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Thomas, Mel; Milroy, Jill; Bartlett, Richard --- "Teaching and Learning the Law: The University of Western Australia's Indigenous Law Program" [2010] IndigLawB 24; (2010) 7(19) Indigenous Law Bulletin 13


Teaching and Learning the Law: The University of Western Australia’s Indigenous Law Program

Mel Thomas, Jill Milroy and Richard Bartlett

The Aboriginal and Torres Strait Islander Pre-Law Program (‘the Pre-Law Program’) began at the University of Western Australia in 1994, three years after the Australasian Law Teachers Association passed a resolution supporting the establishment of an intensive short course-bridging program of legal studies for Aboriginal and Torres Strait Islander students. The resolution was passed to address the chronic underrepresentation of Aboriginal and Torres Strait Islander Students in Australian law degree courses.

This article explains how the Pre-Law Program at the University of Western Australia equips students with the skills necessary to succeed in a mainstream law degree. It describes how each of the three units taught over the course of the Program engenders an understanding and appreciation of the discipline of law. It also recognises the need to take a holistic approach to Indigenous students’ learning needs.

In addition to improving students’ legal skills, the Program acknowledges that the legal system has failed to provide substantive equality to Indigenous peoples since colonisation. So, rather than taking a top-down approach to learning the law, the initial focus of the Pre-law Program is to facilitate in-class discussion about the law and its significance to Indigenous people.

The Pre-Law Program, combined with ongoing student support after the course has been completed, has been instrumental in assisting a large number of Indigenous students graduate from law school. It is hoped that this article will raise awareness about the continuing need for degree-enabling programs to continue into the future. Creating and maintaining a learning environment that enables Indigenous students to realise their full academic potential at the tertiary level has been our primary objective for many years.

Enabling students to make the transition to tertiary law studies

The five week Pre-Law Program has been designed to foster and develop students’ ability to deal with the intellectual and emotional demands of the University’s Bachelor of Laws degree where learning is largely self-directed. Once accepted into the undergraduate program, students are required to take responsibility for their own studies. While assignments and essays make up a small part of the assessment weight for each first and second year law unit, most of the marks (60-80%) are based on the final semester examination for each unit. For many students, this marks a significant departure from the learning experience at high school and TAFE. It is necessary that the Pre-Law Program assist students to make a successful transition into this new learning environment.

The Pre-Law Program offers three intensive units and staggers these over a five week period. In the first two weeks, students undertake only one unit, Legal Systems and Indigenous Peoples, which sets five pieces of assessment. By the end of week two, students attend classes in the other two units, Criminal Law and Contract and Tort Law, both of which have two pieces of assessment as well as a final examination. All three units are modeled on first year law units taught in the law school, giving students an insight into what they will be studying full-time, as well as how they might approach their studies. The delivery of these units prioritises individual student learning needs: each student’s progress is monitored on a weekly basis by the unit teachers, Program Coordinator and directors.

Legal Systems and Indigenous Peoples

Legal Systems and Indigenous Peoples concerns the intellectual debates between legal theorists and their interpretations of the legal order. Students are also introduced to non-mainstream material such as critical race theory, which provides a penetrating analysis of the legal system from the perspective of racial minority groups. For many Indigenous people, the Australian legal system has historically been a source of oppression. For Indigenous students to realise early on that the study of law is also about understanding legal ideas about justice and cultural rights helps create a learning environment that is sensitive to their perspectives of law.

This unit, which is a basic introduction to the Australian legal system, attempts to bridge the gap between Indigenous and non-Indigenous ways of knowing that both inspires and motivates students to take up the challenge of studying law at an undergraduate level. Various teaching methods are used. For example, Indigenous academic perspectives of the law are included in classroom discussions, prescribed readings and assessments.[1] Students learn about the history of race-biased legislation[2] and, with reference to oral histories published by Indigenous scholars at the School of Indigenous Studies,[3] students discuss how such laws impacted upon and discriminated against Indigenous people. Students also learn that, while historically a source of oppression, the law can also be a source of liberation, especially in light of the profound influence of international law on domestic legal orders.[4]

By recognising the historical injustices that have affected generations of Indigenous families and communities, students are invited to discuss their own views of the strengths and deficiencies of the Australian legal order since colonisation. For many students, this unit is their first exposure to legal studies. It is designed to facilitate discussion about the nature, meaning and purpose of the law and its relationship with liberal democratic principles. Students are invited to comment critically on the distinction between formal and substantive equality, as well as some of the reasons that Indigenous lawyers and academics claim the latter has not yet been achieved. According to one student who successfully completed Legal Systems and Indigenous Peoples:

This unit would have been my most challenging and interesting unit as it actually included an Aboriginal perspective within the legal system of Australia ... I thoroughly enjoyed it and would recommend this unit to continue into future Pre-Law Programs.[5]

Assisting students attain academic legal competency

The second aspect of Legal Systems and Indigenous Peoples is to teach students foundational legal principles and to refine their analytical skills so that they start to ‘think like lawyers’. Using a very ‘hands on’ teaching and learning approach, students explore legal concepts such as federalism, parliamentary sovereignty, the separation of powers, judicial review, precedent, statutory interpretation, the Australian court hierarchy and the concept of legal jurisdiction. Students learn to read and summarise cases, to identify the material facts, legal issues, ratio decidendi and obiter dictum, with particular emphasis on tort cases. Students are also taught about the development of Australian native title law and how individual High Court judges have interpreted native title in a broad or restrictive sense, following the seminal judgments in Mabo No 1[6] and Mabo No 2.[7]

After teaching the foundations of the legal system and the sources of law, the unit then focuses on developing each student’s academic legal writing style. The first 500-word essay on the nature of Australian common law is given to students with advice about how to write an academic essay. This is also demonstrated in class by way of an essay research and writing workshop with explicit instructions on academic writing. Students are taught to write in the third person and to develop a thesis that is clearly stated in the introduction, demonstrated in the body and summarised in the conclusion. After they have finished their first or second draft, students are invited to hand it to the lecturer who provides feedback. This usually involves correcting errors in grammar, punctuation and style, as well as suggestions about how each student could improve his or her legal argument. While this takes some time, it does help students understand the need to undertake multiple drafts of essays before they submit their final draft.

Legal writing is an art as well as a science that takes some time to develop. It requires students to think in a ‘scientific’ way (legal positivism), which is essentially a branch of philosophical empiricism. To learn to write and think in this way is an acquired skill and one that challenges students to invent a new writing voice. By the end of the unit, students are required to write an essay between 1500 and 2000 words, which builds upon the skills they have developed since the first essay. Again, they are encouraged to hand in rough drafts and, in return, they receive verbal and written feedback on their progress. A workshop on referencing, plagiarism and paraphrasing is also provided a week before the essay is due so that, by the end of the unit, students have learnt to write a fully referenced, organised and coherent essay.

A marking key is used to explain the final grade awarded. In this way, students learn to put themselves in the marker’s shoes and are encouraged to critically evaluate their own work. They are advised to use the key when assessing the merits of their final draft. Reflecting back on this unit after six months, one student said it helped her make the transition to law studies:

I have always been a creative writer since I was a child and crossing over to the legal style of writing was a constant challenge … I look back at assignments in [the Pre-Law Program] and reflect on how my style of writing has improved dramatically. Particularly from my first assignment to my latest one. Without the support … in Pre-Law, I feel I would not have had the confidence to continue into my degree.[8]

Criminal Law and Contract and Torts Law

In the second two units, Criminal Law and Contract and Torts Law, students learn to read, analyse and apply statute or common law to hypothetical questions. The ‘hypothetical’ is one of the major forms of assessment used in Australian law schools. It requires students to demonstrate their knowledge of the relevant law and then apply it to a given set of facts. The law lecturers in these subjects demonstrate this method before setting assessment for students. Once again, the focus is on enabling students to make the transition to tertiary studies, to think about the law in an analytical and critical way. The assignments in this unit allow students to practice the art of writing a legal opinion before sitting their final examinations, where they are required to use their problem solving skills without any assistance.

Students learn the substantive law as it is taught at the undergraduate level but with extra support. The Law Coordinator provides students with group tutorial support and, where necessary, employs individual tutors to provide one-on-one assistance. Many of the tutors are Indigenous lawyers who have also undertaken the Pre-law Program and have first-hand experience of the difficulties experienced by Indigenous students.

Students also undertake an essay-based assignment in Criminal Law, which requires them to situate the law within its pertinent social context and to comment critically on its adequacy in modern society. Students are not only taught about the partial defence of provocation but also about its historical evolution. They are encouraged to think about why, in light of modern social values, it is often considered to be gender-biased and anachronistic.

By the end of the Pre-Law Program, students have compiled notes for both Criminal Law and Contract and Tort Law for use in open book examinations. This is usual practice for Australian law schools and thus an indispensible learning process. They have summarised the law in their own words and have taken responsibility for their own learning. They have developed an understanding of the social context of the law and the areas where law reform might be needed. In the final week, students are invited to show the notes they have prepared to the Law Coordinator before each examination. This prepares the students for their undergraduate degree, where they are expected to summarise a whole semester’s substantive law into notes that are accessible, accurate, easy to follow and apply to both hypothetical examinations and essay questions.

Ongoing support and mentoring

Throughout the Pre-Law Program, staff meetings are held on a weekly basis where each student’s progress is discussed. The Directors are provided with copies of student assignments, enabling them to understand the overall academic development of each student. At the end of the five week period, students who have obtained 55% overall, and no less that 50% in any unit, are formally offered a place to study in the faculty of law.

With the additional support of a Law Coordinator and tutor employed full-time within the School of Indigenous Studies, there has been an increase in the number of Aboriginal students who have successfully enrolled to study law via the Pre-Law Program. On average, approximately six students complete the five week program each year. There are currently 25 full-time Indigenous students enrolled in a Bachelor of Laws; 80-90% are on ‘good standing’. Of these students, the overwhelming majority secured enrolment via the Pre-Law Program (one student was enrolled directly, two were enrolled on a provisional basis).

The ongoing success rate at the undergraduate level can be credited to the ongoing tutorial support, mentoring and advice provided to students both during the Pre-Law Program and throughout their law degree. The staff involved in the Pre-Law Program take a holistic approach towards Aboriginal students’ education, accommodating their learning needs, providing pastoral care and also recognising their unique experiences as First Nations peoples. The Dean of Indigenous Studies provides continual support, advice and mentoring to non-Indigenous teaching staff about Aboriginal culture and identity.

Over the course of each year, the Law Coordinator, like all staff at the School of Indigenous Studies, builds up a rapport with Aboriginal people from a diverse range of backgrounds. Elders, leaders, young people and children all regularly visit the school; some decide from this experience that they wish to study at the university. When a new class of Indigenous students undertakes the Pre-Law Program the staff, including the Law Coordinator, often know their families and understand their expectations, cultural perspectives and worldviews. This informal method of getting to know people provides an environment that is friendly, respectful and culturally sensitive to all Indigenous people. So, for example, students who speak Aboriginal English or who come from regional areas such as Broome are supported and helped individually by staff who make every effort to identify what needs have to be met. This might involve employing an Indigenous law graduate from a similar background who can help the student overcome language difficulties in a positive, non-threatening way. Over the past 16 years, the Pre-Law Program has enabled some 45 Indigenous people from diverse backgrounds to qualify as lawyers, meaning that the School can draw upon the Indigenous legal community’s support when needed.

Once students have commenced their undergraduate studies, they are encouraged to participate in the university’s wider academic, social and cultural life. First year students are encouraged to form study groups at the School of Indigenous Studies, where they can drop in to discuss their progress with the Law Coordinator. Indigenous law students who are in their final year of study also informally mentor them. As role models, many Indigenous law students have not only experienced academic success in their degree, they have also been successful in obtaining cadetships, scholarships as well as recognition of their achievements by the Indigenous community. An atmosphere of social inclusion, mentoring and self-discipline is provided by the Indigenous law student body which, in conjunction with the support provided by the academic and student support staff, ensures that first year law students are able to make the transition to a life where the study of law is a constant demand.

Conclusion

Since 1927, the University of Western Australia has provided the state and the nation with graduates who have gone on to work in legal practice, politics and the judiciary. Yet, until quite recently, the profession was totally without Indigenous representation in Western Australia.

The Indigenous Pre-Law Program is a very conscious step towards redressing this imbalance. Indigenous law students who have graduated from the University of Western Australia have gone on to work in various legal and related fields. Last year, Judge Mary Ann Yeats, described the Pre-Law Program as a ‘very valuable innovation of the School of Indigenous Studies’ and addressed students with the following words:

I have personally benefitted from the quality of these law graduates. For the past 10 years, I have been very fortunate to have Aboriginal graduates employed as my associates … I believe at a personal level when members of the legal profession who never in their lives had the opportunity to know and work with Aboriginal people, have a professional working relationship with an Indigenous lawyer, that changes will come, stereotypes will be eliminated and individual reconciliation will take place. That will be an enormous step forward for all of us in Australia.[9]

Equity initiatives such as the Pre-Law Program have been a major force in reversing the poor record in qualifying Indigenous lawyers in Australia. We believe the legal profession and related institutions will be enhanced immeasurably as Indigenous people continue to take their rightful place in society.

Mel Thomas is an Assistant Professor at the School of Indigenous Studies. Professor Jill Milroy is the Dean of the School of Indigenous Studies. Professor Richard Bartlett is the Director of Postgraduate Studies at the School of Law, University of Western Australia.

The authors would like to express their gratitude to the teaching staff at the University of Western Australia’s Faculty of Law for teaching in the Pre-Law Program and for guiding our students to reach their full potential.


[1] See, for example, Larissa Berhendt Achieving Social Justice – Indigenous Rights and Australia’s Future (2003).

[2] See, for example, Native (Citizenship Rights Act) 1944 (WA).

[3] Sally Morgan (ed) Echoes of the Past – Sister Kate’s Home Revisited (2002).

[4] Michael Kirby ‘The Impact of International Human Rights Norms: A Law Undergoing Evolution’ [1995] UWALawRw 3; (1995) 25(1) The University of Western Australia Law Review 30, 32-48.

[5] Student Feedback on the Pre-Law Program, April 2009.

[6] Mabo v Queensland (1988) 166 CLR 186.

[7] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.

[8] Student feedback, above n 5.

[9] Judge Mary Ann Yeats, ‘Graduation Address’ (speech delivered at the graduation ceremony, School of Indigenous Studies, University of Western Australia, 23 January 2009).


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