Court of Conscience - Issue 19, 2025

Court of Conscience respectfully acknowledges the Bedegal, Gadigal and Ngunnawal Peoples as the custodians and protectors of the land where each campus of UNSW is located

EDITORIAL

HASHWITAA MAYNOOR*

It is with immense pride that I introduce to you, dear reader, Issue 19 of Court of Conscience

The theme of this year’s issue, Beyond the Ivory Tower: Bridging the Gap Between Theory and Practice, is deliberately meta in its approach to academic discourse.

The term ‘ivory tower’ is often used to describe the perceived detachment of academia and its seemingly esoteric pursuits from the tangible needs of society. In the legal profession, the term is sometimes directed by practitioners and policymakers at the legal scholar, whose theoretical work is deemed ‘of little use’, if not completely abstract and irrelevant, to understanding ‘everyday law’.1 This perspective, however, fails to recognise that the law does not operate in a vacuum. From its formulation to its application, the law interacts with the society it governs. It is not immune to the ramifications of shifting social attitudes, political tensions, economic inequalities, or technological developments.

Legal academia is the response to the realisation that legal governance is more complex and difficult in practice than in theory. The need to assess the real-world impact of legal decision-making amid evolving socio-economic conditions underscores its importance. By bridging the gap between the law’s theoretical purpose and its practical function, legal academia also plays a crucial role in advancing social justice and systemic law reform.

In light of this perceived divide, Issue 19 contains 14 diverse yet incredibly topical articles that critically examine areas where tensions exist between what the law should do as compared to what it does. Each piece demonstrates, in its very existence, the reformative impact legal scholarship can have on the law, if only we heed its advice and ponder its reflections.

As my tenure as Editor-in-Chief draws to a close, I would like to take this opportunity to express my heartfelt gratitude to all who have been involved with the publication this year. First, I thank each of the authors who contributed to this issue, including Professor Rosalind Dixon, who kindly drafted the foreword. Thank you for entrusting our publication with your work and for sharing my vision for this year’s thematic. It has been an honour seeing your articles through to publication, and I hope you all share the immense pride I feel for this issue.

* Court of Conscience Editor-in-Chief.

1 Richard Brust, ‘The High Court vs the Ivory Tower’ (2012) 98(2) American Bar Association Journal 50, 52.

I also extend my sincere thanks to the anonymous peer reviewers who generously gave their time and expertise in reviewing the pieces; your input has been invaluable to the development of this issue.

As an entirely student-led publication, Court of Conscience would not have been possible without our hard-working and dedicated Editorial Board. It has been incredibly rewarding to work alongside each of you, and I thank you for your sustained diligence, insight, and friendship. In particular, I would like to thank Kayla Quang and Anonna Das for their endless support and camaraderie. You have continuously reminded me that no challenge is insurmountable, and that truly, the greatest reward in any endeavour are the friends made along the way.

I also thank our artist, Darshni Rajasekar, for the beautiful illustrations that appear throughout the issue, and our graphic designer, Helaina Clare, for putting together this year’s publication.

Finally, I extend my gratitude to the UNSW Law Society for facilitating this publication and for allowing Issue 19 to be the latest in a series of progressive issues.

I hope you enjoy this issue, and that it resonates with you both as a source of practical guidance and theoretical reflection after all, it is possible (and critical) for academia to do both

FOREWORD: BRIDGING THE THEORY PRACTICE DIVIDE

ROSALIND DIXON*

Court of Conscience has a long tradition of publishing outstanding scholarship on issues of social justice and the law’s operation ‘on the ground’ not just on the books. This symposium on law ‘beyond the Ivory Tower’ continues this tradition. I am thus especially pleased to be invited to introduce the articles in the symposium, many of which are authored by friends and colleagues as well as the next generation of emerging legal voices.

But what does this call to go ‘beyond the Ivory Tower’ and bridge the gap between legal theory and practice really mean? How should we understand its implications for legal research, practice and teaching?

Universities play a critical role in conducting basic research, and teaching the next generation of students to understand both the logic of this research and the tools needed to continue it in the future. Going beyond the Ivory Tower, therefore, cannot mean destroying that tower or downplaying the significance of basic ‘blue sky’ research as the basis for later social, economic and political progress. Indeed, some contributors expressly note the dangers posed to social and environmental progress by universities adopting too short-term a focus, driven by the imperatives of the competitive grant cycle and university engagement priorities.1

Instead, what it can, and should, mean is the attempt to encourage research and teaching that constructs a bridge between this kind of foundational knowledge and the practical challenges of legal practice and reform in current socio-political conditions. A bridge of this kind can also be understood to have four key elements, or (in bridge design language) ‘foundations’: first, a commitment to orienting legal scholarship towards addressing the ‘dramas’ of pressing social, economic and political challenges; second, a commitment to studying law ‘in action’ or on the ground and not just on the books; third, a concern to orient some if not all legal scholarship and teaching towards a concrete project of legal reform; and fourth, a commitment to teaching law in a manner designed to encourage and support these other goals.

The four goals are clearly interrelated. To press for change, we must first seek to document and understand what is lacking in the legal status quo. To make change in a democracy, we must orient reform efforts towards actual real-world problems capable of motivating citizens and their

* Rosalind Dixon is Anthony Mason Professor and Scientia Professor in the School of Global & Public Law, UNSW Sydney.

1 Faith Gordon, ‘Beyond the Ivory Tower: How Academia Can Support Youth Climate Activism in Australia’ (2025) 19 Court of Conscience 115.

representatives to seek change. And to achieve true change, we must teach future lawyers the skills needed to make this change real in practice, as well as on the books. However, it is still useful to distinguish each goal as distinct elements of the project of bridging the theory-practice divide. Doing so also helps situate the rich and diverse contributions to the symposium itself.

Almost all contributors to this issue bridge the theory-practice divide by focusing on pressing issues of social justice in Australia today. The Honourable Robert French focuses on issues of First Nations justice, especially current debates over the idea of a treaty with First Nations peoples.2 Jill Hunter adopts a similar focus, albeit within the context of issues of criminal justice, culpability and sentencing.3 Ingrid Mathews and Sandra Schmutter do the same: together, they employ a rich and distinctive dialogic narrative style to highlight the challenge of achieving justice for First Nations citizens in a settler colonial society such as Australia, which has yet to fully grapple with its colonial history.4

Helen Gibbon and Ben Mostyn focus on the issue of drug regulation and criminalisation, specifically through the lens of statutory ‘deeming’ provisions in New South Wales’ drug laws.5 Aaryan Pahwa focuses on the challenge of creating an effective and accessible administrative review system in Australia,6 whereas Peta Spyrou explores what it means to create an effective and accessible model of disability rights protection.7 Beth Nosworthy likewise adopts a disability rights focus, exploring the challenge of creating ‘supported’ rather than substitute decision-making for those with intellectual disabilities and the intersection between this challenge and current understandings of the corporate form.8

Rebecca Dominguez and Catherine Renshaw grapple with the challenge of training effective but also resilient Australian lawyers capable of meeting the increasingly complex challenges of legal practice,9 while Mark Giancaspro is concerned with the challenge of training lawyers capable of meeting the challenges of practice in an increasingly complex and challenging professional environment.10

2 Robert French, ‘Native Title, Justice and the Evolution of the Unwritten Law’ (2025) 19 Court of Conscience 3.

3 Jill Hunter, ‘“Bugmy,” You Know’ (2025) 19 Court of Conscience 19

4 Ingrid Matthews and Sandy Schmutter, ‘Shared Histories and the Colonial Present: A Message to Law Students and Teachers’ (2025) 19 Court of Conscience 9.

5 Helen Gibbon and Ben Mostyn, ‘The First Casualty of War is Truth: Legal Fictions and NSW Drug Laws’ (2025) 19 Court of Conscience 25

6 Aaryan Pahwa, ‘Accessibility in the ART: Clear on Paper, Blurred in Practice’ (2025) 19 Court of Conscience 49

7 Elpitha Spyrou, ‘Navigating the Legal Labyrinth in Education: The Challenges of Resolving Disability Discrimination Complaints’ (2025) 19 Court of Conscience 33

8 Beth Nosworthy, ‘Incorporated Support Structures: The Role of Conscience for the Individual and for the Law?’ (2025) 19 Court of Conscience 41

9 Rebecca Dominguez and Catherine Renshaw, ‘Bridging the Divide between Theory and Practice: The Transformative Impact of Experiential Legal Education’ (2025) 19 Court of Conscience 67.

10 Mark Giancaspro, ‘Donning the Chancellor’s Cloak: How Equity’s Playbook Can Help Reshape Legal Education in Australia and Fell the Ivory Tower’ (2025) 19 Court of Conscience 57.

Other contributors explore pressing issues of truly global concern. These include the challenge of addressing climate change (Faith Gordon),11 the rise of AI (Jeannie Marie Paterson),12 broader threats to the rule of law and democracy (Nikki Chamberlain),13 and the rights of children in conflict zones such as Gaza (Noam Peleg).14

But within this broad focus, contributors also adopt differing foci or emphases. For instance, in focusing on the challenge of delivering justice for First Nations Australians, Chief Justice French focuses on showing support for the idea of a treaty using the history of common law decision-making in this area,15 whereas Hunter focuses on the representation of First Nations peoples as criminal defendants, arguing that lawyers must have the skills needed to operationalise legal principles (such as the Bugmy principles on leniency in sentencing) when accounting for offender background and disadvantage.16 Chief Justice French likewise focuses the history of First Nations justice on the books and in practice, whereas Hunter focuses on a call for improved legal education aimed at developing future lawyers’ ‘soft’ skills in engaging clients and hard, but non-legal, skills in amassing and presenting statistical evidence.17

Gibbon and Mostyn are concerned with ‘law on the books’ and a contextual analysis of the international and political context for Australian courts’ harsh approach to the interpretation and enforcement of drug laws (including apparently ‘balanced’ evidentiary deeming provisions).18 They also suggest that this has implications for legal reform and education.19 Nosworthy focuses on studying models of supported decision-making on the ground, but as the basis for a call for legal reform.20 Pahwa and Spyrou focus on law in action, again with a view to reforming existing models of administrative review and anti-discrimination protection.21

Giancaspro critiques existing legal education with a view to offering concrete suggestions for more practical, experiential forms of legal education.22 Dominguez and Renshaw likewise emphasise the value of clinical and experiential forms of learning as a response to the challenges of practitioner skill and wellbeing they identify.23 Matthews and Schmutter call for greater engagement with narrative history, which represents one of the many ways for education lawyers to better understand their role in

11 Gordon (n 1).

12 Jeannie Marie Paterson, ‘Understanding AI Transparency and Literacy: Lessons from Consumer Credit Regulation’ (2025) 19 Court of Conscience 107

13 Nikki Chamberlain, ‘When Assaults on the Rule of Law, Separation of Powers and Access to Justice Become a Present-Day Reality’ (2025) 19 Court of Conscience 83

14 Noam Peleg, ‘Children, Gaza and the Relevancy of International Law’ (2025) 19 Court of Conscience 91

15 French (n 2).

16 Hunter (n 3).

17 French (n 2); Hunter (n 3).

18 Gibbon and Mostyn (n 5).

19 Ibid.

20 Nosworthy (n 8).

21 Pahwa (n 6); Spyrou (n 7).

22 Giancaspro (n 10).

23 Dominguez and Renshaw (n 9).

the representation of First Nations clients and the challenging of injustice in a settler colonial society.24 And Paterson examines the challenges of financial literacy education on the ground, through the lens of helping guide and inform the design of a realistic model of AI literacy training.25

A fifth and final element of bridging the theory-practice divide involves public advocacy by scholars. Some forms of media and public advocacy will almost always be an important part of closing the theory-practice divide. And scholars will often have a combination of expertise and authority in advocacy of this kind.

Of course, not all scholars will have the time, interest or capacity to engage in such advocacy nor will they have the time, interest or capacity to work on topics that lend themselves to this kind of advocacy. But many scholars will; and as Faith Gordon notes, scholars can play a role in supporting broader advocacy in civil society such as by youth climate activists through their approach to research and teaching.26

The challenge is simply to ensure that a role of this kind is not abused by broader political actors.27 This is a danger that Joe McIntyre and Liz Hicks identify and label the problem of ‘ivorywashing’.28 A leading recent example is also arguably a Deloitte report that cites academic work by my colleagues Nina Boughey and Lisa Burton, and hence purports to draw on academic expertise in support of the position it advances. However, it relies on AI-generated versions of citations that do not in fact exist.29

The solution, proposed by McIntyre and Hicks, is also to insist on a sharper distinction between scholarly evidence and opinion and that scholars using their expertise to advance an opinion do so in a way that is ‘consistent with the ethical and methodological constraints of the profession’.30 One could view this as consistent with existing calls for appropriate scholarly care and self-reflection,31 which have arisen in response to the general concern about scholarly activism or ‘scholactivism’.32

This, of course, is one concern that could be raised in response to a volume of this kind. However, all contributors go to great lengths to meet the requirements set out by McIntyre and Hicks of scholarly rigour and reflexity33 or of offering scholarly ideas in a fair-minded and nuanced way.

24 Matthews and Schmutter (n 4).

25 Paterson (n 12).

26 Gordon (n 1).

27 Cf Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (Oxford University Press, 2021).

28 Joe McIntyre and Liz Hicks, ‘Ivory-Washing or Expertise? The Responsibilities of Legal Academics in Political Discourse’ (2025) 19 Court of Conscience 97

29 Krishani Dhanji, ‘Deloitte to Pay Money Back to Albanese Government after Using AI in $440,000 Report’, The Guardian (online, 6 October 2025) <https://www.theguardian.com/australia-news/2025/oct/06/deloitte-to-pay-money-back-to-albanesegovernment-after-using-ai-in-440000-report>.

30 McIntyre and Hicks (n 28) 97.

31 See Liora Lazarus, ‘Constitutional Scholars as Constitutional Actors’ (2020) 48 Federal Law Review 483; Adrienne Stone, ‘A Defence of Scholarly Activism’ (2023) 13(1) Constitutional Court Review 1.

32 See, eg, Tarunabh Khaitan, ‘On Scholactivism in Constitutional Studies: Skeptical Thoughts’ (2022) 20(2) International Journal of Constitutional Law 547.

33 McIntyre and Hicks (n 28).

For that, and for the breadth of their work and vision, I commend them all as well as the student editors for conceptualizing and implementing this important project.

NATIVE TITLE, JUSTICE AND THE EVOLUTION OF THE UNWRITTEN LAW

THE HON ROBERT S FRENCH AC*

Martin Luther King said that ‘the arc of the moral universe is long, but it bends toward justice’.1 Roscoe Pound, writing in The Spirit of the Common Law in 1921 spoke of a ‘world-wide movement for socialisation of law, the shifting from the abstract individualist justice of the past century to a newer ideal of justice …’2 The optimistic observer of the Australian legal system may see a step-wise evolution linked to changing societal perspectives.

The worldwide movement of colonisation of inhabited territories by the United Kingdom brought the common law to those territories. That which was imported into Australia did not bring with it just engagement with the First Peoples of the Australian colonies. That is despite official instructions along the lines of those from the Imperial Government to Arthur Phillip in 1787. He was required ‘to endeavour by every possible means to open an Intercourse with the Natives and to conciliate their affections, enjoining all Our Subjects to live in peace and amity with them’ 3

In 1833, the Supreme Court of New South Wales described the first peoples of that colony as ‘wandering tribes … living without certain habitation and without laws [who] were never in the situation of a conquered people…’4 The land being ‘settled’ was the property of the Crown from the time of annexation.5 That was still the position in 1889 in the Privy Council in Cooper v Stuart6 where Lord Watson described the colony of New South Wales, and thereby the Australian colonies generally, as ‘a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions’ 7 Cooper v Stuart solidified a historical fiction into a quasi-constitutional principle. It was necessarily followed by Sir Richard Blackburn in the first Australian native title case Milirrpum v Nabalco Pty Ltd (‘Milirrpum’) 8 in which the Judge rejected a claim by the Yolngu people seeking

* The Hon Robert S French AC is the former Chief Justice of Australia (2008–2017).

1 Martin Luther King, ‘Remaining Awake Through a Great Revolution’ (Speech, Washington National Cathedral, 31 March 1968)

2 Roscoe Pound, The Spirit of the Common Law (Marshall Jones Company, 1921) 7

3 Historical Records of Australia, Governor Phillip’s Instructions, 25 April 1787 (UK) 15.

4 McDonald v Levy [1833] 1 Legg 39, 45.

5 Attorney-General v Brown [1847] 1 Legg 312; Williams v Attorney-General (NSW) (1939) 16 CLR 404.

6 [1889] 14 App Case 286.

7 Ibid 291; see also Re Southern Rhodesia [1919] AC 211, 233–4; Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 which seemed to establish some form of sliding scale for society whose laws and customs were cognisable by the common law.

8 (1971) 17 FLR 141 (‘Milirrpum’).

orders invalidating the grant of mineral leases at Gove on the basis of customary indigenous ownership of the land. It was he said ‘… beyond the power of this Court to decide otherwise than that New South Wales came into the category of a settled or occupied colony’.9 The evidence before him told a different story, as he recognised, showing:

a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws and not of men’, it is that shown in the evidence before me.10

Between the Milirrpum judgment in 1971 and the Mabo (No 2)11 decision in 1992, significant changes occurred in societal and judicial perspectives.

The Commonwealth Government established a Royal Commission headed by Justice Edward Woodward which proposed land rights legislation for the Northern Territory providing for the grant of statutory titles to traditional owners based upon inquiry and recommendation by an Aboriginal Land Commissioner.12 The moral perspectives informing the scheme were reflected in its objectives as proposed by Woodward J, which included ‘[t]he doing of simple justice to a people who have been deprived of their land without their consent and without compensation’.13

Much litigation ensued between applicants for the statutory titles and the Northern Territory Government. Thirteen cases under the Act came before the High Court before its epochal common law decision in Mabo (No 2) in 1992. In those cases, the Court was exposed repeatedly to the statutory concepts of traditional ownership.14 As appears below, it was not the only example of reactionary Territory and State governments assisting the development of a more just relationship between First Peoples and Australian society generally by their dogged resistance to it.

An event that had its impact on the effectiveness of the ultimate common law recognition that came with Mabo (No 2) in 1992 was the 1967 Constitutional Referendum. That Referendum amended the power conferred by s 51(xxvi) to make special laws for the people of any race. It removed the exclusion from that power of ‘the Aboriginal race in any State’.15 By removing that exclusion it extended the power of the Parliament so that it could make laws for Aboriginal people. That power underpinned the Native Title Act 1993 (Cth) (‘Native Title Act’), which created the statutory framework for common law recognition of native title effected by the Mabo (No 2) decision. It was that power which the High

9 Ibid 244.

10 Ibid 267.

11 Mabo v Queensland (No 2) (1992) 175 CLR 1 (‘Mabo (No 2)’).

12 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

13 Aboriginal Land Rights Commission, Parliament of Australia, Woodward Royal Commission of Inquiry into Aboriginal Land Rights in the Northern Territory (Parliamentary Paper No 69, April 1974) 2 [3] (‘Woodward Commission’).

14 See generally Robert French, ‘The Role of the High Court in the Recognition of Native Title’ (2002) 30(2) University of Western Australia Law Review 129.

15 Australian Constitution s 51(xxvi) (‘Constitution’).

Court invoked in 1995 in its finding, against a challenge by Western Australia, that the Native Title Act was a valid law of the Commonwealth.16

Another important development which was to provide protection for common law recognition of native title, was the enactment of the Race Discrimination Act 1975 (Cth) (‘Race Discrimination Act’). That Act gave effect to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination 17 The validity of the Act as an exercise of the external affairs powers of the Commonwealth was challenged by Queensland in 1982 in Koowarta v Bjelke-Petersen. 18 It was said to be a valid exercise of the power by a 4–3 majority.

The Racial Discrimination Act underpinned the framework protective of native title recognised under the Native Title Act. It meant that no State Government could, by law or administrative action, extinguish or impair native title rights or interests without compensation, i.e. on terms less favourable than those available to other persons faced with compulsory acquisition of their land under State law. That was because of the paramount provision, s 109 of the Constitution, rendering State laws inconsistent with a Commonwealth law invalid to the extent of the inconsistency. Past acts of uncompensated extinguishment which had occurred after the passage of the Racial Discrimination Act were validated by the Native Title Act enacted in 1993, but subject to an entitlement to compensation.

The Mabo (No 2) litigation was instituted in 1982 in the original jurisdiction of the High Court. In 1985, Queensland tried to pull the rug from under the feet of the plaintiffs by passing an Act extinguishing native title throughout the Torres Strait.19 In 1988, in Mabo v Queensland (No 1), 20 the High Court, by majority, held the Queensland Coastal Islands Declaratory Act 1985 (Qld) (‘State Act’) to be invalid for inconsistency with the Racial Discrimination Act. The question whether native title could be recognised at common law awaited determination. That determination came four years later in the historic decision of the High Court in Mabo (No 2).

Recognition of historical injustice pervaded the majority judgments. Brennan J observed of past precedent, with the agreement of Mason CJ and McHugh J, that ‘no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system’.21

The common law recognition of native title rights and interests represented what was later described as a ‘constitutional shift’ in the common law.22 Nevertheless, it had shortcomings when viewed through the lens of ‘simple justice’ of the kind that informed the Aboriginal Land Rights

16 Western Australia v Commonwealth (1995) 183 CLR 373.

17 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 330 UNTS195 (entered into force 4 January 1969).

18 (1982) 153 CLR 168.

19 Queensland Coastal Islands Declaratory Act 1985 (Qld) (‘State Act’).

20 (1988) 166 CLR 186 (‘Mabo (No 1)’).

21 Mabo (No 2) (n 11) [29].

22 Wik Peoples v Queensland (1996) 187 CLR 1, 182 (Gummow J).

(Northern Territory) Act 1976 (Cth) in the Northern Territory.23 The new rules established in Mabo (No 2) provided for the mapping of communal rights and interests arising under traditional laws and customs into rights and interests in the domain of the common law. The mapping was effected by what could be called rules of recognition. They embodied conditions including continued connection with the relevant country dating back to the time of colonial annexation. They would not apply where a valid law or dealing affecting the land disclosed a clear and plain intention to extinguish that native title. This was developed into a test of inconsistency between the allegedly extinguishing act and native title rights and interests at common law.

To much consternation, the High Court of Australia in Wik v Queensland in 1996 held that the grant of a pastoral lease was not necessarily inconsistent with the continuance of common law native title rights and interests underlying it. The High Court was criticised stridently for its decision and there was a degree of legislative backlash with amendments to the Native Title Act in 1998.

Ultimately, calm returned as the sky did not fall in on pastoral leaseholders. And ultimately mere inconsistency with native title rights was held not to necessarily evidence a plain and clear intention to extinguish them.24

That said, it is of some importance to bear in mind that extinguishment was a common law concept embodied in the rules of recognition of native title at common law. It did not and could not have any operation within the systems of traditional law and custom followed by First Peoples’ societies.

Behind the moving wavefront of claims for native title recognition under the Native Title Act has come the developing law of compensation for extinguishment. As noted above, compensation is payable under the Native Title Act for past acts, validated by the Native Title Act, of uncompensated extinguishment which postdated the Racial Discrimination Act. The measure of compensation assessed by the High Court decision in its historic Timber Creek Case25 covered both economic and noneconomic loss. The latter was assessed by reference to the cultural or spiritual aspects of the impact of extinguishment.

In 2025, a further important decision was delivered by the High Court. The Court found that pre-1975 extinguishments by the Commonwealth were capable of constituting acquisitions requiring just terms compensation under s 51(xxxi) of the Constitution. That was Commonwealth v Yunupingu 26

The Mabo (No 2) decision involved no compromise with the notion of crown sovereignty over the land and waters of the colonies which was emphatically asserted by the High Court in 1979 in Coe v Commonwealth 27 An attempt to revisit the sovereignty issue was rejected in a number of subsequent

23 Woodward Commission (n 13) 2 [3].

24 Queensland v Congoo (2015) 256 CLR 239.

25 Northern Territory v Griffiths (2019) 269 CLR 1.

26 (2025) 99 ALJR 519.

27 (1979) 24 ALR 118; 53 ALJR 503.

decisions of lower courts.28 That rejection does not involve a rejection of the concept of two concurrent systems of law, the general Australian constitutional legal system and systems of the kind acknowledged by Blackburn J in Milirrpum.

This has implications for the concept of treaty. It does not involve a compromise of constitutional principle by relying upon a premise of competing sovereignties. Where connection is maintained, traditional authority in relation to land and waters continues under traditional law and custom. The general Australian legal system cannot affect that traditional authority. Nor can that traditional authority change the authority of the Crown over land and waters save to the extent that the common law and/or statute creates rights and interests reflective of it.

The conception, derived from the common law of native title, of parallel systems in areas where traditional law and custom survives, is applicable to the development of a treaty, compact or agreement between Commonwealth, State and Territory governments and First Peoples. The question is not one of constitutional law, but of political will in the pursuit of ‘simple justice’.29

Australian society has come a long way since 1901. It still has a long way to travel in its recognition of and interaction with its First Peoples. Despite fits and starts and reversals, we can say that the arc of the moral universe tends, albeit slowly, towards justice.

28 See generally Nyangpul v State of New South Wales [2025] NSWCA 119 and cases cited therein.

29 Woodward Commission (n 13).

SHARED HISTORIES AND THE COLONIAL PRESENT: A MESSAGE TO LAW STUDENTS AND TEACHERS

INGRID MATTHEWS* AND SANDY SCHMUTTER#

Nan Sib would put on a hairnet, or a scarf, she always covered her head, and go into town [the mission is five miles from town, the reserve about 20 miles] when we was all in town with nan she’d say ‘c’mon now darlins we have to be civilised now’. And we’d listen to her, we respected her. And we’d say okay nan.

What did that mean, ‘being civilised’, when you went into town?

It meant behaving ourselves in front of white people.

I INTRODUCTION

Ingrid: I love this story. I have heard it many times. I picture Nan Sib, a twinkle in her eye, teaching her grandchildren to navigate surveillance by white society and its law. From stories like this one, I have come to wonder at what we are taught is civilised: the brutal reign of colonial violence that founds a penal colony like New South Wales.1

There remains a considerable gap between what law students are taught and what lawyers representing Aboriginal clients need to know for effective advocacy. In a settler colonial state, we are all exposed to false narratives, harmful stereotypes, deficit discourses, presumed criminality, and other distortions of Aboriginal life through the colonial lens.

Preparing students to effectively represent Aboriginal peoples must therefore embrace a wider truth-telling function,2 including the foundational identity of colonial (‘common’) law on Country.3 Laws of the colonising power are enforced against sovereign Aboriginal people on their unceded lands

* Ingrid Matthews is a white academic living and working on unceded Dharug lands

# Sandy Schmutter is an Aboriginal grandmother and great-grandmother raising children on Country.

1 Learning from story is a characteristic of human societies, and law students continue to learn foundational concepts through parable and allegory. See, eg, Lon Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62(4) Harvard Law Review 616; Donahue v Stevenson [1932] AC 562, 580, invoking the Book of Luke 10:29.

2 Bridget Cama and Corey Smith, ‘Responding to Uluru Statement’s Call for Truth’, Australian Pro Bono Centre (Web Page, 15 December 2024) <https://www.probonocentre.org.au/wp-content/uploads/2024/11/Pro-Bono-Voco-Dec-2024_JEC.pdf>.

3 The law of the colonising power is a law of the land elsewhere England but not the law of the land here.

and waters without consent.4 In contrast, the law of the land, also called First Law5 and Raw Law6, is universal and eternal, because the land is the source of the law 7 Law of the land embodies connections and obligations to culture, kin, and Country. In this article we mix together our connections and obligations with personal and scholarly accounts of colonial laws.8 We ask legal educators to draw on a framework of legal pluralism to critique re/presentation of the common law as paramount. When negotiating white society and its colonial laws, Aboriginal people deserve legal representatives with a shared understanding of our shared history, law of the land, and the colonial present.

II POSITION/ALITY

On a long summer day in December 2013, the authors sat down to discuss teaching law students about working with Aboriginal people. This was in the formative years of the Indigenous Knowledges Graduate Attribute. Our conversation focused on a foundational Bachelor Laws (LLB) course.9

If you could say one thing to future lawyers about Aboriginal people and the law, what would it be?

Give the benefit of the doubt. Treat everyone equally. Give us the benefit of the doubt 10

This quote was later placed at the top of a new chapter in the first-year textbook.11 It was chosen to encapsulate a gaping maw between lofty ideals and brutal racism of the criminal law. Here, we reflect on another gap, between our shared history and the colonial present. The gap is refracted across social spheres and institutions, from parliaments to police stations, in churches and board rooms. Law schools are no exception. At the same time, we honour long struggles by elders and ancestors creating opportunities fulfilled by later generations. We celebrate Land Back and Blak excellence, and

4 Irene Watson, ‘There is No Possibility of Rights Without Law: So Until Then, Don't Thumb Print or Sign Anything!’ (2000) 5(1) Indigenous Law Bulletin 4, 4–7.

5 See Anne Poelina, ‘First Law a Gift to Healing and Transforming Climate and Just Us!’ (2024) 14(5) Journal of Cultural Heritage Management and Sustainable Development 767.

6 See Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge, 1st ed, 2015).

7 See C F Black, The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Routledge, 1st ed, 2011).

8 For this article, we chose ‘mixing together’ as a lay term, rather than implying a more formal methodology. Contemporary Indigenous methodologies describe this type of ‘mixing’ in various ways, including (in English) weaving, braiding, cultural interface, two-way seeing, and the Yolηo concept Ganma. See, eg, Eddie Synot et al, ‘Weaving First Peoples’ Knowledge into a University Course’ (2021) 50 Australian Journal of Indigenous Education 222; Courtney Ryder et al, ‘Indigenous Research Methodology Weaving a Research Interface’ (2020) 23(3) International Journal of Social Research Methodology 255.

9 In late 2008, the (then) University of Western Sydney (UWS) was allocated $900,000 by the Department of Education, Employment and Workplace Relations from the Diversity and Structural Adjustment Fund for the project Embedding an Indigenous Graduate Attribute: Bernice Anning, ‘Embedding an Indigenous Graduate Attribute into University of Western Sydney’s Courses’ (2010) 39 Australian Journal of Indigenous Education (2010) 40, 44. See also Australian Government, ‘Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People’ (Final Report, Department of Education, July 2012) <https://www.education.gov.au/download/2658/review-higher-education-access-and-outcomesaboriginal-and-torres-strait-islander-people/3703/document/pdf>; Marcelle Burns, ‘Are We There Yet? Indigenous Cultural Competency in Legal Education’ (2018) 28(2) Legal Education Review 1.

10 Micheal Head, Scott Mann and Ingrid Matthews, Law in Perspective: Ethics, Critical Thinking and Research (UNSW Press, 3rd ed, 2015) 345

11 Ibid.

Indigenous people doing truly transformative work. There are more Indigenous lawyers and legal scholars than ever, and more Aboriginal graduates leading organisation established by and for Aboriginal people.12

These achievements co-occur with increasing criminalisation and incarceration of Aboriginal people under harsh and punitive state crime policies. Closing the Gap, as a policy framework, is comprehensive and aspirational.13 Yet the colonial gap, between non-Indigenous and Aboriginal life at the margins, is getting wider. Aboriginal children are still being stolen from their families, by police and child removal officers.14 In unsentimental terms, increasing Aboriginal participation in law schools and the legal profession cannot counter harsh and punitive policies and practices that invariably and therefore purposefully cause the same outcomes every time.15

It is in this context that we submit our personal perspective on what is at stake. We are two women who have dealt extensively with police and child removal officers disrupting our family life. Our children are first cousins, and we take our Aunty obligations seriously. Sandy is a Black grandmother and great-grandmother raising children on Country. Ingrid is a white woman and academic who moved (back) to Sydney, raising her Aboriginal children on Dharug lands. Over some thirty years, a recurring theme has been raising our children in their culture. We especially want to share our perspective with law students who will represent Aboriginal people, and their teachers.

12 The first free shop front legal service in the country was established in Redfern in 1970, during the post-1967 referendum inertia that characterised coalition (the Holt, Gorton, and McMahon) governments. This was a time of prominent land rights struggles, including the Tent Embassy in Canberra, leading to a (brief) period of substantial federal reforms under the Whitlam government (1972–75). See Gary Foley, ‘White Police and Black Power’, Aboriginal Legal Service (Web Page, 9 July 2021) <https://www.alsnswact.org.au/white_police_black_power_1>.

13 The history of Close The Gap/Closing the Gap has become somewhat muddied by the Rudd government decision to announce CtG policy commitments alongside his National Apology to the Stolen Generations and their descendants. Closing the Gap remains a substantive, evidence-based policy framework and the annual report is tabled each year on the anniversary of the Apology (13 February). One of the worst performance areas every year is the criminal law: Australian Government, ‘Closing the Gap Targets: Key Findings and Implications’ (Research Report, Australian Institute of Health and Welfare, 2025) <https://www.aihw.gov.au/reports/indigenous-australians/closing-the-gap-targets-key-findings-implications/contents/criminaljustice>.

14 Ingrid Matthews and Lynda Holden, ‘The Colonial Logic of Child Removal’ (2023) 29(3) Australian Journal of Human Rights 551.

15 The rate at which First Nations children are incarcerated is even more ‘disproportionate’ (more than half of all incarcerated children in every jurisdiction) than Indigenous adults (around a third of the prison population, nationally): see ‘Youth Detention Population in Australia 2024’, Australian Institute of Health and Welfare (Web Report, 13 December 2024) <https://www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2024/contents/summary/the-numberof-young-people-in-detention>; Australian Government, ‘The Health and Wellbeing of First Nations People in Australia’s Prisons 2022’ (Publication, Australian Institute of Health and Welfare, 29 May 2024) 1 <https://www.aihw.gov.au/getmedia/9e2c34861c45-40e6-883f-ed2d3e329da2/aihw-phe-342-The-health-and-wellbeing-of-First-Nations-people-in-Australia-s-prisons2022.pdf?v=20240508153645&inline=true>. It is worth noting that a majority of incarcerated children are presumptively innocent at law. According to the NSW Bureau of Crime Statistics and Research, in December 2024 there were 225 incarcerated children and young people in New South Wales, and 129 are Aboriginal (57%). More than three quarters, or 172 incarcerated children and young people, were on remand (53 were sentenced). The ‘increase since December 2023 is mainly due to an increase in young people on remand’: ‘Youth Custody Numbers in NSW up by Almost a Third Since 2023 Due to a Rise in Bail Refusal’ NSW Bureau of Crime Statistics and Research (Web Page, 18 February 2024) <https://bocsar.nsw.gov.au/media/2025/mrcustody-dec2024.html>.

Figure 1 (left): Rainbow Serpent Mosaic (the Mill Hole, Walcha) designed with Aboriginal local people and by Waanyi artist Gordon Hookey.

Figure 2 (right): Road signs reflect colonial norms of the wealthy ‘New England’ pastoral district. British authorities conducted ‘musters’ of colonial-settler people and stock. Records of Aboriginal people were called blanket returns 16

III SOME STORIES TO TELL17

I’m from Walcha. My dad was born in Gunnedah and his mum Nan Sib was born in Woolbrook. Pop [maternal grandfather], he’s from Taree and Gran Morris [maternal grandmother] she’s from Tingha. They always say to follow the maternal side. So that’s what I do. And it still goes down, that linage, those stories and songlines

[Ingrid asks for clarity about Country].

People ask me, are you Dunghutti, are you Anaiwan? I say ‘I’m a bitzer’. When Blackfellas bicker between themselves about who owns what, they can’t see eye to eye and come together as one. And if we did [come together as one] that Pauline Hanson wouldn’t have a leg to stand on

We go directly to the topic of representing Aboriginal clients.

Own what you’re going to do. Own the courtroom. Be aware what you’re going to go in there to do. Don’t go in there and get torn to pieces. A lot of these lawyers go in there and stumble

16 Until 1967, s 127 of the Australian Constitution prohibited counting Aboriginal people as people in the census. A collection of NSW ‘blanket lists’ can be viewed at the Museums of History NSW website: ‘Records of 19th Century Blanket Lists and Returns of Aboriginal People’ Museums of History New South Wales (Web Page, 2025) <https://mhnsw.au/guides/19th-century-blanketlists-and-returns-of-aboriginal-people/>.

17 This sub-heading references Irene Watson: Irene Watson, ‘First Nations Stories, Grandmother’s Law: Too Many Stories to Tell’ in Heather Douglas et al (eds) Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014) 41, 50.

on what they can do for you and what they can’t do for you. They need to know what they’re going in there for. Do your homework. Do your ground work. Go into bat for people with confidence.

This is excellent general advice, but it is also context specific. In Aboriginal communities, and particularly among repeatedly criminalised Aboriginal people, legal representation often provided by overworked junior solicitors is infamously underwhelming.

The government lawyers, they only do what the government pays them to and that’s all. They don’t go any further than that. They don’t get you out of the situation you’re in. Or you get probation and parole and then if you miss an appointment [the lawyer] says you did the wrong thing. You might be sick and you still have to go to some training program or whatever, or if they’re too white, or with someone you don’t get along with. Then if you don’t go they send you to be re-assessed, to be re-herded (sic), or back to gaol. Then you’re a repeat offender You feel like you’re worth nothing Every time, Blackfellas will get the raw end of the stick Look at the statistics, more Blackfellas get sent back to gaol than white. Probation and parole wouldn’t have a job if nobody went to gaol

This leads to talking about ‘presumed criminality’ of Aboriginal people as a colonial (dominant white cultural) norm,18 but first, Sandy shares this memory.

I remember a probation officer, probation and parole, he was really nice. When they got locked up they would come in him and his wife and he’d make sure they were okay. Any time a Blackfella got locked up he’d go to see them.

Ingrid: He probably saved a few lives.

Sandy: He did.

Returning to lawyers, we think about how the legal profession and legal academy can become more aware of ingrained ‘prejudice’.19 On judgement and pre-judgement prejudice and presumed criminality, Sandy says:

Someone says oh you gotta go see a lawyer. I want that lawyer to say what do you need to see me for? To listen. You pour everything out for them on the table and they turn around and move to another place. Then another lawyer comes in and they think they’re above you and

18 See Amanda Porter, ‘Decolonising Policing: Indigenous Patrols, Counter-policing and Safety’ (2016) 20(4) Theoretical Criminology 548; Ingrid Matthews and Nigel Stobbs, ‘Affirmative Consent and Patriarchal Paradigms of Power in the Criminal Law’ (2025) 48(2) University of New South Wales Law Journal 474.

19 In many local usages, ‘prejudice’ signals ‘racism’ in Aboriginal English. As the reader can see, the article moves between formal, conversational, and Aboriginal English throughout. All the italicised text is direct quotes from Sandy, with small edits for clarity.

don’t listen to a word you say. They’re judging, trying to judge what the person is like, or what that person has done, before they do the homework. Judging me before you even know what I’m about. Or don’t want to hear what I have to say. A lot of lawyers say ‘you just do this’ and put your head on a chopping block.

This is difficult terrain. How can lawyers find out what the person is like? It is also a structural problem: if the lawyer is not from the local area, how can they know community? Long histories and deep connections are overlaid by colonial disruption and widely different and highly traumatic experiences such as segregation, forced removal and assimilation, and exemption.20 How can a lawyer speak on Country, on behalf of Aboriginal people, without ‘background work’ without being, quite literally, grounded in place?

You go in there [the court] and someone just cuts the lawyer down and then they don’t say no more. So you gotta know what you’re gonna say. You have to own it. Do your background work so you know exactly what you’re gonna go in and do. Otherwise you’re just looking at papers and saying ‘you’re charged with this you’re charged with that’. Lawyers with no idea what background [Aboriginal clients] have, or who they are. You need to know.

We talk about choosing the Walcha town sign photo for this article, invoking colonial musters and blanket lists.

That’s what they used to do, herd Blackfellas up and put them onto reserves like cattle and sheep. They used to put arsenic in the sugar and the flour. They gave out tents, and them government blankets. That’s what they give you in the cells too. Them old itchy grey government blankets

As with ‘prejudice’ (pre-judge) and ‘background’ work (connection to earth),21 we notice the homonym herd/heard. Being herded and not being heard is too often how Aboriginal people experience colonial law, including processes the system itself calls a hearing. The courtroom conversation moves to this memory from the 1980s:

This one time [cousin and her now-husband] came down to Walcha. We were at the New England [hotel]. This whitefella came over and told them quiet down. I said whoo up they’re not doing anything wrong. He called me a Black something, I don’t remember, so I said you can go and get fucked you white C. He had me charged for it. The police came and they took

20 Exemption certificates, a policy of forced assimilation, required Aboriginal people to sever all ties with their families, language, and culture. Police and other authorities could demand an Aboriginal person moving through white-controlled spaces produce the exemption certificate at any time. See, eg, Lucinda Aberdeen and Jennifer Jones (eds) with Aunty Judi Wickes and Aunty Kella Robinson, Black, White and Exempt: Aboriginal and Torres Strait Islander Lives Under Exemption (Aboriginal Studies Press, 2021).

21 Many Aboriginal cultural ways ceremonially mix dirt or earth to put or rub on skin, thereby literally and symbolically creati ng connection to Country.

me to the police station. To charge me. I went to court over it. It was so white white white. I got fined. And the judge turned around and said ‘well Miz Schmutter that was a very racist remark’. I didn’t say nothing.

IV CONCLUSION

In ‘Grandmother’s Law: Too Many Stories to Tell’, Tanganekald Meintangk Portuwutj and Bunganditj Distinguished Professor Irene Watson writes of laws not repealed, nor overturned, but buried.

Patriarchy was imposed, and with it came another law way, one which buried the laws of the land and the laws of women.22

The land is holding the law, buried beneath patriarchy and concrete that are smothering Country. At the heart of this article are just a few of these ‘too many stories’. We want to make visible the ways colonial law functions to sanction to separate and punish Aboriginal people. Separation and punishment operates to sever connection to kin and Country, and this is the colonial project.23

I tell my students, ‘when you get these jobs that you have been so brilliantly trained for, just remember that your real job is that if you are free, you need to free somebody else. If you have some power, then your job is to empower somebody else’.24

Non-Indigenous people from colonial, settler, and migrant communities powerfully benefit from the continuing forced displacement of First Peoples away from Country, displacement into poverty, foster homes, police cells, and prisons.25 Here, we advocate for recognition of colonial law’s violence.26 In sharing the our perspectives, we recognise Grandmothers and their law, knowledgekeepers and truth-tellers, and students and teachers we meet along the way.27

Listen to what the client has to say. When they’re judging you they don’t want to hear what I have to say. If you don’t get that point across, it stays the same, nothing will change. If someone

22 Watson (n 17) 50.

23 Sandy O’Sullivan, ‘The Colonial Project of Gender and Everything Else’ (2021) 5 Genealogy 67; Chelsea Watego, Another Day in the Colony (University of Queensland Press, 2021).

24 Interview with Toni Morrison (Pam Houston, O Magazine, November 2003).

25 Ingrid Matthews and Lynda Holden, ‘The Colonial Logic of Child Removal’ (2023) 29(3) Australian Journal of Human Rights 551.

26 Maria Giannacopoulos, ‘Law's Violence: The Police Killing of Kumanjayi Walker and the Trial of Zachary Rolfe’ in Chris Cunneen et al (eds) International Handbook of Decolonizing Justice (Routledge, 2023) 81.

27 The authors thank the reviewer who shared this perspective, which we add with permission while maintaining anonymised peer review protocol: The demand whether explicit or implicit as in nan here relating to her grandchildren in town is something I have experienced and most Blakfullas would have. It’s an experience that is a link to so much of the experience of the legal system and colonial society more broadly, beyond what people might first read and think. It’s not because we aren’t civilised of course, but because of how the system sees and treats us that to behave in a way otherwise to even have fun and experience love can be held against us. So, we police ourselves because of the effect of the system which doubles down itself despite changes.

goes into bat for them, then they might turn their life around. Good lawyers out there can make a difference and change a few things. Someone could pick it up and say ‘this is exactly right’

‘“BUGMY,” YOU KNOW’

JILL HUNTER*

Law schools teach their students from cases and statute. Ideally, students become skilled in statutory interpretation, legal method and lawyers’ ethical obligations. They learn other things argument and critical analysis, and communication skills all typically in a formal or doctrinal context. Learning these things may not always be an exciting process but they are fundamental to building a lawyer. But preparing for real-world legal practice takes more.

To illustrate my point, I am going to discuss what are often called ‘soft’ skills, and specifically interpersonal communications in challenging contexts, such as with a vulnerable cohort of clients. These skills tend to be solely learnt on the job a dynamic that can come at substantial human cost. I rely on the practical application of the law to issues addressed in the 2013 High Court of Australia case of Bugmy v The Queen (‘Bugmy’) 1 In Bugmy, the High Court accepted that for the purposes of sentencing someone convicted of a crime, a court must consider their relevant history of disadvantage and deprivation when assessing their moral culpability.2 However to apply that principle, evidence must be put before the court regarding the offender’s relevant subjective circumstances, that is their background. Further, ‘[b]ecause the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision.’3 A background of deprivation does not need to be causally linked to the offence.4 Instead, in the sentencing exercise the weight of the evidence is a matter for individual assessment. Justice Simpson (as she then was) observed that as a matter of ‘[c]ommon sense and common humanity’ a person with a ‘tragic and dysfunctional’ upbringing ‘will have fewer emotional resources to guide his (or her) behavioural decisions’ than someone from an advantaged background.5 These elements of the Bugmy ruling are often referred to as ‘Bugmy principles’.

Bugmy is typically part of Australian law schools’ criminal law curriculum. Students learn that the Bugmy principles are particularly relevant to the lives of First Nations people. Typically, law students will be also exposed to Closing the Gap statistics that reveal the extreme disadvantage suffered

* Jill Hunter (BA LLB (UNSW), PhD (London)) is a Professor in the Faculty of Law & Justice, UNSW Sydney <https://www.unsw.edu.au/staff/jill-hunter>. Professor Hunter thanks the Australian Institute of Criminology and the Indigenous Justice Research Program for their generous support and funding of Jill Hunter, ‘A Case Study of New South Wales Sentencing Courts and First Nations Offenders A “Difficult Kind of Dance” with Bugmy v R’ (Research Report, Australian Institute of Criminology, 2025) (forthcoming), and for permitting a portion of the research to be included in Court of Conscience. She also thanks the reviewers of this article for their generosity in reviewing and enhancing this article.

1 (2013) 249 CLR 571 (‘Bugmy’).

2 Ibid.

3 Ibid 571 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (emphasis added).

4 Ibid 591 [34].

5 R v Millwood [2012] NSWCCA 2 [69] (Simpson J).

by First Nations Australians.6 As Mick Gooda, former Aboriginal and Torres Strait Islander Social Justice Commissioner observed, ‘[t]he high rate of imprisonment is occurring in the context of poor health, inadequate housing, high levels of family violence, and high levels of unemployment’.7 Overrepresentation in prisons continues and grows despite the Australian Law Reform Commission’s (ALRC) recommendations made in Pathways to Justice Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, 8 Closing the Gap strategies9 and the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC).10

However, generally speaking, law schools are unlikely to find room to teach students about the challenges that lawyers face when they seek to invoke Bugmy principles.11 Some law schools may include discussion of the Canadian case of R v Gladue12 in their criminal law curriculum. Typically, such a reference is to the remedial nature of the statute applied in that case. It is designed to ameliorate ‘the serious problem of overrepresentation of aboriginal people in prisons, and … encourage sentencing judges to have recourse to a restorative approach to sentencing’ 13 Gladue reports reflect the Canadian courts’ obligation to recognise that ‘[aboriginal] offenders’ lives show the consequences of colonialism … that have destroyed their culture and communities’…’.14 These reports ‘tell a shortened life story about the criminalised Indigenous person before the courts’,15 including relevant family, social, health and cultural profiling. They are composed following multiple interviews with the defendant, their family and community members so that courts are presented with evidence of the intergenerational impacts of colonialism and with recommendations, such as diversionary options. In the Australian context, Gladue’s case presents an aspirational goal.16

While Canadian lawyers and courts may be able to rely on Gladue reports, what do Australian lawyers do? How do they enliven the Bugmy principle of taking into account the impact of disadvantage, particularly childhood disadvantage? Unlike their Canadian equivalents, Australian sentencing courts cannot take judicial notice of the systemic background of deprivation and dispossession. A forthcoming

6 See Productivity Commission, ‘Closing the Gap Information Repository’, Aboriginal and Torres Strait Islander Adults are Not Overrepresented in the Criminal Justice System (Web Page) <https://www.pc.gov.au/closing-the-gap-data/dashboard/se/outcome-area10>.

7 Aboriginal and Torres Strait Islander Social Justice Commissioner, Submission No 5 to Senate Finance and Public Administration References Committee, Parliament of Australia, Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (27 April 2015) 5 (‘Submission No 5’), quoted in Australian Law Reform Commission, Pathways to Justice: Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, 1 December 2017) 41 [1.20] (‘Pathways to Justice’).

8 Pathways to Justice (n 7) 9.

9 National Indigenous Australians Agency, ‘National Agreement on Closing the Gap’, Closing the Gap (Web Page, July 2020) <https://www.closingthegap.gov.au/national-agreement/national-agreement-closing-the-gap>.

10 Royal Commission into Aboriginal Deaths in Custody (National Report, April 1991) vol 1.

11 Law schools vary. For example, at UNSW, the LLB and JD elective Sentencing and Criminal Justice prepares its law students in a number of the ways discussed in this article and Kingsford Legal Centre introduces its students to client interviewing.

12 (1999) 1 SCR 688 (‘Gladue’).

13 Ibid [93], referring to Criminal Code, RSC 1985, c C-46, s 718.2(e).

14 R v Willier [2016] ABQB 241 [6] (Greckol J).

15 Judah Oudshoorn, ‘Theorizing a Way Out of Reformist Reforms: Gladue Reports and Penal Abolition' (2024) 26(2) Punishment & Society 243, 245. See also Patricia Barkaskas et al, Production and Delivery of Gladue Pre-Sentence Reports: A Review of Selected Canadian Programs (Report, 9 October 2019) 50.

16 Yet, as the forthcoming report described in n 17 below indicates, Gladue reports can be highly problematic.

Australian Institute of Criminology (AIC) funded study17 draws on the in-court experiences of 20 lawyers, judicial officers and an Aboriginal support officer to better understand how Bugmy principles apply in practice. This study suggests that translating these principles into practice is often poorly managed. For example, a number of interviewees described observing lawyers making Bugmy submissions to a sentencing court but failing to include factual detail or evidentiary support.18 Instead they merely offer the judicial officer the ‘code’ words, ‘Bugmy principles apply’ or just ‘“Bugmy,” you know’. While lawyers who represent clients will be well-aware of the need to obtain instructions and gather appropriate evidence, the forthcoming empirical study shows that to the lawyer who speaks in code, for some reason, Bugmy principles are (apparently) disconnected from the details of their client’s situation. The inadequacy of giving a case name in the form of a code reveals how poorly legal education has prepared such a lawyer for the real world of representing a disadvantaged client.

I will explain why.

There is no automatic Bugmy discount for uttering a case name as if its mention is a ‘magical’ word. A court needs to be informed of an offender’s subjective case (that is, the factual basis of their disadvantage), and how these circumstances and experiences connect to the decisions for the court. Lawyers who rely solely on the Bugmy ‘code’ in their submissions to a sentencing court reveal that they have failed to absorb what the law expects of them and of the court. Case law, such as O'Hanlon v R19 can also illustrate this point. In O’Hanlon, in submissions based on Bugmy’s case, the applicant’s solicitor failed to place any substantive evidence regarding their client’s subjective case.20 The Court of Criminal Appeal repaired the damage but, appropriately, its focus was on responding to legal issues rather than the broader dynamic of why such failures occur.

The forthcoming AIC-funded study explores the dynamics that offer some explanations for these failures.21 The study shows that it can be difficult for lawyers obtaining such sensitive information from their client because disadvantage intersects in complicated ways on the clientele of Aboriginal legal services and legal aid agencies. For example, one lawyer interviewee represented an Indigenous man who suffered from the consequences of Foetal Alcohol Syndrome Disorder (FASD). He grew up on a mission where the community and his own home were burdened by excessive alcohol use, abuse and violence. Illicit drugs were involved in his offending. The client’s cognitive disability and experience of domestic violence created layers of complexity. During the interview, the lawyer reflected on the impact of disadvantage on this person’s life, observing that it showed ‘a really common sort of schematic that you find, which is [first] the early exposure to violence; the drug use starts…; the

17 Jill Hunter, ‘A Case Study of New South Wales Sentencing Courts and First Nations Offenders A “Difficult Kind of Dance” with Bugmy v R’ (Research Report, Australian Institute of Criminology, 2025) (forthcoming), This research was funded by the Australian Institute of Criminology and the Indigenous Justice Research Program and supported by the UNSW Faculty of Law & Justice and Centre for Criminology, Law & Justice. Research ethics approval for this project was granted by the UNSW Human Ethics Research Committee A (HC230240).

18 Interviewees are de-identified, with ‘ALS’ representing an Aboriginal Legal Service (NSW/ACT) solicitor and ‘LA’ representing Legal Aid (NSW).

19 [2025] NSWCCA 118 (‘O’Hanlon’).

20 Ibid [22], [36].

21 See Hunter (n 17) 5.

homelessness and it all sort of mingles into one and helps to explain how that person got there’ 22 He further explained:

[B]ut where do the drugs come from? Why is this person using ice every day? Well, they're using ice every day, because for the past three years they've been homeless, and they've been homeless … because you know they've never been able to hold down stable accommodation or a job. Why? Well, because they left school in the equivalent of Year 7, because they were constantly in and out of school, for fighting, for stealing. They were getting locked up. Why was that happening? Oh, because they grew up on a mission where there was rampant alcohol and domestic violence. And I will contend that he was basically predisposed to this life path.23

A lawyer, particularly a non-Indigenous lawyer, obtaining this level of factual detail and such insight must meet a number of challenges. They are interviewing a client who is struggling with life.24 The topics are sensitive. The lawyer is likely to be untrained in appropriate interview techniques. They may be juggling numerous files. Nor is there a single best-practice approach.25 As one interviewed lawyer noted, ‘a lot of stuff is private, personal’26, and clients’ attitudes vary as ‘some people feel terrible remorse for terrible things they do. And other people simply don't. It's a wide range, wide range of levels of engagement …’.27 ‘Having [First Nations clients] share their experiences takes time, takes resources that we don't often have. It takes a connection to community [and] that takes years … ’.28 Other issues, such as gender, may also create barriers.29

Even if these hurdles are overcome the lawyer needs to know how to best present in court potentially traumatising evidence. For example, it is clearly difficult for lawyers to address how courts should receive evidence of a client’s exposure as a child to domestic violence or to a home life marked by rampant alcohol-fuelled violence. In particular, a client may prefer that their private and personal matters not be ventilated to strangers or in front of their family sitting in court. In the AIC-funded study some clients instruct their legal representative to avoid submissions placing family members in a poor light ‘because on release they're going back to the Aunty that raised them, or the mum and dad or the community in general and they would rather spend more time in custody than have them…badmouthed’ 30 As one interviewee noted, the best ‘lawyer’s’ outcome may not meet a client’s wishes.31

Dealing with these situations is rarely, if ever, taught in law school. Even if it is, this is not just an exercise in legal processes. It is a public process, in a courtroom that has scale, furnishings and personnel that are incongruous with communicating the personal traumas that are intrinsically raw and intimate and potentially expose a client to shame and humiliation. Two Canadian studies describe the

22 Ibid ALS5, see (n 18).

23 Ibid

24 See further Natalie Gately et al, ‘Complex Lives and Procedural Barriers: Detainees’ “Life Happens” Explanations for Breaching Orders’ (2025) 58(2) Journal of Criminology 299.

25 See Hunter (n 17).

26 Ibid ALS6.

27 Ibid ALS4.

28 Ibid LA1.

29 See, eg, R v Kina [1993] QCA 480.

30 Hunter (n 17) LA1.

31 Ibid.

challenges of in-court engagement with a client’s traumatic experiences. They note that ‘it was often difficult to bring up accused persons’ background information from their Gladue Reports in court, as they may not “want the painful details of their life raised in a forum”’.32

To teach such matters at law school is even more challenging, especially as the coverage of complex legal doctrine squeezes out many of the soft skills of being a lawyer. Galloway and Jones, addressing another context, refer to the need to ‘shift from the adversarial individualistic doctrinal focus of the traditional law degree, to embracing … the “soft” skills called for in the “real” world of work’.33

Finally, even if the court is appropriately provided with specific evidence of subjective disadvantage, the lawyer’s task is not complete. They must inform the sentencing court of the significance of that disadvantage whether it be FASD, homelessness, domestic violence, child abuse or neglect.34 While law schools teach students about obtaining expert evidence, often there will not be funds for an expert, and so lawyers need to learn how to use multi-disciplinary research-based resources like those in the Bugmy Bar Book.35 This resource provides courts and a potential expert with ‘a considerable quantity of social research relevant to various forms of disadvantage and deprivation [that is] undoubtedly a useful compilation of material relevant to understanding the effects of social disadvantage and deprivation’.36 Some law schools, like those at the University of New South Wales and the University of Technology, Sydney, draw some students into the Bugmy Bar Book project but as the AIC-funded study shows, more is required to be a lawyer skilled in presenting strong Bugmyinformed submissions to a real-world court.

The personal consequences of courts failing to make properly informed sentencing determinations are immense. Hench, while it is crucial that law students appreciate the systemic causes of First Nations Australians’ appalling incarceration rates37 and the close relationship between socioeconomic disadvantage and criminal justice involvement,38 more is required of future lawyers. For courts to be well-informed of an offender’s situation and for lawyers to best support a non-custodial sentence, all concerned must have the capacity to appreciate the exceptional complexity created by disadvantage and deprivation particularly in the context of settler/colonial dispossession. Lawyers

32 Department of Justice Research and Statistics Division, ‘Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System’ (Research Paper, September 2017) 51, quoting Scott Clark ‘Evaluation of the Gladue Court’ (Research Report, 2016); see also Anna Ndegwa et al, ‘Applying R v Gladue: The Use of Gladue Reports and Principles’ (Research Report, 2023).

33 Kate Galloway and Peter Jones, ‘Guarding Our Identities: The Dilemma of Transformation in the Legal Academy’ (2014) 14(1) QUT Law Review 15.

34 For a comprehensive list of disadvantages, see the Bugmy Bar Book Project Committee, ‘Bugmy Bar Book’, (Web Page, 2019) <https://bugmybarbook.org.au/>.

35 See ibid. The Bugmy Bar Book relies on Evidence Act 1995 (NSW) s 144.

36 Baines v R [2023] NSWCCA 302 [83] (Simpson J).

37 See generally Jennifer Tsui et al, ’Incarceration in Australia Since 1967: Trends in the Over-Representation of Aboriginal and Torres Strait Islander Peoples’ (Research Paper, September 2022).

38 For a persuasive examination conceptualising criminalisation and incarceration within the frameworks of social determinates of justice and social determinates of health, see Ruth McCausland and Eileen Baldry, ‘Who Does Australia Lock Up? The Social Determinants of Justice’ (2023) 12(3) International Journal for Crime, Justice and Social Democracy 37, 53.

must build trust and rapport, enabling them to appropriately present the ‘life path’ of the person before the court.

It should be an aspiration for all Australian law schools to expose law students to the practical ways in which they, as lawyers, can ensure that all courts, every day, present the best version of the High Court’s articulation of individualised justice. This is one that recognises and seeks to respond to the social determinants of justice ‘poor health, inadequate housing, high levels of family violence, and high levels of unemployment’.39

39 See Submission No 5 (n 7).

THE FIRST CASUALTY OF WAR IS TRUTH: LEGAL FICTIONS AND NSW DRUG LAWS

HELEN GIBBON* AND BEN MOSTYN#

I INTRODUCTION

Australian law students are introduced early in their criminal law studies to the High Court’s landmark decision in He Kaw Teh v The Queen, 1 a leading authority on interpreting statutory offences. Students learn that the common law has long recognised a presumption in favour of subjective mens rea the principle that a guilty mind must be proven before a person may be convicted of a criminal offence.2 The High Court affirmed that, where a statute is silent on the mental element, courts should presume that Parliament did not intend to punish people who unknowingly engaged in prohibited conduct. This presumption may be rebutted by consideration of the purpose of the statute and an analysis of specific factors, including the nature and seriousness of the offence. In the context of Australian drug offences, He Kaw Teh established that the prosecution must prove, beyond reasonable doubt, that the accused knew or believed they were importing or possessing a prohibited substance. The mere presence of illicit drugs concealed in a traveller’s luggage is insufficient in itself to ground a conviction. This decision marked a significant departure in the interpretation of drug offences from earlier Australian case law.3

Concerns were raised at the time that requiring proof of knowledge would operate as a ‘drug pedlar’s charter’ by imposing an impossibly high bar for the prosecution to establish guilt, and thereby undermine the efficacy of drug law enforcement.4 Sympathy for this apprehension was echoed in the dissenting judgment of Wilson J in He Kaw Teh, who stated, ‘[o]ne cannot lightly dismiss the view … that an offence of absolute liability may be justified by the difficulties that any other conclusion would place in the way of law enforcement officers … in making out a prima facie case’.5

Ultimately, Wilson J preferred to interpret the offences as ones of strict liability, where the accused would be convicted unless they could show an honest and reasonable belief, albeit mistaken, that they were not committing an offence. This construction, he believed, balanced fairness to the

* Associate Professor Helen Gibbon is the Associate Dean (Education) at the Faculty of Law & Justice, UNSW Sydney. She is the co-founder of the UNSW elective LAWS3427 | JURD7527 Drug Law and Policy.

# Dr Ben Mostyn is a Lecturer at Sydney Law School, University of Sydney. He is the co-founder of the UNSW elective LAWS3427 | JURD7527 Drug Law and Policy.

1 (1985) 157 CLR 523 (‘He Kaw Teh’).

2 Sherras v De Rutzen [1895] 1 QB 918, 921, cited in He Kaw Teh (n 1) 528 (Gibbs CJ).

3 See, eg, R v Ditroia and Tucci (1981) VR 247; R v Gardiner [1981] Qd R 394; R v Parsons [1983] 2 VR 499.

4 See discussion in He Kaw Teh (n 1) 580 (Brennan J).

5 He Kaw Teh (n 1) 557 [39] (Wilson J).

accused and ‘the protection of the community from the monstrous evils of the international traffic in heroin and other drugs which are intrinsically nefarious’.6

While He Kaw Teh was heralded as a win for fundamental principles of the criminal law, including that the prosecution bears the burden of proving that the accused performed a guilty act with a guilty mind, statutory doctrines in the Drug Misuse and Trafficking Act 1985 (NSW) (‘DMTA’) demonstrate that the balance between the competing considerations identified by Wilson J is not tipped towards fairness to the accused. Deeming provisions, reverse burdens, and extended definitions (and their broad interpretation by the courts) instead assist law enforcement in the global War on Drugs, creating ‘legal fictions’ that erode these fundamental principles.

It is not the role of practitioners defending individual clients on drug charges to make grand rhetorical statements about the history and broader context in which drug laws operate. However, it is important that law students learn that blackletter law does not exist in a vacuum. Criminal law education should go beyond teaching not only what the law is. As future law reformers, it must also encourage students to question what the law ought to be.

II THE RECEDING HIGH WATER MARK OF HE KAW TEH

The broad definitions of ‘supply’, ‘cultivation’, and ‘manufacture’ in the DMTA significantly expand the scope of prohibited conduct beyond what is required to establish criminal liability for those offences simpliciter. For example, the offence of supplying a prohibited drug is complete upon the mere ‘offer to supply’; neither actual supply nor intent to supply need be proven.7 Deeming provisions further extend this reach, capturing conduct that might otherwise constitute an attempt or lesser offence. The ‘deemed supply’ provision presumes that a person found in possession of a specified quantity of a prohibited drug is a supplier, thereby reversing the burden of proof: the prosecution need not establish intent to supply, the accused must prove its absence.8 The ‘deemed drug’ provision goes even further, deeming a non-prohibited substance to be a prohibited substance if it is falsely represented as such for the purpose of supply.9 The offence is complete upon the misrepresentation regardless of the accused’s intent or capacity to acquire and supply a prohibited drug.

Our system of parliamentary sovereignty means that these statutory doctrines which create legal fictions and erode fundamental common law principles are rarely noted as exceptional by the courts. Indeed, recent decisions of the NSW Court of Criminal Appeal (‘CCA’) suggest a judicial willingness to interpret drug laws expansively, arguably beyond the original legislative intent and beyond what is necessary by way of principles of statutory construction. This article does not seek to

6 Ibid.

7 Drug Misuse and Trafficking Act 1985 (NSW) s 3 (‘DMTA’).

8 Ibid s 29.

9 Ibid s 40.

canvass all such provisions in the DMTA, but rather to examine two CCA decisions R v Bucic10 and Jenkinson v R11 to illustrate how the practice of law is shaped by broader political and social forces.

A Carpet Beating and Other Ways to ‘Manufacture’ Drugs

In Bucic, the accused was charged under s 24(1) of the DMTA with manufacturing a prohibited drug after being found in possession of A4 paper sheets ‘impregnated with cocaine’.12 The Crown’s case was that the accused had taken steps to separate the cocaine from the paper, including cutting the paper into small pieces and immersing them in alcohol and boiling water to allow evaporation. At trial, Flannery J directed an acquittal, reasoning that the ordinary English meaning of ‘manufacture’ ‘making something out of something different’ did not encompass the extraction from paper a substance that was the same substance before it was absorbed into the paper: ‘nothing different was being made’.13

The issue on appeal was the meaning of the expression ‘manufactures … a prohibited drug’ in s 24.14 The CCA considered the extended definition of ‘manufacture’, which ‘includes the process of extracting or refining the prohibited drug’15 or participating in ‘any step’ in that process.16 The Court concluded that the combined effect of those provisions is that ‘a person … who knowingly takes any step in the process of extracting … a prohibited drug’ may be guilty of manufacturing a prohibited drug.17 This interpretation effectively detaches the term ‘manufacture’ from the operation of the offence; the concept of ‘extracting’ need not necessarily be incidental to ‘manufacturing’. The Court even posited that ‘beating an Oriental carpet to release an illicit drug suspended within it’ could constitute manufacturing under the DMTA 18 Few experts would agree that separation of cocaine from a vessel used for its storage or transportation constitutes the ‘manufacture’ of cocaine, a process that involves the chemical extraction of coca the active compound from the coca leaf through complex refinement procedures.19

B Mixing Drugs: Just Add Water and Vegetables, No Stirring Required

A further illustration of the courts facilitating the broadening of the DMTA provisions is through the expansive interpretation of the term ‘admixture’ by the CCA in Jenkinson. 20 Section 4 defines a ‘prohibited drug’ to include ‘any preparation, admixture, extract or other substance containing

10 [2016] NSWCCA 297 (‘Bucic’).

11 [2024] NSWCCA 34 (‘Jenkinson’).

12 Bucic (n 10) [6].

13 R v Bucic (District Court of New South Wales, Flannery J, 25 May 2016) [16], cited in Bucic (n 10) [16].

14 DMTA (n 7) s 24.

15 Ibid s 3.

16 Ibid s 6.

17 Bucic (n 10) [24].

18 Ibid [49].

19 Vincenzo De Luca, ‘Understanding How Plants Produce Cocaine’ (2022) 120(1) Proceedings of the National Academy of Sciences, e2218838120:1–3, 1.

20 Jenkinson (n 11) [34].

any proportion of the prohibited drug’.21 Where a prohibited drug is combined with another substance including non-prohibited substances, as is common in the unregulated street drug market the admixture provision deems the entire mixture to constitute the pure prohibited drug.

In Jenkinson, the appellant was found in possession of 98 grams of dried psilocybin-containing mushrooms (commonly referred to as ‘magic mushrooms’). By operation of both the admixture and deemed supply provisions, he was convicted of supplying not less than a commercial quantity of a prohibited drug, contrary to s 25(2) of the DMTA an offence carrying a maximum penalty of 20 years imprisonment.22 Although the mushrooms contained less than 2% psilocybin (the active compound listed in Schedule 1 of the DMTA as a prohibited drug), the Court held that the entire weight of the vegetable matter was to be treated as pure psilocybin.23

In the CCA, the appellant argued that reading s 4 as a whole, the expression ‘other substance’ must be read in the context of the words that precede it ‘preparation’, ‘admixture’, and ‘extract’ each of which ‘invoked human involvement’.24 He submitted that the provision was intended to apply only to substances that had been altered by human intervention, such as the common practice of ‘cutting’ heroin with inert substances to increase volume and profit. This interpretation was supported by reference to the second reading speech to the Drug Misuse and Trafficking Bill 1985, in which the Attorney General referred to mixtures involving powdered drugs and non-prohibited substances, but made no mention of mixed compounds naturally occurring within plants, such as psilocybin in fungi.25

Nevertheless, the CCA adopted a broad interpretation. Mitchelmore JA (with Wilson J agreeing) held that ‘there is no relevant difference’ for the purposes of determining quantity under the DMTA ‘between heroin being mixed with non-prohibited substances like sugar, cocaine being cut with baking soda, and psilocybin forming part of organic matter’.26 The Court concluded that the phrase ‘or other substance’ in s 4 was intended to capture any material containing any proportion of a prohibited drug: ‘… the focus of the section is not human involvement in the mixing of substances … but with the fact of mixed contents’.27

This reasoning is difficult to reconcile with both the statutory language and apparent purpose of the provision (the ‘mischief’ with which it was intended to deal).28 The heading of s 4 ‘Admixtures’ suggests something more than mere coexistence of mixed contents is required, namely the act of adding or of mixing substances.29 The analogy between deliberate adulteration of powdered drugs and the natural composition of fungi is, at best, strained.

21 DMTA (n 7) s 4.

22 Ibid s 33.

23 R v Jenkinson (No 1) [2022] NSWDC 286, [62] (Bennett DCJ).

24 Jenkinson (n 11) [20].

25 Ibid [21].

26 Ibid [24] (Mitchelmore JA).

27 Ibid [22] (emphasis added).

28 Heydon’s Case (1584) 76 ER 637–8, cited in Dennis Pearce, Statutory Interpretation in Australia (LexisNexis, 10th ed, 2023) 44.

29 Macquarie Dictionary (online at 13 July 2025) ‘admixture’.

Rothman J in a separate judgment agreed that the appeal should be dismissed, however he preferred a different approach. He considered that reliance on the admixture provision was unnecessary, as the entire mushroom constituted a ‘consumable form’ of the drug psilocybin and therefore fell within the ordinary meaning of ‘prohibited drug’.30 However, this reasoning raises the question: if Parliament had intended to criminalise the possession, cultivation, and supply of psilocybin-containing fungi in their entirety, it could have expressly listed the relevant genera Psilocybe, Panaeolus, Gymnopilus in the DMTA, as it has done with cannabis (in addition to Tetrahydrocannabinol), the coca plant (in addition to cocaine), and the various species of opium poppy Erythroxylon, Papaver Somniferum, Papaver orientale, Papaver bracteatum (alongside their derivatives such as heroin and morphine).31

The harshness of either construction is underscored by sentencing implications. Had the mushrooms in Jenkinson been fresh rather than dried, the increased water content would have significantly increased their weight, exposing the appellant to a maximum penalty of life imprisonment.32 Thus, the severity of the offence would have turned not on the quantity of the prohibited substance, but on the moisture content naturally occurring in the fungus. While Rothman J acknowledged the potential unfairness of the outcome and expressed hope that sentencing discretion would mitigate the severity of the statutory maximum penalty, such hope may be misplaced. If the statutory framework equates the weight of organic matter with that of pure drug, then sentencing must logically reflect that equivalence.

III COURTS COMPLICITY IN PERPETUATING LEGAL FICTIONS

Some readers of the Bucic and Jenkinson decisions may view the Court’s reasoning as contravening the ‘golden rule’ in statutory construction: ‘to avoid construing legislation so as to produce patently unintended or absurd results’.33 Yet the judiciary’s willingness to adopt expansive interpretations of already broad statutory definitions in the DMTA cannot be understood in isolation from the broader political and social forces that shape drug law enforcement in Australia. These interpretive choices often resulting in the creation or reinforcement of legal fictions reflect a judicial posture that aligns with, rather than resists, the punitive logic of the global War on Drugs.

Australia’s legislative and judicial approach to drug control has been shaped significantly by its international obligations, particularly under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), to which it is a signatory. This Convention obliges signatory states to criminalise a wide range of drug-related activities and to adopt stringent enforcement measures.34 In response, Australian legislatures have enacted laws that cast the net of criminal liability widely, often through deeming provisions, reverse onus clauses, and expansive definitions that ‘have

30 Jenkinson (n 11) [64]–[68] (Rothman J).

31 DMTA (n 7) sch 1.

32 Ibid s 33(3).

33 Footscray City College v Ruzicka (2007) 16 VR 498 [16] (Chernov JA), quoted in Pearce (n 28) 43.

34 Ben Mostyn and Helen Gibbon, ‘Transnational Social Movement Theory and the Waning War on Drugs: Case Studies from UNGASS 2016’ (2018) 51 International Journal of Drug Policy 148, 149; Ben Mostyn, ‘Deadly Serious: The United Nations, Drugs, and Capital Punishment in the 1980s’ (2021) 92(1) International Journal of Drug Policy 103, 167.

disfigured, distorted, severely eroded or simply ignored the basic principles of criminal law that are deeply entrenched in the common law and that underlie legislation’.35

These legislative choices are underpinned by a political narrative that demonises drug traffickers and portrays drug-related crime as an existential threat to public order and morality.36 Within this framework, courts interpret statutory provisions in the DMTA in a way that facilitates enforcement and maximises punitive outcomes, even where such interpretations stretch the ordinary meaning of language or depart from the foundational principles of criminal law. The result is a jurisprudence that privileges law enforcement and prosecutorial convenience over legal coherence and fairness to the accused.

It is essential that law students and emerging legal practitioners are equipped to critically engage with this dynamic. The role of legal education is to go beyond teaching students the statutory provisions and judicial precedents. Students must be encouraged to interrogate how legal doctrine is shaped by political imperatives, international obligations, and prevailing social anxieties. The interpretation of criminal statutes does not occur in a vacuum; it is deeply embedded in a broader context of power, ideology, and institutional practice.

IV CONCLUSION

This article has sought to illustrate the disconnect between foundational legal principles, such as those espoused by the High Court in He Kaw Teh, and how the law operates in practice. Through an examination of Bucic and Jenkinson it becomes evident that courts, consciously or not, participate in the construction and perpetuation of legal fictions that serve the broader law enforcement agendas that underpin the global drug prohibitionist regime. Understanding this interplay is not merely an academic exercise it is a necessary foundation for any meaningful engagement with the criminal law and its reform. Only through such critical inquiry can our future lawyers contribute meaningfully to a just legal system.

35 Ben Mostyn, Helen Gibbon and Nicholas Cowdery, ‘The Criminalisation of Drugs and the Search for Alternative Approaches’ (2012) 24(2) Current Issues in Criminal Justice 261, 262.

36 See Pat O’Malley, Risk, Uncertainty and Government (Routledge-Cavendish, 1st ed, 2004).

NAVIGATING THE LEGAL LABYRINTH IN EDUCATION: THE CHALLENGES OF RESOLVING DISABILITY

DISCRIMINATION COMPLAINTS

ELPITHA (PETA) SPYROU*

I INTRODUCTION

Access to education is a fundamental human right,1 yet many students with disabilities in Australia continue to face significant legal and non-legal barriers to realising this right. Although antidiscrimination laws such as the Disability Discrimination Act 1992 (Cth) (‘DDA’) and the Disability Standards for Education 2005 (Cth) (‘DSE’) aim to ensure equal access for this student cohort, the practical impact of these laws is often limited. My empirical research shows that parents and caregivers regularly encounter complex legal, bureaucratic, and other obstacles when seeking formal legal redress for discrimination against their children. This piece draws on findings from my 2024 co-authored article published in volume 47(2) of the University of New South Wales Law Journal2 and complements insights from my ABC opinion piece on how schools handle disability discrimination complaints.3 This socio-legal study which involved interviews with two groups of participants, including 10 familymember advocates and 8 Alternative Dispute Resolution (‘ADR’) practitioners, uses thematic analysis to examine these systemic barriers to access to justice issues situated at the critical intersection of what the law is, and how it operates in practice. These findings not only have implications for legal practitioners and advocates but also raises questions about the design of our anti-discrimination complaint system and the use of ADR to resolve conflict within these matters. If redress mechanisms, which currently rely on individual complaints, are inaccessible, procedurally opaque, or otherwise disempowering, then the legal rights they purport to enforce are undermined.

* Dr Elpitha (Peta) Spyrou is a Lecturer at the University of Adelaide and an External Affiliate Member of QUT’s Centre for Inclusive Education. Visuals by Visual Knowledge Design <www.visualknowledge.design>

1 See especially International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 13; Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 46 ILM 443 (entered into force 3 May 2008) art 24.

2 Elpitha Spyrou and Marianne Clausen, ‘Disability Discrimination in Education: Investigating the ADR Experiences of Parents and Practitioners’ (2024) 47(4) University of New South Wales Law Journal 1317–47.

3 Peta Spyrou, ‘How Schools Handle Complaints About Disability Discrimination: And What Needs to Change?’, ABC Religion & Ethics (online, 20 December 2024) <https://www.abc.net.au/religion/how-schools-handle-complaints-about-disabilitydiscrimination/104752502>.

II CHALLENGE 1: THE GAP BETWEEN LAW AND PRACTICE

Complainants find it difficult to navigate the complaints system due to the complexity of the law and the range of available mechanisms. While legal protections exist in theory, the practical realities of enforcing these rights reveal a far more complicated story. My research suggests that many parents and students find the legal system opaque and overwhelming. I can relate because when I began my PhD, I had little idea of the legal labyrinth I was about to navigate for years to come.

Anti-discrimination law is not a Priestley 11 subject in Australian law schools, and the legal concept of discrimination itself is not widely understood in everyday discourse. Given this, it is hardly surprising that members of the public struggle to grasp its intricacies as many legal professionals receive minimal formal education in this area themselves.

Put simply, there are four elements to unlawful disability discrimination in education:

1. The student needs to satisfy the statutory definition of ‘disability’;

2. The matter needs to be made against an applicable duty-bearer;

3. The student needs to be treated in a manner that is prohibited, meaning no statutory exemption applies (alleged discrimination); and

4. The alleged discrimination is either ‘direct’ or ‘indirect’ in nature.

Although these elements are broadly shared across Australian legal frameworks, differences in definitions and scope arise due to our federal structure,4 which divides legislative power between the Commonwealth and the states and territories. As a result, each jurisdiction has developed its own antidiscrimination laws which sometimes leads to inconsistency. For instance, New South Wales remains the only state where private education providers are exempt from state-based anti-discrimination protections for students with disability.5 At the federal level, however, the DDA and the DSE establish a framework aimed at ensuring students with disabilities enjoy the same fundamental rights as everyone else and without exemptions for private schools. Under s 109 of the Australian Constitution, a state law is invalid to the extent it is inconsistent with federal law.6 However, such inconsistency must be determined by a court in the context of a concrete legal dispute. To date, no reported case has confirmed a section 109 inconsistency between the DDA and NSW’s private school exemption. Additionally,

4 See generally Elpitha Spyrou, ‘Unpacking the Disability Discrimination Redress Models for South Australian and Victorian Students with Disability-Related Challenging Behaviours’, (2022) 44(10) The Bulletin 12.

5 Anti-Discrimination Act 1977 (NSW) s 31A(3)(a); Suzy Monzer, ‘Sydney Mum's Plea After Private Daycare Allegedly Rejects Son with Autism’ 9 Honey (online, 21 July 2023) <//honey.nine.com.au/latest/sydney-mum-doctor-plea-after-son-with-autismrejected-from-private-daycare/25e9ce8c-06d1-4ac3-8e02-f27f4357ad0c>.

6 Australian Constitution s 109.

Victoria and the ACT use the test of unfavourable treatment to determine direct discrimination.7 This approach differs from that adopted in other jurisdictions, which apply a less favourable treatment test and therefore continue to rely on the problematic comparator8 standard established in Purvis v New South Wales 9 It is important to acknowledge that dissatisfaction with outcomes is not only a product of complaints processes, but also reflects substantive weaknesses in the operation of the law itself. On this point, scholars have identified barriers to inclusion embedded within the DDA and the DSE themselves, as well as tensions associated with Australia’s lack of compliance with its international obligations 10

Understanding the legal differences across these anti-discrimination frameworks is only the first hurdle. The complaint process itself adds another dimension of complexity given it demands early and often uninformed decisions relating to the choice about where to initiate the complaint because each piece of anti-discrimination law has its own complaints process. Parents or students seeking redress must quickly determine whether to make a formal or informal complaint and, if so, where to lodge it.

As shown above in figure 1, choices about pursuing formal disability discrimination complaints in education include taking the matter federally or through a state or territory equality agency. In Victoria, the situation is even more complex, as complainants can also go directly to the Victorian Civil and Administrative Tribunal. Once a person lodges a formal complaint with a statutory body, they generally cannot pursue the same complaint in another forum unless the first body terminates the

7 Equal Opportunity Act 2010 (Vic) s 8; Discrimination Act 1991 (ACT) s 8(2).

8 See, eg, Colin D Campbell, ‘A Hard Case Making Bad Law: Purvis v New South Wales and the Role of the Comparator Under the Disability Discrimination Act 1992 (Cth)’ (2007) 35(1) Federal Law Review 111; Kate Rattigan, ‘The Purvis Decision: A Case for Amending the Disability Discrimination Act 1992 (Cth)’ (2004) 28(2) Melbourne University Law Review 532; Jacob Campbell, ‘Using Anti-Discrimination Law as a Tool of Exclusion: a Critical Analysis of the Disability Discrimination Act 1992 and Purvis v NSW’ (2005) 5 Macquarie Law Journal 201.

9 Purvis v New South Wales (2003) 217 CLR 92, 134 [130] (‘Purvis’); see, eg, Equal Opportunity Act 1984 (SA) ss 6(3), 66.

10 See, eg, Elizabeth Dickson, ‘Barriers to Inclusion Embedded in the Disability Discrimination Act 1992 (Cth)’ (2022) 66(3) Australian Journal of Education 265; Jill Duncan et al, ‘Missing the Mark or Scoring a Goal: Achieving Non-Discrimination for Students with Disability in Primary and Secondary Education in Australia’ (2020) 64(1) Australian Journal of Education 54; Catia Malaquias, ‘Unrealised Promises and Hollow Claims: Australia’s Failure to Enact its International Obligations under the CRPD for the Education of Students with Disability’ (2022) 66(3) Australian Journal of Education 235; Alice Taylor, ‘The Conflicting Purposes of Australian Anti-Discrimination Law’ (2019) 42(1) University of New South Wales Law Journal 188.

complaints.11 In federal matters, access to the courts is only available after such termination.12 Each jurisdiction has its own exclusivity provisions and time limits, making early decision-making about where to take a complaint critical and legally risky.

Alternatively, aggrieved persons can initiate informal complaints (processes which are outside of the statutory scheme). This informal complaint process is shown below in figure 2 and consists of multiple alternative options. Victorians have yet another difference, as parents wanting to make a complaint against the State Education Department, can bring matters to the Victorian Independent Office for School Dispute Resolution.13

The interviews I conducted with family-member complainants, on behalf of students with disabilities, reveal that parents often lack a clear understanding of the complexities of this complaint system. This gap in knowledge is especially concerning, as noted above, the choice of forum can have lasting consequences. Many decisions are therefore made without a full grasp of the system’s intricacies.

III CHALLENGE 2: MISMATCHED EXPECTATIONS IN DISPUTE RESOLUTION

ADR remains the dominant mechanism for resolving complaints under both the DDA and statebased anti-discrimination regimes. While ADR is promoted for its accessibility, speed, and flexibility,14 participants in the study reported significant misalignments between what families sought and what the process could deliver. Parents were mostly dissatisfied with both the process and resulting outcomes, while practitioners were more positive, with key differences in what each saw as a ‘reasonable’ outcome to the dispute.15

Parents often initiated the complaints on behalf of their child but soon adopted a broader advocacy role, aiming to prevent future discrimination against other students with disabilities.16 However, this goal clashes with ADR’s private, individualised nature, which does not support systemic

11 Australian Human Right Commission Act 1986 (Cth) s 46PH.

12 Ibid s 46PO.

13 State Government of Victoria, ‘Independent Office for School Dispute Resolution’ (Web Page, 24 January 2025) <https://www.vic.gov.au/independent-office-school-dispute-resolution>.

14 Spyrou and Clausen (n 2) 1326–7.

15 Ibid 1338–40.

16 Ibid 1340.

accountability. It is also an unmet aspiration, notwithstanding the existence of the federal conciliation register.17

Many parents felt vulnerable in the process and believed independent oversight of the complaint process was needed. They often wanted outcomes similar to legal decisions, a function outside the realm of possibilities for these equality agencies, including formal acknowledgment of wrongdoing.18 Practitioners noted that early acknowledgment by schools tended to support more positive ADR processes and subsequent outcomes, but such acknowledgment was not always forthcoming. These differing expectations and entrenched perspectives highlight a core tension between the parties in these education disputes, raising questions about whether a shared understanding or resolution is achievable.

IV CHALLENGE 3: EMOTIONAL TOLL ON FAMILIES

Perhaps the most striking theme identified in the study was the emotional cost of pursuing a discrimination complaint. Parents described the complaint process as exhausting, traumatic, and adversarial, noting the emotional toll it has is considerable.19 Many parents in the study reported experiencing stress, anxiety, and burnout, even at these equality agencies.

The decision to initiate a complaint was rarely taken lightly. Parents described trying to work collaboratively with schools, only turning to formal processes when all other avenues had been exhausted. Once involved in a complaint, they were often met with denial or legal defensiveness. These experiences contributed to feelings of disempowerment.

Mental health impacts were commonly reported. One parent, when talking about the ADR process recounted: ‘I don’t think I could physically go through that trauma again I just can’t do it um it broke me um and yeah. So the whole the whole situation was horrible’.20 Some parents even removed their children from mainstream education altogether, opting to leave their paid employment to homeschool their child rather than enduring ongoing battles with school representatives.21

While parents described their ADR complaints as stressful, overwhelming, and traumatic, the practitioner group presented generally positive experiences of the ADR process. This difference in views is clearly illustrated in the following quotes:

17 While the Australian Human Rights Commission publishes de-identified matters on its Conciliation Register, they only represent a ‘selection of complaints that have been resolved’. In other words, this register does not represent every matter that has been successfully resolved through conciliation. We are also left in the dark about what happens to complaints that could not be conciliated. Further, merely providing access to these summaries does not mean systemic change is realised. See ‘Conciliation Register’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/complaints/conciliation-register>.

18 Spyrou and Clausen (n 2) 1338.

19 Ibid 1343–5.

20 Ibid 1344.

21 Ibid.

A conciliator described ADR discussions as ‘fair and civil’: ‘Once you set the scene and set the tone and set the expectations, they … they tend to, … you know, be quite … you know, … be quite um … fair and civil in discussion, like this, you know.’ This contrasts with Participant A2’s account of a separate ADR attempt: ‘[T]hey were using every opportunity to build a case against my son and me … and it was … it was horrible and … um … I don’t know what to tell you.’22

Practitioners’ generally positive views of the ADR process stand in stark contrast to the negative experiences reported by parents in this study. This discrepancy calls into question the purported benefits of ADR, raising concerns about the suitability of ADR for resolving complaints of this kind.

V CHALLENGE 4: THE ROLE OF POWER IMBALANCES

Power imbalances were identified as a key concern in participants’ experiences of the ADR process for disability discrimination complaints.23 These imbalances arose both from the nature of the discrimination, where students with disability often required adjustments that were said to conflict with broader school resources, and from the complaint process itself, where parents frequently felt disadvantaged.

Parents described themselves as individuals confronting powerful institutions (schools), often without the legal knowledge or experience needed to navigate the system. The presence of lawyers, particularly on the respondent’s side, was sometimes perceived as intimidating or strategic. In response, some conciliators attempted to manage this imbalance by discouraging legalistic behaviour or equalising speaking time, or simply preventing their involvement given the presence of lawyers had the potential to create issues.

VI CONCLUSION

While Australia’s legal framework recognises limited rights for students with disability, significant barriers to legal redress persist. For legal practitioners, the implications are considerable. Their involvement in ADR, where permitted, can make a meaningful difference at the individual level, but broader structural reform is urgently required. This reform need includes harmonising antidiscrimination protections across jurisdictions and removing the NSW exemption for private education providers. At the same time, while education is a fundamental human right and schools are legally obligated to provide equal opportunities, these commitments are only meaningful if supported by accessible and effective complaint mechanisms. Although the Disability Royal Commission has recommended expanded use of ADR,24 my research raises concerns about its suitability in its current form. Without greater transparency, timeliness, and a clearer understanding of how complaints are

22 Ibid 1345.

23 Ibid 1343–4.

24 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, September 2023) vol 7, 21.

resolved, it is difficult to assess whether these processes genuinely support students and their supporters or merely serve administrative ends.

Addressing these challenges calls for a multi-faceted approach combining legal reform, advocacy, and cultural change within schools and their governing frameworks. Crucially, process improvements alone are insufficient unless accompanied by substantive legislative reform. Encouragingly, the Australian Government has responded to the Disability Royal Commission’s Final Report by directing the Attorney-General’s Department to review and modernise the DDA.25 Central to this process must be the voices of students, parents, and practitioners, whose lived experience is vital in shaping complaint pathways that are not only procedurally sound but substantively just. While individual complaints remain pivotal to the redress model and accountability more broadly, my research demonstrates the significant challenges that families face in both raising grievances and securing effective remedies. These challenges must be confronted for the law to better promote equality and inclusion.

25 This consultation process is open until 24 October 2025. See ‘Review of the Disability Discrimination Act’, Australian Government Attorney-General’s Department (Web Page 30 October 2024) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australias-anti-discrimination-law/reviewdisability-discrimination-act>.

INCORPORATED SUPPORT STRUCTURES: THE ROLE OF CONSCIENCE FOR THE INDIVIDUAL AND FOR THE LAW?

BETH NOSWORTHY*

Supported decision-making is the provision of support which enables people who experience challenge or fluctuation in their decision-making capacity1 to exercise their legal decision-making rights. Rather than presuming that such people cannot make choices which affect their lives, supported decision-making scaffolds assistance, information, and encouragement to enable them to understand, weigh options, and express their own will and preferences. This is reflected in Article 12 of the Convention of the Rights of Persons with Disabilities2, which declares that state parties affirm the right of persons with disabilities to recognition as persons before the law. This affirmation includes that state parties recognise that persons with disabilities have legal capacity on an equal basis with others in all aspects of life. Further, state parties must take ‘appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’.3 The final report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability4 called for legislative reform in Australia to implement supported decision-making models to assist otherwise structurally vulnerable people to realise their human rights.5

* Beth Nosworthy is an Associate Professor at the Adelaide Law School, University of Adelaide. The author thanks Professor Stephen Bottomley, Dr Peta Spyrou and Jane Nosworthy for their generous discussion and feedback on earlier drafts of this work. All errors remain my own.

1 Capacity is generally presumed for adults, but this is a rebuttable presumption, particularly where a person has a condition which means that their capacity fluctuates: Law Council of Australia, Best Practice Guide for Legal Practitioner on Assessing Mental Capacity (Guide, June 2023) 1–2. This presumption has led to frameworks which take a binary approach to legal capacity either the person does or does not have full legal capacity at the time a legal decision is required. People with decision-making support needs are presumed to have capacity with appropriate support.

2 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, [2008] ATS 12 (entered into force 3 May 2008) art 12.

3 Ibid art 12.2.

4 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, September 2023) vol 6.

5 Ibid 115–254. This echoes other recommendations made over the past decades to reform the legal frameworks around decisionmaking in Australia, such as Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Final Report No 124, August 2014) 91–127 (‘ECDCL’); Katrine Del Villar, ‘Should Supported Decision-Making Replace Substituted Decision-Making?’ (2015) 4(2) Laws 173. See also, Mental Health Act 2000 (Qld); Christiane Purcal et al, Evaluation of the Supported Decision Making Phase 2 (SDM2) Project: Final Report (Final Report, 20 September 2017) <http://hdl.handle.net/1959.4/unsworks_46558>.

Substitute decision-making regimes are defined as systems where:

1. Legal capacity is removed from a person, even if this is in respect of a single decision;

2. A substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against [their] will; and

3. Any decision made by a substitute decision-maker is based on what is believed to be in the objective ‘best interests’ of the person concerned, as opposed to being based on the person’s own will and preferences.6

Australian examples of such regimes include guardianship and administration orders.

By contrast, supported decision-making regimes ‘give primacy to a person’s will and preferences and respect human rights norms’.7 Although such regimes can take many forms, the Committee on the Rights of Persons with Disabilities considers that key provisions include, relevantly here, legal recognition of the support person(s) chosen by a person, and safeguards to ensure that the person’s will and preferences are respected.8

Supported decision-making for an individual with decision-making support needs (the individual) can occur in a variety of ways without legal intervention via models such as ‘circles of support’,9 or through more formal legal structures involving an incorporated body.10 It is the latter which is the focus of this discussion, which aims to highlight the increased expectations on the courts in the context of utilising existing incorporations methods for a structure which centres on supported rather than substituted decision-making. 11

6 Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal Recognition Before the Law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014) 6 [27] (‘CRPD General Comment’)

7 Ibid 6–7 [29]. It has been noted that Australia lacks a universally accepted definition for ‘supported decision-making’: see, eg, Shih-Ning Then and Christine Bigby, ‘Supported Decision-Making and the Disability Royal Commission’ (2024) 11(1) Research and Practice in Intellectual and Developmental Disabilities 86; South Australian Law Reform Institute, The Need for New Solutions? Establishing Legal Frameworks for Supported Decision-Making in South Australia (Report No 21, June 2025) 52 (‘SALRI Report 21’).

8 CRPD General Comment (n 6) 6–7 [29].

9 Circles of support as a concept originated in Canada in the 1980s, and is attributed largely to the work of Judith Snow and Marsha Forest through practical guides and informal publications, some of which can be found at ‘Judith Snow Writing & Videos ’, Inclusion (Web Page) <https://inclusion.com/change-makers-resources-for-inclusion/change-makers-make-change/john-obrienchange-makers-books-videos/judith-snow-writing-videos/>; Alison Macadam and Nada Savitch, ‘Staying Connected with Circles of Support’ (2015) 23(1) Journal of Dementia Care 32, 32–4.

10 Some states also promote supported decision-making, such as Powers of Attorney Act 2014 (Vic) (supportive attorney), Guardianship & Administration Act 2019 (Vic) (supportive guardian and supportive administrator), and Mental Health and Wellbeing Act 2022 (Vic) (nominated support persons). However, substituted decision making usually sits as an alternative within these schemes.

11 The Australian Law Reform Commission identifies tension in these labels, in part due to conflation between criticism of regimes which permit appointment of a person with substitute decision-making powers, from the decision-making standards which the substitute employs: ECDCL (n 5) 48 [2.55], 49 [2.60]. For the purposes of this paper, substituted decision-making encompasses any decision where a substitute decides for or on behalf of the individual, whether the ‘best interests’ or ‘substituted judgment’ approach is used.

Incorporated support structures (‘ISSs’),12 which includes but is not limited to the Microboard model,13 popular in Canada since the 1990s14 and with growing use in other jurisdictions including Australia,15 utilise the legal process of incorporation to formalise the supported decision-making process and the legal relationship between supporters and the individual. In most instances, this has been through the use of the Associations Legislation, both here in Australia and via similar structures overseas.16 Proponents of ISSs identify their benefits as including the longevity of the structure, the legal recognition granted to the structure and the relationships it establishes via its constitution, and the benefits of separate legal personality for the structure, such as the legal capacity to engage staff on behalf of the supported individual.17 Another logical benefit is the liability protection provided by the incorporated structure,18 indemnification options, and the ability to seek Director and Officer insurance for those involved in management.19 Studies undertaken with small sample sizes support the personcentred and interconnected approach, seen as contributing directly to improved quality of life.20

12 The term ‘incorporated support structure’ is employed in this paper to refer to a support structure incorporated in Australia under either the Corporations Act 2001 (Cth) (‘Corporations Act’) or the various state and territory Associations Incorporation Acts: Associations Incorporation Act 1964 (Tas) (‘AIATAS’); Associations Incorporation Act 1981 (Qld) (‘AIAQLD’); Associations Incorporation Act 1985 (SA) (‘AIASA’); Associations Incorporation Act 1991 (ACT) (‘AIAACT’); Associations Incorporation Act 2009(No 7) (NSW) (‘AIANSW’); Associations Incorporation Reform Act 2012 (Vic) (‘AIRAVIC’); Associations Act 2003 (NT) (‘AANT’); and Associations Incorporation Act 2015 (WA) (‘AIAWA’) (together, ‘Associations Legislation’). ISSs in Australia are currently incorporated under the Associations Legislation. Through this piece, where a direct citation to one of the pieces of Associations Legislation is provided, it will be to the SA version of the Act. Should a distinction arise, the relevant sections of the various Acts will be identified.

13 Although the term ‘microboard’ is used in some literature to refer to any incorporated version of a supported decision-making structure, the term has been trademarked in Australia by Microboards Australia: ‘Microbands Australia: Supporting People with Disability to Live Their Best Life’, Microboards Australia (Web Page, 2025) <https://microboards.org.au/>, and in Canada by Vela Microboard Association: ‘Microboards, Social Capital and Quality of Life’, Vela (Web Page, 27 October 2021) <https://velacanada.org/resources/microboards/>, which is part of Vela Canada, a non-profit society formed in British Columbia. The first microboard appears to have been created in Manitoba by David and Faye Wetherow in 1984: ‘Microboards and Microboard Association Design, Development and Implementation’, CommunityWorks (Web Page, August 2004) <https://www.communityworks.info/articles/microboard.htm>. This paper prefers the use of ISS as the general term for incorporated support structures, and retains Microboard to refer to bodies incorporated with the support of and under the guidelines provided by those particular organisations.

14 There is no central register of Microboards in Canada, but online information suggests there are over 1200 registered in British Columbia, being the province where the structure was first developed: see, eg, ‘The History of Microboards’ Microboards Ontario (Web Page, 2022) <https://www.microboardsontario.com/history-of-microboards.html>.

15 Microboards Australia was established in Perth in 2008, coinciding with the first registration of a microboard in Australia: ‘Our History: How Microboards Began’, Microboards Australia (Web Page, 2025) <https://microboards.org.au/about/our-history/>.

16 SALRI Report 21 (n 7) ch 5: the author was the lead contributor for ch 5, ‘Examining Current Legal Pathways for Incorporated Support Structures’, which canvassed the legislation which enables incorporation in Australia either as a corporation or as an incorporated association. It concluded that the better model for ISSs to engage with was the incorporated Associations Legislation, although with recommendations for bespoke legislation to address a variety of concerns, including the one identified in this piece. See also Sands v Commissioner for Corporate Affairs [2021] SACAT 103 (‘Sands’).

17 See, eg, ‘What is a Microboard’, Microboards Australia (Web Page, 2025) <https://microboards.org.au/microboardscommunity/what-is-a-microboard/>.

18 See, eg, Wise v Perpetual Trustee Co Ltd [1903] AC 139; Cameron v Hogan (1934) 51 CLR 358.

19 See, eg, Vela, Liability: How to Manage your Risk (Report, July 2021) <https://velacanada.org/wpcontent/uploads/2021/07/Vela-Canada-Liability-How-to-Manage-Your-Risk.pdf>; Colin Baxter, ‘Demystifying D&O Insurance’ (1995) 15(4) Oxford Journal of Legal Studies 537; Borhan Uddin Bhuiyan et al, ‘Directors’ and Officers’ Liability Insurance: A Systematic Literature Review’ (2024) Journal of Accounting Literature 1

20 Elizabeth Farrant, ‘Creating an Individualised Foundation for Genuine Community Inclusion: Evidence from Western Australian Microboards’ in Subas Dhakal et al (eds), A Field Guide to Managing Diversity, Equality and Inclusion in Organisations (Edward Elgar Publishing, 2022) 89–104; Tim Stainton et al, ‘Microboards, Social Capital and Quality of Life: Final Report of a Two Year Qualitative Inquiry’ (Research Report, Canadian Institute for Inclusion and Citizenship, University of British Columbia, 1 September 2020).

However, there is a significant disconnect between the legal nature of the incorporated form and the primary purpose for which these structures are incorporated in this context to provide supported decision-making assistance to an individual. The incorporated association form is used primarily to accommodate a collective coming together for social, benevolent or community purposes.21 The structure is not purpose-built with a focus on representing an individual, or with prioritisation of supported decision-making in mind. The challenge this gap presents for the law is that incorporated bodies result in the creation of a separate legal person,22 who is not the same legal person as the individual whose decision-making needs are being supported by the association. This separate legal person has its own rights, interests, and obligations23 which are informed by the documents which form part of its incorporation.24 However, there is a risk of a disconnect between the legal structures that serve the broader interests of associations generally, and what supports the interests of the individual. Further, these incorporation processes carry with them legal obligations on the supporters involved in the incorporated entity,25 which may not always be entirely consistent with the model of supported decision-making, and which ultimately preference a model of substituted decision-making. The courts will play a vital role in interpreting and applying the limits on power within these structures via the rules and duties imposed on committee members26 to ensure the justifications of the ISS, and the priority of supported decision-making, remain paramount.

Despite being legal persons, incorporated structures do not make decisions in the same way as natural persons. Formal decision-making in associations or corporations is generally undertaken by resolutions of one of two organs.27 In the case of incorporated associations the first is the members in general meeting, and the second is the management committee.28 Decisions of the members in general meeting are considered, legally, as an act of the corporate body.29 As such, on first consideration, it might seem sensible for the only ‘member’ of the ISS to be the individual with support needs, in order to maintain the priority on their interests and perspectives. This approach would be legally permissible for a corporation,30 but some jurisdictions require incorporated associations to have more than five members.31 Further, having the individual as the only ‘member’ would be problematic for individuals

21 See, eg, AIASA (n 12) s 18 for a list of associations eligible to be incorporated under this Act. Whether an incorporated association can be used as an ISS was considered in Sands (n 16), with the Tribunal affirming registration for this purpose.

22 See, eg, AIASA (n 12) s 20(3). Although the Associations Legislation limits the powers of an incorporated association (see, eg, s 25) in different ways than the powers granted to a corporation (see, eg, Corporations Act (n 12) s 124), it is still recognised as a separate legal entity than the members or the committee.

23 See, eg, AIASA (n 12) ss 25–8.

24 Such as the incorporated association’s rules: see, eg, AIASA (n 12) ss 23–4A. But note, particularly, the limitation of doctrine of ultra vires in s 27, and the abolition of the doctrine of constructive notice in relation to incorporated association in s 28.

25 See, eg, AIASA (n 12) ss 29, 31–2, 39A–AB.

26 The AIASA (n 12) refers to management of the incorporated association being held by the committee of the association. ‘Committee members’ is the term adopted to distinguish from members of the association.

27 Stephen Bottomley et al, Contemporary Australian Corporate Law (Cambridge University Press, 3rd ed, 2021) 155, 312–3.

28 See, eg, AIASA (n 12) s 29. In a company, this would be the board of directors.

29 See, eg, National Roads & Motorists’ Association v Parker (1986) 6 NSWLR 517, 522.

30 Corporations Act (n 12) s 114.

31 AIASA (n 12) does not mention any minimum number of members, but in the Australian Capital Territory, New South Wales, Northern Territory and Victoria, the minimum is 5 members: AIAACT (n 12) s 14; AIANSW (n 12) s 6; AANT (n 12) s 26, AIRAVIC (n 12) s 3. In Western Australia it is 6 members: AIAWA (n 12) s 4. In Queensland it is 7 members: AIAQLD (n 12) s 5.

An amendment bill before the South Australian parliament intended to introduce a statutory minimum of 5 members: Associations Incorporate (Miscellaneous) Amendment Bill 2021 (SA) cl 8.

whose legal capacity fluctuates. At times where the individual’s capacity does not meet the legal threshold, an ISS would have no ability to pass resolutions in the general meeting other than via the use of substitute decision-making.32

In the corporate sphere, decisions made by the board of directors are made on behalf of the company, rather than as the company, and have no formal legal status.33 It would not be surprising if the same were true for incorporated associations. Generally speaking, the management of a corporation is undertaken by the directors34 and so, consequently, the day-to-day management of the structure involves the board making decisions on behalf of the structure. This can be considered either delegated or substitute decision-making. The use of this mode of decision-making at all within a structure designed to centre supported decision-making sits uncomfortably with the purpose of the ISS.

In the specific context of corporations, management of the company is also considered solely the purview of the board. Members are constrained from interfering with the board’s exercise of those powers exclusively vested in it. Australian law does not permit ‘advisory resolutions’, being resolutions which attempt to give the board advice, opinion, or direction as to how they exercise their powers.35 Again, this could also be the case for incorporated associations, although the underlying relationship between the members and the purpose of the association does import different weight onto the role of the management committee as compared to a company’s board of directors. Should a company be used to incorporate an ISS, this presents a significant challenge the individual, alone or in concert with other members, cannot direct the board in the exercise their powers. It is less clear whether a member of an incorporated association faces similar restrictions, but it may be possible that by directing the committee, the member would be taken to be participating in the management of the association, which carries with it separate legal obligations and risk.36

Given the restrictions on the members ‘advising’ those managing the corporate body, the formal documents underpinning the ISS must be carefully drafted to provide such direction explicitly. The constitution of a company37 and the rules of an incorporated association,38 bear the weight of limiting the board to supported decision-making only. Otherwise, there is an inherent risk of the adoption of substitute decision-making, leaving the individual unable to later direct the board against

32 Either by the other members voting, where there is more than one member, or by use of a substitute decision-maker, such as a person appointed under an Advanced Care Directive, or an appointed guardian.

33 Stephen Bottomley, ‘The Invisible Board of Directors (And What To Do About It)’ (forthcoming). The author was able to read an advance copy of this work. The Associations Legislation are silent on the legal impact of management decisions by the committee of the association, other than to provide guidance on who may be a member of that committee, and how they would disclose an interest or vote on a contract in which they held an interest.

34 Corporations Act (n 12) s 198A; See, eg, AIASA (n 12) s 29 reposes the ‘power to administer the affairs of the association’ to the committee of the association, which is slightly different.

35 Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia (2015) 325 ALR 736, 749 [39]; Stephen Bottomley, ‘Rethinking the Law on Shareholder-Initiated Resolutions at Company General Meetings’ (2019) 43(1) Melbourne University Law Review 93.

36 See, eg, AIASA (n 12) s 3 (definition of ‘officer’ para (a)(ii)).

37 Corporations Act (n 12) s 134 identifies that the corporation may be governed by the replaceable rules set out in the Act, by a constitution, or by some combination of both. The replaceable rules are listed in s 141 of the Act, and are a set of default provisions which can be adopted on key issues.

38 AIASA (n 12) s 23 includes rules, by-laws and ordinances of the incorporated association.

that course of conduct due to the advisory resolution prohibition. These formal documents form a contract between the company and each member, the company and each director or secretary, and each member to each other member, in the case of a corporation’s constitution.39 They are binding on the association and all members, for incorporated associations.40 Where a dispute arises, the court’s interpretation of these documents will be determinative. The rules of natural justice must be observed where a dispute arises between a member of an incorporated association and another member, or between the member and the committee.41 Court proceedings are slow and expensive. It would be an invidious situation for an individual whose ISS is not complying with even the most carefully drafted constitution or rules, to have no alternative but to seek out a determination in the courts to correct such conduct.

Historically, a company was required to state its purpose or objects within the constitution. Consequently, when a company entered into a transaction which strayed outside of its stated purpose, the transaction was considered ultra vires, and void as against the company.42 Relatedly, the doctrine of constructive notice provided that persons who dealt with the company were deemed to know the contents of the company’s public documents including its constitution.43 Neither doctrine applies to corporations today.44 For incorporated associations, the Associations Legislation limits the application of the ultra vires doctrine, except where the contracting party has actual notice of a defect in the association’s capacity.45 The doctrine of constructive notice is abolished for associations.46 Ironically, the modern standpoint on both doctrines provides less protection for an individual who incorporate an ISS than the original approach may have done. Even extremely strong language in the rules limiting the purposes of the incorporated association to the provision of supported decision-making for an individual may be overcome by the relaxation of these doctrines. However, members may bring an action to restrain an association from acting beyond power.47 Further, members may bring an action where acts of the ISS are oppressive or unreasonable, which would likely be the case where a management committee attempted to overrule the express purposes of the ISS as established in the rules.48 Again, this leaves an individual whose ISS is acting ultra vires with a cumbersome, costly and delayed remedy via the courts.

There are some protections in terms of the duties owed by committee members, which are similar to those provided for directors in Chapter 2D of the Corporations Act 2001 (Cth).49 They prohibit committee members from acting with intent to deceive or defraud the association, its members or

39 Corporations Act (n 12) s 140.

40 See, eg, AIASA (n 12) s 23.

41 See, eg, ibid s 40.

42 Ashbury Railway Carriage and lron Company v Riche (1875) LR 7 HL 653.

43 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd & Anor (l964) 2 QB 480.

44 Corporations Act (n 12) ss 125, 128–9.

45 See, eg, AIASA (n 12) s 27.

46 See, eg, ibid s 28.

47 See, eg, ibid s 27.

48 See, eg, ibid s 49AE; Corporations Act (n 12) s 232. There is no equivalent of the statutory derivative action at s 236 in the context of incorporated associations.

49 See, eg, AIASA (n 12) s 39A.

creditors, or for fraudulent purposes.50 Committee members are also prohibited from improperly using their position or information gained by virtue of their position to gain a benefit for themselves or another, or to cause detriment to the association.51 The provisions also require officers to act at all times with reasonable care and diligence in the exercise of their powers and the discharge of their duties.52 None of these duties speak directly to the purpose of supported decision-making, or to limiting substitute decision-making. But, usefully in the context of an ISS, it is possible to embed in the rules that the committee could be appointed by the individual, or could be subject to ratification by a third party either of which could be useful mechanisms to ensure approval of the committee members according to criteria established by the individual, rather than the wider membership of the ISS, especially in those jurisdictions requiring more than 5 members.

A final challenge is presented by a trend in corporate governance away from the prioritisation of the interests of the shareholders in a corporation (shareholder primacy) towards a broader, stakeholder-inclusive approach.53 This is inappropriate in the context of an ISS, where the rights and interests of the individual should be prioritised over broader community or environmental interests. Australia remains, to date, more aligned with the shareholder primacy model, but developments in this field which may be overwhelmingly positive in the context of commercial undertakings will have unintended consequences in the context of an ISS.

This paper should not be read as critical of the intent behind the ISS to facilitate supported decision-making, or the importance of enabling supported decision-making. However, it seeks to highlight how the use of existing legal structures, developed over decades and even centuries for very different purposes, imports risks which not only undermine the very purpose of supported decisionmaking, but leave the individual with limited recourse other than reliance on costly and slow court processes. The current operation of the ISS, reliant on existing legal structures, creates additional gaps that are yet to be solved. The ISS would be better approached using a tailored structure that is fit for the purpose of supporting what is, ultimately, an issue of individual human rights.

50 See, eg, ibid s 39A(1).

51 See, eg, ibid ss 39A(2)–(3). See also Kong v Commissioner for Corporate Affairs (2014) 121 SASR 244 (Sulan J).

52 See, eg, AIASA (n 12) s 39A(4); Bell v Deputy Coroner of South Australia (2020) 138 SASR 467, 515 [275] (Blue J).

53 Jean Jacques du Plessis, Anil Hargovan and Beth Nosworthy, Principles of Contemporary Corporate Governance (Cambridge University Press, 5th ed, 2024) ch 1.

Incorporated Support Structures: The Role of Conscience for the Individual and for the Law?

ACCESSIBILITY IN THE ART: CLEAR ON PAPER, BLURRED IN ACTION

AARYAN PAHWA*

I INTRODUCTION

Whilst the Administrative Review Tribunal (‘ART’)1 has laid out a strong accessibility framework in contrast to the abolished Administrative Appeals Tribunal (‘AAT’),2 its success in doing so depends on how it will exercise the wide discretion that it has been given. The renewed emphasis placed on ‘accessibility’ by the ART is commendable,3 as its success is measured by how easily the users it serves can meaningfully participate in its processes.4

The ART was established in October 2024 to replace the AAT, in light of the Robodebt debacle and political bias in the appointment of Tribunal members.5 Its role is to conduct independent reviews of administrative decisions made by the Australian Government, a minister or an agency, considering each case on its merits through assessment of fresh evidence or additional evidence.6 The Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) defines accessibility as ‘enabling people to apply for review and participate effectively in proceedings’,7 which clarifies that ‘users’ refers solely to applicants rather than respondents and employees of the Tribunal. Hence, the ART’s achievement of accessibility will be evaluated on its dual commitment to accessibility in the application process as well as participation in the proceedings themselves. The former will be assessed in terms of financial and informational accessibility, whilst the latter will cover facilities and premises, individual adjustments and legal assistance. Overall, it is clear that the ART has made significant improvements, with its focus on the ‘diverse needs of parties’ going beyond the AAT’s more generalised approach to accessibility and highlighting that every applicant is different.8

* Aaryan Pahwa is a Bachelor of Commerce and Bachelor of Laws student at the University of New South Wales. The author would like to thank the editorial team and anonymous peer reviewers for their feedback.

1 Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’).

2 Administrative Appeals Tribunal Act 1975 (Cth).

3 ART Act (n 1) s 4.

4 Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth) 12 (‘Revised Explanatory Memorandum’).

5 Commonwealth, Second Reading Speech, House of Representatives, 7 December 2023 (Mark Dreyfus, Attorney-General) (‘Second Reading Speech’).

6 ‘Our Role’, Administrative Review Tribunal (Web Page) <https://www.art.gov.au/about-us/our-role>.

7 ART Act (n 1) s 4.

8 Administrative Review Tribunal Bill 2024 (Cth) cl 9(c); Jason Donnelly, ‘Towards a Progressive Future: The Advent of the Administrative Review Tribunal and Its Transformative Impact on Administrative Law’ (2024) 30(4) Australian Journal of Administrative Law 234, 246.

II APPLICATION

A Access to Information

A key element of accessibility is ensuring that all users of the Tribunal can acquire and understand the information presented before them.9 Letting people know that they even have a right to review government decisions is an important first step, especially for individuals with language barriers and limited resources.10 The ART has undertaken to bridge this gap through community outreach, namely the $2.6 million First Nations Liaison Officer program which aims to raise awareness surrounding the availability of merits review.11 However, there is a knowledge gap in exactly how the program will achieve this goal and the extent to which it will be successful. Additionally, the program has only been funded for two years,12 leaving it uncertain whether the outreach efforts will have lasting outcomes. Thus, its success remains highly susceptible to funding limitations and requires further specificity in order to flourish.

Such efforts to inform individuals of their right to review have been further bolstered by the ART’s legislative framework. Under the ART, decision makers must, for a reviewable decision, provide notice of the right to review.13 There is no such provision in the abolished AAT regarding notice of a right to review, with the high modality language ‘must’ indicating a clear legislative intention to improve accessibility to administrative review for those who are unaware such a right exists in the first place.

However, there is more to be done than simply informing individuals of their right to review.

Even for individuals who are native English speakers, understanding the review process can be cumbersome.14 As such, the ART’s focus on informational accessibility is further underscored by Service Australia’s $43.9 million budget allocation to update its ‘information systems, correspondence including decision letters, websites and staff guidance materials’.15 The investment will allow for decision letters to be rewritten in a way that is user-friendly rather than overly formal and legalistic. Furthermore, additional staff will be hired as a part of the program to help users navigate the new system. Although this initiative addresses the ‘creeping legalism’ that plagued the AAT and other Tribunals,16

9 Robin Creyke, ‘Tribunals: “Carving Out the Philosophy of Their Existence”’ (2024) 71 Australian Institute of Administrative Law Forum 19, 24.

10 Asylum Seeker Resource Centre, Submission No 14 to Senate Standing Committees on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (January 2024) 1 (‘Submission No 14’)

11 Justice Emilios Kyrou, ‘President’s Speech on Diversity and Accessibility at the Administrative Review Tribunal’ (Speech, Administrative Review Tribunal, 8 November 2024); Malarndirri McCarthy, ‘Better Access to Justice in the Northern Territory’ (Media Release, Department of the Prime Minister and Cabinet, 16 February 2025) 1.

12 Justice Emilios Kyrou, ‘President’s Speech on Diversity and Accessibility at the Administrative Review Tribunal’ (Speech, Administrative Review Tribunal, 8 November 2024).

13 ART Act (n 1) s 266(5).

14 See generally Creyke (n 9).

15 Services Australia, Establishment of the Administrative Review Tribunal (Budget Report, 14 May 2024) 1 <https://www.servicesaustralia.gov.au/sites/default/files/2024-05/budget-2024-25-services-australia-2.pdf>.

16 Justice Kevin Bell, ‘The Role of VCAT in a Changing World: The President’s Review of VCAT’ (Speech, Law Institute of Victoria, 4 September 2008) 5.

it relies on continued government funding for its upkeep. Additionally, this program does not address the challenges faced by applicants who may struggle to access the updated digital resources, such as elderly applicants and those in regional locations. Nevertheless, the ART has made improvements in promoting awareness of the right to review and making information accessible, although this will depend on the adoption of the legislative framework as well as sustained funding efforts.

B Financial Barriers

Even if potential applicants are aware of their right to review and have all the necessary information on hand, financial constraints may hinder their ability to apply. Financial accessibility in terms of application fees is one key area in which the ART significantly lacks reform, with standard application fees of $1,121 and migration decision fees of $3,496 maintained since the AAT’s abolishment.17 Non-payment of an application fee leads to grave consequences, with the ART holding the power to dismiss the application without allowance for special circumstances.18 Such a strict procedure is especially detrimental to applicants who are in prison or immigration detention, who face significant barriers just to access review processes.19 This creates an impossible situation for protection visa applicants who are forced to resort to extreme methods of securing funds, even with a 50% fee waiver for financial hardship.20

Another major issue arises regarding the ART’s Guidance and Appeals Panel (‘GAP’) application fee. The GAP was established within the ART as a mechanism for the escalation of material errors or concern.21 Since the GAP is built to address cases that have a profound level of significance for administrative decision-making,22 it is crucial to ensure that it is accessible. By having a high standard fee of an additional $1,121 for GAP reviews, the ART risks applications of merit not being heard because applicants simply could not afford the fee. Although this is, in part, mitigated by the fact that applications referred by the President to the GAP do not require an additional fee to be paid,23 the accessibility of the GAP becomes significantly diminished nonetheless. Notably, there is a knowledge gap regarding the proportion of applications that will be referred by the President, which would assist in understanding the scale of the issue. Thus, the ART has been unsuccessful in making crucial advancements to accessibility in application fees, although this may be due to unworkable budget constraints following increased expenditure throughout the Tribunal.

17 ‘Fees’, Administrative Review Tribunal (Web Page) <https://www.art.gov.au/help-and-resources/fees> (‘ART Fees’).

18 ART Act (n 1) s 98.

19 Asylum Seeker Resource Centre (n 10) 14.

20 Immigration Advice and Rights Centre, Submission No 23 to Senate Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (2 February 2024) 2.

21 Justice Emilios Kyrou, ‘The Art of Merits Review: Structural and Operational Flexibility’ (2024) 31(4) Australian Journal of Administrative Law 5.

22 Ibid 8.

23 ART Fees (n 17).

III PROCEEDINGS

A Individual Adjustments

The ART’s focus on ‘people with disability and people who do not speak English as a first language (or at all)’ is warranted,24 with 87.6% of the total caseload as at 31 January 2025 classified under Migration and Protection and 4.9% under the NDIS.25 Compared to the AAT, the ART’s prioritisation of individual adjustments for its users presents a stark contrast. For example, the AAT did not contain a statutory entitlement to an interpreter,26 whereas not only does the ART legislate such an entitlement, but mandates the appointment of an interpreter by the Tribunal in certain circumstances.27

Additionally, legislative amendments are complemented with practice directions in relation to accessibility,28 whereby the President can ‘provide specifically for the appointment of an interpreter’.29 For example, the Common Procedures Practice Direction details further regulations surrounding the appointment of an interpreter, such as the fact that they must be independent and NAATI accredited where possible.30 These directions not only provide for interpreters, but also detail other accessibility measures such as the use of the National Relay Service to communicate with individuals who are deaf or have hearing or speech impairments.31

However, practice directions are limited by ss 36(4) and (5) of the ART Act, which state that regulations and rules prevail over practice directions32 and failure to comply with them does not invalidate a decision.33 There is a knowledge gap with regards to the approach the ART will take in abiding by these directions, as they are intended as a guide rather than a ‘legislative instrument’.34 Nevertheless, s 36(8) acts as a transparency mechanism, to ensure that practice decisions are published and can be used to hold the Tribunal accountable.35 Aligning with the notion that ‘not all problems can be fixed by legislation’,36 practice directions are a strong initiative of the ART to put lofty promises of accessibility into action.

24 ‘Overview Administrative Review Tribunal Legislation’, Attorney- General’s Department (Web Page) 1 <https://www.ag.gov.au/legal-system/new-system-federal-administrative-review/overview-administrative-review-tribunallegislation>.

25 Administrative Review Tribunal, ART Caseload Report (Annual Report, February 2025) 1 <https://www.art.gov.au/sites/default/files/2024-12/ART_Caseload_2024-25.pdf>

26 Legal and Constitutional Affairs Reference Committee, The Performance and Integrity of Australia’s Administrative Review System (Final Report, March 2022) 6 [1.31].

27 ART Act (n 1) s 68(3).

28 Ibid s 36(k).

29 Revised Explanatory Memorandum (n 4) 11.

30 Administrative Review Tribunal, (Common Procedures) Practice Direction, 28 February 2025, 12 [2.31].

31 Ibid 11 [2.27(a)].

32 ART Act (n 1) s 36(4).

33 Ibid s 36(5).

34 Ibid s 36(7).

35 Ibid s 36(8).

36 Second Reading Speech (n 5).

B Legal Assistance

Access to legal assistance is vital, as self-represented applicants before the AAT were often found to be lacking legal capacity, causing Tribunal members to be uncertain on how to proceed.37 Hence, it was recommended by Legal Aid that the AAT should be provided with ‘statutory powers to appoint a legal guardian … or a tutor for applicants who lack capacity’.38 The consequences of a lack of legal guidance are especially severe for protection applicants, where being unable to make their case properly will revert them back to serious harm or torture in many cases.39 Further, the aforementioned language barriers of applicants that are common in protection and migration applications only work to proliferate the issue of a lack of legal representation in the AAT.40

The ART has indeed undertaken to fill in this gap, legislating the appointment of a ‘litigation supporter’41 for parties that do ‘not have decision-making ability’.42 However, there is no specific test of this term in the legislation other than the stipulation that ‘the presumption is not rebutted solely on the basis that a party has a disability’,43 leaving the decision to the Tribunal’s discretion. On the other hand, a one-size- fits-all test of ‘decision-making ability’ could be inappropriate as applicants have a wide range of differing impairments on their ability to make decisions. Such flexibility around the definition of this term may come at a cost to consistency in appointment of litigation supporters. However, the overarching mandate to conduct proceedings ‘in a way that is accessible for the parties’ in conjunction with this discretion may promote equity instead.44 Although it is unknown what specific criteria the Tribunal might consider, this may be a boon, promoting the fact that no two applicants are the same and a standardised checklist will not suffice in implementing measures of accessibility.

Further, although the Tribunal is required to have regard to the party’s ‘wills and preferences’,45 the extent to which they are required to do so is unclear. As such, the Disability Advocacy Network Australia submitted that the Tribunal should follow, rather than simply ‘take into account’ the party’s wills and preferences.46 However, requiring the ART to appoint a litigation supporter every time a user ‘wills’ for it would be practically impossible, simply due to the lack of sufficient funding necessary for each request.47 As such, the ART’s aforementioned practice directions may serve to provide further

37 Legal Aid New South Wales, Submission No 13 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, The Performance and Integrity of Australia’s Administrative Review System (2 February 2024) 5.

38 Ibid 3.

39 Refugee Council of Australia, Submission No 16 to Senate Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (February 2024) 12.

40 Submission No 14 (n 10) 1.

41 ART Act (n 1) s 67.

42 Ibid s 67(1)(a).

43 Ibid s 67(1B).

44 Ibid s 51(1).

45 Ibid s 67(2)(a).

46 Disability Advocacy Network Australia, Submission No 20 to House Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023 (3 March 2024) 4.

47 Law Council of Australia, Submission No 28 to Senate Standing Committees on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (January 2024) 23 [69].

guidance to Tribunal members and users regarding the extent to which the party’s ‘wills and preferences’ are to be taken into account. Whilst the ART Act has promoted access to legal support through legislation, its success will depend on the Tribunal’s ability to balance consistency with discretion.

C Facilities and Premises

Users have indicated that access to the Tribunal should be simple, in the form of teleconferences and videoconferences,48 which leads to a clash in the fulfilment of accessibility objectives. For example, in conducting remote hearings under the AAT, interpreters were often unauthorised to view the applicants’ faces over videoconference, which made interpretation difficult at times.49 Hence, efforts to promote accessibility must be considered in tandem with each other to avoid creating inefficient outcomes, having to delay hearings further. As such, the ART takes a more neutral stance on the way that a party may ‘appear’ before the Tribunal, allowing for in-person or virtual hearings as required. Notably, this presents a significant improvement from the AAT, which did not include such provisions at all.50 Practice directions also serve as a valuable tool to allow all users of the Tribunal to engage with its processes, setting out a list of five ways in which documents can be given to the Tribunal.51 Finally, the ART is taking further initiative to improve its physical accessibility through the implementation of a Disability Plan based on the findings of an accessibility audit completed in July 2024.52 Significant advancements have been made so that all Tribunal premises now accommodate closed captioning, interpreters and hearing loop systems.53 Overall, the ART crucially recognises that digitalisation does not necessarily equate to improved accessibility measures, implementing welcomed changes as a consequence.

IV CONCLUSION

The ART’s long-term impact on the accessibility of the Australian administrative law sphere remains an unanswered question. Nevertheless, avenues exist through which the success of the ART in fulfilling its accessibility promises may be explored in the future. For instance, decisions of the ART may be appealed to the Federal Court of Australia (‘FCA’) on a question of law, including whether a denial of procedural fairness occurred or if the ART incorrectly interpreted a statute relevant to the

48 Attorney-General’s Department, Submission No 6 to Senate Standing Committees on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into the Administrative Review Tribunal Bill 2023 and the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Bill 2023 (January 2024) 7.

49 Law Council of Australia, Submission No 23 to Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, The Performance and Integrity of Australia’s Administrative Review System (2 February 2024) 11.

50 Ibid 5 [3].

51 Administrative Review Tribunal, (Common Procedures) Practice Direction, 28 February 2025, 8 [2.13].

52 Administrative Review Tribunal, Commitment to Accessibility and Inclusion (Report, 14 October 2024) <https://www.art.gov.au/sites/default/files/202410/Administrative%20Review%20Tribunal%20Commitment%20to%20Accessibility%20and%20Inclusion.pdf>.

53 Justice Emilios Kyrou, ‘President’s Speech on How the Administrative Review Tribunal Supports Vulnerable Parties’ (Speech, International Association of Refugee and Migration Judges Asia Pacific Chapter Conference, 25 November 2024).

proceeding.54 Due to the infancy of the ART, little to no decisions of the Federal Court, especially the Full Federal Court, have been published. These decisions will likely illuminate the true operation of the ART’s legislation and mechanisms. Further, the establishment of the ART included the reinstatement of the Administrative Review Council (‘ARC’) which had been discontinued in 2015. The ARC has the function of monitoring the Commonwealth administrative law system and recommending changes, which may manifest in the form of published insights surrounding accessibility measures.55 Finally, the ART’s legislation has mandated a statutory review of the ART Act, 5 years after its commencement,56 which will involve consultation with the ARC, members of the public and Tribunal users.57

Hence, the ART has made significant changes to legislative frameworks such as the appointment of litigation supporters and interpreters, mandated notifications of review rights and overarching practice directions. However, the extent to which the ART succeeds in achieving accessibility will depend on how it decides to operate under this framework, as it has been given a high level of discretion. It is up to the Members of the Tribunal whether the ART will reform accessibility in administrative justice or simply act as a new ‘coat of paint’.58

54 ‘Appealing from a Decision of the Administrative Review Tribunal’, Federal Court of Australia (Web Page) <https://www.fedcourt.gov.au/law-and-practice/guides/appeals/from-other-bodies/art>.

55 ‘About the ARC’, Attorney-General’s Department (Web Page) <https://www.ag.gov.au/legal-system/administrativelaw/arc/about-arc>.

56 ART Act (n 1) s 294A(3).

57 Ibid s 294A(5).

58 Matthew Groves, ‘The Administrative Review Tribunal: A Big Step in Tribunal Justice, 50 Years in the Making’ (2024) 98(12) Australian Law Journal 902, 902.

DONNING THE CHANCELLOR’S CLOAK: HOW EQUITY’S PLAYBOOK CAN HELP RESHAPE LEGAL EDUCATION IN AUSTRALIA AND FELL THE IVORY TOWER

MARK GIANCASPRO*

I INTRODUCTION

Following the Norman invasion of England in 1066, the new legal system installed by William the Conqueror was lauded for bringing order and consistency to the otherwise haphazard fiefdom-based system that previously operated throughout the land. No longer would the processes for initiating and fulfilling legal actions be characterised by informality and regional nuance. Instead, a scheme of common writs (the predecessors of modern court forms) became mandatory, and case reporting became the norm. The documentation of jurisprudence provided fertile ground for the doctrine of precedent to take root and for consistency in judicial decision-making to flourish. However, as the common law matured, so too did its insistence upon its ways. In time, the common law became a victim of its own success and, ironically, tended to impede access to justice. Equity was born out of this systemic failure. It recognised that the common law’s intransigence was ultimately subverting its foundational purpose and sought to redress the imbalance by introducing more flexible, conscience-driven principles that facilitated just outcomes where strict legal rules fell short.

In the same way that equity appreciated and addressed the limitations of the common law, so too must contemporary legal educators in Australia and abroad confront the growing disconnect between how law is taught in academic institutions and how it actually functions in the real world. Despite the ubiquitous claims by law schools the world over that they are ‘innovative’, ‘progressive’, and uniquely positioned to prepare students for the demands of legal practice, the reality is that most remain stubbornly wedded to tradition, privileging doctrinal instruction over experiential and adaptive learning. Others are simply oblivious to how legal practice works, with many lacking a genuine nexus with the profession. Just as equity instituted a more responsive and righteous dimension to a mulish legal system, its playbook can also be adapted to reimagine legal education and ensure that tradition does not obscure reality and hamper innovation. I focus in this article on the Australian context and make a plea for legal educators to help fell the ivory tower.

* Dr Mark Giancaspro (LLB (Hons), LP, PhD) is a Senior Lecturer at the Adelaide Law School, University of Adelaide. The author is also Special Counsel at DW Fox Tucker Lawyers, Adelaide.

II THE STATE OF CONTEMPORARY LEGAL EDUCATION IN AUSTRALIA

There are, at the time of writing, 38 law schools across Australia. To be accredited to teach the discipline of law,1 each must cover a body of mandatory content prescribed by the Law Admissions Consultative Committee (‘LACC’) and meet various other requirements relating to matters such as duration of programs and quality of teaching staff.2 As to content, the ‘Priestley 11’ courses, being the ‘prescribed areas of knowledge’, must be included within all curricula.3 In terms of how this content is taught, however, law schools largely have unbridled discretion. On one view, the fact that 7 of the 38 Australian law schools feature in the top 100 of both Times Higher Education’s World University Rankings by Subject 2025 (Law)4 and the QS World University Rankings by Subject 2025 (Law and Legal Studies)5 at the time of writing bespeaks the general quality of Australian legal education. It further suggests that the methods utilised by Australian law schools are appropriate and effective. Respectfully, however, university rankings are calculated through self-reported data across narrow metrics such as student-to-staff ratios, research income, international student numbers, research citations, and reputation scores from employer and staff surveys. Therefore, a numerical ranking does not conclusively verify the relevance, quality or dynamism of a law degree.6

Speaking as someone who has visited, lectured at, and liaised with staff in law schools the world over, and as is commonly reported,7 Australian law schools and their graduates are highly regarded internationally. Lawyers trained in Australia are ‘known for their strong technical skills, adaptability, and ability to operate effectively in diverse legal environments’,8 explaining why so many are snapped up by global firms in the UK, US, Asia, and elsewhere. My concern is that this reputation is largely founded upon historical assumptions as to the strength of Australian legal education assumptions that were once well-grounded in truth. However, in the face of accelerating social,

1 There is no prescribed national curriculum for legal education in Australia. However, the Federal Government does impose a national Higher Education Standards Framework (‘HESF’) and Australian Qualifications Framework (‘AQF’), enforced through the Tertiary Education Quality and Standards Agency (‘TEQSA’). In 2010, the Council of Australian Law Deans (‘CALD’) developed and endorsed the six Threshold Learning Outcomes (‘TLOs’) for the Bachelor of Laws degree program: (1) knowledge; (2) ethics and professional responsibility; (3) thinking skills; (4) research skills; (5) communication and collaboration; and (6) self-management. The same TLOs were endorsed by CALD in 2012 in relation to the Juris Doctor degree program. TEQSA audits Australian law schools to ensure compliance with the aforementioned instruments and requirements.

2 Law Admissions Consultative Committee, Accreditation Standards for Australian Law Courses (July 2018).

3 Law Admissions Consultative Committee, Model Admission Rules 2015 (December 2016) sch 1. The ‘Priestley 11’ were named after former LACC chairman, Lancelot John Priestley, who chaired the Committee in 1992 when the minimum academic study requirements for legal practice were determined. The 11 prescribed areas of knowledge are as follows: criminal law and procedure, torts, contracts, property, equity, company law, administrative law, federal and state constitutional law, civil dispute resolution, evidence, ethics and professional responsibility.

4 ‘World University Rankings by Subject 2025: Law’, Times Higher Education (Web Page, 11 February 2025) <https://www.timeshighereducation.com/world-university-rankings/2025/subjectranking/law#!/length/25/locations/AUS/sort_by/rank/sort_order/asc/cols/scores>.

5 ‘QS World University Rankings by Subject 2025: Law & Legal Studies’, Top Universities (Web Page, 12 March 2025) <https://www.topuniversities.com/university-subject-rankings/law-legal-studies?countries=au>.

6 I want to stress, emphatically, that I am not suggesting that Australian universities and their law schools do not deserve their corresponding rankings. Rather, I am saying that we must not blindly assume that a high institutional ranking on any global scale inexorably translates to a high-quality, dynamic and relevant law degree.

7 See, eg, ‘Why Study Law in Australia Instead of the UK? A Compelling Choice for Future Lawyers’, University of Sydney (Web Page) <https://www.sydney.edu.au/law/study-law/why-study-law-in-australia-instead-of-the-uk.html>.

8 Ibid.

technological, geopolitical and regulatory changes, I question whether current legal training in Australia continues to equip graduates with the skills necessary to thrive in an increasingly complex and dynamic global legal landscape. My personal view, and one which will no doubt ruffle feathers, is that it does not, and that the universal overemphasis on theory and disavowal of practical skills training demonstrates that Australian law schools are losing touch with the workings of the real world.

I am far from alone in this view. Indeed, it is quite easy with a simple Google search to find many recent corroborating opinions.9 The notion that law as taught in law schools is disparate and disconnected from how it works in practice has been a well-worn critique for more than a century, echoed by practitioners, judges and scholars. Take the eminent American legal scholar Roscoe Pound, who lamented the ‘gap’ between the ‘law in the books’ and the ‘law in action’; in how the law is taught versus how it actually works in real settings.10 Respected scholars such as Stewart Macaulay have even proven empirically that the law seldom operates in practice the way it is represented in theory, and that non-legal customs and practices that law schools invariably disregard actually play a more prominent role in shaping legal relationships.11 Though Macaulay was critiquing the centrality of the law and not legal pedagogy, the fact that his pioneering analysis12 exposed a fundamental misunderstanding as to how the law functions in practice invites reconsideration of how law is taught.

To comprehend the criticisms, one must appreciate how contemporary legal education in Australia works. It reflects, as it generally always has since at least the Second World War,13 Socratic principles and endorses a heavily theoretical method in which students are lectured en masse on core legal principles and cases then work in smaller tutorials to functionally apply and examine them. Assessments are predominantly written, with examinations typically being the final and most heavily weighted task in each course. This is a far cry from the historical apprenticeship model through which law students shadowed practising lawyers in chambers while studying core texts, concurrently developing their theoretical and practical skills and equipping them, over time, to practice.14 Nowadays, the practical skills component of legal education is primarily reserved for Practical Legal Training (‘PLT’) programs that follow undergraduate or postgraduate law degrees and are offered by a range of third-party providers such as the College of Law and Leo Cussen. Law schools generally relegate experiential learning to elective courses, internships, or clinical legal placements, or simply excise it

9 See, eg, Naomi Neilson, ‘How Legal Education Fails to Match Up to the Shifting Legal Profession’, Lawyers Weekly (online, 20 April 2020) <https://www.lawyersweekly.com.au/newlaw/28025-how-legal-education-fails-to-match-up-to-the-shiftinglegal-profession>; Andrew Lynch, ‘“Black-Letter” Law Alone Doesn’t Make for Good Lawyers’, The Australian (online, 26 March 2025)

<https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww .theaustralian.com.au%2Fcommentary%2Fblackletter-law-alone-doesnt-make-for-good-lawyers%2Fnewsstory%2F3aedd57de684cc5db9a8010769fb5738&memtype=anonymous&mode=premium&v21=GROUPA-Segment-2NOSCORE&V21spcbehaviour=append>.

10 Roscoe Pound, ‘Law in Books and Law in Action’ (1910) 44(1) American Law Review 12.

11 See Stewart Macaulay, ‘Non-Contractual Relations in Business: A Preliminary Study’ (1963) 28(1) American Sociological Review 55.

12 His legal article (n 11) is one of the most cited in history: Jay M Feinman, ‘Introduction’ in David Campbell, Linda Mulcahy and Sally Wheeler (eds), Changing Concepts of Contract: Essays in Honour of Ian Macneil (Palgrave Macmillan, 2013) 1, 12.

13 See Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ (2004) 26(4) Sydney Law Review 537.

14 Ronald J Scalise, ‘Legal Education in the 21st Century: Looking Backwards to the Future’ (August 2019) The Federal Lawyer 38, 38.

altogether.15 This outsourcing (or neglect) reflects both the placement of law schools within faculties and universities entirely preoccupied with research to bolster international reputation and recognition and a reluctance by the profession itself to invest resources into training graduate-entry lawyers in skills they feel those lawyers should already have.16 It is also symptomatic of crowded law curricula and a gross under-resourcing of tired academics with little capacity or means for innovation.

The problem, simply put, is that, for a multitude of reasons, law schools are failing to attain an adequate balance between academic rigour and practical skills development. By ‘practical skills’ I do not mean the typical advocacy and drafting exercises which all students undertake. I mean the broader skillset that is utterly essential to the modern lawyer, including: communicating with clients and managing their emotions and expectations, taking instructions from both clients and senior colleagues, demonstrating leadership, working effectively in teams, thinking laterally, conceptualising both legal and non-legal solutions for clients, clearly and concisely articulating and applying the law to real-world scenarios, ethically and effectively billing work, managing files, interacting with key stakeholders, utilising technology (especially email and phone), managing time, taking file notes, and self-care.17 I reject the common retort that it is not for law schools to teach these skills. I, like countless other lawyers, had to learn these skills as a junior from observation and nervous questioning of generous colleagues, chaotically piecing the practice of law together like a jigsaw puzzle. Law school did little to prepare me outside of providing me with accreditation and baseline knowledge.18 Law schools produce law graduates, not lawyers, and though not all graduates go on to practice law, a significant number do. Law schools cannot simply ‘wash their hands’ of the obligation to train their students in practical legal skills on the basis that not all of the cohort will enter the profession. As any academic teaching medicine will tell you, the assumption is that they are training future doctors. Imagine teaching tomorrow’s surgeons entirely out of textbooks and never letting them don gloves and gown and perform a procedure on a real patient in a real theatre in a real hospital.

Twining has aptly described the ‘two main conceptions of the role of the law school [that] have competed for dominance’ in modern industrial societies: ‘the first is the law school as a service institution for the profession (the professional school model);19 the second is the law school as an academic institution devoted to the advancement of learning about law (the academic model)’. Whereas proponents of the first view legal education in instrumental terms, those of the second see it as an academic discipline with its own intrinsic value.20 The entrenched dichotomy between these theoretical paradigms has, regrettably, obscured attempts at reconciliation. Speaking from my unique perspective as both an academic and practising commercial lawyer, my firmly held view is that effective legal

15 Jonathan L Black-Branch, ‘Modern Legal Education: Towards Practice-Ready Attitudes, Attributes and Professionalism’ (2016) 39(1) Manitoba Law Journal 1, 3–4.

16 Scalise (n 14) 40.

17 See Jess M Krannich, James R Holbrook and Julie J McAdams, ‘Beyond Thinking Like a Lawyer and the Traditional Legal Paradigm: Toward a Comprehensive View of Legal Education’ (2009) 86(2) Denver Law Review 381.

18 I say this with all due respect to my alma mater, to whom I remain extremely grateful for my legal education.

19 William Twining, Law in Context: Enlarging a Discipline (Oxford University Press, 1997) 301.

20 David Barker, A History of Australian Legal Education (Federation Press, 2017) 3.

education demands an appropriate mix of theory and practice. Just as equity recognised the common law’s failings and its need for refinement, so too must law schools appreciate the value of a curriculum that not only conveys legal knowledge with clarity and erudition but also enlivens it through contextual engagement. As Black-Branch observes:

It is true that teaching is at the heart of the modern university, of which research is an integral component of informing students of relevant theories. Nonetheless, this must be balanced in a complementary manner with practice-based learning opportunities allowing students to apply their knowledge and expertise within practical settings aligned to their career development. Law courses are largely designed to expose students to analytical, empirical, theoretical or normative perspectives on law that complements and enriches the doctrinal analysis. That said, a modern curriculum must go beyond this and provide links to the legal profession.21

Parker and Goldsmith make a similar point and argue that the critical and theoretical excellence of legal academics ‘must not become segregated from the skills-based professional training that law students want in their degrees’.22 After all, we cannot expect law students to ‘become civic-minded reflective practitioners by stuffing their heads full of theoretical and critical perspectives if we never give them a chance to put their head knowledge into action’.23 Theory and analysis must, of course, dominate pedagogical method in the complex science that is law. It must not, however, entirely suppress equally important practical skills, lest we give students an incomplete understanding of legal practice and leave them haplessly attempting to appease their clients and employers without knowing how to do so.24 Law degrees must be scaffolded in such a way that students are taught the skill of legal reasoning and then progressively provided with a structured way to place this skill within the context of legal practice.25 We must also be mindful not only of the desires of the market comprising the future employers of law graduates but those of the students themselves; both clearly yearn for a practical degree that cultivates a transferrable and acutely tuned skillset informed by a profound knowledge base.26

For students, an education that provides a mix of theory and practice is more than an enjoyable learning experience; it can, according to research, also impact their socioemotional development, moral sense, and perceptions of self-worth.27 Fundamentally, a well-rounded legal education produces happier and more effective graduates. Those graduates have a legal and ethical duty to the court, to clients, and to the administration of justice.28 The question, of course, becomes how we can reshape legal education

21 Black-Branch (n 15) 11.

22 Christine Parker and Andrew Goldsmith, ‘“Failed Sociologists” in the Market Place: Law Schools in Australia’ (1998) 25(1) Journal of Law and Society 33, 48.

23 Ibid.

24 Krannich, Holbrook and McAdams (n 17) 382.

25 Ibid 388.

26 See Amanda Stickley, ‘Providing a Law Degree for the “Real World”: Perspective of an Australian Law School’ (2011) 45(1) The Law Teacher 63.

27 Kennon M Sheldon and Lawrence S Krieger, ‘Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test and Extension of Self-Determination Theory’ (2007) 33(6) Personality and Social Psychology Bulletin 883.

28 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW) rr 3–4. The rules have been fully endorsed or otherwise adapted in each Australian state and territory. Solicitors owe a duty of care to their clients to exercise reasonable care in fulfilling the terms of their retainer: Ross v Caunters [1980] Ch 297; Heydon v NRMA Ltd (2000) 51 NSWLR 1.

to improve it and the experiences of those who undertake it. We can, to begin with, draw upon the lessons of equity.

III LESSONS FROM EQUITY

Some specific examples of equity’s revision or circumvention of historical common law processes and rules provide invaluable lessons for how today’s legal education sector can optimise its current approach to training law students in a positive, realistic, helpful, and engaging manner. Perhaps the obvious example is the common law writs. These writs, the predecessors of modern court forms, historically framed the accepted forms of action through which citizens could seek legal remedies. They were notoriously narrow, prescribing ‘every aspect of the case, from originating process, to procedure, to final relief’.29 Moreover, most actions concerned real estate in early times and so the principles and practices developed by the King’s Bench (which heard disputes involving or affecting the Crown’s interests) and the Court of Common Pleas (which heard petitions from commoners) ‘followed the feudal rules in all their strictness’.30 The citizenry reacted by directly petitioning the king and seeking justice, who in turn delegated such matters to the Chancellor, head of the king’s secretariat. Over time, with the king’s blessing, the Chancellor developed his own jurisdiction, and the Court of Chancery was born, exercising equitable jurisdiction informed by the Chancellor’s clerical background and dispensing justice informed by precepts of conscience and morality. The courts of equity plainly appreciated, as the Crown did, that obstinate adherence to established practices was counterproductive.

Another example can be found in the rules of contract formation. For centuries, the common law rule has been that promises unsupported by consideration are entirely gratuitous and unenforceable.31 Unless there is quid pro quo, there is no contract, and so a bare promise is of no consequence, even if the promisee relied upon it to their detriment. Equity, on the other hand, permitted a bare promise to be enforced where it induced the promisee to adopt an assumption and they consequently incurred detriment in reliance upon the promisor’s word. I speak, of course, of the doctrine of promissory estoppel.32 Equity recognised the inherent unconscionability in a promisee in these situations being disappointed. As Mason CJ and Wilson J explained in Waltons Stores (Interstate) Ltd v Maher:

[E]quity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has ‘played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it’. Equity comes to the

29 Michael J Evans, Bradley L Jones and Theresa M Power, Equity and Trusts (LexisNexis, 4th ed, 2016) 4.

30 Warren B Kittle, ‘Courts of Law and Equity: Why They Exist and Why They Differ’ (1919) 26(1) West Virginia Law Quarterly 21, 27.

31 Crisp and Golding’s Case (1586) 1 Leonard 296, 296; 74 ER 269, 270; see also Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460, 495; Burgess v Lejonvarn [2016] EWHC 40, [151].

32 The basis for the modern doctrine of promissory estoppel can be traced to Hughes v Metropolitan Railway Company (1877) 2 AC 439, where Lord Cairns described the equitable basis for, and content of, the doctrine. This was later refined by Denning J in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130; see the seminal Australian authority Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.

relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.33

So, if X made a promise to Y, it was reasonable for Y to rely upon X’s promise, and it would be unconscionable for X to be permitted to renege, equity provided a basis for Y to seek enforcement of the promise, whether by its fulfillment, by an award of damages, or through the making of some other order. The courts seek the ‘minimum equity to do justice’.34

Finally, consider equity’s attitude to the forfeiture of proprietary interests. By way of example, at common law, where a lessee fails to pay rent, the lessor may forfeit the lease and re-enter the demised premises where the lease so provides.35 Equity, however, took a different approach. Rather than coldly enforcing the common law process, it permitted a defaulting lessee to seek relief against forfeiture where the lessee could demonstrate a capacity to remedy the breach or otherwise make reasonable compensation to the lessor.36 Where it would be unconscionable for the lessor to insist on their strict legal right to recover possession, equity may intervene.37 Where the common law turned a blind eye to the hardship that the defaulting lessee would endure, equity considered a broader range of circumstances. Those include ‘the conduct of the applicant for relief, in particular whether his default was wilful, of the gravity of the breaches, and of the disparity between the value of the property of which forfeiture is claimed as compared to the damage caused by the breach’.38 Again, we see equity tempering principle with pragmatism to achieve better outcomes. We must do the same when devising approaches to legal education.

IV A FINAL THOUGHT: APPLYING THE PLAYS

Even as neoliberalism continues to crush the higher education sector and, in particular, the humanities, there is scope for us to be inspired by equity’s story and reimagine legal teaching. The task begins with a recognition of the fact that merely teaching students the law does not demonstrate how it is to be applied. Students can glean some practical aspects from readings of the cases, but this is clearly not sufficient. A curriculum that balances theory with practice is essential to producing high-quality and

33 (1988) 164 CLR 387, 404 (citations omitted); see also Moorgate Mercantile Co Ltd v Twitchings [1976] QB 225, 241–2.

34 Crabb v Arun District Council [1976] Ch 179, 198.

35 See Bashir v Commr of Lands (UK) [1960] AC 44; Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17. This is one of the ‘usual covenants’ implied into leases at common law. It is also implied via property law and conveyancing statutes in each state and territory: see, eg, Land Titles Act 1925 (ACT) s 120; Real Property Act 1886 (SA) s 125(c); Transfer of Land Act 1958 (Vic) s 67(1)(d).

36 Legione v Hateley (1983) 152 CLR 406; Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of New South Wales Ltd (1970) 2 BPR 9562. Some states stipulate the procedures through which the equitable principles must be applied: see, eg, Landlord and Tenant Act 1936 (SA) ss 4–5, 9; Supreme Court Act 1986 (Vic) ss 79–80, 85.

37 World by Nite Pty Ltd v Michael [2004] 1 Qd R 338, 343. What will amount to ‘unconscionable’ insistence in such cases is highly fact-dependent. Despite this term being quite malleable, the courts have stressed that it is unwise to prescribe too many rules as to when relief will be granted: Platt v Ong [1972] VR 197. They have, however, generally granted relief for non-payment of rent provided the arrears and costs can be repaid by the lessee and that the lessee has otherwise acted reasonably: Jam Factory Pty Ltd v Sunny Paradise Pty Ltd [1989] VR 584; Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687. For further discussion of the fluidity of the term ‘unconscionable’ in this context, see Nyuk Y Chin, ‘Relieving Against Forfeiture: Windfalls and Conscience’ (1995) 25(1) Western Australian Law Review 110.

38 Shiloh Spinners Ltd v Harding [1973] AC 691, 723–4; see also Stern v McArthur (1988) 165 CLR 489, 527; Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11, [123].

satisfied graduate lawyers.39 The task also requires the sincere commitment of legal educators. Utilising equity’s playbook and creatively circumventing or reforming traditional approaches will require a measure of time, energy, and innovative spirit. This is especially so for the Priestley courses, which are often conceptualised in conventional ways and may take a little more work to reinvigorate.40 Law schools should therefore focus on recruiting those willing to ‘challenge the status quo and envision what truly is possible in legal education’.41 Seasoned academics must be willing to look beyond the ivory tower and to acknowledge, as Socrates famously did, that true wisdom is in knowing that we do not know everything.

That said, innovation need not be prohibitively burdensome. Take my Commercial Transactions course, which contains Priestley content and covers a broad range of commercial topics relevant to legal practice, including competition and consumer law, secured property, commercial leasing, insurance, and more. My interim assignment is multimodal and composite in nature. I set up a free email account for a fictitious client that students contact and from which they receive an automatic response (via ‘autoreply’ function) disguised as an organic answer. The students must digest the colloquial narrative and then watch video footage of some kind (usually a video message from the client or footage of some relevant incident) and examine other documents, including media reports and business documents. They must look for evidence and construct chronologies themselves and answer discrete questions. This not only mirrors the realities of practice I can promise you that no client ever comes to you with absolutely all information neatly packaged and ordered, as law school task sheets do but also enables me to provide students with formative feedback on how they communicate via email with clients. Formative assessments have been shown to be even more effective than summative assessments in enhancing student learning.42

Similarly, when I teach the consumer guarantees contained in the Australian Consumer Law, I go further and explain, with examples, how a consumer can articulate their rights when communicating with suppliers. Knowing the law is one thing, but that knowledge is futile if it cannot be properly leveraged. Countless other examples of practical skill integration can be imagined: basic drafting and document review exercises in contract law, photo/video and witness statement analysis in criminal law and evidence, judgment writing in constitutional law, drafting company constitutions or resolutions for corporate law, mediation and mooting in tort, recording billables and calculating costs in civil dispute

39 Krannich, Holbrook and McAdams (n 17) 389; Black-Branch (n 15) 2, 4, 10, 13; Sandra Noakes, ‘“Needs Improvement”: Positioning Good Practice Writing Pedagogy in the Australian Law School Curriculum’ (2021) 47(1) Monash University Law Review 212.

40 Kate Galloway, ‘A Rationale and Framework for Digital Literacies in Legal Education’ (2017) 27(1) Legal Education Review 1, 25

41 R Michael Cassidy, ‘Beyond Practical Skills: Nine Steps for Improving Legal Education Now’ (2012) 53(4) Boston College Law Review 1515, 1530.

42 See, eg, Carol Springer Sargent and Andrea A Curcio, ‘Empirical Evidence that Formative Assessments Improve Final Exams’ (2011) 61(3) Journal of Legal Education 379; Ruth Colker et al, ‘Formative Assessments: A Law School Case Study’ (2017) 94(3) University of Detroit Mercy Law Review 387; Rebecca Morris, Thomas Perry and Lindsey Wardle, ‘Formative Assessment and Feedback for Learning in Higher Education: A Systematic Review’ (2021) 9(3) Review of Education 1.

resolution. More generic skills such as file management and client communication could be embedded across any course. The list of possibilities is literally infinite.

Equity’s principal play is, and always has been, simple: where there exist entrenched rules or methods which obstruct the course of justice, and where good conscience calls for them to be avoided or changed, do so. The same play can and must be applied in the context of reshaping legal education in Australia. To effectively train tomorrow’s lawyers, we must not merely teach equity but embody it by harmonising theoretical knowledge with practical competencies necessary to realise justice beyond the page.

Donning the Chancellor’s Clock: How Equity’s Playbook Can Help Reshape Legal Education in Australia and Fell the Ivory Tower

BRIDGING THE DIVIDE BETWEEN THEORY AND PRACTICE: THE TRANSFORMATIVE IMPACT OF EXPERIENTIAL LEGAL EDUCATION

REBECCA DOMINGUEZ* AND CATHERINE RENSHAW#

My clinic experience has greatly influenced my knowledge of the practical difficulties that clients from linguistically varied backgrounds encounter when dealing with legal processes. The humanitarian visa application activity was critical for me in addressing the division between theoretical understanding and practical implementation … textbook materials, readings, and educational videos can only prepare me to the certain extent that they can. I now know that effective practice in such situations necessitates more than just legal and technical expertise; it requires understanding, conciseness, and cultural awareness and care.1

Prior to commencing the placement, my level of Indigenous knowledge was largely theoretical. Working on the real-life challenges facing Indigenous people, including vulnerable members of our community, fuelled my determination to help make a difference and further strengthened my purpose. The incorporated learning materials and modules provided me with greater insights into cultural competence and deeper knowledge surrounding the barriers affecting Indigenous peoples’ access to justice, and informed how I will practice as a lawyer.2

I INTRODUCTION

Traditional legal education has continuously tried to adapt to the evolving expectations of legal practice and the communities it serves.3 Law graduates enter a profession with high expectations of them. They face intense competition not only to get a job but maintain it and then move up the ranks. They must navigate specialised and complex practice models while adapting to rapidly evolving technology. They must possess a flexible skillset to meet local and global demand, and to be a legal technician while possessing business fluency, and the ability to work ethically and authentically; and

* Rebecca Dominguez is the Director/Principal Solicitor of the Western Sydney University Justice Clinic, and Director of Clinical Legal Education in the School of Law, Western Sydney University.

# Catherine Renshaw is a Professor at and Dean of the School of Law, Western Sydney University. The authors acknowledge and thank the supervisor and students of the Centre for Community Research Collaboration in Western Sydney University’s School of Social Science for their commissioned Systematic Literature Review while on secondment to the WSU Justice Clinic, which provided invaluable research assistance on discrete aspects of this paper: Dr Leia Greenslade, Steph Foran, Khandaker Samior Rahim, Ishmam Akeef, Kritika Rimal, Md Arfa Anan, and Zhengyi Zhou.

1 Law student (Student A), ‘Reflection Assessment for Access to Justice Clinic Subject’ (Unpublished, Western Sydney University, Autumn Semester 2025). Permission was obtained from this law student to use an anonymised excerpt from their reflective assessment for the purpose of inclusion in academic articles on legal education.

2 Law student (Student B), ‘Reflection Assessment for Access to Justice Clinic Subject’ (Unpublished, Western Sydney University, Spring Semester 2022). Permission was obtained from this law student to use an anonymised excerpt from their reflective assessment for the purpose of inclusion in academic articles on legal education.

3 For example, discussing whether legal education is about ‘rules’ or about ‘justice’, Chief Justice Robert French AC writes: ‘the ongoing debates in universities and the profession about what legal education should be seeking to achieve in transferable skills, ethical sensitivity and awareness of the role of lawyers in society generally’ are testimony to the fact that ‘[t[he law is not just about rules, nor is it only about justice’. Chief Justice Robert French, ‘Legal Education in Australia: A Never Ending Story’ (Conference Paper, Australasian Law Teachers' Association Conference, 4 July 2011) 2.

they are constantly required to deal with new subject matter and new content, absorbing the stories, experiences and trauma of their clients. The stress and pressure of the legal workplace is well known and documented.4

How can law schools possibly hope to prepare their students for legal practice while also ensuring that students have basic knowledge of fundamental legal principles, how they are applied, and the theoretical and conceptual frameworks that underpin the law? Experiential legal education is a pedagogical movement that directly addresses this question, offering a meaningful path to reimagining legal academia as a means of both scholarly and practical transformation. It engages students through practical, real-world legal tasks, and is invaluable in forming a law student’s personal and professional skills and identity, and improving their self-perceived and actual employability. It effectively bridges the divide between theory and practice, while embedding capabilities, engagement principles, reflective practice, and a justice ethos in law students. While there is widespread recognition of the benefits of experiential legal education, and most law schools in Australia embed it in some way, there are continued challenges to its implementation and a lack of empirical research that investigates effectiveness and long-term impact. This article offers reflections on how the WSU Justice Clinic has responded to challenges shared by law schools in Australia and across the world, and developed adaptable initiatives that contribute to a better understanding of the power and potential of experiential learning.

Some aspects of this article draw on data from student reflective journals, internal university Student Feedback Surveys on subjects, and exit surveys, all anonymised and de-identified prior to analysis and with all participants providing informed consent for the use of such data for the purpose of academic articles or papers on legal education.5

II THE ‘IVORY TOWER’ IN LEGAL EDUCATION

From 1855, when the first Australian law school was established at the University of Sydney, legal education in Australia has been shaped by two pressing imperatives. One is the requirement of the legal profession that law schools produce graduates who have the skills and temperament to competently provide legal services to clients and to the courts. The other is the broader civic requirement that law schools produce graduates who are outward-looking, who understand and appreciate the benefits to be derived from other disciplines, and who are oriented towards the wider horizons of justice, morality, and the Rule of Law.6

Australian Law Schools have navigated uneasily between these twin imperatives. Early signs were promising. Writing in the Commonwealth Law Review in 1908, one of Australia’s earliest legal

4 There is a significant body of literature on the mental health and wellbeing of lawyers. See, eg, Emma Jones et al, Mental Health and Wellbeing in the Legal Profession (Bristol University Press, 1st ed, 2020).

5 Further specific and extended research and empirical data collection is forthcoming under Western Sydney University’s START (Student TrAnsition and ReTention) Program of Research’s Human Research Ethics Approval (H13567).

6 Chief Justice Anthony Mason, quoted by James Crawford, ‘Preface’ in John and Judy Mackinolty (eds), A Century Down Town: Sydney University Law School’s First Hundred Years (Sydney University Law School, 1991) 6.

academics noted approvingly how ‘the work of law teaching was divided between a professor (devoting his whole energies to teaching and organisation) and lecturers who were also practicing lawyers’.7 This, in the writer’s view, was a way of maintaining ‘the intimate and vital relationship between the law school and legal profession’8 and achieving ‘that judicious admixture of teaching expert and practical lawyer, without which the best results are not attainable’.9 By the 1980s, however, the balance had shifted. As demand for law degrees surged, teaching law became the domain of specialist academic lecturers, sometimes joined by sub-disciplinary experts from the bar or bench. The doctrinal study of law was dominant. The 1987 Pearce Report into Legal Education concluded, among other things, that legal education was both insufficiently practical and insufficiently theoretical.10

Law Schools took the criticism seriously. But there was little agreement amongst academics on how best to expand legal education to encompass, on the one hand, critique, interdisciplinary linkages, legal history, and philosophy; and on the other, the practical and technical skills the profession seemed to be calling for. Things were further complicated by a lack of data about what proportion of law graduates went on to practice law. From this perspective, while there was value in teaching transferable skills (for example, in analysis, legal reasoning, problem-solving and communication), the utility of teaching more specific legal skills (gathering and presenting evidence, advising on costs, taking instructions, and preparing pleas) was less clear.

The uncertainty about what should be taught mirrored an equally vexed issue about how law should be taught. By the first decade of the 21st century, there was broad agreement that law graduates should have at least:

basic knowledge of the principles and doctrines of important areas of the law; basic knowledge of the ways in which law is made and interpreted and applied; basic skills, transferable across subject areas, which enable the graduate to identify, define and analyse legal problems, to formulate options for their resolution, to advise clients, and to use negotiation, alternative dispute resolution or litigation, if necessary, for their resolution; awareness of and sensitivity to ethical issues and the ability to respond ethically to them; a commitment to legal practice as a species of public service; [and] an awareness of the ongoing need for reform of the law and a readiness and ability to contribute to reform.11

Legal academics understood that the last three of these, in particular, could not be achieved by reading, hearing, and committing to memory, the exposition of legal doctrine and examples of its application in new and existing contexts.

Given the importance and complexity of delivering the kind of legal education required in 21st century Australia, it is unsurprising that most Law Schools recognise that traditional classrooms and

7 William Jethro Brown, ‘Law Schools and the Legal Profession’ (1908) 6(25) Commonwealth Law Review 3, 9.

8 Ibid 5.

9 Ibid 11.

10 See Dennis Pearce et al, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (AGPS, 1987) (‘Pearce Report’).

11 Chief Justice Robert French, ‘Legal Education in Australia: A Never Ending Story’ (Conference Paper, Australasian Law Teachers' Association Conference, 4 July 2011).

traditional modes of teaching are no longer sufficient. The following section discusses the theoretical foundations of experiential learning and clinical legal education, defining their core characteristics and explaining their significance as essential elements of a contemporary law school curriculum.

III EXPERIENTIAL LEGAL EDUCATION: PHILOSOPHY AND PURPOSE

Experiential learning in legal education covers an array of approaches and models, including clinical legal education, placements, internships, service learning, and work-integrated learning. Common to all is that academic studies are integrated with ‘practical’ experience through simulated or real legal work. They share the common aim of linking theory to practice in response to learners’ immediate, practical needs.12

A Experiential Learning

Experiential learning has been a topic of scholarly interest since the 1920s, particularly in the context of children’s language and skills development.13 The concept has its roots in John Dewey’s progressive educational philosophy, which emphasised that meaningful education should be grounded in real-world, first-hand, and practical experiences.14 In the mid-twentieth century, Dewey’s ideas were further developed by David Kolb whose experiential learning theory conceptualised learning as ‘the process whereby knowledge is created through the transformation of experience’15 and holds that ‘[k]nowledge is continuously derived from and tested out in the experiences of the learner’.16 His Experiential Learning Cycle consists of four stages of feeling (‘Concrete Experience’), watching (‘Reflective Observation’), thinking (‘Abstract Conceptualisation’), and doing (‘Active Experimentation’).17 This plays out in experiential legal education as students learn to be lawyers by actively engaging with their ‘real-life’ lawyering experiences, cycling through their concrete experience, reflecting upon it, conceptualising and contextualising the experience, and then testing out their new learnings, entering the cycle at any stage.

B Clinical Legal Education

Clinical legal education is a particular form of experiential learning. Evans and colleagues describe clinical legal education as ‘a pedagogy that places students in real-life environments. It is a

12 See Linda H Lewis and Carol J Williams, ‘Experiential Learning: Past and Present’ (1994) 1994(62) New Directions for Adult and Continuing Education 5.

13 See Kevin Lindgren et al, The Future of Australian Legal Education (Thomas Reuters Professional Australia Pty Ltd, 2018).

14 Lewis and Williams (n 12) 6.

15 David A Kolb, Experiential Learning: Experience as the Source of Learning and Development (Prentice Hall, 1984) 38.

16 Ibid.

17 Ibid.

form of experiential learning where students learn by doing and then reflecting’.18 It further describe how such education

places students in the role of lawyers representing clients with legal questions or problems… [and] confronts law students with the realities, demands and compromises of legal practice. In so doing, it provides students with real-life reference points for learning the law. Clinical legal education also invites students to see the wider context and everyday realities of accessing an imperfect legal system, enabling them to integrate their learning of substantive law with the justice implications of its practical operation.19

A critical component and distinguishing feature of clinical legal education is its emphasis on and incorporation of reflective practice. Kolb’s experiential learning model is strongly influenced by John Dewey’s philosophy that we do not learn from all experiences but only those experiences on which we reflect,20 and that ‘[w]e reflect in order that we may get hold of the full and adequate significance of what happens’.21 The embedding of reflective practice into a ‘clinical legal education program introduces students to the tenets of “reflective practice” a core professional competency and one that is instrumental to the formation of a positive professional identity ‘supporting students to become both “justice ready” and “practice ready”’.22

Best-practice clinical legal education within universities is not only focused on the education and personal and professional development of students, but on service to the community and clients.23 Giddings considers this a defining characteristic of Australian clinical legal education and attributes this shaping of clinical programs to the backgrounds of the people working in those clinics with a strong community legal centre/legal aid background.24 This dual approach ensures a mutually reinforcing model where community legal need is met and benefits from the energy, passion, and

18 Adrian Evans et al, Australian Clinical Legal Education: Designing and Operating a Best Practice Clinical Program in an Australian Law School (Cambridge University Press, 2017) 41. 19 Ibid.

20 John Dewey, Experience & Education (Macmillan Co, 1938) ch 6: ‘But observation alone is not enough. We have to understand the significance of what we see, hear, and touch … in unfamiliar cases, we cannot tell just what the consequences of observed conditions will be unless we go over past experiences in our mind, unless we reflect upon them …’.

21 John Dewey, How We Think (D C Health & Co, 1910) ch 9 119.

22 Sally Kift and Kana Nakano, ‘Reimagining the Professional Regulation of Australian Legal Education’ (Research Report, commissioned by the Council of Australian Law Deans, 1 December 2021), 108, citing Michele M Leering, ‘Integrated Reflective Practice: A Critical Imperative for Enhancing Legal Education and Professionalism’ (2017) 95(1) Canadian Bar Review 47, 47; see generally Donald Schön, The Reflective Practitioner (Basic Books, 1983); Donald Schön, Educating the Reflective Practitioner: Toward a New Design for Teaching and Learning in the Professions (Jossey-Bass, 1987); Donald Schön, The Reflective Practitioner: How Professionals Think in Action (Routledge, 1992); see also Richard K Neumann, ‘Donald Schon: The Reflective Practitioner’ (2000) 6 Clinical L Rev 401.

23 See further Evans et al (n 18); Susan L Brooks and Rachel E Lopez, ‘Designing a Clinic Model for a Restorative Community Justice Partnership’ (2015) 48(1) Washington University Journal of Law & Policy; Edgar S Cahn and Christine Gray, Clinical Legal Education: Where Next? Clients as Co-Producers of System Change (NYU School of Law, 2018); see also studies such as Rosie Lee, ‘The Impact of Engaging with Clients’ Trauma Stories: Personal and Organizational Strategies to Manage Probation Practitioners’ Risk of Developing Vicarious Traumatization’ (2017) 64(4) Probation Journal 372; Francine Ryan, ‘A Virtual Law Clinic: A Realist Evaluation of What Works for Whom, Why, How and in What Circumstances?’ (2020) 54(2) The Law Teacher 237.

24 Jeffrey Michael Giddings, ‘Clinical Legal Education in Australia: A Historical Perspective’ (2014) 3 International Journal of Clinical Legal Education 7, 7.

Bridging The Divide Between Theory and Practice: The Transformative Impact of Experiential Legal Education

research capacity of students, while students benefit from exposure to complex, authentic access to justice problems.

The promise of such a best-practice clinical legal education model is that students develop practical legal skills, professional identity, and ethical awareness, while also cultivating a sense of social responsibility and embedding practice principles early in their careers. Clinical legal education has come to be recognised as an essential component of a contemporary law school’s offering. In 2017, the definitive guide on Australian clinical legal education described how ‘Australian law schools without a reputable clinical presence are fast becoming an anachronism’.25

However, there remain many challenges and limitations to the delivery of clinical legal education. Below, we explore these challenges in the context of a relative newcomer to clinical legal education, the Western Sydney University (WSU) Justice Clinic.

IV CLINICAL LEGAL EDUCATION IN ACTION: ESTABLISHING THE WSU JUSTICE CLINIC

The WSU Justice Clinic (Justice Clinic) was established in 2020 as the School of Law’s new clinical legal education and internship program, and the university’s community legal service.26 It benefited from the strong history and well-established foundations of clinical legal education in Australia to that point, since the commencement of the first formal clinical program at Monash University in 1975.27 It had the added benefit of drawing on influential educators in the United States, such as Professor Susan L Brooks, whose scholarship on relational and wholehearted lawyering has significantly influenced the field of clinical legal education.28

As expressed by the founding Director, Dr Jennifer Whelan, the intention of the Justice Clinic was that ‘alongside the development of rigour and excellence in legal technical skills (for example in legal drafting, research and writing) students are simultaneously developing an understanding of their

25 Evans et al (n 18) ix.

26 Frances Gibson, ‘Review of the Clinical Legal Education Program: Western Sydney University Internal Report for the School of Law’ (Report, Western Sydney University, July 2019) 2: Prior to 2020, the law school had ‘a notable history in the clinical legal education field and through work by members of the School ha[d] built up strong partnerships with external partners … academic staff and students support[ed] the program and valuable new initiatives in the form of new clinical units ha[d] been developed by staff’ However, the review identified concerns with sustainability, alignment with best practice, lack of dedicated academic focus and connection, while recognising considerable untapped potential for research, internship, and legal service to disadvantaged communities.

27 Giddings (n 24) 8–11. It also benefited from the championing and experiential learning expertise of Professor Anna Cody, then Dean of the School of Law and current Australian Sex Discrimination Commissioner.

28 See, eg, Susan L Brooks, ‘Creating a Beloved Community By Teaching Relational Lawyering’ in Marjorie Silver (ed), Transforming Justice, Lawyers, and the Practice of Law (Carolina Academic Press, 2017); Susan L Brooks, ‘Fostering Wholehearted Lawyers: Practical Guidance for Supporting Law Students’ Professional Identity Formation’ (2018) 14(2) University of St Thomas Law Journal 412; Susan L Brooks and Rachel E Lopez, ‘Designing a Clinic Model for a Restorative Community Justice Partnership’ (2015) 48(1) Washington University Journal of Law & Policy 139.

professional identity’,29 with their clinical placement being a value-add to their academic understanding of the law. The program was established to

explicitly scaffold our students to develop; a working understanding of social justice, their capacity to practice client-centred lawyering, an understanding of the multitude of ways lawyers in any workplace can contribute to improving access to justice, and the building blocks for the cooperation and resilience required to enable them to practice law collaboratively in complex environments in the longer term.30

The Justice Clinic has run the university’s student legal service, providing advice and representation in a generalist legal practice to domestic and international students of the university. It initially took ad-hoc requests from community partners to assist with legal work, such as completion of Legal Aid applications in health justice partnerships and complaints under United Nations (UN) protocols, though this work has transformed into a larger community legal service offering discussed below. Students enrolled in the clinical legal placement subject work alongside lawyers and clinical supervisors in these matters to gain practical lawyering experience and direct client contact. Students also work on law reform and research projects on behalf of the Justice Clinic and with community partners. The combination of client and law reform work intentionally builds and balances students’ exposure to and understanding of how to meet a client’s immediate needs while contributing to broader systemic change.

In addition to placement in the Justice Clinic, final year law students can enrol in the legal internship program, where they are placed with an external host for a semester of work experience. Initially, these placements were focused on service-oriented practice in direct alignment with a clinical legal education model, hosted by non-government organisations, public interest organisations, community legal centres and practitioners or private firms. The internship program has expanded since inception, as discussed below in section VI. These unpaid internships give students access to opportunities to understand the law in context, apply their formal learning about legal principles, develop essential skills, and expose them to career pathways and networks.

Students enrolled in a clinical legal placement or internship undertake academic modules, seminars, and assessments that teach and develop reflective practice, professional communication and feedback skills, as well as social justice and client-centred lawyering, access to justice theories and mechanisms, and wellbeing and resilience for long-term lawyering.

This Justice Clinic program is underpinned by the reflective practice theories of Kolb and Dewey, as well as Martha Fineman’s vulnerability theory31 and David Wexler’s therapeutic jurisprudence framework.32 Vulnerability theory teaches Clinic students to view the human condition

29 Jenni Whelan, ‘Developing Wholeheartedness as a Core Professional Competency in Clinical Legal Education’ (Conference Paper, International Journal of Clinical Legal Education, 28 April 2021).

30 Ibid.

31 Martha Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20(1) Yale Journal of Law and Feminism 1; Martha Albertson Fineman, ‘The Vulnerable Subject and the Responsive State’ (2010) 60(2) Emory Law Journal 251.

32 David B Wexler, ‘Therapeutic Jurisprudence: An Overview’ (2000) 17(1) Thomas M Cooley Law Review 125.

as universally vulnerable, and to critically assess how laws and institutions should respond to inequality and dependency. Therapeutic jurisprudence teaches Clinic students to consider the law’s therapeutic or anti-therapeutic impact and to shape legal process and roles in ways that promote healing and human dignity through interdisciplinary practice. Students are also taught to view resilience as a crucial skill33 that can be learned, including through a growth mindset34 and positive cognitive reframing.

The combination of theory and practice, and the opportunities given to students to safely apply their theoretical understandings of the law into practice in a nurturing and intentionally scaffolded environment, aims to build technical readiness, alongside ethical awareness and the development of justice-centred professionals. Drawing on data from the Justice Clinic and external studies, the next section demonstrates progress toward these aims and the positive impact of experiential learning, before considering the associated challenges.

V EVIDENCE TO SUPPORT THE TRANSFORMATIVE IMPACT OF BEST PRACTICE MODELS

Students describe their experiences in the WSU clinical legal placement and internship subjects as transformative, with empirical data from internal university evaluations showing unanimous satisfaction with the program,35 and qualitative feedback describing the experience as everything from an ‘invaluable opportunity’ to ‘life-changing’. Many students recommend that the program be compulsory. One student comments that ‘if the facilitators are able to deliver the same experience we had to all students moving forward, they would come out of law school better equipped for the real world’.

36 In internships, outcomes from a newly implemented exit survey in 2025 reveal that 91% of students in first semester and 100% of students in second semester found their internship helped them become more employable, with 54% of the first semester cohort and 63% of the second semester cohort being offered a future opportunity or job with their internship host. Further, 89% of students in first semester and 96% of students in second semester found that their internship experience clarified which area of law they would like to practice in future, with skills such as communication, confidence, legal writing and research, client interaction, workplace interaction and etiquette, and teamwork the most mentioned skills developed.

These findings are consistent with broader research that clinical legal education enhances law students’ professional identity, practical competence, and practice-readiness.37 Employers similarly report a strong willingness to recruit these graduates, recognising the value of experiential learning in

33 See, eg, Susan L Brooks, ‘Forming Resilient Lawyers’ (Speech, Igniting Law Teaching Conference, Drexel Law, 2015); Prue Vines, ‘Working Towards the Resilient Lawyer: Early Law School Strategies’ (Law Research Paper No. 2011–30, University of New South Wales, 2 July 2011).

34 Carol Dweck, Mindset: The New Psychology of Success (Ballantine Books, 2006); Carol S Dweck et al, Academic Tenacity: Mindsets and Skills that Promote Long-Term Learning (Report, 2014).

35 In every Student Feedback on Subject (‘SFS’) and Student Feedback on Teacher (‘SFT’) since 2020, all subjects and teachers in the Justice Clinic have received 100% satisfaction rankings across all criteria.

36 Taken from SFS survey results from Spring 2020 to the most recent available in Autumn 2024.

37 See Evans et al (n 18).

developing real-world legal skills and adaptability.38 Clients engaging with student-led legal services and research also routinely express appreciation for the professionalism, empathy, and diligence that students bring to their matters, which is an important confirmation of the community impact and ethical grounding of the programs.

Recent studies from across Australia, the UK and the USA identify best practice in law school experiential learning.39 It is clear that placements should be designed to align with students’ priorities and prevent exploitative practices,40 and students should have the ability to work directly with clients in order to build professional competency and develop ethical awareness.41 Studies also confirm the role that well-designed programs can play in shaping employability and professional identity for law students. Experiential learning can lead to improved self-readiness for students as emerging professionals, including enhanced sense of self, morale boosting, influencing ultimate career pathways, and instantaneous post-graduate employment opportunities.42 The study by Jackson and Cameron into the survey data of 7,000 Australian law graduates is particularly valuable evidence of the benefits of experiential learning.43

The above studies and data underscore the vital role that such programs play in preparing students for the realities of legal practice and advancing graduate employability and access to justice. There is a need for further empirical research including longitudinal studies to better understand the impact as well as limitations of clinical legal education, and experiential learning more broadly. Challenges and limitations are discussed in the following section alongside a description of the Justice Clinic’s efforts to explore and trial approaches aimed at addressing these challenges.

38 For further discussion and empirical data gathering of employability through clinical legal education and employer feedback in the UK context, see Jill Alexander, ‘Modelling Employability Through Clinical Legal Education: Building Confidence and Professional Identity’ (2023) 57(2) The Law Teacher 135, 154.

39 Building on earlier Australian works such as Evans et al (n 18), these studies were analysed as part of a commissioned Systematic Literature Review (‘SLR’) by the Centre for Community Research Collaboration (‘CCRC’) in Western Sydney’s School of Social Science (‘SoSS’) by Dr Leia Greenslade, Steph Foran, Khandaker Samior Rahim, Ishmam Akeef, Kritika Rimal, Md Arfa Anan, and Zhengyi Zhou.

40 Alperhan Babacan and Hurriyet Babacan, ‘A Transformative Approach to Work Integrated Learning in Legal Education’ (2015) 57(2) Education + Training 170; Dyann Ross and Dilip Karki, ‘A Systematic Literature Review of Love and Social Work: Towards a Love Informed Anti-oppressive Ethical Positionality’ (2025) The British Journal of Social Work 1, 1–20; Anne Hewitt, ‘Avoiding the Trap of Exploitative Work: A National Approach to Making Work-Integrated Learning Effective, Equitable and Safe’ (2018) 31(2) Australian Journal of Labour Law 101; Ryan (n 23) 237.

41 Ryan (n 23); Lee (n 23) 372; Babacan and Babacan (n 40) 170. This reinforces the findings of other Australian works already mentioned including Evans et al (n 18); and Giddings (n 24).

42 Greg Stratton et al, ‘Innocence Projects, Work-integrated Learning, and Student Career Pathways’ (2024) 35(4) Journal of Criminal Justice Education 677; Denise Jackson and Craig Cameron, ‘The Role of Extra-/Co-curricular Activities and Work on Law Graduates’ Initial Employment Outcomes’ (2025) Higher Education Research & Development 1.

43 Jackson and Cameron (n 42).

VI CHALLENGES AND LIMITATIONS OF CLINICAL LEGAL EDUCATION: INSIGHTS AND ACTIONS FROM THE WSU JUSTICE CLINIC

This section contributes to existing knowledge and discourse on the realities of delivering experiential legal education by reflecting on the challenges and constraints experienced by the Justice Clinic in its early years of operation. It also explores ways the Justice Clinic has sought to address those limitations, including through the expansion of its original clinical legal education model to encompass broader experiential learning offerings while retaining the integrity and impact of its clinical legal education foundations.

A Challenges

Some of the challenges and limitations experienced in the Justice Clinic include the following.

• Clinical placements are resource intensive. Very low student-to-staff ratio and intense supervision is pedagogically essential to ensure high-quality learning, supervision, and client service. Yet, measured against standard Equivalent Full-Time Student Load (EFTSL) metrics in traditional university budgeting models, this best practice model is difficult to sustain.

• There is a constant challenge and pressure to scale up clinical offerings, which is at odds with the resource intensive nature and ethical frameworks of clinical legal education. This is particularly so in the university context where law schools are increasingly pressured to produce work-ready graduates.44 As recognised by the Council of Australian Law Deans (‘CALD’), whose Law School Standards include an aspirational requirement that law schools: ‘[endeavour] to provide, so far as is practicable, experiential learning opportunities for its students, including, but not limited to, clinical programs, internships, workplace experience, and pro bono community service’.45

• Exposure and experience in a clinical setting as early as possible in a students’ law degree would be valuable to embed the skills and benefits of clinical legal education. But in this regard the problem of scale is exacerbated because the inexperience of students requires more intensive supervision.

• There is a delicate balance in providing real client experiences for educational and community impact, ensuring cases are suitable for students and that there are appropriate levels of

44 See generally Jeff Giddings and Jacqueline Weinberg, ‘Experiential Legal Education: Stepping Back to See the Future’ in Catrina Denvir (ed), Modernising Legal Education (Cambridge University Press, 2019) 38.

45 Sally Kift and Kana Nakano, ‘Reimagining the Professional Regulation of Australian Legal Education’ (Research Report, Council of Australian Law Deans, 1 December 2021), citing the Council of Australian Law Deans, ‘Australian Law School Standards with Guidance Notes’ (Standards, Council of Australian Law Deans, 30 July 2020) 4 [2.2.4].

professional legal service for clients (who are often from vulnerable groups), and maintaining manageable workloads for supervising lawyers.

• The mandatory participation and attendance requirements raise questions of equity and access, particularly with the geographical challenges and socioeconomic circumstances of many students.

• Trying to organise and then responsibly oversee as many internships as possible for students. There is widespread expectation in the profession for law students to graduate with practical legal experience yet, as noted by others, there are no longer the inbuilt traineeships and articles of clerkship which require students (where their law school is unable to do so) to ‘secure their own hands-on experiences’ and while ‘this assumption is convenient for the profession [it] presents a serious challenge for many law graduates, especially those who lack the family and social connections to help them start their engagement with the profession’.46 It is not a stretch to say that this is highlighted at Western Sydney University. As Noakes and Renshaw observe, the Western Sydney region is home to one of the most diverse populations in Australia, and the student cohort at WSU reflects this diversity.47 Cody and Noakes estimate that approximately 45% of law students at WSU are from low-SES backgrounds, 35% are from culturally and linguistically diverse backgrounds, 39% are the first-in-family to attend university, 53% are students who have not entered law directly from high school, and 10% do not have formal high school qualifications.48

• Following from the above, there are important risk management and due diligence considerations in ensuring appropriate internship hosts, particularly given the diverse backgrounds and potential vulnerabilities of students. Not all hosts are equally attuned to the quality of the student learning experience or aligned with the community service ethos that underpins best practice clinical legal education.

• Balancing the competing demands and unique skillset required to be effective lawyers, clinical supervisors and, ideally, engaged scholars. Clinical staff are required to provide high-quality legal services to clients while simultaneously fostering student learning through supervision, mentoring and reflective practice and feedback. These responsibilities can create tension between service delivery, pedagogical goals, and the time and resources required for scholarly engagement. The complexity of client needs, the unpredictability of casework, and the emotional labour inherent in both teaching and legal practice further compound these

46 Giddings and Weinberg (n 44) 38 [2.1].

47 Sandra Noakes and Catherine Renshaw, ‘Centring New Students’ “Non-Traditional” Strengths: A Challenge for Legal Education’ (2025) 35(1) Legal Education Review 139.

48 Anna Cody and Sandy Noakes, ‘Valuing Diverse Students: An Ethical Response to Building Success in First-Year Law Students and Broadening the Legal Profession’ (2022) 25(1–2) Legal Ethics 64, 72.

challenges, making sustained support, training, and institutional recognition of the importance of experiential learning essential.

B Responding to the Challenge

Many of these challenges remain unresolved, emphasising the value of ongoing dialogue and collaboration across the sector to identify and develop effective responses. However, in response to learnings from its formative years particularly those related to scale, sustainability, supervision capacity, and equitable student access the Justice Clinic has taken some deliberate actions of reform and innovation. Its approach has been to remain grounded in the foundational principles of clinical legal education, recognising the promise of what it can deliver for students, employers, the profession, and the community, as discussed above. Alongside this, it has introduced clinical legal education initiatives (that may also be shared across the sector) and adapted its existing program, expanded the program to other experiential learning offerings, and integrated key clinical legal education elements into the core and elective curriculum of the wider law school.

Technology, appropriately employed, has the potential to expand the possibilities of experiential learning. The Justice Clinic is working on AI-generated course content, featuring AI avatars as simulated legal clients within the clinical placement. The potential benefit is a scalable solution for delivering practical, experiential learning which can be rolled out through other core and elective law subjects. This approach allows a larger number of students to engage in realistic legal scenarios and enables the integration of practical exercises into a wider curriculum, helping to address expansion challenges while embracing innovative educational technology. The Justice Clinic has learned from the experience of the university’s schools of medicine and nursing in this regard, and benefited from crossdisciplinary collaboration in implementing the tools.

The community legal service aspect of the Justice Clinic services have evolved. Rather than ad-hoc requests such as assisting with Legal Aid NSW applications, or drafting complaints under United Nations protocols, or engaging in health justice partnerships (which proved resource intensive with varying client demand), the Justice Clinic now runs its community legal service arm with referral pathways established with key community organisations formalised through MOUs, focused on the thematic areas of domestic, family, and sexual violence, modern slavery and trafficking, asylum seekers claims, and other access to justice matters. These are areas in which there are substantial levels of community need, in large unmet by other providers of legal services. This has enabled clearer referral pathways, improved control over the appropriateness and volume of casework, and enhanced the Justice Clinic’s capacity to deliver meaningful impact in areas of identified need that align with the practice, research interests, and expertise of Clinic practitioners. It has also strengthened integration with the University’s broader strategic vision and priorities, elevating the Clinic’s profile, fostering interdisciplinary cross-university collaboration, and increasing the Clinic’s competitiveness and eligibility for funding opportunities.

The Justice Clinic has established a formal pro bono partnership and referral pathway with a leading corporate law firm to assist with specific aspects of its community legal service caseload. Justice

Clinic lawyers retain supervision of all matters, ensuring professional responsibility and oversight, while the partnership eases workload demands and allows for greater capacity to meet client demand. The arrangement also provides students with direct exposure to experienced pro bono lawyers, fostering professional connections, mentorship opportunities, and insight into collaborative approaches to access to justice, all while enhancing the Clinic’s capacity to deliver high-impact legal service. There has also been an expansion of the internship program through strategic partnerships with industry and community organisations, enabling the outsourcing of real-world client casework and supervision to address internal resource constraints.49

Finally, interdisciplinary simulations have also expanded the reach of the Justice Clinic. Law students engage with translation and interpreting (T&I) students from the School of Arts to participate in simulations centred around humanitarian visa applications.50 The exercise has highlighted for the Justice Clinic the significant value of simulated work experiences as a complement or alternative to real casework, reinforcing findings in the broader literature,51 and providing replicable scenarios and templates for other experiential learning programs.

These initiatives collectively represent a strategic response to challenges experienced by the Justice Clinic, and perhaps others in the field. The key question is whether innovations such as these deliver the same impact for students as traditional, resource-intensive clinical legal education. To assess this, the Justice Clinic has developed an Impact Scaffold52 to provide guidance for integrating theoretical, reflective, and practice-based elements into all experiential learning, advocacy and law reform work. The unique model assesses the individual and social impact of experiential programs that encompass academic content, real-world engagement, reflective practice principles informed by Vulnerability Theory and Therapeutic Jurisprudence, student wellbeing, professional identity formation, and effective advocacy outcomes. The Impact Scaffold also offers a transferable framework for other clinical and experiential programs seeking to design coherent, pedagogically sound approaches to law reform and community engagement.

VII CONCLUSION: RECONCEPTUALISING LEGAL ACADEMIA

For many law schools, the question asked by Twining in his famous 1967 lecture ‘Pericles and the Plumber’ remains unanswered: ‘For what purposes should what be taught to whom using what methods in what milieu with what resources?’53 Long ago, most Australian law schools abandoned Dicey’s exhortation that: ‘nothing can be taught to students of greater value, either intellectually or for

49 263 students to date have completed internships across 12 cohorts/semesters.

50 This data was collected with permission from all students involved from exit surveys completed by the students after a legal interpreting collaboration led by the Justice Clinic. Spring semester 2025 was the fourth time the collaboration ran and the first time collecting exit survey data. The detailed breakdown of data, including the open reflections and the responses of the T&I students are part of separate inter-disciplinary research to be published at a future time.

51 Such as those mentioned earlier in this paper, see Ryan (n 23); Stratton et al (n 42).

52 This Impact Scaffold is due to be introduced to colleagues at the International Journal of Clinical Legal Education Conference 2025 at Monash University in November 2025 as part of a workshop presentation.

53 William L Twinning, ‘Pericles and the Plumber’ (Lecture, Queen’s University of Belfast, 18 January 1967).

the purposes of legal practice than the habit of looking on the law as a series of rules’.54 But few law schools have succeeded in developing a program that delivers not only robust knowledge of legal doctrine and principle, but also capabilities in logic, analysis, and critique; strong theoretical understanding of the foundations of law and law’s place in society; and personal and professional skills and identity.

The promise of experiential legal education is that it delivers all these things. The evidence shows that the benefits are clear, for the student, the legal profession, and the people and societies the profession is meant to serve. The challenge is how to deliver clinical legal education at scale. Best practice in clinical legal education is a very low student-to-staff ratio. This is regarded as pedagogically essential to ensure high-quality experiential learning, supervision, and client service. Yet, measured against standard Equivalent Full-Time Student Load (‘EFTSL’) metrics in traditional university budgeting models, best practice is unsustainable.

Our approach at Western Sydney University School of Law is not only to deliver best-practice dedicated clinical legal placement subjects, but to extend the ideals and philosophy of clinical legal education to broader experiential learning experiences that incorporate new technologies, embraces interdisciplinarity, and responds to an expanded vision of the nature of legal service. In this way, we aggregate the benefits of clinical legal education to more students, at earlier stages of the law program. The ambition is to engage each student in practical, real-world legal tasks underpinned by experiential and reflective learning theoretical frameworks. In this way, we build in every student not only a repository of legal knowledge but also self-understanding, professional identity, and competency in basic legal skills. The distinction between an education that focuses on legal reasoning and black-letter law, and one which focuses on the development of legal professional skills, is no longer sustainable.

54 AV Dicey, ‘Can English Law be Taught at Universities?’ (Lecture, All Souls College, 21 April 1883), cited i David Sugerman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in William Twining (ed), Legal Theory and Common Law (Basil Blackwell, 1986) 26, 30.

WHEN ASSAULTS ON THE RULE OF LAW, SEPARATION OF POWERS AND ACCESS TO JUSTICE BECOME A PRESENT-DAY REALITY

NIKKI CHAMBERLAIN*

The rule of law.1 The separation of powers.2 Access to justice.3 These are all fundamental principles which underpin a democratic common law legal system and are imperative to its viability. Although these principles are taught in law schools across the country, for some students they may be little more than theoretical buzz words removed from one’s everyday reality. However, throughout history, there have been attempted and actual assaults on these principles and, in this respect, the role of the academic is crucial.

Academics hold the unique position of being able to act as an informed ‘critic and conscience’ of society unencumbered by restraints which may prohibit others from speaking-out, whether that be for professional, political, social, commercial, or economic reasons.4 They are ‘constitutional actors’ who scrutinise ‘claims to the constitutionality of political action’5 and equip others with ‘… the knowledge necessary to take part in the exercise and scrutiny of public power’ 6 Specifically, they provide ‘fact-checking’ and ‘accountability’7 functions to ‘promote better decision-making by both government actors and voters’.8

* Nikki Chamberlain is a Senior Lecturer in the Faculty of Law, University of Auckland.

1 Matthew S R Palmer and Dean R Knight, The Constitution of New Zealand: A Contextual Analysis (Bloomsbury Publishing, 1st ed, 2022) 30–1: The ‘rule of law’ ‘[a]t its most basic … expresses the ideal that it is the law itself which should rule rather than those individuals who make, administer or interpret the law’

2 ATH Smith ‘The Constitutional Status of the Senior Judiciary and the Courts in New Zealand’ in Sam Bookman et al (eds), Pragmatism, Principle and Power in Common Law Constitutional Systems: Essays in Honour of Bruce Harris (Intersentia, 1st ed, 2022) 218–19: The ‘separation of powers’ refers to the legal principle that the three branches of government (the executive, the legislative and the judiciary) are intended to act independently and provide accountability for the powers held by the others.

3 See New Zealand Law Society, Access to Justice and the Rule of Law (Factsheet) 1 <https://www.lawsociety.org.nz/assets/LawReform/Rule-of-law/RoL_Factsheet_Access-to-Justice-and-rule-of-law.pdf>; ‘access to justice’ refers to the legal principle that citizens should be able to access the law, legal representation and the courts when needed. The New Zealand Law Society states that ‘[a]ccess to justice is essential to the rule of law. If everyone is to be subject to the law and benefit from the laws which protect them, they must also be able to access legal advice, as well as the courts and other resolution processes’.

4 Education and Training Act 2020 (NZ) s 268(2)(d)(i)(E).

5 Liora Lazarus, ‘Constitutional Scholars as Constitutional Actors’ (2020) 48(4) Federal Law Review 483, 490.

6 Sam Bookman, ‘Constitutional Scholars and the Unwritten Constitution: Interpreters, Reformers and Communicators’ in Bookman et al (n 2) 313.

7 Ibid 316–7.

8 Lazarus (n 5) 483; Vicki C Jackson, ‘Knowledge Institutions in Constitutional Democracies: Of Objectivity and Decentralization’, Harvard Law Review Blog (Blog Post, 29 August 2019) <https://harvardlawreview.org/blog/2019/08/knowledge-institutions-in-constitutional-democracies-of-objectivity-anddecentralization/>; Vicki C Jackson, ‘Legal Scholarship and Knowledge Institutions in Constitutional Democracy’ (Summer 2019) Association of American Law Schools Newsletter 1, cited in Bookman et al (n 2) 313.

Unfortunately, we are living in a time where the role of the academic in drawing attention to assaults on the rule of law, the separation of powers and access to justice, appear particularly acute. And, this is not just overseas, but on our shores as well. This year, I had the regrettable opportunity to highlight an attempted assault on these principles in a Bill that was tabled in the New Zealand Parliament.9 I discuss below my concerns as to the Bill’s intended and unintended consequences. I conclude with brief comments about the academic’s role in ensuring that democratic constitutional theory plays out in reality.

I PROPOSED RETROSPECTIVE LAW INTERFERES WITH LIVE CLASS ACTION

On 31 March 2025, a Bill was introduced in the New Zealand Parliament which contains a retrospective provision that specially names and interferes with a live class action which has been in the New Zealand courts since 2021.10 This retrospective provision, if enacted, amends the remedial consequences for conduct at issue in the class action for the benefit of two Australian-owned defendant banks to the detriment of approximately 170,000 New Zealand plaintiff class consumers.11

In summary, the representative plaintiffs claim that ANZ Bank New Zealand Limited (‘ANZ’) and ASB Bank Limited (‘ASB’) breached lending disclosure requirements in the Credit Contracts and Consumer Finance Act 2003 (NZ) (‘CCCFA’).12 ANZ and ASB voluntarily paid approximately $35 million and $8.1 million respectively for similar claims made by the New Zealand Commerce Commission. However, these payments did not cover the full extent of the breaches under the CCCFA which could amount to hundreds of millions of dollars. The class action, underwritten by third-party litigation funders, seeks damages for the unremedied breaches of the CCCFA

The applicable remedial provision is s 99(1A) in the CCCFA which provides that if a lender, such as a bank, breaches disclosure requirements, then the consumer is not liable for ‘the costs of borrowing in relation to any period which the creditor [bank] has failed’ to comply with the disclosure provisions. The costs of borrowing include any or all credit fees, default fees and interest charges for the period of breach.

In December 2019, the CCCFA was amended to provide that damages for breach of the disclosure requirements for lending made after 20 December 2019 can, on the lender’s application, be ‘extinguished or reduced to an amount specified by the court’ if the court considers it ‘just and equitable’ that an order be made.13 The amendment contains factors the court must consider in exercising its

9 Credit Contracts and Consumer Finance Amendment Bill 2025 (‘Credit Bill’).

10 Simons & Ors v ANZ Bank New Zealand Limited & ASB Bank Limited [2022] NCHC 1836.

11 See Credit Bill (n 9) sch1 cl 15; Explanatory Memorandum, Credit Contracts and Consumer Finance Amendment Bill 2025 (Cth) 3.

12 For more information about the background of the proposed retrospective law, see Nikki Chamberlain, ‘Proposed Retrospective Law Interferes with Live Class Action for the Benefit of Two Australian Banks’ (2025) New Zealand Law Journal 127; Nikki Chamberlain, ‘Proposed Retrospective Law Impinges on Equality under the Rule of Law: A Response to Professor Philip A Joseph KC’s Rejoinder’ (2025) New Zealand Law Journal 177.

13 Contracts and Consumer Finance Act 2003 (NZ) s 95A.

discretion, including, for example, the role s 99(1A) has in providing incentives for compliance with the CCCFA, the extent and reasons for any breaches, and the extent to which any person has suffered any loss or damage caused by the breach.14 Importantly, lending made up to 20 December 2019 remains subject to the remedial provisions from the original wording of the CCCFA in other words, the banks are liable for any or all borrowing costs during the time of breach.

However, the proposed retrospective provision in the Bill would empower the court in the class action to ‘extinguish or reduce’ the remedy to an amount specified by the court if it is ‘just and equitable’ that an order be made based on the factors contained in s 95B of the CCCFA. 15

II REQUIREMENTS FOR ENACTING RETROSPECTIVE LAWS

Retrospective laws should only be enacted in exceptional circumstances. The Legislation Act 2019 (NZ) expressly states that ‘[l]egislation does not have retrospective effect’ unless the specific legislation provides otherwise.16 The cabinet-endorsed Legislation Design and Advisory Committee’s Legislation Guidelines states under the heading ‘[t]he presumption against retrospectivity’ that ‘[l]egislation should not affect existing rights … [t]his presumption is part of the rule of law’.17 It goes on to state that retrospective law is ‘rare’ and that ‘[s]uch legislation needs to be justified as being in the public interest and impairing the rights of litigants no more than is reasonably necessary to serve that interest’.18

III RESPONSE TO ARGUMENTS IN SUPPORT OF THE RETROSPECTIVE LAW

Proponents of the retrospective law argue that the amendment is necessary to ‘correct an anomaly in the law’,19 to ensure the ongoing viability of the banking sector in New Zealand20 and to get rid of a disproportionate remedy when the consumers have not suffered any harm.21 However, these arguments, which attempt to minimise the impact of the retrospective provision, can all be answered without its enactment. Further, and more concerningly, the proponents’ narrow framing of the issues fail to consider the wider ramifications in enacting the retrospective provision for the rule of law, the separation of powers and access to justice.

In response to the specific arguments raised, first, the existing s 99(1A) remedial provision that applies in the class action is not ‘an anomaly of the law’. It was enacted after the Global Financial Crisis to incentivise lenders to self-regulate their disclosures by imposing punitive consequences if they fail

14 Ibid s 95B.

15 Credit Bill (n 9) sch 1 cl 15.

16 Legislation Act 2019 (NZ) ss 9, 12.

17 Legislation Design and Advisory Committee, Legislation Guidelines: 2021 Edition (Legislation Guidelines, 2021) ch 4 [4.7].

18 Ibid ch 12 [12.2].

19 See New Zealand Banking Association, Oral Submission to the Finance and Expenditure Select Committee, Finance and Expenditure Select Committee's Inquiry into the Credit Contracts and Consumer Finance Amendment Bill 2025 (16 July 2025).

20 The Treasury, Parliament of New Zealand, Regulatory Impact Statement 1 (‘Impact Statement’).

21 Philip Joseph KC, ‘When Retrospective Law is Unobjectionable’ (2025) New Zealand Law Journal 131–2.

to do so.22 In this respect, consumer legislation typically incentivises lenders to invest in their systems so that consumers are protected. The remedial provision is a settled right that was passed by the government of the day by 113 votes in favour and only 7 votes opposed. The Minister of Consumer Affairs commented during the third reading debate on the robust consultation undertaken when designing the law. He stated ‘[t]hanks are also due … to the large number of stakeholders who have been involved throughout the credit review and who have made submissions on both the exposure draft and the legislation.’23

The arguments about the ongoing viability of New Zealand’s banking sector are questionable. There are only two defendants in the class action being Australian banks: ANZ and ASB. New Zealandowned lenders are not impacted in the current class action. Any other breaches of the remedial provisions between 2016 to 2019 are highly unlikely to give rise to claims against other lenders because of the limitation provisions in the CCCFA. In any event, this concern can be answered by inserting a long-stop provision prohibiting further claims without interfering with the live class action. Further, the Regulatory Impact Statement (‘RIS’) filed in support of the Bill, concedes that the current law’s impact without the retrospective amendment ‘… on ANZ and ASB is significant but probably not existential’ and ‘it does not involve a direct cost to the New Zealand economy’.24 This is not the language of extraordinary peril creating exceptional circumstances that would justify the enactment of a retrospective law. In support, ANZ and ASB refused a settlement offer from the representative plaintiffs to settle the class action for NZD$300 million which would not have resulted in an ‘existential outcome’ based on their profit margins.25 ANZ and ASB reported profits of approximately NZD$2.1 billion and NZD$1.4 billion last year alone respectively26 (and, their parent companies recorded profits of AUD$6.5 billion and AUD$9.5 billion last year respectively). ANZ and ASB rejected the settlement offer.

Finally, the CCCFA’s remedial provisions for breach of disclosure requirements were not designed to compensate individuals for their loss this is an incorrect measure. The remedial provisions were designed to impose punitive consequences on lenders who breach their disclosure obligations. This is not a mistake in the Act; it was a legislative choice to incentivise lender compliance given the power disparity between consumers and lenders. Why would a bank spend money on adhering to regulatory compliance obligations if the punishment for not doing so does not justify the compliance expense? In support, in 2019, the Commonwealth of Australia’s Royal Commission produced a final report titled The Royal Commission into Misconduct in the Banking, Superannuation and Financial

22 LPF Group, Oral Submissions to the Finance and Expenditure Select Committee, Finance and Expenditure Select Committee's Inquiry into the Credit Contracts and Consumer Finance Amendment Bill 2025 (16 July 2025).

23 New Zealand, Parliamentary Debates, House of Representatives, 27 May 2014, 699 (Scott Simpson).

24 Impact Statement’ (n 20) 7.

25 ‘ASB Rejects Offer to Settle Class Action Lawsuit for More than $300m’, RNZ News (online, 19 July 2025) <https://www.rnz.co.nz/news/business/567377/asb-rejects-offer-to-settle-class-action-lawsuit-for-more-than-300m>.

26 See ANZ, Annual Report (Report, 2024) <https://www.anz.com.au/content/dam/anzcom/shareholder/ANZGHL-2024-Annual%20Report.pdf>; ASB, Disclosure Statement and Annual Report (Report, 30 June 2024) < https://www.asb.co.nz/documents/disclosure-statements/annual-report-june-2024.html >.

Services Industry which began by making four observations.27 Relevantly, observations relating to lender misconduct includes:28

[First] … in almost every case, the conduct in issue was driven not only by the relevant entity’s pursuit of profit but also by individuals’ pursuit of gain, whether in the form of remuneration for the individual or profit for the individual’s business. Providing a service to customers was relegated to second place. Sales became all important …

Fourth, too often, financial services entities that broke the law were not properly held to account. Misconduct will be deterred only if entities believe that misconduct will be detected, denounced and justly punished. Misconduct, especially misconduct that yields profit, is not deterred by requiring those who are found to have done wrong to do no more than pay compensation …

The Australian community expects, and is entitled to expect, that if an entity breaks the law and causes damage to customers, it will compensate those affected customers. But the community also expects that financial services entities that break the law will be held to account. The community recognises, and the community expects its regulators to recognise, that these are two different steps: having a wrongdoer compensate those harmed is one thing; holding wrongdoers to account is another. (Emphasis added).

IV INTENDED AND UNINTENDED CONSEQUENCES OF PROPOSED RETROSPECTIVE LAW

If passed, the consequences of the proposed retrospective law-change are grave. First, as the proponents of the retrospective law are no doubt aware, the practical implications of its enactment would severely increase the legal costs and time taken in the class action the calculation of damages will be subject to a substantial increase in evidence to the detriment of class members and the litigation funders. The increased costs may even impact the viability of litigation funding in the class action itself. It will definitely change the risk profile of the class action proceeding and the projected recovery. Lon Fuller considers that retrospective legislation can undermine human dignity because it offends the requirement of certainty in the law that people rely upon.29 In this situation, the dignity of both class members and litigation funders who relied on certainty in the law when commencing proceedings are at issue.

Second, the proposed retrospective law-change undermines the rule of law and the certainty of outcome in enforcing legal rights for those consumers seeking enforcement through the courts. To retrospectively alter rights and remedies that were granted with overwhelming support is to pull the figurative legal rug out from under class members and funders. We need to be aware of what message New Zealand will send to the rest of the world if this proposed retrospective law is enacted. It sends a message about powerful industry lobbying efforts versus how we value the rule of law, access to justice

27 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Final Report, February 2019) vol 1.

28 Ibid 2–3.

29 Lon L Fuller, The Morality of Law (Yale University Press, 1964) 162.

and democracy. Enacting retrospective law that interferes with a specific live class action sets a dangerous precedent. It shows that the power of lobbying can take away rights and remedies under legitimately enacted laws. In this respect, there are no other retrospective laws in New Zealand which specifically names a live proceeding between private parties in which it changes rights and/or remedies.

Third, the proposed retrospective law-change may collaterally hamper access to justice in future cases. Litigation funders serve a function in society by enabling small players to pursue a remedy against large commercial interests in a system where they could not do so if acting alone. Funders require legal certainty to measure risk accurately. If governments can change the law midstream to favour defendants, particularly in high-stakes regulatory cases, funders will likely think twice before underwriting similar claims in the future. Why would a funder risk funding litigation to improve access to justice for those who cannot afford litigation themselves if the government can change the law midway through a proceeding? What message does it send to the market if the government can change laws that are at the heart of proceedings before the court? It creates substantial risk and uncertainty and those who suffer are those most vulnerable who rely on funders to vindicate their rights.

Fourth, the principle of ‘equality under the law’ requires that those who breach the law be treated equally. This is why I query the reasons for giving special treatment to the two defendants in the live class action by changing the measure of their remedial outcome. Other defendants in active litigation do not get the same consideration or intervention from the government. Does this mean that litigants with significant resources as opposed to smaller, less resourced litigants, have the right to get their actions that infringe the law excused by lobbying? There is a reason for the principle of separation of powers. As Palmer and Knight state:30

[a]ny conception of the rule of law is intimately bound up with the constitutional doctrines of the separation of powers and judicial independence. The separation of powers is a necessary … condition for the rule of law. If a person who makes or executes law interprets the law, then the meaning of the law is likely to reside in that person’s intention at the time it is interpreted for the purposes of a specific case. The lawmaker/executor would be able to retrospectively identify in the law ‘what I meant at the time’, even if that was not evident in the legal text at the time it was made or the time it was interpreted. This combination of making and applying law would be contrary to the rule of law. The meaning of the law would become that which the maker and executor later deems, potentially arbitrarily, to be correct rather than a meaning that resides in the law itself. Law would not rule; it would have no independent meaning. The lawmaker and applier would rule, arbitrarily, without independent check by the law itself.

In addition, notably, several banks have settled with the Commerce Commission for most of their breaches of the disclosure requirements under the CCCFA. For example, in 2023, Kookmin Bank refunded borrowing costs of approximately $11 million to customers for most of their disclosure breaches.31 There is no suggestion that Kookmin Bank should be entitled to claw back these funds. Why should ANZ and ASB benefit from the proposed retrospective law, whereas other banks that have paid

30 Palmer and Knight (n 1) 164.

31 Commerce Commission and Kookmin Bank, Settlement Agreement between Commerce Commission New Zealand and Kookmin Bank (Settlement Agreement, 30 June 2023) <https://comcom.govt.nz/__data/assets/pdf_file/0014/321062/KookminBank-Settlement-agreement-3-July-2023.pdf>.

for most breaches do not? If enacted, this law change would be unfair to any bank that has made restoration for most of their disclosure breaches.

Finally, as John Prebble et al note, the legislature should act cautiously when enacting retrospective legislation as it could be ‘looked at with suspicion and could begin to undermine its own sovereignty’.32 They further state that:33

[t]his potential emerges when we consider the foundation of Parliament’s current supremacy. Countries that adhere to the Westminster constitutional system, in which legislation is supreme, are saying that they trust Parliament not to abuse its legislative power …

New Zealand, along with other countries that allow Parliament to have supreme lawmaking power, has decided that it will repose its trust in Parliament as opposed to the judiciary. This choice is reasonable enough: it is easy to defend a system where important decisions reflect the will of the population as a whole, albeit channelled through elected representatives. Nevertheless, the choice begins to seem less reasonable if it becomes apparent that Parliament cannot be trusted to legislate in a rational manner after all.

The government must sufficiently explain the exceptional circumstances that justify proposed retrospective laws if they are to be considered to act rationally, impartially and fairly. It has not done so to date.

V ROLE OF ACADEMIC IN BRIDGING GAP BETWEEN THEORY AND PRACTICE

In the current political climate, the academic maintains a crucial role in addressing the practical ramifications and consequences of proposed laws. Unless professionally engaged to act on behalf of a client, academics should maintain intellectual independence free from political, commercial or social pressure. Academics have a responsibility to engage in public discourse and to question and critique policies put forward by commercial and political interests. In this respect, concepts like the rule of law, the separation of powers and access to justice are not just virtuous theoretical principles, but are, in practice, fundamental to ensuring the continuing viability of our legal system, access to justice and, of course, democracy itself.34 This article demonstrates the importance of the academic in holding power to account to maintain these foundational principles.

32 John Prebble et al, ‘Retrospective Legislation: Reliance, The Public Interest, Principles of Interpretation and The Special Case of Anti-Avoidance Legislation’ (2002) 22(2) New Zealand Universities Law Review 271, 297–8.

33 Ibid.

34 For more on this topic, see Nikki Chamberlain, Submission to Finance and Expenditure Select Committee, New Zealand Finance and Expenditure Select Committee on the Proposed Retrospective Law in the Credit Contracts and Consumer Finance Amendment Bill (21 June 2025) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5316859>.

When Assaults on the Rule of Law, Separation of Powers and Access to Justice Become a Present-Day Reality

Postscript as at 22 October 2025:

After writing this article, two important developments have occurred. The New Zealand Parliamentary Select Committee unanimously recommended to the New Zealand government to delete the proposed retrospective law in the Bill. The government has accepted this recommendation. ASB has entered into a settlement agreement in the class action for NZ$135.6 million which is subject to court approval. The class action claim is still active against ANZ.

CHILDREN, GAZA AND THE RELEVANCY OF INTERNATIONAL LAW

NOAM PELEG*

Gaza is a ‘horror show’ said the UN secretary general, António Guterres, at an address to the UN Security Council on 22 July 2025.1 Scrolling through my social media feed on that day, all I could see was pictures of children dying of hunger. I see videos of children who were gunned down with sniper bullets or by artillery when they were standing in line, trying to get food for themselves or their families at the death zones which Israel has established at the southern part of the Gaza Strip and has given them the Orwellian name ‘humanitarian aid distribution zones’.2 These children, and their families, are starved to death by Israel, as part of its genocide against Palestinians in Gaza.

Israel has been blocking the delivery of food or medicine into Gaza since March 2025, when it broke the ceasefire deal. This includes baby milk and baby formula,3 leaving babies to die of malnutrition. Children that will physically survive this man-made catastrophe will suffer from developmental impairments for the rest of their lives.

Of the 2.3 million people who lived in Gaza in October 2023, half were children under the age of 18. Since Israel launched the genocide against Gaza, it killed, according to conservative estimations, 19,000 children,4 with thousands more buried under rubble or gone missing. On average, 30 children have been killed every day since 7 October, or one child every 45 minutes. As of May 2025, it is estimated that over 10,000 children have lost one or more siblings. 17,000 children have lost both parents, and an additional 22,000 children have lost one parent.5 Tens of thousands of children have lost

* Noam Peleg is an Associate Professor in the Faculty of Law & Justice, UNSW Sydney and an Associate at the Australian Human Rights Institute. This article is adapted from the Yoliswa Dwane Lecture delivered by Associate Professor Peleg in Cape Town, South Africa. The full lecture transcript is cited here: Noam Peleg, ‘The War on Palestinian Children’ (Yoliswa Dwane Lecture, University of Cape Town, 9 May 2025) <https://groundup.org.za/article/yoliswa-dwane-lecture-war-on-palestinian-children/>

1 Peter Beaumont, ‘Global Outcry Grows Over Israel’s Killing of Starving Civilians in Gaza’, The Guardian (online, 23 July 2025) <https://www.theguardian.com/world/2025/jul/22/israel-bombs-who-facilities-in-gaza-as-global-outcry-grows>.

2 Nir Hasson et al, ‘“It's a Killing Field”: IDF Soldiers Ordered to Shoot Deliberately at Unarmed Gazans Waiting for Humanitarian Aid’, Haaretz (online, 27 June 2025) <https://www.haaretz.com/israel-news/2025-06-27/ty-articlemagazine/.premium/idf-soldiers-ordered-to-shoot-deliberately-at-unarmed-gazans-waiting-for-humanitarian-aid/00000197ad8e-de01-a39f-ffbe33780000>; Dov Lieber and Anat Peled, ‘Why Israel’s Chaotic New Food Program in Gaza Has Turned So Deadly’, Wall Street Journal, (online, 20 July 2025) <https://www.wsj.com/world/middle-east/us-israel-gaza-aid-deaths12d3fb35?mod=hp_lead_pos7>.

3 William Christou and Malak A Tantesh, ‘“They’re Skin and Bones”: Doctors in Gaza Warn Babies at Risk of Death from Lack of Formula’, The Guardian (online, 5 July 2025) <https://www.theguardian.com/world/2025/jul/05/theyre-skin-and-bonesdoctors-in-gaza-warn-babies-at-risk-of-death-from-lack-of-formula>.

4 See Zeina Jamaluddine et al, ‘Traumatic Injury Mortality in the Gaza Strip from Oct 7, 2023, to June 30, 2024: A CaptureRecapture Analysis’ (2025) 405(10477) The Lancet 469.

5 UNICEF, ‘Statement by UNICEF Regional Director for the Middle East and North Africa: Edouard Beigbeder’, Unimaginable Horrors: More than 50,000 Children Reportedly Killed or Injured in the Gaza Strip (27 May 2025)

limbs or suffer from other physical injuries. If a child is lucky to be rushed to a hospital, they might be treated by a doctor, who is probably suffering from malnutrition themself,6 but this will likely be done without any pain killers or anaesthetic, even when undergoing amputations. This is not due to medical negligence, but because the Israel imposed blockade on Gaza means that medical supplies are running low or gone. Today, Gaza has the largest number of amputee children.

Palestinian children who live in territories controlled by Israel, whether it is in the Gaza Strip, the West Bank, Occupied East Jerusalem or other parts of Palestine, have experienced war, death, and misery for decades. International human rights law, including specific mechanisms that were created to protect human rights in times of peace and of armed conflict, and mechanisms that were designed to protect the rights of children, have failed them time and again. While the level of violence that Palestinian children in Gaza is experiencing is at record high, the brutal violence against them is not new.

In her book, Incarcerated Childhood and the Politics of Unchilding, Palestinian scholar Nadera Shalhub Kevorkian shows how Israel has been targeting Palestinian children since 1948. The book describes the assaults on children as a process of ‘unchilding’,7 arguing that Palestinian children are intentionally denied the opportunity to be children, or the ability to experience their childhood in an environment free of colonisation, occupation, domination, humiliation, and dehumanization.8 Ahed Tamimi, Jana Jihad Ayad, and Lama Yahya, write in the introduction to the book, Lived Resistance Against the War on Palestinian Children, that was published a few months ago:

We the children of Palestine have known for as long as we can remember that occupation is fear. We have had to conquer our fear to create a life…The Zionist project to colonise our land was built on a foundation of racism and religious excuses. To that project we are the ‘others’, whose lives are worthless, who can be killed, eliminated, humiliated, and denied dignity. Our land is seen as a land with no people, a land that can be stolen, used to cement the colonial project.9

On 26 January 2024, the International Court of Justice issued a set of preliminary orders in a case brought against Israel by South Africa under the Convention on the Prevention and Punishment of the Crime of Genocide. The Court ordered, among other things, that ‘Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance <https://www.unicef.org/press-releases/unimaginable-horrors-more-50000-children-reportedly-killed-or-injured-gaza-strip>; Mohamed A Hussein and Mohammed Haddad, ‘Gaza’s Stolen Childhood: Who Were the Thousands of Children Israel Killed?’, Al Jazeera (online, 26 March 2025)

<https://www.aljazeera.com/news/longform/2025/3/26/gazas-stolen-childhood-the-thousands-of-children-israel-killed>.

6 United Nations Relief and Works Agency for Palestine Refugees in the Near East, ‘UNRWA Commissioner-General on Gaza: More Than 1,000 Starving People Reported Killed Since End of May’, Newsroom (online, 21 July 2025) <https://www.unrwa.org/newsroom/official-statements/unrwa-commissioner-general-gaza-more-1000-starving-peoplereported-killed>.

7 Nadera Shalhoub-Kevorkian, Incarcerated Childhood and the Politics of Unchilding (Cambridge University Press, 1st ed, 2019).

8 Ibid 16–7.

9 Ahed Tamimi et al, ‘Give Us Our Childhood, Give Us Our Lives’ in Heidi Morrison (ed), Lived Resistance Against the War on Palestinian Children (University of Georgia Press 2024) i, ix–x.

to address the adverse conditions of life faced by Palestinians in the Gaza Strip’.10 Israel disobeyed this order, as it did with respect to the other orders that the International Court of Justice issued, nor did it arrest and extradite its Prime Minister and Former Minister of Defence, who are wanted by the International Criminal Court for war crimes and crimes against humanity.11

This ‘war against children’12 should be contextualised within decades of dehumanisation of Palestinian children, where they were stripped from being considered as beneficiaries of the universal category of rights, and, using Hannah Ardent’s analysis of the conditions that enabled the genocide against Jewish people during World War II, from the category of the human itself.13

PROTECTING CHILDREN IN INTERNATIONAL LAW

The genocide of Gaza violates basic provisions of international law that aim to protect children in times of peace, and in times of hostilities. Modern international human rights law, and the laws of armed conflicts, were created and consolidated after World War II and the establishment of the United Nations, and led to the adoption of key instruments such as the Universal Declaration on Human Rights in 1949, the Genocide Convention itself, the Geneva Conventions in 1949 and the two 1966 covenants, the International Convention on Economic, Social and Cultural Rights, and the International Convention on Civil and Political Rights. Modern international children’s rights law was created in 1924, when the League of Nations adopted the Declaration of the Rights of the Child to combat the disproportionate impact that World War I had on children, especially the famine that spread through Europe and its devastating effect on children.14

Eglantyne Jebb, the founder of Save the Children, drafted this declaration and advocated for its adoption by the League of Nations. Jebb believed that a mechanism should be established to ensure that children are protected from wars and their aftermath including mass killings, the loss of family members, and other major traumas. Maybe naivëly, Jebb based her advocacy on the proposition that ‘common people could not bear to see children die without at least trying to help’.15

The 1924 Declaration, also known as the ‘Geneva Declaration’, includes 5 provisions.16 Provision 2 says ‘[t]he child that is hungry must be fed, the child that is sick must be nursed, the child that is backward must be helped…’.17 And provision 3 continues, ‘[t]he child must be the first to receive

10 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), (Provisional Measures) [2024] ICJ Rep 3, 29.

11 United Nations, ‘ICC Issues Arrest Warrants for Netanyahu, Gallant and Hamas Commander’, UN News (online, 21 November 2024) <https://news.un.org/en/story/2024/11/1157286>.

12 United Nations, ‘UN Security Council Meets on Israel-Palestine Crisis; Nowhere Safe in Gaza’ UN News (online, 30 October 2023) <https://news.un.org/en/story/2023/10/1143002>.

13 See generally Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1st ed, 1963).

14 Resolutions Adopted on the Reports of the Third Committee, GA Res 1386 (XIV), UN GAOR, 3rd Comm, 14th sess (20 November 1959) 19.

15 Philip Veerman, The Rights of the Child and the Changing Image of Childhood (Springer, 1st ed, 1992) 89.

16 Declaration of the Rights of the Child, opened for signature 26 September 1924 (entered into force 26 September 1924).

17 Ibid art 2.

relief in times of distress.’18 The 4th Geneva Convention Relative to the Protection of Civilian Persons in Times of War and its additional protocols from 1977, provide another layer of protection for children. It aims to outlaw direct attacks on children,19 deeming them as illegal military practice, and to ensure that children will get the relief that they need during armed conflicts.

International law also provides a dedicated, child-specific instrument: the 1989 UN Convention on the Rights of the Child 20 The Convention on the Rights of the Child is the most ratified human rights treaty, with all countries of the world, except the US, having signed and ratified it. It acknowledges the rights of children, starting with the basic right to life,21 in addition to the rights to survival and development,22 the right to an adequate standard of living,23 and the right to the highest attainable health.24 It also provides for the right of children to education, and for play and leisure.25 These rights apply to all children, without discrimination always.26 Wars do not suspend the applicability of the convention to all children and the duty of state parties that control children’s lives to protect these rights.27

The UN Committee on the Rights of the Child (the ‘Committee’), the body that monitors the implementation of the Convention, has expressed its concern that the genocide violates Israel’s core obligations to the children in Gaza on several occasions since October 2023. As early as 1 November 2023, the committee published a statement stating that Israel’s actions result in ‘[g]rave human rights violations against children … mounting by the minute in the Gaza Strip’, adding that ‘there are no winners in a war where thousands of children are killed’.28

In September 2024, the Committee issued its concluding observations about Israel’s compliance with the Convention. Reiterating its own jurisprudence, and following the advisory opinions of the International Court of Justice from 2024,29 the Committee said that the Convention on the Rights of the Child continues to apply even in times of armed conflicts and occupation, and that Israel is responsible for protecting the rights of all children under its effective control, including in Gaza.30 It also urged Israel to ‘[e]nsure safe, rapid and unimpeded access for humanitarian aid and

18 Ibid art 3.

19 See Geneva Convention Relative to the Protection of Civilian Persons in Times of War, opened for signature 12 August 1949, 75 UNTS 973 (entered into force 21 October 1950).

20 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

21 Ibid art 6(1).

22 Ibid art 6(2).

23 Ibid art 27.

24 Ibid art 24.

25 Ibid art 28–9, 31.

26 Ibid art 2.

27 See Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem (Advisory Opinion) [2024] ICJ Rep 1, 54 [186] (‘Advisory Opinion’).

28 See ‘UN Child Rights Committee Condemns Killing of Children in Gaza Strip’, United Nations Human Rights Office of the High Commissioner (Web Page, 1 November 2023) <https://www.ohchr.org/en/press-releases/2023/11/un-child-rightscommittee-condemns-killing-children-gaza-strip>.

29 See Advisory Opinion (n 27).

30 See Convention on the Rights of the Child: Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Israel, CRC/C/ISR/CO/5-6 (16 September 2024).

humanitarian workers throughout the Gaza Strip and to respect the humanitarian notification system with a view to maximizing the safety of aid operations and humanitarian workers’.31

Children have been victims of genocides and other war crimes since the middle of the 20th century, after the creation of a complex web of international law instruments that try to regulate the use of force, and try to protect civilians and to enshrine the protection of the basic right to life in every action taken by states. But children in South Africa, Sudan, Cambodia and the Balkans did not enjoy any of the protections that adults promised them. The question then is whether the war against Palestinian children in Gaza is any different.

This is the first genocide where victims livestream their own death and reality of destruction. It is the first genocide where criminals celebrate their own war crimes on social media, from soldiers on the ground to the head of state. It is the first genocide where ministers, members of parliament, other politicians and journalists openly take pride in their plans to ethnic cleans the population in Gaza, to use denial of food as a war tactic or to occupy and annex the territory of another population. It is a genocide committed by a state that has many supporters around the world, who actively support the genocide, while simultaneously claiming that they are victims of racial hatred.

It is also a genocide where key institutions of international law acted in real time. South Africa brought the case under the Genocide Convention to the International Court of Justice as early as December 2023, and by January 2024 the Court ordered a set of preliminary measures. Later in the year, the International Criminal Court issued arrest orders for war crimes and crimes against humanity against Israel’s Prime Minister and (as he was then then) Minister of Defence (alongside arrest warrants against 3 Hamas officials for the same crimes). But the genocide did not stop. Food is not coming in. The suspects haven’t been arrested. And the devastation has only intensified. Thousands of more children were killed by Israel, and no action was taken to stop this.

It seems that despite the universal acceptance of children’s rights, despite the knowledge about what is happening on the ground and the unprecedented actions by international institutions, antiPalestinian racism is stronger. It also shows that without states’ enforcement and compliance; international law can be rendered meaningless. This is not a new nor novel argument, but given the gravity of the atrocities, and the fact that modern international law was created to stop another genocide from happening, its failure is spectacular.

31 Ibid 19 [53(f)].

IVORY-WASHING OR EXPERTISE? THE RESPONSIBILITIES OF LEGAL ACADEMICS IN POLITICAL DISCOURSE

JOE MCINTYRE* AND LIZ HICKS#

Ivory-Wash /ˈʌɪv(ə)ri wɒʃ/ verb

Gerund or Present Participle: Ivory-Washing /ˈʌɪv(ə)ri wɒʃɪŋ/

1. The deliberate attempt to utilise the manner and form of academic institutions, writing and expert opinion to conceal unpleasant or incriminating public policy choices

"The Minister ivory-washed the issue by presenting the Doherty Institute Report as if it definitively determined the only valid path to opening up the Nation"

What is the proper role of academics in engaging with, and using their expertise to influence, public and political discourse? The benefit of such engagement is that the public and political actors can gain clear, informed and evidence-based insights from specialists in a given domain. These can support rational and defensible decision-making.

Yet there is a dark side. Expertise can be used to provide political cover for pre-determined decisions to present as inevitable and incontestable what are otherwise controversial evaluative judgments. In this manner, expertise can be used to obscure choices and deflect responsibility for them, and to exclude the public from discursive spaces rather than invite them in. This is the act of ‘ivorywashing’, whereby the manner and form of academic expertise is misused to conceal unpleasant or controversial political choices.

One of the challenges of confronting and revealing attempts at ivory-washing is that ivorywashing is more politically effective when the field is more esoteric or abstract (and the public has poorer knowledge of that field). This makes issues related to law particularly vulnerable, given the public’s generally low levels of legal literacy. Issues of law are generally of high public interest, yet the public largely lack the skills (and knowledge) necessary to navigate legal discourse. Legal academic expertise is routinely called upon to help explain and, in some cases, justify political choices. This creates a risk that such expertise may be used (in collaboration with the legal expert or otherwise) to improperly distort public discourse.

* Joe McIntyre is an Associate Professor of Law at the University of South Australia

# Liz Hicks is a Lecturer in Law at the University of Melbourne.

This article introduces the concepts of ‘ivory-washing’ and then explores it with reference to three illustrations from the last decade. Our aim is to highlight both the risks inherent in the use of the expertise of legal academics and professionals, and the ethical considerations that ought to underpin any engagement in public and political discourse.

I WHAT IS IVORY-WASHING?

Don’t be surprised if you are unfamiliar with the term ‘ivory-washing’. We first began to develop the concept in response to the political use of public health advice during the peak of the COVID-19 pandemic. In many regards, the role of ‘the expert’ in public health decision-making was one of the distinctive success stories of Australia’s pandemic response: in stark contrast to the UK1 and US,2 the ‘science’ drove policy, and Chief Health Officers became quasi-celebrities.3 Government officials (and the public) relied upon epidemiologists, public health and infectious diseases specialists to provide Australians with information in a time of great uncertainty.

Despite generally being a very effective approach, there were a number of challenges. Firstly, there were instances where ‘health advice’ was used to justify controversial decisions (such as banning citizens from returning from India)4 despite countervailing issues apparently being sidelined.5 Secondly, there were many instances where the expert advice was complex and highly contingent (for example, ATAGI advice regarding whether young people should use the Astra Zeneca or Pfizer vaccine shifted significantly within short periods of time).6 Challenges of these type were unavoidable given the highly dynamic and low information context of the period. Much of the public frustration of the period arose from the (unrealistic) public desire for experts to provide certainty about issues where certainty wasn’t possible.

At the time, our initial reflections were about how the pandemic exposed the flawed way the public views experts as participants in public discourse.7 We argued that there was a view (or perhaps

1 Ben Quinn, ‘England’s Covid Unlocking is Threat to World, Say 1,200 Scientists’, The Guardian (online, 16 July 2021) <https://www.theguardian.com/world/2021/jul/16/englands-covid-unlocking-a-threat-to-the-world-experts-say>.

2 Sheryl Gay Stolberg et al, ‘Trump Calls Fauci “A Disaster” and Shrugs Off Virus as Infections Soar’, New York Times (online, 19 October 2020) <https://www.nytimes.com/2020/10/19/us/politics/trump-fauci-covid.html>.

3 Hannah Ryan, ‘“He Makes it so Much Nicer”: Brett Sutton the “Silver Fox Lining” of Victoria's Second-Wave Lockdown’, The Guardian (online, 29 July 2020) <https://www.theguardian.com/australia-news/2020/jul/29/he-makes-it-so-much-nicer-brettsutton-the-silver-fox-lining-of-victorias-second-wave-lockdown>.

4 See Newman v Minister for Health and Aged Care [2021] FCA 517.

5 In that case one of the principal justifications was that the ‘hotel quarantine’ system was failing, yet there was evidence that the particular hotel being utilised was entirely unsuitable: Rhiannon Shine, ‘WA Hotel Quarantine Report Warned of “High-Risk” COVID-19 Dangers a Month Before Perth Lockdown’, ABC News (online, 27 April 2021) <https://www.abc.net.au/news/2021-04-27/wa-hotel-quarantine-report-warned-of-dangers-a-month-ago/100098824>.

6 James Massola and Michael Koziol, ‘ATAGI Urges All Sydney Adults to Strongly Consider AstraZeneca in Updated Advice’, The Sydney Morning Herald (online, 24 July 2021) <https://www.smh.com.au/politics/federal/atagi-urges-all-sydney-adults-toconsider-astrazeneca-in-updated-advice-20210724-p58cl7.html>; Natalie Grover, ‘Oxford/AstraZeneca Vaccine: Rare Blood Clot Syndrome has High Mortality Rate’, The Guardian (online, 12 August 2021) <https://www.theguardian.com/world/2021/aug/11/oxfordastrazeneca-vaccine-rare-blood-clot-syndrome-has-high-mortalityrate>.

7 See Joe McIntyre and Elizabeth Hicks, ‘The Role of Experts in Public Policy: Rethinking How We Understand Expertise’ (Working Paper, Social Science Research Network, 21 September 2021) 1 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5355273>.

hope) from the public that experts, because of their specialist knowledge and training, could access ‘pure truths’ on complex issues, and thereby remove the need for subjective opinion and evaluation.8 Within this flawed framing, disagreement between experts is deeply unsettling because it undermines the entire edifice. We argued that we should instead view expertise as more about process than outcome: when experts provide opinions, these are evaluative judgements that draw explicitly and demonstrably upon evidence and methodological expertise in informing those judgements. It follows that experts have no greater claim to ‘absolute truth’ in their opinions than politicians or anyone else. They do (or should), however, make explicit use of evidence, articulate their reasoning, and provide demonstrable (and challengeable) justifications.9 As we argued at the time, it ‘is a categorical error to think problems like vaccine roll-out or lockdowns have a “right” answer’.10 Complex social problems such as ensuring public safety in a pandemic involve multifactorial assessments of risk, and good expert opinions should explain why a particular position is preferred, and outline the evidence that informed that conclusion. Ultimately, we argued that the way litigation conceives of ‘expert witnesses’, as usefully different but still contestable, provides a useful analogy for how we should view expertise in public discourse. 11

While the pandemic provided a useful opportunity to reflect on how we think about expertise in public discourse, it also highlighted a darker practice: instances where expertise was used to shut down, rather than enhance, any reflection on public decision-making. For example, there were concerns that a 2021 Doherty Institute report (‘Doherty Report’) was improperly used by the Federal Government to limit political debate regarding how public health measures should be rolled back.12 We subsequently began to develop the idea of ‘ivory-washing', where the forms of expertise and academic discourse are perverted to disguise political agenda and activism. In these instances, politicians may seek to use expert advice (often without disclosing either the advice or the evidence upon which it is based)13 to foreclose public discussion on the merits of a decision, providing political cover rather than better informing the public. This is an unacceptable sleight of hand by political actors.

The term ‘ivory-washing’ is a play on the concept of ‘white-washing’. The figurative use of ‘white-washing’, which can be traced to the mid-18th century,14 involves the attempt to ‘stop people finding out the true facts about a situation’15 to create a more favourable public image. More recently this has evolved into a range of different ‘colour washes’ whereby deceptive practices are employed to present positive credentials on an issue while masking discriminatory or harmful practices. These

8 Ibid 2.

9 Ibid 4.

10 Ibid.

11 Ibid.

12 Katherine Murphy, ‘Why is Australia at Odds Over the Doherty Report and What Does it Say About Opening Up the Country?’, The Guardian (online, 23 August 2021) <https://www.theguardian.com/world/2021/aug/23/why-is-australia-at-odds-over-thedoherty-report-and-what-does-it-say-about-opening-up-the-country>.

13 Anna Davies, ‘Maybe Gladys Berejiklian Wanted to Provide Hope But Her Message on Easing NSW Restrictions Misled Us’, The Guardian (online, 16 August 2021) <https://www.theguardian.com/australia-news/2021/aug/16/maybe-gladys-berejilianwanted-to-provide-hope-but-her-message-on-easing-restrictions-misled-us>.

14 Douglas Harper, ‘Origin and History of Whitewash’, EtymOnline: Online Etymology Dictionary (Web Page, 2025) <https://www.etymonline.com/word/whitewash>.

15 Cambridge Dictionary (online at 21 July 2025) ‘whitewashing’(def 1).

include greenwashing16 (environmental issues), pink-washing17 (charitable issues), purple-washing (LGBTIQ+ issues) and sane-washing18 (minimising a person’s radical views to make them more broadly acceptable). For most readers, the most familiar of these ‘colour-washes’ is likely to be the concept of ‘greenwashing’ which was first developed in the mid-1980s.19 As it became recognised that consumers were willing to pay more for environmentally friendly products,20 companies became incentivised to mislead consumers regarding their environmental practices or the environmental benefits of a product or service.21 To ‘greenwash’, then, is to deceive consumers by presenting a product as more environmentally friendly than it really is.

Against this background, ‘ivory-washing’ can be seen as the practice of deceptively utilising the forms, style and credentials of expertise to provide political cover for controversial, discriminatory or harmful decisions or views. It stands in contrast to the responsible use of expertise in public discourse which, by providing an evidence-base and methodological experiences, aims to enhance the quality of that discourse. A person engages in ivory-washing when they misuse expertise and academic credentials to mislead or misdirect the public about an issue in a manner designed to provide political cover for an underlying evaluative judgment. This may involve exploiting different expectations about use of language (for example, scientific certainty in the context of climate change), exploiting public misunderstanding of the nature of the relevant domain (as frequently seen in commentary on law) or simply hiding a policy decision behind an inscrutable shield of ‘expert advice’ (as with the Doherty Report). At its heart, it involves misappropriating the legitimacy and social licence of ‘experts’ to unduly bolster controversial positions.

The challenge in confronting ‘ivory-washing’ is that the more esoteric or abstract the domain is (where it is more difficult for the public to form their own informed opinions), the more politically effective the practice is. This makes domains such as law, which require a high baseline degree of ‘legal literacy’22 to access, particularly vulnerable to exploitation in this way. And in turn, this makes it

16 See Joe Williams, ‘Greenwashing: Appearance, Illusion and the Future of “Green” Capitalism’ (2024) 18(1) Geography Compass 1, 4–13.

17 Lizz Schumer, ‘What Is Pinkwashing? Some Breast Cancer Awareness Products Exploit the Disease for Profit’, Good Housekeeping (Web Page, 18 February 2022) <https://www.goodhousekeeping.com/life/money/a39027557/what-is-pinkwashing-breast-cancer/>.

18 David Wilton, ‘Sane-Washing’, Word Origins (Web Page, 1 October 2024) <https://www.wordorigins.org/big-list-entries/sanewashing>.

19 Sebastião Vieira de Freitas Netto et al, ‘Concepts and Forms of Green-Washing: A Systematic Review’ (2020) 32(19) Environmental Science Europe 1, 2.

20 See Martin Grimmer and Timothy Bingham, ‘Company Environmental Performance and Consumer Purchase Intentions’ (2013) 66(10) Journal of Business Research 1945; Rui Guo, Lan Tao and Pan Gao ‘The Research on Green-Washing Brands’: Rebuilding Strategies and Mechanism of Brand Trust After Biochemical and Other Pollutions’ (2014) 10(9) BioTechnology 3270.

21 Netto (n 21) 7; See also Magdalena Zioło, Iwona Bąk and Anna Spoz, ‘Literature Review of Greenwashing Research: State of the Art’ (2024) 31(6) Corporate Social Responsibility and Environmental Management 5343, 5343.

22 See Archie Zariki, Legal Literacy: An Introduction to Legal Studies (Athabasca University Press, 2014) 21; Laura Ax-Fultz, ‘Igniting the Conversation: Embracing Legal Literacy as the Heart of the Profession’ (2015) 107(3) Law Library Journal 421, 427–30; See also Joe McIntyre and Jacqueline Charles, Submission No 92 to Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into Civics Education, Engagement, and Participation in Australia (29 May 2024) (‘Submission No 92’).

particularly incumbent upon legal academics and experts to ensure they are not co-opted into such endeavours.

II

IVORY-WASHING IN LAW

Law is particularly vulnerable to ivory-washing. Law is intricately entwined in nearly all matters of high politics and public understanding of law, and its methodologies is catastrophically low. As the recent rise of pseudo-law evidences,23 the co-option of mere legal form can be sufficient to convince people that a nonsensical position is in fact law.24

In this context, legal experts and academics can perform a number of very valuable functions in aiding public discourse on legal issues. The first is as ‘Legal Translator’, whereby they help the public understand legal issues by providing accessible and considered explanations of the law.25 Secondly, they can contribute to the public discourse as ‘Legal Commentator’, whereby they publicly offer their opinion of the legality or legal implications of a policy issue drawing directly upon their expertise and experience. Thirdly, they can act as ‘Legal Consultant’ to provide direct guidance/support to public decision-makers on matters within their expertise. Fourthly, they may be ‘Legal Political Actors’ appointed to public positions in areas within their expertise, through which they are expected to advocate for a given set of interests. Each of these forms of contribution are not only entirely proper, but the legitimacy (and utility) of their contribution is inherently intertwined with their legal expertise. In our view, this imposes certain obligations upon them to ensure that their contribution incorporates ethical considerations of professionalism, diligence and legal accuracy.

Of course, legal experts and academics are also citizens and have the right to participate in our democracy as an ‘Advocate’ on issues of interest to them. There is the risk, however, that in pursuing such advocacy the legal expert seeks to improperly bolster the persuasiveness of their advocacy by misappropriating the legitimising effect of their expertise. It is, at this point, that there is potential for the advocate to stray into the dangerous territory of ‘ivory-washing’, whereby political activities become disguised under a veneer of expertise.

23 See Harry Hobbs, Stephen Young and Joe McIntyre, ‘The Internationalisation of Pseudo-Law: The Growth of Sovereign Citizen Arguments in Australia and Aotearoa New Zealand’ (2024) 47(1) University of New South Wales Law Journal 309; Joe McIntyre et al, ‘The Rise of Pseudo-Law in South Australia: An Empirical Analysis of the Emergence and Impact of Pseudo-Law on South Australia’s Courts’ (Report, University of South Australia, 13 December 2024) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4996319>; Joe McIntyre, ‘Pseudo-Law and the Illusion of Legal Meaning’ (2025) Alternative Law Journal (forthcoming).

24 Joe McIntyre, ‘Pareidolic Illusions of Meaning: ChatGPT, Pseudo-Law and the Triumph of Form over Substance’ (Research Paper, Social Science Research Network, 16 May 2025) 29 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5181165>.

25 See, eg, Joe McIntyre and Jackie Charles, ‘Providing Accessible, Impartial and Accurate Information About the 2023 “Voice” Referendum’, Voice Legal Literary Project (Web Page, 18 October 2023) <https://www.referendum-voice.com.au/>.

In the following section, we outline three examples from the last decade that help illustrate this potential problem.26

The first example concerns the activities of the Judicial Power Project (‘JPP’) in the UK,27 which was funded by a right-wing Policy Exchange think tank.28 The JPP presents itself as a forum for academic discourse but is more accurately described as a conservative political activist group. The JPP has operated a highly sophisticated campaign that relies on a claim of legal expertise to bolster its critique of judges as activists who deviate from their preferred position.29 Perhaps the most visible illustration of this was in the wake of the UK Supreme Court decision in Miller No 230 concerning the prerogative to prorogue Parliament. That decision attracted significant commentary from legal academics, in attempts to inform, reflect and ‘shape the discourse and mythology’.31 The JPP was a particularly active contributor to this discourse, both providing a forum for commentary32 and producing substantive contributions most notable, a flagship essay by John Finnis entitled ‘The Unconstitutionality of the Supreme Court’s Prorogation Judgment’ 33 However, the JPP failed to disclose its role in advocating for the original decision to prorogue Parliament. In this way, it crossed into ivory-washing.

In April 2019, John Finnis had written an influential article in The Telegraph advocating for and justifying a prorogation of Parliament to avoid parliamentary scrutiny.34 That position was immediately controversial,35 but the argument swayed conservative politicians who followed this course

26 We note that there is no hard and fast rule in this characterisation, and that there may be legitimate disagreement as to the accuracy of these characterisations. Nevertheless, we are of the opinion that they help illustrate the phenomenon of which we are increasingly concerned

27 See ‘About the Judicial Power Project’ Judicial Power Project (Web Page, 2025) <https://judicialpowerproject.org.uk/about/> The JPP describes its task in the following terms: ‘The focus of this project is on the proper scope of the judicial power within the constitution. Judicial overreach increasingly threatens the rule of law and effective, democratic government. The project aims to address this problem restoring balance to the Westminster constitution by articulating the good sense of separating judicial and political authority.’; See Richard Enkins and Graham Gee, ‘Putting Judicial Power in its Place’ (2017) 36(2) University of Queensland Law Journal 375.

28 The JPP is a project of Policy Exchange, a leading conservative think tank: see ‘Publications: Policy Projects’, Policy Exchange (Web Page, 2023) <https://policyexchange.org.uk/publications/>. Policy Exchange holds itself out as the ‘leading think tank’ in the UK and it is certainly one of the most influential on the political right.

29 For an excellent overview of the way in which the JPP selectively approaches the task of criticising judicial power, see Paul Craig, ‘The Judicial Power Project and the UK’ (2017) 36(2) University of Queensland Law Journal 356, 357–60. For the way it drives a particular agenda regarding judicial theory, see Joe McIntyre, ‘The Six Myths of Judicial Independence’ (2025) 52(2) University of Western Australia Law Review 157, 172.

30 R (on the application of Miller) v The Prime Minister; Cherry and v Advocate General for Scotland [2019] UKSC 41.

31 Joe McIntyre, ‘The Digital Record of the Case of Prorogation: A Curated Collation’, Dublin City University Brexit Institute (Blog Post, October 2019) <https://dcubrexitinstitute.eu/2019/10/the-digital-record-of-the-case-of-prorogation-a-curatedcollation/>.

32 ‘Debating the Supreme Court’s Prorogation Judgment’, Judicial Power Project (Web Page, 29 September 2019) <https://judicialpowerproject.org.uk/debating-the-supreme-courts-prorogation-judgment/>.

33 John Finnis, ‘The Unconstitutionality of the Supreme Court’s Prorogation Judgment’, Judicial Power Project (Web Page, 2 October 2019) <https://judicialpowerproject.org.uk/the-unconstitutionality-of-the-supreme-courts-prorogation-judgment-johnfinnis/>.

34 John Finnis, ‘Only One Option Remains with Brexit Prorogue Parliament and Allow Us Out of the EU with No-Deal’, The Telegraph (online, 1 April 2019) <https://www.telegraph.co.uk/politics/2019/04/01/one-option-remains-brexit-prorogueparliament-allow-us-eu/>.

35 Stefan Theil, ‘Unconstitutional Prorogation’, UK Constitutional Law Association (Blog Post, 3 April 2019) <https://ukconstitutionallaw.org/2019/04/03/stefan-theil-unconstitutional-prorogation/>; Mark Elliott, ‘Brexit, the Executive and Parliament: A Response to John Finnis’, Public Law for Everyone (Blog Post, 2 April 2019)

in August that year. In the wake of the Supreme Court decision, conservative actors launched a ‘war on the judiciary’36 with Finnis and the JPP at the forefront of that critique. This was text-book ivorywashing: advocates frustrated with the defeat of their suggested policy utilising the forms and techniques of academic discourse to clothe their political activities with a veneer of legitimacy.

This modality of using legal expertise to provide political cover for what are fundamentally political questions was evident in Australia in the lead up to the 2023 ‘Voice’ referendum. Legal academics, particularly those at UNSW, were intimately involved in the processes that led to the referendum,37 and played prominent public roles in advocating for it. Nationally, legal academics played significant roles in both helping the public understand the proposal, and in advocating for and against the proposal.38 These roles encompassed each of the five forms of activity outlined above and were, generally, unproblematic. However, one particularly concerning approach involved the role of ‘legal risk’ in the acceptability of the proposal. The ‘No’ Campaign leaned heavily into the idea that the proposal was ‘legally risky’,39 and encouraged the public to treat ignorance as sufficient to vote against the proposal: ‘if you don’t know, vote no!’40 Unfortunately, the legal analysis of some conservative legal scholars41 was used to support this view.42 The overwhelming academic and legal opinion was that there was no such risk.43 However the ‘No’ Campaign used the cover provided by these conservative scholars, and the general lack of public understanding of the nature of the Constitution, to effectively deceive the public. This was not a case of acknowledging divergent academic viewpoints, but rather misusing public ignorance about the conventions of legal language to exploit that ignorance, with the barest modicum of academic cover.44 Rather than expertise being used to inform the public and improve

<https://publiclawforeveryone.com/2019/04/02/brexit-the-executive-and-parliament-a-response-to-john-finnis/>.

36 Monidipa Fouzder, ‘Prorogation Ruling Sparks New “War on the Judiciary”’, Law Gazette (online, 25 September 2019) <https://www.lawgazette.co.uk/news/prorogation-ruling-sparks-new-war-on-the-judiciary/5101564.article>.

37 See Megan Davis et al, ‘The Uluru Statement’ [2018] (Autumn) Bar News 40; Megan Davis and George Williams, Everything You Need to Know About the Uluru Statement from the Heart (University of New South Wales Press, 2021).

38 A collection of relevant articles and resources is collected at Joe McIntyre, ‘The Digital Record Collates Resources and Materials Into One Accessible Place’, Voice Legal Literacy Project (Blog Post, 2025) <https://www.referendum-voice.com.au/digitalrecord.html>.

39 William Partlett, ‘No, the Voice Proposal Will Not Be “Legally Risky”. This Misunderstands How Constitutions Work’, The Conversation (online, 6 September 2023) <https://theconversation.com/no-the-voice-proposal-will-not-be-legally-risky-thismisunderstands-how-constitutions-work-212696>.

40 Australian Electoral Commission, Your Official Yes/No Pamphlet (Government Pamphlet, 2023) <https://www.aec.gov.au/referendums/files/pamphlet/your-official-yes-no-referendum-pamphlet.pdf>.

41 Principally the article: James Allan, ‘Very High Risk, Very Low Reward: This Voice Referendum Deserves to Be Defeated’ (2023) 97(6) Australian Law Journal 411.

42 See ibid, quoted in Chris Meritt, ‘The Voice Referendum: The Argument for Voting No’, Rule of Law Institute (Web Page) <https://www.ruleoflaw.org.au/voice-the-case-for-voting-no/>.

43 See, eg, Robert French and Geoffrey Lindell, ‘The Voice: A Step Forward for Australian Nationhood’ (2023) 97(6) Australian Law Journal 1; Murray Gleeson, ‘Why I Support a Voice to Parliament’, Inside Story (Magazine Article, 21 July 2019) <https://insidestory.org.au/why-i-support-a-voice-to-parliament/>; Australian Institute, ‘An Invitation That Should be Accepted Leading Judges Support the Voice in Open Letter’ (Media Release, 1 August 2023) 1 <https://australiainstitute.org.au/post/leading-judges-support-the-voice/>.

44 Whether the conservative legal scholars were party to this ‘ivory-washing’ is unclear, but their work was used in this way. However, there appears to have been some embrace of this usage: James Allan, ‘I was the First to Say the Voice Would Fail’ Spector Australia (online, 14 October 2023) <https://www.spectator.com.au/2023/10/i-was-the-first-to-say-the-voice-wouldfail/>; John Storey, ‘Australia Censored Episode 2: Was The Voice Defeated Due To Misinformation With Professor James Allan’, Institute of Public Affairs (Web Page, 16 February 2024) <https://ipa.org.au/ipa-digital/australia-censored/australiacensored-episode-2-was-the-voice-defeated-due-to-misinformation-with-professor-james-allan>.

the quality of the debate, it was misused to diminish that quality, and contributed to the referendum becoming a ‘failure of democratic engagement’.45

Our third illustration is more recent, concerning the current ‘birthright citizenship’ debate in the US. The 14th Amendment, passed in response to the infamous decision of Dred Scott, 46 guarantees US citizenship to persons born in the US.47 The issue became headline news following an Executive Order made by President Trump on the day of his inauguration (20 January 2025) that sought to end birthright citizenship.48 Litigation was initiated in response to that order,49 and suddenly a string of conservative publications appeared,50 in an attempt to provide post facto ‘intellectual underpinnings’51 for the order. Perhaps the most notorious contribution was an article that featured prominently in the New York Times.52 This advocacy, which seeks to disrupt nearly 150 years of settled jurisprudence,53 has been subject to sustained critique from other academics.54 Kreis, Bernick and Gowder have, for example, described the evidence in support of these views as ‘gossamer-thin’55 and have argued that the conservative scholars are ‘penning meritless, even frivolous, justifications of a

45 See Submission No 92 (n 22).

46 Dred Scott v Sandford, 60 US (19 How.) 393 (1857).

47 United States v Wong Kim Ark, 169 US 649 (1898), note there are some limitations on this, but these are immaterial for the current given purposes.

48 ‘Protecting The Meaning and Value of American Citizenship’, The White House (Web Page, 20 January 2025) <https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/>.

49 Anthony Michael Kreis, Evan D Bernick and Paul A Gowder, ‘Birthright Citizenship and the Dunning School of Unoriginal Meanings’ (2025) 111 Cornell Law Review 1, 4 (forthcoming).

50 See, eg, Richard Epstein, ‘The Case Against Birthright Citizenship’, Civitas Institute, The University of Texas at Austin (Blog Post, 28 January 2025) <https://www.civitasinstitute.org/research/the-case-against-birthright-citizenship>; Ryan P Williams, ‘The Case for Limiting Birthright Citizenship’, The American Mind, Claremont Institute (Newsletter Article, 28 January 2025) <https://americanmind.org/features/the-case-against-birthright-citizenship-2/the-case-for-limiting-birthright-citizenship/>; John C Eastman, ‘Birthright Citizenship: Game On!’, The American Mind, Claremont Institute (Newsletter Article, 28 January 2025) <https://americanmind.org/features/the-case-against-birthright-citizenship-2/birthright-citizenship-game-on/>; Edward J Erler, ‘The Case Against Birthright Citizenship’, The American Mind, Claremont Institute (Newsletter Article, 28 January 2025) <https://americanmind.org/features/the-case-against-birthright-citizenship-2/>; Kurt T Lash, ‘Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause’ (2025) 101 Notre Dame Law Review (forthcoming).

51 John Yoo, ‘Challenging the Claremont View of Birthright Citizenship’, The American Mind, Claremont Institute (Online Article, 2 February 2025) <https://americanmind.org/features/the-case-against-birthright-citizenship-2/challenging-theclaremont-view-of-birthright-citizenship/>; See also John Yoo, ‘Birthright Citizenship Is American Citizenship’, The American Mind, Civitas Institute (Online Article, 24 January 2025) <https://www.civitasinstitute.org/research/birthright-citizenship-isamerican-citizenship>.

52 Randy E Barnett and Ilan Wurman, ‘Trump Might Have a Case on Birthright Citizenship’, New York Times (online, 15 February 2025) <https://www.nytimes.com/2025/02/15/opinion/trump-birthrightcitizenship.html>.

53 Note that the arguments against birthright citizenship can be traced back nearly 40 years as conservative scholars have agitated for a radical reinterpretation of the existing jurisprudence. The first such contribution was the book by Peter H Schuck and Rogers M Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (Yale University Press, 1985), though the argument gained little traction at the time. The issue was reanimated by activists at the Heritage Foundation in the mid-2000s: see Edward Erler, ‘Birthright Citizenship and the Constitution’, The Heritage Foundation (Online Article, 1 December 2005) <https://web.archive.org/web/20170223105124/http://www.heritage.org/the-constitution/report/birthright-citizenshipand-the-constitution>; Edward J Erler, Thomas G West and John Marini, The Founders on Citizenship and Immigration; Principles and Challenges in America (Bloomsbury Academic, 2007).

54 See, eg, (and this is only representative) Ilya Somin, ‘Birthright Citizenship A Response to Barnett and Wurman’, Reason (Online Article, 15 February 2025) <https://reason.com/volokh/2025/02/15/birthright-citizenship-a-response-to-barnett-andwurman/>; Evan Bernick, ‘88 Problems for Kurt Lash’, Reason (Online Article, 31 March 2025) <https://reason.com/volokh/2025/03/31/88-problems-for-kurt-lash/>; Evan Bernick, ‘Lash’s Last Stand’, Reason (Online Article, 1 April 2025) <https://reason.com/volokh/2025/04/01/lashs-last-stand/>; Kreis, Bernick and Gowder (n 51) 2.

55 Kreis, Bernick and Gowder (n 51) 7.

President’s desire to violate basic human rights’.56 In our view, this critique is entirely justified: the conservative scholars are engaging in an egregious exercise of ‘ivory-washing’, of providing legitimating cover for the President’s actions.

There are, of course, many other such examples that could be used to illustrate the concept of ‘ivory-washing’ in the legal context. One infamous example which jumps to mind is the so called ‘torture memos’ which sought to provide a legal justification for the use of torture as part of the ‘war on terror’.57 In this article we do not have space for a more fulsome exposition, rather we wish to highlight what is at stake here: a profound question about the ethical obligations of those undertaking legal scholarship on matters of political controversy.58

III THE ETHICAL OBLIGATIONS OF EXPERTS TO AVOID IVORY-WASHING

The relationship between evidence, authority and persuasion is at the heart of expertise. Experts speak from a position of authority because of their training, experience and education they know more about their subject area than the general public. An expert should rely upon the best available evidence to inform their decision, be transparent in their reasoning, and be willing to alter their decision in light of further evidence. But when an expert gives an opinion, they are making a judgement in light of their experience and the available evidence. And other experts may disagree. A good expert opinion will, therefore, set out the reasoning underlying the conclusion in an attempt to justify that position to others, and persuade them that it is the preferable position. But experts can and will disagree.

And this is why it is so disingenuous for democratically elected decision makers to hide behind ‘expert advice’ to disguise political choices and failings (and worse still, when they fail to disclose either the advice or the evidence upon which it was based). We must be mindful of any attempt by political actors to ‘ivory-wash’ their policy choices and in giving name to this phenomenon we hope this article helps guard against that risk.

But there is a further risk for academics when we engage with matters of high controversy: that we may be co-opted directly into this act of ‘ivory-washing’. And the avoidance of this requires that we be alert to our core ethical obligations. Kreis, Bernick and Gowder highlight this point in their observations on of the birthright citizenship controversy:

Good legal scholarship may bring scholars to diverging conclusions about legal history … the academy should not aspire to a universally held view of any subject for the sake of settlement. But, to splash wild, new theories into the pages of the popular press with inadequate engagement between other scholars,

56 Ibid 2.

57 On the background and arguments advanced, see David Cole, The Torture Memos: Rationalizing The Unthinkable (New Press, 2009). This use of legal reasoning subsequently led to significant critique of the lawyers and scholars involved: see Nancy V Baker, ‘The Law: Who Was John Yoo’s Client? The Torture Memos and Professional Misconduct’, (2010) 40 Presidential Studies Quarterly 750; David Cole, ‘The Sacrificial Yoo: Accounting for Torture in the OPR Report’, (2010) 4 Journal of National Security Law and Policy 455.

58 Kreis, Bernick and Gowder (n 51) 31.

shoddy cherry-picked quotes, and tapping into ambition instead of expert authority is inconsistent with doing steady, fair-minded, and nuanced work of quality.59

For us, this is the critical point. There is no such thing as politically neutral engagement with the law, and legal experts have every right to participate in political discourse. However, where they rely upon their expertise to legitimate their views (or allow others to do so), they have an obligation to ensure their contribution is consistent with the ethical and methodological constraints of the profession. This includes ensuring that their work is not used to obscure, obfuscate or degrade the quality of public discourse.

59 Ibid 34.

UNDERSTANDING AI TRANSPARENCY AND LITERACY: LESSONS FROM CONSUMER CREDIT REGULATION

JEANNIE MARIE PATERSON*

ABSTRACT

This paper is a reflection on what current aspirations to AI transparency and literacy might learn from scholarly research that has influenced credit regulation. It suggests that transparency and literacy are necessary in promoting safe and reasonable AI, but not sufficient. Research on how consumers use information and education in fields such as credit, tells us that in promoting safe and responsible AI, oversight of developers and deployers by well-resourced regulators will remain important. However, AI literacy can allow humans to engage confidently in policy debates about the role seemingly ubiquitous AI should play in society.

I INTRODUCTION

The theme of this collection may be read in different ways. This article seeks to illustrate the possibilities of scholarly research in informing the policy and practice of regulation. Its focus is on initiatives for improving transparency and literacy of artificial intelligence, supposedly to protect individuals in their dealings with AI and allow them to participate in the opportunities presented by that technology. It considers what might be included in initiatives to promote AI literacy, and also what such initiatives might hope to achieve. By reflecting on these issues, this article draws on scholarly research that has informed the policy and regulation of consumer credit. This research identifies the limits of assistance that can be provided to consumers by initiatives in disclosure and financial literacy, which have led to more responsibilities being placed on lenders for protecting consumers from overburdening debt or the mis-selling of credit. These insights suggest that initiatives such as AI transparency and literacy do not reduce the responsibilities of developers and the role for robust regulatory oversight in protecting humans from the recognised risks of harm from AI. This article further suggests that one of the most important functions of AI literacy is to create confidence for citizens to participate in decisions about the place of AI in their workplaces, homes and lives. In this sense, the work in the ivory tower of academia should support the capacity for civil society to inform public policy.

* Jeannie Marie Paterson is a Professor of Law and Director of the Centre of AI and Digital Ethics at the University of Melbourne.

II AI, GOVERNANCE AND LITERACY

AI can be defined as an ‘engineered system that generates predictive outputs such as content, forecasts, recommendations, or decisions, for a given set of human-defined objectives or parameters without explicit programming’.1 The category can include a range of techniques, including expert systems, predictive analytics, machine learning, large language models, and more recently, generative and agentic AI.2 From a specialised field of study, AI and automation have grown to affect almost all social domains, including business, government, education, entertainment, and households.

Whilst these developments bring opportunities, they also present risks including manipulation, bias, error, the erosion of privacy, misinformation, and the potential to undermine human skills and relationships. Countries are responding to these risks in different ways. The European Union has enacted an EU Artificial Intelligence Act (2024) (European Union) (‘EU AI Act’),3 covering matters of testing/auditing,4 and accountability/governance.5 In Australia, a key response to AI risk lies in voluntary or soft law standards, primarily the Voluntary AI Safety Standard, which covers similar themes.6 These instruments place expectations on developers and deployers of AI to ensure safe, effective and responsible AI. From the perspective of the individuals using or subject to AI, two key features of these governance frameworks are transparency and literacy.

A Transparency and Literacy for Responsible AI

Transparency and literacy work together in promoting responsible AI. Transparency obligations have a role in informing downstream providers and deployers of key operational characteristics and functional mechanisms of an AI system. They also assist regulators in oversight and monitoring,7 and inform humans of when they are viewing AI-generated content.8 Transparency is particularly important when humans are interacting with an AI system which they may not recognise as artificial.9

Despite its importance, transparency as a protection for individuals using or subject to AI is limited. AI transparency obligations assume human skills to make use of that information. People with a limited understanding of how AI works or little experience using AI may struggle to make sense of AI disclosures. Thus, an important complement to transparency in AI governance frameworks is AI literacy.

1 Department of Industry, Science and Resources, Safe and Responsible AI in Australia (Discussion Paper, June 2023) 5.

2 Ibid.

3 EU Artificial Intelligence Act (2024) (European Union) (‘EU AI Act’).

4 Ibid ch 9 s 3 art 74 [13(b)].

5 Ibid ch 7.

6 ‘Voluntary AI Safety Standard’, Department of Industry, Science and Resources (Web Page, 5 September 2024) <https://www.industry.gov.au/publications/voluntary-ai-safety-standard>.

7 Jeannie Marie Paterson, ‘Misleading or Deceptive AI: Why Transparency Provides the Baseline for Responsible AI in Consumer Transactions’ (2024) 18 Court of Conscience 113, 120.

8 EU AI Act (n 3) ch 4 art 50 [4].

9 Ibid.

Initiatives in AI literacy appear to be garnering support.10 The Digital Transformation Agency in Australia has provided guidance to support staff training across government entities on the responsible use of AI.11 Even in the US where there is no current appetite for Federal regulation of AI, President Trump has announced an initiative for AI literacy in schools: ‘[e]arly training in AI will demystify this technology and prepare America’s students to be confident participants in the AI-assisted workforce, propelling our nation to new heights of scientific and economic achievement.’12

There is a similar initiative in China, with a reported emphasis on systems thinking and innovation.13

The need for AI literacy training resonates with users of the technology. A recent survey from Professor Nicole Gillespie and KPMG found low trust in AI, despite increasing use.14 Training was identified as lacking:

• 36% feel they have the skills and knowledge to use AI appropriately;

• 24% have formal or informal training in AI or related fields; and

• 48% feel they can use AI tools effectively.15

These survey responses raise an important consideration in implementing AI literacy of the components that should be incorporated into AI literacy initiatives.

B What Should AI Literacy Involve?

AI literacy training is typically understood as encompassing a set of practical and critical skills. A review of existing (theoretical) literature by Davy Tsz Kit Ng et al, suggests AI literacy should (in practice) cover four domains: knowing and understanding AI, using and applying AI, evaluating and creating AI, and AI ethics.16 This approach means building an understanding of how AI works, the kinds of common uses, skills needed to use relevant AI tools, and an evaluation of AI risks.17 Ideally, the

10 See also EU AI Act (n 3) ch 1 art 4.

11 Digital Transformation Agency, ‘AI Policy Guidance and Training: Rounding Out a Responsible Approach for AI Adoption’, Digital Transformation Agency (Web Page, 10 October 2024) <https://www.dta.gov.au/blogs/ai-policy-guidance-and-trainingrounding-out-responsible-approach-ai-adoption>.

12 The White House, ‘Fact Sheet: President Donald J. Trump Advances AI Education for American Youth’ (Fact Sheet, 23 April 2025) <https://www.whitehouse.gov/fact-sheets/2025/04/fact-sheet-president-donald-j-trump-advances-ai-education-foramerican-youth/>

13 Global Times, ‘China Issues Guidelines to Promote AI Education in Primary and Secondary Schools’, Global Times (Web Page, 12 May 2025) <https://www.globaltimes.cn/page/202505/1333878.shtml>.

14 The University of Melbourne and KPMG, ‘Trust, Attitudes and Use of Artificial Intelligence: A Global Study 2025’ (Report, 2025) 1 <https://assets.kpmg.com/content/dam/kpmg/au/pdf/2025/trust-in-ai-global-insights-2025-australia-snapshot.pdf>.

15 Ibid.

16 Davy Tsz Kit Ng et al, ‘Conceptualizing AI Literacy: An Exploratory Review’ (2021) 2 Computers and Education: Artificial Intelligence <https://doi.org/10.1016/j.caeai.2021.100041>; see also Australian Government, ‘Guidance for Staff Training on AI’, Staff Training: Artificial Intelligence in Government (Web Page, 2024) <https://www.digital.gov.au/policy/ai/staff-training>.

17 Kylie Walker, ‘An AI-literate Community Will be Essential for the Continuity of Social Democracy’, Responsible AI: Your Questions Answered (Web Page, 2023) 20 <https://www.atse.org.au/media/wh2jbh0j/9-13-walker-an-ai-literate-communitywill-be-essential-for-the-continuity-of-social-democracy.pdf>.

approach should further encompass ethical reasons as to why we might seek to promote safe or effective responses to AI.18

Different people will want different levels of expertise around AI. Literacy training provided should be proportionate to the interest, understanding, and likely use of AI by those being trained, noting that at this time almost everyone will need some literacy to engage with an increasingly ubiquitous technology. Equally, skills in programming and software engineering will usually fall in a different category of training rather than literacy.

AI literacy, in the sense I have described, is undoubtedly important in enabling individuals to engage with this increasingly prevalent technology in a safe and responsible manner.19 For example, AI literacy will help people choose appropriate tools for a task. AI use policies in workplaces and schools are likely to resonate more when accompanied by an understanding of the risks being addressed by those policies. However, AI literacy training may also be seen as normalising the spread of AI into public and private life, presenting it as inevitable and immutable. It may also reinforce the idea that failings in the technology such as being misled by hallucinations, deep fakes, or erroneous and biased decisions lie with individuals rather than those responsible for designing and governing the technology. In this context, it is important to reflect on the limits of AI literacy as a response to AI risk and its role in empowering those using or subject to the use of AI. Here, there may be lessons from scholarly research on consumer protection within financial regulation, and from efforts in financial literacy.

III LITERACY AND TRANSPARENCY LESSONS FROM CONSUMER CREDIT REGULATION

Consumer credit protection law and policy has been strongly influenced by insights from studies in psychology and economics about how humans make decisions,20 and research on the constraining impact of socio-economic conditions on the reality of consumer choice.21 These studies show that providing information about loans to consumers does not typically enable consumers to make a well informed choice between the array of products offered to them. Disclosure (or transparency) is not an effective tool for better decision-making if consumers have low levels of functional22 or financial23 literacy. It is generally considered that Australian consumers often have low financial literacy.24

18 ‘Australia’s AI Ethics Principles’, Department of Industry, Science and Resources (Web Page, 2024) <https://www.industry.gov.au/publications/australias-artificial-intelligence-ethics-principles/australias-ai-ethics-principles>.

19 Walker (n 17) 20.

20 Kristine Erta et al, Applying Behavioural Economics at the Financial Conduct Authority (Occasional Paper No 1, April 2013) 14, 15.

21 See Therese Wilson, ‘Consumer Credit Regulation and Rights-based Social Justice: Addressing Financial Exclusion and Meeting the Credit Needs of Low-income Australians’ (2012) 35(2) University of New South Wales Law Journal 501.

22 See generally Organisation for Economic Co-operation and Development, Survey of Adult Skills First Results Australia (Country Note, 2013).

23 See generally ASIC, Financial Literacy and Behavioural Change (Report No 230, March 2011).

24 See ASIC, ASIC Stakeholder Survey 2013 (Report, September 2013) 28; see generally ANZ, ANZ Survey of Adult Financial Literacy in Australia (Report No 5, May 2015).

At this point, it might seem as though the answer lies in improving the financial literacy of borrowers. Financial literacy education usually covers understanding the features of credit, particularly interest rates, the operation of banking services, and budgeting.25 Financial literacy education is undoubtedly important for people in managing savings and credit. Credit fulfils an important role in society, allowing people to pursue their chosen life goals, including accessing goods, services, and housing. However, over-indebtedness can cause hardship and distress. There are also significant limitations on the potential for combining financial literacy education and disclosure to provide effective protection for consumers against unsuitable products and financial overcommitment.

Behavioural economics draws on psychology to provide insights into the way people really make decisions. These sights suggest that consumers face cognitive limitations to use information in the highly rational manner presumed by the neoclassical economic theory underpinning disclosure-based regulatory strategy.26 Studies in behavioural economics have found that in making decisions, consumers are poor at processing large amounts of information and consequentially tend to focus on a few key27 or ‘salient’ features,28 such as price or brand. Individuals tend to use ‘heuristics (shortcuts) to assess risk’,29 and be overly optimistic about their ability to avoid risk.

30

This research suggests that the combination of disclosure and financial literacy education may simply not be sufficient to ensure financial wellbeing.31 Consumers may still be overwhelmed by large amounts of information relating to different products, and over-optimistic about their ability to manage financial risks.32 These insights have had a significant influence on consumer credit regulation. In consumer credit protection law, there has been a shift from a model based on mandated information disclosure, or ‘truth in lending’,33 to one that places responsibilities on credit providers to protect the interests of consumers.34 Credit cards are a good example of this point. They involve a number of different features that consumers may choose between (e.g. fees, interest, points). Consumers may end up with high-cost options because they misunderstand the pricing mechanisms and overestimate their

25 See ASIC (n 23) 7–8.

26 See, eg, Robert A Hillman and Jeffrey J Rachlinski, ‘Standard-Form Contracting in the Electronic Age’ (2002) 77 New York University Law Review 429, 450–4; Russell Korobkin, ‘Bounded Rationality: Standard Form Contracts, and Unconscionability’ (2003) 70 The University of Chicago Law Review 1203, 1226–9.

27 Korobkin (n 26) 1226–9.

28 Ibid 1262.

29 Iain Ramsay, Consumer Law and Policy: Text and Materials on Regulating Consumer Markets (Hart Publishing, 2nd ed, 2007) 74.

30 Cass R Sunstein, ‘Behavioural Analysis of Law’ (1997) 64 University of Chicago Law Review 1175, 1188–9; Hillman and Rachlinski (n 26) 453–4; Geraint Howells, ‘The Potential and Limits of Consumer Empowerment by Information’ (2005) 32(3) Journal of Law and Society 349, 360.

31 See generally Lauren E Willis, ‘Alternatives to Financial Education’ in Gianni Nicoli and Brenda J Cude (eds), The Routledge Handbook of Financial Literacy (Routledge, 2021) 274; Tim Kaiser and Lukas Menkhoff, ‘Does Financial Education Impact Financial Literacy and Financial Behaviour, and If So, When?’ (2017) 31(3) The World Bank Economic Review 611.

32 Willis (n 31) 280; ASIC (n 23) 41; see also Australian Securities and Investments Commission v Latitude Finance Australia (No 2) [2024] FCA 1205.

33 National Consumer Credit Protection Act 2009 (Cth) (‘NCCPA’); Australian Securities and Investments Commission Act 2001 (Cth) pt 2 (‘ASIC Act’).

34 Jeannie Marie Paterson, ‘From Disclosure to Design: The Australian Regulatory Response to Mis-Selling to Consumer Investors by Financial Services Providers’ in Sandra Booysen (ed), Financial Advice and Investor Protection (Elgar, 2021) 165–89 <https://doi.org/10.4337/9781800884625.00021>.

ability to pay off the card on time.35 In response, credit providers in Australia are subject to responsible lending obligations, which means lenders must only advance credit if it is ‘not unsuitable’ for the borrower, having regard to their purposes and circumstances.36 The rationale behind these interventions is that credit providers have greater experience and expertise in such assessments.

Consumers’ ability to act on the insights of financial literacy education may also be stymied by an overall lack of financial choice. Consumers with low incomes may have limited capacity for saving and restricted options of the loans available to them.37 This means low-income consumers may understand that so-called payday loans carry high interest but have no alternative as they do not meet the criteria for borrowing from mainstream banks.38 High-cost loans may be the only option to lowincome consumers with a pressing financial need, such as a broken fridge or car.39 In these circumstances, disclosing cost is insufficient to protect consumers’ interests. A more effective, though controversial, approach may be imposing substantive limits on interest rates,40 such as those imposed in Australia for small loans.41 Albeit, this must be balanced against the underlying need for accessible and affordable credit for otherwise financially excluded consumers.42

In the light of these realities, Professor Lauren Willis has observed that an additional aspiration for financial literacy education may be ‘finance-informed citizens, who have the capacity for civic engagement that can create citizen-informed economic policies and financial regulation’.43 There are some lessons for efforts to regulate AI in this approach.

IV THE PURPOSES OF AI LITERACY

Obligations for AI transparency and commitments to AI literacy are important. However, they may not be entirely effective in ensuring humans use AI in a responsible manner and are protected from unsafe or harmful uses of AI by others. These initiatives are likely to be affected by the same behavioural biases and social economic limitations that undermine the ideas of disclosure and financial literacy as a solution to over indebtedness or hardship. For example, optimism bias may suggest to AI users that they can beat the odds and see through AI hallucinations. A preference for short term gain may lead AI users to break the rules on AI use applying to their workplace to meet a deadline or respond to other pressures.

35 See Oren Bar‐Gill, ‘Seduction by Plastic’ (2004) 98(4) Northwestern University Law Review 1373, 1375–6; Anthony Duggan, ‘Consumer Credit Redux’ (2010) 60 University of Toronto Law Journal 687, 697.

36 ASIC, Credit Licensing: Responsible Lending Conduct (Regulatory Guide No 209, 9 December 2019) <https://www.asic.gov.au/regulatory-resources/find-a-document/regulatory-guides/rg-209-credit-licensing-responsible-lendingconduct/>; see also ASIC, Product Design and Distribution Obligations (Regulatory Guide No 274, 10 September 2024) <https://www.asic.gov.au/regulatory-resources/find-a-document/regulatory-guides/rg-274-product-design-and-distributionobligations/>.

37 Willis (n 31) 281.

38 Duggan (n 35) 701–5; see generally Ronald J Mann, ‘Assessing the Optimism of Payday Loan Borrowers’ (2014) 21 Supreme Court Economic Review 105.

39 Wilson (n 21) 508–9.

40 Duggan (n 35) 701–5

41 See Revised Explanatory Memorandum, Consumer Credit Legislation Amendment (Enhancements) Bill 2012 (Cth) ch 4.

42 Wilson (n 21) 508.

43 Lauren E Willis, ‘Finance-Informed Citizens, Citizen-Informed Finance: An Essay Occasioned by the International Handbook of Financial Literacy’ (2017) 16(4) Journal of Social Science Education 16, 16.

Socio-economic realities may mean individuals cannot decline to have their credit worthiness assessed by AI or, in applying for a job, have their CV ranked by AI44 or even interviewed via an AI system.45

Of course, the design features of any AI disclosure or literacy program will affect how impactful they are. Consider, for example, a human interacting with a companion bot that encourages the human to upgrade to more expensive models or purchase gifts for the AI. The EU AI Act requires disclosure of AI chatbots’ artificial status if this is not otherwise apparent.46 Knowing the companion is AI may not impede romantic attraction, given that emotion trumps rationality. A level of literacy in the way a generative AI model produces language might have more effect. Much also depends on the form of the disclosure. People are more likely to be influenced by information that is not buried in the fine print but is salient and included as the headline promotion.47 Thus, for example, a popup notification when logging on and at regular intervals in the interaction may act as a check on impulsive reliance on the AI, and be more effective than a notice at the bottom of the screen.

We might also turn to the broader possible roles of AI literacy beyond technical competence or awareness of risk. Tanya Milberg observes critical thinking is at least necessary to evaluating AI outputs.48 CSIRO argues that AI literacy should prioritise inclusion and broad participation.49 Building on these ideas, an ambitious vision of AI literacy lies in aspirations for the equivalent of Lauren Willis’ financial informed citizens, namely AI informed citizens ‘who have the capacity for civic engagement that can create citizen-informed [AI] policies and regulation’.50 If we refer back to the statement on AI literacy from the White House, it doesn’t just talk about a capable coding workforce. It speaks to ‘confident participation’ in an AI future.51 Confidence is important. AI literacy should build informed AI citizens empowered to engage in debates about how AI is developed and deployed, prepared to be sceptical about its more grandiose claims, and committed to a vision of AI being used only so far as it is fair and just.

44 Holli Sargeant, ‘Algorithmic Decision-Making in Financial Services: Economic and Normative Outcomes in Consumer Credit’ (2023) 3 AI and Ethics 1295, 1301–2.

45 See generally Natalie Sheard, ‘Algorithm‐facilitated Discrimination: A Socio‐Legal Study of the Use by Employers of Artificial Intelligence Hiring Systems’ (2025) 52(2) Journal of Law and Society 269

46 EU AI Act (n 3) ch 4 art 50; see also Governor Gavin Newsom, ‘Governor Newsom Signs Bills to Further Strengthen California’s Leadership in Protecting Children Online’ (Media Release, 13 October 2025) <https://www.gov.ca.gov/2025/10/13/governor-newsom-signs-bills-to-further-strengthen-californias-leadership-in-protectingchildren-online/>.

47 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 661–3 [77]–[84].

48 Tanya Milberg, ‘Why AI Literacy is Now a Core Competency in Education’, World Economic Forum (Web Page, 22 May 2025) <https://www.weforum.org/stories/2025/05/why-ai-literacy-is-now-a-core-competency-in-education/>; see also Joseph E Aoun, ‘Here are 3 Ways Higher Education Can Prepare for the Generative AI Revolution’, World Economic Forum (Web Page, 2 May 2023) <https://www.weforum.org/stories/2023/05/3-ways-higher-education-can-prepare-for-generative-ai-revolution/>, identifying human literacy as our ‘edge’ over AI; see also ‘What You Need to Know about UNESCO's New AI Competency Frameworks for Students and Teachers’, UNSESCO (Web Page 3 September 2024) <https://www.unesco.org/en/articles/whatyou-need-know-about-unescos-new-ai-competency-frameworks-students-and-teachers>.

49 CSIRO, ‘Develop AI Literacy and Education Programs’, Diversity and Inclusion in AI Guidelines (Web Page) <https://research.csiro.au/diai/guidelines/develop-ai-literacy-and-education-programs/>; see also CSIRO, ‘Artificial Intelligence (AI)’, CSIRO Library Services (Web Page) <https://libguides.csiro.au/AI/evaluate>.

50 Willis (n 31) 16.

51 The White House (n 12).

V CONCLUSION

Theory and scholarly endeavour need not be divorced from practice. They can influence policy and the way in which ordinary people experience and express their legal rights. Credit regulation has been informed by scholarly insights from psychology, economics and social sciences. In turn, these initiatives have relevance for regulating AI and, in particular, initiatives for transparency and literacy. The lessons are that transparency is important to allow people to understand what they are dealing with and when AI is involved. Transparency over AI does not mean a fine print disclosure (or exclusion), but rather presenting salient information in a clear and accessible way. Transparency is only effective if people have some level of AI literacy. AI literacy should extend beyond providing a basic understanding of the general workings of the technologies to include information about risks and the capacity for critical, confident engagement with policy issues AI raises. Whilst literacy and transparency do not remove the need for robust regulation to reduce the risk of harms of AI, one of the important functions of literacy is to allow people to participate in debates about the scope of regulation and role for AI in modern society.

BEYOND THE IVORY TOWER: HOW ACADEMIA CAN SUPPORT YOUTH CLIMATE ACTIVISM IN AUSTRALIA

FAITH GORDON*

I INTRODUCTION

Across Australia, young people are at the forefront of climate activism, organising mass mobilisations, initiating landmark litigation, engaging in policy advocacy, and reframing public discourse on ecological justice.1 Their efforts are bold, urgent, and often carried out in the face of political resistance and intergenerational misunderstanding.2 Yet, while youth climate activists at the grassroots levels are generating powerful social movements and challenging entrenched systems, they often do so with limited institutional support.3 Academia, long positioned as a site of critical inquiry and social transformation, holds untapped potential to meaningfully support and amplify youth-led climate action. However, the relationship between academic institutions and activist communities remains potentially fraught with barriers, from hierarchies of expertise to institutional inertia.

* Dr Faith Gordon is an Associate Professor at the ANU College of Law, The Australian National University and a Senior Associate Research Fellow, Information Law and Policy, Centre at the Institute of Advanced Legal Studies, London. E-mail: Faith.Gordon@anu.edu.au X: @Dr_FaithG This research is funded by the Australian Research Council for the Discovery Project: ‘New Possibilities: Student Climate Action and Democratic Renewal’ (DP230101704). Funding received with colleagues Professor Pip Collins, Professor Judith Bessant, Dr Michelle Catanzaro, Dr Stewart Jackson and Professor Rob Watts. Thank you to project colleagues for the insightful discussions, to the Editorial Board of Court of Conscience for the invitation to contribute to this important, special issue and to the anonymous reviewers for their helpful comments.

1 See, eg, Cecilia Hilder and Philippa Collin, ‘The Role of Youth-Led Activist Organisations for Contemporary Climate Activism: The Case of the Australian Youth Climate Coalition’ (2022) 25(6) Journal of Youth Studies 793, 811; see also Patrick O’Keeffe, ‘Rebellion, Civil Disobedience and Repression: Young People, Place and Protest in Australia’ (2024) Power, Privilege and Place in Australian Society 289, 311.

2 See, eg, Australian Associated Press, ‘Scott Morrison Tells Students Striking Over Climate Change to be “Less Activist”’, The Guardian (online, 26 November 2018) <https://www.theguardian.com/environment/2018/nov/26/scott-morrison-tells-students-striking-over-climate-change-to-be-lessactivist>; Jack Mahony, ‘Scott Morrison Reminds Students Skipping School for Climate Protests that “Learning Gets Done in Schools”’, Sky News (online, 25 March 2022) <https://www.skynews.com.au/australia-news/scott-morrison-reminds-studentsskipping-school-for-climate-protests-that-learning-gets-done-in-schools/news-story/f04241ed9eebd3b24bb76508c9398be9>; see also Plan International Australia, ‘COP31 A Cop for Children and Young People’ (Independent Submission, Australian and Pacific Young People, June 2025).

3 Philippa Collin et al, ‘“When We Can't Vote, Action is All We Have”: Student Climate Politics, Rights and Justice’, in Katie Wright and Julie McLeod (eds), Childhood, Youth and Activism: Demands for Rights and Justice from Young People and their Advocates (Emerald Publishing, 2023) 55, 55–72.

This paper explores how the academic community in Australia can move beyond the metaphorical ‘ivory tower’ to become a more active ally in the climate justice movement, particularly through direct collaboration with young activists. Drawing on examples from education, legal research, and interdisciplinary climate studies, it argues that academics have a responsibility to not only produce knowledge but also co-create action. The paper will consider the roles universities can play, as knowledge incubators, convenors, and advocates, while critically examining the risks of co-option, tokenism, and performative solidarity. It asks: What does meaningful support look like? How can research be mobilised in ways that are useful, accessible, and empowering for youth movements? In doing so, this paper challenges traditional boundaries between academic work and activism, proposing a more integrated, ethically grounded model of engaged scholarship. It calls for a reorientation of academic priorities towards participatory research practices, youth-centred partnerships, and public scholarship that serves not just inquiry, but justice.

II YOUTH CLIMATE ACTIVISM IN AUSTRALIA: POWER, PRECARITY, AND INNOVATION

Australia has witnessed an extraordinary surge in youth-led climate activism over the past decade,4 as young people have mobilised in response to escalating ecological crises and political inertia. These activists have not only staged mass demonstrations, such as the nationally coordinated School Strike 4 Climate protests, but have also turned to the courts, engaged in policy advocacy, and led media campaigns that have significantly shaped the public climate discourse.5 What distinguishes the Australian context is the diversity of youth voices at the forefront of this movement, including Aboriginal and Torres Strait Islander young people who bring unique perspectives on land, sovereignty, and ecological responsibility.6

Youth climate activists operate with remarkable impact, both in their capacity to mobilise public opinion and in their strategic engagement with legal and political institutions.7 Organisations such as Seed Mob, the Australian Youth Climate Coalition (AYCC), and Youth

4 See Madeleine Hohenhaus et al, ‘Climate Warriors Down Under: Contextualising Australia’s Youth Climate Justice Movement’ (2023) 2(45) npj Climate Action 1, 2–3; see also Grace Arnot et al, ‘You Can't Really Separate These Risks, Our Environment, Our Animals and As: Australian Children's Perceptions of the Risks of the Climate Crisis’ (2024) 39(2) Health Promotion International 1.

5 See Faith Gordon, ‘Climate Harm and Future Generations: Young People Pushing for the Law to Change with the Times in Australia’ (2024) 18 Court of Conscience 47.

6 See, eg, Jenny Ritchie, ‘Movement from the Margins to Global Recognition: Climate Change Activism by Young People and in Particular Indigenous Youth’ (2020) 30(1–2) International Studies in Sociology of Education 53, 72; see also ‘Young First Peoples from Australia and Asia-Pacific Unite in Canberra for Climate Action’, Oxfam Australia Media Releases (Web Page, 9 September 2024) <Young First Peoples from Australia and Asia-Pacific unite in Canberra for climate action>.

7 For example, partnership work between independent politician Senator David Pocock and Anjali Sharma, see ‘In Conversation: Senator David Pocock and Anjali Sharma’, Lawyers for Climate Justice Australia (Web Page, July 2025) <https://www.lawyersforclimatejustice.org/resources/dutyofcare>.

Verdict exemplify how young people are not just responding to climate change they are reimagining climate action as a deeply intersectional, justice-oriented project.8 These groups combine scientific literacy, media fluency, and community organising skills to challenge the structures that underpin environmental degradation. Their power lies not only in the numbers they mobilise, but in the narratives they craft, framing climate change as a matter of intergenerational harm, human rights, racial justice, and democratic accountability. 9

Yet alongside this power lies deep precarity. Many young activists in grassroots movements operate without formal funding, legal protections, or institutional backing. They often juggle school, work, caregiving, and activism in precarious social and economic conditions. Climate grief and burnout are pervasive, especially as young people confront the dissonance between the scale of the climate crisis and the slowness of institutional response.10 Some activists face surveillance, harassment, or media vilification particularly those from Indigenous and culturally diverse backgrounds.11 Despite this, youth climate activists continue to innovate: from embedding First Nations-led decision-making in campaign structures; to developing climate education toolkits; to initiating strategic litigation against government actors.12 Their movements are creative, adaptive, and relentlessly future-focused, offering not just critique, but bold blueprints for change.

III ACADEMIA AND ACTIVISM: TENSIONS AND POSSIBILITIES

The relationship between academia and activism has long been characterised by ambivalence, marked by both potential alliance and deep-rooted tensions. Many academic institutions in Australia often pride themselves on values such as critical inquiry, evidence-based reasoning, and social responsibility. Yet in practice, they can appear slow, hierarchical, and disconnected from the immediacy of movements that demand urgent action, coupled with the contemporary structural challenges of

8 See ‘Young Mob Protecting Country and Leading the Fight for Climate Justice’, Seed (Web Page, 2024) <https://www.seedmob.org.au>; ‘We are Fighting for Justice’, Australian Youth Climate Coalition (Web Page, 2025) <https://www.aycc.org.au> ; ‘We’re Youth Verdict’, Youth Verdict (Webpage, 2025) <https://www.youthverdict.org.au>.

9 See, eg, on human rights, Giulia Gasparri et al, ‘Children, Adolescents, and Youth Pioneering a Human Rights-Based Approach to Climate Change’ (2021) 23(2) Health Hum Rights 95, 108.

10 For international research on climate grief and burnout, see Alison Stine, ‘Burnout Among the Youngest Climate Activists’, NP (online, 5 June 2025) <https://nonprofitquarterly.org/burnout-among-the-youngest-climate-activists/>; Sena Wazer, ‘Don’t Let Youth Climate Activists Like Me Burn Out’, Yes! Media (online, 18 October 2021) <https://www.yesmagazine.org/opinion/2021/10/18/youth-climate-activists-burn-out>.

11 See, eg, Graham Readfearn, ‘Teen Climate Activist Subjected to Sexist and Racist Abuse Amid Federal Court Climate Case’, The Guardian (online, 12 April 2022) <https://www.theguardian.com/law/2022/apr/12/teen-climate-activist-subjected-to-sexistand-racist-abuse-amid-federal-court-climate-case#:~:text=3%20years%20old,Teen%20climate%20activist%20subjected%20to%20sexist%20and,amid%20federal%20court%20climate%20case&text=Teen age%20climate%20crisis%20campaigner%20Anjali,this%20government%20what%20to%20do>; see also, ‘Five Child and Youth Activists You Need to Know’, UNICEF Australia (Web Page, 2025) <https://www.unicef.org.au/stories/five-child-activists-you-need-to-know?srsltid=AfmBOopX35rivtZzurXn9xBA5voiSLjlupmN6OoaRyqcQFKyqxDyVRS>.

12 See, eg, Sharma v Minister for the Environment [2021] FCA 560; Minister for the Environment v Sharma [2022] FCAFC 35.

precarity and funding constraints.13 For youth climate activists, academia can be a source of useful research and evidence, but also a space of exclusion, where knowledge can be gatekept, communities can be objectified, and lived experience can be marginalised. These tensions are amplified when young people are engaged only as research subjects or case studies, rather than as collaborators and co-creators of knowledge.

A key tension lies in differing timelines and imperatives. While youth activists must respond swiftly to unfolding crises adapting tactics and messaging in real time academic research often unfolds over months or years, constrained by institutional ethics, peer review, and funding cycles. Similarly, the language of scholarship, steeped in abstraction and disciplinary terminology, can fail to meet the communicative needs of public-facing movements. Moreover, many academic careers are built on individual authorship and outputs, whereas activist work is collective, relational, and often resistant to traditional metrics of success.

Despite these challenges, the possibilities for meaningful collaboration between academia and activism are growing.14 Scholars across disciplines including law, environmental humanities, education, and political science are rethinking their roles in climate justice work. Some are building partnerships based on reciprocity and co-creation; others are reshaping curricula to reflect activist priorities and real-world engagement. Crucially, a new generation of scholar-activists is emerging: young people who move fluidly between university lecture halls and protest sites, who publish in journals and speak at rallies, and who challenge the idea that academic rigour must come at the expense of political relevance.

In this evolving landscape, the challenge is not whether academia can contribute to youth climate activism, but how it can do so ethically, usefully, and with humility. This requires a shift away from extractive research models and towards forms of solidarity that honour the expertise and autonomy of young activists. When done well, academic engagement has the potential to support, sustain, and scale youth-led movements, not by speaking for them, but by standing with them.

IV PATHWAYS FOR SUPPORT: WHAT CAN ACADEMIA DO?

A Co-Production of Knowledge

One of the most meaningful ways academia can support youth climate activism is by shifting from research about youth to research with youth.15 Co-production of knowledge recognises young

13 See Graeme Turner, Broken: Universities, Politics & The Public Good (Monash University Press, 2025).

14 See Kees Biekart and Karin Astrid Siegmann, ‘Minding the Gap Between Activism and Academia: Or Bridging It?’ in Kees Biekart et al (eds), Exploring Civic Innovation for Social and Economic Transformation (Routledge, 2016) 233, 233–50 (‘Minding the Gap Between Activism and Academia’).

15 See Carla Malafaia and Maria Fernandes-Jesus, ‘Youth Climate Activism: Addressing Research Pitfalls and Centring Young People's Voice’ in Anabela Carvalho and Tarla Rai (eds), Handbook of Environmental Communication (De Gruyter Mouton, 2024).

people not merely as subjects of study but as experts in their own experiences and strategic actors in the climate movement.16 This model, rooted in participatory action research, requires academics to relinquish traditional hierarchies of expertise and embrace a collaborative, dialogic process.17 It demands that youth voices shape research questions, methodology, analysis, and dissemination, ensuring that the work reflects community priorities and supports activist aims.18

In the climate justice context, co-production might involve university researchers partnering with youth-led organisations like School Strike 4 Climate or Seed Mob, to document movementbuilding strategies, co-author policy briefs, or conduct impact evaluations. Such partnerships not only validate the work of young activists but also contribute to a more democratic form of knowledgemaking, one that is both academically rigorous and socially relevant. Importantly, this approach also disrupts the extractive tendencies of conventional research, where data is collected from youth but rarely returned to them in accessible or actionable forms.19

B Education and Curriculum Reform

Academia’s influence on climate action extends beyond research, it also lies in how we educate and empower future generations. Reforming educational curricula to centre climate justice, intersectionality, and youth-led movements can cultivate both critical consciousness and civic engagement.20 While many Australian universities now offer environmental science or sustainability degrees, these often remain siloed from the political, legal, and social dimensions of climate change. Embedding youth perspectives and activist histories across disciplines from law and education to arts and public health ensures students understand climate change not just as a scientific issue, but as a question of ethics, justice, and democracy.21

At the school level, partnerships between universities and secondary educators can develop teaching resources that reflect contemporary youth climate action. This includes analysing youth-led litigation, examining the role of protest in democratic societies, and exploring Indigenous approaches to environmental stewardship. University students, too, can benefit from placements, internships, or capstone projects that connect them with activist networks and campaign strategies. These reforms

16 See Amy Cutter-Mackenzie and David Rousell, ‘Education for What? Shaping the Field of Climate Change Education with Children and Young People as Co-Researchers’ (2018) 17(1) Children’s Geographies 90 (‘Education for What?’).

17 Susan Groundwater-Smith et al, Participatory Research with Children and Young People (SAGE Publications, 2015).

18 Carla Malafaia and Maria Fernandes-Jesus, ‘Communication in Youth Climate Activism: Addressing Research Pitfalls and Centring Young People’s Voices’ in Anabela Carvalho and Tarla Rai (eds), Handbook of Environmental Communication (De Gruyter Mouton, 2024) 303, 303–21.

19 See Eve Mayes and Dena Arya, ‘Just Participatory Research with Young People Involved in Climate Justice Activism’ (2024) 7(3) Journal of Applied Youth Studies 385.

20 See, eg, Ian McGimpsey et al, ‘A Double Bind: Youth Activism, Climate Change, and Education’ (2023) 75(1) Educational Review 1, 8.

21 See, eg, Eve Mayes, Young People Learning Climate justice: Education Beyond Schooling Through Youth -Led Climate Justice Activism (Springer, 2nd ed, 2024).

deepen the relevance of academic learning while preparing students to contribute meaningfully to climate futures already being shaped by their peers.22

C Institutional Advocacy and Platforming

Academic institutions can also act as public allies and amplifiers of youth climate activism by using their authority, visibility, and infrastructure to elevate youth-led campaigns. Scholars, particularly those with established public profiles, can support activist messaging through media commentary, open letters, and expert endorsements. Universities can host climate justice summits, public lectures, and roundtables that place youth organisers alongside researchers, policymakers, and industry leaders, thereby legitimising youth contributions in decision-making spaces where they are often underrepresented or ignored.

Platforming youth activism should not be reduced to performative engagement or one-off events. Instead, universities should develop sustained programs and partnerships that create pathways for ongoing collaboration. This might include inviting youth leaders as guest lecturers, co-hosting forums with youth organisations, or embedding activism-focused initiatives within climate research centres. In doing so, academia not only raises the profile of youth-led work but also signals a deeper institutional commitment to intergenerational equity and public accountability.

D Ethical Partnerships and Long-Term Commitment

Finally, any attempt by academic institutions to support youth activism must be grounded in ethics, reciprocity, and long-term commitment. Too often, youth movements are engaged by academic researchers seeking quick access to data, media attention, or policy influence, without meaningful involvement or benefit to the young people themselves. Ethical partnerships require transparent goals, shared decision-making, appropriate funding, and mechanisms for youth to shape the terms of engagement. This includes acknowledging and compensating young people for their time, knowledge, and labour, particularly those from First Nations, rural, or marginalised communities.

Long-term commitment means moving beyond short-term projects or grant cycles to build relationships that are sustained over time. It may involve universities offering material support to youth organisations, such as free access to space, research assistance, communications resources, or legal expertise. It also means listening carefully to what youth movements actually need, rather than imposing academic agendas. When done well, such partnerships can be transformative, not only advancing

22 See Matthias Kowasch et al, ‘Climate Youth Activism Initiatives: Motivations and Aims, and the Potential to Integrate Climate Activism into ESD and Transformative Learning’ (2021) 13(21) Sustainability 11581; see also David Rousell and Amy CutterMackenzie-Knowles, ‘A Systematic Review of Climate Change Education: Giving Children and Young People a ‘Voice’ and a ‘Hand’ in Redressing Climate Change’ (2020) 18(2) Children's Geographies 19; Cutter-Mackenzie and Rousell, ‘Education for What?’ (n 16).

climate justice, but reshaping academia itself to be more open, responsive, and accountable to the communities it claims to serve.

V CONCLUSION: REIMAGINING ACADEMIC RESPONSIBILITY

The climate crisis demands more than dispassionate observation or theoretical critique, it calls for institutions and individuals to act with urgency, courage, and solidarity. As young people across Australia mobilise in ever more creative and determined ways to confront climate injustice, academia must move beyond its traditional detachment and reimagine its role as an active ally in this struggle.23 Universities, scholars, and research centres cannot remain neutral in the face of ecological collapse and intergenerational harm. To stand apart is to be complicit in the status quo. Instead, the academic community must acknowledge its power, its platforms, and its responsibility to support those who are already on the frontlines of climate action.

This support must be more than symbolic. As this paper has argued, academia holds transformative potential when it listens to, learns from, and collaborates with youth-led movements. Whether through co-producing research, reforming curricula, providing public platforms, or developing ethical, sustained partnerships, universities can help amplify the impact of youth activism while also enriching their own relevance and legitimacy. When institutions value lived experience alongside scholarly expertise, and when young people are treated not as passive beneficiaries of knowledge but as producers and partners in its creation, the boundaries between the university and the community begin to dissolve and with them, the false binary between theory and action.

To realise this potential, a fundamental shift in academic values is needed. Rather than prioritising outputs, rankings, or disciplinary prestige, universities must orient themselves toward public purpose, relational accountability, and climate justice. This means embracing knowledge not as an end in itself but as a tool for collective liberation one that is in service of youth, of future generations, and of the planet we share. It also means making space within the academy for diverse, disruptive voices particularly those of young people who have too often been spoken about, and not listened to.

Reimagining academic responsibility is not only possible it is necessary. In a time of planetary emergency, the question is no longer whether universities should support youth climate activism, but how radically and how urgently they are willing to do so. The challenge now is to move beyond the ivory tower and into deeper, braver solidarities that meet the moment we are in.

23 See discussions on bridging the gap between academia and activism in Biekart and Siegmann, ‘Minding the Gap between Activism and Academia’ (n 14); see also Cristina Haywood-Espinosa, ‘Can Development Bridge the Gap Between Activism and Academia?’ in Bernd Reiter and Ulrich Oslender (eds), Bridging Scholarship and Activism (Michigan State University Press, 2015) 49.

Court of Conscience would like to thank the authors and editorial team for their contributions to Issue 19.

Hashwitaa Maynoor

Editor-in-Chief

Hashwitaa is currently studying a Bachelor of Laws and Bachelor of Computer Science at the University of New South Wales. She was Technical Editor for Court of Conscience in 2024. With a passion for law reform and legal academia, Hashwitaa drafted this year’s theme to explore the deep-seated tension between the law’s theoretical purpose and its practical operation.

Kayla Quang

Managing Editor

Kayla is a fourth year student studying a Bachelor of Laws and Bachelor of Arts (Philosophy and Politics). She joined Court of Conscience to further her passion for advocacy and to continue to explore the reality of the law’s complex interactions with the real world.

Jasper McCrindle

Technical Editor

Jasper is in his fourth-year studying a Bachelor of Laws and a Bachelor of Arts (Philosophy). He joined Court of Conscience because he is passionate about the law and legal scholarship. He has thoroughly enjoyed the opportunity to be exposed to and to engage with the latest developments in the legal landscape

Rachel Ng

Technical Editor

Rachel is a fourth-year student completing a Bachelor of Laws and Bachelor of Politics, Philosophy and Economics. Driven by her belief in the law as a tool to effect meaningful social change, she joined Court of Conscience to deepen her understanding of the law’s application to real-world issues

Lara Carbonell

General Editor

Lara is in her second-year of a Bachelor of Laws and a Bachelor of Arts (Criminology and Politics, International Relations). She joined Court of Conscience to develop her technical legal skills and explore her interest in academia. She has thoroughly enjoyed contributing to meaningful discussions on bridging the gap between legal theory and practice.

Crystal Estigarriba

General Editor

Crystal is in her penultimate year of a Bachelor of Laws and a Bachelor of Commerce. She joined Court of Conscience to expand her knowledge on the intersection between academia, legal theory and practice. She hopes to contribute meaningfully to discourse on how the law can be reformed to better serve principles of justice, ethics and social progress

Diane Lee

General Editor

Diane is in her fourth-year of a Bachelor of Laws and a Bachelor of Arts (History, Politics and International Relations). With a deep interest in how law shapes social change, Diane views her role in Court of Conscience as an opportunity to engage critically with modern legal and ethical issues

Micaela Mulholland

General Editor

Micaela is in her fourth-year studying a Bachelor of Laws and Psychological Science. She joined Court of Conscience to expand her knowledge on legal academia and contemporary issues of justice, and how they can intersect with practical solutions

Le-Anna Nguyen

General Editor

Le-Anna is a second year student studying a Bachelor of Law and Bachelor of Commerce (Finance). Motivated by a growing passion in legal scholarship, she joined Court of Conscience to explore how academia can be a catalyst for innovating social advocacy

Ivy Pham

General Editor

Ivy is currently in their second-year of a Bachelor of Laws and Bachelor of Criminology and Criminal Justice degree. With an interest in how legal academia can contribute to important discussions of social issues, Ivy’s participation in Court of Conscience serves as a means of exploring contemporary legal issues

Neeraja Seshadri

General Editor

Neeraja is a second-year Juris Doctor student. She joined Court of Conscience because she is interested in the intersection between law, policy, and practice, and in exploring how these dimensions shape contemporary legal reform and access to justice

Court of Conscience Issue 19, 2025 Beyond the Ivory Tower: Bridging the Gap Between Theory and Practice

Helaina Clare Graphic Designer

Darshni Rajasekar Artist

Annona Das

2025 UNSW Law Society Vice President (Social Justice)

Madeleine Morris and Matthew Kuk 2025 UNSW Law Society Co-Presidents

ISSN 1839-7204

Court of Conscience is published annually by the UNSW Law Society, unswlawsoc.org.

BEYOND THE IVORY TOWER: BRIDGING THE GAP BETWEEN THEORY AND PRACTICE

ISSUE 19 2025

Editorial Hashwitaa Maynoor

Foreword: Bridging the Theory Practice Divide

Rosalind Dixon

Native Title, Justice and the Evolution of the Unwritten Law

The Hon Robert S French AC

Shared Histories and the Colonial Present: A Message to Law Students and Teachers

Ingrid Matthews and Sandy Schmutter

‘“Bugmy,” You Know’

Jill Hunter

The First Casualty of War is Truth: Legal Fictions and NSW Drug Laws

Helen Gibbon and Ben Mostyn

Navigating the Legal Labyrinth in Education: The Challenges of Resolving Disability Discrimination Complaints

Elpitha (Peta) Spyrou

Incorporated Support Structures: The Role of Conscience for the Individual and for the Law?

Beth Nosworthy

Accessibility in the ART: Clear on Paper, Blurred in Action

Aaryan Pahwa

Donning the Chancellor’s Cloak: How Equity’s Playbook Can Help Reshape Legal Education in Australia and Fell the Ivory Tower

Mark Giancaspro

Bridging the Divide Between Theory and Practice: The Transformative Impact of Experiential Legal Education

Rebecca Dominguez and Catherine Renshaw

When Assaults on the Rule of Law, Separation of Powers and Access to Justice Become a PresentDay Reality

Nikki Chamberlain

Children, Gaza and the Relevancy of International Law

Noam Peleg

Ivory-Washing or Expertise? The Responsibilities of Legal Academics in Political Discourse

Joe McIntyre and Liz Hicks

Understanding AI Transparency and Literacy: Lessons from Consumer credit Regulation

Jeannie Marie Paterson

Beyond the Ivory Tower: How Academia Can Support Youth Climate Activism in Australia

Faith Gordon

ISSN 1839-7204

Court of Conscience is published annually by the UNSW Law Society, unswlawsoc.org.