This paper is written principally from the point of view of
Australia. Sections have, however, been
added referring to New Zealand, Indonesia and the South Pacific region.[1]
Australia has a common law system inherited originally from the English settlers in the late 1700s. The theory was that Australia was terra nullius at the time of settlement, with the consequence that so much of England’s law that was applicable to local conditions came automatically into effect in Australia. Although some adjustments were made to laws in Australia to take into account the legal systems of the original inhabitants, it was not until the 1990s that the fiction of terra nullius was abandoned by the High Court (ie Australia’s highest court) in cases where the possibility of native title (ie pre-settlement title) to land was recognised. The abandonment of the fiction did not affect the substantive position that Australian law, founded on English law, is sovereign.
These historical antecedents, together with political and cultural factors, explain the close similarity that existed until recent years between Australian and British laws and the organisation of their legal professions. In turn, Australian legal education was similar to legal education in England and Scotland. Until about the 1970s, English legal textbooks were routinely used in Australian law schools. There is still considerable movement between the two countries, with staff from one country taking up permanent appointments at universities in the other, and staff moving between the two countries on sabbatical leave or exchange programs. Having said this, an alternative itinerary for Australian legal academics since the 1950s has been to North America. There are now a considerable number of American and Canadian expatriates teaching in Australian law schools. It seems that the gaze of the typical Australian legal academic is now shifting away from Europe and towards the Asia-Pacific.
The last 20 years have seen an explosion of legal education in Australia. The growth has been far more significant than in North America. In 1987 there were 12 law schools. There are now 28, with two more apparently being planned. The actual growth in the number of law students and graduates over that period is harder to determine. In 1998 there were nearly 24,000 law students in Australia (for a population of 19 million people), an increase of over 5000 in 3 years.
There are various causes of this growth. The legal profession expanded greatly during the corporate boom years beginning in the late 1970s. There was therefore a greater sense of opportunity awaiting a law graduate. The value of a law degree for vocations outside the private legal profession was also becoming recognised, thus suggesting that law was a good foundation for a number of careers. New universities were created in Australia, thus creating more places where law schools could be created. More cynically, however, universities (old and new) saw that law schools attracted the best students and yet could be allocated the least funding. The universities themselves therefore had an interest in expanding legal education.
A consequence of this growth has been the emergence of diversity in Australian legal education. Newly established law schools usually saw no point in imitating the established ones in all respects. Some adopted a “niche” approach, perhaps by emphasising certain branches of law. Others adopted distinctive approaches to teaching and learning, for example by emphasising clinical and practical legal skills. There is now fairly intense competition between Australian law schools. One site for this competition is entry cut-offs for undergraduate students. Centralised admission systems lead to the publication of entry requirements. High entry cut-offs are used as an indication of demand for places from the best students. (For various reasons to do with methodology and local demography, the faith in this indicator can be misplaced.)
This is state-based. Each state and territory has its own admitting authority. The composition differs but the judiciary is usually at the centre of it, reflecting the position that when admitted a practitioner becomes an officer of the Supreme Court in that jurisdiction.
Admission as a legal practitioner in one jurisdiction does, however, enable admission in any other Australian jurisdiction without further qualification, by virtue of a mutual recognition system introduced in the early 1990s.
The state admitting authorities have taken different approaches but the basic trajectory towards legal qualification is similar. There is still a sense of two distinct stages in admission. The academic stage leads to the award of the LLB degree. It is followed by a practical stage. This might be service for a time in articles of clerkship (ie a kind of apprenticeship) or it might be a course of practical legal training at an educational establishment or it might be a mixture of both. The course of practical legal training may lead to a separate graduate diploma or other kind of certification. Some law schools now offer both the LLB and a practical training course. My own at Monash University will be commencing a practical training course in mid-2000, based on the clinical program that has been operating at undergraduate level for 25 years.
After admission, there are expectations of continuing legal education, although this is not mandatory in all parts of Australia.
The distinction between the academic and practical stage is beginning to crumble. There are now some law schools who are accredited by their admitting authority to include some or all of the practical legal training requirements within the law degree. This might make the program longer or it might force the exclusion of elective subjects in substantive law.
The law degree is an undergraduate degree in Australia (hence it is a bachelor of laws), although entrants to the degree may have already completed a bachelor’s degree in another discipline.
Nominally, the law degree is 3 years, except in the case of a student coming straight from school to study only an LLB, in which case it is nominally 4 years.
In practice, the normal mode of study is to take a combined degree program so that over 5 years a student completes a law degree and a shortened version of another degree. The most popular combinations are Law/Arts and Law/Commerce (or Economics). Accordingly, by the time of graduation the students have reached approximately the same educational attainment as in a country where graduate entry to law is required.
Traditionally, the law degree was taken by full-time students. The dominance of the combined degree program (lasting 5 years) tended to maintain it that way. Latterly, however, more graduate entrants have becoming come into the law schools to study only the LLB. They may be working part-time as well as studying. Furthermore, some law schools are admitting mature age students (for example women who did not complete their education because of family responsibilities, or those seeking to change careers). All law schools are grappling with problems of how to organise a syllabus and teaching program for students who increasingly differ in their subject load, rate of progression and availability for classes.
A small number of law schools teach an off-campus or distance LLB. With the arrival of “flexible learning” in all Australian universities, and the potential of the internet as a medium of delivery, it is likely that more and more law subjects will be available in distance mode, even if the number of complete distance LLB degrees stays small.
The academic year in Australia is normally made up of two semesters lasting 13 or 14 weeks. Typically, semester 1 starts in late February and concludes in June (with a short break in April. Semester 2 starts in July and concludes at the end of November (with a short break in September). More and more law schools now offer a “summer semester” whereby some subjects can be taken over the Australian summer (ie December-January).
Historically, law subjects were taught as whole-year units but many law schools are now largely “semesterised”; ie a subject is completed within a distinct semester.
The syllabus of the law degree is primarily a matter for the local admitting authority if, as is always the aim of the university, the degree is to be recognised for admission purposes. There is, in fact, a national advisory body, dominated by the judiciary, which recommends the minimum content of a law degree. Its recommendations have been adopted in all jurisdictions with only minor variations. Thus there is a skeleton in all Australian law degrees made up of 11 areas of knowledge, even if the actual subject names are not the same as those in the recommended list.
Most law schools in Australia are in public universities. In the last decade, two private law schools have opened.
In the public universities a contribution scheme operates so that students pay a part of the cost of their education to the federal government, either “up-front” (which attracts a 25% discount) or subsequently through their Pay As You Earn income tax. The amount of contribution is set by the government and seems to bear no relation to the amount that the government pays to the university or that the university passes on to the law school. The bottom line is that public places in public universities do not bring in sufficient income to enable the delivery of a high quality legal education. Recently, public universities have been allowed to charge full fees to some undergraduates and all graduates. Monash, which is probably the leader of these, now has nearly 25% of its undergraduates on a full fee basis. Law schools which can attract full fee paying students usually end up receiving more than double the amount that they would receive for a government-subsidised place.
Some research into the aspirations and intentions of Australian law students has been undertaken in recent years. It seems that only about 50% of law students say that they intend to enter the private legal profession. The remainder may wish to go into business, commerce, accountancy or public service. It appears that a higher proportion do actually begin in the private profession (suggesting a change of mind as they approach graduation). Thereafter, however, they drop out again. Some longitudinal research suggests that after 5 years of graduation only about 50% of law graduates are in the private profession. We do not yet know whether the percentage keeps on dropping after 5 years. We do know that the legal profession expresses concern that talented people (in whom a considerable amount of time and money has been invested) are turning away from private practice. The reasons for this are a matter for speculation. The influx of women into the profession in recent years may account for some of it, if they are departing for reasons of childcare. The long hours and competitive environment within law firms may also be a factor. The adversarial nature of Australian legal practice (ie between law firms) may also be a component.
The earnings of the legal profession are also increasingly stratified. The most successful lawyers are right at the top end of Australian earners. At the other end, however, there are solicitors of many years standing who are earning no more than one would expect an educated person to be earning in an economy based on knowledge and services. There may be better paid jobs for these lawyers outside the law than within it and this may contribute to some of the exodus.
Although the Australian university sector as a whole is moving towards established quality assurance schemes, there is no central QA process for law schools. Admitting authorities approve a particular law degree for the purposes of admission in that jurisdiction, but (despite the occasional sabre-rattling) there is no tradition of periodic reviews of syllabus or teaching.
Unlike in the United States there is no separate accreditation process by an association of law schools or by a national body representing the legal profession. If the former comes about – and it is discussed from time to time – it may be in order to head off the latter. Speaking generally, there has been a degree of tension for many years between the organised profession and the law schools. The profession, it seems, would like to regulate the law schools, perhaps with some small representation of the law schools on a regulatory body. The law schools are under-whelmed by that prospect, fearing that diversity and critical approaches may be stifled or that the short-term interests of the profession will dominate.
The future of these developments is closely related to debates about a national legal profession (as distinct from state-based professions with mutual recognition). It is never possible in Australia to predict with confidence whether moves towards a national approach on any issue will be successful.
From time to time there have been outbreaks in Australia of ideological division within legal education but there have not been “movements”, such as legal realism or law and economics, with tidal effects. No simple statement could capture the intellectual essence of Australian legal education. The quality of academic staff is very high (we think) by international standards. At the same time, (I think) the intellectual ambitions of legal academics can be somewhat limited. Careful, fine-grained synthesis and analysis of legal doctrine (in the sense of “black-letter law”) has been the orthodoxy.
The opportunities for this are great. Australia is now a highly educated, technologically advanced “western” society with an increasingly international or global outlook. Australians are great travellers. They have also embraced information technology to an extraordinary extent. Surveys show that rates of home internet access are now as high as those in North America, and rising. The settings are there for actual or virtual collaboration.
Most Australian universities have set “internationalisation” as a high priority and would support links forged by their law schools. My own university, Monash, is acknowledged as the leading international university in Australia. Monash has a branch campus in Malaysia. It is opening a campus in South Africa in 2001. It has a Centre in London (linked with King’s College London) and is proposing one in central Italy.
At one time, collaboration was confined to other common law systems, but that is breaking down. There is, for example, considerable contact between Australian law schools and Indonesia and Japan.
Developing the theme immediately above, the opportunities are now there for a global network of high quality law schools which can offer possibilities for their students to draw subjects from others in the network. Internet technologies may enable this without physical transfer of the student for the whole of the semester. It would also be possible to arrange “double badged degrees” where the degree certificate mentions 2 (or more) universities. This is easier at postgraduate level because there are usually no complications with admitting authorities. Nevertheless, most undergraduate law curricula provide scope for a reasonable range of elective subjects. A network could increase the choices open to the students within whatever scope is available.
NEW ZEALAND
Five law schools spread down the length of the two main islands serve a population of three and a half million. They are the University of Auckland Faculty of Law in Auckland, the University of Waikato School of Law in Hamilton, the Victoria University of Wellington Faculty of Law in Wellington, the University of Canterbury School of Law in Christchurch and the University of Otago Faculty of Law in Dunedin. The content of the LLB degree is standard as to essentials but varies in detail. It is a 4-year degree but is so frequently taken in conjunction with other degrees that the student's average period of university study is 5-6 years. Before admission to practice, the graduate takes the 13-week practice course offered 3 times a year in each of the five centres.
Law degrees ("Sarjana Hukum" abbreviated as SH) are offered at an undergraduate level at Indonesian universities. The Indonesian university system has both private and public universities with a range of quality in both sectors. Fees are payable in both sectors, although the fees for private universities are significantly higher. The private sector universities tend to cater to particular ethnic or religious sectors. For example, there are a number of private Islamic and Christian universities and other private universities that tend to cater for the minority Chinese population. Demand for entry into other professional courses, commerce and information technology is far higher than it is for law. Demand for all courses was considerably affected by the Asian crisis of 1998 which has affected and continues to affect Indonesia more than almost any other country in the region. For example, some private law schools experienced reductions of more than a third in their enrolments for law in the space of three months.
The provision of quality legal education is hampered by inadequate funding for staff and libraries and the consequent lack of access to expertise and information. In some universities, staff salaries are so low that staff often have to take other jobs, sometimes in other universities, and simply do not turn up to scheduled lectures if those other jobs conflict with teaching obligations. These difficulties and the lack of reports of case law often lead to a recitation and rote learning of rules rather than skill based learning.
As with some other civil systems, law graduates entering the civil service choose at the outset whether to pursue careers as judges, prosecutors or administrators in government departments. The majority of graduates have to seek employment outside of the private legal sector in either government or private enterprise.
THE SOUTH PACIFIC
REGION
In addition to the law schools of the universities of Australia, New Zealand and Hawaii (USA), there are three law schools serving a vast diverse region extending from Papua New Guinea in the west across to Tahiti, and from Micronesia in the north down to Tonga - a region where, since 1962, rapid decolonisation has produced 14 independent and associated states, 11 of whom are members of the United Nations. Three French and 3 United States territories enjoy varying degrees of autonomy. Each state and territory has its own language and culture base, and a distinct legal system which has inherited indigenous and introduced conceptual origins.
The French territories are served by small Law Departments on each of the two campuses of the Universite Francaise du Pacifique, one in New Caledonia (Noumea) and the other in French Polynesia (Tahiti).
The Faculty of Law of the University of Papua New Guinea teaches the common law of England and customary law in Port Moresby. Its task is complicated by the division of the country's population of nearly 5 million into some 800 language groups. The 4-year LLB course is run on Australian lines. A staff of 4 or 5 teach an annual intake of 40-45 students. Upon graduation, students take a 2 month practical training course at the Legal Training Institute before admission to practice.
The Law School of the USP serves the largest geographic catchment of any in the world. Owned jointly by 12 island governments, the USP is truly regional, and its Law School based in Port Vila, Republic of Vanuatu, is attended by 40 to 50 students per year from across the South Pacific. Unlike the curriculum offered to Pacific island students in Australia, New Zealand and Hawaii, since its inception in 1994, the USP LLB focuses on the laws of the countries of the region. The 4-year program taught by some 14 academic staff studies the common law tradition and British/American institutions of government within the context of Pacific constitutional regimes which are characterised by their pluralistic nature and lend themselves to comparative treatment. Preparation for legal practice is undertaken in a 12-week practical training course at the Institute of Justice and Applied Legal Studies situated in Suva, Fiji. The graduate then applies for admission to legal practice under the widely varying requirements of legal professional bodies across the region.
Considerably more information about legal education can found in “Studying Law in Australia 2000”, published by the Committee of Australian Law Deans and supported by the Attorney-General’s Department (see http://www.cald.edu.au/slia2000/ch1.html)
The Australian Law Reform Commission has just released a major report on the legal system which contains an interesting chapter on education, training and accountability; see Managing Justice, Report No 89, (http://www.austlii.edu.au/au/other/alrc/publications/reports/89/).
The Centre for Legal Education has published a number of papers and reports, particularly to do with the career intentions and career destinations of law students. See http://uniserve.edu.au/law/pub/research/cle/welcome.html.
See also the web site of the Council of Australian Law Deans at http://www.cald.edu.au/index.html.
[1] I am grateful to my colleagues Associate Professor Guy Powles (in relation to New Zealand and the South Pacific) and Mr Mark Davison (in relation to Indonesia) for supplying me with text.