Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
By Mel Thomas and Brett Farmer
The Faculty of Law at the University of Western Australia (‘UWA’) was established in 1927. Throughout the twentieth century, many of its graduates went on to become parliamentarians, judges and members of the executive arm of government, at both state and federal levels. By contrast, Aboriginal people in Western Australia were subject to race-based legislation, such as the Aborigines Act 1905 (WA), which denied them the rights of citizens. Discriminatory state legislation continued to disadvantage Aboriginal people until the early 1970s.[1] Indeed, until 1988 there weren’t any Aboriginal law graduates from UWA. The dehumanising and discriminatory laws that were imposed by what amounted to an apartheid system were clearly highlighted by two headlines in The West Australian newspaper on 26 May 1964: ‘Natives in SW May Get Drinking Rights Soon’. On the very same page was a smaller headline: ‘WA Bequest Will Aid Aborigines’. The writer explained how a university scholarship was established to provide tertiary opportunities to ‘Full blood or half-blood aborigines’:
University [of Western Australia] Vice-Chancellor S L Prescott said last night it was the first time the University had received a bequest to finance a scholarship for aborigines. The president of the Guild of Undergraduates, Mr Daryl Williams, said that aborigines throughout Australia had received scholarships from a fund financed by a subsidiary of the National Union of Australian University students.
Nearly forty years later, Mr Daryl Williams MHR, retired as the Commonwealth Government’s Attorney General. In 2003 the Commonwealth government awarded the School of Indigenous Studies at UWA a national teaching prize for empowering Aboriginal people to gain professional qualifications in law and medicine.[2] History, it has been said, moves with glacial slowness, yet it does move.
In October every year, the School of Indigenous Studies advertises the Aboriginal Pre-Law Program around Australia. From October to December, the School receives applications from a wide range of Indigenous people: Year 12 students undertaking university entrance examinations; public sector workers in state and federal government agencies; court officers working for the Aboriginal Legal Service of WA (‘ALSWA’); graduates and professionals from other disciplines; and students who have undertaken the year-long Aboriginal Orientation Course at UWA. Applications come from all over the State and many parts of the nation. The selection panel – which comprises law academics and teachers from the School of Indigenous Studies – carefully evaluates the educational and work experience of the applicants to determine whether they would be likely to pass a degree that is generally only available to the top two per cent of school leavers.
The five-week Aboriginal Pre-Law Program has been held each year during the summer vacation, mainly at the University of Western Australia. Jill Milroy, the Dean of the School of Indigenous Studies and Richard Bartlett, a Professor at UWA Law School, established the program in 1994. Students who pass the Pre-Law Program are offered a place at UWA Law School. The program is designed to teach students the skills necessary to pass first year law, such as legal reasoning, problem solving, and legal research and writing. The program seeks to imbue in students positivist legal thinking; how to apply legal rules to ‘every-day’ factual situations. Effectively, students learn how to ‘think like lawyers’. Students are also instructed in how to research and write critical essays on the law; the gendered nature of provocation as a defence under the Criminal Code, Aboriginal sovereignty, and High Court decisions relevant to Indigenous people. Students are also required to pass examinations dealing with the traditional common law subjects, such as contract and torts and statutory-based subjects such as criminal law and legal systems.
After completing the program, students are able to enrol in first year law. For many students the transition to the degree is relatively straightforward. First year unit coordinators make every effort to ensure the students are included in the learning environment. They liaise with the School’s law tutor and other staff about the students’ progress throughout the year and are sensitive to their learning needs; providing students with feedback on mock exams and problem questions, explaining complex common law principles and how to apply them to hypothetical situations.
The trend is by no means uniform, however, and every year some students are unable to make the transition to law studies for several complex reasons. The first problem that arises is that unlike the Pre-Law program, the law degree is largely left to the individual student to master. Despite the introduction of small-group teaching at UWA Law School, understanding and mastering the language of the common law requires students to spend many hours reading, summarising and applying cases each week. Application of common law rules can only occur after understanding how they have been developed, and for some students the common law and the standard ‘problem solving’ examination (ie the IRAC method)[3] is alien to their way of learning. Students who pass the threshold test of the Pre-Law Program often find themselves subject to the alien environment of self-directed learning.
Another difficulty that Indigenous students have to overcome is a feeling of alienation from the law student body. Most law students are from the middle class and have had very little contact with Indigenous Australians. For many Aboriginal people this environment is problematic, especially for those who feel estranged from the wider community and its ‘habits, mores and laws’. Nevertheless, as the student comments below indicate, much has been done to ensure Aboriginal people are afforded an equal opportunity to qualify to become legal practitioners
Danille discovered the Pre-Law Program after attending the UWA Open Day in Albany after completing Year 12 in 2002. ‘I had attended the Open Day because I was interested in a Social Work course at UWA but upon being informed of the Pre-Law course at UWA I thought I would give it a go. Once I had completed Pre-Law I was sure that Law was what I wanted to study at UWA.’
Danille found that during the Pre-Law Program she gained many helpful and useful skills for studying law. She says:
It has helped me to understand the legal lingo spoken by judges and academics and then subsequently developed my legal reasoning and writing skills through assignments and exams.
The course, she says, gave her a great background of three core units studied in first year law. ‘It was very useful as even coming straight from school I had no real knowledge of the legal system.’
Danille is now in her third year of law studies. She says that she has enjoyed the course so far and is looking forward to the electives offered over the next two years of the course. ‘Upon graduation I hope to gain employment to complete my articles. This may be possible through my cadetship with the Department of Immigration, Multicultural and Indigenous Affairs but, if not, hopefully in another government department. Once fully qualified as a lawyer I want to work with everyday people who become involved in the legal system. With my degree I can hopefully help people out of difficult legal situations. I am not sure what type of law I want to specialise in at this stage, so my future goals include getting a good job which I can successfully help people in.’
Danille believes the law degree is very important for Indigenous people in order to overcome past historical inequities and challenge the injustices that still exist:
With the high rates of Indigenous imprisonment I think that law is a very important vocation for Indigenous people to become involved in. There is no doubt that a positive perception of Indigenous people would grow with more Indigenous people being involved in the legal sector. Hopefully, Indigenous youth can also see that they can study at university, get a good job and be successful lawyers one day.
There are, however, many challenges that face law students. Danille acknowledges that law is a difficult discipline, but with hard work and dedication it does pay off. She says that
the challenges in doing a Law degree include having to move away from family and friends and adjusting to the high quality demand from the Law Faculty for assignments and exams and basically trying to understand what is going on! However, these are all countered by positives like making new friends, realising that you do actually understand what is going on and passing units - so there is light at the end of the tunnel.
Peter decided to undertake the Pre-Law Program after studying law at another Australian university. He said that he struggled with the study load and had no opportunity to meet other Indigenous students and share their experiences. Making the transition to study at UWA was, he says, the best decision he made. In the Pre-Law Program Peter learnt the vital skills of legal analysis and assignment writing.
Now a third year Law student, Peter says that when he graduates he wants to help Indigenous people.
We suffer the most profound injustices and discrimination in the criminal justice system. I want to somehow make a difference and help us escape this system, and its discrimination.
He believes that the only way for us to fight systemic discrimination is to make the system change:
We are only able to do this from inside the system and can only achieve this as lawyers, politicians and social justice advocates. All this will only come about with education, qualifications, and personal successes.
Peter realises that with Aboriginal people now so visible in a Faculty that was once a traditionally white, middle class institution, both Indigenous and non-Indigenous people can be treated as equals at the academic level.
Peter says that he did not do well at school:
Therefore, the subtle art of writing was a bit beyond me. I had to basically learn all the skills non-Indigenous students just took for granted. I did not have any family support; I had no family members with a background in law from whom I could get advice. In addition to this, I did not attend the ‘right’ school, and therefore was excluded from all the social groups, and the academic support members that these elite groups provide each other. Without the staff at the School of Indigenous Studies I would not have been able to survive at Law School.
Jon completed the Pre-Law Program in 2001. Prior to studying at UWA, Jon was an ALSWA Court Officer at the Court of Petty Sessions in Perth. Jon has done well in the degree and has passed some of the most difficult units with credits and distinctions. Now a fourth year law student, Jon has specialised in International Humanitarian and Refugee Law. When Jon graduates in 2005 he wishes to pursue a career as a criminal barrister at the Supreme Court of Western Australia and then he hopes to work in the area of international criminal law.
In 1988 the first Indigenous person to earn a Bachelor of Laws graduated from UWA. Despite the overall homogeneity of the legal academy, the judiciary and parliaments nationwide, the number of Indigenous law graduates has increased over the past two decades at UWA.[4] Our next step is to seek and enact ways of ensuring past disadvantage is replaced by measures which restore human dignity and substantive equality to Indigenous people. The recognition of Aboriginal perspectives of the law can be an important lesson to the whole profession.
Mel Thomas is an Associate Lecturer (Law Tutor) at the School of Indigenous Studies at the University of Western Australia. Brett Farmer is a fourth year Bachelor of Law student at the University of Western Australia.
[1] See Native (Citizenship Rights) Act 1944 (WA) and Native Welfare Act 1963 (WA). For a study of these Acts see Tamara Hunter ‘The Myth of Equality: The Denial of Citizenship Rights for Aboriginal People in Western Australia’ (2001) 22 Wordal – Studies in Western Australian History, 78-82.
[2] Australia Awards for University Teaching ‘Succeeding in Mainstream: Graduating Indigenous Professionals’ 2003.
[3] Issue, Rule, Application and Conclusion. IRAC is a technique taught to law students to answer problem-solving examinations.
[4] Since 1988 there have been thirty-three Indigenous law graduates from the University of Western Australia. Currently twenty-nine students are enrolled in the degree. In 2005 there were four graduates. It is estimated that there will be six graduates in 2006.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2005/28.html