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Collins, Pauline; Brackin, Toni; Hart, Caroline --- "The Rocky Rhetoric and Hard Reality: The Academic's Dilemma Surrounding Assessment" [2010] LegEdRev 9; (2010) 20(1&2) Legal Education Review 157

[*] Pauline Collins LLB (Adel), B Vis Arts (USQ), Grad Dip in Prof Com (USQ), LLM (UQ), Solicitor & Barrister (SA), Lecturer, School of Law, University of Southern Queensland.

[**] Toni Brackin B Com (USQ), B Ed (Sec) (QUT), M Tax (UNSW), FTIA, Registered Teacher QCT, Lecturer, School of Law, University of Southern Queensland.

[***] Caroline Hart LLB, BA (UQ), LLM (QUT), Solicitor, Lecturer, School of Law, University of Southern Queensland. The authors would like to thank Professor Michael Robertson and unknown reviewers for their comments on earlier drafts. We would also like to acknowledge our Faculty’s research funding grant which supported the research.

[1] Denise Bradley et al, Review of Australian Higher Education: Final Report (Commonwealth of Australia Government, 2008) (‘Bradley Review’).

[2] Ibid; Julia Gillard, Address to the Universities Australia Annual Higher Education Conference (3 March 2010) Department of Employment, Education and Workplace Relations (‘DEEWR’) <http://www.deewr.gov.au/Ministers/Gillard/Media/Speeches/Pages/Article_100303_102842.aspx> :

In January, 2010 the number of low SES applicants increased by 9.8 per cent on January 2009, compared to a 8.2 per cent increase in the number of medium SES applicants and 5.4 per cent in high SES applicants. While this shift can be explained by poor employment outcomes among the young, one of the tragic impacts of the global recession, this shift will be reinforced by our substantial low SES loading, which DEEWR estimates will be worth $540 per student this year rising to $1500 in 2012.

[3] Margot McNeill, Maree Gosper and John Hedberg, ‘Engaging Students with Higher Order Learning (or not): Insights into Academic Practice’ (Paper presented at the ATN Assessment 08: Engaging Students with Assessment, University of South Australia, Adelaide, 20–21 November 2008) <http://www.ojs.unisa.edu.au/index.php/atna/article/viewFile/385/244> .

[4] David Boud, ‘Assessment and Learning: Contradictory or Complementary?’ in Peter Knight (ed), Assessment for Learning in Higher Education (Kogan, 1995) 35, 35.

[5] TEQSA was established by the government in response to the Bradley Review, above n 1, Recommendation 20. See, eg, Gillard, above n 2:

an independent national regulatory body will be responsible for regulating all types of tertiary education. TEQSA will register providers, carry out evaluations of standards and performance, protect and quality assure international education and streamline current regulatory arrangements. It will join together the regulatory activity currently undertaken in the states and territories with the quality assurance activities currently undertaken by the Australian Universities Quality Agency (AUQA). In so doing it will reduce the number of regulatory bodies from 9 (all states and territories plus AUQA) to one.

[6] Don Anderson, Richard Johnson and Bruce Milligan, Quality Assurance and Accreditation in Australian Higher Education: An Assessment of Australian and International Practice (Commonwealth of Australia, 2000) <http://www.dest.gov.au/sectors/higher_education/publications_resources/profiles/archives/quality_assurance_in_australian_higher_education.htm> :

[a regulatory body’s] purpose would be to ensure, for the institutions themselves, for the Australian Government and the general public, and for students, that degrees are all of a sound standard in which the Australian people may have confidence and pride. Its methods would include audits of institutions’ quality practices and for this purpose an independent agency would be needed.

[7] Bradley Review, above n 1, Recommendations 2 and 4.

[8] Ibid.

[9] Denise Chalmers, A Review of Australian and International Quality Systems and Indicators of Learning and Teaching (Carrick Institute, v 1.2, 2007) 69:

Higher education is now more than ever seen as an economic commodity, with increased interest in linking employment outcomes to higher education (employment and graduate destinations). This in turn has led to interest from governments and funding agencies in measuring the employability of students through measures of learning and their employment outcomes …

[10] See, eg, McNeill, Gosper and Hedberg, above n 3.

[11] See, eg, John Biggs, Teaching for Quality Learning at University (Open University Press, 2nd ed, 2003); see also John D Bransford, Ann L Brown and Rodney R Cooking (eds), National Research Council: How People Learn: Brain, Mind, Experience, and School (National Academy Press, revised ed, 2000).

[12] Graham Gibbs, ‘Using Assessment Strategically to Change the Way Students Learn’ in Sally Brown and Angela Glasner (eds), Assessment Matters in Higher Education (Open University Press, 1999) 44, 44.

[13] David Boud, ‘Assessment and Learning — Unlearning Bad Habits of Assessment’ (Paper presented at the Effective Assessment at University, University of Queensland, 4–5 November 1998) 1.

[14] Geoff Scott, Accessing the Student Voice: Using CEQuery to Identify What Retains Students and Promotes Engagement in Productive Learning in Australian Higher Education (Department of Science Education and Training, 2005).

[15] Richard J Stiggins, ‘Assessment Crisis: The Absence of Assessment FOR Learning’ (2002) 83(10) Phi Delta Kappan 758.

[16] Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (AUTC, 2003) <http://www.cald.asn.au/docs/AUTC_2003_Johnstone-Vignaendra.pdf> 257.

[17] Gillard, above n 2.

[18] See, eg, Sir Ron Dearing, Report of the National Committee of Inquiry into Higher Education (NCIHE Publications, 1997) <http://www.leeds.ac.uk/educol/ncihe/> 69:

The health of higher education depends entirely on its staff, whether academic, professional or administrative. There is concern among staff that they have received neither the recognition, opportunities for personal development, nor the rewards which their contribution over the last decade merits. Over the next 20 years, the roles of staff are likely to change, as they undertake different combinations of functions at different stages of their careers. To support and prepare staff for these new working patterns, more focused and appropriate training and staff development activities will be needed.

See also Cath Lambert, Andrew Parker and Michael Neary, ‘Entrepreneurialism and Critical Pedagogy: Reinventing the Higher Education Curriculum’ (2007) 12(4) Teaching in Higher Education 525.

[19] Bradley Review, above n 1.

[20] Christine Broughan (ed), Academic Futures: Inquiries into Higher Education and Pedagogy (Cambridge Scholars Publishing, 2009).

[21] See also Don Anderson, Richard Johnson and Lawrence Saha, ‘Changes in Academic Work: Implications for Universities of the Changing Age Distribution and Work Roles of Academic Staff: An inquiry into the Implications for Universities of Changes in the Academic Workforce and Work Conditions’ (DEEWR, 2002) <http://www.dest.gov.au/sectors/higher_education/publications_resources/profiles/changes_in_academic_work.htm> see also Piävi Tynjälä, Jussi Välimaa and Anneli Sarja, ‘Pedagogical Perspectives on the Relationship between Higher Education and Working Life’ (2003) 46(2) Higher Education 147.

[22] Graeme Hugo, ‘The Demography of Australia’s Academic Workforce: Patterns, Problems and Policy Implications’ (Paper presented at the Monash Seminars on Higher Education, Monash University, 7 September 2004) 23.

[23] Paula Baron, ‘Thriving in the Legal Academy’ (2007) 17 Legal Education Review, 27–52, 37; see, eg, Gary Watt, ‘The Soul of Legal Education’ (2006) 3(2) Web Journal of Current Legal Issues <http://webjcli.ncl.ac.uk/2006/issue3/watt3.html> .

[24] See, eg, Alfred Rovai, ‘Building Sense of Community at a Distance’ (2002) 3(1) International Review of Research in Open and Distance Learning 1. An off-campus law student gave the following feedback in 2008 regarding lecture recordings:

The opportunity to listen does make external students feel more like part of the ‘team’. I appreciate any efforts you make to include external students …

[25] Dennis Pearce, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Australian Government Publishing Service, 1987) vol 1, 1 (‘Pearce Report 1987’). Key skills the report identified as important for law schools to focus on included oral expression, advocacy, drafting, negotiation and interpersonal skills. See also Craig McInnis and Simon Marginson, ‘Australian Law Schools after the 1987 Pearce Report’ (Australian Government Publishing Service, 1994); Anderson, Johnson and Milligan, above n 6, who report the need for training in teamwork skills; Dearing, above n 18: white paper on the future of higher education in the UK that indicated a desire to increase student numbers, widen participation and produce lifelong learners.

[26] Davis et al, above n 16, 58.

[27] See Table A above.

[28] See Table C below.

[29] Johnstone and Vignaendra, above n 16, Table A.

[30] CALD, Submission No 275 to DEEWR, Review of Australian Higher Education, (2008) 4–5.

[31] Mark Barrow, ‘Student Assessment and Knowing in Contemporary Western Societies’ (Paper presented at the International Conference of the Higher Education Research and Development Society of Australasia, Miri, Sarawak, 4–7 July 2004).

[32] See generally Anselm L Strauss and Juliet M Corbin, Grounded Theory in Practice (Sage Publications, 1997); Anselm L Strauss, Qualitative Analysis for Social Scientists (Cambridge University Press, 1987); Barney G Glaser, Doing Grounded Theory: Issues and Discussions (Sociology Press, 1998).

[33] Strauss and Corbin, above n 32; Strauss, above n 32; Glaser, above n 32.

[34] See, eg, Jennifer M Brill and Yeonjeong Park, ‘Facilitating Engaged Learning in the Interaction Age Taking a Pedagogically Disciplined Approach to Innovation with Emergent Technologies’ (2008) 20(1) International Journal of Teaching and Learning in Higher Education 70.

[35] Diana H J M Dolmans, ‘The Relationship between Student Generated Learning Issues and Self-Study in Problem-Based Learning’ (1992) 22(4) Instructional Science 251.

[36] Biggs, above n 11.

[37] Diana Laurillard, Rethinking University Teaching A Conversational Framework for the Effective Use of Educational Technology (Routledge Farmer, 2002).

[38] Johnstone and Vignaendra, above n 16; Gary Davis, Susanne Owen, Michael Coper, William Ford and Jill McKeough, Learning and Teaching in the Descipline of Law: Achieving and Sustaining Excellence in a Changed and Changing Environment (Council of Australian Law Deans (‘CALD’), 2009) <http://www.altc.edu.au/resource-learning-teaching-law-flinders-2009> .

[39] Johnstone and Vignaendra, above n 16; Davis et al, above n 38. Both reports suggest a movement away from prescription of content and towards broader skills related to professional and personal attributes, with collaborative professional learning processes used to achieve and sustain long-term curriculum change.

[40] Bradley Review, above n 1; Gillard, above n 2.

[41] Kerri-Lee Harris and Richard James, ‘Facilitating Reflection on Assessment Policies and Practices: A Planning Framework for Educative Review of Assessment’ (2006) 3(2) Studies in Learning, Evaluation, Innovation and Development 23, 24.

[42] Christopher K Morgan et al, ‘Scholarship Neglected? How Levels are Assigned for Units of Study in Australian Undergraduate Courses’ (2004) 29(3) Assessment & Evaluation in Higher Education 283.

[43] Boud, ‘Assessment and Learning: Contradictory or Complementary?’, above n 4; Timothy J Curnow and Anthony J Liddicoat, ‘Assessment as Learning: Engaging Students in Academic Literacy in their First Semester’ (Paper presented at the ATN Assessment Conference: Engaging Students in Assessment, University of South Australia, 20–21 November 2008).

[44] Richard James, Craig McInnis and Marcia Devlin, Assessing Learning in Australian Universities (Centre for the Study of Higher Education, 2002).

[45] CALD, Submission to DEEWR, above n 30, 4–5:

Learning Outcomes: Legal education can be better developed through measuring learning outcomes that have been derived from Graduate Attributes statements and processes that encompass the full range of qualities that will lead to the production of law graduates who not only know how to think like lawyers, but who also know how to perform like lawyers and conduct themselves as lawyers should.

[46] Boud, above n 13.

[47] See, eg, McNeill, Gosper and Hedberg, above n 3.

[48] Ibid.

[49] Davis et al, above n 38, 60.

[50] CALD, Submission to DEEWR, above n 30, 93; Davis et al, above n 38, 54:

Beyond broader university-specified Graduate Attributes, in relation to legal education in Australia, the curriculum is required to meet the accreditation standards of the profession. That means that law schools are required to place a strong focus on knowledge of the Priestley 11 content areas …

CALD (with the assistance of a report compiled by Dr Chris Roper as consultant also available on the CALD website: http://www.cald.asn.au/legal_educ.html) moved toward the adoption of standards aimed at enhancing the quality of Australian law schools in all of their diverse endeavours, and to do so by assisting all Australian law schools to strive for and reach a clearly articulated set of standards. Formal adoption took place at the CALD Meeting held on 17 November 2009: CALD, The Standards for Australian Law Schools (2009).

[51] Barrow, above n 31.

[52] Anderson, Johnson and Milligan, above n 6. So, for instance, the College of Law course (providing training in practical aspects of a legal office, as a substitute for articles) remains the principal means of satisfying the final registration requirements in NSW. The alternative is the UTS course, which incorporates these matters into the undergraduate course: above note 6, 93.

[53] Barrow, above n 31, 6.

[54] Ibid 7.

[55] Anderson, Johnson and Milligan, above n 6, 6:

Professional associations loom large in the operations of many professional faculties, and in accrediting for the purposes of registration, most appear to focus more on inputs — curriculum content, student staff ratios, contact hours, resources and equipment and so on — than outcomes.

[56] CALD, Submission to DEEWR, above n 30, 4 (emphasis added).

[57] Ibid 43.

[58] Davis et al, above n 38, 61.

[59] Barrow, above n 31, 6: ‘This disjunction between the institution and the world of work is recognised by the students who diminish the role of the lecturer as a result’.

[60] Ibid.

[61] Thomas J Shuell, ‘Cognitive Conceptions of Learning’ (1986) 56 Review of Educational Research 411.

[62] Biggs, above n 11; Scott, above n 14.

[63] Barrow, above n 31; see also Stuart Palmer, ‘Authenticity in Assessment: Reflecting Undergraduate Study and Professional Practice’ (2004) 29(2) European Journal of Engineering Education 193.

[64] Barrow, above n 31.

[65] Greg Kearsley and Ben Shneiderman, ‘Engagement Theory: A Framework for Technology-Based Teaching and Learning’ (1999) <http://home.sprynet.com/~gkearsley/engage.htm> : ‘Engagement theory is based upon the idea of creating successful collaborative teams that work on ambitious projects that are meaningful to someone outside the classroom.’

[66] Baron, above n 23, 37, citing Fiona Cownie, ‘Two Jobs, Two Lives and a Funeral: Legal Academics and Work–Life Balance’ (2004) 5 Web Journal of Current Legal Issues <http://webjcli.ncl.ac.uk/2004/issue5/cownie5.html> .

[67] See Anderson, Johnson and Milligan, above n 6.

[68] See, eg, John O’Donoghue, Gurmak Singh and Lisa Dorward, ‘Virtual Education in Universities: A Technological Imperative’ (2001) 32(5) British Journal of Educational Technology 511; see also Ron Oliver, ‘Engaging First Year Students Using a Web-Supported Inquiry-Based Learning Setting’ (2008) 55 Higher Education 285.

[69] John Barnard, ‘The World Wide Web and Higher Education: Promise of Virtual Universities and On-Line Libraries’ (1997) 37(3) Educational Technologies 30; Richard Cornell, ‘The Onrush of Technology in Education: The Professor’s New Dilemma’ (1999) 39(3) Educational Technology Research and Development 60.

[70] See also Peter Goodyear et al, ‘Networked Learning in Higher Education: Students’ Expectations and Experiences’ (2005) 50 Higher Education 473; Beverley Oliver and Veronica Goerke, ‘Australian Undergraduates’ Use and Ownership of Emerging Technologies: Implications and Opportunities for Creating Engaging Learning Experiences for the Net Generation’ (2007) 23(2) Australasian Journal of Educational Technology 171, 180–1: ‘Additionally, the teaching and learning styles that middle aged university teachers find intellectually stimulating are unlikely to maintain the interest of today’s “Net Genners” …’.

[71] See also Martina A Doolan and Trevor Barker, Measuring the Effectiveness of StudyNet in the Context of Online Learning Environments (Paper presented at the Computer and Learning Conference, Belfast, 810 April 2003).

[72] See also Karen M Fitzgibbon and Norah Jones, ‘Jumping the Hurdles: Challenges of Staff Development Delivered in a Blended Learning Environment’ (2004) 29(1) Journal of Education Media 25.

[73] Hugo, above n 22.

[74] David White, Results of the ‘Online Tool Use Survey’ Undertaken by the JISC Funded SPIRE Project (16 March 2007) Tall Blog <http://tallblog.conted.ox.ac.uk/wp-content/uploads/2007/03/survey-summary.pdf> , cited in Oliver and Goerke, above n 70.

[75] Richard Smith and Pamela Curtin, ‘Children, Computers and Life Online: Education and the Cyber-World’ in Ilana Snyder (ed), Page to Screen: Taking Literacy into the Electronic Era (Allen and Unwin, 1997) 211.

[76] Terry Anderson et al, ‘Assessing Teaching Presence in a Computer Conferencing Context’ (2001) 5(2) Journal of Asynchronous Learning Networks 1, cited in Gail Wilson and Elizabeth Stacey, ‘Online Interaction Impacts on Learning: Teaching the Teachers to Teach Online’ (2004) 20(1) Australasian Journal of Educational Technology 33, 35.

[77] O’Donoghue, Singh and Dorward, above n 68, 512.

[78] Heinz Ulrich Hoppe et al, ‘Guest Editorial: Wireless and Mobile Technologies in Education’ (2003) 19(3) Journal of Computer Assisted Learning 255.

[79] Chalmers, above n 9, 69:

There are concerns expressed by researchers and higher education institutions about the impact of national/sector performance indicators on the autonomy and diversity of institutions. While there are clear trends emerging of greater oversight and desire for standardised measures of learning and effectiveness at the national level, this trend should be interpreted cautiously. The more promising measures and indicators are those that are situated in institutional practice.

[80] Johnstone and Vignaendra, above n 16, 335.

[81] Nicole Gillespie, Meaghan Walsh, Anthony Winefield, Jagdish Dua and Con Stough, ‘Occupational Stress in Universities: Staff Perceptions of the Causes, Consequences and Moderators of Stress’ (2001) 15(1) Work and Stress 53, 65.

[82] Vicki Rosser, Linda Johnsrud and Ronald Heck, ‘Academic Deans and Directors: Assessing Their Effectiveness from Individual and Institutional Perspectives’ (2003) 74(1) Journal of Higher Education 1, 1.

[83] Anderson, Johnson and Milligan, above n 6.

[84] Ibid 3.

[85] Anthony Bradney, ‘The Quality Assurance Agenda and the Politics of Audit’ (2001) 28 Journal of Law and Society 430, 441–2.

[86] Anderson, Johnson and Milligan, above n 6.

[87] Johnstone and Vignaendra, above n 16, 335.

[88] Ibid; CALD, The Standards for Australian Law Schools, above n 50, [7]:

7. Course evaluation

7.1 The law school has course evaluation procedures that regularly monitor the curriculum, quality of teaching and student progress, and identify and address concerns.

7.2 Measures of, and information about, Graduate Attributes are used as feedback to course development.

[89] Simon Barrie and Paul Ginns, ‘The Linking of National Teaching Performance Indicators to Improvements in Teaching and Learning in Classrooms’ 13(3) Quality in Higher Education 275.

[90] Johnstone and Vignaendra, above n 16.

[91] Ibid 344.

[92] Mark Bullen, ‘Participation and Critical Thinking in Online University Distance Education’ (1998) 13(2) Journal of Distance Education 1.

[93] Gail Wilson and Elizabeth Stacey, ‘Online Interaction Impacts on Learning: Teaching the Teachers to Teach Online’ (2004) 20(1) Australasian Journal of Educational Technology 33, 38.

[94] Gillespie et al, above n 81.

[95] Cownie, above n 66.

[96] Baron, above n 23.

[97] Ibid 47–52.

[98] Gillespie et al, above n 81, 62.

[99] Ibid.

[100] Donald Winnicott, Playing and Reality (Routledge revised ed, 2005), cited in Baron, above n 23, 30.

[101] Baron, above n 23, 31.

[102] Thomas Gordon, ‘Group-Centred Leadership and Administration’ in Carl R Rogers (ed), Client-Centred Therapy (Houghton Mifflin Company,1951) 320, cited in Baron, above n 23, 31.

[103] Baron, above n 23, 35.

[104] Lawrence S Krieger, ‘Institutional Denial about the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence’ (2002) 52 Journal of Legal Education 112.

[105] See above Table D.

[106] Gillespie et al, above n 81; Cownie, above n 66.

[107] Cownie, above n 66.

[108] Jan Currie, Patricia Harris and Bev Thiele, ‘Sacrifices in Greedy Universities: Are They Gendered?’ (2000) 12(3) Gender and Education 269.