This article was originally published in the June 2018 edition of Lexis Nexis’ Bi-Annual Rule of Law publication – Advancing Together – Open justice: education, courts visits and the Rule of Law

‘It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia’.

 

Members of the public have a more positive view of our court system and its integrity, if they have more knowledge about that system.  In addition and as a bonus for the oft-maligned lawyers in the room, ‘..if the public develops a keener understanding of the law and basic legal principles, they may view lawyers and courts in a more positive light’.

 

Whilst proceedings in open courts and the judgments of such courts are often educative, sometimes startling and every now and then contain a glimmer of wit and prose, legal proceedings are not always easily understood solely from observation.  There is some ‘unpacking’ of the legal process required to facilitate understanding, that is, a combination of legal concepts and ‘real world’ experiences. 

 

In schools, much as for first university students studying law, the teaching of legal concepts begins with an explanation of our legal and political structures and how the courts function within those structures.  Students then move onto undertaking deeper analysis of types of law, including criminal and civil proceedings.  Despite this, legal education in its traditional model, may not teach the ‘nuances of specific geographic, social and cultural contexts’ nor the complex social and political issues at play in law.  

The LDO Programme

The Law Day Out (LDO) is a court visit legal education experience in NSW developed by The Rule of Law Education Centre.  This experiential learning programme shows students how courts operate and links that observation to their study of the foundations upon which our system is built.   

 

The Centre runs these observational and experiential education LDO programmes for senior high school students in four courts in New South Wales. 

During a LDO students receive a guided court tour, undertake court observations and attend debriefing sessions with judges or magistrates, lawyers and court staff, which link to the school curriculum.  The LDO aims to develop stronger trust and respect for our legal system and a greater understanding of the impact of court proceedings on individuals and their families.

The New South Wales judiciary has been very supportive of our programme and of the importance of maintaining the rights of all to observe court proceedings.

 

…the students whose attendance yesterday has prompted this assertion of a right were participating in an excursion offered by the Rule of Law Institute, an independent not-for-profit body formed for the object of upholding the rule of law in Australia.  Their perseverance and that of the Court watchers in remaining to observe the proceedings, although they were required to stand, paid service to that object.  To have excluded them for the benefit of journalists would have provided a sorry lesson on the failure of the rule of law.

McCallum J – Supreme Court of NSW, Transcript, Gayle  v  Ors – 26/10/17.

 

The Impact of Law in Practice

 

The classroom or lecture theatre allows for the teaching of legal concepts.  This is known as ‘knowledge about’.  The acquisition of ‘deep knowledge’ or ‘knowledge of,’ the intricacies of the legal system and the people within it, are at the core of the experiential learning process (the LDO), that occurs when students visit a court.  Academics have found that observing litigation proceedings provides their students with an understanding of the application of legal rules and helps to engage them in the legal process.  In our case, the court, its building, people and visitors, provides a rich and fertile learning environment, where students are able to see the interplay of intellectual, political and social factors.  This exposure has a profound impact on students.

Our survey of students, after they have attended a LDO, reports that 87% better understand the consequences of making bad life choices.  In addition, 86% of young people indicated that they will tell their friends and family, about their court experience.  This indicates that these key messages regarding our justice system will be communicated more widely throughout the community and the understanding of the importance of the rule of law in practice will increase.

It is clear that our programme succeeds in educating young people about the law, so that they understand it and hopefully make good life choices. There is, however, a greater mission to teaching young people about the law, which is not often considered.  This is that teaching young people about the rule of law will hopefully make them better citizens.  As the Honorable Sandra Day O’Connor, Retired Justice of the Supreme Court of the United States succinctly put it, the knowledge of being a good citizen is not handed down through the gene pool.  Our rules and mores must be taught in each generation.

…having students understand and buy in to the values behind our legal system like respect for individual rights, due process, and the rule of law, that will preserve and protect our democracy.

Australian democracy, with its roots in the Magna Carta and founded in the Australia Constitution, has provided us with stability, security and peace since Federation.  However, it is possible that we can become complacent and not focus our energies on reminding ourselves and our young people of the benefits of our legal system and the crucial role of both upholding the rule of law and maintaining a public dialogue about it. It is important to remember that ‘the law can only truly rule when people (both government actors and “ordinary” people) believe that it ought to’.  It cannot rule without the support of our community and that support requires our focus on the education and engagement of young people, as well as the funding to support education programmes.

 

References

John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324 at [18]

Don Burnett, ‘Civic Education, the Rule of Law and the Judiciary: “A Republic…if you can Keep it”’  58 Advocate 26, 27 (2015).

Pat Newcombe, Beth D. Cohen, ‘Mini-Law School: Civic Education Making a Difference in the Community’ (2018) 16 Seattle Journal for Social Science 396.

Molly George, Helen Lim, Schannae Lucas and Robert Meadows, ‘Learning by Doing: Experiential Learning in Criminal Justice’ 26 Journal of Criminal Justice Education 471 (2015) at 478.

 Estair Van Wagner, ‘“Seeing the Place makes it Real”: Place-based Teaching in the Environmental and Planning Law Classroom’ (2017) 34 Environmental and Planning Law Journal 522 at 522.

Marlene Scardamalia and Carl Brereiter, ‘Knowledge Building: Theory, Pedagogy and Technology’ in Keith Sawyer (ed) Cambridge Handbook of the Learning Sciences (Cambridge University Press, 2006) 101. 

Michael Fullan and Maria Langworthy, A Rich Seam: How New Pedagogies Find Deep Learning (Pearson, 2014) 35

Jacqueline Horan, Michelle Taylor Sands, ‘Bringing the Court and Mediation Room Into the Classroom’ (2008) 18 Legal Education Review 197

Sandra Day O’Connor and J. Glenn, An Open Letter to American Citizens on Constitution Day (Sept. 17, 2013)

David A. Scott, A Lawyer’s experience in K-12 :Law-Related Education: Lessons and Opportunities, (2016) 2 Journal of Experiential Learning 11

Lisa Burton Crawford, The Rule of Law as an Assumption of the Australian Constitution, https://auspublaw.org/2017/06/the-rule-of-law-as-an-assumption-of-the-australian-constitution/