Clinical Legal Education: Teaching Law Students About Human Rights

by Mary Anne Kenny

If all I can do in Law School is to teach students skills ungrounded in a sense of justice then at best there is no meaning to my work, and, at worst, I am contributing to the distress in the world. I am sending more people into the community armed with legal training but without a sense of responsibility for others or for the delivery of justice in our society.

Jerold S Auerbach “What has the teaching of law to do with justice”[1]

Introduction

How do we teach our law students a sense of responsibility? How do we give them an understanding of the role they play in the delivery of justice within our community? Clinical legal education can be used as a very effective method of teaching law students about their professional responsibilities. This type of experiential learning is very effective in assisting students to develop a rights based methodology in approaching legal work

Incorporating Social Justice into the law school curricula

In answer to the above questions, some law schools have focused on encouraging a culture of pro bono representation of disadvantaged clients. Meanwhile, dwindling access to Legal Aid has not matched the increase in unrepresented litigants. Those interested in social justice are continuing to struggle with how disadvantaged and marginalised people can have any meaningful access to justice. Law curricula can be developed in a way that encourages those students with an already existing sense of social justice and provides other students with the opportunity to understand legal issues from a social justice perspective.

The overall goal of a legal education that truly encapsulates social justice cannot be limited to the advocacy of pro bono involvement. It is not enough for Law Schools to inspire future lawyers who will operate without social conscience in their primary work to donate a few pro bono hours to the local community legal centre. A larger aim of legal education should be the students' developing an understanding of the relationship between law and issues of social justice and furthermore being able to contextualise them at both societal and personal levels.

Law schools should acknowledge their duty to explicitly - and accurately - teach lessons about social justice as necessary for a complete legal education. Any process of formal learning, since it is a process of bringing about change in student perspectives, is necessarily a moral activity. The practice of law, contemplates the advocacy of positions with moral consequences both within and outside the confines of the case facts. A legal education worthy of the title must include an acknowledgement and significant consideration of the relationship between social justice and the practice of law.

Clinical legal education provides opportunities for learning social justice concepts. It presents unique opportunities for presenting and discussing the relationship between the law and social justice issues.

Clinical legal education programs, where students work on real cases for credit towards their degree, have been around in Australia for three almost three decades. Community legal centres are providing rich learning environments for many of these clinical programs. From the first clinic within a community legal centre established by Monash University at Springvale Community Legal Centre, to the most recent established by Deakin University at Geelong Community Legal Centre, many community legal centres and clinics have found benefits from their collaboration.

The experiential nature of clinical courses brings abstract notions of justice to life. It inspires classroom or informal teacher-student or student-student dialogue on the relationship of the legal practice to the lives of clients and to society as a whole.

The focus of most clinical “live-client” programs is the representation of clients who, by reason of low income, disability or position of disadvantage are members of groups that have great difficulty attaining any justice inside or outside of the legal system.

Learning about the client's place in the system is not only a necessary part of the technical preparation of cases, but understanding a client’s cultural, social and political background is a crucial component of developing an effective lawyer-client relationship.

This allows a student to develop an understanding of the client’s situation, however, in many instances when dealing with clients, students are also struggling with their own assumptions and beliefs. As clinical supervisors we are often faced with the challenge of encouraging students to `take a step back’ to let go of the assumptions that have been built up over the years. Many of them have particular views of Australian society, often fed by media myth or political rhetoric. Many of them hold beliefs in such concepts as the `undeserving poor’ or `the level playing field’.

One of the most successful ways of encouraging students to recognise systemic injustice is to present them with a case that is so out of their own sphere of experience that they cannot rely on the myths and stereotypes. Asylum seeker cases present just such an opportunity.

Clinical Legal Education and Asylum Seeker cases

Many clinical programs in Australia have links to, or are based in, community legal centres. This raises some questions about how well the role of a centre as a legal service provider ‘fits’ with its role as a legal education provider. This paper will look at the perceived conflicts, and argue that far from compromising its educative role, a clinic placed within a community legal centre can offer students unparalleled educative benefit. It will demonstrate this by looking at a clinical program run at Murdoch University offering migration advice and assistance to asylum seekers.

Rema is a young Somali woman, who has fled her country leaving behind her family. She did not want to leave but was urged to by her family after she was raped by a group of militiamen from a rival clan. Her schooling was interrupted because of the on-going civil war and the ensuing break down of public institutions.

She tells the Department of Immigration and Citizenship (“DIAC”) in Australia that she belongs to a minority clan and that her father was a village leader. She is extremely traumatised by what has happened to her and what she has witnessed. She is however vague on the exact details of her clan and her father’s position.

Due to this lack of detail unfortunately Rema’s application for a protection visa has been rejected by DIAC.

When Rema arrived at SCALES Community Legal Centre the level of violence that Rema and her family had been subjected to horrify the student assigned to her case. She is convinced that Rema should never have to go back to Somalia and that Australia had a clear responsibility to protect her.

Immigration law cases, and asylum seekers in particular, are ones which are unique in the educational sense and provide students with an opportunity to sharpen traditional legal skills such as: interviewing; legal research in areas of international law; human rights law and immigration law; statutory interpretation; evidence gathering and the drafting of submissions.

These cases can also provide invaluable training in areas beyond the traditional scope of what is perceived as legal work and they provide students opportunities to develop skills in:

· Learning to build rapport with people from culturally and linguistically diverse backgrounds (CALD).

· Use of interpreters

· Interdisciplinary liaison, (often clients require the services of social workers, counsellors and/or torture trauma specialists)

· Cross-cultural skills they are exposed to the cultural, economic, social and political needs of various CALD communities.

These cases also elicit a great deal of commitment from the students. This is not unusual, as the stakes are very high. They also demand a lot of research on the historical and political situation in various countries. This evidence gathering process not only hones the skills of the students, it also makes the cases very interesting.

Asylum seeker cases cannot be removed from the domestic political context. The cases must also be examined in the broader context of government policy and community values. It provides the students with a real life example of the way in which the community’s values and the media portrayal interact. Also they see the effect of government use of the media to justify and seek support for their continual reduction of Australia’s international obligations toward asylum speakers.

Each case the students deal with has some aspect that will force them to critically analyse governmental policy. This occurs across a broad range of issues including the fairness of determination of claims, gender bias, access to advice and mandatory detention.

Beyond the scope of the particular skills that are acquired, the cases have a profound affect upon the students as they are faced with the broader social and political issues that these cases present. Exposure to extreme situations in which an individual has had their human rights violated reaffirms the importance of defending those rights wherever and whenever they are under threat. Students often begin to see that issues here in Australia such as the elimination of discrimination, access to legal representation and the right to accommodation are also human rights and must be defended.

The student working on Rema’s case must prepare the matter for an appeal to the Refugee Review Tribunal.

In preparation the student must examine the reasons for rejection and the relevant law. They must be able to argue that Rema is a person to which Australia owes an obligation of protection under the Refugees Convention. This means showing that the person has a well-founded fear of persecution due to one of the convention grounds. These grounds include race, religion, nationality, political opinion or membership of a social group.

Unfortunately for Rema gender is not a ground, this means that regardless of the level of sexual violence that Rema has suffered, if the violence is being perpetrated on her because she is female and defenceless it will not be enough. Unless the student can show that it is due to her clan membership (ie membership of a social group) or political opinion Rema has little chance of success.

At this point it is important to stop and get the student to reflect upon the definition of refugee and its interpretation. Understanding the level of violence and persecution that women are subject to in Rema’s country leads the student to ask the question why gender alone is not enough, why isn’t it a ground under the Convention?

In order to bring Rema’s case within the definition under the Convention the student must begin an evidentiary legal process and gather further information. She must get a detailed statement from the client asking probing questions about the background of her family and clan, their enemies and treatment at the hands of other clans. More difficult is the information about the attacks on her and her family, even what was said to her during those attacks may be relevant. The student must also think about medical (including psychological) evidence that would support her account.

Next an extensive search of all the possible country information, including human rights reports, and newspaper reports. This again poses a particular problem for women because often their experience is less likely to be reported than their male counterparts. International journalism usually concentrates on public life, factions, fighting and politics. Men often dominate this public sphere, while women face their day-to-day trials within the private sphere. Even if they are involved in political life they are less likely to be named in newspaper reports or country information. This can pose quite some difficulty for women particularly given the weight DIMA places on independent information that substantiates asylum seekers claims.

This process will be important in developing the student’s skills in respect of legal research. The student will also be tested upon their analytical skills by pulling together all of the evidence to verify and corroborate the client’s experiences.

The clinical process should be taken further and to use the student’s own sense of frustration with the situation and the application of definition to teach the student about the role of lawyers in promoting ideals of justice, fairness and even morality.

Conclusion

Instead of having the legal system held up as a defender of human rights for everyone equally, working on Rema’s case forces this student to realise the boundaries and limitations of law and policy.

However through the clinical reflective process the student has also gained insight into her role as a lawyer. Further she has been confronted with the possibility that she has a responsibility, not as a lawyer but in the face of injustice, to highlight the deficiencies of the legal system and to work toward reform.

Ultimately what we hope to achieve as clinical supervisors is to foster a “rights based” methodology that students will apply across all their legal work. This involves students gaining an understanding of, and a commitment to, fundamental human rights as an important principle of any legal practice.