_______________________________________________________________________ MACQUARIE UNIVERSITY MACQUARIE LAW SCHOOL PHD THESIS __________________________________________________________________________ A HISTORY OF AUSTRALIAN LEGAL EDUCATION ___________________________________________________________________________ Candidate: DAVID BARKER Emeritus Professor, University of Technology Sydney LLB (Lond), M.Phil (Kent), LLM (Cantab) This thesis is presented for the degree of Doctor of Philosophy of Law to Macquarie Law School, Faculty of Arts, Macquarie University, Sydney, Australia April 2016 i ii STATEMENT OF CANDIDATE I certify that the work of the thesis entitled ‘A History of Australian Legal Education’ has not previously been submitted for a higher degree to any other university or institution. I also certify that the thesis is an original piece of research, and it has been written by me. Any help and assistance that I have received in my research work, and the preparation of the thesis itself has been appropriately acknowledged. I also certify that all information sources and literature used are indicated in the thesis. I addition, I confirm that parts of the thesis were subject to approval of the University’s Ethics Committee in accordance with final approval reference number: 5201300091(R). .............................................................................................................. David Leslie Allen Barker iii ACKNOWLEDGEMENTS I would like to express my gratitude to my Principal Supervisor Professor Brian Opeskin for his unwavering support during the four years of writing this thesis. His commitment to undertaking meetings on a fortnightly basis, regular emails, critical comments, evaluation and guidance have been much appreciated. I am also grateful to my Co-Supervisor Emeritus Professor Bruce Kercher for his advice and encouragement particularly with regard to his expert knowledge on aspects of the early history of the New South Wales legal system. I also wish to thank two colleagues, Isabella Cosenza and Uche Ngwaba, who provided editorial assistance during the latter part of the thesis process. Lastly, as always, I am grateful to my wife Catherine for both her patience and support at yet another intrusion into our married life. iv ABSTRACT A History of Australian Legal Education This thesis examines the history and development of legal education in Australia by tracing the establishment of university law schools and other forms of legal education in the states and territories from the time of European settlement in 1788 until the present day. While early Australian legal education was founded on historic practices adopted in England and Wales over many centuries, the circumstances of the Australian colonies, and later States, have led to a unique historical trajectory. The thesis considers the critical role played by legal education in shaping the culture of law and thus determining how well the legal system operates in practice. The thesis also takes account of the influence of state and territory regulatory authorities and legal practice admission boards, together with consultative councils and committees. In addition it examines a major challenge for legal educators, namely, the tension that arises between ‘training’ and ‘educating’, which has given rise to a plethora of inquiries and reports in Australia. In the final analysis, the thesis argues that legal education can satisfactorily meet the twin objectives of training individuals as legal practitioners and providing a liberal education that facilitates the acquisition of knowledge and transferable skills. v vi CONTENTS Chapter 1 Introduction 1. Preamble 1 2. Recurrent Themes 4 2.1 The Purpose of Legal Education 4 2.2 Expanding Teaching Methods 5 2.3 Standardising the Law Curriculum 6 2.4 From Teaching Law to Legal Research 8 2.5 Personnel: From Legal Practitioners to Professional Teachers 9 2.6 Teaching Resources 10 2.7 Practical Legal Training 12 2.8 Law Schools and Continuing Legal Education 13 2.9 Institutionalisation 14 3. Structure of the Thesis 14 Chapter 2 Literature Review 1. Introduction 17 2. The Common Law Background 17 3. Australian Origins: Legal Practitioners 23 4. Australian Origins: Formal Qualifications 24 5. Reports, Reviews and Inquiries 26 6. Quasi-Official and Professional Reviews 27 7. Law Students: Their Social Profile and Career Destinations 27 8. Legal Education and Law Teaching Texts 29 9. Law Journals 29 vii 10. Rationale for a Literature Review 31 Chapter 3 Methodology 1. Identifying the Issues 33 2. Appropriate Methodology 34 2.1 Archival and historical 35 2.2 Empirical 37 2.3 The Semi-Structured Interviews 38 3. Contribution of the selected methodologies to the thesis 39 Chapter 4 Early Development: 1788 to 1930 1. Foundations of Australian Legal Education: The English Influence 41 2. Legal Education in the Australian Colonies and the States 43 2.1. New South Wales 44 2.2. Victoria 51 2.3. Tasmania 55 2.4. South Australia 58 2.5. Western Australia 60 2.6. Queensland 62 3. Female Students 64 4. Lack of New Law Schools 65 5. Teaching and Learning 65 6. Reflections on the early development of legal education in Australia 67 Chapter 5 The Waiting Years—1930 to 1960 1. Introduction 73 2. University of Queensland Law Faculty 75 viii 3. Establishment of the Law Council of Australia 76 4. The Great Depression 78 5. World War II 80 6. Post-War Reconstruction and Reflection 83 7. The Australian National University Law School 86 8. Conclusion 88 Chapter 6 Initial Years of Expansion: ‘Second-Wave’ Law Schools–1960 to 1980 1. Introduction 92 2. Monash University Law School 94 2.1 Alternative Approach to the Law Curriculum 96 2.2 The Law Library 97 2.3 The Commencement of Teaching 97 2.4 Subsequent History 99 3 University of New South Wales Law School 100 3.1 Laying the Foundations 101 3.2 Selecting a New Dean of Law 101 3.3 Creating a New and Different Law School 102 3.4 Developing the Law School Ethos 104 3.5 Questioning the Law School Ethos 105 3.6 Assessing the Law School in the 1970s 106 3.7 Recruiting Prominent Law Academic Staff Members 107 3.8 Launching Co-curricular Activities 108 3.9 Assessing the Later Years 109 4 Macquarie University Law School 111 4.1 Early Academic Staff Appointments 111 4.2 The Formative Years 112 ix 4.3 Renewal and Consolidation 114 5 University of Technology, Sydney, Law School 115 5.1 The Early Years 116 5.2 Subsequent Developments 117 6 Queensland University of Technology Law School 118 6.1 Developing the Part-time Student Intake 120 6.2 QIT/QUT Law Library 121 6.3 Evolution and Growth 122 7 First-Wave Law Schools Revisited 123 7.1 University of Sydney Law School 123 7.2 University of Melbourne Law School 125 7.3 University of Tasmania Law School 126 7.4 University of Adelaide Law School 127 7.5 University of Western Australia Law School 129 7.6 University of Queensland Law School 130 8 Conclusion 131 Chapter 7 An Avalanche of Law Schools: ‘Third Wave’ Law Schools—1989 to 2015 1. Heralding the Exploding Market for Legal Education 135 2. Characteristics of the ‘Third Wave’ Law Schools 138 3. Identifying Groups of New Law Schools 141 4. ‘Third’ Wave Law Schools by State and Territory 142 4.1 New South Wales 142 4.2 Victoria 147 4.3 Queensland 151 4.4 Western Australia 156 4.5 South Australia 160 x 4.6 Northern Territory 162 4.7 Australian Capital Territory 164 5. The Effect of ‘Third Wave’ Law Schools on Legal Education 165 Chapter 8 External Factors Affecting Australian Legal Education 1. Stakeholders in Legal Education 171 2. Government Funding 173 3. Influence of State and Territory Committees and Boards 180 3.1 Admission Boards 180 3.2 Academic Requirements for Admission as a Legal Practitioner 185 3.3 Practical Legal Training Requirements 187 4. The Evolution of Ad Hoc Law Associations 189 4.1 Australasian Law Teachers Association 190 4.2 Council of Australian Law Deans (CALD) 196 4.3 Australian Academy of Law 200 4.4 Australian Law Students Association (ALSA) 204 4.5 Law Council of Australia: Legal Education Committee 206 4.6 Australasian Professional Legal Education Council (APLEC) 207 4.7 International Legal Services Advisory Council (ILSAC) 209 5. External Influences on Australian Legal Education 210 Chapter 9 Legal Education Reforms: Concerns, Innovation and Transformation 1. Introduction 213 2. Recommendations for Change to Tertiary Legal Education 214 2.1. Standards for Australian Law Schools 215 2.2. Learning and Teaching in the Discipline of Law 219 2.3. Threshold Learning Outcomes 222 xi 2.4. Reflection 224 3. Changing Patterns of Legal Education: Teaching and Learning beyond the Law Schools 225 3.1 Articled Clerks and Practical Legal Training 226 3.2 Continuing Legal Education 230 3.3 Admission Boards Examinations and the Law Extension Course 232 3.4 Access to Legal Education 234 3.5 Access to Free Legal Information 237 4. Conclusion 239 Chapter 10 The Four Pillars of Australian Legal Education (and Other Reports) 1. Introduction 244 2. Influential Reports on Australian Legal Education 246 3. The Martin Committee Report 246 3.1 Creation of a Binary System 248 3.2 Legal Education Influence 248 3.3 Modernisation of Legal Education 250 3.4 Articled Clerks System and Practical Legal Training 251 3.5 Expansion of Legal Education 252 3.6 Conclusion 255 4. The Bowen Report 256 4.1 Background to the Bowen Report 257 4.2 Requirements for Admission to Practice in New South Wales 258 4.3 Policies and Outcomes for Legal Education in New South Wales 259 4.4 Additional Forms of Legal Education? 262 4.5 Legal Paraprofessionals 270 4.6 Council of Legal Education 271 xii 4.7 Conclusions and Recommendations of the Bowen Committee 273 5. The Pearce Report 275 5.1 Contents of the Report 276 5.2 The Nature of the Report 278 5.3 The Macquarie Law School Issue 282 5.4 A Restriction on Further New Law Schools 285 5.5 The Legacy 286 6.