Review of Higher Education Financing and Policy
CALD Submission
COMMITTEE OF AUSTRALIAN LAW DEANS
Convenor: Professor Andrew Stewart
CALD Submission to Higher Education Review
This submission from the Committee of Australian Law Deans does not attempt to canvass the full range of issues before the Review Committee. It concentrates on the role of law as a university discipline and on the funding of undergraduate law programmes in the public universities. As such, the submission touches on themes one (the role of higher education in Australia’s society and economy) and four (financing higher education teaching and research training) of the key themes identified by the Committee.
In summary, the submission seeks:
The Value of Legal Education
The aims of legal education in Australia are fundamentally shaped by its history as part of the Western tradition of law, which in turn has roots in Roman, Greek and Judaeo-Christian thought. Parkinson (1994) suggests that the Western idea of law has three distinguishing characteristics:
— the autonomy of law. Law has its own institutions (courts), its own profession, a separate university discipline, its own language and so on. This contrasts with other societies in which law is primarily a function of politics or a manifestation of a religious system. As Birks (1994) has noted, university law schools and academic research and writing have played an increasingly important role in preserving the literature of the law. This has been acknowledged by the courts and the legal profession, which have increasingly turned for guidance and direction to learned treatises written by law academics.
— the centrality of law. Law permeates every aspect of society. This feature is in contrast to legal systems, for example in China or Japan, where citizens infrequently resort to a legal system which operates in a much more narrow sphere. One result of law’s centrality is that many groups in society are concerned about the nature of legal education and have a stake in its development.
— the moral authority accorded to law. For most people law is seen as underpinned by moral values. Law is imbued with a sanctity, a respectfulness which reflects this importance. This moral authority can disintegrate when people see law merely as an instrument of repression. Hence legal education, and the values which it reflects, are fundamental to society.
Law has a long tradition as a university discipline in "Western" countries: indeed creating opportunities for training in professions such as law was "the raison d’etre for Australian universities" in the first place (Goldring 1997). But while law to this day retains its character as a "professional" discipline, undergraduate legal education has come to be much more than a preparation for legal practice. It is now seen as providing a foundation for a wide range of careers, as we will go on to explain.
At the same time we would argue that the value of legal education to Australian society cannot be measured solely by the "marketability" of law graduates. It is not just individuals who benefit from studying law. In terms of the economy and the contribution to society that higher education can and should make, both economic development and an orderly society depend upon a well developed legal infrastructure and respect for the rule of law. That being so, legal literacy is arguably vital for all citizens and especially for those engaged in commerce. Legal education, in other words, whatever private value it has to law graduates, can and should be treated as a public good.
Acceptance of this proposition suggests in turn two important corollaries. The first is that we cannot have too many people trained to be legally literate and that accordingly there should be neither artificial controls on the numbers who have access to legal education, nor other inappropriate barriers to such access. The second is that legal education should be funded at a level that is commensurate with its importance and that reflects the nature and demands of high quality law teaching in the 1990s. It is to these two principles, and the challenges posed to them by current federal government policy, that this submission is particularly directed. We also note the cogent arguments that have been presented on these matters by the Australasian Law Students Association in their own submission to the Review.
Before setting out our own arguments, however, it is necessary to go into some detail as to the nature and development of the university discipline of law, and more especially the expansion in the scope and utility of the undergraduate law degree.
The Development of Law as a University Discipline
The discipline of law draws its coherence from the study of laws and legal phenomena: specifically, the creation and variation of rules and processes for the ordering of society; the workings of the institutions which administer legal rules and processes; the content, nature and impact of legal rules and processes; the skills associated with finding, analysing and applying legal rules; and the political, social, economic and historical forces which shape laws and legal institutions.
A person may today study "law" in a variety of ways, and at different levels of depth and complexity. In practice, university study of law can be divided into four categories:
Notwithstanding the diversity of these categories, it is the first — the professionally accredited undergraduate law degree — which is the distinguishing feature of law as a university discipline, and indeed which distinguishes the academic units whose heads comprise the Committee of Australian Law Deans. Whatever else they may do or conceive their role to be, law schools are defined as such by teaching a programme which constitutes an important and (except in New South Wales) necessary step in becoming qualified to enter the legal profession.
For a large part of this century, indeed, law schools did very little other than teach LLB programmes, generally using part-time lecturers drawn from the ranks of the practising profession rather than full-time academics. Moreover a law degree was almost exclusively seen by students as an entry point for the practice of law. Even if not every graduate found their way into a career as a solicitor or barrister, there was a clear assumption that this was the natural route to take. Law degrees were not especially "practical" in terms of content: the subjects taught were very much rule-oriented and aimed to provide a grounding in what were considered to be the more important kinds of substantive legal knowledge. Knowledge of legal processes and the skills required to advise and represent clients were primarily left to on-the-job training.
However the last thirty to forty years have seen dramatic change, as law schools have expanded in size, in number, and in the programmes they offer. In the last decade alone the number of law schools has grown from 12 to 28, and the number of students in LLB programmes from 11,000 to more than 22,000. Full-time employment and a commitment to more traditional forms of academic research and scholarship have become the norm for law school staff. Although the law degree has retained its "professional" character, there has been a distinct broadening in the curriculum (and indeed in legal scholarship) as legal educators have come to recognise the need to do more than just teach law as a series of rules to be learned by rote. As the Pearce Report (a review of the discipline of law commissioned by the federal government) stressed in 1987, it is vital to understand "the policy underlying the law and the social context of the law" (Pearce et al 1987). Hence most courses now devote considerably greater attention to the forces that shape laws and legal processes, and it is becoming more common to find law teachers drawing on the perspectives offered by other disciplines such as sociology or economics. It has also become the norm for law students either to be graduate entrants who have already completed another degree or, more commonly, to be undertaking their law degree in combination with a BA, BCom or BSc (etc) as part of a five year combined degree programme, thus ensuring sustained exposure to at least one other discipline.
More recently, there has been a move to broaden the LLB curriculum in a different direction. With a number of the newer law schools taking the lead, there is a growing emphasis on learning "practical skills" such as negotiation, interviewing and drafting, as well as the more traditionally recognised (though rarely taught) skill of advocacy. Some institutions are even going so far as to incorporate into their LLB not only the areas of study generally required at undergraduate level by the bodies that regulate entry into the legal profession, but some or all of the further "practical training" that would otherwise be undertaken on the job as an articled clerk or in a specialised postgraduate course.
There is no reason why undergraduate legal education should not both be theoretical or contextual in its outlook, and at the same time embrace the teaching of identified skills, even if only at a basic or foundational level. Indeed the desirability of this was accepted in the Pearce Report. After all, a critical understanding of how the legal system actually works is arguably essential to being a good lawyer. And many of the skills specifically associated with lawyering (such as research, oral and written communication, problem solving, interpersonal relations) are properly regarded as "generic" and hence transferable to the many other contexts in which law graduates may become employed.
Indeed, law graduates are increasingly choosing career paths other than legal practice. Even before the recent increase in student numbers made competition for jobs in the profession much fiercer, many had starting using their law degree for other purposes. Some become "in-house counsel" for corporations, government departments and the like, without necessarily being formally admitted as legal practitioners. Others elect to use their LLB as a passport to a job in the public service, or in management, or in a myriad other "professional" roles which have no specifically legal dimension. A major national study by the Centre for Legal Education, involving nearly 5000 law students from 26 universities, has confirmed this trend. More than half these students indicated that they did not intend to practise as solicitors or barristers (Roper 1995).
Graduate employment statistics also confirm the attractiveness of law graduates to a wide range of employers. Although there are now relatively fewer jobs available in the private profession, the employment rate of law graduates has remained very high.
This shift in the reality (if not always the perception) of the law degree as a generalist rather than purely vocational qualification is one that has been embraced by all Australian law schools. Thus in a report undertaken to examine the impact of the Pearce Report, the following was noted in relation to the aims and objectives explicitly adopted by modern law schools:
A widely cited view on this matter was that of Derham, who argued that legal education, like all vocational education in the university, should aim to prepare students "for an intellectual life which transcends the boundaries of any particular branch of learning and of any particular calling". In both the pre-1987 and new schools surveyed, the broader goals of a university education and lifelong learning were central to their aims. For example, reference was made to providing a "broad liberal education", developing "reason and intellect . . . foundations for an intellectual life", and "the capacity of students to learn on their own, consistent with the university’s emphasis on teaching as the creation of an environment which assists learning". (McInnis and Marginson 1994)
Accordingly law schools, their students, and the employers who increasingly look to law graduates to fill a wide range of jobs, all appear to have accepted that besides offering a preparation for a potential career in the legal profession, undergraduate legal education now has a broader role to play. That role, as we have suggested, reflects not only the value attached in the labour market to the skills inculcated by the study of law, but also the value to society of legal literacy.
Access to Legal Education and Differential HECS
It is plain that any modern system for funding higher education in Australia must strike some sort of balance between public subsidy and private contribution. While recognising that individuals may legitimately be expected to pay or repay in some fashion a proportion of the costs incurred in providing them with the benefit of a publicly-provided tertiary education, the Committee of Australian Law Deans believes for the reasons advanced earlier that there is sufficient public value in legal education for the element of public subsidy to be strongly emphasised. In addition, the Committee supports the view of the Higher Education Council that "funding of basic professional education . . . should be substantially publicly subsidised to ensure equity of access" to the profession in question (HEC 1996).
The principle of equity of access to a profession requires, to quote the same source, that the profession "should be representative of the profile of the general community, that entry level qualifications should therefore not discriminate against different groups, and access should not be related to a person’s ability to pay". In the case of law it is not just a matter of access to the legal profession, important though that it is, but of access to the more general benefits of an undergraduate legal education that have been described above.
Despite an increasing degree of commitment on the part of law schools to the goal of equity of access to legal education and hence to the legal profession, much remains to be done. Of the "equity groups" that are usually identified, women now make up a majority of undergraduate law students, while most schools have special access programmes in place for Indigenous applicants. But the socio-economic background of LLB cohorts does not appear to have changed markedly, despite the significant increase in the total number of places available (see Weisbrot 1991, McInnis and Marginson 1994). Competition for law places remains intense at most schools, with the level of demand ensuring the high cut-off scores which tend to favour those from a more privileged background. If access to legal education is indeed to be broadened, special measures will need to be taken (and indeed are being taken at some institutions) in relation to selection policies and/or the creation of further special access categories.
Against that background, it is critical that these efforts not be undermined by further moves to shift the balance towards private contribution rather than public funding for higher education. Indeed the Committee believes that, in the specific case of law, the balance has already shifted too far. We refrain from any comment on the federal government’s move to permit institutions from 1998 to create additional places for domestic students and charge them upfront fees, other than to note that law as a high demand discipline is likely to attract such arrangements at a number of institutions, that the option is obviously likely to favour applicants from wealthier backgrounds, and that this may have adverse implications for equity of access. Our principal concern is rather with the changes to the Higher Education Contribution Scheme introduced by the government last year, and implemented for new students from 1997 onwards.
Those changes included the introduction of charges differentiated according to the nature of the units studied. Law was assigned to Band 3, the highest charge band, along with medicine, dentistry and veterinary science. For a student commencing a full-time LLB programme in 1997, the HECS charge may be as high as $5,500 (or payable up-front at $4,125), subject to the possibility of non-law units being undertaken at a lower rate.
The Committee of Australian Law Deans recognises that opinions may legitimately differ as to the exact amount of a HECS charge, or the level of income that must be earned for the repayment obligation to cut in. But it was and is strongly opposed to the inclusion of law in the highest charge band: both because the stated or possible justifications for the decision cannot be supported, and because of the likely consequences of the decision.
The government's Higher Education Budget Statement justified the differential charge structure on the twin bases of actual course costs and the anticipated salary levels of holders of particular university qualifications. Law graduates are generally thought to be able to expect relatively high salaries, a belief apparently supported by the Australian Bureau of Statistics Census 1991; though other evidence (based on more recent studies) is beginning to emerge that many lawyers are nowhere near as well paid as they are popularly thought to be, and the Committee will be gathering further and more up to date information as to the salaries that law graduates can expect (especially the growing number who will not be employed as practising lawyers). In any event, law is far from being a high cost discipline. It is in fact included in the lowest cost-cluster established by the Relative Funding Model used by DEETYA to fund universities, as discussed in the next section of the submission. In comparison, Arts disciplines are spread across the bottom three funding clusters with undergraduate funding for particular disciplines 30–50% above that of law.
The only possible explanation then — and indeed the Minister has said as much — is that in the particular case of law, future income considerations were considered to prevail over cost in condemning law students to the highest charge band. However as the only low cost discipline in Band 3, the effect is that law students who obtain HECS-funded places must now repay a staggeringly high proportion of the cost of their law units, indeed the highest of any students at all: more than 80%, in fact, compared to just over 30% for the other Band 3 disciplines and figures of 40–50% for many other disciplines.
In the absence of any coherent rationale for "punishing" law graduates in this way, one is left with the following observation from Senator Colston (who subsequently, and decisively, voted to approve the necessary amendments to the Higher Education Funding Act):
To put law in the same category as medicine is plainly not a reflection of the funds that are required to produce law graduates but it is plainly a function of the fact that someone has decided that we need fewer law graduates.
If this assessment is accurate, it is a justification the Committee would reject for the reasons already given: that there is no warrant for seeking an arbitrary reduction in the number of law graduates.
The Committee is also concerned at the consequences of making the study of law units not only more expensive in absolute terms, but more expensive relative to other areas of study. Specifically, we are concerned that the new regime:
In terms of giving effect to the new regime, the Committee has also alerted DEETYA to the practical difficulties in assigning law-related units of study between the "law" category in Band 3 and "justice and legal studies" in Band 1. No satisfactory solution has yet been adopted to overcome those difficulties.
Funding Law Programmes and the Impact of the RFM
The Relative Funding Model was adopted by the federal government in 1991 in order to provide a basis for the allocation of operating grants to institutions by reference not only to their total student load, but also the particular mix of courses offered at widely differing costs. There are five cost clusters, of which law is located in the bottom cluster (RFM1) along with accounting, economics and "other humanities". The Committee’s problem is not with the RFM system as such, but with law’s position in that cluster.
There has been a longstanding misconception that law is cheap to teach, consisting mainly of "chalk and talk" classes taught to large groups. However, the fact that law has in the past often been taught in less enterprising ways mainly reflects the inappropriately low funding provided for law courses, which has left law teachers with little option than to offer large lectures and minimal "innovation" in their teaching.
Indeed, there appears to have been a reluctance in the past to recognise the true cost of law courses — in particular, to recognise the cost of library collections and teaching support materials, which is increasing significantly as the use of technology, including multi-media materials, becomes more common (see generally Centre for Legal Education 1994). In addition, as noted below, law has been denied funding for the equivalent to the clinical training which forms a crucial part of training in other professions such as medicine.
DEET (now DEETYA) has consistently maintained that the allocation of law courses to the lowest level in the Relative Funding Model was not intended to affect internal allocation of funds by universities, which remain free to fund law courses at whatever levels they choose. In practice, however, many universities do in fact use the RFM either absolutely or — perhaps more commonly — as a comparative starting point, with the result that many law courses are very poorly funded per EFTSU.
It is true that there is nothing to prevent a university from allocating funds on a different basis from the RFM. However, law’s inclusion in RFM1 has inevitably acted as a starting point in funding discussions and put law schools in the invidious position of having to argue for a variation to the "basic" position in order to obtain appropriate funding for their courses. And, where they are able to convince their university of the need to depart from the RFM "hierarchy", allocation of additional funds to law sometimes provokes ill-feeling from other units whose courses are ranked higher on the RFM and see themselves as providing a "subsidy" to law.
To compound the unfairness, the original allocation of law to the lowest cluster seems to have been based erroneously on a survey of the average costs of "law" courses which included not only the cheapest (ie, most underfunded) LLB courses then being offered in the country, but also, without differentiation, law units taught not in LLB programmes but to business students. It is generally accepted that, without the need for in-depth coverage of legal issues and mastery of legal reasoning and other skills, such units can be and generally are taught with much less expense compared to professionally accredited law degrees.
In any event, whatever may have been the situation in the past modern law courses require substantial funding levels in order to be properly presented. In particular, the following elements increase the costs of modern law courses:
Although some of these factors may be common to other RFM1 disciplines, the last two certainly are not. In particular, a practically-oriented law programme of any quality simply cannot be offered at base level RFM1 funding.
Placing law courses in the most expensive band of the differential HECS schedule, along with courses such as medicine and dentistry, may also be thought to carry correlative obligations. It is likely, for example, that students who are incurring a HECS debt of the magnitude dictated by current arrangements will quite reasonably expect law courses to provide a similar quality of teaching, including clinical or practical elements, as students in other Band 3 courses enjoy.
There is accordingly a strong argument not only for law courses to be funded at a much higher rate than the current RFM classification, but for this to be recognised by lifting law out of RFM1 and relocating it in a higher cluster. As the Pearce Report put it a decade ago:
There has to be a realisation that the treatment of law as a cheap educational activity cannot be allowed to continue. The practice of law is becoming increasingly sophisticated and the training of lawyers must reflect this. The students undertaking law are among the very best in the country. They expect, and are entitled, to receive an education that recognises this ability. (Pearce et al 1987)
References
Birks, P (1994), "The Historical Context" in P Birks (ed), Reviewing Legal Education, Oxford University Press, Oxford
Centre for Legal Education (1994), The Cost of Legal Education in Australia, Centre for Legal Education, Sydney
Goldring, J (1997), submission to Review of Higher Education Financing and Policy
Higher Education Council (HEC) (1996), Professional Education and Credentialism, AGPS, Canberra
McInnis, C and Marginson, S (1994), Australian Law Schools After the 1997 Pearce Report, AGPS, Canberra
Parkinson, P (1994), Tradition and Change in Australian Law, Law Book Company, Sydney
Pearce, D, Campbell, E and Harding, D (1987), Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission, AGPS, Canberra
Roper, C (1995), Career Intentions of Australian Law Students, AGPS, Canberra
Weisbrot, D (1991), "Recent Statistical Trends in Legal Education" Legal Education Review, 2(2), 219–251