Kirby, M --- "Online legal education in Australia: the new CQU law degree" [2012] LegEdDig 11; (2012) 20(1) Legal Education Digest 38

• Online legal education in Australia: the new CQU law degree

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Online legal education in Australia: the new CQU law degree

M Kirby

Australian Bar Review, Vol. 34, 2011, pp 237-250.

In the past year, two new law courses have commenced in Australia, reflecting distinctive features. One is the Juris Doctor degree taught at the University of Melbourne Law

School, as a post-graduate course, after the model established in the United States of America. The other is the Bachelor of Laws degree at Central Queensland University, taught almost wholly online, involving a potentially shorter course, confined substantially to core subjects. The author reviews the potential advantages of the latter innovation: especially the outreach to regional and rural communities, offshore needs and opportunities for ethnic communities and other groups who have not so far been attracted to study law. The author concludes that there is a need for more innovation and experimentation in the provision of legal education in contemporary Australia and that each new law course is to be welcomed and carefully evaluated.

In Australia, law courses do not secure the accreditation essential to an entitlement to prepare lawyers for admission to legal practice, unless they conform to specified fundamentals. They must contain instruction in prescribed subjects (the Priestley eleven). They must secure the approval of statutory accreditation bodies. Yet, within the parameters set by these obligations, there is room for experimentation and innovation. Such qualities are essential if the tertiary sector of education in Australia is to meet the requirements of education and skills training for the Australian lawyers of the future.

My own legal education took place at the Law School of the University of Sydney in 1958–61. Several of academic teachers of that time were truly outstanding, including Professors Julius Stone, David Benjafield, William Morison, Patrick Lane, Ross Parsons, Gordon Hawkins, Ilmar Tamello, Tony Blackshield and Harry Whitmore. The impact of law teachers on their students is often only fully appreciated years or decades after the classes have concluded.

Some analysts, seeking to explain the innovative characteristics of the High Court of Australia under Sir Anthony Mason and afterwards have (correctly in my view) ascribed part of the credit to the innovative instruction of Professor Julius Stone. He opened the minds of his students to new and more realistic views about the law and legal practice.

One of the articled clerks sitting in the classroom in 1958 at the Sydney Law School was John R Peden. He was a grandson of Sir John Peden KC, Professor of Law and Dean of the Sydney Law School two decades earlier. Like his grandfather, John Peden was to pursue a life as a teacher of law. He became the first Dean of a new Law School at Macquarie University in Sydney, where I was later to serve as Chancellor.

Writing in 1972 on professional legal education, John Peden (who tragically was to die too young) asked the following questions and made the following observations:

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 the lawyers for practice. In recent years, however, it has been more generally recognised that legal education 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 those wider roles. These include the traditional roles of advocate and adviser where the lawyer’s attitude to social and moral questions obviously influences his responses to problem situations.

At the time of my legal training, in most parts of Australia, including Queensland and New South Wales, a large proportion of future lawyers was not prepared for practice in universities at all. They received instruction in professional courses, offered by a State Barristers’ Admission Board or Solicitors’ Admission Board. The Boards graduated approximately 200 lawyers each year.

This professional system of admission to legal practice had begun in Australia in 1848, although it was not until 1966 that systematic courses were offered. The creation of university law schools in Australia, as an alternative, did not occur until the latter part of the nineteenth century.

With the advent of university instruction in law, competing models for legal training began to emerge. From the United States of America and Canada came the North American model which envisaged a wholly post-graduate law degree. From Britain came a model involving an undergraduate law degree, sometimes (as in my own case) combined with two years of an otherwise incomplete undergraduate degree in a generalist discipline, usually the Bachelor of Arts. Australia, for more than a century, followed the British model, in legal education as in so many other things legal. Now, the University of Melbourne has adopted the North American pattern, obliging its law students first to complete a generalist degree and to undertake legal studies as a graduate student for the Juris Doctor degree. Other Australian law schools are now considering or have already copied ‘the Melbourne model’. A number have implemented the Juris Doctor option as an alternative option to the undergraduate degree, previously universal in Australia.

Self-evidently, the introduction of the new post-graduate requirement provides competition in the professional market, at least so long as an alternative preparation for a life in the law is offered. Obviously, a longer period of training is involved when law becomes a post-graduate degree. Not all students, or potential lawyers, can afford these extra requirements. The added expense has a special significance in the law because of the fact that studies of the composition of undergraduate law students have shown for many years that such entrants tend to come in greater numbers from particular backgrounds and not to reflect the diversity of the general Australian student population.

For most of my service on the High Court of Australia, I was the only Justice whose entire education had been in public schools. Although more than 65 per cent of Australians are still so educated, most of Australia’s judges, and nearly all of the Justices of the High Court of Australia, have been educated elsewhere. Such disparity could not but influence the values that are reflected in judicial decision-making. Some lawyers might contest this assertion. However, in my opinion, those who dispute it need to go back and read the instruction of Professor Julius Stone about the ‘leeways for choice’ that are enjoyed by judicial decision-makers in the common law system. And the ways in which early family and educational influences affect professional values throughout life.

Legal education is in a constant state of development and change. Australians must constantly ask, what are the other shifts that are occurring, that need to be reflected in a contemporary law course.

It is against the background of this understanding of the purposes of legal education and its traditions in Australia and elsewhere, as well as recent developments affecting the contents of law courses, that I address the creation of the new law course at Central Queensland University (CQU). At the outset, I express my opinions: the new JD course at the University of Melbourne Law School is to be welcomed. So is the new CQU law course. The special features of the latter are that the course is substantially taught online and the course remains an undergraduate one, shorter in potential duration and total subjects than most other such law courses presently on offer. Innovation and multiple options are desirable. Sticking unquestioningly to past or present models is not necessarily in the best interests of the legal profession or of the citizens and future clients and users of legal services.

The new CQU law course with its special features of on-line instruction offers a number of advantages in the teaching of law:

Serving regional and rural needs: The emphasis on online instruction is designed to respond to several demands that particularly arise in regional and rural Australia. The fact that the CQU course will provide its instruction online will make enrolment and participation possible for some undergraduates who might otherwise find it difficult, or impossible, to enrol in a law course;

Importance of supports for students: Studying in places remote from home and friends will frequently add emotional burdens. These will be missing if a course can be undertaken online and effectively brought to the student rather than vice versa;

Retaining regional and rural talent: One hope of the CQU degree is that, by catering online to students in remote regional and rural districts, in the vast outback regions, it will prove easier to retain talented and qualified employees in regional and rural Australia. If a student is forced, for study reasons, to move to a metropolitan centre, there is always a risk that his or her link with a place of origin will be lost. This drift is a serious problem for retention and engagement of professionals in remote communities;

Utilising new information technology: The basic concept behind the online undergraduate course in law is to use technological facilities that are now available and increasingly familiar, especially to younger generations.

Catering for special cultural needs: Indigenous students and students from backgrounds that otherwise lack connection with tertiary education may, it is hoped, respond well to a technology of instruction that does not require them to speak up in class where they may feel tongue-tied and intimidated. The CQU course will represent a nationwide experiment to reach out to such groups as have not so far been well represented in university law courses and consequently in the Australian practising legal profession;

Continuity and change in curricula: A course in Jurisprudence (or Legal Values) is a compulsory subject in the CQU curriculum. Gaining instruction in the theory and application of the value choices that have to be made in the law is an essential ingredient, in my view, to preparing the ethical lawyer of the future. Although Legal History is not presently offered as a course at CQU, any more than in most Australian law schools today, I again make an appeal for its re-introduction into law courses, or at least as an identifiable component of the teaching of particular legal subjects.

Supplementing online with practical outreach: Although students undertaking the CQU course online will lose the considerable advantage of regular physical interaction with teachers and other students, steps are to be taken to provide other forms of actual contact that can supplement the online instruction.

The values that CQU embraces for itself are harmonious with the foregoing objectives. They include a commitment to good communications; an emphasis on problem solving; experience in critical thinking; capacity in information technology; exposure to team work; engagement with cross-cultural experiences; and commitment to ethical practice.

No doubt, on occasion, the university, like any institution or individual, will fail to attain perfect scores on these and other values. But it is to be welcomed that these are the standards that CQU sets for itself and propounds to the world. By setting such standards, the University exposes its teachers, administrators, support staff and leaders to criteria by which they can be judged, and to which they can be held accountable.

Introducing an online law course obviously presents many novel challenges. These include:

Upholding participation: In a physical class, it is possible for a vigilant teacher to observe non-participation and to seek to remedy this by engaging the student in dialogue and responsiveness. It will be important that this facility is not lost by online instruction.

Through CQU’s ‘Moodle’ software, the participation of individual students can be assessed. Through webcam links, online mooting and professional role play can be introduced and assessed.

Student feedback: It will be essential to obtain and monitor student feedback about any teething problems that may arise in the introduction of an intensive online course in the law. The CQU Law School and the university should make it their business to seek student comments and regularly to discuss consumer satisfaction with the course, so that problems and difficulties can be ironed out and quickly addressed under the protocols of the school.

Mentors and chat rooms: To repair as far as possible, the lack of regular physical interaction with teachers and other students, CQU will need to give thought to providing supplementary opportunities for electronic and physical interaction and dialogue. It is difficult online, and at long distance, to replace the vibrant, exciting and often emotional contacts provided by universities through participation in student societies. This is part of the ‘entire university experience’ for undergraduates who physically attend for instruction at a university campus. A lot of attention should be paid by the CQU Law School and the university to enhancing this aspect of the university experience and to providing more than electronic instructional communications between the students and the teachers in the institution;

Equity and outreach: If the CQU law course is simply viewed by its students as a shorter and quicker way to obtain professional legal qualifications, in a minimum of time and at a cheaper cost, it will have failed to attain the objectives of social equity and broader outreach that it has set for itself. The background and aspirations of enrolees should be studied so as to monitor the success of the course in attracting participants from indigenous communities and minority ethnic and social groups that have so far been largely omitted from the catchment of many Australian law schools.

Staff selection and development: Just as the experience of students will need to be evaluated, so will the selection of staff and their experiences in relating to online instruction and students. Because the new course is so innovative and different from traditional law teaching, it should be constantly evaluated and checked, including by feedback from the teachers themselves. It should be reported to the national legal profession which will be watching this innovation closely and perhaps sceptically;

Library resources: Although it may be expected that most of the materials used in instruction in the new course will themselves be available online, there will be needs, from time to time, to provide access to legal materials that are only available from libraries in hard copy. For the provision of these materials, appropriate arrangements for inter-library loans will be needed, under proper and easy conditions, that are made known to the students and involve reasonable costs and minimal bureaucracy;

Physical interaction: University graduation ceremonies sometimes constitute the sole time that many students come physically to the one place and meet each other at the end of their studies. Some consideration might be given, in the particular case of the CQU online course, to supplementing physical interactions of students and staff in appropriate ways at regional functions, including at student functions, in which the engagement of the students with the university and each other can be experienced, otherwise than on a screen or at a graduation ceremony.

Student health and wellbeing: Stress amongst law students appears to be much higher than amongst other tertiary students, including those pursuing professional courses in medicine. However, imperfectly, physical proximity to other students, teachers and supporters may disclose evidence of stress that can be followed up and addressed with special assistance and support. This may prove more difficult in a case where communications are limited to online engagement.

Overseas outreach: Although the CQU degree is, at the outset, to be available only to

Australian resident students, there is no reason why, in due course, it should not be offered (with or without modifications) to international students. There is a huge and growing market for lawyers in the region beyond Australia. Increasingly, legal work for Australian firms is performed offshore at cheaper rates than can be offered to their client by Australian firms. Australian tertiary institutions should be working imaginatively to tap these significant potential markets for legal education.

No doubt, there are other tests and trials that will need to be undertaken as this new course is introduced, trialled and perfected. In a conservative profession, such as Law, critics of innovation are easier to find than supporters. Supporters will be needed if the course is to flourish. With heightened enthusiasm and strong commitments to diversity, equity and outreach and to regional and rural communities, the new CQU course can appeal to markets that are presently not effectively served in Australian legal education.

The CQU law course will be a success if it attracts students who are presently, effectively, put outside the reach of legal education. Particularly if it attracts students from indigenous, ethnic and other minority or disadvantaged communities who are not presently well represented in the Australian legal profession.

Law is a special vocation. Potentially, it is a noble one. Certainly, it is a necessary one in a modern society. Necessarily, it is concerned with the twin aims of upholding order and justice in society. The alternative to the rule of law is the rule of brute power, force or the uncontrolled influence of money or birth.

The two new law courses on offer in Australia, the Juris Doctor at the University of Melbourne and the Bachelor of Laws at Central Queensland University, will each produce lawyers for the future, qualified to meet the needs for legal services in Australia and beyond. Respectively, they each tend to serve the requirements for lawyering that were described 40 years ago in England by Lord Justice Ormrod’s Committee.

Inevitably, in another 40 years, it will be found that students who graduate from each course will gravitate to occupations and activities that might not have been predicted at the outset of their careers. Thus, many law graduates from law schools in sandstone universities may end up grappling with ‘factual variations on a relatively small number of legal themes’. Some graduates from an online law course may become senior practitioners, judges and even High Court Justices.

In the law, individual capacity will often shine through. Still, the main hope for the teaching of law online at CQU must be that it increases the diversity of the candidates entering the Law and its profession. In diversity of entrants lies the hope of diversity of values and experience, interests and motivations. And that can only serve to strengthen the capacity of Law, as a discipline, to rise to the challenges that will face it in the century ahead.