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Abstract

Yes Yes
Clinical Legal Education
in Australia: A Historical
Perspective
Jeff Giddings*
Introduction
The evening edition of the Melbourne Herald for Saturday, January 7, 1933 contains what is
probably the first Australian reference to the clinical teaching of law students.1Frank Russell, a
lawyer, noted that, unlike medical clinics which provided ‘the finest medical attention to the
suffering poor’, legal clinics were not well known in Australia. Russell noted that legal clinics were
a familiar phenomenon in the U.S.A. and also existed in some countries of Europe and had been
used in England. Russell outlined the operations of the Legal Clinic at the University of Southern
California. Students interviewed indigent clients and then in appropriate cases provided ongoing
assistance. Their work was supervised by experienced lawyers and the Dean of the Faculty of Law
would attend from time to time ‘to decide knotty cases, not of law, but of the propriety of the
Clinic acting for applicants’.2
Russell’s description is of a real client clinic with a strong community service focus, a clinic
committed to the delivery of legal services to the disadvantaged. Australian clinical legal education
programs (CLE) have tended to make use of this model since the establishment of the clinical
program at Monash University in 1975. While the live-client model has been very influential, the
history of Australian CLE is quite eclectic, with the stories and experiences varying significantly
from state to state, law school to law school. The establishment of some programs was heavily
student-driven while others saw a ‘top down’ approach taken, with academics developing programs
which have then been enthusiastically accepted by students.
The article focuses on real client clinical work with participating students being supervised by lawyer
academics while also referring to other models. This model has enabled clinics to retain a strong
commitment to community service whilst also facilitating close work with small groups of students.
Clinical Legal Education in Australia: A Historical Perspective
7
* Associate Professor, Law School, Griffith University
Thanks to the anonymous reviewer and the editors for
their insightful comments on an earlier version of this
article.
1 F. Russell, ‘How to Educate Young Lawyers: Legal
Clinics in the U.S.A.’ Herald, Saturday Evening,
January 7, 1933.
2 Id
This has been important to the growing acceptance and popularity of CLE with students, law
schools, universities and the legal profession. Use of the real-client model also suggests an aversion
to the value-free approach to legal education exemplified by the Socratic appellate case method.
The first part of the article addresses the development of Australia’s earliest clinical programs,
those at Monash University, La Trobe University and the University of New South Wales.
The second part provides an overview of increased Australian interest in CLE during the 1990s
while the third part identifies some themes important in the history of Australian CLE.
Early days for Australian Clinical Legal Education
While the first formal clinical legal education program in Australia was established in 1975 at Monash
University, several legal referral services involving students had earlier been established.
In June 1970, Melbourne University law students opened a free legal referral service at the Church of
All Nations in Carlton. Initially, 5 students participated in the service.3In 1971, a telephone referral
service run by Monash University law student volunteers with support from Law School academics
commenced operation at the premises of the Melbourne Citizens Advice Bureau.4Legal academics
involved in these services, in particular Ronald Sackville at Melbourne and Peter Hanks at Monash,
were also heavily involved in the rapid development of Australian legal aid policy around this time.5
In 1972, the Law Society at the Australian National University established a Legal Referral Service.
The service ceased operations the following year, ‘as a result of the establishment of “official” legal
aid offices which led to the loss of a sense of purpose among students and through a lack of
leadership of the participants. Another difficulty which faced the service was a degree of reserve
concerning its function among the Canberra legal profession.’6
Monash
Students played a key role in the establishment of the Monash clinical program in 1975. Simon
Smith traces the origins of the program to the establishment in 1971 of the Monash Student Legal
Referral Service, noted above. ‘Working on roster, third, fourth and final year students would take
telephone calls seeking legal assistance. As soon as the problem was identified a member of the
Monash academic staff would be telephoned for the legal advice and referral which was then
telephoned back to the original caller.’7The Referral Service was not part of the Monash
curriculum and was not faculty-approved.8Students were not formally prepared for their role nor
was there any regulation of the academic advisors.9
8
Journal of Clinical Legal Education June 2003
3 J. Chesterman, Poverty Law and Social Change: The
Story of the Fitzroy Legal Service, 1996, Melbourne
University Press, 4 & 26.
4 S. Smith, ‘Clinical Legal Education: The Case of
Springvale Legal Service’ in Neal, D., (ed) On Tap,
Not on Top: Legal Centres in Australia 1972–1982, 49
5 In his role as Commissioner for Law and Poverty to the
Commission of Inquiry into Poverty 1972, Sackville
wrote several influential reports, Legal Aid in Australia
(1972), Legal Needs of the Poor (1975) and Law and
Poverty in Australia (1976). Hanks published several
reports for Commonwealth agencies, including
Relationship Between Legal Aid Agencies and Social
Agencies (1983) and Social Indicators and the Delivery
of Legal Services (1987).
6 J. Goldring & R. Hamilton, A Course of “Clinical
Legal Education” as part of the Law Degree Course at
A.N.U. Discussion Paper, 14/4/78, 2.
7 S. Smith, Above, note 4, 49
8 G. Nash, ‘Clinical Education in Australia’ Council on
Legal Education for Professional Responsibility, Vol.
XII, No. 1, (1979) 6
9 Smith, above, note 4, 49
Early in 1972, the referral service began running afternoon sessions at the Springvale Community
Aid and Advice Bureau. This involved students in face-to-face interviews with clients with support
from Bureau staff. Smith notes that student frustration with the limited nature of referral work and
the example provided by the establishment in December 1972 of the Fitzroy Legal Service,
contributed to Springvale Legal Service being established in February 1973.10 Law students were
the main contributors to what was, quite understandably, a very busy and fairly disorganised
service. Two of the students most heavily involved in the development of Springvale Legal Service,
Neil Rees and Simon Smith, went on to play critical roles in the development of Australian CLE.
Smith spent more than 10 years as Coordinator of Springvale Legal Service. Rees was the academic
responsible for developing and implementing the UNSW clinical program in the early 1980s and
later became Foundation Dean of the University of Newcastle Law School.
Monash academics, including Peter Hanks and Professor Gerry Nash, became involved in
Springvale Legal Service and this prompted law school interest in the prospect of a clinical
program. During 1973 and 1974, this prospect was discussed in forums including the Faculty
Board. A Committee on Clinical Legal Education, chaired by Hanks, met after Faculty Board gave
in principle approval to the establishment of a clinical program.11 Nash developed a subject
proposal which was approved by the Faculty Board early in 1974.12 Nash did so after lengthy
consultation with Professor Arthur Berney who was visiting Monash from Boston College Law
School.
The elective subject ‘Professional Practice’ was offered on a pilot basis in second semester, 1975.
The subject was based at Springvale Legal Service with 15 students being supervised by Professor
Nash with assistance provided by three practitioners as part-time ‘tutors’. The three practitioners
were all active volunteers at the service and they each attended one evening per week to provide
direct supervision of student work. Nash’s supervisory role was of a more general nature. Nash
had agreed to run the subject in an effort to overcome objections related to the cost of the
program. This supervision represented half of Nash’s teaching commitment for the semester.13
The first offering was obviously quite chaotic. According to Nash, he and Harry Reicher ‘were just
flat-out.’ Professional Practice was then run over the summer of 1975/76. ‘We had to run it over
summer. We couldn’t tell the clients to come back in 3 months time.’ The summer subject offering
was a first both for Monash University and for Australian law schools.14
Two further Monash clinic sites were subsequently developed; the Doveton Legal Service, which
opened in mid-1977 and Monash-Oakleigh Legal Service, which opened in 1978. The possibility of
establishing a clinic at the proposed Springvale office of the Australian Legal Aid Office, discussed
in 1975, had to be shelved when that office did not open.15
Clinical Legal Education in Australia: A Historical Perspective
9
10 Id
11 P. Hanks, ‘Clinical Legal Education’, Paper to members
of the Committee on Clinical Legal Education, 3 May,
1974.
12 Nash, above, note 8, 6
13 Ibid, 8
14 Gerry Nash, personal interview, 1/12/97
15 It had been anticipated that a large number of branch
offices of the ALAO would be opened during 1975 but
this did not eventuate due to resistance from the legal
profession and the change of Commonwealth
government in December, 1975. For an account of
this curtailment of the ALAO, see Tomsen, S.,
‘Professionalism and State Engagement: Lawyers and
Legal Aid Policy in Australia in the 1970’s and 1980’s’
(1992) 28 Australian and New Zealand Journal of
Sociology 307
Each of the clinics relied heavily on part-time tutors. One of the supervisors at Doveton was a local
solicitor, Michael Duffy, who subsequently was Federal Attorney-General in the Hawke Labor
Government.16 Nash hoped that over time more academics would become involved in the clinic
and would be better teachers because of this involvement. However, this did not happen to the
extent Nash hoped, with the clinics remaining relatively self-contained.17
The 3 Monash clinic sites differed in a number of significant aspects. Nash stated that it was
‘interesting that the official philosophy (so far as the university is concerned and so far as I am
concerned) behind the University operation of these three legal services is identical but the nature
of the operation tends to differ.’18 While the ‘great majority’ of Springvale Legal Service clients
were of non-English speaking origin, the corresponding figure for Doveton was 25%.19 While
arrangements were made at Doveton to limit to 20 the number of clients seen during any one
session, the ‘Springvale operation has always been premised on the assumption that all-comers
should be served.’20
Nash also notes that the emphasis at Springvale was on ‘informality and assistance to the client.
Because of the ethos of the establishment, the way in which it originally began, and the personality
of those who work there, the educational element is perhaps subservient to the legal aid element.’21
The person who was central to the development of the particular Springvale Legal Service focus
was Simon Smith. Smith was employed as an administrative assistant by Nash, by then the Law
School Dean, in January 1978 although Smith’s work was focussed on the coordination of the
Springvale Legal Service legal practice and supervising students. The fact that Smith was employed
as an administrative assistant rather than as an academic highlights that, although clinical legal
education was further advanced at Monash than at any other Australian university, its legitimacy
had not yet been accepted. Smith’s position was not converted to a lectureship until 1982, 7 years
after establishment of the clinical program.
The importance of Simon Smith’s coordination role was increased because of the program’s heavy
reliance on part-time teachers. 11 part-time tutors were involved in student supervision at the
Monash clinic sites during the three semesters completed in the 1979–80 financial year.22 Smith
later referred to a stage where 8 different people were involved in supervision and teaching at
Springvale Legal Service alone and the difficulties this caused for students in terms of access to
tutors for follow-up supervision. Smith described this situation as unworkable.23 Further
difficulties arose due to different styles of supervision. Guy Powles, then coordinator of the
Monash clinical program, expressed concern that the clinical program not be built up through the
employment of part time staff on an ad hoc basis:
Above all else, the course requires continuity of supervision. What is needed is the
part-time commitment of a full-time lecturer with good all round practical
experience.’24
10
Journal of Clinical Legal Education June 2003
16 Nash, interview, 1/12/97
17 Nash, interview, 1/12/97
18 Nash, above, note 8, 15
19 Ibid, 13
20 Ibid, 14. It was not until November 1987 that a limit of
15 client interviews per session was introduced. See K.
Greenwood, It Seemed Like a Good Idea at the Time,
1994, Springvale Legal Service, 127.
21 Ibid, 12
22 Attachment to Memorandum from Guy Powles to
Professor Nash Re: Professional Practice tutors dated 4
October 1979.
23 Smith, above, note 4, 51
24 Id.
At Monash, there was also a ‘Godfather Scheme’ whereby students were given the opportunity to
shadow experienced practitioners. In 1980, there were 69 students placed, including the present
Victorian Deputy Premier, John Thwaites and ABC Radio presenter Jon Faine. The program
appears to have suffered from the inconsistencies in student learning which bedevil these external
part-time programs.
The Monash clinical program has benefited greatly from continuity of staff in several key
positions. Sue Campbell has coordinated the Monash program since the mid-1980s and both
Simon Smith and Adrian Evans spent in excess of 10 years as Coordinator of Springvale Legal
Service. Ross Hyams, currently Director of what is now known as the Springvale-Monash Legal
Service, has also worked in the clinical program for more than 10 years, principally as Coordinator
of Monash-Oakleigh Legal Service. During the 1990s, Monash developed specialist clinics as well
as a model for involving clinic students in community development work, significant initiatives in
the development of Australian CLE.
La Trobe
The La Trobe University clinical program can be traced to the 1974 establishment of the La Trobe
Legal Service by staff from the Legal Studies Department.25 There was strong student demand
both for the provision of legal services to the student population and for involvement in the
delivery of those services. In 1976, the La Trobe Legal Service employed a lawyer with Students’
Representative Council funds and by 1977 ‘it was clear that the time was ripe to begin training
“para-legal” personnel for work in the service.’26 This was done through a clinical course
established by Adrian Evans, then a solicitor at the La Trobe SRC Legal Service, called Clinical
Legal Education. Twelve students were placed with the SRC Legal Service as well as participating
in seminars on interviewing skills and various substantive legal areas. The Legal Studies
Department made a payment to the Legal Service for having the students on placement.27
In 1978, the Legal Studies Department also employed a lecturer in Legal Aid with responsibility
for establishing the West Heidelberg Community Legal Service (WHCLS) at the local West
Heidelberg Community Centre28 which became the second placement site for the La Trobe Legal
Studies students. Phil Molan was the first person appointed to that position, which he held until
1981.29 A course titled Law and Social Justice developed out of the student work at WHCLS and
students from the course continued to be placed at WHCLS until 1987.30
The decision to provide a clinical program for legal studies students was based on the view that the
agents for change of the legal system would come from outside the legal profession and that para-
legals had a key role to play in improving the workings of the legal system.31 A focus of the
program was the training of students to work as para-legal volunteers at the La Trobe Legal Service
with such work continuing after the students’ completion of the clinical program.
Clinical Legal Education in Australia: A Historical Perspective
11
25 A. Evans, ‘Para-legal Training at La Trobe University’
(1978) 3 (2) Legal Service Bulletin 65.
26 Id.
27 M. A. Noone, ‘Draft History of Clinical Legal
Education in Legal Studies Department’ (undated).
28 D. Neal, ‘The New Lawyer Bloke’ (1978) 3 (4) Legal
Service Bulletin 148.
29 Phil Molan discussed his work in community legal
centres, including the development of the West
Heidelberg Community Legal Service in an interview
with David Neal, ‘Interviews: Some Founding Mothers
and Fathers’ in Neal, D., (ed) On Tap, Not on Top:
Legal Centres in Australia 1972–1982, 60–64.
30 Noone, above, note 27.
31 A. Evans, interview, 17 October 1997.
In 1986, Adrian Evans and Mary Anne Noone (who in 1985 had replaced Kevin Bell in the lecturer
position originally held by Phil Molan) reviewed the Clinical Legal Education course with a view
to involving both the La Trobe SRC Legal Service and WHCLS in a 2-semester course.
The offering of placements at 2 legal services was considered to enhance the learning experience
of students. The revised Clinical Legal Education course was first offered in 1987 with a quota of
24 students. The course ‘sought to link clinical skills, substantive law, research, exposure to case
work environments and techniques of public interest legal analysis.’32
The La Trobe SRC Legal Service maintained an involvement in the clinical program until 1992 and
WHCLS remains a major placement site. The distinctive nature of the La Trobe program, as one
offered to non-law students, changed in 1991 when the Legal Studies Department became the
School of Law and Legal Studies.33
During the 1990s, the La Trobe clinical program pioneered the development of links with a legal
aid commission rather than a community legal centre. From 1994, La Trobe offered an optional
one-semester subject, Legal Practice and Conduct, which included clinical placements at the Preston
Office of the then Legal Aid Commission of Victoria (now Victoria Legal Aid).34 In 1996,
La Trobe commenced a mentoring program which saw a small number of second year students
individually placed with magistrates during one semester. There is clearly a strong commitment at
La Trobe to continued development of its clinical program.
Several discussions of Australian clinical programs have ignored La Trobe. The discussion of
clinical legal education in the Pearce Committee Report focussed on Monash and UNSW.
The 1990 Report of the Queensland Working Party on Clinical Legal Education Discussion Paper
reviewed the clinics at Monash and UNSW and 3 Canadian clinics but makes no reference to
La Trobe.35 Perhaps this can be explained by a view amongst law schools that a clinical program in
a Legal Studies Department did not provide useful insights for the establishment of a clinic within
a law school. In fact, the La Trobe program offers many useful insights into the potential for
clinical experiences to show students how the law and legal system may be used to promote social
change.
12
Journal of Clinical Legal Education June 2003
32 Noone, above, note 27.
33 M. A. Noone ‘Australian Community Legal Centres –
the University Connection’ in Cooper, J & Trubek, L.
(eds) 1997, Educating for Justice: Social Values &
Legal Education, Dartmouth, 12.
34 J. Dickson & M. A. Noone, ‘The Challenge of
Teaching Professional Ethics’, paper presented at the
Australasian Professional Legal Education Council
International Conference, Skills Development for
Tomorrow’s Lawyers: Needs and Strategies, Sydney,
September 1996, published in Conference Papers
Volume 2, 847, 850.
35 D. Pearce, Australian Law Schools: A Discipline
Assessment for the Commonwealth Tertiary Education
Commission, 1987, AGPS. See Volume 1, 115,
122–129 (Perhaps this is explained by the Pearce
Committee focus on law schools rather than legal studies
departments such as that at La Trobe), Queensland
Association of Independent Legal Services, Clinical
Legal Education Committee, Report of the Clinical
Legal Education Committee, November 1990,
Appendix B, 5–6. For a more recent example of the lack
of attention paid to the La Trobe clinical program, see
I. Styles & A. Zariski, ‘Law Clinics and the Promotion
of Public Interest Lawyering’ (2001) 19 Law in Context
65, 66 where reference is made to the positive
experiences of the Monash and UNSW clinics but no
reference is made to La Trobe.
University of New South Wales
The University of New South Wales (UNSW) established its in-house clinical legal education
program in 1981 with the opening of Kingsford Legal Centre. Neil Rees, the founding director of
Kingsford Legal Centre, attributes the development of the UNSW clinical program to the desire
of the recently established UNSW to challenge the pre-eminence of Sydney University. In the late-
1970s, Sydney University Law School was considered by UNSW to be fairly weak ‘so they saw law
as an area where they could overtake Sydney fairly quickly.’36
Both simulation programs and an externship program, established in mid-1975, preceded the
establishment of the in-house clinical program. Neil Rees recalls an incident in 1980 when, having
been at the UNSW law school for only a week, ‘a student came in and told me “I have relatives in
a legal firm in New York so I’m going to do my Clinical Legal Experience placement in New York.
Will you approve this?”’. The UNSW Trial Practice subject was ‘your classical simulation-style
subject, running through a whole range of litigation with students playing all the major roles.’37
The UNSW clinical program is distinctive in a number of respects. Kingsford Legal Centre developed
a very strong test case focus, conducting a series of major anti-discrimination cases. UNSW also used
Kingsford Legal Centre to forge novel links between the teaching of law and other disciplines, in this
case social work. Kingsford Legal Centre also introduced student supervision practices different to
those employed by the Monash program. (These differences are discussed later in this article)
Initially, it had been proposed to operate the UNSW clinical program from Redfern Legal Centre.
Redfern Legal Centre was established in 197738 and several of the key people in the operation of
the centre were academics from the UNSW Law School. In Neil Rees’ view, ‘the people who ran
Redfern were the people from the UNSW Law School. They were the same people just with
different hats on. The movers and shakers at Redfern were John Basten, Terry Budden, John
Kirkwood, Robyn Lansdowne.’39
A meeting was convened by Rees early in 1980 with key Redfern people (those referred to above
plus key staff – Roger West and Clare Petre). ‘The Redfern people pretty quickly decided that it
would somehow taint the intellectual purity of the Redfern Legal Centre and they were reasonably
well funded, didn’t want any resources UNSW could offer them and, I think, feared a university
takeover of Redfern at the time... These were fairly junior members of staff and they feared the
professoriate taking over their baby.’ While Redfern Legal Centre did not become part of the
clinical program, harmonious relationships were maintained between the law school and the centre.
The planning for the clinical program clearly benefited from Neil Rees’ experience at Monash with
the development of Springvale Legal Service. The importance of having the clinic co-
ordinator/director as a full-time member of academic staff was recognised. Student supervision
and the teaching of the classroom component of the subject comprised this staff member’s
teaching load.40 Rees also noted, ‘We should learn from the Monash experience and discourage the
use of academic teaching staff who are admitted to practise, but who may lack substantial
experience in the necessary areas of law.’41
Clinical Legal Education in Australia: A Historical Perspective
13
36 Neil Rees, personal interview, 4 September 1997
37 Id
38 See D. Neal (ed) On Tap, Not On Top: Legal Centres
in Australia 1972–1982, 1984, Legal Service Bulletin
Co-operative.
39 Neil Rees, personal interview, 4 September 1997
40 Neil Rees, Clinical Legal Education (18 March 1981),
15
41 Id
As late as the end of March 1981, Neil Rees was writing that it would take a considerable period
of time to establish the clinic. ‘It may be possible, if finance were available, to open the clinic
sometime in the second half of 1981. It might be more realistic to aim for a date early in 1982.’42
However, the Kingsford Legal Centre was established on 27 July 1981. It was officially opened by
Mr Frank Walker, the then Attorney-General of New South Wales on 9 September 1981.’43
The UNSW Law School encountered significant resistance from the Law Society of New South
Wales to the establishment of the clinic. Neil Rees attributes this in part to the links between the
law school and Redfern Legal Centre. ‘Redfern had had lots of run-ins with the Law Society from
Day One. The people at Redfern were behind the establishment of the Australian Legal Workers
Group which was setting itself up as the alternative law society for radical young lawyers. ALWG
was a very volatile organisation... The Law Society saw Redfern, ALWG, Kingsford, Ron Sackville
and John Basten and others as this sort of amorphous group of feared lefties. The Aboriginal Legal
Service as well. The tentacles were all there. They were pretty horrified as to what was going to
happen... So, I found myself at 30 years of age sitting down negotiating with the President and
Secretary of the Law Society about the opening of Kingsford and what type of practising
certificate they were prepared to give me.’44
Kingsford Legal Centre quickly developed a substantial litigation practice, especially in the areas of
anti-discrimination and domestic violence. Up to 75 anti-discrimination cases were conducted each
year and on 6 occasions, these cases were taken to the High Court of Australia.45 Domestic
violence issues were the key focus for Robyn Lansdowne, the casework lawyer at Kingsford Legal
Centre from 1982 to 1986.
While Kingsford’s litigation profile was of considerable benefit to the law school, the relationship
between the clinic teachers and other academics suffered when the clinicians sought to have time
away from the clinic, either for sabbaticals or to teach other subjects in the law school. The catalyst
for the departure from Kingsford Legal Centre of Neil Rees and Robyn Lansdowne in 1986 was ‘a
big blow-up between clinicians and this new school of legal scholars who were great supporters of
clinical in theory so long as two things happened. One, it didn’t suck away what they thought was
a disproportionate share of the funds and two, that they weren’t asked to go and work there.’46
In 1987, the schools of law and social work were more successful in developing links. The Law
Foundation of New South Wales funded the School of Social Work at UNSW to report on the
feasibility of a legal studies course in the social work degree. As a result of that report, the School
obtained a development grant from the University to commence, in 1989, a social work placement
at Kingsford Legal Centre. The grant was necessary to cover the cost of a social work supervisor
at the Centre, and to defray the administrative costs to the Centre of the social work placement.47
In 1991, Kingsford Legal Centre Director, Simon Rice reported that the ‘presence of an
academic/practitioner from the Social Work School, as well as three students on placement, has
been of great benefit to the social work studies. More importantly, from the clinical legal education
view, it has added a new dimension to the legal casework possibilities and has invited students to
14
Journal of Clinical Legal Education June 2003
42 Ibid, 7
43 N. Rees & R. Lansdowne, Report to the School on
Clinical Legal Education, 6 October 1983, 3
44 Rees, personal interview, 4 September 1997
45 J. Giddings, ‘Casework, Bloody Casework’ (1992) 17
(6) Alternative Law Journal 261, 263
46 Rees, personal interview, 4 September 1997
47 S. Rice, Review of the Clinical Legal Education
Program in the Law Faculty at the University of New
South Wales (June 1991) 15
take a close look at the way lawyers may be introduced to working with related professions.’ ‘It has
been a considerable challenge to the supervisors and to the students to explore the possibilities of
the two professions working co-operatively. The project requires further time and resources, but
shows considerable promise if it can be maintained.’48
Supervision of First Interviews – a key teaching difference
In a 1984 paper, Robyn Lansdowne & Neil Rees, the clinic teachers at Kingsford, noted that they
faced the ‘difficult task of leading students to believe that they must accept responsibility for the
conduct of a particular case whilst at the same time ensuring that our clients are not disadvantaged
in any way by student involvement. In part, we have to create an illusion of responsibility.’49 In a
1983 paper, they had referred to their approach to supervision being ‘akin to placing students on a
rope. The rope is gradually let out if a student is performing well. If a student fails to perform
adequately we are forced to draw in the rope and explore every minor detail of a case with the
student.’50
One mechanism used to support this illusion of responsibility remains a key difference between
clinical programs in New South Wales and programs in Victoria, Western Australia &
Queensland. While all Australian real-client clinical programs provide students with the
opportunity to take instructions from clients without their supervisor being present, different
approaches are taken to the provision of advice to the client once the student has discussed the
situation with their supervisor. When a client is being interviewed for the first time at either the
UNSW or Newcastle clinic, the student will not advise the client alone. They do so with their
supervisor. Clinical programs outside New South Wales have adopted the approach pioneered at
Monash whereby the student returns to the client and advises them unaccompanied by a
supervisor. Students involved in the La Trobe clinical program did not conduct client interviews
until the second half of the 1990s, by which time the La Trobe Legal Studies Department had
become a Law School.
The Monash approach was based on the importance of the student taking responsibility for the
client and to be seen by the client as doing so. Students would first observe interviews conducted
by their supervisor early in their placement before being given the opportunity to conduct
interviews and provide advice without their supervisor present. Simon Rice viewed the Kingsford
approach as appropriate both from a client service perspective and educationally. While not
wanting ‘to take away the unique student-client dynamic’ he saw ‘a very useful role for a solicitor
to lead by example and teach’ as well as to safeguard the quality of advice provided ‘when there’s
that degree of seriousness.’51
Clinical Legal Education in Australia: A Historical Perspective
15
48 S. Rice, ‘Some Observations on the Operation of a
Clinical program in New South Wales’, undated, 12
49 R. Lansdowne & N. Rees, Kingsford Legal Centre: A
Clinical Experience, Paper to the 1984 conference of the
Australian Law Teachers Association, 10.
50 N. Rees & R. Lansdowne, Above, Note 43, 35.
51 Simon Rice, personal interview, 14 February 1997
Programs that did not eventuate
Several other Australian law schools considered the establishment of clinical programs in the late
1970s and 1980s. In 1975, moves to establish a clinical program at the Australian National
University (ANU) came to nothing after the Federal Budget, delivered by Labor Treasurer Bill
Hayden, failed to deliver additional funding for universities. The then Dean of Law at ANU, Lesley
Zines was very supportive of moves to establish the clinic.52
The call for a clinical program at the ANU was renewed in 1978. Jack Goldring and Roger
Hamilton produced a discussion paper which suggested that without a clinical program, students
‘are denied a perspective of the law which, in our view, is essential to a critical awareness of the
workings of the legal system.’53 Again, despite support, the clinic proposal was not adopted due
to resource issues.
There were also proposals in the late-1970s to establish a clinical program at Macquarie University,
in conjunction with the Macquarie Legal Centre. Ben Boer and Jack Goldring proposed the
development of a clinic like that operating at Springvale Legal Service and Goldring considers they
were close to receiving support from the Macquarie Vice-Chancellor until funding issues once
again intervened.54
In 1983, Diana Hardy, a PhD student at the University of Western Australia (UWA) visited the
Monash and UNSW clinics and then reported to the UWA Law School regarding the prospect of
establishing a clinical program.55 There was already a well-established legal service operating at
UWA, the Parkways Legal Service. While students at the Parkways Legal Service observed client
interviews conducted by lawyers, they were not given responsibility for those clients and their
cases. Gosnells Community Centre subsequently approached UWA with a proposal to establish a
clinic but it did not eventuate.56
The 1990s – Renewed Interest in Clinical Legal Education
The number of law schools in Australia expanded dramatically following a range of reforms to the
university sector in 1987.57 Interest in clinical legal education was reactivated with a number of the
newly established ‘third wave’ law schools considering the establishment of clinical programs. Not
all of these new programs have made use of the live-client model with simulation-based and
placement activities also being characterised as clinical. Clinic appears to have been viewed by
some of these new schools as a means of differentiating themselves from other new law programs
in an increasingly competitive environment.58
16
Journal of Clinical Legal Education June 2003
52 Jack Goldring, personal interview, 9 September 1997
53 J. Goldring & R. Hamilton, above, note 6, 1
54 Jack Goldring, personal interview, 9 September 1997
55 D. Hardy, Report on Clinical Legal Education,
undated.
56 Michael Hovane, personal interview, 14 May 1999
57 McInnis and Marginson note that from 1987 to 1992,
law student numbers rose by 58.7%, making law the
third fastest growing discipline during that period. C.
McInnis & S. Marginson, Australian Law Schools
After the 1987 Pearce Report, (1994) AGPS, Canberra,
13.
58 See R. Handley & D. Considine, ‘Introducing a Client-
Centred Focus into the Law School Curriculum’ (1996)
7 Legal Education Review 193 at 208 for a discussion
of the increasingly competitive law school environment
in Australia.
The Newcastle Professional Program
The clinic-oriented law degree at the University of Newcastle is the largest and most ambitious of
these new programs. The Newcastle program enables students to satisfy their post-degree Practical
Legal Training requirements through their undergraduate program by way of involvement in a
range of clinical activities.59 The University established the Newcastle Legal Centre (since renamed
the University of Newcastle Legal Centre) which has been the key clinic site. The Legal Centre has
been involved in an impressive range of major litigation, particularly in relation to police
accountability.60
A substantial amount of limited-term ‘soft money’ was used to develop the Newcastle Legal Centre
as the program’s centrepiece. The external funds used to fund the development of the clinical
program were provided by the Solicitors Trust Account Fund.61 From 1995, Newcastle Law School
received a clinical loading of approximately $250,000 per year from central university funds. This
payment recognised that the Relative Funding Model used by the Commonwealth Department of
Education, Training and Youth Affairs renders it almost impossible for law schools to maintain
substantial clinical programs.62
Other Australian law schools also developed a substantial commitment to clinical teaching in law
during the 1990s. After the failure of efforts to develop clinic arrangements which would include
all the law schools in South-East Queensland, Griffith University established a clinic relationship
with Caxton Legal Centre and now operates 6 clinical programs.63 James Cook University also
operates a clinical program with Townsville Community Legal Service. Queensland University of
Technology places students with Legal Aid Queensland who are supervised by Legal Aid
Queensland staff.
Murdoch – Attracting Direct Commonwealth Support
The establishment in 1997 of the Southern Communities Advocacy Law Education Service
(SCALES) by Murdoch University is significant in the development of Australian clinical legal
education in several respects. SCALES was the first clinical program to receive direct
Commonwealth Government funding and continues to receive such funding as one of the 4
programs supported by the establishment of a CLE funding program as part of the 1998 Federal
Clinical Legal Education in Australia: A Historical Perspective
17
59 J. Boersig, ‘Clinical Legal Education: The Newcastle
Model’, paper presented at the Australasian
Professional Legal Education Council International
Conference, Skills Development for Tomorrow’s
Lawyers: Needs and Strategies, Sydney, New South
Wales, September 1996. Published in Conference
Papers, Vol. 1, 463.
60 For example, the Legal Centre has been acting for the
family of Leigh Leigh, a Newcastle teenager who was
murdered in 1989 and the family of Roni Levi who was
shot dead by police on Bondi Beach in July, 1997. See R.
Watterson, R. Cavanagh & J. Boersig, ‘Law School
Based Public Interest Advocacy’ (2002) 2 International
Journal of Clinical Legal Education 7.
61 This fund comprises interest payments on funds held in
solicitors’ trust accounts which are not centrally
deposited. The fund was established in the 1980’s
following agreement between the major banks and the
Law Society of NSW.
62 The implications of the DETYA Relative Funding
Model for clinics are discussed in J. Giddings, ‘A Circle
Game: Issues in Australian Clinical Legal Education’
(1999) 10 (1) Legal Education Review 33, 44–46.
63 Griffith operates a generalist and a specialist family law
clinic in partnership with Caxton Legal Centre, a
specialist alternative dispute resolution clinic in
partnership with the Alternative Dispute Resolution
Branch of the Queensland Department of Justice and
Attorney-General, an externship program, a public
interest lawyering program with the Queensland Public
Interest Law Clearing House and an Innocence Project.
budget. Murdoch remains the only Australian Law School which attracted substantial financial
support from outside the university for the establishment of a clinical program.
The success of Murdoch in obtaining direct funding from the Commonwealth government for the
establishment of their clinic has clearly had a significant effect on the development of clinical legal
education in Australia. To some extent, the SCALES story is one of ‘being in the right place at the
right time’ but it is more an example of developing a persuasive case for support. Murdoch Law
School, with support from the central University, worked methodically to gather information about
CLE practice and then worked with interested parties to address a wide range of issues. Ultimately,
Murdoch has been able to develop a range of funders for SCALES. Murdoch University’s agenda
in promoting the SCALES concept went beyond the Law School. The University was directly
focussed on the development of its new campus at Rockingham in the rapidly developing region
south of Perth and to institutionalising its provision of community service to that region.
SCALES is the first Australian CLE program involving a formal mentoring process with another
existing clinical program, in this case involving clinicians from Monash. Most other Australian
clinics were established with the direct involvement of people who had experience working in
similar programs elsewhere. Murdoch relied on Chris Shanahan, a jurisprudence lecturer with
experience working in community legal centres in New South Wales, to develop a clinic proposal
and pursue funding avenues. Shanahan’s community legal centre background was arguably very
important to the success of Murdoch in developing a viable model for the proposed clinic and to
ensuring the strong community service focus the clinic would adopt. The close connections
between the Australian clinical legal education and community legal centre movements are well
illustrated by the Murdoch example.
Clinic as a Marker of Difference
Clinics continue to be used to differentiate some law schools from others. The increase in the
number of Australian law schools during the 1990s appears to have intensified both the need for
new law schools to ‘find a niche’ and the attractiveness of clinics as a possible marker of difference.
Just as Kingsford Legal Centre was part of the UNSW Law School challenge to Sydney Law School
in the early 1980s, SCALES differentiated Murdoch Law School from other law schools west of
the Nullarbor in the mid-1990s.
Archie Zariski notes that Murdoch was a new law school at the time of developing the CLE
proposal and that ‘everyone at Murdoch was looking for ways to distinguish Murdoch, to take an
innovative approach to legal education, to do things a little bit differently to the traditional. . . We
were all looking for ways to make Murdoch stand out as a new law school and I thought that a
clinical approach might well be one of them.’64
Griffith Law School operates a much more substantial clinical program than the other South East
Queensland law schools, Bond University, Queensland University of Technology and University
of Queensland. Griffith Law School offers 6 different clinical courses which feature heavily in
promotional literature from both the law school and the university. In particular, the prospect of
students having opportunities to take responsibility for legal issues faced by real people has been
emphasised.
18
Journal of Clinical Legal Education June 2003
64 Archie Zariski, personal interview, 14 May 1999
Growing Commonwealth support for clinics
Following the pilot phase of the SCALES project, the Commonwealth government made a more
substantial commitment to promoting Clinical legal education. In February 1999, the
Commonwealth Attorney-General, Daryl Williams selected 4 clinical legal education projects to
be funded under its Clinical Legal Education Funding Program. Funds have been provided to
Griffith University, Monash University, Murdoch University and the University of New South
Wales (UNSW). Both Griffith and Monash established specialist family law clinical programs,
UNSW established an employment law service and Murdoch used their funding to maintain
existing operations. As might be expected, all 4 programs supported by the commonwealth
strongly emphasise the importance of community service objectives.
The Commonwealth’s interest in clinical legal education has been prompted both by a concern to
deliver cheaper legal services to the community as well as an interest in improving legal education.
The question is the extent to which both community service and educational objectives can be
achieved in the same program.65 To date, the Commonwealth have been supportive of the
approaches taken by each of the funded programs with funding continuing beyond the initial
3-year allocation.
Student Appearance Work
The rise in the number of unrepresented litigants appearing before courts may provide the catalyst
for Australian clinical programs to follow the United States of America in providing greater
opportunities for students to engage in real advocacy work. Advocacy training in Australian law
schools has to date been dominated by simulation exercises.66 Australian Law Schools including
Newcastle, Monash and Griffith incorporate student appearance work into their clinical
programs.67 These programs rely on the discretion of individual magistrates and judges to grant
leave to students to appear in their court and this reliance created difficulties for the Monash
program in 1997.68
Student appearance rights has been an issue of longstanding interest for clinicians with a wide
range of proposals, involving courts (including the Family Court and Magistrates Court), tribunals
and bodies like the Tribunal for the New South Wales Australian Football League. In October
1987, the League wrote to UNSW Law Dean Garth Nettheim ‘to ascertain if we might interest
some students who could be looking to gain practical advocacy experience in a court room type
situation in assuming an advocate’s role’.69
Clinical Legal Education in Australia: A Historical Perspective
19
65 J. Giddings, ‘The Commonwealth Discovers Clinical
Legal Education’ (1998) 23 (3) Alternative Law
Journal 140
66 A. Lynch, ‘Why Do We Moot?: Exploring the Role of
Mooting in Legal Education’ (1996) 7 Legal Education
Review 67, M. Keyes & M. Whincop, ‘The Moot
Reconceived: Some Theory and Evidence on Legal
Skills’ (1997) 8 (1) Legal Education Review 1.
67 For an outline of the Monash program, see S. Campbell
‘My Learning Friend’ (1993) 67 (10) Law Institute
Journal 915
68 Changes to the Legal Profession Practice Act have raised
concerns regarding the standing of students to appear in
court as advocates. See J. Faine, ‘Student Counsel
Scheme Under Threat’ (1997) 71 (1) Law Institute
Journal 17. Noone suggested in 1991 that legislative
amendment as the best way to create the certainty needed
to promote student appearances. Noone, M.A., ‘Student
Practice Rule – Is it Time?’ (1992) 66 (3) Law Institute
Journal, 190.
69 Letter to Garth Nettheim from Ian Garland, Chief
Executive, NSW Australian Football League, 30
October 1987.
As part of the 1990 review of the operations of Kingsford Legal Centre, a survey was conducted
of students who had completed the Clinical Legal Experience subject between 1986 and 1990.70
Seventy percent of respondents identified their reason for choosing to do the clinic subject as
being ‘to develop practical legal skills and experience’ while 23% referred to ‘wanting to work in a
community legal centre’.71 The most common suggested improvement to the subject was the
incorporation of more court experience and advocacy work.72
In 1998, Judith Dickson published a comprehensive article arguing in support of clinical legal
education students being given a statutory right of audience before Australian courts.73 Dickson
outlined the close student supervision processes used by Australian clinics. She then argued that
Australian clinical programs ‘emphasise the assumption of responsibility by the students for the
satisfactory conduct of clients’ files.’74 This assumption of responsibility involves students
learning and practising the application of legal rules and processes as well as ethical practices.
This need to adhere to the standards of competency and ethical conduct of lawyers is argued to
distinguish clinical legal education students from other non-legally qualified persons.
Specialist Clinical Programs
There has also been a move towards establishing clinical programs in specialist areas of law.
Various law school have established specialist clinical programs, both in-house and in conjunction
with a wide range of external organizations, from private legal firms to public interest law offices.75
Monash operates 2 specialist CLE programs; one in family law and another in which a small group
of experienced students provide legal advice to victims of sexual assault.76
Griffith operates 2 specialist CLE programs, an Alternative Dispute Resolution clinic with
students being placed with the ADR Branch of the Queensland Department of Justice77 and a
family law clinic focussing on people in regional Queensland and on unrepresented litigants. Both
the Griffith and Monash family law clinics have been funded by the Commonwealth Attorney-
General’s Department. UNSW operates a specialist employment law service, also with financial
support from the Commonwealth.
It is likely that further specialist clinical programs will be developed, in schools seeking to make
broader use of a strength in a particular substantive legal area or to meet community service
obligations to groups with particular legal service needs. There is clearly scope for advanced
elective courses to incorporate a clinical component. Areas likely to see specialist clinics develop
include refugee law, intellectual property and mediation.
20
Journal of Clinical Legal Education June 2003
70 MSJ Keys Young, Clinical Legal Experience: Survey of
Former Students, January 1991
71 Ibid, 5
72 Ibid, 15
73 J. Dickson, ‘Students in Court: Competent and Ethical
Advocates’ (1998) 16(2) Journal of Professional Legal
Education 155.
74 Ibid, 168.
75 See Kingsford Legal Centre, Clinical Legal Education
Guide 2001/2002,
76 A. Evans, ‘Specialised Clinical Legal Education Begins
in Australia’ (1996) 21 Alternative Law Journal 79.
77 J. Giddings, ‘Using Clinical Methods to Teach
Alternative Dispute Resolution: Developments at
Griffith University’ (1999) 10 (3) Australasian Dispute
Resolution Journal 206
Links with Practical Legal Training
There has recently been substantial ‘movement at the station’ in relation to the provision of
Practical Legal Training (PLT) programs by Australian law schools.78 The expansion in New South
Wales of the number of PLT providers has been followed by similar moves in both Victoria and
Queensland. In states where articles of clerkship are still available as the alternative post-degree
route to admission, there have been moves from major national law firms to have their ‘graduate
clerks’ complete a PLT program rather than articles.79
The dividing line between undergraduate CLE and PLT courses is becoming increasingly difficult
to define. This lack of clarity arises from changing perceptions of the place of legal skills teaching
in undergraduate law programs. Rice states that ‘In those jurisdictions such as Australia where
articles or post-degree, pre-admission practical education courses are compulsory, the need for
undergraduate skills training is less pressing. Consequently the teaching of legal skills [at
undergraduate level] need be necessary only to a degree that enables students to work effectively
in the clinical program while pursuing other aims.’80 This view of the limited role of skills training
in CLE programs is likely to be undermined due to extra pressure being placed on the PLT system
with the increase in law graduates seeking entry to the profession. As Sue Campbell anticipated in
1995, PLT providers are now granting some students credit for skills learning contained in their
LLB studies, including involvement in a CLE program.81
Clinic teachers involved in the development of PLT programs need to encourage a broad
perspective to be taken of pre-admission training for lawyers, moving away from a transactional
focus. Newcastle Legal Centre founder, John Boersig has noted that planners must keep in mind
the need to ensure courses do more than simply teach students how to fill in forms. Such programs
need to emphasise the teaching of generic skills ‘essential to a broad range of legal activities’.82
Greater Expectations
Law schools are now expecting more and more from their clinical programs and clinicians. Clinics
are promoted to students as the best environment in which to develop ‘hands on’ legal skills while
being showcased to the general community as examples of university commitment to community
service and access to justice. Interestingly, we have seen name changes for several Australian clinics,
changes clearly designed to more closely connect these clinics with their law school and university.
Springvale Legal Service has become the Springvale Monash Legal Service and the Newcastle Legal
Centre has become the University of Newcastle Legal Centre.
Clinical programs, combining small class sizes with community service, have been used by
universities to showcase excellence in teaching. Clinicians have been well represented in university
teaching awards. In the first 5 years of the Australian Awards for University Teaching (1997–2001),
clinical teachers from Griffith (1999), Monash (1998) and UNSW (2001) have been finalists for the
Australian Award for University Teaching in Law and Legal Studies with the Griffith and UNSW
Clinical Legal Education in Australia: A Historical Perspective
21
78 A. Lamb, ‘Preparation for Practice: Recent
Developments in Practical Legal Training in Australia’
Paper Presented at the Commonwealth Legal Education
Association Conference 2000, Adelaide, April 2000.
79 C. Banham, ‘Big Firms Take Student Training In-
House’ Friday, May 5, 2000 Justinian.
80 Rice, above note 40,25
81 S. Campbell, Clinical Legal Education Newsletter,
No.8, November 1995, 2
82 J. Boersig, Above, note , 466
83 J. Giddings, Above, Note 62, 38.
teachers having the good fortune to receive the award. The work of SCALES was a key feature of
Murdoch University’s successful nomination for the 1998 Australian Award for University
Teaching for services to students and the Rockingham region.
Themes in Australian Clinical Legal Education
There are some underlying similarities that should be considered in attempting to identify the
character of Australian CLE. They relate to:
• Emphasising community service, including focussing on real cases rather than simulations;
• Enhancing Student Learning – ‘Legal Education in Context’;
• Practical legal scholarship;
• Client-centred lawyering.
Emphasising Community Service
In my view, Australian clinical programs have been shaped to a significant extent by the
backgrounds of the people working in those clinics. Australian clinical programs tend to have been
and continue to be staffed by people with a strong community legal centre / legal aid background.
This tends to bring with it a strong commitment to community service and to using the law and
legal system to achieve community development objectives.83
Australian clinical programs are now increasingly focussed on taking their work beyond the
traditional service delivery model of advice and representation for individual clients. This is being
done principally to enhance the impact of the community service provided and also to enrich
student learning. Various models have been developed to enhance and extend the impact of the
work of clinic students and teachers.
Clinical programs in New South Wales have a particularly impressive record of running major
superior court public interest cases. There are the continuing efforts of teachers and students
involved at the University of Newcastle Legal Centre in cases such as the Eastman84 appeal to the
High Court, the compensation claim arising from the 1993 murder of Leigh Leigh and litigation
arising from the police shooting of Roni Levi.85 The Newcastle program has been particularly
effective in pursuing issues regarding police accountability using a range of mechanisms, including
strategic work with the media, submissions to government and acting at coronial and other
inquiries. Another recent example is that of the Stolen Generations testcases conducted by
Kingsford Legal Centre.86
Other clinics have adopted community development models with a view to involving their clients
and others in addressing issues of community concern. Such models utilise non-casework
approaches and yet are obviously informed by the casework conducted by the clinical program and
the agency housing the clinic. Examples of such approaches are those developed at Monash and
Griffith. Adrian Evans refers to the process of community development identified in the 1970s by
22
Journal of Clinical Legal Education June 2003
84 Eastman v The Queen [2000] HCA 29 (25 May 2000)
85 R. Watterson, R. Cavanagh & J. Boersig, Above, Note
60, 7–37
86 Williams v The Minister Aboriginal Land Rights Act
1983 and The State of New South Wales [2000]
NSWCA 255
the Brazilian educator, Paulo Friere and the need for clinicians to help students and clients to move
beyond ‘individual reflection to group reflection upon the underlying social injustices which
diminish an equitable society.’87
The Griffith clinical program includes students working in groups on community development
projects. Given the complex and ongoing nature of many community concerns, discrete projects are
designed in relation to particular issues which can be completed by successive groups of students,
each building on the work done by previous groups with continuity being provided by clinic and
community legal centre staff acting as project supervisors. Project areas have included property rights
of mobile home park residents and litigation funding arrangements (particularly ‘no win, no fee’).
Legal Education in Context
The emphasis placed by Australian clinic teachers on student learning has significantly increased
in the past decade. In a series of interviews, many clinicians involved in early Australian programs
told me that they had started their time as student supervisors without having considered the
teaching side of the process in great detail. They tended to be more concerned with community
service and law reform issues. Discussions with current clinic teachers reveal a more substantial
understanding of the scope for improving service and law reform achievements through more
effective teaching practices. There is also a greater awareness of the potential for clinic-based
learning to complement the other learning in which law students are involved.
The work done by Simon Rice in his time at Kingsford Legal Centre from 1989 to 1995 represents
the most substantial example of Australian clinical legal education scholarship produced to date.
Rice was greatly assisted in this work by the UNSW Law School decision to allow the clinic to not
take on students in Semester 2, 1990. In the absence of students, Kingsford Legal Centre conducted
a comprehensive review of its operations. The UNSW Law School received support from the Law
Foundation of NSW for Rice to visit clinical programs in the USA, England and Canada.
Rice’s contribution has had a significant impact on the development of clinics in Australia during
the 1990s. A Guide to Implementing Clinical Teaching Method in the Law School Curriculum88 was
published in 1995 and provided a useful account of the issues facing people considering the
establishment or refinement of a clinical program. The clinical programs established in the 1990s
also benefited from the increased interest in legal education in Australia exemplified by the
Australasian Law Teachers Association Law Teaching Workshop and the book The Quiet
[R]evolution: Improving Student Learning in Law by Le Brun and Johnstone.89
The ethics focus of Australian clinical legal education has been more clearly articulated in recent
years. The La Trobe initiative to develop a clinic-based offering of the ethics subject required for
admission to legal practice is a significant development in several respects. As well as being the first
Australian clinical program to involve students taking responsibility for clients within a legal aid
office rather than a community legal centre, the ethics orientation of the subject lends itself to
more extensive discussion of professional responsibility issues.
Clinical Legal Education in Australia: A Historical Perspective
23
87 A. Evans, ‘Client Group Activism and Student Moral
Development in Clinical Legal Education’ (1999) 10
Legal Education Review 179.
88 S. Rice & G. Coss, A Guide to Implementing Clinical
Teaching Method in the Law School Curriculum,
January 1996, Centre for Legal Education
89 M Le Brun & R Johnstone, The Quiet Revolution:
Improving Student Learning in Law, Law Book
Company, 1994
Judith Dickson and Mary Anne Noone rightly identify that the clinical setting ‘constantly gives rise
to spontaneous and various ethical questions which challenge and test students’.90 Given that
written ethical conduct rules are ‘signposts at the crossroads not a fence along the entire length of
the highway’91, clinics provide students with opportunities to develop the ability to identify and
address ethical issues in relation to matters including conflict of interest, confidentiality and legal
professional privilege.
The Murdoch clinical program (SCALES) has identified the importance of involving students in
providing legal assistance to asylum seekers. In 2000, Mary Anne Kenny and Anna Copeland
persuasively argued that such cases are effective in ‘encouraging students to recognise systemic
injustice’.92 These cases ‘have a profound effect on the students as they are faced with the broader
social and political issues that these cases present.’93 The intensification of the Australian public
debate on asylum seeker issues in 2001 and 2002 reinforces their argument. Kenny and Copeland
state that what they ‘hope to achieve as clinical supervisors is to foster a “rights based”
methodology that students will apply across all their legal work. This involves students gaining an
understanding of, and a commitment to, fundamental human rights as an important principle of
any legal practice.’94
At Monash, Adrian Evans is now engaged in work seeking to more clearly articulate the links
between community development processes and the development of values in law students.
Evans has recently written of the need for clinical supervisors to stimulate respectful argument
amongst their students in relation to competing moral viewpoints identified through the process
of community development.95 He is also involved in a project designed to determine the values
which appear to characterise the mass of Australian lawyers in their early careers.
Practical Legal Scholarship
During 1984, the Director of Research in the Monash Law Faculty, Professor Richard Fox, wrote
to the Dean articulating a concern often expressed by clinical teachers:
‘It is apparent that academic staff who devote their time whole-heartedly to the clinical programme
may later find themselves at a disadvantage in securing promotion because of their reduced
productivity during their time in the programme. Their contribution to the teaching, community
service and administrative sides of the legal service are not seen by those who place prime value on
research as compensating for an apparent weakness in their publication record... The acceptance of
the clinical programme and the work of its staff as part of mainstream academic life will be
enhanced if it has a built-in research element.’96
24
Journal of Clinical Legal Education June 2003
90 J. Dickson & M. A. Noone, ‘The Challenge of
Teaching Professional Ethics’, paper presented at the
Australasian Professional Legal Education Council
International Conference, Skills Development for
Tomorrow’s Lawyers: Needs and Strategies, Sydney,
September 1996, published in Conference Papers
Volume 2, 847.
91 F. Oatway, ‘Motivation and Responsibility in Tax
Practice: The Need for Definition’ cited by Y. Ross,
Ethics in Law: Lawyers Professional Responsibility and
Accountability in Australia, 3rd.ed. , 2001, 45
92 M. A. Kenny & A. Copeland, ‘Clinical Legal
Education and Refugee Cases: Teaching Law Students
About Human Rights’ (2000) 25 (5) Alternative Law
Journal 252
93 Ibid, 253
94 Ibid.
95 Evans, above, note , 181.
96 Memorandum to Professor R. Baxt from Professor R. Fox
re. Research and the Clinical Legal Education
Programme dated 30 July 1984.
While Australian clinical teachers have struggled for acceptance as mainstream academics, many
have made substantial contributions to developing a body of practice-related legal scholarship.
Perhaps the best example of such scholarship is the Lawyers Practice Manual, published in New
South Wales in 1983, Victoria in 1985 and Queensland in 1993. Clinicians made very substantial
contributions to the development of the New South Wales and Victorian manuals in particular.
The Lawyers Practice Manual (New South Wales) was developed with a very substantial contribution
from Neil Rees, then responsible for the UNSW clinical program. The 4 founding editors of the
Lawyers Practice Manual (Victoria) were all clinic teachers from Monash97 and Springvale Legal
Service is listed as the author on the spine of the manual.
The need for such a manual was ‘first discussed at a seminar arranged for legal aid lawyers by the
Australian Legal Workers Group’ which identified ‘a glaring gap in legal literature and training: too
much hard practical knowledge inaccessibly stored in the heads of those who have gained it by long
experience.’98
Clinical teachers have been and continue to be substantial contributors to the Alternative Law
Journal, which from 1974 until 1991 was known as the Legal Service Bulletin. There have also been
major reports written by clinical teachers on matters related to their casework, often in
conjunction with other community legal centre staff. The Urgent Repairs Needed report, published
by the Federation of Community Legal Centres in 1988, highlighted the urgent need for reform of
the law concerning motor vehicle property damage.99 Springvale Legal Service Co-ordinator,
Simon Smith was a driving force behind this important publication. Clinicians have also been
prominent in policy formulation in relation to justice issues with Mary Anne Noone serving as a
member of the National Legal Aid Advisory Committee and as a director of Victoria Legal Aid.
Simon Rice served a term as a legal aid commissioner in New South Wales while the author served
2 terms as a legal aid commissioner in Victoria.
Academics from the University of Newcastle Legal Centre have published a series of reports as
part of the public interest litigation in which they have engaged.100 Such reports ‘have sought
redress of individual injustice, exposed failures in legal fact gathering and analysis and laid ground
for more general reforms.’101 In my view, such reports represent an important form of practical
legal scholarship which should be developed further by academics involved in other Australian
clinical programs.
Clinics are now increasingly being seen as potential legal research sites, providing opportunities for
clinicians to obtain prestigious research grants. With student supervision loads lighter than they
were for Australian clinicians in the 1970s and 1980s, research opportunities are more likely to be
pursued. Monash clinician, Adrian Evans is the Second Chief Investigator for a research project
on the development of values in new lawyers which received Australian Research Council funding
Clinical Legal Education in Australia: A Historical Perspective
25
97 Simon Smith, Maureen Tehan, Sue Campbell & Guy
Powles
98 N. Rees, C. Ronalds & R. West, ‘Preface’, Lawyers
Practice Manual (New South Wales), Law Book
Company, Sydney, October 1993.
99 S. Bailey, S. Liden & S. Smith, Urgent Repairs Needed:
Motor Vehicle Property Damage in Victoria, (October
1988). For commentary, see J. Giddings, ‘Casework,
Bloody Casework’ (1992) 17 (6) Alternative Law
Journal 261, 263–264
100 For example, see R. Cavanagh, J. Boersig & R.
Watterson, The Murder of Leigh Leigh November 1989
– A Forensic Report (1996), R. Cavanagh & R. Pitty,
Too Much Wrong – Report on the Death of Edward
James Murray (1997) and R. Watterson et al, A Very
Public Death: The Police Shooting of Roni Levi.
101 R. Watterson, R. Cavanagh & J. Boersig, Above, Note
60, 19
for 2001–2003. It will obviously be a challenge for clinicians to balance their involvement in a time-
consuming but highly rewarding teaching process with engagement in research and other
scholarship.
Client-centred Lawyering
Australian clinical programs have strongly emphasised the importance of students using multi-
disciplinary approaches to address the issues facing their clients. Both Springvale Legal Service and
West Heidelberg Community Legal Service shared premises right from their inception with major
community-based service providers.102 UNSW pioneered the offering of a combined degree in law
and social work incorporating a substantial placement component at Kingsford Legal Centre.
The work of both clinicians and students has been enhanced by this relatively easy access to other
professionals. In 1984, Simon Smith wrote that ‘Work in the centre provides students in most
cases with their first real introduction to the operation and the impact of the legal system. The
lasting impression on these future lawyers of this introduction cannot be overestimated.’103 The
commitment to multi-disciplinary approaches continues with, for example, the University
Newcastle Legal Centre co-locating with other services104 and the Griffith clinical program working
closely with social workers employed at Caxton Legal Centre. The specialist clinical program
established by Monash to assist victims of sexual assault involves participating students in close
work with a range of professionals.105
Clinical programs have also focussed strongly on developing the client interviewing and advising
skills of students. When Adrian Evans devised a clinical course at La Trobe in 1976, it was run
with the La Trobe Counselling Service and was designed to introduce client-centred interviewing
to the SRC Legal Service.106 Extensive use was made of Legal Interviewing and Counselling: A Client-
Centered Approach, the pioneering book on by UCLA academics, David Binder and Susan Price.107
The earliest seminar programs attached to the Monash and UNSW clinical programs emphasised
the development of interviewing skills.
Visions of Professionalism
In an article in the inaugural issue of the International Journal of Clinical Legal Education, Judith
Dickson raises the need for clinic teachers to reconsider the legal professional model which
underpins the community service focus of their work. Dickson expresses concern that the
organized legal profession makes use of notions of community service in a negative way, ‘as a
justification for privilege’.108 The concern here is that acceptance of this traditional vision of the
lawyer as a professional ‘is tied to other aspects of the profession which entrench privilege and
26
Journal of Clinical Legal Education June 2003
102 Springvale Community Aid and Advice Bureau and
West Heidelberg Community Health Centre.
103 S. Smith, Above, Note 4, 52
104 Many Rivers Aboriginal Legal Service and the Hunter
Regional Office of the New South Wales Legal Aid
Commission
105 A. Evans, “Specialised Clinical Legal Education
Begins in Australia” (1996) 21 Alt LJ 79
106 Adrian Evans, interview, 17 October 1997
107 D. Binder & S. Price, Legal Interviewing and
Counselling: A Client-Centered Approach, (1977)
West Publishing, St Paul.
108 J. Dickson, ‘Clinical Legal Education in the 21st
Century: Still Educating for Service?’ (2000) 1
International Journal of Clinical Legal Education 33,
36.
injustice – such as monopoly over delivery of services, self-regulation etc.’.109 Dickson further
suggests that clinical legal educators must ‘articulate a new vision of the role and function of
lawyers in society. This new vision should expressly challenge a notion of “professionalism” that
appears self-serving and self-interested.’110
I would challenge Dickson’s characterisation of clinicians as relying on a vision of professionalism
which contains characteristics which entrench privilege and injustice. It is the abuse of those
characteristics which entrenches privilege and injustice. Australian clinicians have long emphasised
to their students those aspects of the legal professional ideal which focus on the importance of the
work of lawyers to the effective operation of democratic institutions. Lawyers who are
independent of government and able to act impartially have an important contribution to make to
safeguarding the fairness of administrative processes and the accountability of powerful interests.
Many Australian clinical teachers have actively used their work to undermine abuses of
professional ideals and have called for change in a range of respects to existing regulatory
frameworks. Foremost in this regard has been the work done in the Monash clinical program by
Simon Smith and then Adrian Evans. Smith worked with students to highlight inadequacies in the
regulatory work of the Law Institute of Victoria, particularly in the practices of certain local
lawyers. In Smith’s view, it was the series of cases run by Springvale Legal Service against a lawyer
named Peter C. Neil that exposed important inadequacies in the disciplinary functions and
operations of the Law Institute of Victoria and which gave rise to legislative reforms in the early
1990s.111
Smith’s work was continued by Evans who also raised important concerns regarding sources of
funding used by the Law Institute of Victoria for their disciplinary functions.112 Working on these
cases persuaded Evans that there was another dimension to developing socially responsible lawyers
and that was dealing with lawyers who were unethical. ‘You can’t just operate at the level of
education of good lawyers. You also have to be prepared at some level as a community to deal with
lawyers who are rogues.’ Evans said ‘We couldn’t be coherent as a clinical programme unless we
were addressing both ends of the problem.’113
Dickson refers to various official committees convened in Australia during the 1990s which
addressed issues related to the regulation of the legal profession.114 Community legal centres made
substantial submissions to many of these committees. In a number of instances, the community
legal centre submissions were heavily influenced by clinicians. For example, the Federation of
Community Legal Centres in Victoria made a series of submissions to the Costs of Justice Inquiry
and then to the Access to Justice Advisory Committee which were strongly influenced by clinicians
Clinical Legal Education in Australia: A Historical Perspective
27
109 Ibid, 40.
110 Ibid, 43.
111 Simon Smith, personal interview, 14 September 2002
112 See A. Evans, ‘Professional Ethics North and South:
Interest on Clients’ Trust Funds and Lawyer Fraud. An
Opportunity to Redeem Professionalism’ (1996) 3 (3)
International Journal of the Legal Profession 281
113 Evans interview, above, note
114 Dickson, above, note 92, 34. These included the Costs of
Justice Inquiry conducted in the early 1990s by the
Senate Standing Committee on Legal and
Constitutional Affairs, the Law Reform Commission of
Victoria reference on Access to the Law in 1992, the
Access to Justice Advisory Committee which reported to
the Commonwealth Attorney-General in 1994, the
Working Party on the Legal Profession which reported to
the Victorian Attorney-General in 1995 and the Trade
Practices Commission 1994 review of the legal
profession.
including Mary Anne Noone (La Trobe), Adrian Evans (Monash) and myself (La Trobe).115 Similar
contributions were made by clinicians to the Trade Practices Commission Inquiry into the Legal
Profession in 1993 and the Access to Justice Advisory Committee in 1994.
A common theme of such submissions has been that if lawyers do not effectively regulate
themselves and if they abuse their professional status, there is a need for reform. I contend that the
notion of professionalism articulated in such submissions was not a chimerical ideal but rather one
that identified the importance of lawyers in the work of our democratic institutions, in ensuring
procedural fairness and monitoring the actions of governments in an era of privatisation as well as
the need for lawyers to remain independent of governments, clients and employers. Such
submissions can be characterised as recognising the value of the work of lawyers as well as the
importance of effective accountability for legal professionals.
Conclusion
Various factors are contributing to increasing interest in clinical legal education in Australia. Many
students are drawn to clinics by a range of factors including the opportunity to be part of much
needed community services, to find a practical context for their other law studies and to develop
legal practice skills. Law schools and universities have viewed clinics as valuable student learning
environments as well as sites for significant community service contributions. Law schools have
also used clinics to distinguish themselves from neighbouring law schools in terms of the learning
opportunities provided to students. Community legal centres are increasingly interested in
potential benefits from links with clinical programs, such as harnessing the enthusiasm and
research skills of students as well as developing their base of student volunteers. Further,
governments are increasingly interested in the contributions clinics can make to the delivery of
legal services.
Australian legal clinicians have worked collaboratively and collectively within their clinics, their
law schools and across universities. Many students have been enthused by an enhanced
appreciation of the importance of the law to our democracy. Students are able to gain a sense that
their efforts can assist people to assert their rights. Many members of the community have
received valuable legal assistance. Practices of the legal and other professions, government
institutions, the media and the corporate sector have all been subjected to close scrutiny and
challenge.
It remains important that clinicians emphasise the need to take a broad approach to their work, an
approach that goes well beyond a focus on legal skills development and concentrates on social
justice issues. Australian clinicians have taken the broad view in the past and appear likely to
continue to do so.
28
Journal of Clinical Legal Education June 2003
115 See Federation of Community Legal Centres (Vic) Inc,
Submission to the National Legal Aid Advisory
Committee Review of Legal Aid, July 1989, &
Submission to the Senate Inquiry into Costs of Justice,
Part 2 The Court System, December 1989 & in
particular Part 3 The Legal Profession, June 1990.
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p>As a lawyer and clinical legal educator, I have direct experience of the ways in which clinical legal education programmes in Australia2 provide legal services to poor and disadvantaged people. In this context I recently began to wonder about the image of lawyers and of the legal profession, that other clinical educators and I portray in our work and about the values underlying clinical legal education.3 I began to think that despite a longstanding commitment to access to justice,4 clinical legal education in Australia might actually be acquiescing in a notion of professionalism that is counter to that commitment. In this article I explore the connection between the continuing commitment of clinical legal education to the provision of legal services to those unable to otherwise afford them and the notions of professionalism traditionally adopted by the organised legal profession. In doing so I focus on the Australian legal environment as the one with which I am most familiar. However, I believe the issues I raise are relevant for other legal educators concerned about the state of the legal profession in their jurisdictions and about the values which clinical legal education imparts to law students.</p
The Commonwealth Discovers Clinical Legal Education
  • J Giddings
J. Giddings, 'The Commonwealth Discovers Clinical Legal Education' (1998) 23 (3) Alternative Law Journal 140
Motivation and Responsibility in Tax Practice: The Need for Definition' cited by Y. Ross, Ethics in Law: Lawyers Professional Responsibility and Accountability in AustraliaClinical Legal Education and Refugee Cases: Teaching Law Students About Human Rights
  • F Oatway
91 F. Oatway, 'Motivation and Responsibility in Tax Practice: The Need for Definition' cited by Y. Ross, Ethics in Law: Lawyers Professional Responsibility and Accountability in Australia, 3rd.ed., 2001, 45 92 M. A. Kenny & A. Copeland, 'Clinical Legal Education and Refugee Cases: Teaching Law Students About Human Rights' (2000) 25 (5) Alternative Law Journal 252
above, note , 181. 96 Memorandum to Professor R. Baxt from Professor R. Fox re. Research and the Clinical Legal Education Programme dated 30
  • Evans
Evans, above, note, 181. 96 Memorandum to Professor R. Baxt from Professor R. Fox re. Research and the Clinical Legal Education Programme dated 30 July 1984.
Specialised Clinical Legal Education Begins in Australia
  • A Evans
A. Evans, "Specialised Clinical Legal Education Begins in Australia" (1996) 21 Alt LJ 79