Abstract
LEGAL EDUCATION THROUGH AN INDIGENOUS LENS: Decolonising the Law School
Nicole Watson and Heather Douglas (eds); Routledge, 2024; 318 pages; $77.99 (paperback)
Many, if not most, non-Indigenous law teachers think of themselves as sympathetic and well-disposed towards Indigenous people. They probably have a general awareness of the issues facing them and know something of the impact of colonisation on Indigenous people, as well as the role the Anglo-Australian law has played in creating and cementing injustice. Some may be aware of the commitment to developing Indigenous perspectives in the law degree made by the Council of Australian Law Deans (CALD) in 2020, and now contained in official Australian Law School Standards (p 9).
At the same time, they are likely to be wary or even fearful of the personal implications of injunctions to ‘Indigenise the curriculum’, feeling they are not up to the task of entering a politically fraught area in which they have not, themselves, been trained. Why, they may be thinking, should a person expert in contract or corporations law be expected to teach Indigenous perspectives? Even more pressingly, how can they do it, when they have so many other pressures on their time? For many, it may feel like yet another ‘tick a box’ exercise imposed by a centralised, corporatised (and highly paid, and therefore resented) senior management.
This book is a sustained and passionate attempt to counter this view. It makes powerful arguments for the inclusion of Indigenous perspectives into the law curriculum, as well as concrete suggestions for practical ways to make this work.
Co-edited by an Indigenous and a non-Indigenous academic, with chapters mainly (but not exclusively) written by Indigenous legal academics, the collection begins by acknowledging the slow pace of change to the law school curriculum. Reasons for this, it suggests, may include racism and academic laziness, but also the ‘massively increased pressures on academics to teach, research, contribute to both university and community service activities …. [a]dded to … the twofold setback of expanding class sizes and increasing pressure from students’ (p 11). This is especially true of the increasing number of poorly paid sessional staff, who ‘receive minimal support when grappling with the Indigenous content of the subject(s) that they teach’ (p 12).
One response to this situation is to look to Indigenous staff to do the work (or, perhaps, rely on the lack of such staff as an excuse to put it off). As the first chapter explains, this would be a mistake. Indigenous law graduates are very likely to regard issues such as treaty and truth-telling processes, or criminal justice and legal aid for Indigenous people as higher priorities than educating primarily non-Indigenous students. They may feel tokenised, viewed by colleagues as a ‘resource’ or ‘object to be used’ (p 12). Indigenous law students and law graduates face many personal and social pressures not experienced by the majority of their non-Indigenous peers, in addition to the extra pressure of having to learn (and speak in the language of) the invaders’ law.
The following chapters expand upon various aspects of these broader issues, and suggest responses, if not complete solutions. In Chapter 2, Indigenous lawyer and academic Osca Monaghan speaks of the harm and contradictions of ‘Indigenous lawyering’, as somebody who ‘anticipated difficulty working as a criminal defence lawyer’ but found herself ‘immediately confronted with choices about what we can concede and what we cannot’ (p 27). She found herself frustrated by the constraints of working for clients within the legal system, but also without the ‘capacity to still engage in more radical work outside the parameters of legal practice’ (p 28). Potentially, as well, she faced the danger ‘that we will internalise the self-annihilating logics of the colonial legal system’ (p 28). While these are thought-provoking observations for law students interested in social justice, they also suggest one approach to the challenge of ‘Indigenising the curriculum’ – that Indigenous issues are a particularly compelling example of law’s tendency to serve the interests of the powerful under the cover of apparently neutral rules.
In Chapter 3, Eddie Cubillo, with Jaynaya Dwyer, writes of his experience as an Indigenous academic within a prestigious law school, observing that ‘[o]ur students are eager to learn about First Peoples in Australia but we are not giving them the information that they need’ (p 46). He notes that ‘in universities, we teach the law, but we do not teach the realities of the law much of the time’ (p 46). This lack of education is an intergenerational failure which contributes to the lack of impact that many years of Royal Commissions and public inquiries have had on the justice system, as well as the daily indignities and subtle forms of racism experienced by most Indigenous people, whether formally educated or not. Chapter 4 contains further arguments on these issues, focussing on the child protection system. It notes signs of change to the system represented by the increasing appointments of First Nations judicial officers, and includes a useful recent list of such appointments, including to the Supreme Courts of Queensland, Western Australia and the Australian Capital Territory (pp 59–60).
Chapter 5, by Simon Young and Indigenous academic Kirstie Smith, notes an extra problem in reforming legal education – the ‘challenge of impermanence’, whereby ‘past worthy initiatives’ are buried in the constant tides of university changes, to the extent that we often ‘find ourselves back where we began’ (p 71). It argues that permanent curriculum reform takes place best at a grassroots level (p 72), but informed by ‘pedagogical and theoretical insights’, and with the close involvement and collaboration of First Nations staff. It makes the suggestion – challenging to some – that not only should specific academic positions exist for First Nations staff, but that their ‘position descriptions and workload arrangements’ must ‘respect the multifaceted and often interdisciplinary nature of their teaching and research roles’, as well as their community and family obligations and ‘their specific importance in supporting students and colleagues’ (p 75).
Further concrete proposals are made in Chapter 6, written by Annette Gainsford, Alison Gerard and Emma Colvin. This chapter notes that, in contrast to the situation in Canada and New Zealand, legal professional admission standards do not yet require applicants to demonstrate the capacity to work with and for Indigenous peoples. It argues that this should occur (pp 88–9). The chapter also argues for mechanisms to ensure that Indigenous staff and stakeholders are culturally safe (p 89), including university-wide Indigenous graduate attributes and accreditation standards.
The following chapters are labelled as Part Two, ‘changing thinking through theory’. The label of ‘theory’ is misleading to the extent that it implies inaccessibility. Chapter 7, by Larissa Behrendt, is a compelling illustration of its title, ‘Storytelling – the Power of First Nations Jurisprudence.’ She outlines the importance of standpoint theory, that is an explicit acknowledgement of the writer or scholar’s personal background in their work (p 107). While this recognition may seem obvious, it is also a more or less explicit challenge to ‘assumptions around neutrality that are actually a way of reinforcing power structures of colonisation and patriarchy’ (p 107). She notes – and illustrates – the importance of storytelling, including the way personal stories are dismissed and underplayed in the colonial legal system – even, and sometimes paradoxically most significantly, in cases where they are given the most apparent prominence and respect.
Other chapters in this section tell the stories of prominent Indigenous people, such as Ruby Langford Ginibi, who have challenged the dominant legal system (Chapter 8). They give further concrete examples of how to incorporate Indigenous storytelling perspectives into law school curricula, including through discussion forums and reflective journals (Chapter 9, by Marcelle Burns). Chapter 10, jointly written by an Indigenous academic Pekeri Ruska and non-Indigenous academic Jennifer Nielsen, provides further examples of how storytelling and standpoint theory can inform and enlighten the practice of teaching law. Chapter 11, by Indigenous academic Narelle Bedford, provides further illustration of the practice of Indigenous storytelling as a teaching tool.
Part Three (headed ‘applying an Indigenous lens to law school curricula’) provides more specific teaching hints directed at teachers of particular law subjects. Thus, Chapter 12 (by Nicole Watson), gives details and personal examples applicable to the teaching of intentional torts. Chapter 13 (by Mary Spiers Williams) focusses on the way criminal law is traditionally taught, as a set of elements or ‘general parts’. This diverts attention from the discriminatory use of the criminal law against Indigenous people, as well as others who are vulnerable. Moreover, the ‘voluminous and particular’ rules (p 215) which students are required to learn and be examined upon do not leave space for them to consider issues of real importance. The final chapters focus on the teaching of public law (Chapter 14, by Aurora Milroy and Karinda Burns), upon clinical legal education (by Amanda Porter and Eddie Cubillo), and upon native title (Chapter 16, by Lee Godden).
Finally, there is a useful list of reading resources for law teachers in various units, including administrative law, company law, contracts, criminal law, constitutional law, equity, property, evidence and ethics.
The book provides a powerful response to any suggestion that the drive to ‘Indigenising the curriculum’ is primarily or most significantly a dictate of senior management. On the contrary, the adoption of these policies by powerful bodies such as CALD is the culmination of many years of advocacy by Indigenous people and their allies. It is a deeply held request, and demand, a challenge to ‘colonial mindsets and power arrangements’ (p 117) that is as fundamental to law and justice in this country as is the very existence of the ‘world’s oldest continuous living culture’, Indigenous people themselves. Without it, the teaching of law is deprived of nourishment, vitality and indeed reality itself.
DECLARATION OF PEACE FOR INDIGENOUS AUSTRALIANS AND NATURE: A Legal Pluralist Approach to First Laws and Earth Laws
Anne Poelina et al; Springer, 2024; 135 pages; €139.99 (hardcover)
Every now and then we get a glimpse of what Australia will look like in the distant future. I think of the cultures of South America: colonised 300 years earlier than Australia and which threw off their links to European royal houses 200 years ago (Australia, of course, still hasn’t). South American cultures do still have distinct Indigenous cultures within them, but their dominant cultures have also become autochthonised. Australia, and its legal system, remain in many respects the law and culture of a colony that still considers itself grounded in Europe.
It is a joy to be given a window to peer through, of the nation that Australia will eventually become: a nation that is truly ‘of this place’. Declaration of Peace for Indigenous Australians and Nature is such a window.
The book comprises a series of personal reflections by the authors (Indigenous Australians and one South Sea Islander), which are followed by some thought-provoking essays on specific issues.
The central thrust of the book is an argument against the presumption of universality in Western law. The authors all argue for a move towards legal pluralism, and point out that this is already underway, since the binding force of cultural law has already been recognised in decisions including Love v Commonwealth [2020] HCA 3 and Goodsell v Yunupingu (1999) 4 ALR 29.
The authors prefer the term First Laws to cultural laws and explain that First Laws emanate from the Earth, in contrast to the Western anthropocentric notion of law that emanates from people. Take cultural burning (aka ‘burning off’), for example. From the perspective of our system of declared law, cultural burning requires permission from a regulator. From a First Law perspective, not only does cultural burning not require any human permission; it is the land itself that requires it. Authority flows the other way. First Law, the authors argue, is better placed than Western law to tackle the challenges of today and hard planetary limits. Western law carries a presumption that people can declare whatever we want and the Earth will just have to make allowance for us. It is as if we never learned the lesson of King Canute – that human authority cannot prevent the tide from coming in.
I found the most striking contribution of the volume to be the authors’ self-confident promotion of First Laws in the face of our foundering system of declared law that is not serving people or planet. The book advocates recognition of First Laws not just for Indigenous communities (which is currently as far as our legal system is prepared to go) but indeed for everyone, where they are applicable. As communities along the Murray-Darling have learned, laws of nature that prohibit resource exhaustion do not discriminate between Indigenous and non-Indigenous peoples.
Having established their case that First Laws provide answers that Western law does not, the authors do not simply leave that observation hanging; they flesh out concrete ideas of ways to bridge the gulf between the two systems. One of these is reciprocity. Even though it is a social norm in most cultures, including Western culture, it is not part of the declared law and is not something that can be enforced. The result is that we have a system where individuals can amass astronomical personal wealth, refuse to give back to the community from which that wealth was drawn, and not face any kind of sanction. Here I must agree that First Law thinking would go a long way towards rescuing the mainstream culture from itself.
WHAT IS THE ‘IT’? A Handbook for Proofing Court Judgments
Stan Emmerson; The Federation Press, 2023; 164 pages; $69.95 (paperback)
Part of the work of a judge’s associate is to proofread the draft judgments of their boss. Emmerson has more than 20 years’ experience reviewing the final drafts of judgments of the High Court of Australia before the judgments are released publicly. This handbook is the author’s gift to judges’ associates. Emmerson passes this experience down to judges’ associates with engaging enthusiasm, good humour and plenty of detail. The book provides pragmatic tips, such as: taking care to not read correct words into sentences when the correct words are not actually there (p 10); ensuring that you are working on the right version of a judgment (p 35); and (my favourite) ‘thinking you know what a word means is not the same as knowing what it means’ (p 111).
Emmerson manages to convey his considerable authority on the subject matter while not being heavy handed about the topic. There is a humorous lightness to the author’s work (although that lightness admittedly dissipates in Chapter 7 about referencing). There is a steady flow of illustrations of near or actual errors in judicial decisions. A fine example of an error in a draft judgment was about a person being ‘… at risk of serious ham’ (p 9). In a section on commas, there is an excellent illustration of the benefits of using commas. Deftly deployed commas could have transformed the judicial phrase, ‘The flaws in my opinion are …’ to, ‘The flaws, in my opinion, are …’ (p 90).
I do get the sense from What is the ‘It’? that some judges’ associates might find Emmerson’s methods rather exacting. This would not necessarily be a bad thing. The subject matter is worth being exacting about. Emmerson’s primary aim, at least as I understand the author’s main objective, is to help judges’ associates to reduce the scope for misinterpretation of judicial decisions. The author also provides guidance about how to remove unnecessary errors in judgments (eg, typos), and ensuring that there are accurate citations for cases, legislation, articles, and other legal authorities. The challenge, as Emmerson observes, is that ‘[j]udges are not usually in the business of dumbing things down’ (p 78). Few ambiguities, other than perhaps dubieties in legislation, tend to linger for so long, and so publicly, in the gaze of so many lawyers as do uncertainties in judicial decisions. Cases in apex courts also tend to have long shelf lives. An equivocal sentence in a precedential judgment may remain debatable for generations. Providing clarity in judicial decisions can create greater certainty in the interpretation of the law itself. Seen in this light, this handbook can help people to understand the law.
If the measure of the quality of a book is how quickly it changes a reader’s practices for the better, then What is the ‘It’? gains a solid tick for its effectiveness. Some of the guidance in this book had an immediate positive influence on my own writing: becoming more conscious of clarifying the meaning of ‘it’ in my sentences, and more vigilant about removing offending instances of ‘it’ in my writing. The author provides another piece of guidance that I have taken to heart: ‘make sure that you land your eye on every word.’ (emphasis added) (p 19; see also p 32). It is not possible to take these words seriously and to skim text. As a result, I now read initial drafts of documents more carefully on the first review and do not wait until subsequent reviews to engage more deeply with the words. The author provides helpful guidance about when to use ‘that’ and when to use ‘which’ (pp 84–9). There are examples of commonly confused words: eg, ‘affect’ vs ‘effect’ (p 105); ‘historic’ vs ‘historical’ (p 106); and ‘who’ vs ‘whom’ (pp 107–9). The book even includes a detailed (and interesting) discussion about the meaning of the word ‘plurality’ (pp 113–6).
The guidance in this handbook can readily extend to those in the practice of law who do not specialise in proofing draft judgments. Other areas of legal practice where legal practitioners may benefit from this book include contract drafting; preparation of pleadings; drafting of correspondence; drafting of legislation; the writing of articles; and even the writing of judgments. Law students might benefit from Emmerson’s careful analysis of referencing. In later editions of this work, the author might even consider changing the title to What is the ‘It’? A Handbook for Proofing Court Judgments