CALD Minutes, Meeting 2005#1 (Bond , 20 March 2005)

Council of Australian Law Deans Meeting 2005/1 Bond University 20 March 2005

MINUTES

PRESENT

Deans and Heads of School Professor Michael Coper Australian National University Professor Duncan Bentley Bond University Professor Ned Aughterson Charles Darwin University Professor Paul Moyle Professor Gary Davis Associate Professor Justin Malbon Professor Steve Graw Professor The Hon Michael Lavarch University of Technology

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Professor Stanley Yeo Southern Cross University Mr Geoff Nicoll (acting) Professor Michael Crommelin Professor Stephen Colbran University of New England Professor Leon E Trakman University of Professor Jill McKeough University of Technology, Professor Bill Ford University of Western Deputising for Deans Professor Tania Sourdin Professor Neil McLeod Professor Christoph Antons In Attendance Kate Massy-Greene CALD Secretariat Apologies Professor Mirko Bagaric Professor Gordon Walker La Trobe University Professor Ros Croucher Professor Arie Frieberg Professor Michael Pendleton Murdoch University (acting dean) Professor Paul Fairall Professor Ted Wright University of Newcastle Professor Charles Rickett Professor Ron McCallum Professor Don Chalmers University of Professor Carolyn Sappideen University of Western Sydney Professor Stuart Kaye University of Wollongong Dr Murray Raff Victoria University

1. Preliminary Matters

1.1. Welcome The Chair welcomed the following new deans and deputisers.

Associate Professor Justin Malbon Griffith University Professor Tania Sourdin La Trobe University (deputising) Mr Simon Rice Macquarie University (deputising) Professor Neil McLeod Murdoch University (deputising) Professor Stanley Yeo Southern Cross University Mr Geoff Nicoll University of Canberra (acting) Professor Jill McKeough University of Technology, Sydney Professor Christoph Antons Wollongong University (deputising)

1.2. Apologies As noted above.

1.3. Starring of items Professor Coper explained that the reorganisation of the agenda was to provide greater coherence and focus to meetings and that, if the members agreed, it would be the framework for the meetings for the foreseeable future. He also stated that it was planned to use a system of starring items of importance for discussion. In future, members would be given the opportunity to star any items that they particularly wished

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to have discussed at meetings, and would be asked to note all items not starred at the beginning of each meeting.

Resolution 2005/1: Any agenda items not starred at the beginning of meetings will be taken as noted and will not be discussed.

1.4. *Confirmation of minutes of meeting 2004/3 Professor Colbran stated that his recollection was that it had been agreed to hire a consultant to provide a provide a report on the nature of legal research in advance of the DEST Research Quality Exercise and that it was further agreed that this should not cost more than $5,000.

Although it could not be definitely confirmed that this recollection was correct, it was agreed that Professor Colbran's observation should be noted and the substance of the issue revisited later in the agenda.

Resolution 2005/2: That the minutes of the previous meeting be approved.

1.5. *Matters arising from the minutes At the previous meeting, it was suggested that the issue of the ranking of law schools should be placed on a future agenda in order that CALD may consider ways to make a constructive contribution to the debate. However, after some discussion it was agreed that this would be premature in the absence of any imminent ranking, and that it would be unhelpful for CALD to initiate or encourage such an exercise. It may have to be revisited in the context of the impending DEST research quality review if that review adopts a ranking or rating system to describe the outcomes of the review.

2. COUNCIL MATTERS

2.1. *Membership of Edith Cowan University Professor Paul Moyle gave some background to the recognition of the degree at Edith Cowan University by the WA Legal Practice Board. He explained that the letter of 21 July 2004 to the LPB gave a good chronology of the establishment of the degree program. In order to gain recognition, Edith Cowan University had made four submissions over an 18-month period. They received recognition of the law degree, but only for one year and will need to resubmit each year for the next four years, as new courses come on stream. Further, they have had to make certain undertakings in regard to detailing the limited recognition when undertaking any marketing of the degree.

He told the meeting that despite the limitations, they had received a high calibre enrolment with two categories of students being admitted: school leavers and second degree entry.

Professor Moyle thanked all who had supported the application process, in particular he was grateful for the support of Professor Bill Ford of the University of . He also thanked CALD for the opportunity to attend meetings in 2004.

It was resolved by an absolute majority (Resolution 2005/3) that Edith Cowan University be admitted to CALD as it fulfilled the criteria as stated in Clause 2.2 of the CALD Constitution so far as those criteria were capable of being fulfilled at this stage of the development of the new law school. Moved Professor Michael Coper, seconded Professor the Hon Michael Lavarch.

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2.2. *Election of Deputy Chair and Executive Members The Chair reported on the results of the electronic voting to amend the CALD Constitution to provide for the possibility of additional Executive Members. As a result of the absolute majority in favour of the change, it was resolved (Resolution 2005/4) that Clause 7.1 of the CALD Constitution be amended to read:

The officers of the Council will be the Chair, the Deputy Chair, and the Treasurer, and at least two Executive Members elected to those positions by the members of the Council.

As a result of the change, nominations had been received from five deans to join the Executive Committee — Professors Ford, Colbran, Croucher, Lavarch, and Moyle — and they were elected without opposition. Professor Ford was elected as Deputy Chair.

2.3. Treasurer’s Report The Treasurer’s report was deferred to the next meeting.

However, the Chair raised an issue from the Treasurer’s report regarding the pre- meeting dinner which in recent years has been paid for by CALD. He stated that Professor Barker, in particular, had always been keen to encourage the informal gathering before the meeting. However, he posed the question as to whether the expenditure, which was in the vicinity of up to $3000 each year, was a reasonable expense or if this money should be reserved for other purposes, for example consultancies. An alternative was to ask deans to contribute towards the cost of dinners.

After some discussion, it was agreed that the ability to meet and discuss issues informally was valuable and should be continued. A number of alternative ways of paying for the dinners were canvassed. It was agreed that, as deans would be claiming the money back from law schools, it was administratively easiest to add a levy of $100 to the annual fees to cover the cost of dinners.

2.4. Secretariat Report The Secretariat report was noted.

2.5. Meetings for 2005 The date of the third meeting of CALD will be decided by the Executive in consultation with the Faculty of Law at the .

2.6. Correspondence The correspondence was noted.

3. LEGAL RESEARCH AND SCHOLARSHIP

3.1. *Academy of Law The Chair outlined the recent developments in the establishment of the Academy of Law. In particular:

• the extension of the list to founding fellows to include more women (as recommended by Professor Rosemary Hunter, Dean of Griffith Law School in 2004)

• the work on the draft Constitution

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• the agreement of Minter Ellison, Canberra, to do the necessary work, on a pro bono basis, to incorporate the Academy

• the setting of a tentative date for the first meeting of the founding fellows to continue the work of establishment by approving the draft constitution and facilitating the election of further fellows.

Further he explained that the aim in the choice of founding fellows had been to get a group of distinguished members of the profession who would be able to work towards the establishment of the Academy. It had always been envisaged that, once this work was done, the category of founding fellow would disappear.

It was suggested that as Southwood J had been invited to be a founding fellow in his capacity as president of the Law Council of Australia before he had been called to the bench of the Supreme Court of the , it may be appropriate to invite the new president of Law Council, Mr John North, to become a founding fellow.

3.2. CHASS It was noted that CALD will join CHASS as an institutional member.

3.3. **Law Research Network The Chair gave a brief summary of the meeting held by LawRN at ANU which he had attended as well as several other deans.

In particular Professor Coper reported that while there had been different views on the origins of the group and the relationship with CALD, it was agreed at the meeting that it would be positive to have a close relationship between CALD and Law RN, and that Law RN would appreciate some administrative assistance. He drew the meeting’s attention to the action list showing the scope of work planned at the meeting on page 18 of the agenda papers.

He stated that he believed there were three key issues regarding the Network:

1. Relationship between CALD and LawRN 2. Specific tasks to be undertaken 3. What input the Network could have to the quality review in 2006.

Professor Coper suggested that it would assist the Network if CALD were to appoint a member or sub-committee who would take responsibility to liaise with the group and to report back to CALD.

Those who had attended the meeting in Canberra were asked if they considered it useful (given the cost) for the Network to have face-to-face meetings. Professor Coper reported that Professor Mandy Thomas from the ARC and Professor Hilary Charlesworth, in her capacity as the law person on the ARC Humanities panel, had attended the meeting and had delivered helpful papers on the elements of preparing a successful grant application.

Professor Moyle stated that those who were present at the meeting wanted more opportunity to link with CALD meetings and other meetings to form a national agenda of legal research.

The Secretary also reported that after some problems with the CALD ISP, the LawRN discussion group would be operating very soon.

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It was resolved that the executive be asked to appoint a member of CALD to liaise with the Law Research Network. (Resolution 2005/5)

3.4. **DEST Research Quality Exercise The discussion regarding LawRN was merged with the discussion on the forthcoming quality research review. The Chair called the attention of the meeting to the Group of Eight Statement on the Research Quality Framework which had been previously circulated.

Professor Coper noted that the Law Research Network had distributed a discussion paper on legal research by Professor Gerard Carney of Bond University. It had been agreed at the previous meeting of CALD that it would be useful to prepare a statement on legal research in preparation for the exercise. There had been discussion on whether it would be useful to employ a consultant to prepare the statement. The secretary was asked to circulate the CALD 1994 paper on research in law.

The question posed was how CALD should respond to the exercise, how it could possibly influence the exercise and the timeframe in which this would be possible.

Members reported that preparation was well underway for the exercise in a number of , and it was agreed that it was important to act as soon as possible.

Discussion included the following points:

• Professor Bill Ford commented that the exercise is well established in New Zealand and the United Kingdom. He questioned whether there are any equivalent bodies to CALD in those places that have addressed the issue and who could give CALD some advice.

• Professor Gary Davis asked if it would be useful to send any report to CHASS to try to influence the process. Mr Simon Rice stated that Macquarie University is presently preparing to contribute to the CHASS submission.

• Professor Malbon stated that the process is going to happen very quickly and that there is a need to be prepared. He stated that his understanding is that benchmarks will be set and quality of research would be judged against these. He understood that the number of citations would be used to measure impact. He underlined the importance of lobbying to influence the outcome as rules will be set and institutions will have to conform to these once established. This will impact on research funding and may result in research elites.

• There are differences in the possible impact between some legal research and scientific research due to the jurisdictional nature of legal research. This will mean that, although of significance in Australia, its impact may not receive international recognition. As a result its importance will be reduced for the purposes of ranking.

• It is understood that the proposed review will assess all research across faculties whereas, in the UK, the process allows law schools to exclude some staff. It was suggested that it would be useful to make general propositions on particular ways of checking the six best papers of the six best researchers in a law school.

• Professor McKeough stated that she understood that there is a possibility to have some shifting of attitudes while the process is being discussed — now is

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the opportunity to get a system in place that is better than the UK and NZ systems.

• It was suggested that it would be most useful to work with CHASS in order to have an influence on government policy.

• Professor Coper suggested that there were two possible ways of approaching the forthcoming Research Quality Exercise — to submit a paper on the nature of legal research and its unique character and/or to comment on the methodology of the proposed review.

• Professor Lavarch suggested that it would be useful to channel any prepared paper through CHASS, as well as identifying key people in government for lobbying.

It was resolved (Resolution 2005/6) that the Executive would:

Call for suggestions for a consultant to:

o marshal existing information from law schools and to prepare a paper on the nature of legal research, with emphasis on its distinctiveness and affinities with other disciplines

o make recommendations on how to measure the quality, including the impact, of legal research and

o make recommendations for how any review of quality should proceed.

This paper would then be circulated by email before submission.

4.

4.1. ALSA Report A report from the President of ALSA, Elizabeth Hundt, which had been previously circulated was noted.

4.2. ALTA Report A tabled report from the President of ALTA, Professor Michael Adams, was noted.

4.3. Curriculum Issues

4.3.1 ** Internationalisation of the Curriculum Professor Coper introduced the discussion by stating that the report had been written for ILSAC by Professor Gillian Triggs with the assistance of a research assistant. He stated that they are presently planning to prepare a second edition of the paper and would welcome comments from CALD.

The following opinions were expressed by members:

• It was suggested that the legal education sub-committee of ILSAC is made up of a diverse group with a wide variety of views regarding legal education. It would be profitable for CALD to make constructive criticisms of the report.

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• The question was posed as to what is meant by the internationalisation of the law degree? This is not precisely defined in the report.

• The report sees internationalisation primarily as a curriculum issue, with the integration of international issues into all courses, the development of skills and the encouragement of an interdisciplinary approach. It does not take a position on the merit of compulsory courses in international law, but rather prefers to see international approaches brought into all courses. The thrust of the report seems to be towards the promotion of international commercial law and global business rather than international public law.

• The report touches on non-curriculum issues – the need for more international students, exchanges, faculty, research and outreach, and the recognition internationally of Australian law degrees. The report sees these issues as ancillary to the curriculum.

• Globalisation imperatives should be demonstrated rather than just assumed or stated as self-evident truths.

• There is no discussion on whether the recommendations should be adopted by all law schools or if there is room for diversity.

• There are no strategies suggested for the adoption of the recommendations, or consideration of the possible obstacles to implementation of the recommendations.

• The report is presented as a position paper rather than a discussion paper.

• There is no serious consideration of the proposition that the in-depth study of Australian legal system will also prepare students for the study of other legal systems.

• There is an assumption that the study of international law gives the necessary skills to practice in any jurisdiction.

• There is an assumption that overseas students coming to Australia are preparing for practice overseas.

• The empirical research data is flawed as a number of courses that are presently offered in Australian universities are not acknowledged.

• There is no discussion on the differences between public international law vs private international law.

• Many universities are already doing what is recommended.

• International recruiters value Australian education which promotes the critical examination of information, as this provides a distinctive approach that is not available in their own countries.

• There is a need to widen the horizons beyond global commercial goals, incorporating general globalisation issues such as human rights issues.

• Questions were asked regarding the status of the report. What impact will it have with the Attorney General?

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• There is an assumption in the report that Australian graduates are not coping well overseas, but there is no justification for that assumption.

• There is no recognition that core electives presently have a comparative dimension already and international law is another layer to this.

• The report is written from the perspective that graduates practise in large law firms in Sydney and Melbourne, however this is not so for a large percentage of graduates. It is important that different law schools are able to cater to their own markets.

• There is no one approach right for all law schools. It is appropriate to have a range of approaches for the different constituencies and objectives. It would be inappropriate to have intervention that presumes a national standard law curriculum.

• Australia is a world leader in Asian legal research the report does not reflect this.

• It was suggested that this may be more an issue for specialist post-graduate study rather than for the general under-graduate degree as the majority of students are going into other areas of practice.

• It was agreed that it is a useful function for ILSAC to monitor what is happening, to collect information and to keep this up-to-date. However, it was not seen as appropriate for an interventionist approach to the curriculum of individual law schools. It was felt that the role of ILSAC is to encourage, to be involved in the collection of information and the dissemination of that information.

• It was suggested that there is a need for a constructive response to the report, but that it seemed to be driven by the large firms who place an emphasis on the export of legal services.

• The report has references to the need for a change in pedagogy, but there is no explanation regarding what shift is proposed.

• There was particular concern regarding recommendation 6.7, with the revision of Priestley 11 seen as potentially very threatening.

• It was suggested that ILSAC may develop resource kits for use by law school staff in the same way that resource kits were used to raise awareness of issues of gender bias.

• It was noted that European universities are teaching specialised masters programs in English and that there is a move in Asia to similarly develop specialised post-graduate degrees

• It was suggested that ILSAC may help to develop a model program at a particular institution.

• There were questions on where funding would come from to redevelop the curriculum changes as suggested in the report.

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• It was suggested that it might be useful to have someone from ILSAC attend a meeting of CALD to discuss these issues.

It was resolved (Resolution 2005/7) that CALD:

• acknowledges that internationalisation is important

• acknowledges the contribution of the report

• encourages the wider and more complete gathering of information to indicate how different institutions have tackled the issues in the report

• supports the possibility of a conference to discuss and debate the issues, to facilitate the sharing of ideas and best practice, and to demonstrate and discuss innovative teaching methods

• cautions that Australian law schools appropriately have diverse priorities and that one size does not necessarily fit all.

It was agreed that the Executive would draft a response and circulate this by email.

4.4. Teaching, learning and grading

5. LAW SCHOOL MATTERS

5.1. External funding

5.2. Internal funding

5.3. Governance and Management

5.4. Accreditation Issues

5.5. Other Matters

5.5.1 *Appointment of new dean for Murdoch University

Professor Neil McLeod asked to speak to the meeting regarding the situation at Murdoch University presently. He gave some background to the present situation stating that when the law faculty was subsumed into a larger school, Professor Ralph Simmonds was able to have an agreement with the University, setting out levels of autonomy, including issues of staffing. Since the resignation of the last dean, there had been little if any specific consultation of law school staff, and the university appointed a new dean who did not have an academic background. For reasons that are not entirely clear, that dean did not commence in February and the school has since had a series of acting deans. The university is now undertaking a head hunting process and may persist in appointing, without specific consultation, a person without the traditional academic qualifications. Would CALD comment on these issues from the standpoint of general principle?

Professor Coper stated that there had been a previous CALD motion supporting the independence of law schools within universities and the description of their heads as deans. He noted that there were two issues: the process of appointment, and the appropriate qualifications for a dean. Professor McLeod stated that the staff at Murdoch

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were hoping particularly for some statement from CALD regarding the issue of appropriate qualifications.

During the following discussion the following issues were debated —

• Whether it would be appropriate for CALD to comment to a university about its internal processes • Whether it would be appropriate to make a statement that law schools are operating in an increasingly highly competitive international environment and that there is a need to maintain the high academic standing across Australia • Whether it would be appropriate to make a general statement regarding the value of consultation, wherever the final decision lay • Whether it would be appropriate to make a statement underlining the importance of clear criteria for the proposed appointment and transparency for the process The meeting concluded that, notwithstanding the earlier CALD resolution, it was inappropriate for CALD to seek to interfere with the right of each university to determine its own processes and criteria for appointment, and that, in any event, it was impossible to be prescriptive or definitive about the criteria for the appointment of a good dean. However, it was not inappropriate for the matter to have been raised in CALD, as the general discussion could provide useful feedback and support on an informal basis.

5.5.2 Death of Foundation Dean of Law at UTS Professor McKeough reported that the Foundation Dean of Law of UTS, Professor Geoffrey Bartholemew, had died during the week before the meeting. It was agreed that a letter should be sent to the family.

6. LEGAL PRACTICE AND LEGAL PROFESSION MATTERS

6.1. National Judicial College of Australia The report from the NJCA was noted.

6.2. Law Admissions Consultative Committee

6.3. National Pro Bono Resource Centre

6.4. *Admission to Practice — Impact of Academic Misconduct The Chair reported that a meeting had been set to discuss with the Law Council of Australia the report of Professor Dalpont and the issues regarding academic misconduct in regard to admission to practice. Professors Michael Lavarch, Bill Ford, Geoff Nicholl and Paul Moyle indicated that they would be available to attend the meeting.

There was some further discussion regarding the concerns that law schools have about this issue. It was hoped that it would be possible to give the courts some guidance as to what is reasonable in their treatment of those applying for admission to practice and to give students certainty regarding how they will be treated by the courts.

7. INTERNATIONAL MATTERS

7.1. ILSAC Report There was no report from ILSAC at this meeting.

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7.2. Visit to Australia of the Bar Council of India Nothing further to report at this time.

7.3. Meeting with Attorney-General’s delegation from Brunei A report from Professor David Barker was noted.

7.4. Meeting with the Malaysian Attorney-General A report on the meeting with the Malaysian Attorney-General from Professor David Barker was noted.

7.5. *International visitors — sharing of information Members considered the possibility of sharing of information regarding any present or future international visitors who may be available to visit or take up short-term appointments at other law schools during their stay in Australia. It was suggested that the CALD website should be upgraded to make this possible, and that it might also cater for short-term exchanges, visits or appointments of local academics.

This issue was referred to the Executive.

7.6. Association of American Law Schools (AALS) Meeting A report on the AALS meeting from Professor David Barker was noted.

7.7. Other matters The meeting considered an email from Adrian Deans regarding the recent changes in requirements for skilled migration that may affect graduates applying for permanent residency. They stated that they required further clarification and referred the issue to the executive committee.

8. PROFESSIONAL DEVELOPMENT FOR DEANS

8.1. Exchange of information

8.2. Activities

9. OTHER BUSINESS There was no other business.

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Action Sheet — Meeting 2005/1

Item Task Responsible Date finalised

2.3 Treasurer’s Report Increase fees by $100 as contribution to pre- Treasurer/Secretary meeting dinners

2.5 Meetings for 2005 Set date of meeting Executive / UTas

3.2 CHASS Finalise CALD membership of CHASS Treasurer/Secretary

3.3 Law Research Network Send around 1994 paper on legal research Secretary

Appoint CALD member as responsible for Executive liaison with LawRN

3.4 DEST Research Quality Exercise Email to deans re discussion and ask them Secretary to send any information so that material is available for consultant

Call for suggestions for consultant – Paul Executive Redmond already suggested

Employ consultant to marshal existing Executive information on the nature of legal research, both its differences and affinities with other disciplines and identify measures of quality, including impact, and recommendations for how any review of quality should proceed

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Circulate report in draft Executive / Secretary

4.3.1 Internationalisation of the Formulate response Executive Curriculum

Circulate in draft Secretary

5.5 Law School Other Matters Send letter to family of foundation dean of Secretary UTS who died last week.

7.5 International visitors Allow registration of interest for international Secretary visitors and intra-national transfers, and upgrade website to permit this

7.7 College of Law enquiry Clarify Secretary/Chair

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