Quick Look – Submissions re PLT to Productivity Commission’s Access to Justice Inquiry

Access to Justice Arrangements Productivity Commission Draft RepIn my previous post I referred to the Australian Productivity Commission’s overview of its Draft Report regarding Access to Justice, released 8 April 2014.

The Commission received 190 submissions, of which 36 are post-draft report submissions.

As far as I can tell, about 8 submissions are from either a law school, or an academic connected to a law school. There does not appear to be any submissions from a PLT provider, which is surprising given the terms of of the report and the recommendations referred to in my previous post.

I have quickly examined the 190 submissions in relation to the topic of practical legal training (PLT). Just 11 submissions mention PLT at all, and of these about one third might be substantive submissions. I provide the following summary of these submissions, with the caveat that this is the product of a quick perusal and errors and omissions should not be imputed to those cited.

Submission 169 – Law Admissions Consultative Committee (LACC):

p. 2 at 2.6 – criticises the draft report for failing to ‘either to acknowledge, or in formulating its Recommendation 7.1 to take account of, the further significant roles of the Academic Requirements as referents for determining the adequacy of the training of overseas lawyers and the additional training they require before becoming eligible for admission in Australia; as constituting the common threshold for sequential PLT training in Australian PLT courses’.

p. 3 at 2.12 –  observes, ‘the Draft Report incorrectly asserts that, in the current education and training of lawyers “there is no requirement for the study of alternative dispute resolution (ADR)”‘, pointing out that early dispute resolution is included in the National Competency Standards for Entry-Level Lawyers.

p. 6 at 3.4(a) – notes the ‘aspiration’ of the academic and PLT requirements for admission, ‘is to develop threshold competence, appropriate to someone beginning a life in the law, rather than sophisticated or advanced knowledge or expertise’.

p. 6 at 3.4(b) – states  ‘the 11 Academic Requirements and PLT Competency Standards for Entry-Level Lawyers are national referents for determining what additional training must be undertaken by overseas applicants who wish to prepare for admission to the legal profession in Australia’.

p. 7 at 3.4(c) – states ‘The national PLT Competency Standards for Entry-Level Lawyers assume that all those proceeding to undertake sequential PLT courses have attained threshold and common understanding in each of the areas of knowledge comprised in the 11 Academic Requirements. Given the limited duration of such PLT courses, it is impractical for them either to offer remedial training to some students who are not adequately prepared in some of these common areas of knowledge, or to extend their courses to cater to those who are not appropriately prepared. Further, to do so would increase the costs of the practical legal training stage of legal education unnecessarily.’

p. 8 at 4.1 – ‘In evaluating the ALRC’s [Australian Law Reform Commission] suggestions about the need for training in broad generic professional skills development, it is important to note that the ALRC Report predated the introduction of the comprehensive and explicit national PLT Competency Standards for Entry-level Lawyers which were not endorsed by all Admitting Authorities until 2002. Since that time, all PLT courses have been required to ensure that every person presenting for admission has received practical legal training in, and acquired and demonstrated entry-level competence in, many matters relevant to modern legal practice – including ADR.’

pp. 11-12 at 5 – ‘…when a person is seeking admission, it may be relevant to enquire whether the person has the relevant academic and PLT qualifications and whether the person has been disciplined by an academic institution for, say, plagiarism or cheating.’
‘It is, however, true that many law graduates proceed to undertake PLT and seek admission to the legal profession, but do not thereafter seek to practise law…’
‘The suggestion that there is a need to consider what legal tasks can appropriately be performed by legal graduates without practising certificates fails to recognise the large numbers of lawyers who are already employed in legal capacities on legal tasks in business or government and who do not require practising certificates. This has happened for many years. Indeed, Admitting Authorities have recently had to grapple with the problem of stale qualifications because of law graduates seeking admission to the legal profession many years after they have obtained legal academic and PLT qualifications, who are now employed as lawyers in senior government positions.’

p. 12 at 7 – ‘The Commission is apparently unaware of the requirement of item 5.3 of the national PLT Competency Standards for Entry-level Lawyers, which every applicant for admission since 2003 is required to acquire and to demonstrate before becoming eligible for admission to the legal profession.’ Item 5.3 of the PLT competency standards effective January 2015 refers to the Civil Litigation Practice competency.

Submission 10 – Christopher Enright (proprietor of Maitland Press):

p. 93 – ‘Chapter 14: Internship for Trainee Lawyers. Make working in legal aid for a period, say of two or three months, part of the practical legal training (PLT) for novice lawyers. Deploy the novices in preparing documented cases for clients. There are two benefits from this – the novices would be on a relatively low wage, which keeps costs down, and at the same time these novices receive intensive and supervised training and experience in the basic tasks for litigation.’
p. 95 – ‘Newly graduated lawyers. One possibility is to incorporate into their practical legal training a period of say three months where they are an intern in a legal aid office.’
p. 100 ‘Indeed, it would be possible to include a placement in a legal aid office as an optional or even compulsory part of practical legal training. This could involve instruction and supervised practice in the following matters:
1. Office management. 2. File management.
3. Interviewing a client.
4. Advising a client.
5. Interviewing a witness.
6. Writing a statement of evidence of a witness. 7. Preparing documents for a client’s case.
8. Ethics, with special emphasis on litigation.’

Submission 92 – Dr Liz Curran (ANU):

p. 2 – refers to own teaching experience in ANU Legal Workshop’s GDLP.
p. 12 – ‘Clinical and some Practical Legal Training Programs at universities do great work engaging students in supervised service delivery to community members experiencing disadvantage.’
p. 15 – ‘Is the current regulatory framework for legal practitioners appropriate? The National Legal Profession Reform process is taking a long time. There are sometimes, among the various admitting authorities and others examining admission to practice, in some states and territories, arbitrary decisions taken with little or no evidence or a level of sophistication about developments in practical legal education and effective learning for practice in the current world. There is much national and international work in the practical legal training and legal education spheres that could inform such conversations.’

Submission 181 – UNSW Law School:

p. 1 – ‘Lawyers need first-class black-letter skills, but that is not enough. Equally, we should not be a trade school providing practical legal training.’
p. 2 – “The steps of legal training  – Your report describes the steps as being university education, PLT, and obtaining a practising certificate. The last of these is not training, but recognition that the first 2 steps have been completed. In its place, it would be more appropriate to include the on-the-job training that young lawyers get when they join law firms or other employers.’
Attachment to Submission 181 – Themes of law school curricula: ‘A third is skills and capabilities (not in terms of detailed practical legal training, but rather in communication, critical-thinking and problem-solving).’

Submission 114 – Adrian Evans (Monash University):

p. 1 – ‘There is little general morality or even general legal ethics education during law school and certainly none post law school in the PLT phase of legal education.’

Submission 171 – Adrian Evans (post-draft submission):

p. 1 – proposes consideration of ‘the relative merits of increased clinical legal education [CLE] at the university or practical training stages of education’. CLE methods can work in a PLT environment, but these are time-pressured and increasingly online environments where the ability to interact face-to-face with a number of (real) clients over many weeks, is considered to be impractical and/or uneconomic.’

Submissions that mention PLT in passing:

Submissions 34 (NSW Bar Association), 91 (National Association of Community Legal Centres), 96 (Law Council of Australia), 139 (Law Society of South Australia), 174 (Law Society of NSW) each mention PLT in passing, usually with reference to admission requirements.

Public Hearings

The Productivity Commission will hold public hearings commencing in Canberra on 2 June, and in other capital cities.

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