From Court to College: The institutionalisation of judicial education during its first decade in Victoria, 2005–2015 Trischa Mann orcid.org/0000-0003-0651-9690 Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy June 2018 Graduate School of Education The University of Melbourne ABSTRACT The direction of movement in legal education generally has been away from the apprenticeship model and informal, practice-based learning. The jury, case-based reasoning with room for judicial discretion, and the apprenticeship system have been three great strengths of the common law system. But judicial discretion in general has been steadily reduced by legislation, and control of judicial discretion in sentencing was strongly linked to the perceived need for judicial education. And while the virtues of apprenticeship and mentoring are being rediscovered in academia, both law and legal education have become increasingly standardised and institutionalized. Opportunities for informal, observational and supervised learning, the cornerstones of the apprenticeship model, are correspondingly diminished. The change began with the profession’s handing over of its gatekeeper role to universities (degrees in place of articles), and continued in the transition from voluntary to mandatory continuing education in the profession in 2004, with quantitative measures, record-keeping and attendance requirements, and domination of the process by the Law Institute and the Leo Cussen Institute, the chief providers of continuing legal education. Pre-admission Articles gave way to practical training courses, which then became graduate diplomas in legal practice. Bar mentorship at first included, then became increasingly reliant on, a formal Bar Readers’ course and increasingly complex Reading Regulations, and finally a Bar entrance exam. The impetus towards formalised education continued with the introduction of programmed education for judges, again with a published curriculum and quantitative attendance benchmarks for ‘education’ that is in reality ‘training’ on a corporate model consisting largely of programmed events. This case study covers the first decade of judicial education in Victoria. It focuses on judicial education for Supreme Court judges in the context of the broader field of legal education, tracing its progress between 2005 and 2015. A snapshot of the situation not long after its introduction is provided by original research data gathered in 2008, when members of the Bar were relatively unaware of the program for judges and the offerings were meagre. The evolution of judicial education since that point provides additional background and foundation for research which should now be undertaken: assessment of judicial education the curriculum and the program of judicial education after ten years. –ii– Declaration This is to certify that (i) the thesis comprises only my original work towards the PhD. (ii) due acknowledgement has been made in the text to all other material used. (iii) the thesis is less than 100,000 words in length, exclusive of tables, maps, bibliographies and appendices. Signed: –iii– Acknowledgments I would like to thank Professor Gabriele Lakomski, my original primary supervisor, and my nominal second supervisor, Professor David Beckett, each of whom, in their different ways, gave me the space beyond what the requirements of the university generally permit. In the end, its completion is owed to the wonderfully kind, supportive and persistent Kylie Smith and Belinda Prakhoff, and to Amanda Whiting, who with great generosity and kind encouragement read two drafts and gave me valuable advice advice. The size of the burdens placed on others by this work is impossible to recount. For years it gave every indication of being, as lawyers call it, off on a frolic of its own. I can only repeat Wittgenstein’s Proposition 7, gesturing vaguely towards my long-suffering family, friends, and academic advisors: Whereof one cannot speak, thereof one must be silent, and merely say a heartfelt thank you. –iv– The grand, leading principle, towards which every argument unfolded in these pages directly converges, is the absolute and essential importance of human development in its richest diversity. — Wilhelm von Humboldt, Sphere and Duties of Government, as quoted by J.S. Mill in On Liberty (1859)1 1 ‘Following von Humboldt, Mill specifies two conditions as requirements for the development of individuality, namely, freedom and variety of situations. The deadening effect of custom, and the uniformity of conduct and opinions that it generates, is to be checked by the freedom to express and discuss all views. It is in the atmosphere of freedom that persons are able to develop desires and opinions of “home growth”’ (C.L. Ten, Introduction to On Liberty (2005:10)). –v– Table of Contents List of Acronyms and Abbreviations vii List of Tables and Figures ix 1 Introduction and Overview 1 2 Selected Literature Review 15 3 Methodology 77 4 Case Study: A Snapshot, and Themes Emerging 104 Part 4A: Analysis of the Bar Survey 105 Part 4B: Themes 131 5 Conclusion and Perspectives: Beyond Training and Within Culture 228 Afterword 262 References (works cited) 264 Appendices A Detailed Responses to Bar Survey 316 B Benches of SCV 372 C Ngrams of terms from the literature 391 –vi– List of Acronyms and Abbreviations CLE Continuing legal education LCI Leo Cussen Institute AHELO Assessment of Higher Education Learning Outcomes AIJA Australian Institute of Judicial Administration APS Australian Public Service AQF Australian Quality Framework AWB Australian Wheat Board CASP Critical Appraisal Skills Program CEB Corporate Executive Board CoP Community of practice CPD Continuing Professional Development CSR Corporate social responsibility CSV Court Services Victoria ESRC Economic and Social Research Council ICT Information and communications technology JCA Judicial Conference of Australia JCV Judicial College of Victoria JE Judicial education JET Judicial education and training LIAC Legal Information Access Centre LIV Law Institute of Victoria LPD Legal professional development MCLE Mandatory continuing legal education MCTEE Ministerial Council for Tertiary Education and Employment MSP Math Science Partnerships –vii– NCVER National Centre for Vocational Education Research NJC National Judicial College NSW New South Wales OECD Organisation for Economic Cooperation and Development OGI Open Government Initiative PAR Participatory Action Research RJL Reasonable judicial learners RR Response Rate TOCHI Transactions on Computer-Human Interaction UCL University College London Cross-references and abbreviations in data Internal cross-references are given in square brackets, thus: see [2.2.1]. Direct quotation of material from interviews is indicated thus: [QC] for silk/senior counsel; [J] for judge; [B] for barrister; [BC] for barristers’ clerk. A note on citation of works by Dewey Major works are cited in the usual way, and these appear in the reference list. However, Dewey references given with the notation [MWv13:22] signify the electronic version of the Collected Works (Boydston 1969-72, 1976-83, 1981-90). The abbreviations [EW], [MW] and [LW] stand for the early, middle and later works. The Collected Works are: Boydston, Jo Ann (ed), (1969-72). John Dewey: The Early Works: 1882-1898. Carbondale and Edwardsville: Southern Illinois University Press. Boydston, Jo Ann (ed), (1976-83). John Dewey: The Middle Works: 1899-1924. Carbondale and Edwardsville: Southern Illinois University Press. Boydston, Jo Ann (ed), (1981-90). John Dewey: The Later Works: 1925-1953. Carbondale and Edwardsville: Southern Illinois University Press. –viii– List of Tables and Figures Tables Table 3.1 Tashakkori and Teddlie’s classification of single-strand mixed-model designs 82 Table3.2 Responses by List 95 Table 4B.1 Content analysis of JCV Judicial Education video 164 Figures Figure 4B.1 The original cale ndar of events 169 Figure 4B.2 Ten years:Justicia sits wit h her sword 170 Figure 4B.3 Since then: The prospectuses for 2014 and 2015 170 Figure 4B.4 Judicial educators Figure 4B.5 Chart of Benches 173 Figure 4B.6 Roderick Pitt Meagher 175 Figure 4B.7 The family sitting in the jury box 195 201 Figure 4B.8 I go if I can. Only chance I get to get m’ gear on 170 Figure 4B.9 The Red Mass, 30 January 2012 202 Figure 4B.10 Victorian Chief Justice Marilyn Warren 203 –ix– [this page is intentionally blank] CHAPTER 1 Introduction and Overview [T]he operations by means of which we assemble our experiential world can be explored, and … an aware- ness of this operating … can help us do it differently and, perhaps, better. – Ernst von Glaserfeld (1984) Chapter contents 1.1 Introduction 1.2 Legal habits and failure to establish educational purpose 1.3 Themes of inquiry 1.4 Structure of dissertation 1.1 Introduction The purpose of this exploratory research in judicial education (JE) is to begin the neglected task of critically examining JE, opening up the discussion in order to develop some understanding of what JE is for, educationally speaking, and thereby suggest ways it could be improved. Without some sense of what quality means in this context, after some 30 years in North America and more than a decade in Australia, JE stands as an untested fait accompli with political, rather than educational, origins and an operating model suggestive of corporate training strategies. The extent to which this is desirable, or tolerable, is explored. In Australia, unlike the US, no judges are