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The judiciary, the profession and all who work in the courts need to be aware of and understand the hidden or unconscious gender bias in the law and the administration of justice so that it can be consciously and conscientiously eliminated. (Malcolm CJ, 1993)
816 THE INTRODUCTION to Part 4 identified five systemic barriers to women’s
access to private lawyers’ services. This chapter discusses the fifth of those; namely, inadequacies in the education of lawyers which prevent the social context of women’s lives (and therefore their needs when seeking to rely on the justice system) from being sufficiently well-understood by all lawyers.
817 As has been seen, many women believe that lawyers’ insufficient awareness of the social and economic facts that characterise women’s lives results in their legal services needs not being met. While criticisms of lawyers’ technical competence (and so of their legal education in that regard) were relatively rare, it was very widely believed that the training lawyers receive, especially before being admitted to practice, does not equip them well to serve diverse women clients.
818 This chapter examines the three stages of formal legal education, the extent to which each incorporates gender specific information and analysis, and the need for its inclusion throughout. In the light of this information, three main strategies are proposed to overcome current inadequacies:
• the development of specific proposals for gender-related legal education, the outcomes of which are measurable;
• the development of skills and expertise among legal educators; and
• co-ordination of those initiatives across the three stages of formal legal education.
Specific recommendations are made to implement these strategies.
819 Education is a life-long process. Those who begin the formal study of law at one of the five New Zealand universities which award law degrees will already have obtained substantial knowledge of, and attitudes towards, matters which are relevant to law. The greater diversity of today’s university law students, compared to those of even 30 years ago, enlarges the pool of relevant knowledge, experiences and values which are brought to law school. In the future, as a result of the increasing emphasis on law-related matters in primary and secondary school education, those who enter law school may be expected to bring with them a more reflective awareness of the need for law, the values which underlie it and its utility for diverse New Zealanders.
820 There are three main stages of formal legal education: university education, pre-admission professional training, and post-admission continuing legal education. All have undergone substantial changes over time, and especially in the last decade. Indeed, it was the objective of the Council of Legal Education in 1988, when it reduced the core curriculum for the law degree to six subjects, to facilitate a shift in understandings and approaches to the teaching of law at university level. At that time, the chair of the council stated that the significant reduction in the size of the core curriculum for the law degree would allow:
development of courses to meet or anticipate current needs. Several areas may be noted. One group involves minority rights, the Treaty of Waitangi, cultural influences in law and women’s studies; another includes dispute resolution, professional responsibility, ethical responsibility and clinical education; and a third interdepartmental studies in law and economics and law and sociology. (Sir Ivor Richardson, 1989, 88)
821 It was also in 1988 that the Council established the Institute of Professional Legal Studies, ushering in the current era of pre-admission professional training. In the past decade too, there has been an expansion in the opportunities available to lawyers for continuing legal education through the New Zealand Law Society’s programme and those of the larger district societies, especially the Auckland society. Without detracting from the many efforts that have been made to improve the scope and quality of formal legal education, it is timely to reflect on whether the changes that have been made are sufficient to “meet or anticipate current needs” of lawyers’ clients and, in particular, their women clients.
University education
822 The formal study of law at university occupies a comparatively brief portion of any lawyer’s life experience. A law degree involves four years of study, at least three of which are dedicated to law courses. At present, six courses are compulsory in every New Zealand student’s law degree: Legal System, Contract, Torts, Criminal Law, Public Law and Property Law. The descriptions of these courses, as specified by the Council of Legal Education, are very general, ranging from one-line to five-line statements of their contents. They contain no mention of any expectation that students should be encouraged to reflect on the law’s application to and meaning for diverse New Zealanders.
823 In addition to these courses, four of the five law schools specify a small number of other courses as being compulsory in their students’ degrees. Beyond the compulsory courses, which, at most, make up about half of a student’s degree, each student selects optional courses from the range on offer. There is a considerable amount of commonality in the areas of law covered by the optional courses offered at the five law schools. (See NZLC MP11, 8) However, each school prizes its freedom to design its courses to meet the needs of all the “stakeholders” in the education that is being provided.
Pre-admission professional training
824 A New Zealand law graduate who wishes to practise law must complete a 13 week professional training programme provided by the Institute of Professional Legal Studies (IPLS). Having successfully completed the IPLS programme, any person who is at least 20 years old and “of good character and a fit and proper person to be admitted” is entitled to be admitted as a barrister and solicitor. Upon paying for a practising certificate (and so becoming a member of the relevant district law society and of the New Zealand Law Society), a newly admitted lawyer can commence work on behalf of clients. A newly admitted lawyer cannot, however, practise as a solicitor on his or her own account before gaining at least three years’ “legal experience” in New Zealand and demonstrating, by examination, a knowledge of the financial duties of solicitors. (ss 44, 46, 55 and 56 Law Practitioners Act 1982) (See further NZLC MP11,
7–11)
Post-admission continuing legal education
825 Naturally, the work experience which lawyers accumulate throughout their careers, and the life experience they accumulate as members of New Zealand society, are vital to the continuing acquisition and development of knowledge, skills and values necessary for the discharge of their professional responsibilities. In addition, the New Zealand Law Society and some of the larger district societies offer a variety of seminars and workshops each year to accelerate and extend lawyers’ professional development. Some law firms also offer structured in-house training programmes of varying standards.
826 The continuing legal education programme offered by the New Zealand Law Society has been developed in recent years to include a closer focus on the needs of newly admitted lawyers. This has been achieved through a “planned curriculum” of workshops, each of which is designed to develop lawyers’ skills in, for example, domestic conveyancing, or acting as a duty solicitor or as an advocate in the Family Court. In some areas of legal practice (for example, duty solicitor work), only those who have completed the society’s training programme will be rostered for that work. As well, the majority of lawyers (80 percent) who are appointed by the Family Court as counsel for the child have attended the Society’s training programme relevant to that work. (Gray and Martin 1998, 32) (See further NZLC MP11, 12–13)
The role of formal legal education
827 A fundamental objective of lawyers’ formal education is that it should produce practitioners who are competent to serve their clients. Views may differ, however, on the role which should be played by each of the three stages of formal legal education in building up the armoury of knowledge, skills and values that is needed by a competent lawyer. The following are some of the features of legal education in New Zealand which influence views about the role of each stage:
• the university law schools are not educating students only to become practising lawyers: it is estimated that about one half of law graduates practise law;
• university education is undergoing substantial change as a result of increasing student numbers, funding changes and greater competitiveness among tertiary education providers;
• the legal profession is becoming increasingly specialised, with implications for what may be regarded as the common areas of knowledge and skill required by competent lawyers;
• the costs of professional legal training (the IPLS programme) now fall on trainees, with implications for the length of the course and, therefore, the role it can play in the continuum of lawyers’ formal education and training;
• there is not a high level of co-ordination between the activities of the Council of Legal Education (the body responsible for the oversight of legal education and training prior to admission as a barrister and solicitor) and the activities of the professional bodies (the national and district law societies) which are responsible for post-admission legal education and training;
• the supervision of newly admitted practising lawyers by employers is not monitored and is of variable quality;
• there is no mandatory continuing education for New Zealand lawyers; and
• the organisation of the legal profession is under review and the outcome is bound to affect the roles of the national and district law societies and, perhaps, the role of the Council of Legal Education.
828 The consultation paper The Education and Training of Law Students and Lawyers (NZLC MP11), asked whether, and if so how, law students’ and lawyers’ education and training should ensure that members of the legal profession achieve an understanding of the relevance of gender to the law, and to clients’ use of and faith in the law. The overview it provided of the curricula of the university law schools, of the IPLS professional training programme and of the continuing education programme offered to practising lawyers (NZLC MP11, 7–14) is summarised and updated here.
University law schools
829 In the university law schools, it is generally in the optional, rather than the compulsory, courses that students may encounter an approach to the law which specifically considers “gender issues”. The major exception is Waikato School of Law, where teaching of the differential impact of law upon women and men is mainstreamed. From information provided by the law schools about their compulsory courses, three of the other four schools include a feminist legal theory component in their compulsory Jurisprudence course; two include some gender-related material in the compulsory Legal System course; and one includes some material in the compulsory Equity course.
830 With regard to optional courses, all of the law schools identify Family Law as a course which includes relevant material: for example, in the words of one law school, “the financial problems consequent on the breakdown of relationships and domestic violence”. All the schools except Waikato have one course dedicated to either Law and Gender or Feminist Legal Theory. Three of those schools offer another two or three optional subjects which have some gender-specific content; for example, Law and Medicine, Employment Law and Advanced Criminal Law. The fourth law school has identified a further seven of its optional courses as including gender-specific material, namely, Media Law, Sentencing, Negotiation, Labour Law, Civil Liberties, Law and Psychiatry, and Company Law.
The IPLS programme
831 The 13-week IPLS programme, which consists of a Litigation module and a Commercial/Property Law module, is focused on developing skills which trainees will need in legal practice. It is designed “to bridge the gap between the learning of substantive legal principles in the academic context of the law schools and the supervised practice of law in a range of legal settings”. (Report: Review of Practical Legal Training, 1 October 1996, 22) The standard materials used in the training have little specific focus on the needs of women clients. (See further MP11, 52–53)
832 Recently, the Council of Legal Education has approved a prescription for the IPLS professional conduct “seminar”, which is to be taught from the year 2000. The prescription includes a statement that IPLS trainees will be made familiar with “the need to strive for the maintenance in the profession of certain values”. These include:
(a) serving the public in a competent manner
(b) the aim of providing adequate legal services to those who cannot afford to pay for them
(c) the aim that the law and legal institutions act fairly and with justice and
(d) ensuring that at all times the profession and the members of it act without any bias based on race, religion, ethnic origin, gender, sexual orientation, age or disability.
833 Communication with the IPLS suggests that the course materials to be developed for this part of the professional conduct seminar will promote trainees’ understanding of gender issues as they affect both clients and lawyers. It also suggests that the area of Professional Conduct may develop into a third “leg” of the IPLS programme, with the other two “legs” being made up of skills training related to Legal Practice and Litigation.
Continuing legal education
834 The consultation paper The Education and Training of Law Students and Lawyers recorded that the New Zealand Law Society has not canvassed the possibility of including on a formal basis, across its continuing legal education programme, material focusing on the impact of gender, nor of addressing areas of the law that may be particularly important to women clients.
835 Communication with the society since that time suggests that it considers that its own willingness to enhance the focus on gender is not matched by lawyers’ willingness to attend continuing education seminars and workshops which have such a focus. By way of example, it pointed to the disappointing attendance levels at the 1997 seminar, “Women in the Criminal Justice System”, presented in five centres and led by the Chief District Court Judge, a woman Queen’s Counsel and a senior woman academic. Despite that, the society is making further efforts to include materials on gender issues in its continuing education programme where possible. In that regard, it noted that the consultation papers published in this project have been used as resource materials by some presenters in recent workshops.
836 The Education and Training of Law Students and Lawyers presented a number of historical and contemporary facts which illustrate the constraining effects of gender on women’s opportunities to participate in the public world and to live as independent citizens whose contributions to society are valued equally with those of men. For example, the paper referred to the fact that, by law, women were excluded from membership of the legal profession (and so from the judiciary) until 1896, and from standing for Parliament until 1919, and outlined the slow progress over the last century in increasing women’s participation and influence in those primary institutions of justice. It also outlined the economic disparities between New Zealand women and men; the distribution between women and men of primary responsibility for the rearing of children, and the economic value attached to that responsibility; and the incidence of violence against New Zealand women. (NZLC MP11, 15–18)
837 In the light of those facts, the paper then presented the criticisms of lawyers’ quality of service to women clients that were most frequently made in the consultation programme. As has been seen, those criticisms were focused on the shortcomings in some lawyers’ interpersonal communication skills, and in their knowledge and understanding of the social and economic facts of women’s lives.
838 The majority of the 25 written submissions made in response to the paper expressed the clear view that lawyers’ education should do more to assist the development of law students’ and lawyers’ understanding of the impact of gender on the law, and on women’s experiences and opinions of the law. Notably, community groups, as well as women lawyers’ groups and the Ministry of Women’s Affairs, supported the introduction of educational initiatives, including compulsory initiatives at university level, designed to enhance lawyers’ appreciation of the causes and effects of gender distinctions, and their relevance to law.
“There should be no question that teaching of a gender perspective on the law should be optional . . . Fifty percent of the potential client population is female and stand to be disadvantaged and poorly served if the legal practitioners they engage have no understanding of the gendered nature of both society and the law . . . The project has produced enough evidence of extremely poor service to women from (male and female) lawyers who are clearly ignorant of gender issues to demonstrate that optional courses will be of little use in making inroads into a very unjust situation. The status quo will only serve to entrench male privilege further . . . It cannot be argued that only a small proportion of legal issues may require a gender perspective and that fields like ‘corporation law’ are gender neutral.” – Submission 9 on NZLC MP11
“All aspects of legal education must employ gender-inclusive language and avoid sexist stereotyping. Issues portraying feminist analysis and gender analysis should be included as case studies. Law schools must begin to include an acknowledgment of difference and the impact of difference in their core curricula, if the law profession is to improve its reputation and its service provision . . .” – Submission 8 on NZLC MP11
“[S]ystemic change would be far more effective than any ‘add on’ course which would only serve to further marginalise groups that are currently not part of the mainstream.” – Submission 11 on NZLC MP11
839 Two submissions, one from a lawyer and the other from a district law society, questioned the need for gender issues to be the focus of any heightened educational efforts.
“Although ‘gender equity’ is a fashionable topic for advancement at the moment I favour a policy of gradualism here, as with the incorporation of Mäori issues. With 28 percent of the practising profession now being women and with 18 percent of the District Court bench now being women, beneficial changes are bound to occur naturally.” – Submission 2 on NZLC MP11
“The five law schools should not develop a policy about the inclusion of gender materials in their curricula. Obviously, with over half the students being female and, in my experience, quite assertive as to their positions, lecturers would ignore at their peril issues and ramifications of their teaching which affect women.” – Submission 5 on NZLC MP11
840 In lieu of written submissions from legal educators, a meeting was held with members of each of the university law schools, the IPLS and the continuing legal education committee of the New Zealand Law Society. In addition, several university and other law teachers made written submissions, both before and after that meeting. As well, members of the project team had further meetings with a smaller number of those who had attended the earlier meeting of law teachers, and with other law teachers. A number of law students were also consulted at meetings organised by law schools to discuss the consultation paper or the project more generally.
841 Those submissions and meetings revealed a stark division of views about the need for and the appropriateness of including in lawyers’ education information and critiques which explore women’s experiences and perspectives of law. For example, in their written submission, the staff of the IPLS expressed differing views on the question of whether materials focused on gender issues affecting clients should be developed for inclusion in the programme. Some staff considered that there is scope for doing so, and that their inclusion would make the programme’s content more reflective of issues which arise in legal practice. Some considered that the IPLS materials insufficiently promote the need for lawyers to be aware of, and act appropriately in relation to, gender issues. It was noted too that while IPLS staff are encouraged to discuss gender issues in relation to women lawyers’ careers, this is not compulsory. Some staff considered that any materials to be developed should include information of that kind.
842 Other IPLS staff were unsure about, or opposed to, the inclusion of materials focusing on gender issues. Their view was that the present materials are “gender neutral” and function well as “the basis upon which to teach skills rather than to teach or facilitate discussion on social, political or gender issues”. (Letter from National Director and staff of IPLS, February 1998)
843 The division of views appeared to be most acute, however, in relation to law students’ university education. Those who favoured finding ways to increase the focus on gender in law school courses highlighted the difficulties they had experienced to date in attempting to achieve that result. For example, a number of academics reported that their efforts to incorporate women’s experiences and perspectives in their classes have been met with the response, from some colleagues and students, that “real law” should be taught instead. Some students who had taken feminist law courses reported both ridicule from other students and veiled criticism from prospective employers who suggest that something more worthwhile should have been studied. Some students also reported being afraid to question the omission of gender-related material from other law courses because of the risk of ridicule from teachers.
844 There were three distinct reasons given for opposing the suggestion that the university law schools, in particular, should adopt a planned approach to introducing all students to material which highlights the influence of gender on the law. The first reason is that there is no need for any such planned focus because the issues are not relevant to most lawyers’ work. Where they are relevant, as in family law and criminal law, there is already adequate scope for them to be considered by individual lecturers and students who wish to do so. Beyond that, the knowledge and skills needed by lawyers for the effective practice of law will be gained “on the job”, and those who work in the areas of law in which women most need assistance will, with maturity, develop the empathy that is needed to provide quality service.
845 The second reason for opposing the idea that university law schools should introduce all students to gender analysis stems from the notion of academic freedom. While those who rely on this reason may accept that issues arising from gender distinctions are integral to some areas of law or even to the entire field of law, the objection is to the notion that any part of a law student’s university education should be required to focus on those issues. The dangers of compulsion that were described are that it can lead to undesirable rigidity in the law schools’ ability to respond to the needs of all those who are stakeholders in the education that they provide; to a lack of innovation within and competition between law schools; and to temporary “compliance” by students with the “emphasis” which is being taught, rather than the development of their capacity for independent and critical thought which, it was said, is the product of exposure to the variety of emphases that is offered in law schools.
846 The third reason is far more pragmatic. It is that the general level of knowledge among legal educators of what might be involved in the teaching of “gender issues” in law courses is not yet sufficiently developed to allow an informed debate on whether and how more of it should be done. Inevitably then, conditions are not ripe for the successful implementation of any proposal that there should be more widespread use in university (or further legal education) of material focused on the relationship between gender and law. Accordingly, the current priority is to encourage legal educators as a group to learn more about the ways in which gender and law may be connected. Meantime, those who are already well placed to incorporate gender-related material in the courses they teach can do so, and can act as resource people for others.
847 From the discussions held with legal educators in particular, it appears that the third reason provides an accurate summary of the present situation. By its very nature, it precludes an immediate and comprehensive response to the clear call from New Zealand women that law students be taught in a way which is more sensitive to the facts of women’s lives and to the impact of law in perpetuating women’s inferior social and economic status. It does appear, however, that there is a widespread commitment among university law teachers, and other legal educators, to the introduction of initiatives which will encourage the development of their own understanding of the relationship between gender and law so that they will be better placed to decide how to pass on that knowledge. Accordingly, the suggestions made here for immediate action are directed to the implementation of that commitment.
848 Before turning to those recommended strategies, some observations may be made about the first and second reasons that were given for opposing the suggestion that legal educators, particularly those in university law schools, should adopt a planned approach to the inclusion of gender analysis in their courses.
Gender is relevant to all law
849 The first reason tends to assume that the relevance of gender to law is confined to specific areas of the law, most notably family and criminal law. But this is not the case. An exploration of the relationship between gender and law can be conducted in any legal field at all; it does not consist of a set of topics in which women are already known or seen to be interested. Rather, it consists of a particular way of approaching law, even areas of law which may seem to have little direct or indirect impact on women’s lives. This point has been made often in the available literature, including an article by an Australian academic, the title of which helps makes the point: “Exploring the Corporations Law Using a Gender Analysis”. (Canberra Law Review, 1996, Vol 3, No 1, 82)
850 It is explained there that, in addition to utilising the “full range of methods of legal reasoning”, gender analysis does three things. It “asks the woman question” in order to see how the substance of law may submerge the perspectives of women and perhaps even render them invisible from legal discourse. It also applies “practical reasoning” which expands traditional notions of legal relevance in order to make legal decision-making more sensitive to features of cases that are not already reflected in legal doctrine. Thirdly, and as a result, it challenges “the dominant paradigm” or the prevailing way of thinking about, justifying and even critiquing law. (See also Barnett 1998, 21–27)
851 That last idea, that there is a “dominant paradigm” of legal thought which tends to exclude or minimise women’s experiences and perspectives, is hardly a radical one these days. It has already been noted (see chapter 8, para 644) that half of New Zealand’s judges expressed agreement with that basic proposition in their responses to the questionnaire circulated on behalf of the Judicial Working Group on Gender Equity before the 1997 Gender Equity Seminar. It would be interesting indeed to know whether, since the seminar, an increased proportion of judges would now agree with the proposition. Certainly, in the evaluations returned at the seminar’s conclusion, the great majority of judges (85 percent) rated the seminar highly, with half giving it the top rating possible. All found it increased their understanding of gender issues and 97 percent said they would do things differently as a result of attending the seminar. (LawTalk 513, 15 February 1999, 1)
852 There has been a great deal written, mainly overseas, on why and how the law is not “value-neutral” as between the interests of women and men. For example, the Australian Access to Justice Advisory Committee commented in its report to the federal government that one result of the predominance of men in legal institutions has been the establishment of laws and legal systems that reflect and represent “social ideals of masculinity”. By way of example, the committee continues:
Adversarial legal procedures assume a contest between equal competitive, autonomous, self-interested actors, each eager to best the other, a role for which it may be said that men are more likely than women to be fitted by their socialisation. Tests of “reasonableness” have assumed the values of the reasonable man, excluding and marginalising women’s experience in a wide range of areas of the law, from torts to sexual harassment to self-defence. (Access to Justice Advisory Committee 1994, 31)
853 One of the many explanations provided in the overseas literature of how the law can exclude or marginalise women’s experiences includes this passage:
Many doctrinal areas of the law are . . . fundamentally structured around men’s perspectives and experiences . . . Tort law defines injuries and measures compensation primarily in relation to what keeps people out of work and what their work is worth. It is in this framework that non-economic damages, such as pain and suffering or compensation for emotional injuries, which are often crucial founts of recovery for women, are deemed suspect and expendable. In the language of criminal law, the paradigmatic criminal is a male, and women criminals are often viewed as doubly deviant. Another example of the manifestation of the male reference-points is how self-defense law looks to male notions of threat and response to assess what is reasonable. Contract law is built around the form of transactions that predominates in the male-dominated marketplace, and doctrines that are regarded as necessary to assist the weak (ie, helpless women), such as reliance and restitution, are subtly demeaned by the language as “exceptions”, as deviations from the normal rules of contract. All of this suggests that for feminist law reformers, even using the terms “equality”, “work”, “injury”, “damages”, “market”, and “contract” can involve buying into, and leaving unquestioned, the male frames of reference. It also leaves unspoken, and unrecognised, the kinds of work women do, or the kinds of injuries women suffer. (Finley 1989, 898)
Academic freedom
854 The passages quoted above are also relevant to the academic freedom reason that was given for rejecting the idea that law school courses should include some compulsory focus on the relationship between gender and law. In particular, that reason assumes that there is no “compulsory emphasis” in the law courses taught at present, and that the mix of teachers at each law school guarantees that students will be exposed to a variety of viewpoints which will foster students’ independent and critical thought. But if law is not value-neutral as between men’s and women’s interests (and so has an in-built “emphasis” which favours the experiences and values more likely to be had or held by men than women), and if law teaching is not generally concerned to explore and challenge that emphasis – despite the law’s commitment to the equality of women and men – then the argument may be turned against its proponents. Further, the “mix” of teachers at law schools is far from being representative of the mix of men and women in the general population. Men significantly outnumber women at all but one law school, particularly in the senior academic positions. (See NZLC MP11, 39)
855 The argument for academic freedom was directed against the idea that there should be a requirement imposed on law schools to focus more on the relationship between gender and law. Accordingly, it does not deny that an increased focus on gender and law could be introduced at any law school through the processes by which it ordinarily determines its course content and its staff, both of which are within its academic freedom to determine. The two points can become confused, however, because some who argue on the basis of academic freedom that there should be no imposed focus on gender in law courses will also be of the view that any greater focus than already exists is not merited. That would lead them to oppose the adoption of any policy proposed within their own law school, or by any other body with relevant authority, which stated an expectation that law courses should be taught in a manner which is mindful of the relationship between gender and law.
856 The possibility of the Council of Legal Education introducing such a statement was raised and welcomed by some of the academics with whom the project team spoke, and particularly by women academics. They saw it as legitimating the efforts of those who presently endeavour to introduce gender-related information and critiques in their law courses, and encouraging the exploration of that approach by other academics, without the counter-productive effects of a prescriptive requirement that particular material be taught, which could be objected to on academic freedom grounds, at least.
857 Part of the academic freedom argument is that there is already ample scope for gender-related information to be introduced in law courses. Presumably this scope exists because of the aspect of academic freedom which is described in the Education Act 1989 as:
the freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions. (s 161(2)(a))
858 There are numerous obstacles, however, in the path of individual law teachers (and even more in the path of individual students) who wish to explore the relationship between law and gender in their law courses, and these may have the effect of unduly limiting their “freedom” to do so. One obstacle lies in the fact that, by comparison with the United States, Canada and Australia in particular, there is a paucity of local academic commentary upon, and sociological information and analysis relevant to, the relationship between gender and law. Further, the wealth of international legal materials that is available represents only a small fraction of a far larger database of knowledge and opinion about law, much of which proceeds from the basis that connections between gender and the law are not important matters of inquiry beyond the most obvious areas of law in which women are commonly involved as parties. University law teachers, in particular, are subject to very few prescriptions as to what they teach, even in the compulsory subject areas of the law degree. Accordingly they can select, to support or challenge their own understandings of law, as little or as much as they wish from the large database of international and local knowledge and opinion. In short, if they have not previously been disposed to search for commentaries and analyses which seek to uncover what has been called “the hidden gender of law”, the large majority of those sources might have been overlooked.
859 Second, the “freedom” to incorporate gender-based analysis into law courses is inevitably qualified to the extent that such an approach is inconsistent with the understandings of law which have prevailed in key decisions taken about law teaching. For example, decisions about the courses which should be taught in the law degree, how they should be taught and what subject matter they should cover may all constrain the scope for initiatives to extend the focus on law and gender. Certainly, sustained analyses of law and gender do not fit neatly with the way the legal world is divided into the subject areas commonly taught in New Zealand law schools.
860 For example, in their book The Hidden Gender of Law (Federation Press, 1990), Australian academics Professor Graycar and Associate Professor Morgan present their discussion of substantive law under three major headings: Women and Economic (In)dependence, Women and Connection: A Motherhood Issue?, and Injuries to Women. Under those headings is presented material which could, in the present New Zealand law degree structure, be lifted out, made specific to New Zealand conditions, and presented as part of any course in employment law, family law, taxation law, social welfare law, tort law, contract law, criminal law, public law, trust law, law and medicine, and media law. The point is, however, that after such a process, the sum of the parts may be unrecognisable. Accordingly, a teacher of any one of those courses who wished to offer an in-depth critique from women’s experiences and perspectives of the assumptions underlying the law and its connection to the socio-economic distinctions between women and men, may be constrained by the boundaries which mark off that law course from others.
861 From the consultation that has been conducted, it is apparent that some law teachers find the course structure at their law schools to be an impediment to their efforts to incorporate gender specific information and analysis in the most effective manner. It seems plain, however, that other teachers have yet to test the scope that already exists for introducing information which highlights connections between law and gender in the courses they teach. It is acknowledged that courses such as Law and Societies (taught only at Waikato), Jurisprudence and Feminist Legal Theory offer scope for an examination of some of those issues, unconstrained by the divisions which exist between other substantive law subjects. It is acknowledged too that, although not one of the compulsory courses prescribed by the Council of Legal Education for the law degree, Jurisprudence is compulsory at three of the five New Zealand law schools, and each of those courses includes some focus on feminist legal theory.
862 The result is, however, that across the five law schools which provide New Zealand’s future lawyers with their grounding in legal knowledge and the analytical tools to undertake legal work, there is considerable variation in the opportunities provided to students to consider the relevance of gender to law. Further, most law schools have no discernible policy which guides the provision of gender-related information in their law degrees.
Teaching resources for the compulsory courses
863 In Australia, where 11 subjects make up the compulsory “core” curriculum of the law degree, the Commonwealth Department of Employment, Education and Training (DEET) decided in 1993 that rising concern in the community about gender bias in the law (which had been the subject of several Australian inquiries and considerable media attention by that time) should be responded to by making available to all law teachers a set of written resources focused on the relevance of gender to law. Two “key decisions” were made about those resources by DEET, in consultation with the Office of the Status of Women and the Attorney-General’s Department, and with legal academics:
• first, that the main focus of attention must be the core (generally compulsory) curriculum (rather than in the optional areas, where one tends to “preach to the converted”), and
• secondly, that the structure of the project should be based around themes or issues, rather than traditional subject categories. (Including Gender Issues in the Core Law Curriculum, Introduction, 2)
864 The key themes decided upon were work, violence and citizenship, and the Commonwealth government provided $300 000 for three projects to be undertaken in those areas. The resulting three binders of teaching materials, produced by leading Australian academics, have been made available to all Australian universities, and are on the internet at (http://uniserve.edu.au/law). There is no compulsion attached to the use of the materials by law teachers, and their use is not being monitored. The benefit which DEET saw in making available the thematically presented information and critiques is explained in these words:
Incorporating materials about gender across the law curriculum, by way of specified themes or issues, serves two important functions. First, it will assist law students (future lawyers and judges) to think laterally about these issues. For example, it will help them to understand how violence might be relevant to a legal dispute, for example, over property (by explaining how “undue influence” can be exercised), and not just relevant to the criminal law. Or it might lead students to think about how women’s work in the home could (or should) be valued a different way in the context of a claim against a deceased person’s estate (and thus that women’s work is relevant in, say, a succession or wills course, and not just in labour law). More broadly, the materials will make women and women’s concerns more visible to law students and to those teaching them. (DEET, 1996, Introduction, 3)
865 In The Education and Training of Law Students and Lawyers, attention was drawn to the existence of this substantial resource and it was asked whether a similar project should be undertaken in New Zealand and, if so, at whose initiative. There was broad agreement among those who answered this question, including community groups, women lawyers’ groups, university academics and other legal educators, that the production of a New Zealand resource of this type was desirable. Indeed only one submission, from a district law society, opposed the idea. The academics cautioned that the materials should be made available as guidelines only, rather than as a prescribed part of any course.
866 This idea has been pursued by the project team with a number of legal educators from the universities, the IPLS and the New Zealand Law Society. It appears that there is substantial support for the production of local materials which all could use, as they consider best, in courses at each stage of lawyers’ formal education.
867 Another initiative is already being pursued by two members of Victoria University’s law faculty. Their proposal, which has received partial funding from the VUW Foundation, is to produce a series of low-cost booklets containing materials and commentary on gender issues relevant to each of the six courses which are compulsory at all law schools. It is envisaged that each booklet would be co-authored by academics from different New Zealand law schools and reviewed, before publication, by a wider group of academics teaching in the relevant areas. While the proposal departs from the thematic focus considered essential by the Australian DEET, it appears to be a pragmatic initiative in the local climate and it is to be hoped that all law schools and other legal educators will support it.
868 It was made clear in the meetings with legal educators that it is far easier for them to provide “moral support” for such initiatives than direct financial support. If production of the proposed booklets will require costs beyond the capacity of present university research budgets, legal educators’ moral support for the production of that resource would be made plain by their endorsement of applications for other funding to that end. In this, as with all groundbreaking initiatives, it would be of invaluable assistance for that support to be given by those who head the law schools, the IPLS and the continuing legal education programme of the New Zealand Law Society. On the basis of the discussions held, it appears that such support would be readily forthcoming.
Teaching the teachers
869 There are numerous other initiatives which legal educators can adopt now to demonstrate their commitment to enhancing their awareness of the relevance of gender to the law. Again, these will be most effective if they are led or actively supported by the most senior among their number. For example:
• the existence of the DEET materials could be better publicised to academics, with hard copies being made available in each of the staff and student libraries;
• plenary sessions of the annual Australasian law teachers conference could be used in future to provide a forum for teachers who use gender analysis in their courses to speak about their teaching and to lead discussions about the issues raised;
• that conference could be publicised to IPLS teachers and those responsible for continuing legal education in New Zealand to maximise its benefits across the three levels of lawyers’ education;
• a forum for legal educators who are familiar with the DEET materials could be convened to consider the value of a New Zealand version of the materials to the three stages of lawyers’ education and ways in which the production and distribution of a local version could best be achieved;
• staff and student seminars at law schools could be used as a forum in which a range of speakers, including community workers, practising lawyers and policy makers, speak about their understandings of the relevance of gender to their work;
• legal educators could make greater use of the internet to establish “interest groups” of university and IPLS teachers and those who administer continuing legal education programmes, in order to share ideas and resources and establish databases of sources relevant to gender analysis in their courses;
• law school library purchasing policies could be framed so as to increase the stock of relevant books and journals available to staff and students;
• the curricula of the three Legal Ethics and Professional Responsibility courses/seminars (to be taught at all New Zealand universities and the IPLS from July 2000 as well as by means of continuing legal education) could be the subject of collaborative study by the law schools, the IPLS and continuing legal educators, to consider the extent to which each should examine the concerns which New Zealand women have raised (as discussed in this study) about the quality of lawyers’ service.
870 In order to demonstrate their commitment to enhancing legal educators’ awareness of the relevance of gender to law, each of the institutions that is responsible for formal legal education could devise its own plan of the measures it intends to use to pursue that commitment and the means that will be used to monitor progress. Plainly, it would be particularly important that the initial focus of such plans be on developing legal educators’ knowledge of the extensive jurisprudential base from which gender-related critiques of legal rules and processes have been made.
871 It has already been mentioned that a number of the academics who attended the consultation meetings considered that it is not sufficient to merely encourage legal educators to devise a plan by which they will enhance their understanding of and focus on gender in their teaching. Their view was that some system of monitoring educators’ efforts in this regard is needed, both to step up the pace of change and ensure that the plan by which it occurs addresses all areas of concern. Their comments highlighted the difficulties that “minority groups” so often encounter in seeking to achieve change in any institution when those within the institution who most desire it are less numerous and less senior than others and those outside the institution who also want change do not have an influential voice in the institution’s decisions.
872 The idea of achieving curriculum reform through the leadership of bodies with authority in relation to law schools is a theme of overseas reports which have considered the difficulties of adding and integrating courses that address gender and other “minority” issues. In Canada, for example, the 1993 report Touchstones for Change: Equality, Diversity and Accountability, written by a Task Force of the Canadian Bar Association which was chaired by the Hon Justice Bertha Wilson, directed a number of its key recommendations to the Canadian Council of Law Deans. Among those recommendations were that the Council should:
• conduct a study of race and gender bias in law schools’ curricula;
• act as a clearinghouse for curriculum development so that law faculties can exchange material;
• facilitate the preparation and dissemination of model course materials that focus directly on gender and minority issues, as well as integrate these issues into traditional areas of teaching; and
• develop videotape materials and seminars to illustrate the challenges experienced by faculty members who teach material involving gender and minority issues, with the purpose of exploring student and faculty responses as well as remedial strategies. (Touchstones for Change, 31, 171; see further NZLC MP11, 40–41)
The Council of Legal Education
873 At the meetings with New Zealand legal educators, the Council of Legal Education was thought by many to be the most appropriate body to monitor the efforts of the law schools and the IPLS. The council is the only body with statutory functions which span those two pre-admission stages of legal education. Funded by the Law Foundation, it meets at least twice a year for one-day meetings. In between those meetings, its business is conducted by correspondence between members, facilitated by the council’s full-time secretary.
874 The council is made up of a maximum of 17 members:
• two High Court judges nominated by the Chief Justice;
• one District Court judge nominated by the Chief District Court Judge;
• the five law school deans;
• two members nominated by the New Zealand Law Students’ Association;
• five members nominated by the New Zealand Law Society;
• one nominee (not a lawyer or student) of the Minister of Justice; and
• no more than one nominee of the council itself. (s 31 Law Practitioners Act 1982)
The council has never nominated anyone to fill that last place, for reasons which include its already substantial size. Of the 16 current members of the council, four are women: one is a law school dean, one is a nominee of the Law Students’ Association, one is a Law Society nominee and one is the Minister of Justice’s nominee.
875 The Law Practitioners Act 1982 (s38) defines the council’s functions and powers. Of primary relevance here is s38(1)(a)(i), which states that its functions and powers shall be:
(a) Subject to this Act, to define and prescribe, from time to time and as it thinks fit, the courses of study for –
(i) The examinations in general knowledge and law, and the other qualifications (if any), additional to those prescribed by this Act, required by candidates for admission as barristers and solicitors of the Court (including qualifications as to practical training and experience); . . .
876 On its face, the power conferred by that provision with regard to the content of the law degree would appear to be very broad. But in practice, the history of the council, including the relationships between the judiciary, legal profession and university law schools which are represented on it, means that it exercises its powers in a manner that accords the law schools (and the universities of which they are part) a considerable level of autonomy in the regulation of their curricula. By contrast, the council exercises far greater control over the curriculum and the activities of the IPLS, the institute it established to deliver professional legal training.
877 In relation to university legal education, the council prescribes the duration of the law degree courses offered at the five law schools and monitors their content in two main ways. The six courses which are compulsory in all law schools’ degrees, and which are the subject of the council’s brief written prescriptions, are monitored by the council’s appointment of moderators. Their functions include approving the content of the examinations in those subjects. Second, the content of each law school’s degree, including every variation in it, must be submitted to and approved by the council.
878 The delicate balance of interests that exists in the regulation of the content of the university law schools’ curricula poses considerable difficulties for any attempts to lead and co-ordinate change. As a result, it is questionable whether the Council of Legal Education would consider it appropriate to seek to influence the law schools in any matter outside the boundaries of the compulsory courses, and perhaps even within those boundaries, in the way that was suggested at the consultation meetings. If that is so, the only way by which the law schools could be held accountable for their development of and delivery of a plan to enhance the focus of their teaching on any matter that was considered to be within the bounds of the universities’ academic freedom to determine would be by means of the universities’ own procedures. It may be noted in this regard that the council has power to “tender advice to the Council of any University on any matter relating to legal education”. (Law Practitioners Act, s 38(1)(e))
879 One thing that is plainly within the council’s powers to do is to require further compulsory courses to be taught as part of the law degree. Of most relevance here is the Jurisprudence course, which has already been made compulsory at all but two of the law schools by means of their own procedures. If the council were to do that, and if the course prescription included reference to the need for feminist jurisprudence to be explored, that would inject a measure of accountability for that course’s gender-specific content. As the earlier discussion has indicated, however, the result would represent only a very small advance on the current situation.
880 Although it would be novel for the council to use its powers to encourage law schools to adopt a planned approach to the integration of gender specific information and analyses across their curricula, this may be possible if goodwill, energy and resources were devoted to the task. For example, the council has power, under s 38(1)(g) of the Law Practitioners Act 1982:
Subject to this Act and any other Act, to do whatever it considers necessary or expedient in order that it may best accomplish the purposes for which it exists.
Further, s 40 of the Act empowers the council to appoint standing or special committees and:
refer to any such committee any matters for consideration or inquiry or management.
881 It may be that the judicious use of those powers could effectuate an outcome whereby each of the law schools submitted for the consideration and advice of a suitably skilled standing committee of the council, an annual plan of its goals relating to the inclusion of gender analysis in its courses and a report on the progress made against it. That committee could assist the IPLS in the same way. Because the council’s jurisdiction is limited to matters concerning pre-admission legal education and training, however, the New Zealand Law Society’s relationship with such a committee, and so its utility with respect to continuing legal education, would be a matter requiring further negotiation.
882 This raises a final matter for discussion: the limited degree of co-ordination that is to be found across the three stages of formal legal education as a result of the various interests and administrative structures of those involved.
883 It has already been noted that the jurisdiction of the Council of Legal Education does not extend beyond the two pre-admission stages of formal legal education. Yet with its membership including the deans of the five university law schools, five New Zealand Law Society nominees and three judges, and with its responsibility to oversee the IPLS, the council would seem to be equipped to facilitate some degree of co-ordination across the three stages of formal legal education in New Zealand. Several factors militate against the council assuming that role, however, including its size, its limited administrative resources, the university law schools’ competitiveness with one another, and the independence of the universities from the legal profession. Further, the law society nominees on the council are appointees in their own rights. They are not representative of the society, and there is no requirement for them to represent the views of the society to the council. And the IPLS is not represented on the council.
884 In the meetings held with legal educators from the three stages of formal legal education, it was observed that the result of the existing degree of separation of their functions is that there is no clearly discernible plan of the objectives which each strives to achieve, and of how, separately and together, they contribute to the production of lawyers competent to serve diverse New Zealanders. Indeed, it was observed that there is no discernible shared idea of what makes a competent lawyer. This degree of division between legal educators, and the lack of transparency in their aims and achievements, cannot be conducive to having matters of common concern identified, debated and resolved or for challenges to the status quo to be fully considered. It would seem that this works against the promotion of informed debate about the incorporation of material in lawyers’ education which explores the connections between gender and law. Another result, made plain in the meetings with and submissions from women, is that the credibility of lawyers’ education among the diverse members of the New Zealand public who need lawyers’ services is threatened.
885 Although few comparisons can be drawn between the institutions of formal legal education in New Zealand and those in England and Wales, it is pertinent that the current reforms to the justice system there, which include the introduction of quality standards for all state-funded legal service providers, also include measures by which the government will strengthen its links with those who provide legal education and training. To this end, it is intended to disband the Lord Chancellor’s Advisory Committee on Legal Education and Conduct and replace it with a Legal Services Consultative Panel, “a smaller and more effective body”, which will provide independent advice to the Lord Chancellor. Explaining these proposals in Modernising Justice, the Government’s plans for reforming legal services and the courts, the Lord Chancellor’s Department states:
Effective education and training is essential to the success of the proposals for modernisation set out in this White Paper; to the smooth operation of the courts; and to consumers of legal services generally. This education and training is provided by a variety of bodies outside government, and it is not part of Government’s role to prescribe the detail of the education and training which they make available. But the Government retains an active interest in this field. So we intend to strengthen our links with providers of legal education and training, in order to assist them by providing a forum where common problems can be considered. The Legal Services Consultative Panel will play an important part in this process, and will have the duty of helping to maintain and develop standards in the education and training of those offering legal services. The Lord Chancellor will be obliged to consider any recommendations it makes. In addition, we will help providers by informing them of our policies and discussing any training needs which may flow from these. In this way, we will be able to continue the useful role previously played by ACLEC. We are consulting widely on the extent and nature of the new arrangements. (Modernising Justice, December 1998, 21)
The difficulties of co-ordination: training in ethics and professional responsibility
886 A recent example of the difficulties inherent in attempts to co-ordinate change across the three stages of formal legal education in New Zealand is supplied by the process by which it has been agreed that an increased focus on ethics and professional responsibility should occur at all three stages.
The Cotter and Roper report
887 In 1993, the issue of the most appropriate approach to the teaching of legal ethics and professional responsibility was identified as requiring a joint approach from the Council of Legal Education and the Council of the New Zealand Law Society. Accordingly, the councils jointly sought, and received, funding from the Law Foundation for a research project designed to recommend a comprehensive and cohesive programme for training law students, IPLS trainees and practising lawyers in those matters. The resulting report (the Cotter and Roper report of 1996) identified seven objectives of instruction in professional responsibility, and proposed that these be achieved by compulsory tuition at each stage of lawyers’ education. A plan to allocate responsibility for each of the objectives, or aspects of them, to the law schools, the IPLS programme and to continuing legal education was included in the report. (Cotter and Roper, 17–28)
888 The report anticipated that its proposal for an integrated, compulsory programme in professional responsibility might founder because of the New Zealand Law Society’s inability to commit itself to mandatory education for lawyers. In that event, it recommended that the Council of Legal Education direct the implementation of an “integrated program” for law school and IPLS students, and that the law society do all it can to ensure all lawyers participate in it. (Cotter and Roper, 29)
Response by the Council of Legal Education
889 Within the Council of Legal Education there was lengthy debate over the Cotter and Roper report’s recommendation of compulsory ethics education at university level. In the result, the council resolved in 1997 that, from July 2000, law students who intend to practise law must complete a (24-hour minimum) university course in ethics and professional responsibility. It also resolved to expand the professional conduct component of the standardised IPLS programme, also to take effect in the year 2000.
Response by the New Zealand Law Society
890 The New Zealand Law Society supports the concept of an integrated approach to the teaching of professional responsibility across the three stages of lawyers’ education, but it considers, as the Cotter and Roper report predicted, that it needs explicit statutory power to impose mandatory instruction upon the profession. Further, the society has not reached a position on the desirability or otherwise of compulsory continuing legal education for New Zealand lawyers. In meetings with the project team, it has explained that, although some law societies or equivalent bodies in comparable overseas jurisdictions (in particular the United States) and some other professional associations in New Zealand and overseas have adopted some mandatory training, many have minimum requirements which leave open to question whether their purpose and effect is more a public relations exercise than a genuine attempt at further education. Also, there have been no studies which establish a link between mandatory continuing legal education and increased competency and there are arguments against its effectiveness as an adult learning model. Certainly the arguments for and against mandatory continuing legal education, whether in relation to the matter of professional responsibility or more generally, have not yet been widely debated within our legal profession.
891 Accordingly, the New Zealand Law Society’s commitment to the implementation of an integrated training programme in professional responsibility is qualified by its current inability to guarantee that its involvement will be by means of compulsory training for practising lawyers. It prefers in the first instance to take all possible steps to persuade its members to be involved in the programme on a voluntary basis. If these efforts are not successful, the New Zealand Law Society council has endorsed the recommendations contained in the Cotter and Roper report and, presumably, would be willing to consider seeking authority to mandate legal ethics instructions for its members.
892 Some recent initiatives are relevant to the law society’s dilemma in this regard. First, the 1997 Poll of Lawyers found that:
• 66 percent of New Zealand lawyers supported compulsory continuing legal education for lawyers in their first three years of practice;
• 50 percent supported compulsory continuing education for all lawyers;
• 90 percent thought it important that there be improved training in ethics and professional responsibility for lawyers in their first three years of practice; and
• 94 percent thought it important that lawyers in their first three years of practice receive improved practical legal training. (Poll of Lawyers, 116–117)
893 Second, an amendment to the Law Practitioners Act has recently been introduced in Parliament which, if enacted, would give the New Zealand Law Society power to impose mandatory training on lawyers. The amendment was inspired by the society’s wish to impose training in relation to the management of trust accounts but the power is a general one.
894 Third, a very likely outcome of the current review of the profession’s structure is that membership of law societies will be voluntary in future. If that occurs, there would be no doubt that those who choose to be members could be required to undertake continuing legal education.
895 Fourth, some indication of professional attitudes towards continuing legal education may be gleaned from the recent introduction by the Auckland District Law Society, the largest in New Zealand, of a certificate for issue to practitioners who attend, in any 12-month period, any six of the 30 or more seminars which the society offers each year. Publicity about the certificate describes it as “suitable for display” and “a useful marketing tool for practitioners who choose to use them in that way”. (Northern Law News, Issue 19, May 29, 1998, 7)
Planning for the integrated programme
896 Despite the lack of uniformity in the positions of the Council of Legal Education (with regard to pre-admission training in ethics, professional responsibility and conduct) and the New Zealand Law Society (with regard to post-admission training), considerable efforts have been made to develop an integrated programme for the future. In endorsing the Cotter and Roper report’s recommendations, the New Zealand Law Society Council also agreed to support the concept of a joint ways and means group to investigate the feasibility of an ethics institute or national centre for legal ethics to take responsibility for designing and implementing all parts of the professional responsibility curriculum. An initial meeting of such a group was held, but the Council of Legal Education then withdrew from the concept of both the group and an ethics institute (at least in the meantime). Instead, it resolved that “all students that complete their degree after 31 July 2000 will be required for admission to have passed a university course in ethics and professional responsibility prescribed and moderated by the Council of Legal Education”. (Council resolution, 24 October 1997)
897 To replace the joint ways and means committee, the Council of Legal Education established “a working party for the purpose of providing liaison, coordination and support in implementation by the law schools of the university and later, by the Institute of Professional Legal Studies and the education directorate of the New Zealand Law Society of the integrated curriculum recommended in the Cotter/Roper Report”. It also “[invited] the deans to produce for consideration at the next (April 1998) meeting a proposed ethics prescription for the ethics and professional responsibility course and in so doing to confer with the working party and whomsoever they thought to see fit”. (Council resolution, 24 October 1997)
898 The university prescription was duly submitted and adopted by the council. Like the prescriptions for the other compulsory admission courses, it is worded generally and allows considerable scope for variation in content and emphasis in each of the five law schools, and indeed between one teacher and another. More recently, some of the law schools have submitted the contents of their Legal Ethics courses to the council, and have had them endorsed. During 1999, all the law schools’ Legal Ethics courses are to go to the moderator appointed by the council. It seems likely that the moderator will consider the relationship of each course to the Cotter and Roper objectives.
899 Meantime, the IPLS has developed, and had approved by the council, a detailed prescription for a professional conduct “seminar” based on the objectives set out in the Cotter and Roper report. The New Zealand Law Society Council has also approved a statement of aims and objectives for post-admission education in ethics and professional responsibility which is likewise based on the Cotter and Roper objectives.
900 Finally, the university law schools, the IPLS and the New Zealand Law Society have submitted separate, but linked, proposals to the Law Foundation for funding to develop the materials which each will use in their future teaching of professional responsibility. Those proposals have been successful in securing Law Foundation funding. During 1999, the materials which will act as the basis for the new focus on professional responsibility across the three stages of formal legal education will be developed. Consistent with the universities’ freedom of approach, the materials will be a guide to the content of individual courses in ethics and professional responsibility. The level of uniformity and the standard of the courses will, as indicated earlier, be monitored by the Council of Legal Education by the appointment of a moderator.
901 Discussions with some of the university teachers who are involved in the preparations for incorporating the compulsory course in ethics from the year 2000 indicate that there will be considerable diversity in the way it will be taught in each school. Plans for incorporating the course in the various schools’ degrees vary, from creating or retaining a stand-alone course of more than the minimum 24 hours, to inserting a 24-hour professional responsibility component into an existing compulsory course in Jurisprudence.
902 Apart from the Council of Legal Education working party, there appears to be no mechanism in place to co-ordinate the overall curriculum, although it is understood the IPLS and the New Zealand Law Society have agreed informally to co-ordinate their efforts. Given that they are both based on the Cotter and Roper objectives, this should be a comparatively straightforward process.
Effects of limited co-ordination on the inclusion of gender in legal education
903 At the meetings held with legal educators, the difficulties which beset attempts to co-ordinate initiatives across all three stages of formal legal education were raised in the context of discussions about whether and how a consistent policy on gender-related issues might be reached. Although those present at the meetings made it plain that they were not speaking for all legal educators, they readily acknowledged, and many regretted, the paucity of opportunities available to them to discuss issues of common interest or to raise for consideration matters which might require more widespread attention – such as the matters under discussion at the meetings.
904 In sum, the criticisms were that, wherever the educators were placed on the law school/professional training/continuing education “continuum”, they did not have sufficient certainty about each other’s objectives to be confident about how their own teaching related to the earlier or later formal education that lawyers receive. Some teachers at university level, for example, believe that a mandatory continuing legal education programme, at least for newly admitted lawyers, would enable the law schools to make better-informed decisions about the aims of their own courses. Some at the professional training and continuing education levels believe that it would be invaluable if a statement of objectives for all three levels could be agreed upon so that courses at those levels can be planned with more certainty of what has been taught at university.
905 The desirability of co-ordination of effort across the three stages of formal legal education has been raised in a recent preliminary report to the Council of Legal Education which proposes to review and develop the IPLS course materials to promote trainee lawyers’ awareness and skills in relation to the Treaty of Waitangi, Mäori cultural issues and wider cross-cultural communication issues. The report notes that this subject matter may be apt for a co-ordinated approach in the same way as the Cotter and Roper report recommended for the teaching of legal ethics and professional responsibility:
. . . assuming it is considered important for lawyers to be knowledgeable about and able to apply Treaty principles and cross-cultural skills, then there is also an argument that the law schools, the Institute and the New Zealand Law Society should develop a co-ordinated approach to ensure thorough and consistent coverage. (Blake, Treaty of Waitangi and Cross-Cultural Issues: Preliminary Report, 10)
906 The current restructuring of the New Zealand legal profession provides a vital opportunity for reflection on, and change to the future administration of the three stages of lawyers’ education. However, the publicity that has been given to date about the New Zealand Law Society’s approach to the restructuring suggests that this is not a matter of high priority for the profession.
907 The recently announced government proposals for change in the tertiary education sector may be relevant to the university law schools’ approach to their future relationship with the other two stages of lawyers’ formal education and training. (Tertiary Education in New Zealand: Policy Directions for the 21st Century, White Paper, November 1998) It may be, for example, that the changes will encourage the law schools to articulate more precisely the “building blocks” of “quality knowledge”, skills and values which successful students must accumulate during their degrees. In turn, that may have beneficial effects for educators at the next two stages, at least in providing them with greater certainty about the level of knowledge, skills and values which the law schools have developed in their graduates and which, according to their own views of what makes a competent lawyer, require further development through the IPLS and continuing legal education programmes.
908 The importance of lawyers’ education to the public of New Zealand, and not least to disadvantaged client groups, surely requires all who are involved in it to consider their collective task and to articulate on a regular basis, in a manner which is transparent and reasoned, the objectives which are to be attained at each stage of the formal legal educational process. It is vital that academics, students, lawyers and clients be fully involved in the process by which that plan is arrived at and reviewed, although inevitably some smaller group will need to take responsibility for its design, adoption and revision.
909 At present, there is no single body empowered to perform that task. Perhaps it is naïve to believe that a single body could perform it. Even so, there would appear to be considerable room for improvement in the manner by which those responsible for formal legal education in New Zealand are accountable to their various stakeholders including, in particular, the clients of practising lawyers. Accordingly, it is considered that this matter needs to be pursued by all who are involved with and otherwise interested in legal education in New Zealand.
910 There is also a need for the maximum benefit to be obtained, nation-wide, from initiatives to incorporate gender specific analysis in each of the three stages of formal legal education. The “reinvention of wheels” in any area which is in need of attention slows the pace of change by being wasteful of the expertise that is to be found outside any one institution’s four walls, even if it promotes the autonomy and competitiveness of the inventors. In light of the discussion in this chapter, it is considered that three main strategies are needed to overcome the impediments to the enhancement of gender-related education for law students, trainee lawyers and practitioners:
• the development of specific proposals for gender-related legal education, the outcomes of which are measurable;
• the development of skills and expertise among legal educators; and
• co-ordination of initiatives across the three stages of formal legal education.
Accordingly, it is recommended that:
• each law school develop a plan to enhance its teaching of law with regard to the effects of gender, including measures for monitoring and reporting on progress (including, for example, evidence in the form of student assessments, course appraisals, relevant seminars attended by staff, qualifications of new staff, performance reviews of all staff by colleagues based on clear performance measures, and EEO measures);
• the initial focus of law schools’ plans be on developing academics’ knowledge of the extensive jurisprudential base from which gender-related critiques of legal rules and processes have been made;
• legal educators support universities’ efforts to produce new materials to assist in law school education on gender-related issues, including the provision of funding where appropriate;
• the IPLS develop a plan to enhance its training with regard to the effects of gender, including measures for monitoring and reporting on progress;
• the New Zealand Law Society develop a plan to enhance the continuing legal education programme’s regard for the effects of gender, including measures for monitoring and reporting on progress;
• the Council of Legal Education consider all steps by which it may lawfully require or encourage the university law schools and the IPLS to develop, monitor and report on progress against the recommended plans;
• the Council of Legal Education and New Zealand Law Society, in consultation with all “stakeholders” in formal legal education, review the statutory scheme of regulation of formal legal education for the purpose of achieving better co-ordination of education measures at all three of its stages.
911 Part 4 of this study (chapters 8 to 11) has examined and made recommendations for reform in a variety of areas relating to the regulation and delivery of legal services by private lawyers. The final chapter discusses some areas of the justice system which have not been examined in depth in this study, but which, on the information gathered, appear to be prime candidates for reform in order to “promote the just treatment of women”. Following that is a statement of all the recommendations made in this study.
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