,
because assessment was based on selection and analysis
of problems from each
student’s own tribunal practice. The activity search function gave
students access to a range of different
approaches to solving problems, and
could be used to raise different perspectives and generate ideas for solving
their own problem,
and thus more fully explore the possibilities.
Some of
these benefits were not available to the first students to post on any
particular activity, and many students posted their
activities only as they
became due for assessment. The activity search function in Interlearn (unlike
the discussion forum) allows
draft activities to be saved, and edited at any
time, so even those who posted early could revise their activities in light of
others’
work. For future offerings of the subject, a bank of selected
examples is now available for reference by students. A side benefit
was that
this function provided a mechanism for students to learn more about other
tribunals, and reflect on similarities and differences
in dealing with
issues.
Students who used this function to look at others’ work found
that it stimulated their thinking, presenting a different perspective
or
emphasis, and it gave a guide to the depth of analysis required for the
activities. Its use could be improved by requiring draft
activities to be posted
a week before the due date for submission for assessment, to allow all students
the opportunity to benefit
from this aspect of learning. Although requiring
fixed dates for assessment activities reduces student flexibility, it ensures
more
scope for effective class interaction through the online interface, as well
as ensuring students progress through the course. The
tension between maximising
student flexibility, and stricter scheduling requirements to facilitate
interaction is a consistent theme
in analysing the benefits and disadvantages of
this subject.
One of the assessable activities required students working in
pairs to comment on each other’s work before submitting it for
assessment.
Some pairs worked very well and provided useful feedback, while others had
timing problems or found the feedback was
not valuable, sometimes because of
disciplinary differences or lack of experience. More education about
constructive feedback could
help with this exercise, though the timing problems
are difficult to resolve.
4 Assessment and activities
The aim of the assessable exercises was to allow
students to demonstrate their competence in the skills and knowledge covered by
the
subject. Activities were graded satisfactory/ unsatisfactory. Where an
activity was not completed satisfactorily, feedback was given
and the student
had to rework and resubmit until satisfactory completion was achieved. There
were several reasons for choosing this
scheme. First, many of the students were
new to law study and postgraduate work, and had no knowledge of the methods or
standard
of assessment. Secondly, almost all students were adult professionals
returning to study in fields related to their own expertise
and it was seen as
inappropriate to be grading their performance in areas related directly to their
field of professional expertise,
at least in an education re-entry, foundational
subject. Thirdly, this scheme reflects the desired learning process for adults,
where
the aim is for all students to attain competence in understanding the
subject, rather than to comparatively rank performances as
is usually required
for undergraduates. Finally, given the diversity among the student group in age,
level of experience, position
within tribunals, professional practice,
disciplinary background, and previous amounts and areas of tribunal related
training, no
realistic expectation of student performance could be formulated in
advance. Instead, this knowledge has to be acquired through experience
with the
students in the delivery of the course. This assessment system allowed provision
of feedback to assist students’ learning
experiences without judging their
relative performances.
The importance of encouraging reflection in adult
professional learning has been mentioned above.55 Some
students found the assessment activities which required reflection upon their
own work or on their experience of the subject
itself difficult. Some felt that
they were being asked for their feelings or reactions, not necessarily
understanding the role of
reflective learning, which suggests the need for
better explanation of the reflective learning process. Several students regarded
the subject workload as unevenly distributed over the two main modules. While
this is partly true, it also reflected the fact that
some (but not all)
tribunals had trained their members and staff in some of the decision-making
skills covered in the second module,
which built on the basic principles and
theories covered in the first.
ADVANTAGES AND CHALLENGES OF ONLINE DISTANCE EDUCATION FOR PROFESSIONAL STUDENTS
Students commented that it was an excellent subject that should be a prerequisite for all tribunal members. They regarded it as interesting, enjoyable and very useful for tribunal functions. They saw the distance mode as fundamental in allowing them access to the subject, as most could not have undertaken the subject had it required on campus attendance, given their work and other commitments. The main disadvantage they saw was the minimal face to face contact with the presenter and other students, although some tribunals had multiple members from one location undertaking the subject, and they operated informal discussion groups themselves. Overall, however, the advantages of being able to access the subject outweighed the disadvantages. One student even decided to undertake a law degree after taking the subject.
Improved Communication
Future challenges for further development of the subject include the exploration of ways to improve informal communication, either through the online elements of discussion forum, email and activity search, or by other means such as telephone linkups or facilitating self-tutorial groups in cities with multiple students. Because of the diversity of experience and background students bring to the subject, but the similarity of their professional decision-making functions, there is enormous scope for synergistic benefit from broader discussion among students. The scope for better class communication (whether online or verbal) would be improved if all students used the discussion forum on a particular topic within the same week or two, but any requirement for work to be undertaken (relatively) contemporaneously would undermine student flexibility. Asynchronous discussion allowing a number of different threads of discussion maximises the potential of the online medium, but challenges students to adjust to a new teaching and communication mechanism at the same time as adjusting to new subject matter and returning to study.
Resources of Tribunals and Their Members
Broader challenges arise from the resource position
of tribunals, and the positions of full, part time and sessional members.
Although
some tribunals have provided support to members undertaking the subject
through a contribution towards fees, few have offered assistance
in the form of
study leave. Given current tribunal workloads, it may be unrealistic to expect
full time members to undertake a subject
without making provision for study
leave. The relatively insecure positions of members on sessional appointments
limits the likelihood
that they will invest in specifically tribunal related
professional development, and the tribunal may also be less committed to ongoing
training of sessional members.
While recent
reports56 have established the need for tribunals to be
engaged with the professional development of their members to ensure quality of
decision-making,
they have not taken account of the tensions which arise from
the different types of tribunal appointments. Fixed term appointments
can be
short term and non-renewal is always possible. Sessional appointments can be
used to attract staff with the expertise the
tribunal needs, but can also
operate to transfer the risk of a downturn in appeals from the tribunal to the
member, whose rostered
work will diminish. These appointment practices may tend
to undermine a tribunal’s performance of its obligation to assist
in
developing its members’ expertise, although the need for professional
development of staff is no less. A subject like this
provides an avenue for
relatively inexpensive development of staff in fundamental principles relevant
to their job, but the support
of tribunals is needed to encourage staff to
undertake development by clear demonstration that it is regarded as worthwhile.
Diversity of Tribunals
As noted above, the diversity of tribunals in Australia makes it difficult to find common ground so as to attain efficiencies in training members. Not only are functions, procedures, types of appointment and qualifications of members different, but tribunals vary greatly in the amount and nature of training they provide to members. This subject treads the limited common ground of the fundamental and essential legal aspects of tribunal work which provides the framework for the more specialised training needed for each tribunal. For the tribunals themselves it provides the advantages of a tertiary level qualification and subject which would be beyond the means of any tribunal to provide for itself, and on which tribunals can rely to ensure their members have competence in and understanding of basic legal aspects of tribunal work. Even for tribunals which provide help with fee payments and possibly some paid study leave to undertake the subject, training through such a course is much less expensive than developing specialised training which may only be used once or occasionally. The provision of basic legal training for members frees tribunals to concentrate their training efforts on issues of current local concern, such as changes in their legislation, the role of performance management for tribunal members, and the role and content of an ethical code of conduct for members.
CONCLUSION
Education for tribunal members in fundamentally important legal frameworks
has previously been left up to each individual tribunal,
and has been
unsystematic and variable in extent and quality. This subject provides a
coherent, academically rigorous, high quality
education and qualification for
members of tribunals. This contributes to the aim of improving the quality of
tribunal decision-making
(thereby protecting all parties to decisions from
appeals or challenges) by ensuring members know the basic legal framework, rules
and principles within which their decision-making must be performed. This
subject is now part of an award sequence which provides
students with the
opportunity to improve their formal qualifications through study directly
relevant to their practice.
Australian law schools are well placed to
contribute to the professional education of tribunal members. The absence until
recently
of a national peak body for Australian tribunals has led to lacunae in
the provision of common training programs. Australian universities
have the
expertise to develop attractive subjects, and the educational infrastructure to
support learners whether studying locally
or at a distance. The provision of
university-based programs will promote consistency in professional standards,
and prepare members
for a broader role within the tribunals sector.
* Senior Lecturers, Law Faculty, Monash University.
The development of the subject described in this article was funded by a Special
Initiative Grant from Monash University and the Law Faculty.
©2002.
[2002] LegEdRev 2; (2002) 13 Legal Educ Rev 21.
1 The functions of occupational disciplinary tribunals are not penal but protective of the public: New South Wales Bar Association v Evatt (1968) 1 KB 244, at 278: J Forbes, Disciplinary Tribunals 2nd ed (Sydney: Federation Press, 1996) para 12.24 and footnote 98.
2 Example of the latter are Small Claims, Residential and Retail Tenancies and Anti-Discrimination Tribunals.
3 The Administrative Review Council listed the skills and experience that had been suggested as being necessary or desirable for tribunal members ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals Report No 39 (Canberra: AGPS, 1995) paras 4.8 - 4.14.
4 Kathryn Cronin, Professional Education for Tribunals, paper delivered to Third Annual AIJA Tribunals Conference, Melbourne, 9 June 2000, at 3.
5 Australian Law Reform Commission, Managing Justice: A review of the federal civil justice system Report No 89 (Sydney: ALRC, 2000) para 2.207.
6 Id para 2.210.
7 The CCAT is a national association representing members and staff of administrative tribunals in federal, provincial and territorial jurisdictions.
8 CCAT, Discussion Paper on First Principles and Goals for the Training and Continuing Education of Tribunal Adjudicators (Ottawa: CCAT, 1999) 2.
9 ALRC, Managing Justice, supra note 5, para 3.93; ARC, supra note 3.
10 ALRC, id paras 2.213-14.
11 The authors were members of the project team responsible for developing the subject as a co-production of Monash University’s Faculty of Law and the Centre for Higher Education and Development. CHED’s Dr Peter Jamieson, Dr Len Webster, Associate Professor David Murphy and Joanne Becker provided valuable advice on the educational design of the subject and how to exploit the features of the Interlearn program.
12 It should not be assumed that lawyers appointed to administrative tribunals possess the required skills and knowledge. They are trained in the adversarial processes of court-based adjudication, which differs significantly from administrative adjudication.
13 S Nathanson, Developing Legal Problem-Solving Skills (1994) 44 Jnl of Legal Educ 215, at 226-27.
14 Id at 227.
15 Diana Laurillard, Rethinking University Teaching: a framework for the effective use of educational technology (London: Routledge, 1993) 18.
16 For a list, see the website for the Open University’s International Centre for Distance Learning <http://www-icdl.open.ac.uk/> .
17 Goldring, supra note 39, at 95.
18 Id at 116; Robyn Benson & Melissa de Zwart, The Experience of Online Learning: Evaluating the Effectiveness of an Innovation in Web-Based Legal Education in Sims, O’Reilly and Sawkins eds, Learning to Choose: Choosing to Learn, Proceedings of the 17th Annual Conference of the Australasian Society for Computers in Learning in Tertiary Education (Lismore, NSW: Southern Cross University Press, 2000) 425-34.
19 JE Zanglein & KA Stalcup, Te(a)chnology: Web-Based Instruction in Legal Skills Courses (1999) 49 J of Legal Educ 480-503.
20 Laurillard, supra note 15, ch 10.
21 Id, ch 10.
22 MS Knowles, The Modern Practice of Education: Anragogy versus Pedagogy (NY: Association Press, 1970, 1980) 64-65.
23 Although some tribunals have surveyed the learning needs of their own members: the Administrative Appeals Tribunal conducted such a survey in 1992, discussed in ALRC, Discussion paper 62 Review of the Federal Civil Justice System (Sydney: ALRC, 1999) para 3.121.
24 CCAT, supra note 8.
25 Id at 12.
26 Paul Ramsden, Learning to Teach in Higher Education (London: Routledge, 1992) 136.
27 ARC, supra note 3.
28 Id, paras 4.15-4.17
29 Id.
30 ALRC, DP 62, supra note 23, paras 115-3.116.
31 The Council of Australasian Tribunals, established in June 2002, may take on this role in future.
32 Pam O’Connor was a member of the Social Security Appeals Tribunal (SSAT) from 1985-87 and 1989-93, and Beth Gaze was a member of the Student Assistance Review Tribunal from 1990-94 and has been a member of the SSAT since 1995.
33 Ramsden, supra note 26, at 129-34.
34 John Biggs, Enhancing teaching through constructive alignment (1996) 32 Higher Educ 347-64.
35 For example, JR Savery & TM Duffy, Problem Based Learning: An Instructional Model and its Constructivist Framework, in BW Wilson ed, Constructivist Learning Environments: Case Studies in Instructional Design (Englewood Cliffs, NJ: Educational Technology Publications, 1996).
36 Knowles, supra note 22, 64-65.
37 Id 66-67; Boud et al contend that learning can only occur if the learner’s experience is engaged at some level: David Boud, Ruth Cohen & David Walker eds, Using Experience for Learning (Buckingham, UK: Open University Press, 1993) 8.
38 Biggs’ model of “constructive alignment” requires that the assessment activities should measure student attainment of the learning objectives: Biggs, supra note 34.
39 John Goldring, Coping with the Virtual Campus: Some Hints and Opportunities for Legal Education [1995] LegEdRev 5; (1995) 6 Legal Educ Rev 91-116 at 110.
40 L Armytage, cited in ALRC, supra note 5, para 3.121
41 Hazel Bines, Course Delivery and Assessment, in Hazel Bines & David Watson eds, Developing Professional Education, (Buckingham UK: The Society for Research into Higher Education and Open University Press, 1992) 57-67, at 61.
42 On reflection-in-action, see Donald Schon, Educating the Reflective Practitioner (San Francisco: Jossey-Bass, 1987) and D Boud, R Cohen & D Walker eds, Using Experience for Learning (London: SRHE and Open University Press, 1993).
43 Donald A Schon, Knowing-in-Action: The New Scholarship Requires a New Epistemology (1995) Change November/December, 27-34.
44 Id.
45 For discussion of the possibilities the Web offers for flexible sequencing, see, Zanglein and Stalcup, supra note 19, at 492-93.
46 Eighteen of the students completed the course, one after some months delay due to personal reasons. One student deferred participation due to workload.
47 The authors express their gratitude to Ms Robin Creyke, Reader in Law at the Australian National University, for acting as the external assessor.
48 Honourable Justice Murray Kellam, President, Victorian Civil and Administrative Tribunal, Developments in Administrative Tribunals in the last two years, paper presented at the Public Law Weekend at the Centre for International and Public Law (Canberra: Public Law Weekend, 11 November 2000) 5.
49 L Harasim, Online education: A new domain, in R Mason & A Kaye eds, Mindweave: Communication, computers and distance education (Oxford: Pergamon Press, 1989) 50, 54.
50 R Oliver & A Omari, Using online technologies to support problem based learning: Learners’ responses and perceptions (1999) 15 Australian J of Educational Tech 58, at 73.
51 M Collin & Z Berge, Facilitating Interaction in Computer Mediated Online Courses (Background paper, 1996) <http://www.emoderators. com/moderators/flcc.html> at “Disadvantages”.
52 Id, at “The Role of the Instructor when teaching in the CC environment”.
53 To see these aspects as advantages requires students themselves to be able to learn to take advantage of such unconventional learning methods. Other valuable aspects of the forum are the ability to sort contributions by thread, author, or date, and to see all, or only unread contributions, and to have a discussion extending over time which can become deeper as students learn more about the subject.
54 One student felt that looking at other students’ work before completing her own was not legitimate. However, students were analysing problems they had identified for themselves, so access to others’ activities could not lead to unfair copying.
55 See text accompanying note 40 supra, and following.
56 See reports listed at notes 3 and 5 above.