Educational Disadvantages and Indigenous Law Students: Barriers and Potential Solutions

Introduction

In 2012, the Australian Federal Government published a review of higher education access and outcomes for Indigenous people, ² chaired by Professor Larissa Behrendt (Behrendt Review). ³ The review noted that in 2010, Indigenous people comprised 2.2 per cent of Australia’s overall population, but only 1.4 per cent of university enrolments. Indigenous university students face a significantly higher attrition rate relative to non-Indigenous students. ⁴

The under-representation of Indigenous students in Australian universities is a serious problem. Education is seen by many Indigenous people as a source of empowerment. The Behrendt Review reported that young Indigenous people want to go to university, and then to use their qualifications to go into professional and leadership positions. In this way, they can contribute to Indigenous communities as well as the broader Australian community. ⁵ Indigenous communities aspire to participate in the global economy, including a desire for improved employment rates, the creation of business opportunities and decreased reliance on government welfare. ⁶

The legacy of colonialization in Australia has hampered these aspirations, and Indigenous people continue to face disadvantages. For 2010–12, an Indigenous man lived an average 69.1 years, which is 10.6 years less than the life expectancy of a non-Indigenous man. The average life expectancy for an Indigenous woman was 73.7 years, which is 9.5 years less than the life expectancy for a non-Indigenous woman. ⁷ Regardless of the measures used, Indigenous communities are the poorest in Australia. Indigenous people have higher rates of suicide, infant mortality, low birth rates, household overcrowding, welfare dependency and unemployment than non-Indigenous people. ⁸ There is strong evidence that education, including higher education, can improve the health and economic well-being of Indigenous communities. ⁹ The Australian Bureau of Statistics reports that the full-time employment rates increased for Indigenous people by 63 per cent for those with a bachelor’s degree or higher. While educational attainment for non-Indigenous people increases the likelihood of full-time employment, this association is stronger for Indigenous people. ¹⁰

The under-representation of Indigenous people in legal education is a serious problem. Indigenous people did not enter the Australian legal profession until the 1970s. The first Indigenous university graduate was probably Kumantjayi Perkins who graduated with a Bachelor of Arts degree in 1966, and became a highly influential activist. ¹¹ Mallenjaiwakka, who became the first Indigenous law graduate in 1972, recalls that people were sceptical of his identity: ‘People thought I was a Greek or Italian. When I told them, they said “but you are not a real Aborigine”. They didn’t think you could have an Aboriginal with a degree and a pin-striped suit.’ ¹² In 1986, Pat O’Shane became the first Indigenous magistrate, and in 1996 Bob Bellear became the first Indigenous judge.

The number of Indigenous law students remained very low until the early 1990s, although it has increased since. ¹³ A survey of 18 Australian law schools in 1990 showed that there were 50 enrolled undergraduates who identified as Indigenous, one Indigenous post-graduate student, and a total of just 21 graduates up until 1990. ¹⁴ A further survey of 25 Australian law schools estimated that 35 Indigenous undergraduate law students had commenced in 1991, increasing to 89 by 2000. In 2000, 256 Indigenous students were studying law across Australia. ¹⁵ From 2000 to 2009, the number of Indigenous students enrolled in an LLB had remained relatively constant. ¹⁶ While the number of Indigenous students currently studying law is unknown, there has been a recent increase in the number of practicing Indigenous lawyers. In 2006, approximately 2.2 per cent of the NSW population was Indigenous, whereas 0.16 per cent of NSW solicitors were Indigenous. In 2011, the NSW Indigenous population stood at 2.9 per cent of the total population, and the proportion of Indigenous solicitors in NSW was 0.44 per cent. ¹⁷ While this represents an improvement, Indigenous people are still under-represented within the Australian legal community. ¹⁸

Anecdotal evidence suggests that Indigenous students are motivated to study Western law as it is considered the main tool for dispossession, and so there is a need to understand law in order to contest it. Indigenous students are also motivated by an interest in reducing violence within Indigenous communities, and because they may have had negative experiences with legal institutions. ¹⁹ Indigenous students’ aspirations are often shaped by a desire to use the law to improve justice, ²⁰ including using the law to empower home communities rather than to advance their own individual careers. ²¹ Indigenous students also see themselves as role models, who can encourage other Indigenous students to take up university study. ²²

Having more Indigenous law students also makes Indigenous culture more visible, which will help build cultural competency within non-Indigenous law students and legal professionals. The value of increasing cultural competency was highlighted by the Australian Learning and Teaching Council in 2010 when Threshold Learning Outcomes (TLOs) were implemented within Australian universities. TLOs require law graduates to demonstrate knowledge of the principles and values of justice, understand the broader context in which legal issues arise, engage in critical analysis and consider how the law impacts different social groups differently. ²³ Law students should also understand Indigenous perspectives so that upon graduation they can offer legal services that will meet the needs of Indigenous communities. ²⁴ As Nicole Watson, an Indigenous legal academic, states:

With their virtual monopoly over legal education, law schools have a profound obligation to ensure that the future profession can accommodate the legal needs of our entire society, including Indigenous communities. This important goal will never by achieved while the law school environment continues to alienate Indigenous students. ²⁵

Increasing the number of Indigenous law students will also increase the number of Indigenous people in the legal profession. Many Indigenous lawyers and judges in Australia have been public advocates for Indigenous rights, have called for greater Indigenous legal representation by Indigenous people and feel that they bring a much-needed Indigenous perspective to law. ²⁶ For instance, Tony McAvoy an Indigenous barrister explains: ‘…I feel I have an understanding of the Aboriginal side of the equation—the way community business is done—as well as having a reasonable knowledge of the law.’ ²⁷

Many Indigenous legal professionals have stated that they want to be role models to other Indigenous people wishing to go into law. This view was also stated by McAvoy: ‘I don’t tend to talk about what I do as setting an example but (me) being at the Bar makes it appear more accessible.’ ²⁸

This article examines the under-representation of Indigenous students in Australian higher education generally, and in Australian law schools specifically. First, it identifies barriers to Indigenous students enrolling in higher education study. Previous studies have focused on the under-representation of socially disadvantaged groups in law schools, including students from low socio-economic status backgrounds and ethnic minority groups. ²⁹ While Indigenous law students experience many of the same barriers as other disadvantaged groups, they also experience additional and unique problems. ³⁰ For many Indigenous students, the main barriers lie in educational disadvantage that starts from the earliest years of schooling and has its roots in Australia’s continuing legacy of colonialization. Educational disadvantage has meant that Indigenous students are less likely than non-Indigenous students to enrol in higher education in the first place.

Once Indigenous students do enrol, they face additional barriers, and many Indigenous students experience a strong sense of cultural displacement in law school, reflecting the continuing dominance of Anglo-Western educational and legal norms which disempower Indigenous people. The legal curriculum continues to privilege a construction of Western state law that delegitimizes Indigenous knowledge. Thus, it is hardly surprising that Indigenous students withdraw at a higher rate compared to non-Indigenous students. The experiences of Indigenous students in Australian law schools are not unique to Australia. For instance, Indigenous students endure institutional racism within Canadian and New Zealand law schools, where the dominant Anglo-Western culture permeates admission policies, curriculum and pedagogy, ³¹ as well as constructions of legal culture. ³² This racism flows into the legal profession. ³³

Second, it is important not only to identify barriers, but to also consider solutions. There have been only a few evaluations of initiatives that assist Australian Indigenous students to enrol in higher education, and then provide support once students have commenced their studies. These evaluations suggest that solutions need to draw on the strengths of Indigenous students, families and communities, and to involve collaboration between Indigenous people, universities and law schools. These solutions also need to go beyond simply increasing the number of Indigenous students completing legal education, but also need to challenge the very nature of legal education and the authority of Anglo-Western law.

Barriers to Entry to Law School

For Indigenous students, the most significant hurdle to securing an LLB degree is obtaining the secondary school grades necessary for entry into law school. In Australia, secondary school is completed in year 12, and upon completion students receive a percentile ranking which indicates their performance relative to their peers. This ranking is known as the Australian Tertiary Admission Rank (ATAR), and is used as the main criteria for university entry. From 2011 to 2013, 58.5 per cent of Indigenous 24- to 25–year-olds had completed year 12 or above, which was an increase from 45.4 per cent in 2008. During the same period, the proportion of non-Indigenous Australia who had completed year 12 or equivalent was 86.1 per cent. ³⁴ Indigenous students who complete year 12 receive on average a lower ATAR compared to non-Indigenous students. In 2013, only 7.3 per cent of Indigenous students who could have attended year 12 received an ATAR of 50.00 or above, compared to 37.0 per cent of non-Indigenous students. ³⁵

A major factor behind the lower secondary school performance of Indigenous students is poor school retention rates. While retention rates have recently improved, ³⁶ the Australian Bureau of Statistics reports that in 2015 the overall retention rate for Indigenous students from year 7/8 to year 12 was just below 60 per cent. ³⁷ This is considerably lower than the retention for all students, which was 84.0 per cent in 2015. ³⁸ Risk factors associated with low retention are more likely to occur in Indigenous families. These include familial poverty, living in an isolated community, health problems, inadequate housing, low parental levels of education and speaking a language other than English at home. ³⁹ Indigenous students also have higher levels of school non-attendance compared to non-Indigenous students, ⁴⁰ and there is a direct relationship between the number of days spent absent from school and academic performance. ⁴¹

Gray and Beresford argue that educational disadvantage for Indigenous children has been normalized as part of the legacy of colonialism. Indigenous people have endured official policies of dispossession, segregation and assimilation that have resulted in intergenerational trauma. ⁴² Until the 1950s, Indigenous children were denied access to all but the minimum level of education required to produce useful labourers, and many children who were removed as part of the Stolen Generations did not receive any education. Low levels of intergenerational education have left many Indigenous parents feeling disconnected from the education system. ⁴³

The Australian education system continues to be based on Western cultural assumptions, and is still informed by assimilationist intentions. Indigenous students’ experience of education is often negative, degrading and alienating. ⁴⁴ One of the main reasons for Indigenous students’ absence is a lack of recognition by schools of Indigenous culture and history, ⁴⁵ and the standard Western curriculum does little to encourage engagement. ⁴⁶ Lower expectations mean that Indigenous students are often provided with a low-level curriculum which includes highly structured, repetitive and predictable tasks. This type of teaching results in the reproduction rather than the production of understanding, and is more likely to produce lower grades. ⁴⁷ The lack of Indigenous teachers, high staff turnover, unsustained and uncoordinated education policies, the use of behaviour management approaches towards discipline which results in Indigenous students being disproportionately suspended or excluded, and the overrepresentation of Indigenous young people in youth detention centres exacerbate retention problems. ⁴⁸

Even when Indigenous students obtain the grades needed to enter law school, there may be further barriers to enrolment. The Behrendt Review suggests that Indigenous students, including high performing students, have lower aspirations than non-Indigenous students to participate in higher education. Indigenous students who could enrol in university are more likely to choose post-school low-level vocational education training (VET), ⁴⁹ and often they are encouraged by school careers counsellors to enrol in VET programmes rather than university. ⁵⁰ Indigenous students have reported that they were told by their counsellor that law school is not for them and they should consider less demanding courses. ⁵¹

Negative experiences of education have left many young Indigenous people with low self-confidence and a sense of shame about their academic abilities. ⁵² Indigenous students may not enrol in university as they consider admission to be unattainable, place little value on higher education and feel alienated from university culture. ⁵³ Interviews with Indigenous high school students also suggest that those who want to go to university do not necessarily take a strategic approach to admission. Indigenous high school students often do not have a detailed knowledge of entry requirements, back-up plans or awareness of alternative entry pathways. While their parents may be encouraging, they may be uncertain about how to provide support. ⁵⁴ Indigenous students often lack appropriate career advice, need to deal with additional social and peer problems, need to travel or relocate in order to continue with their studies ⁵⁵ and worry that they cannot afford to attend university. ⁵⁶

Creating Pathways into Law Schools for Indigenous Students

Australian universities and many law schools have used a variety of strategies to increase Indigenous enrolments. Alternative admissions schemes exist in most universities, and are intended to assist disadvantaged students to enrol if they do not have the requisite ATAR grades. Alternative admissions programmes were implemented in Australia in the 1970s; ⁵⁷ however, the early schemes had only limited success. Until the early 1990s, most alternative admissions schemes simply involved credit transfer. ⁵⁸ These schemes largely assisted students into programmes with lower requirements, and offered little assistance for entry into programmes such as law, and thus did little to shift the overall socio-economic status (SES) profile of law schools. ⁵⁹

Alternative admission schemes were expanded in the late 1990s, and are now influential in increasing Indigenous enrolments, ⁶⁰ and approximately half of all Indigenous students enter higher education via alternative admission schemes. ⁶¹ However, Indigenous students may not be aware of alternative pathways. ⁶² Several studies have also highlighted that Indigenous students, who make up such a small proportion of law students, feel singled out by other students if they enter through alternative admission schemes, and feel additional pressure to perform. ⁶³ In addition, law students who could have entered university via mainstream entry often use alternative pathways. Douglas and Banks argue that this may reflect pressure on universities to facilitate access to a certain number of disadvantaged students, rather than a genuine effort to assist Indigenous students. They warn that one of the consequences may be that Indigenous students who can only enter law school via alternative schemes are being denied access to university. ⁶⁴

Some alternative admission schemes use aptitude tests to select students from disadvantaged backgrounds. Aptitude tests have been shown to select high-quality students, while also selecting for greater student diversity. ⁶⁵ Some schemes rely on interviews with prospective Indigenous students, although care needs to be taken with interviews. Indigenous law students in Queensland reported interviews to be harrowing and overwhelming, and that they reinforced feelings of low self-confidence and previous negative educational experiences. ⁶⁶ A review of alternative methods for selecting students in medicine suggests that panel interviews are common; however, there is wide variance in the structure of the panel. Interviews with multiple selectors can be difficult to standardize, and selectors can be biased. ⁶⁷

There are, potential solutions to these problems. An alternative interviewing method developed by McMaster University (Canada) consists of the Multiple-Mini Interview (MMI). Each applicant is interviewed across a number of stations for 5–10 minutes per station, with one interviewer per station. Each station is structured around a different theme, and may include different activities such as a group problem-solving activity. MMIs have been shown to be reliable predictors of student performance, and interview training can help address problems of bias. ⁶⁸ Students selected through MMI are also less likely to withdraw from their studies. ⁶⁹

The need to find alternative admissions practices that ensure both high-quality law students and diversity has not just been a concern in Australia. In the USA, the main criterion used for law school entry is a student’s Law School Admission Test (LSAT) combined with their undergraduate grade point average. These measures have been criticized for presupposing knowledge that is most common in white, middle/upper-class communities, ⁷⁰ and thus their use has restricted the proportion of ethnic minority students in law schools. ⁷¹ In addition, these measures are poor predictors of a student’s final year performance or their success as a lawyer. ⁷² In response, Shultz and Zedeck have designed an alternative selection test based on predicting a student’s ability to perform as a lawyer. First, they surveyed a large number of law school alumni in the USA to identify factors associated with lawyer efficiency. The second phase involved developing scales that could then measure the factors identified in the initial phase. As the measures focus on skills rather than proscribed traits, they also eliminate biases against students who are traditionally excluded from law school. ⁷³

Another common strategy for creating alternative pathways is to recruit students who have completed VET qualifications. The Behrendt Review reports that unlike university enrolments, the number of Indigenous students enrolled in VET programmes reflects population parity. ⁷⁴ There are, however, a number of barriers to Indigenous students using VET programmes as a stepping stone into university. The majority of Indigenous students complete low-level VET courses that do not facilitate university entry, and even when Indigenous students complete higher-level courses, many still do not use these qualifications as a pathway into university. ⁷⁵ Other barriers to using VET as a higher education pathway include a lack of awareness about how to transition, inconsistent approaches to credit transfer arrangements and differences between universities and VET providers in terms of curriculum, pedagogy and assessment. ⁷⁶ Nevertheless, some universities have succeeded in recruiting Indigenous students via VET programmes, highlighting that successful transition requires a structured pathway from VET into higher education, and good support during and post-transition. ⁷⁷

The Behrendt Review noted that improving VET pathways could open up higher education to a wider range of Indigenous people, including Indigenous people already in the labour force. For instance, Indigenous paraprofessionals working across the public, community and private sectors often have lower-level VET qualifications or no qualifications. Ensuring well-defined pathways from the VET sector into higher education could assist Indigenous paraprofessionals to gain professional and managerial qualifications. The Australian Public Service (APS) could also provide a rich source of Indigenous universities students. The Behrendt Review reported that almost 35 per cent of the Indigenous APS workforce identified that their highest education qualification was an undergraduate diploma or lower. ⁷⁸

Outreach programmes could also encourage Indigenous students to complete high school and then enrol in law school. Since 2005, the Australian government has required universities to operate outreach schemes intended to attract students from disadvantaged social groups. Traditional outreach programmes involve partnerships between universities and high schools, ⁷⁹ and usually include activities such as school visits, open days and enrichment activities. ⁸⁰ Traditional outreach programmes have had some place-specific success, but have not achieved any significant breakthrough, ⁸¹ and it is possible that their popularity reflects historical practice rather than effectiveness. ⁸²

Traditional outreach programmes usually target students in the final year of high school. However, educational disadvantage for Indigenous students starts in the earliest years of school, and so outreach programmes need to target younger students and involve more sustained contact. In addition, only a few outreach programmes target mature-age people, and as discussed above, these groups may be rich recruiting grounds for universities. Schools may not necessarily be the most appropriate place for distributing recruitment material, and universities could also distribute material via Aboriginal Lands Councils, Indigenous newspapers and radio stations, and have Indigenous leaders and alumni to encourage university participation. ⁸³ Evaluations of outreach programmes suggest the need for a long-term approach, the use of both academic and social support in order to connect students, families, communities and universities, to be comprehensive rather than rely on single components, and to be well integrated into schools rather than operating at the margins. ⁸⁴ In addition, universities with high numbers of Indigenous staff strongly correlate with Indigenous students’ commencement numbers, highlighting the importance of developing connections between universities and communities. ⁸⁵

While there are only a few evaluations available of outreach programmes in Australia, and most have only followed programmes over the short term, ⁸⁶ it is possible to identify some that work well. The Australian Indigenous Mentoring Experience (AIME) programme was established in 2005, and is aimed at improving the retention rates of Indigenous high school students, and to support transition to university and employment. The programme recruits university students as mentors to Indigenous high school students. It began with just 25 mentors and mentees, and by 2015 it matched approximately 5,700 mentees with 1,900 mentors across 18 universities. The programme enables Indigenous students to make weekly visits to a partner university campus, or to spend a longer period on campus for students from further afield. ⁸⁷ An evaluation showed that it was effective in improving mentees’ school and post-school aspirations, sense of engagement, sense of identity, retention and school completion rates. ⁸⁸

Another innovative approach to outreach is provided by Scull and Cuthill, who have shown that an ‘engaged’ outreach programme produces better results compared to traditional programmes. They argue that traditional programmes focus too narrowly on individual students, rather than engaging the full range of people who influence a student’s decision to attend university. Their engaged programme involved collaboration between a university and local Pacific Island immigrant communities in an area of high social deprivation in South East Queensland. The programme was aimed at increasing education aspiration within the entire community, rather than working with individual students, and addressed the lack of awareness and support from all stakeholders involved in decision-making, including families, schools and peers. ⁸⁹

Barriers to Completing Law School

Being admitted to law school is not sufficient to increase the number of Indigenous graduates, ⁹⁰ and universities with high numbers of commencing Indigenous students are different from universities with high numbers of successful Indigenous graduates. ⁹¹ Many Indigenous law students withdraw in their first year. Douglas reported that between 1991 and 2000 only 18 per cent of the first-year Indigenous law students enrolled in Australian law schools completed their degree. ⁹² In recent years, retention has improved for Indigenous law students. Between 2005 and 2009, 59 per cent of commencing Indigenous law students completed their degrees, although this figure is still significantly lower than completion rates for non-Indigenous students. ⁹³

Some studies report that Indigenous students often arrive at university feeling highly motivated, optimistic, determined to succeed, assertive, focused on their goals, ready to study and confident in their ability to succeed. ⁹⁴ Di Gregorio et al. describe this initial confidence as ‘vulnerable determination’ as it can be easily undermined by negative learning experiences. ⁹⁵ Other studies show that Indigenous students often approach university study with apprehension rather than determination, suggesting a need to build students’ confidence through both academic and social support. ⁹⁶

In a large-scale, longitudinal study involving several universities, Krause et al. showed that many Indigenous students struggle to adjust to university teaching styles and the volume of work expected. Over a third of Indigenous students seriously considered deferring their studies, and 13 per cent reported that they were failing. ⁹⁷ Other research has consisted of small-scale qualitative studies, or quantitative surveys with low response rates. Nevertheless, these studies reflect the findings of Krause et al. Indigenous students have reported feeling overwhelmed by university, which they find to be an alien and isolating environment, ⁹⁸ with the stress of navigating an unfamiliar environment being the main reason for withdrawal. ⁹⁹ Feelings of unfamiliarity are exacerbated by the lack of information for enrolling Indigenous students on university websites, and what is available is often difficult to locate. ¹⁰⁰ Enrolment packs and mainstream orientation programmes also lack information for Indigenous students. ¹⁰¹ Many Indigenous students feel disappointed with the content and delivery of courses, ¹⁰² and, as discussed below, the lack of Indigenous culture within the university curriculum is often problematic for Indigenous students. Learning in Indigenous communities and families is often facilitated by mentors and roles models, ¹⁰³ and Indigenous students report struggling with the lack of Indigenous role models at university. ¹⁰⁴

Indigenous students are often presented in the literature as a homogeneous group however, there are important differences between students which can have a significant impact upon their university experiences. ¹⁰⁵ Many Indigenous students are the first in their families to study at a university. As families may not be familiar with the expectations and requirements of university study, they may not necessarily provide students with the support they need. ¹⁰⁶ Conversely, families may be highly supportive; however. first-in-family students may feel an additional emotional burden associated with their family’s expectations. ¹⁰⁷

Indigenous students are more likely than non-Indigenous students to be mature age. ¹⁰⁸ Plater et al. argue that Indigenous mature-age students are either invisible in higher education policy and research or are perceived as being too old to take full advantage of educational opportunities. ¹⁰⁹ Mature-age Indigenous students often have had negative previous experiences with education, and many have been away from school for a long time. These students need additional academic support, and are especially likely to find university to be an intimidating environment. ¹¹⁰ Older Indigenous students are also likely to have additional responsibilities, and to struggle financially. ¹¹¹ The experiences of Indigenous students may also differ depending on whether they come from rural/remote or urban communities. University participation is highest for Indigenous people living in cities and lowest for Indigenous people living in remote communities. ¹¹² Indigenous students moving from remote communities need to find accommodation, which can be expensive, and their studies are more likely to be disrupted by the need to travel home to fulfil cultural obligations. ¹¹³

Another major reason for Indigenous students withdrawing from courses is financial. ¹¹⁴ Financial assistance influences university participation by students from low SES groups; however, it may not be as important as generally assumed by policy makers. ¹¹⁵ Australian students from low SES families are often reluctant to forego earnings and are debt averse, ¹¹⁶ and low SES students continued to be underrepresented even when fees were abolished. ¹¹⁷ However, for Indigenous students, financial assistance can be vital. James et al. reported that approximately a quarter of Indigenous students regularly went without food or other necessities because they could not afford them. ¹¹⁸ Indigenous students have identified that financial support for books, especially law textbooks which can be very expensive, ¹¹⁹ and further grants could improve retention rates. ¹²⁰ A major source of funding for Indigenous students is the Aboriginal and Torres Strait Island Study Scheme (ABSTUDY). The scheme is means tested, and in January 2000 payments were aligned with more restrictive criterion used for the financial assistance schemes available for all low SES students. This change was followed by a sharp decline in the number of Indigenous enrolments, and even for students who do qualify for support, the assistance provided is often insufficient. ¹²¹ The Behrendt Review recommended that the means tests and payment rates needed urgent reconsideration. ¹²²

A number of studies have looked specifically at the experiences of Indigenous law students. While these studies have also been small-scale and are now quite dated, their findings suggest that Indigenous law students experience greater barriers than Indigenous students in other degree programmes. Interviews conducted in 1993 with Indigenous law students in Queensland revealed that all participants found law school to be intimidating. All of the interviewees described feeling alienated, and their sense of being an outsider led some students to withdraw. Students who had to relocate to study reported feeling lonely and homesick, and the presence of other Indigenous students, who may have come from different places, did not necessarily alleviate feelings of isolation. Indigenous students reported struggling to balance their studies with family responsibilities, and that the individualistic nature of legal education did not fit with commitments to family and communities. Indigenous students lacked motivating role models, and no Indigenous students could name an Indigenous lawyer. They also reported that some lecturers had exacerbated their sense of isolation, and suggested cross-cultural training and the employment of Indigenous teachers in order to overcome racist attitudes. ¹²³

Interviews across several law schools in the mid-1990s also showed that Indigenous law students struggle with feelings of alienation, lack of confidence and language problems. ¹²⁴ Similarly, in a 2007 survey of Indigenous law students enrolled at Griffith University in Queensland, 77 per cent reported experiencing cultural disrespect and/or racism from staff and other students in the law school. Eighty-two per cent of Indigenous law students had experienced tension between their studies and community responsibilities, and felt that the law school did not provide sufficient recognition of the importance of family responsibilities. ¹²⁵

Addressing High Attrition Rates

One main form of support for Indigenous university students consists of Indigenous education units. The first programme for Indigenous students commenced in 1973, and consisted of the Aboriginal Task Force, located in the School of Social Studies at the South Australian Institute of Technology. Since then, there has been slow increase of Indigenous programmes. By 1995, Indigenous programmes had been consolidated into Indigenous education units. ¹²⁶ The units assist Indigenous students with academic skills, provide pastoral care, a focal point for the Indigenous student community, and links to local Indigenous communities, and their support has been shown to increase Indigenous student completion rates. ¹²⁷

There is also a concentration of Indigenous staff within the units, and although there is a need for more Indigenous staff within all parts of the university structure, students appreciate having access to Indigenous lecturers and tutors through the units. The units assist Indigenous students to meet other Indigenous students, ¹²⁸ and this is especially important in disciplines when there are so few Indigenous students. ¹²⁹ This is not to say that there is no room for improvement, and the Indigenous Higher Education Advisory Council has noted that units vary considerably in terms of budget, size and staff. ¹³⁰ The Behrendt Review also warned that the units are hampered by a lack of resources, influence and knowledge of specific disciplines. ¹³¹

Another important means of reducing attrition rates for Indigenous students is the development of enabling programmes, which provide social and academic support prior to students commencing their studies, and helps students to become familiar with the university environment. In 1991, Australian law schools did not offer any type of enabling programme. ¹³² Today, many law schools offer some form of programme aimed at assisting Indigenous students to transition into university study. The few evaluations that have been done of enabling programmes suggest that they can help address attrition problems. James et al. describe an Indigenous Law Program at an undisclosed Australian university which includes a four-week Indigenous Pre-Law Orientation Program. The enabling programme focused on the skills students need in order to study law, including study, research and writing skills. The Indigenous Law Program also provided direct student support, teaching and staff development and research supervision. In 2000, the programme had nine students, which had increased to 44 by 2005, and the programme was also successful in improving retention levels. ¹³³

The Behrendt Review also explained that support for Indigenous students should not be left to the Indigenous education units alone, but that a whole-of-university approach needs to be adopted. ¹³⁴ Some law schools offer mentoring support for Indigenous students, most often in the form of assistance from individual staff members. The importance of faculty support has been stressed by Indigenous students, especially those in their first year. ¹³⁵ Support is sometimes offered by Indigenous staff members; however, Indigenous Australians are still under-represented as academics as well as in research, administration and management positions. ¹³⁶ Indigenous staff members have reported that the need to support Indigenous students can lead to feelings of being overworked and emotionally exhausted. Support is also invariably informal and often not included in workloads. ¹³⁷

An example of faculty support for Indigenous law students is provided by Wood, who describes an Indigenous Support Scheme run by the ANU. The Indigenous education unit at the ANU, the Tjabal Centre, runs an enabling programme for commencing Indigenous students. The programme attempts to reduce unfamiliarity with their new environment by introducing commencing Indigenous students to Indigenous and mainstream services both on and off campus. Students are also assisted in finding affordable housing and arranging transport to university, and the programme encourages family members to accompany students to Canberra. In addition, the ANU’s College of Law provides an Indigenous Support Scheme, which commenced in 1990, and provides Indigenous law students access to an Indigenous academic advisor, who mentors Indigenous students, acts as the primary contact for them and provides academic and pastoral support. ¹³⁸

The programme also attempts to create a ‘safe space’ for Indigenous law students to explore issues that may adversely impact upon their studies. This includes Indigenous staff offering culturally appropriate sessions to enable Indigenous students to discuss issues relating to identity, and their experiences of stereotyping, racism and sexism. The creation of a safe space allows students to explore and resolve conflicts; for instance, dealing with family commitments and peer pressure, in a non-judgemental environment. ¹³⁹ By 2010, 30 Indigenous students had completed their law degree, of whom 8 had graduated with honours degrees. The College of Law also reports that their high entry standards aligned with support mechanisms has ensured a recent retention and completion level of 100 per cent. ¹⁴⁰

The UNSW Law School provides a further example of an academic programme that has successfully supported Indigenous law students. The programme consists of two first-year elective topics for Indigenous students. The first involves small group tutorials, and focuses on developing academic skills. As the class only involves Indigenous students, it also provides support by ensuring that students have a culturally safe space where Indigenous students are the majority within the class, and to allow Indigenous students to develop a network of Indigenous peers. ¹⁴¹ Second, Indigenous students are provided with the opportunity to participate in the School’s legal clinic. This allows students to analyze how the legal system works in practice, develop oral and written communication skills by working with real clients, build mentoring relations with students further along their studies and develop networks with key law agencies. As many Indigenous students are motivated by wanting to help their communities, being involved in the clinic can also allow students to understand how their studies contribute to social justice. ¹⁴²

The Need for an Indigenized Curriculum

The whole-of-university approach requires more than simply providing academic and pastoral support. The need to incorporate Indigenous knowledge into the university curriculum has been recognized in successive reviews of higher education, ¹⁴³ and yet Indigenous students continue to report that Indigenous perspectives and knowledge is either missing from the university curriculum or is marginalized. ¹⁴⁴ For Indigenous students, the inclusion of Indigenous perspectives and knowledge would contribute to the creation and reinforcement of identity, would fit with motivations for coming to university, ¹⁴⁵ and thus would assist in retention. ¹⁴⁶ An Indigenized curriculum would also potentially benefit all students by providing training to future lawyers to be able to work with Indigenous communities, developing students’ understanding of the social effects of law ¹⁴⁷ and deepening their appreciation that knowledge is socially constructed, pluralistic and mediated by power relations. It will also help students become reflective learners who are able to challenge their own cultural assumptions. ¹⁴⁸

Jones argues that in order to Indigenize the law curriculum, it is necessary to include both ‘Indigenous legal issues’, meaning how the state legal system impacts upon Indigenous people, and ‘Indigenous law’ meaning Indigenous understandings of law. ¹⁴⁹ Both these bodies of knowledge, however, are largely absent from Australian legal education. ¹⁵⁰ Indigenous legal issues are generally only covered in electives, and even then are often confined to a specific elective focusing on Indigenous people and the law, rather than embedded throughout the entire curriculum. ¹⁵¹ For instance, following criticism of the absence of an Indigenous law unit, ANU introduced an elective unit entitled Indigenous Australians and the Law in 2011. ¹⁵² While student feedback concerning the unit was positive, the topic was taught as an elective rather than a core unit, and the number of students exposed to Indigenous legal issues was small and self-selecting. ¹⁵³

The ANU unit also did not consider Indigenous law. ¹⁵⁴ Jones stresses that students should understand that Indigenous law is not dependent on state law, although it may interact with it, and that the legitimation of Indigenous law is essential to Indigenous communities. She argues that non-Indigenous students need to understand that Indigenous law is derived from Indigenous world views, and that the structure, norms and values of Indigenous law are different from the state law. ¹⁵⁵ This will also encourage students to understand that the state law is not the only legal system operating within Australia and other jurisdictions. ¹⁵⁶

Traditionally, the teaching of Indigenous knowledge has been limited to the humanities and the social sciences, rather than law. ¹⁵⁷ Greenwood reports that none of the Australian law school offered a topic on Indigenous law in 2014. Even topics specifically concerned with Indigenous Australians and the law rarely contained content about Indigenous law. ¹⁵⁸ Greenwood argues that the lack of Indigenous knowledge in the law curriculum is more acute in Australia relative to other jurisdictions, especially Canada and New Zealand. ¹⁵⁹ Watson argues that Australian legal education continues to be dominated by a doctrinal approach which does not consider the historical, political or cultural context of law, or allows for the presence of alternative legal knowledge. ¹⁶⁰

Since the 1970s, there have been efforts to bring in ‘radical’ discourses into the Australian legal curriculum, which challenge the political, social and theoretical biases supported by traditional doctrinal approaches. However, James argues that these efforts have met with limited success, and radical discourses remain marginalized. Australian law schools continue to focus on doctrinal law alongside the inculcation of legal skills, rather than allowing students to reflect on how the law is socially constructed, how social injustices are perpetuated by the law and legal institutions, or to foster a concern to use the law to change social inequalities. ¹⁶¹ In addition, Thornton argues that the Australian law curriculum largely focuses on training lawyers to work within the corporate sphere, and has little concern with issues of social justice. This focus has stifled efforts by critical race scholars, and others, to embed critical perspectives within the core of legal curriculum. ¹⁶²

The dominance of doctrinal legal scholarship and corporate values within legal education is illustrated in Graham’s analysis of real property law courses. ¹⁶³ The majority of Australian real property courses use doctrinal analysis to examine how the law protects the interests of non-Indigenous property owners. Indigenous perspectives on land law and property are either excluded altogether or reduced to an examination of native title which is ‘added-on’ to the end of course. This segregation denies students any opportunity to compare legal systems, and suggests to students that native title is not a significant topic. Indigenous understandings of land law and property are also reduced to native title, without considering that native title is a category of Anglo-Western property law which is becoming increasingly inconsistent with Indigenous land law.

Despite these problems, we should not give up on efforts to move radical discourses from the margin to the core. ¹⁶⁴ An example of a successful effort to incorporate both Indigenous legal issues and Indigenous law into the core component of law curriculum is provided by Anthony and Schwartz’s teaching of Criminal Law and Procedure at a number of Sydney universities. ¹⁶⁵ Anthony and Schwartz examined both the impact of criminal law on Indigenous people as well as the impact of colonial law on Indigenous criminal law. This shift in perspective provided students with a deeper understanding of the coexistence of Indigenous and non-Indigenous law, and considered how law may act as a tool for subjugation. It also provided a contextual and critical analysis of the differential impact of the law, such as the overrepresentation of Indigenous people in Australia’s prisons, which moves beyond simplistic, victim-blaming explanations. However, such a shift is not easy, and requires a familiarity with Indigenous law, as well as appropriate text books and Indigenous teaching staff. ¹⁶⁶

Culturally Appropriate Teaching and Learning Strategies

The development of an Indigenized curriculum may assist in addressing the content of legal education; however, there is also a need to ensure that teaching and learning methods are appropriate for Indigenous students. First, Indigenous students including those studying law have reported experiencing both overt and covert racism. Indigenous students report having their identity questioned, being confronted by other students when Indigenous issues are raised and feeling pressured by teachers to be experts on Indigenous issues and to fit crude stereotypes. ¹⁶⁷

These problems reveal the need to build cultural competency skills within teaching staff and non-Indigenous students, and the need to ensure that universities foster safe cultural spaces for all students. ¹⁶⁸ The lack of cultural competency has been reported as a major barrier to incorporating Indigenous knowledge into the law curriculum. For instance, efforts to incorporate Indigenous perspectives into the entire law curriculum at the Queensland University of Technology were hampered by teachers’ lack of cultural competency. Law teachers reported that they did have sufficient knowledge and skills to effectively teach Indigenous knowledge, they were uncomfortable about not knowing how to deal with racism, and concerned that they might offend Indigenous students. ¹⁶⁹

As experts in the operation of state law, non-Indigenous legal academics should be able to incorporate Indigenous legal issues into all aspects of the legal curriculum to some degree. ¹⁷⁰ However, Jones argues that the teaching of Indigenous legal issues from an Indigenous perspective and the teaching of Indigenous law is best taught wherever possible by an Indigenous teacher. ¹⁷¹ Indigenous students have also indicated that they appreciate being taught by Indigenous teachers, ¹⁷² especially as the sharing of Indigenous perspectives can help alleviate some of the cultural clash and sense of isolation, and save Indigenous students from having to continually explain themselves. ¹⁷³ Australian universities, however, have few Indigenous teachers. ¹⁷⁴ Nakata also argues that most Indigenous knowledge taught in Australian universities, whether by Indigenous or non-Indigenous teachers, is derived from representation in English by Western knowledge specialists, rather than being learnt in situ in Indigenous contexts. ¹⁷⁵ One way forward may be to involve local Indigenous communities in curriculum development and teaching. This would also help to build collaboration with local communities, which would in turn assist with enrolment and retention. ¹⁷⁶

The greater involvement of Indigenous communities in legal education also provides a better fit with the learning strategies of Indigenous students. Learning strategies within Indigenous communities may include storytelling and memorymaking through narratives, art and performance. ¹⁷⁷ Indigenous students may benefit from more flexible delivery, including greater use of online courses and options for part-time study, ¹⁷⁸ and the use of applied examples and experience-based learning. ¹⁷⁹ It is also important to take into consideration that Indigenous knowledge is contested, multiple and diverse. For Indigenous communities, students and teachers, Indigenous knowledge and ways of knowing are ambiguous, and may involve forgetting and keeping separate. ¹⁸⁰ For law students, understanding how knowledge is constructed would further their cultural competency skills.

Law students from the dominant Anglo-Western culture do not always respond positively to efforts towards building cultural competency. Cody and Green ¹⁸¹ discuss efforts at UNSW to teach Indigenous legal issues to non-Indigenous students. In the first year of teaching, Sue Green, an Indigenous teacher, drew on her life history and family history, coupled with a narrative teaching style. Green’s presentation was met with resistance from some students who seem unprepared for a teacher to use a style that differed from the ‘mainstream’ styles used in law school, and came laden with their own views on Indigenous people and race issues. Some students seemed unwilling to consider an Indigenous world view, and rejected Indigenous experiences of colonialization. ¹⁸²

In the second year of teaching, the topic coordinator framed Green’s presentation with a discussion of different learning strategies, including the use of narratives. She also introduced students to critical race theory in an effort to challenge students’ world views. Cody and Green argue that law students often think of themselves as being intelligent, community-minded and socially aware, and that some students become uncomfortable when asked to challenge their views about ethnicity and race. ¹⁸³

Burns also suggests that the teaching of Indigenous legal perspectives is best done by drawing on critical race theory and whiteness studies. ¹⁸⁴ These frameworks provide insights into why Indigenous knowledge has been excluded from the Australian university curriculum, ¹⁸⁵ including legal education. ¹⁸⁶ Pedagogic approaches, informed by critical race theory, require students to critique rationales used to justify the continuing marginalization of non-white knowledge. ¹⁸⁷ This includes becoming conscious of their own race privilege, which some students will find unsettling. ¹⁸⁸ Burns argues that law school staff would also benefit from programmes that unsettle attitudes and behaviours that may unwittingly perpetuate Indigenous disadvantage. ¹⁸⁹ As Irene Watson, a prominent Indigenous legal academic asserts, critical race theory requires legal educators to think critically about whose law is taught in Australian law schools. ¹⁹⁰

Conclusion

This article reviews the existing research literature concerning the journey of Indigenous students into law school. For many, this is a journey fraught with obstacles. Indigenous students often struggle to obtain the high entry requirements for entry into law school and the belief that university education is not an option. Once Indigenous students enrol in law school, they often face additional problems. Indigenous students experience higher attrition rates compared to other social groups. Many experience financial hardships and struggle within an environment that is culturally alienating. Indigenous legal issues and Indigenous law are generally excluded from the law curriculum, reflecting the continuing dominance of a doctrinal approach towards legal education that is not concerned with the impact of law, the social construction of legal knowledge and the relationship between law, legal institutions and power.

While it is important to identify the barriers facing Indigenous law students, it is also essential to identify potential solutions. These include innovative and culturally appropriate approaches to outreach, pathways for Indigenous students from VET to university study and additional financial, academic and social support for Indigenous students once they commence their studies. These solutions work best when law schools and universities collaborate with Indigenous students, families and communities, and take a long-term approach.

Solutions, however, also need to go deeper than additional assistance. Indigenous knowledge needs to be fully embedded within the core components of the law curriculum, and the cultural competency of students and staff alike developed so that they can critically reflect upon how race and racism is constituted by the law. Even if the number of Indigenous students studying law continues to increase, without further critical examination of the nature and value of law, Indigenous perspectives will still be excluded and the law will continue to act as a tool of oppression rather than an instrument of transformation.