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Cody, A; Green, S --- "Clinical legal education and Indigenous legal education: what's the connection?" [2008] LegEdDig 31; (2008) 16(3) Legal Education Digest 5


Clinical legal education and Indigenous legal education: what’s the connection?

A Cody & S Green

Inter J Clin Leg Educ, 2007, pp 51–64

In this article we will examine some of the steps that UNSW law school has taken to address Indigenous disadvantage in, and exclusion from, legal education. The article focuses on the role of clinical legal education within Indigenous legal education.

Kingsford Legal Centre hosts the clinical legal education course of the University of New South Wales’ Law School. Since its beginning UNSW Law Faculty has emphasised social justice within law and studying law in a social, economic and political context. The Centre was established in 1981 specifically for the purpose of grounding the education at the Faculty of Law in social justice. The legal education at UNSW, in contrast to the University of Sydney, was characterised by small group teaching that was critical of the legal system around it, and accessible to the community. Community service as a part of the teaching program was seen as a valuable and essential part of legal education.

As a part of this social justice focus, UNSW has long been committed to Indigenous legal education. In late 2002 an Indigenous legal education committee (ILEC) was established. The aim of this committee is to examine and address some of the barriers that indigenous students face in entering law school and to create programs to address these. An alternative access and preparation scheme has been developed with the aim of recognising the difficulties that Indigenous students have traditionally faced in secondary school. By their participation in this committee, members of the Committee have been encouraged to look at the courses which they teach and examine how Indigenous issues are dealt with within their curriculum.

Two further key developments within the UNSW Law Faculty are the inclusion of two subjects specifically for first year Indigenous students: Foundations Enrichment 1 and Foundations Enrichment 2. These courses are aimed at supporting first year students once they have been accepted into studying law.

Research has shown that Indigenous students find the experience of law school alienating and disorientating.

Foundations Enrichment 1 is run in conjunction with staff from the UNSW Learning Centre and offers Indigenous students a weekly small group tutorial. Its primary purpose is to develop students’ academic skills, including oral communication, problem solving, comprehension and legal writing skills. It also works to develop their critical and analytical skills. It gives the students a chance to be with each other, in the majority, rather than a minority within a larger classroom setting. Although not formally evaluated as yet, it appears to be functioning effectively as a means of support for Indigenous students.

Another issue identified by Indigenous students interviewed in Queensland and reported by Douglas and Banks, is the lack of relevance of the material that students are confronted with on beginning their legal studies.

The value of clinical legal education for addressing this apparent lack of relevance of material was recognised by ILEC and led to the development, among other measures, of the clinical course for first year Indigenous students: Foundations Enrichment 2. This course is based at Kingsford Legal Centre and offers Indigenous students a clinical experience in the first year of their law studies. From the evaluations of other clinical subjects offered at the Centre, many students comment on the value of seeing law in practice and the benefit it offers them to analyse the law and legal system in context rather than abstractly through a text book. The exposure to real clients early on in their degree provides a level of ‘analysis in practice’ which ideally all law students should have access to but which is almost impossible to provide, from a resource perspective, except to limited numbers, in this case first year Indigenous students.

Indigenous students are not required to do both these subjects. They choose to enrol in them for academic credit, and do one less elective as a result.

The course focuses on developing the students’ oral and written communication skills through interviewing. They have access to a one to one mentoring relationship with a clinical student who is in the latter stages of their degree. The mentors assist by discussing one of their files with the first year student.

In addition, the students participate in visits to key agencies which introduces them to the legal aid system and how it functions. The purpose of these activities is to demonstrate how their studies may be relevant in the future and expose them to possible future career options.

The visits include a talk with the registrar and magistrate at a Local Court, where they also sit in court and listen to a case. They are asked to write a short court report of their experience to encourage reflection and develop their writing skills. They also visit the Public Defenders office, the Legal Aid Commission and the pro bono section of a large law firm. One class is dedicated to visits from community legal centre lawyers and other public interest lawyers who describe their work and encourage the students to think of possible career options outside the traditional law firm. All of these activities encourage a more concrete examination of what is possible with both law and a law degree.

It should not be surprising that well documented research of higher sickness and mortality rates for Indigenous peoples also impact on students’ ability to participate in tertiary education. ‘[Indigenous] students are more likely to be sick or to have a direct family member who is sick and in need of care or hospitalisation than a non-Indigenous student. University teachers need to keep these considerations in mind when an Indigenous student is frequently absent from class; has not done their readings; is looking for an assignment extension or a deferred exam; or simply has not filled in a required form.’ In this context, the timetabling procedures for the Foundation Enrichment courses were designed specifically with flexibility in delivery of the courses for indigenous students in mind. Whereas other subjects are centrally timetabled, for this course students are individually contacted to work out the best time for the class. This consultative process sets a tone of informality and flexibility within the course. It also demonstrates the teacher’s interest in each of the students and a desire to accommodate specific students’ needs.

The evaluations of the Foundations Enrichment 2 course since it has been in operation have been overwhelmingly positive.

Students were also very enthusiastic about the experience of interviewing clients in advice sessions, and the exposure to clients from different cultural and other backgrounds.

One could argue that ALL law students should do some clinical legal course early on in their degree. This is unlikely to occur however due to the resource implications for providing clinical legal education. Traditionally, law schools have found it harder to attract and retain Indigenous students. It is therefore more important for Indigenous students to have the opportunity to do clinical courses early in their degree program.

The numbers of students enrolling in the course each year are small, between five and seven students. Additionally, KLC offers interviewing experiences to almost all legal ethics students in first, second or third year. Overwhelmingly the students in their reflective assignments in this course discuss the value of dealing with real client’s problems and how interviewing clients grounds their theoretical study. They also state how this has stimulated them to take clinical courses later in their degrees.

From a teaching perspective, one of the challenges thrown up by this course arises from the divergence in level of capacity among the student group. While this is an issue with any course, the differing levels of ability and confidence have more of an impact in a small group.

The alienation felt by Indigenous law students expressed in earlier research is to some degree being ameliorated through the courses developed at UNSW. This is through the course content, including the fostering of mentoring relationships with later year non Indigenous students. The Foundations Enrichment 2 course was developed to improve the experience of Indigenous students at law school, particularly in their first year. By providing a clinical legal experience early on in their degrees, Indigenous students are better able to participate in their law degrees. While there is always room to evaluate and improve, the courses are an effective means of ensuring that Indigenous law students enjoy their legal studies and are able to participate fully in a relevant, enjoyable course of legal studies that is inclusive of Indigenous views of the world. Support beyond first year is generally provided through the Nura Gili Centre rather than through law-specific courses. Many of the students accept cadetships with government and law firms which provides them with ongoing practical exposure. Need for additional support is an issue which remains to be discussed further within ILEC.

The other need identified by ILEC and after the symposium on Indigenous legal education in 2004 was the need to review and change the curriculum of all courses to reflect Indigenous experiences and views of law. This is an attempt to ‘Aboriginalise’ the curriculum in all courses. It is not enough to provide a supportive learning environment for Indigenous students, we must also think about the broader curriculum and how this alienates Indigenous students and deals with Indigenous issues. This involves critically evaluating how we structure law courses as well as their content. This has the potential to be challenging for all students and Faculty. It is yet to be done throughout all courses within law. With this in mind, in 2005, KLC decided on various measures to incorporate Indigenous issues within the clinical courses. These courses are taken by almost entirely non-Indigenous students.

Teaching the later year non-Indigenous clinical students about Indigenous issues is perhaps more of a challenge than teaching the Foundations courses. Many students have clear ideas about what it is to be Indigenous and the place of Indigenous people and issues within Australia.

As well as teaching law students, KLC is a community legal centre providing legal services to its local community which includes the Randwick and Botany council areas. This catchment area includes the Indigenous community at La Perouse. The Centre advises and represents Indigenous people (approximately two per cent of the clients at KLC are Indigenous) and is currently establishing an outreach service to better serve the Indigenous community.

The majority of the students who enrol in courses at KLC are from relatively middle-class, though increasingly culturally diverse, backgrounds. Many are committed to social justice but would not have had much to do with Indigenous people before starting their course at KLC. The seminar program contains a mixture of classes given by staff at KLC and other guest lecturers. It includes classes on the provision of legal aid and community legal services, plain English drafting, discrimination law, working to settlement in conciliations, how to deal with challenging clients, employment law, law reform and human rights amongst others. They include substantive areas of law as well as more skills based classes.

The seminars are the only time in which all 30 of the enrolled clinical students are together. Historically the classes are structured to be participative with many small group exercises and discussions. Students are given a class program and readings in their induction in Week 1 of their course. As a part of the measures KLC has adopted to improve the service for Indigenous clients and students, KLC acknowledges the traditional owners of the land KLC is on at the beginning of the first class of each semester. Clinical supervisors in their individual supervision regularly discuss issues with students, including how their view and solicitors’ views of clients may be influenced by cultural and racial stereotypes and how this may influence their work. In the class program there is a class which addresses the topic of working with Indigenous communities and clients. The readings in preparation for this class focus on the skills needed when interviewing Indigenous clients.

We need to encourage students to be conscious of their own personal identities and how this impacts on their lawyering. KLC’s clinical course addresses this in the areas of interviewing and direct individual supervision of case work, but not in formal classes. The discussion of how their identities may impact on their ability to assist Indigenous clients and communities needs to be raised forcefully and directly. An Indigenous academic presenting a class gives an opportunity for students to hear an Indigenous voice who is not the needy client. The class implicitly questions students’ identities but this may need to be made more explicit.

It may be useful to ask students who are working with Indigenous clients to reflect on their experience within the class setting. These discussions arise in an informal way currently in morning tutorials in which larger questions about the fairness of the legal system arise. Frequently students are confronted with the huge difficulties which Indigenous clients face, health problems, lack of education, family obligations and the ways in which this makes it more difficult to claim legal rights or pursue legal remedies. These issues haven’t been teased out more formally but rather arisen in a more informal way and in individual supervision with clinical teachers.

Another shift in the last one to two years is the experience of non-Indigenous students working closely with Indigenous students enrolled in the clinical courses. As the clinical experience encourages team work, and close working relationships, this again provides an opportunity for students to develop relationships and links which they may not have previously. Hopefully this contributes to breaking down stereotypes. Generally for Indigenous students to have reached final year of law they are high achievers in their communities who are articulate, committed, active and hard-working. This contradicts stereotypes of Indigenous people as victims who are unable to deal with their communities problems.

Ideally these classes should be co-taught with an Indigenous teacher to ensure a range of inputs and perspectives. Currently none of the clinical teachers are Indigenous thus do not bring this perspective to their work. They bring a range of cultural backgrounds and other forms of diversity to their work. These issues could all be explored more fully as well as the diversity of the student body.

Another broad reason for teaching personal identification issues in lawyering courses is that lawyers, as people who deal with the public professionally, should demonstrate leadership and set examples of tolerance and pluralism. The importance of being non-judgemental in our work is discussed from induction, through individual case discussions, interviews and morning tutorials.

A presentation by an Aboriginal female Associate Professor subverts the roles and expectations of students even if they are unarticulated. To point out to students that there is a race issue in Australia disturbs people. If you are in the dominant cultural group it is often easy not to see the race issue. It would be easier to have a ‘checklist of simplistic cultural stereotypes’ on ‘how to deal with Indigenous clients and communities’ than a discussion of racism in Australian society. It may be more useful and also more challenging for us as teachers to encourage students to interrogate their cultural and other identities. The class asks them to be aware of their own ethnicity and race. We need to help them recognise what they don’t know rather than use stereotypical lists.

The class uses a narrative style of teaching. Students are not accustomed to learning in a university setting, without ‘academic-speak’. Using everyday speech rather than an academic style means students may value the content less.

The class has much scope to discuss culture/race as formative of identity within a range of experiences. A broader discussion about culture as one of the identities we all have would be a useful and insight provoking discussion.

Supporting Indigenous students is however just one part of the response to the needs of Indigenous students. The other is developing and modifying curriculum in all courses to take account of Indigenous perspectives and for all students to be more inclusive of Indigenous points of view and be challenged to think more deeply about culture and race.

Students need to hear Indigenous voices directly. Challenging non-Indigenous students about where Indigenous communities and clients are within society and how to work with them has proven difficult. This involves challenging the ways in which non-Indigenous students expect to be taught about law and preparing them to hear stories of entrenched injustice and racism as an issue in current Australia.


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