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Brennan, Sean; Healey, Deborah; Hunter, Jill; Johnson, Dani; San Roque, Mehera and Wolff, Leon --- "Racism in Legal Education Special - Indigenous Legal Education at UNSW: A Work in Progress" [2005] IndigLawB 7; (2005) 6(8) Indigenous Law Bulletin 26


Indigenous Legal Education at UNSW: A Work-in-Progress

by Sean Brennan, Deborah Healey, Jill Hunter, Dani Johnson, Mehera San Roque and Leon Wolff

Since the 1970s Australian law schools have provided alternative entry routes and, since the 1980s, pre-law programs and bridging programs. On-going support, once Indigenous students reach university law schools, has been an issue that has not been formally or appropriately addressed in most university law schools. In this way Indigenous students’ chances of entry are disguised as chances of success. Thus once Indigenous students start their law school studies, they are often expected to perform on a level playing field – their success or failure then depends on ‘gifts, merits or skills’ which are culturally appropriate for law school. This attitude fails to recognise the privilege which allows the development of such gifts, merits or skills.[1]

Beginnings

Indigenous legal education at the University of New South Wales (‘UNSW’) builds on decades of work by Indigenous and non-Indigenous researchers and teachers. Indigenous staff at the former Aboriginal Education Program (‘AEP’) and Aboriginal Resource and Research Centre — now combined as Nura Gili — have played a lead role in promoting participation by Indigenous students at UNSW. The UNSW Law School, too, has been active. It was established by its founding Dean, Hal Wootten, with an explicit social justice focus, and over the years many staff, including Wootten and Emeritus Professor Garth Nettheim, have fostered a commitment to Indigenous legal issues and educational opportunities for Aboriginal and Torres Strait Islander students, including the establishment, in 1981, of the Indigenous Law Centre and, in 1994, the Indigenous Pre-Law Program.

Taking Stock

In 2002-2003, the Law School took stock of Indigenous legal education at UNSW. In part, this was in response to research critically reflecting on the commitment by Australian law schools to Indigenous legal education.[2] In 2003, law staff formed an interest group that was later formalised as a Law School committee (the Indigenous Legal Education Committee, ‘ILEC’) with representatives from academic and general staff, Nura Gili and the student body. ILEC’s brief is to support Nura Gili initiatives and to enhance Indigenous student support in the School. In addition, the Faculty established the position of Director of Indigenous Legal Education to act as a contact point both inside and outside the Law School.

In 2003, ILEC confronted two key challenges. The first was to provide a more sustained level of support to the predecessor of Nura Gili, the AEP, which was facing growing demand to expand its preparatory programs, and the need to redistribute resources across the entire campus. Accepting that every institution can take its share of responsibility for the position of Australia’s first peoples, ILEC took the stance that law faculties and the legal profession could lift their game in the area of Indigenous education, provided action was based on good communication and pre-planning with campus organisations devoted to Indigenous student support and run by Indigenous people. For the moment the challenges are too numerous and the resources too limited for those centres to be left shouldering all the responsibility.

The second challenge was to map out initiatives that would build on the base already established at UNSW and respond thoughtfully to the available research. Meeting since February 2003, ILEC — in collaboration with Nura Guli and the UNSW Learning Centre — has brainstormed, supported and implemented a number of programs to preserve and strengthen the Law School’s commitment to Indigenous Legal Education. Now, two years in, it is appropriate to point to lessons learnt — lessons which may be of potential interest to other Australian law schools.

Progress to Date and Lessons Learned

Reaching out to Potential Law Students: The Winter School Program for Indigenous High School Students

In 2003, the UNSW Law School and the AEP, encouraged by a pilot program in 2002, introduced a Winter School in Legal Studies for Indigenous high school students in years 10, 11 and 12. The Winter School, which involves a number of UNSW Faculties, is now firmly established in the Nura Gili calendar of initiatives and students are selected, accommodated and supported by Nura Gili during the week-long program. The objective is to excite students about the possibilities of a future career in law and, more immediately, to encourage students to commit to their secondary studies. The Law School program adopts a student-centred, highly participatory approach to pedagogy, where students learn about basic legal institutions and concepts by drafting simple pieces of legislation, rendering judgments and advising hypothetical clients. To engage law students in the learning process, the class activities centre on sports law. Students also meet with practitioners and others in the legal profession. Members of the UNSW student Law Society are actively involved as team leaders.

Getting Students into Law School: A Flexible Admissions Policy

An admissions policy for Indigenous students should provide a flexible test of academic ability because formal educational qualifications, such as the New South Wales Higher School Certificate, may give an incomplete picture of a student’s commitment and ability.

In 2003, ILEC revisited the UNSW Law School’s admissions policy. Recent research indicates that a key factor in achieving higher rates of graduation among Indigenous students is to create a cohort of significant size within the law school.[3] According to this research, achieving a critical mass of Indigenous students is an important way of counteracting the strong sense of alienation that many students say they experience. The revised policy confirmed that the preferred means of alternative entry into the UNSW law programs is successful completion of the Indigenous Pre-Law Program. Specifically, the test for entry was whether the applicant demonstrates the capacity and commitment to complete the LLB program. The applicant’s performance in the Pre-Law Program is important. Other factors are also considered, including the applicant’s interview; their educational experience and attainment assessed in relation to their opportunities; and their work history and experience.

The policy sets a modest target of recruiting 10 - 12 Indigenous law students in 2005, working towards a progressive increase in this cohort over the next five years. This target reflects an achievable number and an Indigenous LLB student population that UNSW Law School believes it can academically and otherwise support. The policy expressly rejects setting a ceiling on the number of Indigenous students admitted in any one year.

Preparing Students for the Rigours of Law School: The Indigenous Pre-Law Program

Although some scholars have questioned whether pre-law programs are ‘useful in terms of developing academic skills or providing an academic introduction to law school,’[4] UNSW’s experience has been that an appropriately designed preparatory program can inculcate both tertiary-level academic skills as well as law-specific skills such as case analysis, statutory interpretation, problem-solving, critical thinking and essay writing.

For over ten years, the Indigenous Pre-Law Program has been the Law School’s flagship program for attracting and preparing Indigenous students from across Australia for law school study. Jointly run by Nura Gili and the Law School, Pre-Law operates for four weeks during the summer break. Successful candidates are offered positions at UNSW in Law, other Faculties or the UNSW Preparation Program. They may also gain entry to other Australian Law Schools. The program gives students a taste of law school studies, develops academic skills necessary for successful tertiary study, and highlights opportunities available to law graduates.

In 2002, the Pre-Law curriculum moved from a content focus on the Australian legal system and basic areas of law to a skills-based approach, targeting reading and interpreting primary legal materials, problem-solving, critical thinking and essay-writing. In 2003, there was a major curriculum review with input from the AEP Director, and staff at the Law School and the UNSW Learning Centre, that further sharpened the focus on legal skills. This reflects recent innovations in teaching and learning theory[5] which show that disciplinary content is only part — and not necessarily the most important part — of promoting a true understanding of law. The assessment focus also shifted. Students now submit reflective notes throughout the program and an essay, and are examined on their ability to problem-solve. This continuous assessment program replicates the Law School ideal in the LLB program of ensuring students obtain formative feedback as they progress.

Alumni and Indigenous lawyers, long-standing members of the teaching complement in the Pre-Law Program, continue their important pro-bono contributions. These increasingly have a focus on acquainting Pre-Law students with aspects of legal practice – life at the Bar, in a law firm or a community legal practice. These ‘professional briefings’ combine with field trips to court, the Bar Association and Kingsford Legal Centre. In addition, current law students are involved as student mentors, assist with problem-solving and writing exercises and provide ‘insider’ information on the Law School, its classes and the social life. The past two years indicate that these connections make Indigenous law students feel more comfortable inside and outside the classroom.

Supporting Students in their First Year: The First Year Enrichment Program

Education research makes clear that first year is a make or break year. For Indigenous students this is particularly so, given the competitive and rather alienating environment that can exist at law schools. There is, as Douglas[6] and others have said, no point in facilitating entry for students and then setting them up to fail. Appropriate student support in first year can be crucial in raising the likelihood of successful graduation down the track.

Initially with a funding grant from the UNSW Learning and Teaching Unit and now with ongoing Faculty support, two new subjects were created specifically for Indigenous law students. As with the Pre-Law Program, students receive credit towards their LLB program upon successful completion of these courses. The first, Foundations Enrichment I, formalised what had previously been a program of additional tutoring and support for first year subjects undertaken in a volunteer capacity by different members of staff. Closely integrated with first year course material and assessment, Foundations Enrichment I is now run in conjunction with staff from the UNSW Learning Centre and offers Indigenous students a weekly small-group tutorial. It gives a high priority to developing students’ academic skills, including oral communication, problem solving, comprehension and legal writing skills. It also seeks to develop their critical and analytical skills.

The second new subject, Foundations Enrichment II, gives Indigenous students accelerated access to the clinical legal education experience offered by Kingsford Legal Centre (‘KLC’). This course is run in weekly two-hour workshops at KLC. Students are involved in a different activity each week that engages them in the study and practice of the law, with close staff supervision. This involves ongoing discussion and evaluation of their performance, experiences and reflections on the law. Senior law students who are enrolled in the clinical legal education course at the KLC provide a peer-mentoring role.

Engendering a Positive Learning Environment: Peer Mentoring, Pastoral Care and Book Loan Scheme

Indigenous students need a positive environment in which to study. In part, this means providing a culturally safe environment since, according to the literature,[7] alienation is a leading factor behind attrition rates among Indigenous law students. But it also means alleviating, as far as possible, some financial burdens and providing ongoing encouragement and pastoral care.

UNSW emphasises an inclusive and welcoming learning environment for Indigenous students by facilitating peer mentoring opportunities with upper-year Indigenous and non-Indigenous students. The UNSW Law School experience is that Indigenous students rarely seek support and consideration at the rate of non-Indigenous students. The Indigenous Student Advisor within Law School administration is a young, talented and energetic member of the general staff. She ensures that there is always a friendly face and a practical hand to help Indigenous students navigate the administrative burdens of law school life.

Assistance with Indigenous students regarding applications for scholarships, cadetships and employment continues to be an important feature of the support structure. In recent times, a number of new scholarships have been established and new cadetship opportunities have opened up.

Finally, in 2004, the School introduced the beginnings of a Law Book Loan Scheme for Indigenous students. Fundraising by the student Law Society and some donations from Law School staff have provided a financial foundation and hopefully the scheme will expand, with the UNSW Law Library acting as the clearinghouse for books.

Future Directions

These reflections provide reference points for the UNSW Law School itself to evaluate its own progress and chart future directions in what is, after all, a work-in-progress. In November 2004 the Kingsford Legal Centre and ILEC organised a one-day workshop that brought together teachers from nearly a dozen campuses in Australia and New Zealand.[8] An email network will be established in 2005 to facilitate ongoing dialogue and hopefully joint action.

Future projects are afoot. These include integration of Law School programs for student support with Aboriginal Tutorial Assistance Scheme (‘ATAS’) tutoring and the expert services of the University’s Learning Centre; extension of Law School support programs beyond first year; greater use of student mentoring involving later year Indigenous students; and, in the medium term, increasing postgraduate enrolments. Other ideas that have been discussed include a briefing document for teaching staff on what it is like for Indigenous students coming to Law School, and more Indigenous-specific curricula. An especially important project is to fund the recruitment of Indigenous teachers, researchers and general staff to the faculty.

Conclusion

Perhaps the three most important lessons for us as non-Indigenous staff in the Law School, have been, first, that it is important for staff within the Law School to develop a good working relationship with, and follow the lead of, the Indigenous student support centre on campus. Second, we must be realistic about the challenges involved in overcoming the entrenched disadvantage confronting Indigenous students and be prepared to persevere with new initiatives, to monitor progress and if necessary to change course if things are not working out. And finally, that there is always more that can be done to tackle the disparity in educational outcomes between Indigenous and non-Indigenous Australia.

The authors of this article are members of the University of NSW Indigenous Legal Education Committee.


[1] Cate Banks and Heather Douglas, ‘“From a Different Place Altogether”: Indigenous Students and Cultural Exclusion at Law School’ (2000-2001) 15 Australian Journal of Law and Society 42, 59.

[2] See especially Heather Douglas, ‘The Participation of Indigenous Australians in Legal Education 1991-2000’ [2001] UNSWLawJl 32; (2001) 24 UNSW Law Journal 485.

[3] Douglas, above n 3.

[4] Ibid 502.

[5] John Biggs, Teaching for Quality Learning at University (1999) 40-41.

[6] Douglas, above n 3.

[7] Ibid.

[8] Launched at this event was the 2004 Guide to Indigenous Legal Education in Australia, published by Kingsford Legal Centre (http://www.law.unsw.edu.au/centres/klc/).


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