Clinical Legal Education within a Community Legal Centre Context
| Author: |
Anna Copeland BA, LLB
Lecturer, Southern Communities Advocacy, Legal and Education Service (SCALES)
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| Issue: |
Volume 10, Number 3 (September 2003)
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Contents:
- Clinical legal education programs, where students work on real cases for credit towards their degree, have been around in Australia
for three almost three decades.[1]
Community legal centres are providing rich learning environments for many of these clinical programs. From the first clinic within
a community legal centre established by Monash University at Springvale Community Legal Centre, to the most recent established by
Deakin University at Geelong Community Legal Centre, many community legal centres and clinics have found benefits from their collaboration.
- Being based at a community legal centre means that these clinical programs are in turn able to maximise the learning opportunity for
their students. Completing the circle, students who graduate from clinic programs are demonstrating that the lessons learnt were
not only how to give legal advice or draft a legal letter. They are also demonstrating that clinics have allowed them the opportunity
to reflect on their role as a lawyer, legal system and how it serves the broader community. One example of this is the big volunteer
commitment from the alumni of Murdoch University’s clinic benefiting a newly founded community legal centre in Perth.
- Many clinical programs in Australia have links to, or are based in, community legal centres. This raises some questions about how
well the role of a centre as a legal service provider ‘fits’ with its role as a legal education provider. This paper will look at
the perceived conflicts, and argue that far from compromising its educative role, a clinic placed within a community legal centre
can offer students unparalleled educative benefit. It will demonstrate this by looking at a clinical program run at Murdoch University
offering migration advice and assistance to asylum seekers.
- The tension between providing legal services to clients and educational benefit to students is a fundamental one to clinical legal
education[2]
and it has received a lot of attention from academics. Of course, each approach to the problem reflects much about the context from
which it is coming.
- In the United States many of the clinical programs have grown out of initiatives by universities alone, while this may also by in
large be the case here in Australia as well, in the US many clinical programs do not have `live clients’ and, it has been suggested,
focus more on the educative needs of the students (Noone 1994, 1; Evans 1992; Rice 1991). Here in Australia the perspective has been a little different.
- There is a particularly strong connection between Australian legal clinics and Australian community legal centres.[3]
(Noone, 1994, 1997; Campbell, 1991; Rice, 1996). This is not only because many of the clinics function as community legal centres (or within community legal centres) but also because
many of the supervisors and staff of Australian clinics have a practice background in community legal centres (Noone, 1997).
- This close collaboration producing what will be referred to as Community Clinics for the purposes of this paper, provides a context
in which the perceived tensions that exist between community service and the education of students can be viewed. Criticism has been
levied from both sides of the collaborative equation. Concerns from educators that responsibility to clients means that students’
needs take second place are countered by practitioner’s concerns about the quality of the work produced by voluntary students, and
the exploitative nature of using unpaid students to do the bulk of the legal work.
- Criticism concerning the use of unpaid students to provide legal services had particular resonance in a time when concerns were raised
that the federal government was looking to clinics as a means of providing legal services for less cost. This concern arose out of
the Federal Government’s shift of support from Legal Aid to Community Legal Centres exemplified by the 1998 federal budget that increased
funding to community legal centres by 19% while reducing funding to Legal Aid (Giddings, 1998). It became clear that this government
saw Community Legal Centres as a cheaper alternative to Legal Aid, and concern mounted that the Federal Government would then turn
to Clinics as a cheaper Community Legal Centre. These concerns were exacerbated when as part of the announcement of this budget measure
included a suggestion by the federal government to establish new clinics and benchmarking to “maximise legal service delivery to
disadvantaged clients” (Williams, 1998)
- Community legal centres have resisted the federal Attorney General’s tendency to see them as a cheaper legal aid, and use this to
justify reduced legal aid funding. In the same way, Clinics have fought the idea that they can provide cheaper legal services due
to the involvement of unpaid students. While student’ involvement can bolster and support the services being offered to clients,
educative value for student relies on the time and space to reflect on their practice and build both skills and understanding. Therefore
a commitment to the educative needs of students along side client service delivery may not eventuate in more clients being seen for
the funding dollar. A point perhaps lost on a Federal Government who not only emphasised the “maximisation of service delivery” but
also failed to mention the educative role of clinics at all.
- Another criticism of the model of clinical legal education operating within community legal centres; suggests that once again those
most marginalised and disadvantaged by the legal system are losing out. This criticism points out that those using community legal
centres often approach the centre to deal with legal issues that have a profound affect on their physical or mental wellbeing. It
may be to seek assistance in retaining or accessing housing, having contact with their children, accessing benefits or defending
a criminal charge. These are issues that impact on their basic human rights. It has been argued that if the only access that marginalised
clients have to legal services is through clinics, they are once again disadvantaged by the relative inexperience of the students
working on their case.
- Clinicians have responded to this criticism by pointing out that all the work done is supervised in much the same way as it is within
private or government legal practices. Furthermore, students are keenly aware of the responsibility of working on client’s cases
and take it very seriously. They are likely to use the resources of both the campus library and faculty knowledge and expertise to
research issues, this results in the work they produce being detailed, comprehensive and very carefully considered.
- Because clinics in Australia are often also community legal centres, clinicians have long had to articulate how the work of students
contributes to meeting the needs of the client community. However, clinics are also part of universities, and as such have a responsibility
to meet the educational needs of students. This includes allowing them to work on a range of files and deal with issues that are
neither too complex nor too repetitive. By offering student the opportunity to run real cases and see real clients the clinic presents
a unique learning experience, something more than can be found in lectures and tutorials. Clinics are able to offer students a contextualisation
of legal work, an opportunity to situate legal principles and remedies within a broader framework of the society within which they
work.
- Clinicians have always argued against the perception of clinics as simply practical skills training grounds. In his guide to clinical
teaching Simon Rice (1996) is adamant that a distinguishing feature of clinical legal education is that it “is not skills training”.
While the acquisition of skills is certainly a by-product of the clinical experience it is their submersion-teaching environment
that allows their more comprehensive educative value to emerge. Because students are confronted with real legal issues, by real clients
and are working in an operating legal service, they are taking in much more than content on letter writing or interviewing. The Clinic
gives them an opportunity to watch and learn from their peers, the supervisors, other staff and the clients:
“Clinics allow students to reflect upon and try to resolve ethical issues in a context where such issues really matter. Clinics facilitate
analysis not of an arid acontextualized problem…but rather provide richly informed, thickly nuanced settings and issues requiring
immediate attention”(Hill 1998)
- This process, by its very nature, is a critical one; it will also be a political one. To borrow from the critical legal studies scholars;
the very nature of the work done at a client centred clinic “breaks down the idea that there is a viable distinction between legal
reasoning and political debate, rather law is politics and does not have an existence outside of ideological battles within society”
(Gordon, 1981). And it is this work of clinics, this contextualising, this critique of the legal-political system than so lends itself
to being placed in a community legal centre.
- Community legal centres were born from a “growing awareness of the failure of the legal system to cater for and deal with the issues
of the poor” (Noone 1997). Growing out of community needs and subsequent activism “the origin of centres can be found in the need
for constructive and positive change” (McDougall, 2001). There is, of course, ongoing debate within the sector about the contemporary
identity of community legal centres; this arises from the perceived tension between their identity as a provider of individual legal
services and their role as reformers, educators and activists.
- The immigration clinic run through the Southern Communities Advocacy and Law Education Service (SCALES) and Murdoch University School
of Law provides a clear example of just how this can happen. Students assist asylum-seekers by taking statements, researching country
information, writing submissions and (if necessary) preparing for review hearings or Federal Court appeals.[4]
- These asylum seekers come from many different countries, some arrive on student or visitors visas, some arrive without a valid visa,
all of them have traumatic histories and many are survivors of torture. In order to be successful in their claims for asylum they
must demonstrate that they have a well-founded fear of persecution in their country of origin.
- When students begin the immigration clinic the most they know of these asylum-seekers is from the media report and political rhetoric.
Most recently reports concerning the Tampa or the Children Overboard incident provide a potent backdrop to the work they are about
to engage in. Many of the students have had little or no contact with people from the countries, cultures and religious backgrounds
that are about to become their clients.
- Students gain many skills, including cross-cultural communication, working with interpreters and assisting traumatized clients. Perhaps
the more remarkable educative value is that in gaining these skills they are often forced to confront some of their own preconceptions
and prejudices. The fact that their own self-discovery is also being mirrored and played out in the national media gives a very special
dimension to their experience.
- In addition, students are learning valuable lessons about access to legal services and the impact of funding on the ability of their
clients to achieve results. Funding available to provide legal services to asylum seekers is scarce, especially if applied on an
individual casework model. In addition, the substantive law in immigration matters is often contained in regulations which can be
(and are) changed without the scrutiny applied to legislative changes. Apart from presenting frustrations for the student; whose
hard work on a client’s case is rendered useless by an overnight amendment to the regulations, this presents a clear model in which
lobbying and law reform may be crucial element in success for the client. As one student put it “what our clients need are a team
of activists, lobbyists, spin doctors and journos –not a bunch of lawyers” (immigration clinic student 2002)
- Perhaps these lessons can, in turn, be instructive to community legal centres. Community legal centres can be more than simply individual
legal service delivery; they can work through law reform, test cases, policy campaigns and political activism and in doing so they
can ‘model’ the idea that the legal system does not exist in a vacuum. It is this very context that has inherent and undeniable value
in educating future lawyers. However, not all those within the community legal sector would agree with this approach of less emphasis
on individual service delivery and more on social change.
- One of the forces pulling centres away from this social change model are the federal funding demands to provide more and more individual
legal services to disadvantaged clients. Centres that are also clinics feel this pressure even more keenly as it becomes harder and
harder within that context to meet the educational needs of students. There is a clear conflict between seeing vast numbers of clients
and allowing the time for clinical students to be reflective in their learning style (Giddings, 1998)
- More importantly this model of community legal centres has nothing to offer clinical students that they can’t get elsewhere. If community
legal centres are to be simply a copy of legal aid, or private practice then universities will turn to the cheaper and less resource
intensive option of internships in those environments. There is particular value in combining a university clinical course and the
environment of a community legal centre, more than simply volunteering at a community legal centre, a clinical course allows an intersection
of theory and practice, and then the space and time to reflect on that intersection.
- It is perhaps uncontentious that an aim of the modern law school is to go beyond teaching the law and the legal system. Courses covering
feminist analysis and race issues as well as new approaches in teaching traditional law units attempt to alert students to the limitations
of the system and its role in the socio-political context of the world around them. It would be difficult to find a modern law school
that did not raise and discuss such issues as access to justice, institutionalised discrimination or the relative benefits of alternative
dispute resolution.
- However, while these courses raise and examine these issues, a clinical course can offer students a first hand experience of the ways
in which the legal system functions and fails, the way it denies some while benefiting others and how real people deal with these
issues. This is a benefit of a clinical program, particularly one which is based in a community legal centre. Community legal centres
have at their core a critical, analytical approach to legal service. This is born not only of how and why they developed, but also
of the many existing tensions they grapple with everyday.
- If law schools are attempting to encourage students to critically analyse the law and the legal system, what better place to do it
than a community legal centre whose very genesis flowed from a critical analysis of the law and the legal system, and perhaps more
importantly the impact of that system on disadvantaged groups within our community.
- Yet it is much more than a historical pedigree (a pedigree that can give law students an alternative approach to law and lawyering)
that community legal centres have to offer. It is the continual tensions that they grapple with everyday. As mentioned above, one
of these tensions exists for a centre that is also a clinic as it tries to balance the teaching and learning needs of its students
against the legal and service needs of its clients.
- This conflict intersects with another one that is at the core of the community legal centre practice. It manifests itself in the continual
question of how should community legal centres assign their limited resources. In a society that relies heavily on the law and legal
processes to regulate much of everyday life, it is those groups that have little or no access to legal knowledge that are most disadvantaged.
First, they are less likely to have this legal knowledge themselves due to lack of educational opportunities, language or cultural
barriers. Secondly, due to this lack of legal knowledge they become more reliant on their ability to access legal advice and representation.
However, they are unable to access that knowledge due to the dwindling funding for the provision of legal information, advice and
representation.
- The realities of funding means that the provision of legal resources for marginalised groups are sparse, how then do community legal
centres spend their limited budgets to maximise the benefit to the community? Traditional legal practice in which a client sees a
lawyer about their problem and effectively hands over the running of their case to a lawyer is not the most time efficient or cost
effective alternative. The lawyer in a community legal practice cannot afford to `run’ a case doing everything from locating the
other party to filing the documents. The time necessary to do this would have to be taken from the never-ending queue of clients
wanting to access the centre.
- In a community legal centre, the lawyer is trying to maximise the service to the whole community. This is, in itself, a problematic
tension within legal practice:
“The legal system dictates that we act "on behalf of" rather than in solidarity with the client/community. In addition, the legal
profession has an interest in exploring the minutiae of law that is perhaps not necessarily in the collective interests of the community.”
(Jewell and Kilgour, 1995)
- Community legal centres have long recognised the difficulties in attempting to continue within the traditional paradigm of legal practice.
As more and more of their clients are forced to face the legal system under or unrepresented, they have begun to develop methods
of practice that offers their clients more than a one off appointment with an over-worked lawyer struggling to see as many clients
as possible. As James McDougall points out:
“As the approach taken by centres has involved a recognition of the barriers to justice, it often also leads to developing structural
and preventative strategies such as education, advocacy, campaigning for law reform and policy development and advice.”(2001)
- Community legal centres see the law in context and have broadened their work to include law reform, policy, media work and even activism.
Every lawyer in community practice can see the benefits of running a forum to cover the basics of family court processes, rather
than giving the same information individually to a series of ten clients, or using time and resources to lobby government to reform
unjust legislation, instead of spending hours in court arguing for each individual caught by its provisions.
- To what extent lawyers `trade-in’ their traditional paradigm for the sort of strategies discussed above is an ever present and problematic
question. The competing demands on limited resources between these strategies and individual casework present an inspired pedagogical
context in which students can explore these fundamental tensions. Whether or not the student ends up working in a community legal
centre, this tension is an important one as it demands that the student think through their role as a lawyer. Is their role to work
toward maximising the benefit to those trying to use the legal system, even if this means substantial change to that system? Or is
their role to defend the legal system with its existing limitations and also protect their own position within that system or as
Bankowski and Mungham have put it;
“a significant erosion of the monopoly of legal knowledge is not in the lawyer’s interest….if this base begins to wither
away then so does the claim of the lawyer to power and privileges in society.”(1976)
- To return to the immigration clinic, one of its assessable components is to undertake a group project. A community development model
is used in determining what the project will be; the students meet a couple of times in the first few weeks of semester to discuss
possible projects. It is interesting to note that each semester there are suggestions that are more within the traditional legal
paradigm such as legal research of use to a particular group of clients, or exploring the possibility of a test case. There are also
always suggestions that step out side the traditional legal paradigm, for example some of the projects the students have decided
to undertake have been; a training manual for community educators on the protection visa process; a media campaign to address stereotypes
within our client group, drafting of a submission to the HREOC inquiry into children in detention.
- Clinical programs allow students to use, develop and reinforce the legal knowledge they have gained at law school but more importantly
they offer a golden opportunity to understand firsthand that legal doctrine does not exist in a vacuum. Upon graduation, these students
will be practicing with a socio-political context and the clinic gives them a rare opportunity to explore the interface between law
and society. A clinical program within a community legal centre can go further to support students in grounding their nascent critique
of law and more importantly it can assist them in finding a role for themselves within legal practice.
- To return finally to the immigration clinic, it in undeniable that students who have taken this clinical unit have found that it has
had a profound effect on them, they tell us as much in their final reviews. If any more proof is needed it exists in the numbers
of ex-clinic students who have volunteered their time to a community legal centre dedicated to assisting asylum-seekers and refugees.
Called CASE for refugees, this centre was set-up in 2002 to provide assistance to temporary protection visa holders. Within six months,
more than one third of the 100 volunteers on CASE’s books were students who had had their first exposure to asylum-seeker and refugee
clients through the immigration clinic at SCALES.
- This article has tried to suggest some of the benefits in placing a clinical program within a community legal centre. From the perspective
of the educational needs of students, the community legal centre not only presents an exposure to legal practice, it is also a site
of competing tensions that go to the core of what it is to be a lawyer. It presents a unique opportunity for students to explore
their values and views not only as lawyers but also as members of the broader community.
Bankowski, Z and Mungham, G. (1976) Images of Law (London: Routledge & Kegan Paul)
Campbell, S “Blueprint for a Clinical Programme” (1991) 9 (2) Journal of Professional Legal Education 121.
Evans, A “Survey of International Trends in Clinical Legal Education and their Relevance to Australia”, Report to the Dean, Faculty
of Law, Monash University, February 1992.
Giddings, J “The Commonwealth Discovers Clinical Legal Education” [1998] AltLawJl 52; 23 (3) Alternative Law Journal 140, 1998.
Gordon, R (1981) "Historicism in Legal Scholarship." Yale Law Journal 90: 1017.
Hill, F G. “Clinical Education and the `Best Interests’ Representation of Children in Custody Disputes” 73 Indiana law Journal 605,
Spring 1998.
Jewell, B and Kilgour, K “Lets Walk on the Wild Side” Redfern Legal Centre Website, Law Reform, accessed August 2001.
McDougall, J. “Where it’s at, The Context Project”, 2001, National Association of Community Legal Centres Website; accessed January
2002.
Noone, M.A. “Planning a clinical legal education program: what are the issues?” (1994) 19 (6) Alt L J. p284.
Noone, M.A. “Australian Community Legal Centres –The University Connection” in Cooper, J. & Trubeck L. (eds) Educating for Justice:
Social Values & Legal Education, Dartmouth, 1997.
Rice, S. “Review of the Clinical Legal Education Program in the Law Faculty of the University of New South Wales”, Final Report, June
1991.
Rice, Simon, “A Guide to Implementing Clinical Teaching Method in the Law School Curriculum”, Centre for Legal Education, January
1996.
Williams, D “Community Legal Service Expanded” News Release from Attorney-General, The Hon. Daryl Williams, 13 May 1998
[1]
Monash University established a clinical program at the Springvale Community Legal Centre in 1975, La Trobe at West Heidelberg in
1978 and University of New South Wales at Kingsford in 1981.
[2]
The term `clinical legal education’ in the context of this paper refers to students seeing and working on the legal matters of `live
clients’ in the context of a legal practice.
[3]
Community Legal Centres in Australia are many and varied, for the purposes of this paper this term refers to those community-based
legal service providers that, while attracting some government funding, are not limited to it and therefore take their direction
from their client community rather than from government.
[4]
The term ‘asylum seekers’ refers to those people who arrive on Australian shores seeking protection under the Refugee Convention,
if they are successful in claiming asylum, that is if it is determined that they meet the definition set out in the Convention, they
become ‘refugees’
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