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PRACTICE ARTICLE
DEEP LEARNING AND ‘TOPICAL
ISSUES’ IN TEACHING ADMINISTRATIVE LAW
MICHAEL HEAD*
I INTRODUCTION
It is perhaps a conceit of law teachers to think that
their area of law poses special challenges for educative purposes. In this
paper,
I suggest that administrative law does present some particular problems
for students, although I am sure that the issues are not
completely unique to
this legal field. In any case, my experiences over some years have led me to
explore some educational theory
and practice that may be of broader interest to
law teachers, and not only those involved with administrative law.
One of the
concerns expressed by teachers of administrative law is that too many students
have difficulty conceptualising its scope
and character. What exactly is
administrative law? How does it fit in with other areas of law? Where are the
boundary lines? What,
if anything, is unique about administrative law? These are
just some of the questions that students ask and often have difficulty
clarifying to their satisfaction. Auxiliary questions abound. How do
administrative law remedies relate to other legal, and non-legal,
avenues of
redress? Why has administrative law had such a convoluted and problematic
history? How do its features —
for example, standing rules, procedural fairness and
remedies — compare to
other areas of law?
Recently, an experienced administrative law academic sent
a circular email to other teachers in the field, discussing the insights
he
obtained from asking his students to keep a journal throughout the course
‘where they reflect upon their learning, teaching,
materials, particular
articles, issues or simply their reaction (or lack of reaction) to topics
etc)’. He reported:
A common problem which I am still tackling after four years of reading is how to make administrative law quickly accessible to all students. Often I will get comments like, ‘Week 5 and I still don’t get this subject’ or ‘I had no idea what administrative law was about and I am still struggling’. Some already know (mature age students or students who have had summer jobs in the public service or public service relatives — not always a guaranteed result), some get it from the assigned textbooks but others (about 25–30 per cent) still struggle and it slows their progress in the course.
He asked if any of us had ‘materials
(videos, case studies, newspaper clippings) or ideas that you use to help give
students
an easy entry into the wonderful world of admin law.’
My
experiences in teaching administrative law at the University of Western Sydney
(UWS) since 1998 (and a semester at Osgoode Hall
in Toronto) have revealed
similar difficulties. In fact, these problems have greatly influenced my
approach to the subject, in two
inter-related ways. First, I have endeavoured to
constantly place administrative law in its historical, political and
socio-economic
context, as well as its constitutional, institutional,
bureaucratic and policy settings. As I have explained
elsewhere,1 this helps make administrative law
intelligible, intellectually-satisfying and even enjoyable. Second, I have
established a practice
of beginning classes each week with ‘topical
issues’. I ask students to come prepared to discuss an item they have seen
in the media that they think relates to administrative law. Invariably, there
are thought-provoking issues or controversies, from
the turning back of asylum
seekers, or a denial of welfare benefits, to a freedom of information request or
contest over a rejected
business application for a permit or license.
This
article will briefly review these inter-linked approaches and the lessons that
can be derived from them. It will begin by exploring
the nature and possible
causes of the difficulties that students have, and then refer to a teaching
approach, that of deep learning,
that has helped guide my efforts to overcome
the difficulties.
II WHY DO STUDENTS HAVE PROBLEMS CONCEPTUALISING ADMINISTRATIVE LAW?
A good starting point is to realise that students can
hardly be blamed for finding it hard to come to grips with some areas of law,
including public and administrative law. There are many reasons for this.
Through no fault of their own, students may have a limited understanding of
the existing political order and its constitutional underpinnings,
let alone the
vast bureaucratic undergrowth at federal, state and local government levels.
This is particularly so with international
students and those non-English
speaking backgrounds, but is by no means confined to them. As the email cited
above indicates, mature-age
students and those who have had some employment in
the public sector find it easier to grasp the contours and intricacies of
administrative
law. But many younger students, often coming straight from
secondary school, have had little exposure to the official institutional
structures and governmental frameworks.
In part, this reveals gaps or
weaknesses in the school curricula. From my classroom discussions, it also
reflects a certain degree
of disaffection with a political and official system
that is seen to be indifferent or unresponsive to the lives and aspirations
of
young people. There is empirical evidence, for example, of a significant level
of disenfranchisement from formal electoral processes.
The Australian Electoral
Commission estimates that only 80 per cent of eligible voters aged between 18
and 25 are on the electoral
roll. In 2005, an AEC-commissioned Youth
Electoral Study found that 50.2 per cent of secondary students said that
they would not vote in a federal election if voting became
non-compulsory.2 This situation could worsen following
the passage of electoral legislation that may make it more difficult for new
voters to enrol
before an election.3
Secondly,
students may have even less knowledge of the historical roots and evolution of
the Anglo-Australian polity. It is impossible
to comprehend the full
significance or implications of vital concepts such as the separation of powers,
the classification of powers,
parliamentary sovereignty, ministerial
accountability, natural justice and habeas corpus and other prerogative
writs without an acquaintance with the issues at stake in the English civil war
and ‘Glorious Revolution’
of the 17th
century. Yet, in speaking to students over the years, I have come across only a
handful who could even nominate the century in which
these convulsive struggles
against the absolute monarchy occurred, far less identify the role played by
John Locke in elaborating
the concepts of life, liberty and
property.4
Equally, few students are familiar with
the economic, social and demographic changes brought about by the industrial
revolution and
the rise of the working class in the
19th century. These, followed by the extension of the
franchise, led to the growth of parliamentary and municipal power, together with
the re-emergence of central executive control through the cabinet, government
departments and statutory authorities.5
The
confusion is not helped because at the end of the 19th
century, Professor Dicey, an influential figure in English constitutional law,
denied the very existence of a separate branch of
administrative
law.6 Dicey claimed that administrators were subject to
the same ‘rule of law’ as individuals and were liable for any
illegal
or arbitrary action in the ordinary courts of law. Therefore there was
no need for special courts or tribunals. Dicey argued that
there should be no
separate system of administrative law, such as existed in France, where the
droit administratif involved a distinct system of administrative rules
and tribunals. As a result, English administrative law developed in an unplanned
and often quixotic way, fraught with technicalities.7
This legacy lingers, although in the post-World War II period, the rise of
extensive government regulation of economic and social
life and the emergence of
the welfare state made it evident that both a distinct body of law and new
mechanisms for addressing grievances
were needed. Over the past four decades,
administrative law has been profoundly affected by the radicalisation and
struggles of the
1960s and early 1970s, which were reflected in the courts,
legislatures and corridors of power by way of a greater recognition of
individual and collective rights against government power and over welfare and
other entitlements. One manifestation of this claim
to administrative rights in
the American context was Charles Reich’s seminal 1964 article, ‘The
New Property’.8
However, since the mid-1980s,
administrative law has been diminished by the dismantling of entitlements,
government funding cuts,
deregulation, widespread privatisation and the
introduction of concepts such as ‘user pays’ and the contracting out
of
essential public services. Semi-privatised or corporatised institutions such
as Telstra impact heavily on people’s lives, yet
are immune from
administrative law sanctions.
Another problem that arises for students,
apart from the notorious technicalities of administrative law that derive from
this tortured
history, is that diverse individuals and bodies exercise
administrative power, including public servants, Ministers of the Crown,
regulatory agencies, commissions, local councils and some non-government
organisations such as social or sporting bodies. Non-government
organisations
exercise public powers such as regulating access to employment or occupation:
for example, the various horse racing
authorities and the various state Law
Societies. In some spheres, particularly procedural fairness (natural justice),
principles
of administrative law have been extended to private bodies, such as
trade unions, perhaps because they exercise certain powers of
a semi-public
character. Efforts to explain the domain vary.
Douglas notes in
Administrative Law:
Traditionally, administrative law has been largely concerned with government administration. It is generally conceptualised as lying within the purview of ‘public law’, that is, the law which concerns the relations between the individual and the state. Activities outside the public sector are governed by bodies of private law, such as contract, tort and consumer protection law.9
However, Douglas
describes the distinction as ‘problematic’ and says it ‘has
never been a rigid one’. He cites
as examples the expansion of the natural
justice doctrine into private law, the nibbling away of estoppel into public law
concepts,
the occasional issuing of administrative law remedies against
non-government bodies, privatisation and the increasing adoption of
corporate
models for the public sector.
For my own part, I also caution students that
administrative law is
wider than ensuring that an administrative body acts within the law. It involves understanding the way governments operate, the nature of the administrative power and process, the function of those who participate in it, and the practices, procedures, manuals, guidelines and other internal policies or rules which may influence the way they behave.10
For all these reasons, great care and attention must be given to helping students explore and grasp the sometimes uncertain and always evolving contours of administrative law.
III ‘DEEP LEARNING’ VERSUS ‘SURFACE LEARNING’
Contemporary educational research suggests that
serious problems arise when students are regarded as passive recipients of
information,
rather than as active participants in the learning process. It is
important for teaching practices to focus on what students will
internally
comprehend differently after the learning experience. Drawing on noted
educational theorists, Macduff suggests that learning
is bound up with students
actively coming to understand topics and ideas in ways that change or
re-organise their views.11 This internalised process
has been referred to as ‘deep learning’ in contrast to
‘surface learning’ that
emphasises the ability to memorise and list
information.12
The challenge, therefore, is to frame
the learning experience so that it leads to conceptual changes in
students’ minds. One
education researcher identifies flaws with approaches
that see students as empty vessels who simply absorb information, or that,
alternatively, focus on the responsibility of teachers to provide clarity and
diversity in methods of communication.13 Biggs argues
that focusing on ‘what the student does’ best helps students acquire
a deeper and more critical understanding.
This can be achieved by providing
opportunities for students to question, extrapolate and hypothesise. Macduff
argues:
It is not sufficient to have emotive stories, more rigorous arguments or more persuasive communication techniques... Rather, change through critical understanding is something that students will need to construct for themselves through actively engaging with topics of social importance in personally meaningful ways.14
Macduff
relates her own experience in giving a legal conference presentation designed to
encourage legal educators to develop their
understanding of teaching approaches
and practices. She used a quiz and small group discussions to ask participants
to (1) identify
their own teaching practice; (2) identify the assumptions
underlying their practice; (3) identify discrepancies between their teaching
practice and underlying assumptions; (4) question information transmission as
the only teaching practice possible; and (5) explore
alternative teaching
practices, including ‘what the student
does’.15
Among her conclusions were that
teachers must be aware of the general understanding each student group starts
out with. She also observed
that participants recognised that their learning had
happened because the session had engaged them through personal critical
reflection,
rather than seeking to persuade them to change through lecturing.
Finally, she noted that the process of learning depends upon making
students
‘active participants in their own
change’.16
It thus appears that ‘deep
learning’ is associated with ‘active engagement’. The next
parts of this note seek
to examine, in the light of these considerations, my
practice of discussing ‘topical issues’ at the beginning of each
week’s administrative law classes, and of striving to place the subject
within its historical, economic and social context.
IV ON USING ‘TOPICAL ISSUES’
One means of facilitating ‘deep learning’
and ‘active engagement’ is to ask the students to come prepared
to
at least one class per week with examples of items in the media that they think
illustrate, or raise issues about, administrative
law. This exercise encourages
students to turn their minds to grasping the province of administrative law. The
examples they produce
not only enliven the discussion, they are often invaluable
in clarifying the nature of administrative law and its relationship to
other
types of public and private law. Most times, the students themselves can
correctly explain how their item is relevant to administrative
law.
Occasionally, they cannot. Either way, there is an opportunity for the entire
class to critically engage with the subject matter.
Among the more
interesting ‘topical issues’ during the Spring Semester of 2006
were:
These cases illustrated
different things about administrative law: its coverage of universities; how
exemption provisions limit the
FOI laws; the almost unlimited scope of delegated
legislation; the extension of procedural fairness to private bodies such as
churches;
and the flexibility and chameleon-like character of the common
law’s procedural fairness doctrine.
Another case that provoked
considerable discussion, and ultimately became part of the final examination set
for 2006, was The Australian newspaper’s Freedom of Information
Act (Cth) (FOI Act) challenge to Treasurer Peter Costello’s refusal to
release Treasury information relating to personal taxation
bracket creep and the
number of wealthy people claiming the first home buyer’s
grant.20
By a 3–2 margin in
McKinnon, the High Court dealt a blow to efforts, even by large and
well-resourced media companies, to reveal publicly-significant but potentially
embarrassing official documents. After a four-year legal battle, estimated
to cost Rupert Murdoch’s News Ltd more than AUD$2 million, the court
upheld a decision
by the Administrative Appeals Tribunal (AAT), which ruled that
The Australian newspaper’s freedom of information editor, Michael
McKinnon, was not entitled to access the documents. The Australian Press
Council, which was a party to the case, said it was dismayed by the decision,
and called for urgent FOI Act reform.
For my students, the case illustrated
a number of key issues about the FOI Act, including the ministerial use of
‘conclusive
certificates’ to claim the exemption for ‘internal
working documents’; whether the Act has a presumption in favour
of
disclosure; and the extent to which the ruling undermined the stated purposes of
the FOI Act. Both the majority and minority judges
also made interesting
comments about the powers of the AAT and how these can be circumscribed by
legislation such as the FOI Act;
and whether judicial review might have produced
a better outcome for the plaintiff. These issues proved fruitful and productive
of
discussion. In fact, we spent some weeks exploring aspects of the case, which
ultimately led to the examination including a question
derived from the
McKinnon scenario.
V PLACING ADMINISTRATIVE LAW IN CONTEXT
A related difficulty that students have in coming to grips with the parameters of administrative law is their tendency to expect the law to be a set of clear, black-and-white propositions that can be simply learned and applied. They are liable to be disillusioned. To find the Australian High Court split over elementary and fundamental questions, as it was in McKinnon, can be disconcerting. But the fact that the country’s highest court has been divided in many leading cases can also become instructive for students. It points to the need to gain a feel for administrative law’s historical background, social fabric, political dynamics and judicial schisms. As I explain in my text:
Anyone who studies administrative law soon realises that it has changed dramatically over the past three decades. Indeed, in one well-known case, Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33, Dean J (later Governor-General) referred to a ‘quiet revolution’ in administrative law. The phrase seems to be an oxymoron but contains a kernel of truth. Major shifts (evolutionary rather than revolutionary) have occurred in administrative law. Over the same years, the Australian law has diverged considerably from, or lagged behind, developments in other common law jurisdictions, notably Britain and Canada. These rifts cannot be explained simply as the product of purely legal disputes. This is all the more reason to probe more deeply and critically, not just into the stated legal doctrines but the historical, political, socio-economic and constitutional background to the law’s convoluted development.21
From my
experience in teaching law, this approach is also the most
intellectually-satisfying and therefore firmly-grasped. It not
only makes
administrative law — a
notoriously difficult subject —
less intimidating for students, it also enhances active engagement.
Students can more easily relate to the often complex, hair-splitting
and
seemingly dry rules and concepts if they have some idea of their origins and
modern-day relevance.
For example, I always review with my students the
substantial changes that have occurred over the past three decades, arguably in
response to underlying political, economic and social shifts. In discussing the
rise of what is sometimes called the new administrative
law, I point to at least
five major factors: (1) The development and extension of the post-World War II
welfare state, encompassing,
for example, the provision of social security
benefits to single parents and students; (2) A rising demand for greater
recognition
of social security and other entitlements as basic rights against
the government; (3) The perceived loss of parliamentary power to
the executive,
giving rise to more extensive recourse to litigation to challenge government
decisions; (4) The demand for access
to more readily available public
information, and to cheaper and less formal avenues of redress, as well as
uniformity, flexibility
and certainty in decision-making; and (5) The greater
relevance of international law via United Nations Covenants on various human
rights, which have been given limited recognition in administrative
law.22
Moreover, I emphasise that since the
mid-1980s, these developments have been counteracted by the processes mentioned
earlier — dismantling of
entitlements, funding cuts, deregulation, privatisation, contracting out and
‘user pays’. I also suggest
that the highly-charged political
atmosphere created in the wake of 11 September, 2001 terrorist attacks in New
York and Washington
has led to problematic extensions of executive power in the
name of national security and combatting
terrorism.23
VI STUDENT REACTIONS
While no scientific study has yet been devised or conducted to gauge and assess student responses to the use of topical issues, the results of UWS Student Feedback on Teaching questionnaires provide some empirical evidence. Unfortunately, no specific tailored questions address the issue. These annual, anonymous surveys are conducted in a standard form for all units at UWS. But in the open-ended comments that students are invited to make, students have often expressed appreciation for the approach taken by my text and for the exploration of topical issues. Last year, the comments included:
With the advent of new inter-active technology (‘Campus Edition’) at UWS, I intend to explore student reactions to my approach more fully by asking them to write online learning journals.
VII CONCLUSION
This article has suggested that the teaching and learning of administrative law can be significantly enhanced by students discussing ‘topical issues’ in classes, particularly when accompanied by a teaching approach that places the ever-changing legal picture in its historic, political and socio-economic contexts. Similar approaches may be worth pursuing in other fields of law. Further research, and a properly-designed study, may be necessary, however, to fully assess student reactions to, and appreciation of, these educative methods.24
* Associate Professor, School of Law, University of Western Sydney.
1 Michael Head, Administrative Law: Context and Critique (2005).
2 Australian Electoral Commission, Youth Electoral Study (Lawrence Saha, Murray Print, Kathy Edwards), Youth Political Engagement and Voting, Research Report No. 2, 2005 <http://www.aec.gov.au/About_AEC/Publications/youth_study_2/index.htm> at 7 December 2007.
3 Michael Head, ‘Democratic rights on the chopping block — Australia’s new electoral laws and the High Court’ (2006) 185 Overland 40.
4 See eg, Crawford B Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (1962).
5 Stan Hotop, Principles of Australian Administrative Law (6th ed, 1985) 1-.
6 Albert Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959).
7 Peter Cane observes that the prerogative writs ‘escaped the great procedural reforms of the 19th century’. See Peter Cane, ‘The making of Australian administrative law’ (2003) 24 Australian Bar Review 114.
8 Charles Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733.
9 Roger Douglas, Administrative Law (2nd ed, 2004) 3.
10 Head, above n 1, 18.
11 Anne Macduff, ‘Deep Learning, Critical Thinking and Teaching for Law Reform’ (2005) 15 Legal Education Review 125, 126.
12 Ibid, citing Ference Marton and Roger Saljo, ‘On qualitative differences in learning: outcomes and processes’ (1976) 46 British Journal of Educational Psychology 4.
13 John Biggs, ‘What the Student Does’ (1999) 18(1) Higher Education Research and Development 57.
14 Macduff, above n 11, 128.
15 Ibid 130.
16 Ibid 132, 133, 135.
17 Fomiatti v University of Western Sydney (No 2) [2006] NSWADT 210.
18 New South Wales v Commonwealth of Australia; Western Australia v Commonwealth of Australia [2006] HCA 52. See eg [395–421] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
19 Graham v Baptist Union of NSW [2006] NSWSC 818 [49].
20 McKinnon v Secretary, Department of Treasury [2006] HCA 45.
21 Head, above n 1, 2.
22 Ibid 11.
23 Ibid 10.
24 I would appreciate any feedback, comments or suggestions from law teachers: m.head@uws.edu.au
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