ALTA Law Research Series
Last Updated: 31 May 2010
Legal Education in the Commonwealth –
An Anglo-Australian Law Academics Perspective
Professor David Barker
Faculty of Law
University of Technology, Sydney
*** Paper presented at the Commonwealth Law Conference, London on 11th September, 2005 ***
SETTING THE SCENE
The starting point for this comparison between the Australian legal and English legal education systems can be the recognition in both systems of a need for an examination of contemporary law teaching in its current setting, how it might be improved, and how these reforms could be made. This review covers a period which Professor William Twining has described as being when “... the study of law is in the process of becoming re-absorbed into the mainstream of our general intellectual life”.
For English Legal Education the starting point for reform in the modern period must be the Ormrod Report in March 1971. For reasons of brevity the words “English” and “England” are deemed to include “Welsh” and “Wales” although there will still be instances when legal developments in the Principality have to be distinguished from those in England.
For Australia reform came much later with the 1987 Pearce Report on Australian Law Schools.
The value of both these Reports may be found in the conclusion of a study of the effect of the Pearce Report which stated that it:
“generated a climate of debate, discussion, critical thinking, self-evaluation and continuous improvement which has served law schools well since 1987”.
The effect of the general reforms of Education must also be taken into account. These consisted of the Robbins Report in the United Kingdom and the 1988 Dawkins Reforms in Australia which led to an expansion in tertiary education in both countries and a corresponding increase in their Law Schools.
As we follow through the way in which reforms have been instituted there will be an attempt to compare their effectiveness with regard to the structure of legal education, the relationship between the Academy and the profession, and the changing nature of the teaching of law itself.
I have endeavoured to organize this paper as follows: in the first place there will be a survey of development in legal education in Australia followed by England; then there is an attempt to compare the similarities and difficulties which have occurred in both systems over the past thirty years.
In 1972, John Peden, Head of Law at Macquarie University stated:
“What should be the goals of legal education? For what type of end product should we aim? ‘The predominant and continuing aim of most systems of legal education has been the preparation of lawyers for practice.
In recent years, however, it has been more generally recognized that legal educators should also be concerned with public policy and law reform. Furthermore, lawyers’ roles have also expanded, and the education of tomorrow’s lawyers must keep pace with these wider roles.’
These include the traditional roles of advocate and adviser where the lawyers’ attitudes to social and moral questions obviously influence his client’s responses to problem situations. As a draftsman, the lawyer influences legal processes and social consequences – for example, in the formulation of standard form contracts with clauses relieving the stronger party from contingent liabilities. Lawyers in judicial and quasi-judicial tribunals, in common law countries chosen largely from the Bar, directly influence the interpretation and implementation of the law. A higher percentage of legislators, administrators and other persons responsible for the formulation of government policy have degrees in law than in other professional schools, and many of them have also practiced law at some stage in their careers. Law teachers are contributing more to legal developments through their writings and participation on Law Reform Committees. They also have a unique opportunity to influence the attitude of nascent lawyers.”
Although the Pearce Report is often quoted as the Report which sets the tone for reform into law teaching in Australia, there is an earlier document “Report on Legal Education in Australia Universities – Australasian Universities Law Schools Associations July 1977” which is often overlooked.
The Report was the second one produced by the Committee on Australian Legal Education which had been established in August 1968 by a general meeting of the Australasian Universities Law Schools Association (AULSA). This had been established for the purposes of reviewing all aspects of legal education in Australia and of assessing the role of university law schools in developing legal education and research to levels capable of meeting the needs of the Australian community in the foreseeable future.
In this second report the Committee repeated the preface to their first report which had been produced in 1974 and related to the Law Libraries in Australian Universities, the preface which stated:
“When the Committee first met, members of the AULSA were most concerned as to the inadequacy of the resources allocated to law schools. Many felt that the universities themselves failed to appreciate the needs of today’s law schools and some times preferred, on the whole, to recall earlier years when law schools were staffed by a handful of full-time teaching staff aided by part-time teachers usually drawn at large from the profession. In almost all law schools the most apparent consequence has been the continuance of a staff/student ratio comparing unfavourably with all other university disciplines. The fault has not lain only with the universities. Law Schools have also been at fault in failing to promote their own welfare effectively both within and without universities..
This theme was continued in the conclusions to the second report which stated in its final paragraph:
“In assessing priorities for the funding and development of legal education, the quality and breath of the undergraduate training which university law schools provide, together with their wide additional functions, must place them in a special position. Only if university law schools are properly funded will the emergent needs of both the legal profession and of the community be met..
Underfunding of law programs and inadequacies of law libraries were to be a recurrent theme in reports relating to law teaching from this report onwards.
It was the Pearce
Report which was a
watershed for Australian legal education. An appraisal of its effect is
assisted by an impact study commissioned in
late 1992 by the Federal Department
of Employment, Education and Training to evaluate the effects, efficiency and
the 1987 Peace Report on Australian Law Schools.
This study concluded that: “The overall finding is that the impact of the Pearce Report was considerable, although no greater than the concurrent factors such as the ‘Dawkins revolution’ in higher education. Some of the Report’s proposals directly contributed to improvements. There was a discernible and mostly strong response in those schools where the Committee had identified major weaknesses. Its emphasis on library standards influenced law library development, it generated critical reflection on the nature and content of courses and a commitment to skill development and quality teaching. It also encouraged small group teaching (although many schools report that deteriorating student : staff ratio have undermined this.) It drew attention to the achievement of the modernizing ‘second wave’ law schools.”.
The Pearce Report certainly had an effect by stimulating the on-going debate regarding legal education and scholarship and the need for changes in curriculum and approaches to teaching and research. Much of this concerned the views which had been expressed in the Law Deans Submission to the Committee, that programs in a number of law schools were ‘too rule oriented’.
However the Report had stimulated changes outside the Law Schools themselves.
In 1998 at the AULSA Conference held at the Sydney Law School changes were made to the Constitution so that the organization became more law academic oriented with the adoption of the new title Australasian Law Teachers Association. Concurrently in 1989 the first edition of the “Legal Education Review”, based in Sydney University, was published. This has been described as “an indication of increasing scholarly concern with questions of university-based legal education. The theme of Volume 1, Number 1 was ‘Theory in Legal Education’, the subject of the quoted ‘Suggestion 1’ of the Pearce Report:
“That all law schools examine the adequacy of their attention to theoretical and critical perspectives, including the study of law in operation and the study of the relations between law and other ....” (1.149).
In the editorial to the inaugural issue, this theme was developed: “These are exciting times for legal education. Vigorous debates continue within the law schools and now extend to the legal profession and the community, about the purposes of legal education and the nature of legal academic cultures. Teachers are experimenting with the tools and techniques of learning, designing new teaching methods to accommodate a variety of learning styles, reconstructing teaching materials, seeking student feedback and changing assessment theories and practices. These debates, particularly as they arise and are relevant to the South Pacific region, are the subject of the Review.”
Much more significant for the development of legal training in Australia was the Report under Notes in the first edition entitled “The Australasian Law Teaching Clinic” by Ben Boer.
This was a description of the proceedings of the first national law teaching clinic which had been held in Australia in July 1987 under the title of the New South Wales Law Teaching Workshop. It was described as “an attempt by a group of law teachers to change these circumstances to explore the peculiar problems of teaching law and to do so in a systematic way, with others engaged in the same endeavour and in an environment of experimentation and cooperation.”
As a result of the 1988 experience, the Annual General Meeting of the AULSA in 1988 confirmed its support for the clinic and this tradition has continued until the present time. Now described as the ALTA Teachers Workshop, its participants over the years have had a profound influence on the improvements which have been made in Australian legal education. These included such names as Richard Johnstone, Graeme Cooper, Marlene Le Brun and Michael Adams, the latter being the recipient of the National Prime Ministers Award for Law Teaching in 2000.
It should be noted that the Consultative Committee of State and Territorial Admitting Authorities, then headed by Justice Priestley of the NSW Supreme Court, compiled a list of compulsory subject areas for academic legal study which has become known as the “Priestley 11”. This includes the following subjects:
Anyone wishing to obtain a contemporary view of Australasian Legal Education should read Chapter 2 of “Managing Justice – A Review of the Federal Civil Justice System – Australian Law Reform Commission Report No. 89”.
The Report followed on from the publication of Discussion Paper 62, Review of the federal civil justice system (DP62). Over the period of time between the publication of Discussion Paper 62 and Report 89 Professor David Weisbrot, a high profile former Dean of the Sydney Law Faculty, and subsequently a Pro-Vice-Chancellor of the University of Sydney, had become the President of the Australian Law Reform Commission. It must be assumed that the greater emphasis on legal education in the final Report as compared to the Discussion Paper on legal education must to a great extent be attributed to his influence.
The recommendations of the Commission in Chapter 2 included:
The relevant part of the Report was contained in the detail of this Chapter which stated:
“These recommendations move away in some respects, from the approach taken in (i) p 62. For examination in Chapter 2 the Commission discusses its decision not to proceed with a proposal for a national authority to accredit law school courses, believing that an attempt to do so at this time would risk ossifying curriculum development, rather than promoting quality and innovation.”
It is interesting to note that the reason for this statement was that “... in 1994, the Law Council had released its “Blueprint for the Structure of the Legal Profession’ which proposed the establishment of a National Appraisal and Standards Committee to accredit law schools, as an incident to move to uniform, national admission.”
As the Report states “Not surprisingly the Committee (now Council) of Australian Law Deans (CALD) expressed serious reservations about this aspect of the Blueprint particularly in respect of the fact that the proposal was developed and ratified by the Law Council without any process of consultation with CALD or the Law Schools; the suggested composition of the Appraisal Committee (with only four of the 11 members being legal educators); the intrusive nature of the terms of reference, which included internal matters of personnel and resource management, and the unexplained method for funding such as labour-intensive system.”
As part of the concerns by the Council of Australian Law Deans (CALD) were that Australian Law Schools were not communicating the significant developments which had been made in legal education to the legal community. It was therefore agreed that a session entitled ‘Educating New Entrants to the Legal Profession’ should be conducted during the Law Asia Down Under Conference on the Gold Coast, Queensland 20-26 March 2005.
The presenters for this session included Professor Michael Adams – Chair of the General Executive of the Australasian Law Teachers Association a recipient of the Australian National Law and Legal Studies Teaching Award in 2000, Associate Professor Sally Kift who received a similar award in 2003 and Ms Anne Trimmer a Past President of the Law Council of Australia, who was also the sponsor of the Forward Looking Law Council 2010 Report on the future of the legal profession in Australia. Where all the presenters focused on the challenges faced by University Law Schools, in Professor Sally Kift who, in a telling Statement, summed up the problems faced by all stakeholders in 21st Century Legal Education. “The traditional model of legal education, which is still prominent in areas throughout the tertiary sector, is not suitable to prepare graduates for modern professional practice. It is also not educationally sound. These deficiencies are slowly being rectified but require the continuing support of all stakeholders so that the momentum for change is maintained. Change management in any area requires strategic leadership and also an unlearning and consequence re-learning of desirable approaches.
The legal services industry has had to do this in response to the drivers that have forced change on it and legal education is doing the same. The strategic leadership for this change should be a responsibility shared by us all – academic and practitioner alike – for the betterment of our profession’s future.”
One of the most distinguished law educators and jurists Professor William Twining has stated that: “A comprehensive history of legal education in England has yet to be written. The story is complex and could be constructed in a number of ways. On almost any interpretation it would make depressing reading. One outstanding feature, which Max Weber and others have emphasized, is the very minor role played by universities both in the formation of legal profession and in the development of the common law”.
Nevertheless, despite these doubts expressed by Professor Twining, during the last three decades there have been some improvements to English Legal Education, although as Professor Michael Zander said as far back as 1978: “The main problem with English legal education is that, although it may be said to be improving, at each of its three stages it is not as good as it should be. The three stages are: (1) academic (2) vocational and (3) training on the job.” He did go on to say that “Its main defect, however, is that, in spite of the undoubted improvements, legal education in most universities and polytechnics is somewhat pedestrian, worthy but dull, is probably a not unfair description of the average course.” Whilst this might have been true of 1978 no doubt many Law academics would take issue with this statement if it was made today. In fact it would be fair to say that both these authors already quoted have made a major contribution to the improvement in legal education over the past thirty years.
Placed in an historical setting in England until the 1960’s the Law Schools had been located in either the traditional Universities, the red-brick universities (mostly former University colleges) and plate-glass universities, with very little law teaching taking place outside the universities.
Few institutions had taken advantage of the London University external LLB. In 1960 only a 100 of these external law degrees had been awarded, 30 of which had been awarded to a predecessor College of the University of Westminster – Holborn College of Law and Languages.
Similarly, there was little provision for professional law students. Bar students attended the Inns of Court Law School, whilst articled clerks/Law Society students attended courses at provincial universities, the Law Society School of Law at Lancaster Gate, or Gibson and Wheldons Law School at Chancery Lane or Guildford.
In the mid-60s with the increase in the demand for education, the larger colleges, most of which were to become polytechnics, attempted to satisfy these demands by offering full-time London University External LLB courses. By 1970 the external LLB had peaked at approximately 1500 students.
One of the advantages of the expansion in the numbers of students undertaking external LLB studies was that the colleges conducting the courses were able to build up library resources, whilst their academic staff gained experience in teaching legal subjects.
A major influence on the development of a new approach to legal studies was the establishment, on the recommendation of the Robbins Committee, of the Council for National Academic Awards (CNAA) in 1964:
“A Council for National Academic Awards 433. We recommend that the present Council should be replaced by a Council for National Academic Awards, covering the whole of Great Britain ... It would differ from the present Council not only in awarding degrees at pass and at honours level and in covering areas of study outside the field of science and technology”
The object of the recommendation was that the former National Council for Technological Awards be extended to include degree courses in areas outside science and technology.
The Legal Studies Board, one of the CNAA’s first new subject boards, held its first meeting in March 1966.
The process of accreditation by the Legal Studies Board involved comprehensive visits to the Law Schools at Manchester and Coventry when approval was granted for these first two new CNAA law courses in September of that year. By 1970 a total of seven courses had been approved.
The review of modern legal education could be said to have commenced with the setting up in December 1967 by the Labour Lord Chancellor, Lord Gardiner, of the Advisory Committee on Legal Education under the chairmanship of Mr Justice Ormrod. In March 1971 the Ormrod Committee reported to the then Conservative Lord Chancellor Lord Hailsham.
It is again Professor Twining who has stated that “the Ormrod Committee has a special place in the history of legal education in this country [England]”.
The terms of reference of the Ormrod Committee were:
(1) To advance legal education in England and Wales by furthering co-operation between the different bodies now actively engaged upon legal education;
(2) To consider and make recommendations upon training for a legal professional qualification in the two branches of the legal education, with particular reference to:
- (a) The contribution which can be made by the Universities and Colleges of Further Education; and
- (b) The provision of training by the Law Society and the Council of Legal Education, the co-ordination of such training, and of qualifying examinations relating thereto;
(3) To consider and make recommendations upon such other matters relating to legal education as the Lord Chancellor may from time to time refer to it or as the Committee itself, with the approval of the Lord Chancellor, decides to consider.
In the view of most legal commentators none of these objectives were achieved. Some of this has been blamed on the three main interest groups (Bar, Law Society and Academics) failing to agree to co-operate. Therefore a rigid three stage structure was recommended – academic, professional and continuing education – whilst “the academic stage was to be the primary responsibility of the universities and of the polytechnics, who were supervised by the CNAA. This was subject to the caveat that the professional bodies would have the power to grant or withhold the recognition of law degrees as satisfying the first stage. The representatives of the Bar and the Law Society failed to reach agreement on a joint professional qualification: instead they insisted on separate courses and examinations for the second or vocational stage in their own independent, privately financed law schools outside the university system, despite the fact that this would kill any hope of substantial public funding of the vocational stage.
Of more fundamental importance was the Committee’s recommendation that any person holding a full time three year law degree that included the following:
(1) Constitutional Law
(2) Law of Contract
(3) Law of Tort
(4) Land Law
(5) Criminal Law
should be deemed to have satisfied the “academic stage of professional formulation”.
There was, and still is, a difference of views as to whether the outcomes of the Ormrod Committee were successful or not.
Professor Twining has stated that “On a literal reading of the terms of the reference of the Ormrod Committee, the exercise was an almost total failure”. None of the objectives of the Committee were achieved and as previously stated: “The three main interest groups failed to agree to co-operate; instead they recommended a rigid three stage structure – academic, professional, continuing – which defined and further entrenched three separate spheres of influence”. In his view the Committee’s recommendation of a less formal Advisory Committee to serve as a link between the educational institutions and the profession ... was a disaster”.
He does relent by stating that: “Despite this catalogue of failures, I consider that the Ormrod exercise marked a turning-point in the history of legal education and that its influence was largely beneficial”.
To follow through the scrutiny of legal education following the Ormrod Report, “... there was further consideration in the Benson Report on Legal Services in 1979. The Marre Committee in 1988 criticised legal education for not providing an adequate knowledge of the ‘core subjects’, for failing to give students the basic skills of being able to present written arguments, conduct research, and present oral arguments, and for not placing law in its social, commercial and European contexts”.
Following through from these recommendations there have been major changes to the vocational stage of legal education with a greater emphasis on practical skills. These occurred with the introduction of the Bar Vocational Course in 1989 and the Legal Practice Course for solicitors in 1993. There was also the addition of the subject of European Community Law to the existing core subjects.
Both the original Preliminary Notice to Law Schools in 1993 and the Announcement on Qualifying Law Degrees (The Law Society and Council of Legal Education 1995) incorporated a revised description of the seven core subjects as ‘foundation subjects’, a requirement for legal research skills, for which no discrete teaching was stipulated. The Announcement also made “clear that students should receive ‘a coherent introduction to the fundamental concepts and the social context which shapes the way in which the law develops and is practical’ – which was amplified in the Introduction to the Foundation Subjects, which seeks to identify the five foundations of legal knowledge”.
During this period the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC) which was established in April 1991 under the Courts and Legal Services Act 1990 was continuing with its review of legal education which had commenced in 1992 and which published its First Report on Legal Education and Training in April 1996. The report proposed a number of significant changes to legal education with a partial fusing of the training of barristers and solicitors in a common stage vocational course.
“The report also contained a ‘general statement of the aims of legal education and training. This comprised five key elements:
(1) Intellectual integrity and independence of mind
(2) Core Knowledge
(3) Contextual Knowledge
(4) Legal Values
(5) Professional skills”
“A Conference to discuss the recommendations of the report was held in July 1996, with a consultative conference on continuing professional development held in October.
In 1997 ACLEC issued its second report, on Continuing professional development for solicitors and barristers. A conference on common professional legal education was held in 1998.
Further reports issued by ACLEC –
ACLEC was disbanded in 1999. Responsibility for legal education now rests with the Legal Services Consultative Panel within the Lord Chancellor’s Department.” (Lord Chancellor’s web page) – the author is aware of the changes proposed for the abolition of the office of Lord Chancellor.
So much for the reports and recommendations, but what of the changes in the
actual teaching of law?
If again Professor Michael Zander statements in 1978 are used as the starting point – “Worthy, but dull”.
“In most law faculties students are never required to write anything longer than the weekly three or four page essay. They therefore never learn the skills of using the library for a piece of research ... Mock formal legal argument (‘moots’) as a means to develop confidence in public disputation are normally optional rather than compulsory and are not undertaken by most students. Student surveys and studies of the legal system in action are rare. Law journals edited by law students, normal in North America are virtually non-existent. Even the new moves towards involvement in the provision of actual legal services and tentative steps towards some form of clinical legal education affect only a tiny number of students. The style or method of teaching in many instances still leans too heavily on requiring mastery of “black letter law” – rules as rules rather than as illustrations of principles”.
If one was following signposts as to the speed of the changes the following six documents could be selected at random:
Recently there has been considerable progress in our thinking about ‘law in context’ especially through much improved books and other materials”. Professor Twining took as his theme “Legal Skills and Legal Education” arguing that “the time is ripe for academic lawyers to take the lead in making direct learning of ‘skills’ a central component of every stage of legal education and training”.
This was a follow-up project to a Survey of Law Teaching which also stressed the need for a “new effective policy development in the context of better understanding of those responsible for law teaching itself.”
So where is the comparison – where the contrast?
As explained in the opening part of this paper the Robbins Report in England and the Dawkins Reforms in Australia had led to a removal of the binary divide in both countries between Universities and Colleges in England/Colleges of Advanced Education in Australia, with the consequence expansion of the number of law schools with degree awarding powers in both systems.
In both systems this has led to the number of law schools being doubled. In England approximately 33 law schools emerged from the former Polytechnics and Colleges.
In Australia “... in 1960, there were six university law schools, one in each State capital. At the time of the Pearce Committee’s review of Australia legal education completed in 1987, there were twelve university law schools. One of the major recommendations of the Pearce Committee was that, no new law schools should be established especially given the limited resources available n a country the size of Australia. Nevertheless, in little more than a decade, the number of university law schools more than doubled to 28, with at least two other programs scheduled to commence soon.
One advantage of new law schools is that “they provide ideal settings for introducing innovative curriculum and teaching methods – in short for transforming the direction of legal education”.
It is interesting to note that much of the catalyst for change has come from the new law schools, but that in England there have been two separate associations of law teachers – the original University-based Society of Public Teachers of Law (SPTL) (now renamed as The Society of Legal Scholars) and the Association of Law Teachers (ALTA) formed in 1965, as at that time the SPTL precluded the membership of further education lecturers. In contrast, as has been mentioned earlier in this paper, the Australasian Universities Law Schools in 1988 amended both its name to Australasian Law Teachers Association and its membership criteria to include as full members those law teachers not currently employed in law schools nor teaching on law degree programs.
There is no doubt that reading the contents of both organisations’ journals – the Law Teachers (ALT) and the Legal Education Review (ALTA), that law teachers in both systems have been in the vanguard of improving the learning/teaching process in their respective law schools.
What has not been mentioned previously has been the introduction of computer technology and the opportunities for teaching students new research techniques, computer assisted learning and the like.
In England this may be illustrated by the recent W G Hart 2001 Workshop “Legal education in the Information Age”. As the Lord Chancellor’s Web Page stated:
“The W G Hart Workshop is one of the most prestigious annual law conferences. This year’s workshop, held in London from 26-28 June, had the largest number, national and international, of participants and paper in its history and affirmed that legal education has finally ‘come home’ by becoming a respectable subject for academic discourse.
The theme of the workshop was The changing work and organization of lawyers and its educational implications. Among the subthemes, Legal education in the Information Age attracted a considerable following, with three sessions involving nine presentations. The sessions explored the C&IT led changes taking place in legal education, dealing with techniques and implementation studies as well as the wider implications for learning and teaching.”
In Australia, the Faculty of Law, University of Technology, Sydney, together with the University of New South Wales Faculty of Law, jointly operates the Australasian Legal Information Institute (AustLII) which provides access to Australian legal material via the Internet. It now has 20 gigabytes of Australian and regional legal databases and WorldLII Webseach facility which enables access to thousands of web sites for law across the world.
AustLII is one of Australia’s most popular web sites, and claims to be one of the largest free legal information data bases in the world with over 1.5 million ‘hits’ (pages accessed) per week and an estimated 20,000 users per day. (AustLII is at http://www.austlii.edu.au).
It also operates the World Legal Information Institute (WorldLII) available at http://www.worldlii.org/ which provides access to over 400 databases.
In my view while there are similarities which can be traced through in both
the English and Australian systems, until recently it
was the discrepancy in the
funding of Australian Legal Education which made it different from the English
However, whilst there may have been a perception that until English Law Schools were more generously funded, that might not now be the current situation.
In Australia the legal community has always argued that legal education is chronically under-funded.
In the Report “The Cost of Legal Education in Australia” published by the Centre for Legal Education in conjunction with the former Committee of Australian Law Deans, it was pointed out that in accordance with a funding mechanism incorporating cluster weightings, the Relative Funding Model (RFM) introduced in 1991, law teaching was placed in the lowest cluster.
This was despite the fact that LLB(HECS) Law students were placed in the highest band with regard to the students contribution (in 2005 - $6427) towards the cost of their education. Whilst dentistry, medicine and veterinary science were all within the same contribution band, in contrast their disciplines attracted the highest Commonwealth contribution towards the cost of their courses.
The outcome of the Federal Government’s current reform package on university funding approved by the Federal Parliament in the first week of December 2003 and due to be implemented in 2005 will exacerbate the situation even further.
In 2005 all students will, as in the past, pay a contribution towards the
cost of their tuition. Currently those who are public students
pay towards what
is described as a Higher Education Contribution Scheme, which are split into
various bands. Law students will,
as before, be placed in the highest band
(A$6427), the same as dentistry, medicine and veterinary science – the
being that all these other disciplines will in 2005 attract an
estimated commonwealth contribution of $15,422 – whilst Law
is the only
discipline to be placed in the lowest cluster – of A$1,509, ie the
Government is of the view that a law program
can be operated at the lowest cost
of any University program.
The Government has also provided a discretion to levy an additional maximum student contribution set 25% higher than the estimated higher education contribution rate for 2005.
The situation will be accentuated by the proposal that universities, if they choose, may generate additional income through an increase to the proportion of fee-paying places in any undergraduate course from 25% to 35%. The situation at present is that most university full-fee paying undergraduate courses are those for Law, so universities will see this as an opportunity to maximize their undergraduate fee-paying income – but it is anticipated that only a small amount will be returned to the law schools for operating costs in respect of these students.
In England, there has been a similar situation with regard to the relegation of law teaching to the lowest teaching band where it has been included with all other subjects, with the exception of clinical and laboratory based subjects.
Just as in Australia, in 1983 a Working Party of the Committee of Heads of English University Law Schools argued that law teaching was unfairly disadvantaged as it was not wholly lecture based but required different demands upon library and other information sources.
Currently, in England there has been a process whereby the funding of teaching disciplines was carried out through National Funding Councils. However, a national review of funding for undergraduate teaching by the Higher Education Funding Council in England (HEFCE) has covered many aspects of HE funding, such as the financing of foundation degrees, the widening of access and the improvement of retention rates.
Roger Burridge of the UK Centre for Legal Education has described its process as beginning “... with a review of band funding – the methodology for allocating HEFCE funds weighted to take account of variations in teaching costs between discipline.
Band funding determines the amount of money every HE institution receives based upon a sum per FTE student admitted to an undergraduate program. HEFCE is proposing that as from 2004 to 2005 each subject will be allocated funds according to the following bands:
Current base price per student (02/03)
Clinical subjects – medicine, dentistry and veterinary science
High cost laboratory-based science, engineering and technology
Other laboratory-based science, engineering and technology
Intermediate cost subjects with a studio, laboratory or fieldwork element
All other subjects (incl. Law)
Source: HEFCE 02/18 and Consultation 2003/42.
Law is not designated as a discrete subject but is part of Social Studies and is in Band D. The Consultation proposes splitting Band B, thereby releasing additional money for distribution amongst lower bands. In this respect, law would be an overall winner since the base rate for all Band D subjects would increase by 9.4%”
However whilst Law in the English situation has not been discriminated against to the same extent as in Australia, there is still the same argument that tertiary funding fails to take account of the development of experimental methods for deeper learning, problem solving, creative thinking and ethical understanding.
Recently in England the tension which arose in Australia in 1994 with regard to the publication of the Law Council’s ‘Blueprint for the structure of the Legal Profession’, were replicated by the release of the Law Society of England and Wales’ Training Framework Review Group’s proposals for the reorganization of legal education. These proposals for a radical reorganization of legal educators were criticized by twenty law students who, in a petition, claimed that they had not been consulted.
This was reported in an article by Claire Sanders in the Times Higher Education Supplement under the heading “Law revamp could hit coffers!” As the proposals are still at the consultation stage, it is inappropriate to comment further other than to say that with such statements as reported in the article on the part of the law academics concerns regarding the quality assurance in respect of these proposals and the danger that students could be put through “crammers” and the Law Society that ‘there has been a lot of misrepresentation as to what this is all about ‘does little to advance a measured debate on the future of legal education.’
There are interesting parallels when conducting a comparative study of the two legal education systems. The development of greater sophistication in teaching methods, the influence of the legal professions, the contrast between the resources of the more traditional law schools as compared to the ‘new wave’ law schools and the influence of the professional law teaching organizations all signify a similar approach.
This would suggest that there are opportunities for greater co-operation between law academics from both jurisdictions. There are already incidents of staff and student exchanges between English and Australian Law Schools but the evidence of this paper would indicate that there is ample scope for the respective law teaching associations to collaborate more closely.
Mutual recognition of Legal Qualifications
Within the Commonwealth context a short resume should be given of the Australian experience with regard to the mutual recognition of legal qualifications for the purpose of practice in similar legal jurisdictions.
In Australia these negotiations have been undertaken by the International Legal Services Advisory Council (ILSAC), under the auspices of the Federal Attorney General’s Department in consultation with the Council of Australian Law Deans (CALD).
The negotiators have had to take account of the ongoing discussions conducted by the Australian Department of Foreign Affairs and Trade (DFAT) in respect of current or future Free Trade Agreements (FTA) with Singapore, Malaysia and Brunei. Both with regard to these and other Commonwealth jurisdictions such as India, Legal Services Missions including representatives of individual Australian Law Schools and CALD have sought recognition of Australian Undergraduate Law Degrees as meeting part or all of the knowledge requirements for admission to practice law in the relevant jurisdiction.
On of the problems encountered has been the fact that in the past some
jurisdictions have recognized undergraduate law degrees on
an ad hoc
This has included the expectation that Australian Law Graduates had to be in the top 30% of their cohort in order to gain recognition in Singapore.
However, the Attorney-General of Malaysia has indicated that he would prefer the establishment of a common Bar examination as a basis for admission to practise law in Malaysia for both National and Foreign Law Students. Such a condition could avoid the current situation of arbitrary recognition of a limited number of Australian law schools.
One of the positive outcomes of these negotiations has been the desire to build on closer links between the respective Commonwealth Legal Jurisdictions with regard to the exchange of law students and young lawyers.
The earlier part
of this paper was incorporated into the Australasian Law Teachers Association
Conference, Charles Darwin University,
Northern Territory, Australia in July
 Blackstores Tower: The English Law School – William Twining Sweet & Maxwell (London) 1994 p.XIX
 Australian Law Schools after the 1987 Pearce Report; Craig McInnis, Simon Marginson assisted by Alison Morris; Centre for the Study of Higher Education, University of Melbourne) Australian Government Publishing Service, Canberra, 1994 pviii
 Professional Legal Education and Skills Training for Australian Lawyers; John R Peden 46 A.L.J. (Sydney) 1972 p 157
 Report on Legal Education in Australian Universities – Australasian Universities Law Schools Association Sydney 1977
 ibid page (i)
 ibid p77
 D Pearce et al Australian Law Schools: A discipline assessment for the Commonwealth Tertiary Education Commission AGPS Canberra 1987 (Pearce Report)
Australian law schools after the 1987 Pearce Report; Craig McInnis, Simon Marginson assisted by Alison Morris; Centre for the Study of Higher Education, University of Melbourne; Australian Government Publicity Service Canberra, 1994
 ibid p 34
 Editorial, Graeme Cooper, John Wade Legal Education Review Sydney (1989) Vol 1 No. 1 p 1
 The Australian Law Teaching Clinic: Its Post, Present and Future; Ben Boer; Legal Education Review Sydney (1989) Vol 1 No. 1 p 145
 Legal Practitioners Transitional Admission Rules – Schedule 5
 Managing Justice – A Review of the federal, justice system; Australian Law Reform Commission Report No. 89 Australian Government Publishing Service Canberra 2000
 ibid p 8
 ibid p 8
 ibid p 123
 ibid p 123
 Kift, S, “For Better of for Worse?: 21st Century Legal Education” Unpublished paper presented to the LawAsia Down Under Conference, Gold Coast, Queensland 20-26 March, 2005, p.18.
 Law, W.L. Twining; The University of London and the World of Learning 1836-1986 ed. F.M.L. Thompson The Hambledon Press London and Reconeverte (UK & USA) 1990 p 81
 Legal Services for the Community, Michael Zander Temple Smith London 1978 p147
 ibid p144
 Higher Education Report of the Committee appointed by the Prime Minister under the Chairmanship of Lord Robbins 1961-63 Cmnd 2154 pp 142-143
 Blackstone;s Tower the English Law School William Twining The Hamlyn Lectures Sweet Maxwell 1994 London p33.
 Twining Ibid p35
 Twining Ibid p162
 Twining Ibid
 Twining Ibid p36
 “Acquiring Values”, Andrew Halpin and Philip Palmer New Law Journal Vol 146 No. 6760 pp 1357-58
 Halpin & Palmer ibid p 1357
 Halpin & Palmer ibid p 1357
 See page 10
 Legal Services for the Community, Michael Zander Temple Smith London 1978 p 147
 Handbook; Association of Law Teachers Ed. Sue Morley ALTA Sheffield City Polytechnic Sheffield 1985
 Innovation in Legal Education Council for National Academic Awards London 1988
 ibid p2
 ibid p5
 A History of the Association of Law Teachers – The First Twenty-Five Years: S.B. Marsh Sweet & Maxwell London (1990)
 A Survey Law Teaching 1993; A Research Project on Legal Education; Phil Harris and Steve Bellerby with Patricia Leighton and John Hodgen; ALT and Sweet & Maxwell London 1993
 ibid pp2 & 3
 Reviewing Legal Education; Ed. P.B.H. Birks; Oxford University Press Oxford 1994
 Ibid vii
 ibid vii
 Todays Law Teachers – Lawyers or Academics? Patricia Leighton, Tom Mortimer, Nicola Whatley; Cavendish Publishing London 1995
 see page 10
 ibid p1
 ALRC R No. 62 p 117
 Academic Lawyers and Legal Practice in England: Towards a New Relationship; Martin Partington; Legal Review (Sydney)(1992) Vol 2 No 1 p80
 Centre for Legal Education & Committee of Australian Law Deans, The Cost of Legal Education in Australia, Centre for Legal Education, Sydney 1994
 Our Universities Backing Australia’s Future, The Hon. Dr Brendon Nelson, Minister for Education, Science and Training, Commonwealth Department of Education, Science and Training, Canberra 2003
 “Law as an Academic Discipline”, SPTL Newsletter, 1984 p 10
 Law Schools try again for a more realistic funding formula, Roger Burridge, The Law Teacher – The International Journal of Legal Education, Vol 38 No. 1, Thomson-Sweet & Maxwell, 2004, pp 101-104
 Sanders, C. “Law Revamp could hit coffers”, Times Higher Education Supplement, 4th February 2005, p.1