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If all I can do in Law School is to teach students skills ungrounded in a sense ofjustice then at best there is no meaning to my work, and, at worst, I am contributing to the distress in the world. I am sending more people into the community armed with legal training but without a sense of responsibility for others or for the delivery of justice in our society.
Jerold S. Auerbach[1]
How do we teach our law students a sense of responsibility? How do we give them an understanding of the role they play in the delivery of justice within our community? Clinical legal education can be used as a very effective method of teaching law students about their professional responsibilities. This type of experiential learning is very effective in assisting students to develop a rights based methodology in approaching le gal work. This methodology involves moving away from focusing on the law itself and instead starts from the position of the client's rights. It involves an acknowledgment that legal systems develop out of recognition and assertion of rights and encourages students to go beyond the 'law' to examine the rights that underpin it.
In answer to the above questions, some law schools have focused on encouraging a culture of pro bono representation of disadvantaged clients. Meanwhile, dwindling access to legal aid has not matched the increase in unrepresented litigants.[2] Those interested in social justice are continuing to struggle with how disadvantaged and marginalised people can have any meaningful access to justice. Law curricula can be developed in a way that encourages those students with an existing sense of social justice and provides other students with the opportunity to understand legal issues from a social justice perspective.
The overall goal of a legal education that encapsulates social justice cannot be limited to the advocacy of pro bono involvement. It is not enough for Law Schools to inspire future lawyers who will operate without social conscience in their primary work to donate a few pro bono hours to the local community legal centre. A larger aim of legal education should be to have students develop an understanding of the relationship between law and issues of social justice and be able to contextualise them at both societal and personal levels.
The practice of law contemplates the advocacy of positions with moral con sequences both within and outside the confines of the case facts. Therefore law schools should acknowledge their duty to explicitly -and accurately - teach lessons about social justice as necessary for a complete legal education. Any process of formal learning, since it is a process of bringing about change in student perspectives, is arguably a moral activity. A legal education worthy of the title should include an acknowledgment and significant consideration of the relationship between social justice and the practice of law.
Clinical legal education[3] provides opportunities for learning social justice concepts. It presents unique opportunities for presenting and discussing the relationship between the law and social justice issues.
The experiential nature of clinical courses brings abstract notions of justice to life. It inspires classroom or informal teacher-student or student-student dialogue on the relationship of the legal practice to the lives of clients and to society as a whole.
The focus of most clinical 'live- client' programs[4] is the representation of clients who, by reason of low income, disability or position of disadvantage are members of groups that have great difficulty attaining any justice inside or outside of the legal system.
Learning about the client's place in the system is not only a necessary part of the technical preparation of cases, but understanding a client's cultural, social and political background is a crucial component of developing an effective lawyer-client relationship.
This allows a student to develop an understanding of the client's situation but in many instances when dealing with clients students are also struggling with their own assumptions and beliefs. As clinical supervisors we are often faced with the challenge of encouraging students to 'take a step back' to let go of the assumptions that have been built up over the years. Many of them have particular views of Australian society, often fed by media myth or political rhetoric. Many of them hold beliefs in such concepts as the 'undeserving poor' or 'the level playing field'.
One of the most successful ways of encouraging students to recognise systemic injustice is to present them with a case that is so far out of their own sphere of experience that they cannot rely on the myths and stereotypes. Asylum seeker cases present just such an opportunity.
Rema[5] is a young Somali woman, who has fled her country leaving behind her family. She did not want to leave but was urged to by her family after she was raped by a group of militiamen from a rival clan. Her schooling was interrupted because of the on-going civil war and the ensuing break down of public institutions.
She tells the Department of Immigration and Multicultural Affairs (DIMA) in Australia that she belongs to a minority clan and that her father was a village leader. She is extremely traumatised by what has happened to her and what she has witnessed. She is, how ever, vague on the exact details of her clan and her father's position.
Because of this lack of detail Rema's application for a protection visa has been rejected by DIMA.
When Rema arrived at SCALES Community Legal Centre[6] the level of violence that Rema and her family had been subjected to horrify the student assigned to her case. She is convinced that Rema should never have to go back to Somalia and that Australia has a clear responsibility to protect her.
Immigration law cases, particularly those involving asylum seekers, are unique in the educational sense and pro vide students with an opportunity to sharpen traditional legal skills through: interviewing; legal research in areas of
international law, human rights law and immigration law, statutory interpretation; evidence gathering and the drafting of submissions.
These cases can also provide invaluable training in areas beyond the traditional scope of what is perceived as legal work and they provide students opportunities to develop skills in:
• learning to build rapport with people from culturally and linguistically diverse (CALD) backgrounds;
• use of interpreters;
• interdisciplinary liaison (often clients require the services of social workers, counsellors and/or torture trauma specialists);
• dealing with and understanding the cultural, economic, social and political needs of various CALD communities.
These cases elicit a great deal of commitment from the students. This is not un usual, as the stakes are very high. They demand a lot of research on the historical and political situation in various countries. This evidence-gathering process not only hones the skills of the students, it also makes the cases very interesting.
Asylum seeker cases cannot be re moved from the domestic political con text. The cases must also be examined in the broader context of government policy and community values. They provide the students with a real life ex ample of the way in which the politics, community values and the media inter act. Students see the effect of government use of the media to justify and seek support for their continual reduction of Australia's international obligations to ward asylum seekers.
Each case the students deal with has some aspect that will force them to critically analyse governmental policy. This occurs across a broad range of issues including the fairness of determination of claims, gender bias, access to advice, and mandatory detention.
Beyond the scope of the particular skills that are acquired, the cases have a profound effect on the students as they are faced with the broader social and political issues that these cases present. Exposure to extreme situations in which an individual has had their human rights violated reaffirms the importance of defending those rights wherever and whenever they are under threat. Students often begin to see that issues here in Australia such as the elimination of discrimination, access to legal representation and the right to accommodation are also human rights and must be defended.
The student working on Rema's case must prepare the matter for an appeal to the Refugee Review Tribunal.
In preparation the student must examine the reasons for rejection and the relevant law. She must be able to argue that Rema is a person to whom Australia owes an obligation of protection under the Refugees Convention. This means showing that the person has a well-founded fear of persecution due to one of the convention grounds. These grounds include race, religion, nationality, political opinion, or membership of a social group.
Unfortunately for Rema gender is not a ground. This means that regardless of the level of sexual violence that Rema has suffered, if the violence is being perpetrated on her because she is fe male and defenceless it will not be enough. Unless the student can show that it is due to her clan membership (that is, membership of a social group) or political opinion, Rema has little chance of success.
At this point it is important to stop and get the student to reflect on the definition of refugee and its interpretation. Understanding the level of violence and persecution that women are subject to in Rema's country leads the student to question why gender alone is not enough and why isn't it a ground under the Convention?
In order to bring Rema's case within the definition under the Convention the student must begin an evidentiary legal process and gather further information. She[7] must get a detailed statement from the client asking probing questions about the background of her family and clan, their enemies and treatment at the hands of other clans. More difficult is the information about the attacks on her and her family, even what was said to her during those attacks may be relevant. The student must also think about medical (including psychological) evidence that would support her account.
Next she must carry out an extensive search of all the possible country information, including human rights reports, and newspaper reports. This again poses a particular problem for women because often their experience is less likely to be reported than their male counterparts. International journalism usually concentrates on public life, factions, fighting and politics. Men often dominate this public sphere, while women face their day-to-day trials within the private sphere.[8] Even if they are involved in political life they are less likely to be named in newspaper reports or country information. This can pose quite some difficulty for women particularly given the weight DIMA places on independent information that substantiates asylum seekers' claims.
This process will be important in developing the student's skills in respect of legal research. The student will also be tested on their analytical skills by pulling together all of the evidence to verify and corroborate the client's experiences.
The clinical process should be taken further to use the student's own sense of frustration with the situation. They find themselves having to apply a narrow legal definition to a person whom they have got to know, during the process of the statement taking, and from whom they have heard a very painful history. This forces students to examine their sense of justice and more importantly, it encourages the student to examine the role of lawyers in promoting ideals of justice, fairness and even morality.
Working on Rema's case forces this student to realise the boundaries and limitations of law and policy. She begins to question the idea that the legal system is a defender of human rights for everyone equally.
Through the clinical reflective pro cess the student has also gained insight into her role as a lawyer. Further she has been confronted with the possibility that she has a responsibility, not as a lawyer but in the face of injustice, to highlight the deficiencies of the legal system and to work toward reform.
Ultimately what we hope to achieve as clinical supervisors is to foster a 'rights based' methodology that students will apply across all their legal work. This involves students gaining an understanding of, and a commitment to, fundamental human rights as an important principle of any legal practice.
Mary Anne Kenny
Anna Copeland
Mary Anne Kenny and Anna Copeland teach law at Murdoch University in Western Australia. Both act as supervisors in the Law School’s Clinical Legal Education program situated at Southern Communities Advocacy Legal and Education Service (SCALES).
[1] 'What has the teaching of law to do with justice' (1978) 53 NYUL Rev 457.
[2] Australian Law Reform Commission, 'Managing Justice: A review of the Federal Civil Justice System', ALRC Report 89, ch 5.
[3] For a guide to the various clinical programs in Australia see 'Guide to Clinical Legal Education in Australia', Kingsford Legal Centre, 2000.
[4] Rice, Simon and Coss, Graeme, 'A Guide to Implementing Clinical Teaching Method in the Law School Curriculum', Centre for Legal Education, 1996.
[5] The client in this case is an imaginary one.
[6] SCALES or Southern Communities Legal and Advocacy Centre is the site for a law clinic of Murdoch University.
[7] The gender of the student is deliberately female in this example. Given the nature of this particular case we would consciously ensure that thc student assigned to the case is female.
[8] Crock, Mary, Immigration and Refugee Law in Australia, Federation Press, 1998,particularly ch 3.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2000/96.html