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Anthony, Thalia --- "Embedding Specific Graduate Attributes Within Subjects: Cultural Awarness and Indigenous Perspectives" [2011] UTSLRS 4; (2011) Excellence and Innovation in legal education (ed.) Sally Kift

Last Updated: 10 April 2017

EMBEDDING SPECIFIC GRADUATE ATTRIBUTES WITHIN SUBJECTS: CULTURAL AWARENESS AND INDIGENOUS PERSPECTIVES


Thalia Anthony*

1. Introduction: the significance of cultural awareness as a graduate attribute

1.1 In formulating their graduate attribute statements, a number of law faculties have included cultural awareness or understanding cultural diversity.[1] For those faculties that have omitted a dedicated ‘cultural’ attribute, it is nonetheless relevant to other attributes such as critical and analytic thinking and developing a sense of social justice.[2] Graduate attributes that facilitate the development of ‘robust intellectual capacities’[3] to challenge the dominant paradigm must be welcomed not only in law graduates who enter legal practice but in the substantial portion – more than a third – of law students will not go on to practice law.[4] In a culturally diverse society such as Australia, understanding how culture can affect human communications and relationships is an important attribute for all graduates.

1.2 Demonstrating how cultural awareness can create opportunities for students to analyse the law and legal structures critically, the graduate attribute of the University of Adelaide Law Faculty specifies, ‘A Law graduate will have an understanding of social and cultural diversity, and sensitivity of the operation of the law and legal structures in that context’.[5] Some law schools go on to specify Indigenous cultural awareness as an attribute, such as the University of Western Sydney Law Faculty which seeks to engender in students an understanding of ‘the interrelationship between, and the impact of, Australian and International law on Indigenous Australian peoples and their laws’. In essence, cultural awareness involves learning about Indigenous laws, how the legal system perpetuates cultural disadvantage and how it can be a source of empowerment.

1.3 The pedagogical value of striving to imbue students with an understanding of cultural diversity is that it encourages deep learning by ‘confronting and eradicating students’ misconceptions about the neutrality of the legal system.[6] Craig McInnes states that student engagement occurs where ‘students actively connect to the subject matter’.[7] Teachers should seek to do this in a way that does not make ‘students feel uncomfortable and therefore alienated to the extent that they tune out’.[8] Rather, as Larissa Behrendt suggests, issues of cultural diversity should be linked ‘to students’ broader understanding of how society operates’ and to reveal that the law is not ‘black and white’ but ‘a reflection of the diversity of the society in which we live’.[9] This requires addressing culture (including Anglo-Saxon culture) in the classroom as the representation of multiple and sometimes competing voices, rather than a homogenous ‘other’.

1.4 Greater incorporation of culturally appropriate content in Law will facilitate the engagement of students from cultural minorities. Given the increasing diversity of the law student cohort,[10] and ongoing endeavours to broaden the student demographic through ‘social inclusion’,[11] providing an education that includes groups that were formerly excluded can lift retention rates for those groups.[12] It builds on their ‘prior knowledge’[13] and includes them by not assuming the dominant legal paradigm to be normal or exclusive.[14] The 2008 Bradley Review into Higher Education identified the need for curricula to respond to and engage disadvantaged groups who are under-represented in universities.[15] This point has been made especially in relation to Indigenous students, by the Bradley Review[16] and many others before.[17] Behrendt notes that an education that encourages diversity

allows any member of a group that is considered “other” to find something within the curriculum that will connect to their point of view. It will give confidence to students, historically on the periphery of the classroom, confidence that their perspective is valid, valuable and important.[18]

1.5 In order to engage Indigenous students, Heather Douglas points to the need for law curricula to incorporate Indigenous issues in ‘all existing subjects [to] reflect the fact of Indigenous people in Australia.’[19] By segregating them into an elective, Indigenous issues are perceived as marginal and ‘disassociated from the remainder of students’ studies’.[20]

1.6 Moreover, through developing an appreciation of cultural diversity students are better equipped to work in culturally diverse environments and facilitate access to justice for marginalised groups. Studies in the United States have highlighted the importance of cultural awareness for communicating with clients from non-Anglo Saxon backgrounds.[21] Skills relating to cultural awareness are reflected in the University of Technology Sydney’s Faculty of Law graduate attributes, including ability to:

1.7 This chapter is primarily concerned with ways to develop the attribute of cultural awareness through the teaching of Indigenous issues within existing curricula requirements, including electives. Given the unique place of Indigenous laws in Australian history and contemporary society, which the following section discusses, teaching Indigenous perspectives provides unique insights into how cultural diversity, dominance and dispossession operate through legal institutions. Teaching Indigenous issues goes hand in hand with the teaching of critical legal approaches and serves as a segue to understanding how other marginalised cultures fit in the Anglo-Australian legal system. Based on the experiences of teachers in various doctrinal areas, it addresses methods for developing class materials and formats that integrate Indigenous perspectives.

2. Why Indigenous issues?

2.1 The graduate attribute of cultural awareness can, and should, be developed with reference to Indigenous issues, laws and perspectives in the law curricula.[23] This provides another level to the teaching of cultural issues in law that often assumes “unity in diversity” – predicated on understanding how different cultures experience the law and the legal system and how they can be better accommodated. Certainly, Indigenous Australians experience the Anglo-Australian legal system differently,[24] but teaching cultural diversity does not explicate the unique causes and remedies for Indigenous people. Stratton and Ang note that concepts of ‘unity-in-diversity’ erase ‘the memory of colonial dispossession, genocide and cultural loss and its continued impact on Aboriginal life’.[25] Legal principles based on equality do not recognise Indigenous laws that pre-existed the dominant Anglo-Australian legal system. It provides students with an inaccurate impression that Indigenous people, laws and cultures can be dealt with solely through the universal application of the common law.

2.2 Teaching Indigenous issues requires special attention to:

2.3 As early as 1991, the Report of the Royal Commission into Aboriginal Deaths in Custody recommended that teaching students ‘to understand that Australia has an Aboriginal history and Aboriginal viewpoints on social, cultural and historical matters’ should be included in curricula.[26] These viewpoints need to be matched with an interdisciplinary understanding of the historical process of Indigenous dispossession that involves, but is not exclusive to, legal institutions.[27] Teaching legal history should appreciate Indigenous viewpoints in relation to colonisation rather than reproducing European accounts. Indeed, legal institutions and principles need to be linked to their colonial foundations. This requires, according to Banks et al, that ‘students understand that knowledge is socially constructed’ and reflects contemporary social, political and economic contexts.[28]

2.4 Another reason why Indigenous issues require special attention is that Indigenous people receive differential treatment vis-à-vis all other Australian cultures. This is, on the one hand, by way of discrimination. For example, the Northern Territory National Emergency Response Act 2007 (Cth) exempts Indigenous people from the Racial Discrimination Act 1975 (Cth) in order to remove their equal rights to social security and to forcibly lease their land to the government. Indigenous people are also overrepresented in police custody and prisons.[29] But on the other hand, the legal system and legislature through Indigenous rights movements have afforded Indigenous people recognition of some of their rights, such as limited land rights.

2.5 Teaching Indigenous issues from a critical perspective plays a crucial role in the reconciliation process. Rhonda Craven despairs that despite numerous Government reports ‘over a period of 20 years only a few Australian universities have recently introduced core Indigenous Australian Studies as a component of their curricula’.[30] Teaching Indigenous perspectives not only helps develop an awareness of the issues confronting Indigenous peoples in Australia, but is a step in itself towards Indigenous justice by developing an inclusive curricula that recognises the existence of Indigenous peoples and laws. Douglas, relying on Bourdieu and Passeron’s schema, claims that the process of education uses ‘exclusion and censorship to silence the dominated class’.[31] Overcoming this exclusion is part of reconciliation. It also helps to ‘close the gap’ between Indigenous and non-Indigenous world views by developing in non-Indigenous students an appreciation of Indigenous legal systems.

2.6 Notwithstanding the need to formulate specific strategies for incorporating Indigenous perspectives into Law, which this chapter addresses, the principles on which cultural awareness is premised can help inform us how to teach Indigenous justice issues. Equally, Indigenous justice issues can help illustrate to students how other cultural minorities may be better accommodated by the law and legal institutions. The reciprocal interaction model between teacher and students (rather than the top-down model) is advocated for teaching Indigenous issues because, as Douglas suggests, it reflects the operation of Indigenous law.[32] The following section will address some of the challenges in teaching Indigenous legal issues, including managing classroom dynamics to instil some of the values that the graduate attribute of cultural awareness seeks to instil.

3. Considerations and challenges for embedding Indigenous perspectives

3.1 There is no ‘one size fits all’ model for embedding Indigenous perspectives into law. It requires an interrogation of the current orthodoxy in teaching law and how to transform this into an alternative cultural paradigm. This task was taken up in 2005 in a special edition of the Indigenous Law Bulletin entitled ‘Racism in Legal Education’.[33] The edition brought together Indigenous and non-Indigenous Law lecturers and scholars to reflect on their teaching and learning experiences in Law and theorise how Indigenous people and legal issues were excluded and how to develop frameworks for their inclusion.[34] Tanganekald and Meintangk woman, Irene Watson, discussed the systemic and transsystemic models of Indigenous integration.[35] These models will shape the section below on strategies for teaching Indigenous issues within core and elective subjects. Systemic models are based on teaching within the Anglo-Australian legal system, including within the core areas of the law as they relate to cases and legislation. Anthony O’Donnell regards this type of approach as teaching intercultural communication, case studies and law’s tolerance through anti-discrimination legislation.[36] Transsystemic pedagogy involves teaching Indigenous legal traditions, systems and knowledges in their own right.

3.2 While teaching cases and legislation is useful and necessary, there is a need to move into a ‘broader pedagogy’ in which ‘relations of power and racial identity become paramount as part of a language of critique and possibility’.[37] This is why Watson makes a case for the transsystemic approach. Watson argues that law students’ world view must be challenged through resisting dominant systems of knowledge and teaching the legitimacy of Indigenous systems.[38] Indigenous legal systems should be taught as separate to, but coexisting with, the Anglo-Australian system, and legitimate in their own right.[39] Kristen Anker refers to the transsystemic teaching method as based on ‘broad themes or issues rather than specific doctrine’.[40] This will enable a comparison of Indigenous and non-Indigenous understandings of the law theme, such as ‘land’, rather than assume one system such as ‘torrens title’.

3.3 The teaching of Indigenous perspectives should ideally be taught by Indigenous academics. However, all academics, Indigenous and non-Indigenous, have a responsibility to incorporate Indigenous content and draw on Indigenous perspectives. The subject-specific strategies discussed below were mainly devised by non-Indigenous teachers who have worked with Indigenous scholars. Often it will be necessary to bring in Indigenous guest speakers to discuss Indigenous perspectives on legal issues. Drawing on a range of speakers has the benefit of projecting a multiplicity of Indigenous voices from different standpoints. This helps enforce the message that Indigeneity is not a fixed concept. However in small group teaching where it may not be feasible to cover all classes with guest speakers, Indigenous perspectives can be communicated through field work, DVD materials and using written Indigenous sources in class materials (discussed below).

3.4 There can be a tendency to teach about Indigenous culture and laws as homogenous, static and unchanging. Teaching about Indigenous peoples and their lifestyles as though they were rarefied enforces tokenism and stereotyping. There are important differences among Indigenous cultures in Australia and within Indigenous cultures according to class, gender, age and geography.[41] While there are commonalities, including a history of colonisation, there is heterogeneity within and across Indigenous cultures. It is impossible to teach all Indigenous laws, and it is better for students to think broadly about Indigenous Legal Tradition. DVD footage is one way to include various Indigenous voices.[42] Teaching Indigenous issues should also engage, as Behrendt urges, Aboriginal women’s voices to project their unique experiences.[43] The complexities of culture need to be drawn on to avoid the black and white dichotomies that are taught within the dominant paradigm. Moreover, teaching the diversity of Indigenous experiences requires avoiding attributing Indigenous people a conventional status of disadvantaged and dependant.[44] Indigenous people have shown themselves to be survivors, ongoing custodians of their laws and articulate advocates of their rights.

3.5 Ultimately, teaching should aim for students to accept that culture is not something that can be definitively ‘known’ – which has been an ambition of colonial teachings of Indigenous peoples.[45] Sue Green and Eileen Baldry have argued that decolonisation occurs through learning to think critically and becoming self-aware about the ‘colonised mindset’, to understand forms of injustice and engage with Indigenous communities, identities, ways of being and doing ‘to develop a deeper sense of social justice’.[46] Rather than teaching stereotypes, we should aim to get students to a point where they are confident knowing what they don’t know.[47] O’Donnell argues that rather than teaching culture as ‘difference’, students should be taught ‘to investigate how the dominant Australian socio-cultural and economic system impacts on the life chances, not the life styles, of non-English speaking background, Aboriginal and Islander Australians’.[48] This would enable students to identify racism and challenge it in their thinking and practice.

3.6 The development of curricula on embedding Indigenous perspectives should be matched with strategies to develop a classroom environment that promotes cultural diversity. This requires, first, engaging minority groups and managing students from Anglo-Saxon backgrounds who may dominate the class dynamic to the exclusion of others.[49] Second, a ‘reciprocal interaction model’ between the student and teacher is regarded as engaging students from minority backgrounds generally,[50] but has particular significance for Indigenous students who regard law as part of a holistic series of relationships.[51] Third, the reciprocal model would work well in a class that is attempting to move away from Western assumptions in learning. Finally, moving away from a ‘teacher-centred pedagogical model’ and towards a ‘learning-centred’ approach, as discussed by Sally Kift, helps students generally learn how to conduct themselves and ‘construct their own understandings’,[52] including reflecting ‘upon the values of culture’.[53]

3.7 Having set out a number of broad considerations in incorporating Indigenous perspectives into law degrees, this chapter will consider particular strategies across subjects for integration by drawing on the works of scholars who specialise in a range of doctrinal and theoretical legal fields. In developing these strategies, the scholars have sought to teach Indigenous issues within the demanding requirements of the Priestley 11 subjects.[54] A key concern among law teachers in taking on any form of curricula renewal is that there is already ‘too much’ to teach in the core law subjects.[55] To address this concern, the core content needs to be refashioned rather than supplemented – an approach that will necessarily take place as curricula increasingly responds to graduate attributes. However, Kift points to the eventual need rethink the Priestley 11 in line with an ‘integrative approach [that goes] beyond the short-term content gain of traditional, technical, transmission models’.[56] For the time being, embedding Indigenous perspectives needs to be run in tandem with the teaching of basic legal principles. More ambitious approaches are taken to teaching Indigenous perspectives outside of these principles in electives taught by academics overseas.

4. Strategies for Indigenous incorporation into Law curricula and teaching

4.1 Embedding Indigenous issues in the curricula requires specialised knowledge in the Priestley 11 components for each subject. To bring together such knowledge, in July 2008, the University of Sydney Law Faculty convened a conference on teaching Indigenous issues, entitled The Future of Indigenous Legal Studies in Australasian Law Schools: Incorporating Indigenous issues in law curricula (hereafter ‘the Sydney conference’). This conference brought together over 100 academics from 23 law faculties across Australia and New Zealand who teach in a range of law subjects and are committed to innovation in their teaching. Papers from the Sydney conference were then published inter alia in the Legal Education Review (2009) Vol. 19(2) and in a forthcoming edition of Ngiya: talk the law.[57] This section draws on the strategies for Indigenous incorporation into the teaching content and format for a variety of law subjects that have been raised in these papers and in other sources. Some of the major themes are:

4.2 There are two broad approaches to integrating Indigenous issues and perspectives in Law subjects. The first approach is a systemic approach, to work within the Priestley 11 by teaching a core area of the law in a way that appreciates the significance of Australia’s colonial legacy, Indigenous disadvantage within the particular legal area and the scope for Indigenous rights. On a specific level, it requires drawing on cases and legislation that involve Indigenous issues (or have a specific impact for Indigenous people). More broadly, the theoretical and historical context underpinning the legal area is discussed to reveal how the knowledge is socially constructed. These could be regarded as ‘systemic approaches’ to incorporating Indigenous issues into law subjects, for which the Priestley 11 components are silent on.[58] Nonetheless, while the Priestley 11 continue to dominate the Law curricula, it is necessary for teachers to take seriously how they may be adapted to cultivate an understanding of cultural diversity.

4.3 The second approach, and this is mainly adopted outside of Australia in the core units or in Australian elective subjects, is the transsystemic approach. Students are exposed to Indigenous laws and Indigenous legal systems.[59] Indigenous perspectives have a vital part to play in this method of teaching because it is not about how the Anglo-common law system receives Indigenous laws or peoples, but addressing Indigeneity on its own terms. As referred to above, this does not mean that the subject can only be run by an Indigenous scholar, although that would be highly desirable. However, it is important to engage Indigenous people in formulating and delivering the subject. This can also encompass clinical programs or visits to Indigenous communities that involve working for Indigenous peoples and learning about their understandings of law.


Systemic approaches

Foundations of Law

4.4 Introductory law subjects provide a unique and timely opportunity to expose Law students to Indigenous laws and legal systems and the role of the Anglo-Australian legal system in dispossession and recognition of Indigenous rights. Foundations subjects commonly include topics that are a natural fit with the teaching of Indigenous perspectives, including jurisprudence, legal history, legal pluralism, Aboriginal customary laws and access to justice.[60] These topics variously arise in leading introductory law textbooks, including Connecting with Law, Tradition and Change in Australian Law and Laying Down the Law.[61] Connecting with Law introduces Indigenous laws before it discusses the common law to disabuse students of the notion that the common law is intrinsic to law. In considering legal pluralism, the resilience of Indigenous laws alongside the common law is reviewed. Such content often surprises students who live in urban environments and barely know about the existence of Indigenous communities not to mention coherent laws. In teaching this topic, DVDs such as Kanyini and Bush Law can be screened to help students visualise contemporary issues in Indigenous law.[62] It is also useful to remind students that Indigenous laws have different significance for men and women, as does their experience with colonisation.[63]

4.5 The chapter in Connecting with Law on Legal History opens with a discussion on Indigenous history, rather than orthodox beginnings in British history and its attendant narratives of the Magna Carta, feudal writs, etc. It also interrogates the flawed legal rationale for colonisation in Australia and the colonial laws that allowed Indigenous dispossession – confronting students with the non-neutrality of the legal system. The DVD First Australians demonstrates the brutal process of colonisation and the establishment of British law as the exclusive legal domain.[64] In order to critically evaluate these issues, introductory law classes are most effectively set in small groups in which they are encouraged to develop curiosity and to detach judging the problem from judging the person. This enables students to discuss and debate issues rather than taught to think through imposition.

4.6 Conventional aspects of foundations subjects also provide opportunities for understanding Indigenous issues, including in statutory interpretation and case analysis. In teaching statutory interpretation, Laying Down the Law previously included the case of Hart v Rankin [1979] WAR 144 where an Aboriginal man sought to challenge his conviction for driving without a licence while his car was being towed. He argued that under the Road Traffic Act 1974 (WA) he was not driving a car because he was not in control of the vehicle. The Supreme Court of Western Australia upheld the conviction and handed down a 12 month sentence. This case gives students the opportunity to question the limited statutory interpretation and question why Aboriginal people get such long sentences for minor crimes. Students may be referred to the commonality of convicting Aboriginal people for minor driving crimes.[65]

4.7 For case analysis, native title cases provide an unmatched insight into the selective application of stare decisis. They also show the reasoning of the higher courts, including minority and majority judgments. In preparing for class, students should be asked to read the native title cases before, after and including Mabo v Queensland (No. 2) (1992) 175 CLR 1 in order to demonstrate how judicial reasoning can shift over time. If there is time, it is worth while discussing the native title legislation – especially the so-called 10 Point Plan[66] – that sought to constrain certain rights afforded to native title claimants in the case law. This reveals the interaction between the legislature and judiciary. The University of Sydney Law Faculty has had four seminars and a lecture on native title, including by Indigenous academics such as Kevin Williams from Newcastle University. The first seminar would be an analysis of Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 and its interpretation of native title. The following seminar would involve a screening DVD Mabo: Life of an Island Man to give students an overview of the background issues and perspectives behind the Mabo case, including by Eddie Mabo’s family and other islanders on Mer in the Torres Strait. The third seminar would involve a discussion of the High Court’s reasoning in Mabo, followed by an analysis of interpretations of Mabo in the fourth seminar, especially Wik Peoples v Queensland (1996) 187 CLR 1. Students should be encouraged to think critically about the gains that native title afforded to Indigenous people, and the seesawing of outcomes in the decisions since.[67]

4.8 In relation to teaching law reform and the pluralist capabilities of the Australian legal system, students can be directed to law reform commission reports, with the most comprehensive handed down by the ALRC.[68] There is also a discussion in Connecting with Law of how an Aboriginal Provisional Government may coexist with Australian governments and laws. The coexistence would likely require a treaty with Aboriginal peoples to recognise the alternative government, which in turn requires constitutional recognition.[69] An exercise to help students visualise the practicality of legal pluralism would be a role-play where students set up two governments and have to deal with the conflicts that they will face when negotiating a piece of law such as a law to allow Indigenous people to hunt wildlife in a national park. Students would be asked to consider the political and technical issues in the legislation, including questions of who is Indigenous?, which wildlife?, and how does this affect the ecosystem and Indigenous sustenance and laws respectively?


Criminal Law and Procedure

4.9 Teaching of criminal law and procedure can start with the premise that the Anglo-Australian legal system is not the only operating legal system. Indeed the whole reason that criminal actions are brought by the State against the offender and not by the victim is a creature of English legal history, and such a distinction between civil and criminal procedure does not exist in Indigenous legal systems.[70] Students may be shown the short film Bush Law (discussed above) on traditional punishment and laws and discuss how they can be accommodated in criminal law or, inversely, contribute to the over-representation of Indigenous people in the criminal justice system where they are not policed. In the subject of Criminal Procedure and Criminal Law at the University of Sydney, convened by Mark Findlay, there was an early discussion of the 1836 case of Murrell (1836 Full NSWSC) in which the NSW Supreme Court did not allow the Indigenous community to try and punish an Aboriginal defendant who committed a crime against an Aboriginal man in his community on the basis of terra nullius. This is contrasted with the 1841 case of Bonjon in which it was determined that because Aboriginal laws pre-existed colonisation, they should prevail where Aboriginal offenders committed crimes in their communities. Ultimately Murrell prevailed in the case law, but students should consider the relative merits of the reasoning of each judgment.

4.10 In relation to bail, an analysis of the case of Anthony [2004] NTSC 5; (2004) 142 A Crim R 440 in which a man from Lajamanu in the Northern Territory sought to be let out on bail to be punished by his people is relevant. This can feed into a discussion of the considerations under the relevant bail legislation. Questions for students include, ‘what do the interests of the community mean?’; ‘who is considered a bail risk?’; ‘what crimes are more likely to be exempted from bail?’. These answers may then be applied to the facts in Anthony. In teaching policing, a discussion of the connection between policing particular crimes and the over-representation of Indigenous offenders in the criminal justice system should be explored. Students read the relevant police powers legislation with a view to considering the role of discretion, including how this may be used to target or to protect Indigenous people (such as through special rights for questioning and taking statements from Indigenous people). The selective enforcement of minor crimes such as Offensive Language and Public Order Offences can be taught with reference to a variety of scenarios in which students decide whether they are offensive or represent harmless activities. This reveals the subjective nature of the crimes and use of police discretion.

4.11 A range of Indigenous issues can be analysed in criminal sentencing classes. Sentencing principles and aggravating and mitigating factors can be taught with regard to judicial decisions on accounting for Indigenous culture, traditional punishment and socio-economic disadvantage and alcoholism.[71] Behrendt warns that teaching about culture as an explanation for a crime assumes that Indigenous culture is violent.[72] O’Donnell also cautions against teaching culture in this context as leading to stereotyping.[73] In these respects, teaching needs to emphasise that culture is not a defence but a context for mitigating culpability on the grounds that he/she acted according to cultural expectations and is assessed on a case by case basis rather than providing a blanket cultural defence. This will elucidate issues of discretion and culpabilty factors in sentencing. Students may be referred to the case of Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 in which an Aboriginal man was prosecuted for hunting a bush turkey, which he claimed was within his cultural rights.

4.12 In the substantive law teaching, Indigenous issues are primarily introduced in relation to provocation, which reduces a conviction from murder to (voluntary) manslaughter. Provocation raises the issue of whether the loss of self-control leading to the homocide can be assessed according to cultural behaviour. Indigenous issues could be considered in light of McHugh J’s minority judgment in Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58. One such case involving an Indigenous defendant was R v Mungatopi (Unreported, Supreme Court of the Northern Territory, 14 August 1990). But students should be reminded that the cultural response may not be generalised, returning to the point made above that teaching of culture should avoid fixed, static notions.

Evidence

4.13 Evidence provides opportunities to look at how the law impacts on marginalised groups, including Indigenous people. In an article published in 2010, Katherine Biber outlines how the rules of evidence impact on Indigenous people in both instrumental and epistemological ways.[74] Instrumentally, Indigenous people appear in court as witnesses who are exposed to a culture that is at odds with their ways of understanding. Biber argues that teaching about Indigenous issues allows students to interrogate how the court processes operate. Epistemologically, Anglo-courts find knowledge or prove truths that are based on assumptions that may not exist in Indigenous cultures. Biber points to ‘hearsay’ evidence which is excluded in evidence law based on the long-standing Anglophone cultural assumptions about the unreliability of such communications, whereas in Indigenous society it is the dominant form of transmitting knowledge.

4.14 There is also a challenge of proving native title claims in a system which privileges documentary evidence. In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) Lindgren J referred to the challenge for the claimants in being expected to prove the Indigenous laws and customs were in place at the date of sovereignty (1829 in WA) when foreigners did not reach the claim area until the gold rush of the 1890s and so the first written record of there being Indigenous people there was at the end of the 19th century. This raises insurmountable difficulties for Indigenous people to prove their position in 1829.

Property Law

4.15 Conventional teaching of Real Property Law excludes Indigenous perspectives on land and sometimes even the Anglo-Australian law of native title. Nicole Graham criticises a teaching approach that conveys Indigenous land laws and perspectives as simply another part of traditional property law categories, rather than different and challenging to those categories.[75] Furthermore, native title, as an Anglo-Australian form of property recognition needs to be taught from a critical perspective. The teaching of statutory land rights as an estate in fee simple, such as under the Aboriginal Land Rights Act 1983 (NSW) s9, helps students distinguish native title as a burden on Crown title from a fee simple right. There are problems with the common law particularising native title rights, which should be regarded as an integrated system of rights. There are many limitations to establishing proof of native title, as mentioned above. Watson cautions against teaching an illusion of Anglo-legal recognition – especially after Mabo – where a dichotomy is set up that before there was injustice and now we have justice.[76]

4.16 Nonetheless, Graham acknowledges that native title could be taught to introduce the teaching core principles such as leases through an analysis of Wik.[77] Graham also raises the importance of language in teaching property. Words such as Australian property fail to indicate its Anglo-Australian presumption and preferable terms are Indigenous-Australian property and Anglo-Australian property. This means that the language of property does not inferiorise Indigenous laws and neutralise the dominance of Anglo-Australian property law.[78]


Equity

4.17 There are a range of areas of Equity where Indigenous issues can be taught,[79] including in relation to fiduciary duties as they are owed by the state to stolen children[80] and in relation to cultural knowledge.[81] In a forthcoming article, Prue Vines[82] notes that fiduciary issues as they apply to Indigenous rights can be explored in Mabo (No 2).[83] She notes that breach of confidence is another area of equity which allows exploration of Indigenous issues. For example, Foster v Mountford & Rigby (1976) 14 ALR 71 was a case where an anthropologist breached of confidence by publishing secret customary law matters. Vines also refers to equity issues arising from the treatment of Aboriginal remains and the repatriation of those remains from museums in Australia and around the world.[84] Questions students may be encouraged to think about in light of the case law,[85] either in class or for assessment purposes, include:[86]


Tort Law

4.18 Torts cases provide several opportunities for teaching Indigenous issues, especially in relation to the wrongs and remedies for the Stolen Generations. The principles of negligence, damages, false imprisonment and other intentional torts can be explored through Stolen Generation cases. A key case in which the claimant proved the tort of negligence and damages were awarded is State of South Australia v Lampard-Trevorrow [2010] SASC 56 (hereafter ‘Lampard-Trevorrow’). This case lucidly illustrates the application of the laws of duty of care, breach, causation and damages. Teachers may refer back to Lampard-Trevorrow throughout the subject in order to highlight these elements of the law of negligence. In teaching the elements of false imprisonment, its positive determination in Trevorrow v State of South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136 (which is one of the few Australian higher court cases in which the principles of false imprisonment are discussed) could be compared with Lampard-Trevorrow in which false imprisonment was overturned because the court viewed that a child cannot comprehend being imprisoned and lacks the choice for liberty nonetheless. Students may be asked what interests the tort of false imprisonment serves to protect and whether Lampard-Trevorrow provides consideration of these interests.

4.19 For a more in depth consideration, perhaps in the form of an assignment, students could be asked to consider the different reasoning for the tort of negligence between Lampard-Trevorrow and Cubillo and Gunner v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 – an earlier Stolen Generations case in which the litigants were unsuccessful. This may help students appreciate that the wording of the Aboriginal protection laws and practices of the Department of Native Affairs were crucial for a successful remedy, and Lampard-Trevorrow does not automatically guarantee a right of damages to Stolen Generations litigants. In many instances the laws and practices of Aboriginal child removal were framed in such a way as to preclude a remedy. This gives students insights into how the legal system perpetuates its own wrongdoing against Indigenous people.

Corporations Law

4.20 The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (‘CATSI Act’) offers unique opportunities to teach Corporations Law beyond the Corporations Act 2001 (Cth). Given that the CATSI Act replicates most of the Corporations Act, it allows for a teaching of the Priestley requirements, including directors’ duties, requirements for acting in the best interests of a corporation and remedies for oppression. At the same time, it introduces students to the role of Indigenous corporations in Indigenous communities, including in relation to native title.[89] Bede Harris claims that an effective way to incorporate Indigenous issues without adding to time constraints in Corporations is to allocate students to small groups to operate hypothetical Indigenous corporations based on a series of factual circumstances.[90]

4.21 These methods complement the teaching literature in Corporations Law that moves towards a contextual pedagogy which emphasises the role of the corporation in society.[91] Teaching about Indigenous corporations also exposes students to the different business structures they may confront if they go into practice and disabuses them of a one-model-fits-all approach. Harris suggests that a useful teaching aid is to invite a representative from the Indigenous corporations’ regulator – the Office of the Registrar of Indigenous Corporations – to speak to the class about the types of issues incorporators and their legal advisors need to bear in mind.

Constitutional Law

4.22 It may not be immediately apparent how to teach Indigenous issues in Constitutional Law given the silence on Indigenous rights in the Australian Constitution. However, the work by Melissa Castan points to a range of avenues for engaging students in Indigenous legal issues.[92] To begin, the underpinnings of Constitutional Law should be taught with reference to the assumption of terra nullius, which reveals to students the weak basis for Australian sovereignty and Constitutional Law. Students may then consider how the rejection of terra nullius in Mabo (No 2) at 41-42 affects the legitimacy of the Constitution. Castan also suggests that the foundations of Constitutional Law be taught in the context of the late 1800s when Indigenous people were perceived as a “dying race” and no reliable population count was kept.[93]

4.23 At Federation, there were only two references to the Indigenous people in the Constitution: s 51(xxvi) provided that the Commonwealth had power to make laws with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’,[94] and s 127, stated: ‘In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’. Castan claims that while s 51(xxvi) may have been an attempt for the States to maintain control over what they regarded as a state issue, s 127 ‘seemed based on the assumption that some Indigenous people were so inferior that they were not to expect the same level of government expenditure or political participatory rights as non-Indigenous Australians’.[95] Students should be invited to think critically about the exclusions and inclusions of Indigenous references in the Constitution.

4.24 A considerable part of the Constitutional Law curriculum is the Commonwealth heads of power, which includes s 51(xxvi), referred to as the Races Power. This power was amended in 1967 to give the Commonwealth power to legislate in relation to Indigenous peoples. Judicial interpretations of this amendment are a notable segue into the teaching of Indigenous issues in Constitutional Law. The historical setting for the amendment was the Indigenous rights campaign leading up to the 1967 referendum, which was overwhelmingly approved.[96] Castan asserts that students should be reminded that the Races Power does not guarantee rights, which is still lacking in the Constitution.[97] Given that there is no definitive judicial resolution on the scope of the Races Power, ‘this makes it an issue an interesting one for students investigating the different interpretive techniques or styles of constitutional reasoning in the High Court’.[98] A key issue is whether the Races Power should be used to the benefit or detriment of the racial group, including Indigenous people. The main case is Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, in which the majority decided that the Races Power is not only to be used for the advancement of Aboriginal peoples. Students may be tasked with amending the Constitution to provide greater guarantees for the rights of Indigenous people in an assessment or group work.[99] Another opportunity to teach Indigenous issues is in relation to s 51(xxxi) of the Constitution, which provides that the Commonwealth acquire property on ‘just terms’. The Northern Territory Intervention laws,[100] which involved the forcible leasing of land held under the Aboriginal Land Rights Act 1976 (Cth), provoked a discussion of s 51(xxxi) in Wurridjal v The Commonwealth of Australia [2009] HCA 2.

Administrative Law

4.25 Administrative Law has great potential for incorporating Indigenous perspectives because it is ‘deeply political – challenging the exercise of government power, and protecting the procedural rights and liberties of individuals subject to the exercise of government power’.[101] Alexander Reilly points to a number of challenges to Ministerial decisions that involve Indigenous rights and demonstrate different Administrative law principles.[102] However, they need to be taught in the broader context of Aboriginal struggles. For example, Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 which modified the presumption that the State Crown is not bound by Commonwealth legislation unless expressly stated to be so bound gives ‘no sense of the extent of the legal struggle to protect Aboriginal land in central Perth, or the role of Administrative law in this struggle’.[103] Another case that engages the historical and political impact of the law on Indigenous peoples and their cultures is Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451. Reilly states that this case can be taught to uncover principles throughout the subject, including as they relate to abuse of discretion at a State and Commonwealth level and the vulnerability of procedural and administrative rights.[104]

4.26 Beyond cases and statutes, students may reflect on how administrative law can provide remedies for governments who operate in a racially oppressive manner. Reilly provides the example in South Africa in the 1980s at the height of resistance to the Apartheid regime, when administrative law remedies were often used to challenge actions of the Apartheid government which targeted the black majority.[105] Hugh Corder developed a dynamic Administrative law course at the time around the struggles for Administrative justice of the black majority in South Africa.[106] Administrative law has not played such a dynamic role in Australia. Reilly notes that ‘despite the more benign role of Administrative law in Australia, its political role could be drawn on to good effect to highlight aspects of Aboriginal law and policy’ and ‘to consider whether it has been an effective means of achieving administrative justice for Aboriginal peoples, and how it could be further developed to advance this cause’. A compensation tribunal for the Stolen Generations may be one avenue for deliberating on this issue in class, including its merits vis-à-vis the courts and how it may provide for procedural fairness.


International law

4.27 Although not a Priestley 11 subject, International Law is compulsory at a number of universities and is increasingly being incorporated into Juris Doctor programs. International Law can demonstrate important Indigenous issues of self-determination and territorial sovereignty. Ben Saul teaches Indigenous issues in private international law to highlight how the recognition of Indigenous customary law can be characterised as a classic conflict of laws issues concerning the choice of substantive law applicable to a particular dispute.[107] Private international law can shed light on the diversity of law systems and institutions, beyond the more typical ‘conflicts’ arising between different national or sub-national (federal) law systems. Saul notes that in public international law Indigenous peoples are central to the historical development of foundational concepts such as acquisition of title to territory, sovereignty, Statehood, colonization and decolonisation, self-determination, legal personality, and treaty-making. An exercise that could highlight treaty-making domestically is to ask students to draft a treaty between the Australian Government and Indigenous people, perhaps starting with the Treaty of Waitangi as an example.

4.28 In addition, Indigenous peoples surface in numerous specialised branches of public international law, including human rights law.[108] Indigenous rights in international law are based on a growing jurisprudence, including the endorsement of the United Nations Declaration on the Rights of Indigenous Peoples’ in 2007. There are also a number of decisions by the United Nations Committee on the Elimination of Racial Discrimination and Human Rights Committee criticising Australia’s Northern Territory Intervention,[109] which reflect how international law has developed human rights mechanisms to keep a check on Indigenous rights.

Transsystemic approaches

4.29 It is possible to introduce transsystemic approaches into the law curriculum by engaging Indigenous perspectives and Indigenous legal frameworks as the primary focus in electives. This section outlines a number of various approaches taken, although most of them are derived from overseas where treaties between Indigenous and non-Indigenous peoples are incorporated into the law, and the teaching of Indigenous legal systems is necessary for an understanding of these treaties. In some overseas universities, particularly in New Zealand and Canada, there are also higher levels of recruitment of Indigenous academics in law faculties who are well placed to teach Indigenous perspectives. Māori academic Carwyn Jones points out that at Auckland University, the teaching of Māori Customary Law forms the substantive part of law content. Students are also taught how the state legal system affects Māori communities and how they can be prepared to work in those communities.[110] The remainder of this section considers particular electives taught through a transsystemic lens.

Indigenous elective: Aboriginal People and the Law (Canada)

4.30 At McGill University’s law faculty in Montreal, Canada, Kirsten Anker developed the subject ‘Aboriginal Peoples and the Law’ by drawing on transsystemic legal knowledge. In developing the subject, she asked were ‘what themes could be used to structure the course in a way that would bridge traditions, and what would we rely on as our legal ‘materials’ or sources of law?’[111] She confronted difficulties in teaching First Nations Jurisprudence because many Indigenous concepts were not translatable into English and ‘aspects of indigenous law are sacred’ and not publicly available.[112] There are also different assumptions, such as common law rules being based on resolving ‘trouble cases’, whereas First Nations laws focusing on ‘peace rather than trouble’.[113] To convey Indigenous perspectives, Anker planned the subject ‘by inviting about ten elders, teachers, lawyers and political leaders (Inuit, First Nations, Maori and Australian Murri) to speak with students’[114] and sought to build relationships with Indigenous communities.[115] The subject began with a thanksgiving prayer, not too dissimilar from ‘welcome to country ceremonies’, that gave thanks to the ancestors and to the flora and fauna and transformed the class to a space with connection to the place and each other.[116]

4.31 ‘Aboriginal Peoples and the Law’ started with a historical overview of Indigenous laws, including the perspectives of an hereditary Mi’kmaq chief who recounted the Mi’kmaq creation story.[117] This story helped to provide an image of Indigenous concepts of land and nomadic movement to be contrasted with Western property title as fixed. The idea of land was analysed through Canadian case law, such as Delgamuukw v British Columbia [1997] 3 S.C.R. 1010, which uncovered Gitxsan stories of their territories and the deep kinship relations between local species and particular clans and contrasted this with European accounts of property as a commodity.[118] Anker, who was originally an Australian scholar, claims that this transsystemic method could be applied to Australian Indigenous People and the Law subjects to unpack common land law concepts, by juxtaposing the cartography in native title claims with ‘indigenous art and song as ‘maps’ of country’.[119]

4.32 In one class, Anker leads a visit to an important site for Kaniekehaka (Mohawk) law and governance, the longhouse at Kahnawake, where a guide teaches the class about the system of governance and attempts to bring it to its violent destruction. Anker emphasises the importance of these visits, and plans to undertake a field trip over a longer period in order to make Indigenous law more concrete to students. She also suggests that participation in an Aboriginal Law Moot would encourage students to think practically about resolving a dispute involving Aboriginal issues. In Canada there are non-competitive inter-varsity negotiation exercises in this vein. These embody the ‘learning by doing approach’ in which guidance is given on how to speak and behave rather than in abstracted propositional rules and principles.[120] This would be compatible with teaching Indigenous legal practice issues.


Indigenous elective: Treaty

4.33 In New Zealand, Māori academic Huia Woods teaches a ‘Treaty of Waitangi’ elective at the Te Wānanga Ture: School of Law at Waikato University, which is a bicultural university. Biculturalism is promoted through forming partnerships with the Māori community, recruiting and supporting Māori students and staff, and creating educational content and assessment on Māori issues at undergraduate and postgraduate levels. Woods’ approach to teaching Treaty is to reconcile Māori and mainstream legal knowledges. She teaches Treaty according to ‘transformative praxis’, which is based on reconciling mainstream culture with Māori rights.[121]

4.34 The subject begins with a historical overview of the Treaty of Waitangi (first signed on 6 February 1840) from Māori, European and theoretical perspectives, but quickly emphasises that the Treaty is a living document and a blueprint for two cultures to live together under different laws. The elective addresses topics such as cultural intellectual property (drawing on Māori and scientific concepts), land rights and the removal of prejudice. The case law and Waitangi Tribunal Reports comprise the substantive Treaty jurisprudence. It then surveys the impact of these laws and Crown action, policy, regulations, legislation and practices on the legal system, health, education, resource management and local government. Finally, students are asked to consider how reforms to the Treaty of Waitangi Act 1975 (NZ) may be drafted.[122]


Comparative Indigenous laws and collaborative teaching

4.35 Margaret Stephenson and her colleagues in universities in Australia, New Zealand, Canada and the United States reveal how they teach a course on International and Comparative Indigenous Rights by engaging a range of international Indigenous perspectives. This course involves video conferencing in ‘real time’ among academics and students from six jurisdictions. Although there are significant challenges in arranging times to teach, it allows for Indigenous perspectives from various systems to be interrogated and opens up possibilities for reimagining the Australian legal system. Given that these countries were all settler-colonies, they are ripe for comparison. Another example of this approach includes a course run by the Dean of Wollongong University, Luke McNamara, which invites academics from Canada, the United States and New Zealand to teach Comparative Indigenous issues and International Law. The academics run the course collectively, discussing the approaches in various jurisdictions according to particular themes such as land, governance, reparations and adherence to international laws on Indigenous rights.

Study tour and clinical placements

4.36 Drawing on an experiential learning model,[123] Julie Cassidy has developed a study tour program for students to visit Indigenous communities. This type of field work goes beyond the skills provided in clinical placements in Indigenous organisations – which include cross-cultural communication.[124] These types of opportunities are provided by the Aurora Internships Program.[125] Field work imparts Indigenous perspectives and makes Indigenous legal issues, such as protection of traditional lands and cultural sites, made ‘real’ for the students through an ‘in country’ experience.[126] Studies show that allowing students to form their own views based on personal experience rather than second hand information ‘can have a very positive impact on students’ cultural and racial attitudes’ and help develop empathy.[127] Cassidy regards the study tour as a means of dispelling myths about Indigenous Australians, such as their primitiveness, remoteness and peaceful dispossession.[128]

4.37 In planning the ‘The Classroom “In Country” project’, Cassidy travelled to South Australia, Northern Territory and Victoria with the support of a teaching grant from the Faculty of Law at Deakin University. It involved meeting with elders to establish the logistics and develop the curricula. The first pilot tour was held in South Australia in 2010. Student numbers were kept small, with a maximum of 18 students, to ensure interaction with Indigenous cultural mentors. The students were enrolled in Property Law and/or Equity and Trusts. For six days they undertook their studies for those units ‘in country’.[129] The Property Law students focused on native title and the Equity and Trusts students focused on the stolen generations and fiduciary duties. Their interim assessments reflected these topics. The tour began in Adelaide, the traditional lands of the Kaurna people – an urban Indigenous community with strong connections to their traditional lands. Students were provided with ‘an overview of the legal issues covered in the course of the study tour’ and had a guest speaker from the South Australian Native Title Services.[130] The second day focused on the history and culture of the Kaurna people. Students visited the Warraparinga Living Cultural Centre where they had an introductory lesson in the Kaurna language and were exposed to Aboriginal music and bush tucker. Kaurna elders discussed the historical impact of European settlement and contemporary issues affecting Indigenous people, including in relation to native title and the stolen generations. Students also visited the National Aboriginal Cultural Centre and Gallery, ‘Tandanya’.

4.38 The tour included a visit to Flinders and Vulkathunha-Gammon Ranges, the traditional lands of the Adnyamathanha people. Over four days the students’ ‘cultural mentor’, Mr Haydyn Bromley, an Adnyamathanha man, told students of ‘traditional ways of life and the dreamtime stories (‘Yura Muda’)’ as they visited ‘important Adnyamathanha cultural sites in both the central and northern Flinders Ranges’.[131] These included Yourambulla Caves where 30,000 year old cave paintings depict native animals, birds and elements of Adnyamathanha traditional ceremony. Rock engravings dating back over 40,000 years at Sacred Canyon also provided students with unique glimpses of their Adnyamathanha and culture. They covered issues such as the ‘impact of European invasion, Aboriginal land rights and co-management of national parks located on traditional Aboriginal lands’.[132] Through the study tour, Cassidy sought to immerse students in ‘Aboriginal culture, history and language’ while exploring ‘Indigenous legal issues such as land rights and stolen generations’ in its ‘real’ context.

5. Assessment

5.1 Assessment of Indigenous issues should include an assessment of the critical and deep thinking skills that teaching cultural issues should foster, rather than simply assessing ‘traditional measures of subject-matter knowledge’.[133] As Kift stresses, ‘What teachers value – what they deem important and essential for students to learn – can be ascertained most directly by what they assess’.[134] For Indigenous issues, this means that the assessment should not assume the exclusivity of the Anglo-Australian common law system by examining a particular doctrine, but rather examining how legal materials ‘articulate problems and solutions on how the different traditions construct a particular vision of the world’.[135] Students may, for example, be assessed on how native title reflects English property concepts, or a comparison of the objectives of Indigenous traditional punishment with the purposes of punishment set out in criminal sentencing legislation and how the two systems may be reconciled.

5.2 In assessing the Treaty subject, Woods avoids a doctrinal approach by not providing the usual fictitious/hypothetical scenario that requires students to apply relevant law and formulate conclusions. Rather, Woods assesses how breaches of the Treaty through the application of legislation and case law have an adverse impact on the Indigenous peoples of New Zealand/Aotearoa.[136] She sets four pieces of formative assessment, involving two research components, an oral presentation and a draft research paper. Feedback to the draft – in written form and during classes – is given to help students develop the paper for its final form in the summative assessment. Feedback allows students to develop deep thinking in relation to issues and because it is also given in class discuss, it allows the development of social skills through collaboration. Oral feedback from the class created ‘an environment where the students learnt from each other as well as from the lecturers’ and recognised the importance of oral tradition of Māori culture’.[137]

5.3 The form of assessment can also go beyond written forms of communication, which assumes the dominant position of Western methodology through the text. Banks et al state that ‘teachers should use multiple culturally sensitive techniques to assess complex cognitive and social skills’.[138] Group work and oral presentations throughout semester is one way to assess these skills. How students conduct themselves in a clinical placement or on a study tour could also form part of an assessment. The assessment that Anker used for Aboriginal People and the Law was a ‘creative project’ that encouraged students to ‘respond to the course in ways other than through the production of academic text’.[139] She states that while some struggled with this, others produced work that ‘played very effectively with the imagery, aesthetics and form of law’.[140] The completed work was exhibited in the McGill Law Faculty foyer at the end of semester.

6. Conclusion

6.1 The incorporation of Indigenous perspectives into the law degree requires a multiplicity of strategies and an ongoing commitment to teaching cultural diversity. This chapter has discussed why it is worth the commitment, including the development of graduate attributes of cultural awareness and critical thinking. Teaching Indigenous perspectives also redresses the role of law faculties and the ‘traditional law curriculum’ in the ‘ongoing failure of the legal system to respond to issues of cultural diversity’.[141] In this way, embedding Indigenous perspectives recognises the importance of legal education for Indigenous justice. The teaching framework needs to address Indigenous issues on a number of levels, including interrogating the colonial basis of the Anglo-Australian legal system; delving into legal remedies for Indigenous people through the doctrinal and practice areas of the Anglo-Australian legal system, and developing transsystemic approaches that convey the nature of Indigenous legal systems and laws from Indigenous perspectives.

6.2 Teaching Indigenous legal issues exposes the Anglo-Australian assumptions behind legal doctrine. It resists the dominant power structures that are enforced by ‘western knowledge systems’ that are bound by ‘written documents, rules and regulations’.[142] However, it also opens up the imagination to different expressions of the law through Indigenous concepts. Indigenous perspectives provide students with an alternative understanding of how law can operate. This, in turn, enables students to turn to issues of how the Anglo-Australian legal system and laws may be reformed to reconciling with Indigenous laws. It also allows an appreciation of the legal avenues for redressing Indigenous dispossession.

6.3 Despite this seemingly unwieldy task, this chapter has introduced practical ways of embedding Indigenous issues into key areas of a Law degree by drawing on the expertise of scholars who teach within the Priestley 11 subject and in specialised electives. They reveal possibilities for exploring Indigenous issues which do not compromise teaching core Law requirements, but in fact enhance the understanding of the operation and consequences of Anglo-Australian legal principles and institutions. Teaching Indigenous issues also improves students’ understanding of social justice issues. Teaching Indigenous issues in Law provides a context for understanding Australia’s legal system and provokes an enquiry into remedies and directions for justice.

6.4 This chapter has demonstrated that the inclusion of Indigenous issues in Law can be achieved through a range of strategies employed by non-Indigenous staff, which can be adopted immediately and over the long-term. However, ultimately, curricula renewal through introducing Indigenous perspectives needs to be matched with increasing Indigenous access to law faculties in order to ‘collapse the monocultural law school’.[143] Overcoming the poor history of recruitment and retention of Indigenous staff and students in law faculties[144] would meant that teaching is not only about Indigenous people, but by and to Indigenous people. Through greater inclusion of Indigenous issues and a more culturally diverse teaching staff, an environment will be created that is not foreign to Indigenous people.[145] It will allow for the genuine inclusion of Indigenous perspectives in the curricula.

[1] See for example, the University of Adelaide Law School, ‘Graduate Attributes’, http://www.law.adelaide.edu.au/degrees/attributes.html; the University of Technology, Sydney, Faculty of Law, ‘Cultural Awareness and Global Outlook’, http://www.law.uts.edu.au/graduate-attributes/attribute9.html
[2] Learning and Teaching Academic Standards Project, Bachelor of Laws, ‘Learning and Teaching Academic Standards Statement’, December 2010, 8-9, http://www.altc.edu.au/system/files/altc_standards.LAW_.110211_rv2.pdf, p 17, TLO 3.
[3] Sally Kift, ‘21st century climate for change: Curriculum design for quality learning engagement in law’ (2008) 18(1/2) Legal Education Review 1, 1.
[4] Council of Australian Law Deans, ‘Legal Education in Australia’, http://www.cald.asn.au/slia/Legal.htm; Also see: John Tarrant, ‘Teaching Time-savvy Law Students’ (2006) 13 James Cook University Law Review 64..

[5] University of Adelaide Law School, note 1 above.
[6] On deep learning, see: John B Biggs, Teaching for quality learning at university: What the student does, 2nd ed, Open University Press, Maidenhead UK, 2003, p 17.
[7] Quoted in Sally Kift, note 3 above, 24
[8] Larissa Behrendt, ‘Womens’ Work: The Inclusion of the Voice of Aboriginal Women’ [1995] LegEdRev 9; (1995) 6(2) Legal Education Review 169, 171.

[9] Behrendt, note 8 above, p 172.
[10] Elizabeth Stevens, Heather Douglas, Bridget Cullen-Mandikos and Rosemary Hunter, ‘Equity, Diversity and Student Engagement in a Law School – A Case Study Approach’ (2006) 16(1/2) Legal Education Review 1, 1.
[11] See Australian Government, ‘Social Inclusion’ http://www.socialinclusion.gov.au/Pages/default.aspx; On funding for students from low socio-economic backgrounds in higher education, see: Hon Julia Gillard MP, Media Release: Funding boost helps low-SES higher education student places, 15 December, 2009, http://www.deewr.gov.au/ministers/gillard/media/releases/pages/article_091215_102745.aspx
[12] See Anthony O’Donnell, ‘Thinking “Culture” in Legal Education’ [1996] LegEdRev 6; (1996) 7(2) Legal Education Review 135, 153; Daniel Lavery, ‘The Participation of Indigenous Australians in Legal Education’ [1993] LegEdRev 8; (1993) 4(1) Legal Education Review 177, 181-182; Carolyn Penfold ‘Indigenous Students’ Perception of Factors Contributing to Successful Law Studies’ [1996] LegEdRev 7; (1996) 7(2) Legal Education Review 155.
[13] Biggs, note 6 above, p 17.

[14] O’Donnell, note 12 above, p 153.
[15] Denise Bradley, Peter Noonan, Helen Nugent and Bill Scales, Review of Australian Higher Education: Final Report, Australian Government, December 2008, xxvi.
[16] Bradley, note 15 above, xxvi.
[17] Stevens et al, note 10 above; O’Donnell, note 12 above; Lavery, note 12 above; Penfold, note 12 above, pp 159-160.

[18] Behrendt, note 8 above, p 172.
[19] Heather Douglas, ‘Indigenous Legal Education: Looking Towards the Future’ [1996] LegEdRev 9; (1996) 7(2) Legal Education Review 225, 250.

[20] O’Donnell, note 12 above, p 138.
[21] Rodney J. Uphoff, James J. Clark and Edward C. Monahan (1997) ‘Preparing the New Law Graduate to Practice Law: A View from the Trenches’ (1997) 65 University of Cincinnati Law Review 381, 396.

[22] University of Technology, Sydney, note 1 above.
[23] The need to include Indigenous issues, laws and perspectives is discussed in: Learning and Teaching Academic Standards Project, note 2 above, pp 8, 13. On the three aspects of Indigenous incorporation, see: Carwyn Jones, ‘Indigenous Legal Issues, Indigenous Perspectives and Indigenous Law in the New Zealand LLB Curriculum’ (2009) 19(1/2) Legal Education Review 257.
[24]Eg in the criminal justice system, see: Alter, Adam (2004) ‘Aborigines and Courtroom Communication: Problems and Solutions’, Australian Human Rights Centre, Working Paper 2004/2.

[25] O’Donnell, note 12 above, p 139, quoting Stratton and Ang.
[26] Elliot Johnston, National Report: Royal Commission into Aboriginal Deaths in Custody, Vol. 1, Australian Government Publishing Service, Canberra, Recommendation 295.
[27] O’Donnell, note 12 above, p 139. The inter-disciplinary approach involves drawing on knowledge and data ‘from the social sciences, historical studies and narratives and resources of community activism’, as well as the ‘disciplines of sociology, history, feminist studies, political science, cultural studies, anthropology and literary studies’: O’Donnell, note 12 above, p 139.
[28] James A. Banks, Peter Cookson, Geneva Gay, Willis D. Hawley, Jacqueline Jordan Irvine, Sonia Nieto, Janet Ward Schofield and Walter G. Stephan, ‘Diversity Within Unity: Essential Principles for Teaching and Learning in a Multicultural Society’ (2001) 83(3) Phi Delta Kappan 196, 198.
[29] Australian Bureau of Statistics, Prisoners in Australia, 2010, Australian Bureau of Statistics, Canberra, 2010.
[30] Rhonda Craven, ‘Teaching the Teachers Indigenous Australian Studies: A National Priority’, in Australian Association for Research in Education: Papers 1997.
[31] Heather Douglas, ‘Towards Indigenisation’[2005] IndigLawB 3; , (2005) 6(8) Indigenous Law Bulletin 12, 14.

[32] Douglas, note 19 above, pp 230-231.

[33] (2005) 6(8) Indigenous Law Bulletin.
[34] See for example, Nicole Watson, ‘Staring into a Mirror without Reflection’ [2005] IndigLawB 1; (2005) 6(8) Indigenous Law Bulletin 4. Other articles focused on how to recruit and retain Indigenous students. For example, Phil Falk, ‘Law School and the Indigenous Student Experience’ [2005] IndigLawB 2; (2005) 6(8) Indigenous Law Bulletin 8; Sean Brennan, Deborah Healey, Jill Hunter, Dani Johnson, Mehera San Roque and Leon Wolff, ‘Legal Education at UNSW: A Work in Progress’ [2005] IndigLawB 7; (2005) 6(8) Indigenous Law Bulletin 26.
[35] Irene Watson, ‘Some Reflections on Teaching Law: Whose law, yours or mine?’ [2005] IndigLawB 6; (2005) 6(8) Indigenous Law Bulletin 23, 24.

[36] O’Donnell, note 12 above, p 136.

[37] O’Donnell, note 12 above, p 136.
[38] Irene Watson, ‘Some Reflections on Teaching Law: Whose law, yours or mine?’ [2005] IndigLawB 6; (2005) 6(8) Indigenous Law Bulletin 23, 24.
[39] This concept is discussed in the article by a Canadian lecturer: Kirsten Anker, ‘Teaching “Indigenous Peoples and the Law”: Whose Law’ [2008] AltLawJl 40; (2008) 33(3) Alternative Law Journal 132.
[40] Anker, note 39 above, p 133.

[41] O’Donnell, note 12 above, p 142.
[42] Suggestions for DVDs are discussed in specific subjects, such as Foundations of Law, below. These DVDs can be sourced usually from ABC, SBS or Screen Australia. They are often accompanied by Study Guides available on the internet.

[43] Behrendt, note 8 above, pp 173-174.

[44] O’Donnell, note 12 above, p 145.
[45] O’Donnell, note 12 above, p 146. Indeed, the teaching of the complexities of Indigenous culture should make students more aware of their own cultures, which are often assumed to be neutral or are simply taken for granted.
[46] Sue Green and Eileen Baldry, ‘Building an Australian Indigenous Social Work’ 2008 61(4) Australian Social Work 389, 396.

[47] O’Donnell, note 12 above, p 152.

[48] O’Donnell, note 12 above, p 147.
[49] See Kenneth M. Zeichner (1992), NCRTL Special Report: Educating Teachers for Cultural Diversity, National Center for Research on Teacher Learning.
[50] Zeichner, note 49 above, p 11.

[51] Douglas, note 19 above, p 232.

[52] Kift, note 3 above, p 21.

[53] Kift, note 3 above, p 10, quoting Bradney.
[54] In 1992 the Priestley 11 was set down as the national core curricula in a bachelors law degree and incorporated into the Legal Profession Admission Rules in all states and territories. To be eligible for legal practice, students have to fulfil requirements under those Rules. The Priestley 11 subjects are: Criminal law and procedure, Torts, Contracts, Property, Equity, Company Law, Administrative Law, Federal and State Constitutional Law, Civil Procedure, Evidence and Professional Conduct. Each subject area stipulates sub-topics.
[55] O’Donnell, note 12 above, p 152.

[56] Kift, note 3 above, p 18.
[57] Ngiya is a new law journal of the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. It replaces Balayi. See: http://www.jumbunna.uts.edu.au/researchareas/index.html

[58] For example, there is no reference to native title in ‘Property’.

[59] This concept is discussed in Anker, note 39 above.
[60] As a platform for teaching access to justice and the disparity between law and justice, especially as experienced by Indigenous groups, the DVD Black and White provides ripe material for student discussion: http://afcarchive.screenaustralia.gov.au/filmsandawards/recentfilms/0203/feature_27.aspx
[61] See Michelle Sanson, Thalia Anthony and David Worswick, Connecting with Law, 2nd ed, Oxford University Press, Melbourne, 2010; Catriona Cook, Robin Creyke, Robert Geddes and David Hamer, Laying Down the Law, 7th ed, Lexis Nexis, Sydney, 2009; Patrick Parkinson, Tradition and Change in Australian Law, 4th ed, Law Book Co, Sydney, 2009.
[62] Kanyini: http://www.documentaryaustralia.com.au/da/caseStudies/details.php?recordID=30; Bush Law: http://www.abc.net.au/programsales/s2895468.htm

[63] Behrendt, note 8 above.

[64] See: http://www.sbs.com.au/firstaustralians/, especially Episodes 1, 2 and 4.

[65] Thalia Anthony, ‘Governing Crime in the Intervention’ 27(2) 2009 Law in Context 90.

[66] Native Title Amendment Act 1998 (Cth).
[67] See for example Wilson v Anderson (2002) 213 CLR 401, Western Australia v Ward (2002) 213 CLR 1, Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422, Bodney v Bennell [2008] FCAFC 63.

[68] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report 31 (1986).
[69] On the issues surrounding a treaty, see: Sean Brennan, Larissa Behrendt, Lisa Strelein and George Williams, Treaty, Federation Press, Sydney 2005.

[70] Parkinson, note 61 above.
[71] See generally on Indigenous sentencing considerations: Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305, and R v Fernando (1992) 76 A Crim R 58 (on socio-economic disadvantage and alcoholism) and R v Minor [1992] NTCCA 1; (1992) 105 FLR 180 (on culture and traditional punishment).

[72] Behrendt note 8 above.

[73] O’Donnell, note 12 above, pp 147-148.
[74] Katherine Biber, ‘Fact-finding, proof and Indigenous knowledge: teaching evidence in Australia’[2010] AltLawJl 61; , (2010) 35(4) Alternative Law Journal 208.
[75] Nicole Graham, ‘Indigenous Property Matters in Real Property Courses at Australian Universities’ (2009) 19(1/2) Legal Education Review 289.

[76] Watson, note 38 above, p 24.

[77] Graham, note 75 above, p 293.

[78] Graham, note 75 above, p 298.
[79] Prue Vines, ‘Putting Indigenous Issues into the Curriculum – Succession and Equity’, Ngiya: Talk the law – Special Edition on Indigenous Legal Education (2011, forthcoming).
[80] Cubillo v Commonwealth (No 2) [1999] FCA 518; (1999) 89 FCR 528 ; Trevorrow v South Australia ( No 5) [2007] SASC 285; (2007) 98 SASR 136; State of South Australia v Lampard-Trevorrow [2010] SASC 56.

[81] Bulun Bulun v T & R Textiles Pty Ltd (1998)157 ALR 193.

[82] Vines, note 79 above.

[83] See Toohey J’s judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1.
[84] See Prue Vines, ‘Resting in Peace?: a Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds in Australia’ [1998] SydLawRw 3; (1998) 20(1) Sydney Law Review 78.

[85] Bulun Bulun v T & R Textiles Pty Ltd (1998)157 ALR 193.

[86] Vines, note 79 above.
[87] See especially the judgments of Deane and Gaudron JJ in Mabo v Queensland (No 2) (1992) 175 CLR 1 who discussed the imposition of constructive trusts and Law Reform Commission of Western Australia report on Aboriginal Customary Laws (2006).
[88] Prue Vines, ‘Drafting Wills for Indigenous People: Pitfalls and Considerations’ [2007] IndigLawB 10; (2007) 6(25) Indigenous Law Bulletin 6-9.
[89] The only unique feature of the CATSI Act in relation to directors’ duties is s 265.20, which exempts directors from breaches of duty where their conduct was engaged in good faith and for the purpose of complying with Native Title legislation.
[90] Bede Harris, ‘Embedding Indigenous Experiences in the Teaching of Corporations Law’, Ngiya: Talk the law – Special Edition on Indigenous Legal Education (2011, forthcoming).
[91] See, for example, Bryan Horrigan ‘Teaching and Integrating Recent Developments in Corporate Law, Theory and Practice’ (2001) 13 Australian Journal of Corporate Law 1; Dimity Kingsford Smith ‘Studying Modern Corporations Law in Context’ (1999) 33 The Law Teacher 196.
[92] Melissa Castan, ‘Legal Education, Indigenous People and Federal Constitution’, Ngiya: Talk the law – Special Edition on Indigenous Legal Education (2011, forthcoming).

[93] Castan, note 92 above.

[94] Emphasis added.

[95] Castan, note 92 above, citing Sawer.

[96] In addition, s 127 was deleted, providing that Indigenous people could be ‘reckoned’ in the national census.

[97] Castan, note 92 above.

[98] Castan, note 92 above.
[99] This is currently being considered by the Expert Panel on Constitutional Recognition of Indigenous Australians: http://www.fahcsia.gov.au/sa/indigenous/progserv/engagement/Pages/ExpertPanel.aspx
[100] Northern Territory National Emergency Response Act 2007 (Cth) (‘NTNERA’); Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (‘FCSIAA’); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) (‘WPRA’).
[101] Alexander Reilly, ‘Finding an Indigenous Perspective in Administrative Law’ (2009) 19(1/2) Legal Education Review 271.
[102] For example Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Arts, Heritage and Environment v Peko-Wallsend Pty Ltd (1987) 15 FCR 274.

[103] Reilly, note 101 above, p 279.

[104] Reilly, note 101 above, 280, 285-86.

[105] Reilly, note 101 above, 279.
[106] For Corder’s analysis of the role of Administrative law in the resistance to the apartheid regime in South Africa, see: Hugh Corder, Empowerment and Accountability: Towards Administrative Justice in a Future, Constitution Studies Centre, London, South Africa, 1991.
[107] Ben Saul, ‘Indigenous Issues in the Teaching of International Law’, Ngiya: Talk the law – Special Edition on Indigenous Legal Education (2011, forthcoming).

[108] Saul, note 107 above.
[109] United Nations Human Rights Committee, Consideration of reports submitted by States parties under Article 40 of the Covenant; Concluding observations on Australia, CCPR/C/AUS/CO/5, Ninety-fifth session, 2 April 2009; Committee on the Elimination of Racial Discrimination, Consideration of reports submitted by States parties under Article 9 of the Convention; Concluding observations on Australia, CERD/C/AUS/CO/15-17 Seventy-seventh session, 13 September 2010, [16], pp 4-5.
[110] Jones, note 23 above.

[111] Anker, note 39 above, p 133.

[112] Anker, note 39 above, p 134.

[113] Anker, note 39 above, p 134.

[114] Anker, note 39 above, p 134.

[115] Anker, note 39 above, p 135.

[116] Anker, note 39 above, p 134.

[117] Anker, note 39 above, p 134.

[118] Anker, note 39 above, p 135.

[119] Anker, note 39 above, p 135.

[120] Anker, note 39 above, p 136.
[121] Huia Woods, ‘The Treaty and Transformative Praxis: Reconciling Mainstream and Indigenous Perspective of Justice, Ngiya: Talk the law – Special Edition on Indigenous Legal Education (2011, forthcoming).

[122] Woods, note 121 above.
[123] Experiential learning involves the student learning from experience, rather than from, for example, a text. See: David Kolb, Experiential Learning: Experience as the source of learning and development, Englewood Cliffs, Prentice-Hall, 1984.

[124] See: O’Donnell, note 12 above, p 152.

[125] See: http://www.auroraproject.com.au/LegalInternshipTestimonials.htm
[126] Julie Cassidy, ‘The Classroom ‘In Country’: Experiential Learning of Indigenous Legal Studies’, Ngiya: Talk the law – Special Edition on Indigenous Legal Education (2011, forthcoming).

[127] Cassidy, note 126 above.

[128] Cassidy, note 126 above.

[129] Cassidy, note 126 above.

[130] Cassidy, note 126 above.

[131] Cassidy, note 126 above.

[132] Cassidy, note 126 above.

[133] Banks et al, note 28 above, p 202.

[134] Kift, note 3 above, p 22, quoting Sullivan et al.

[135] Anker, note 39 above, p 133.

[136] Woods, note 121 above.

[137] Woods, note 121 above.

[138] Banks et al, note 28 above, p 202.

[139] Anker, note 39 above, p 135.

[140] Anker, note 39 above, p 135.
[141] O’Donnell, note 12 above, p 136.

[142] Watson, note 35 above, p 24.

[143] O'Donnell, note 12 above, p 153.
[144] Douglas, note 22 above.
[145] Uphoff et al, note 21 above, p 197; Zeichner, note 49 above, p 9.


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