78290 Strategic Litigation Practice
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Subject handbook information prior to 2017 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 78101c Postgraduate Legal Research OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR ((22 credit points of completed study in spk(s): C04264 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies OR 22 credit points of completed study in spk(s): C04147 Master of Legal Studies OR 22 credit points of completed study in spk(s): C07074 Graduate Diploma Legal Studies)))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
There are course requisites for this subject. See access conditions.
Description
This subject provides students with the opportunity to learn the practice of strategic litigation on behalf of Indigenous clients and nations. Examining models of strategic litigation, and the methods for affecting change in the Australian landscape, students gain an understanding of how to advance a 'rebellious lawyering' approach. Students are required to engage with Indigenous nations and communities, and community-based organisations advocating for Indigenous rights. These engagements are identified and supported by Jumbunna Indigenous House of Learning. Students, through these engagements and their understanding of suitable test-case litigation, identify potential test-case litigation projects and prepare briefs for presentation to pro-bono partners. In addition to the theories of strategic litigation, students participate in clinical practice exercises aimed at highlighting issues faced by Indigenous people in the Australian legal system.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Understand common issues faced by practitioners in obtaining instructions, and competently acting for, Aboriginal Clients. |
|---|---|
| 2. | Students will critically reflect on the existing legal system as well as the goals and priorities of Indigenous Nations to conceptualise and communication proposed test case strategies to advance the clients???/???s interests. |
| 3. | Students will be required to present their test case proposals to partnered legal firms who will be evaluating whether to take on these cases. |
| 4. | Students will obtain the ability to critically reflect on the impact of their personal beliefs and cultural background on their understanding of the roles and obligations of a legal practitioner. |
| 5. | Understanding the impact of cultural communication norms on professional obligations as solicitors and advocates and the development of Indigenous Graduate Attributes. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Legal Knowledge
An advanced and integrated understanding of a complex body of legal knowledge including the Australian legal system, social justice, cultural and international contexts, the principles and values of ethical practice, and contemporary developments in law and its professional practice (1.0) - Ethics and Professional Responsibility
An advanced and integrated capacity to value and promote honesty, integrity, accountability, public service and ethical standards including an understanding of approaches to ethical decision making, the rules of professional responsibility, an ability to reflect upon and respond to ethical challenges in practice, and a developing ability to engage in the profession of law and to exercise professional judgment (2.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate complex legal issues, apply reasoning and research to generate appropriate theoretical and practical responses, and, demonstrate sophisticated cognitive and creative skills in approaching complex legal issues and generating appropriate responses (3.0) - Research Skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues and demonstrate intellectual and practical skills necessary to justify and interpret theoretical propositions, legal methodologies, conclusions and professional decisions (4.0) - Communication and Collaboration
Effective and appropriate professional communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately (5.0) - Self management
A high level of autonomy, accountability and professionalism, the ability to implement appropriate self-management and lifelong learning strategies including initiating self-directed work and learning, judgment and responsibility, self assessment of skills, personal wellbeing and appropriate use of feedback and, a capacity to adapt to and embrace change (6.0)
Teaching and learning strategies
Strategy 1: Collaborative Experience Students will engage in class discussions applying understanding of prescribed reading and consideration of relevant issues. In addition, students will work in groups on the development of a test-case proposal.
Strategy 2: Seminars by academics, practitioners and Indigenous instigators working in the field of strategic litigation to provide a framework for understanding strategic litigation in Indigenous contexts
Content (topics)
- Indigenous Nations, Methodologies and Worldviews
- Nation Building and decision making; Reflections on ethical lawyering for collectives
- Strategic Litigation, what is it and how does it work?
- Clinical Skills A – Taking Instructions, Interviewing Clients and Examining Witnesses.
- Policing; alternative theories and strategic engagements
- Strategic Litigation opportunities in Coronial Law
- Critical Skills 1: Standing, Amicus, AG, Funding and Costs, Access to Justice
- Critical Skills 2: Stolen Wages, the Mabo Conundrum.
- Child Removal; Community lawyering for change
- Water Rights / Land Rights / IP / Patent
Assessment
Assessment task 1: Class Participation and Reflective Journal
| Objective(s): | This task addresses the following subject learning objectives: 1 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 2.0 and 3.0 |
|---|---|
| Weight: | 25% |
Assessment task 2: Completion of on-line practical cross-examination exercise focusing on recognising and managing cultural differences in communication
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 5 This task contributes specifically to the development of the following graduate attributes: 2.0, 3.0 and 5.0 |
|---|---|
| Weight: | 25% |
Assessment task 3: Submission and presentation of proposed test case
| Objective(s): | This task addresses the following subject learning objectives: 3 This task contributes specifically to the development of the following graduate attributes: 1.0, 2.0, 3.0, 4.0, 5.0 and 6.0 |
|---|---|
| Weight: | 50% |
Minimum requirements
Minimum Requirements for passing the subject
Required texts
Electronic readings for each week provided through the e library
Legislative Council, Standing Committee on Law and Justice, (2014). Final Report, the Family Response to the murders in Bowraville.
Recommended texts
Royal Commission into Aboriginal Deaths in Custody. (1991) Final Report of the Royal Commission into Aboriginal Deaths in Custody. Australian Government Publishing Service, Canberra.
Human Rights and Equal Opportunity Commission. (1997) Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families.
Behrendt, L. 2003. Achieving Social Justice, Federation Press, Sydney.
Wierzbowski, A. Lawyering for Change Report, Victorian Law Foundation, CLC Fellowship Report 2015.
Trubeck, L. The Worst of Times…and the Best of Times? Lawyering for Poor Clients Today, 1123, 1995 Fordham Urban Law Journal (1995).
Priest, W and Roach, S (Ed). 2004. Litigation Past and Present, University of New South Wales Press, Sydney.
Tamanaha, B. 2008. Understanding Legal Pluralism, Sydney Law Review, Vol 30 at 375.
Hopkins, T. When Police Complaint Mechanisms Fail: The use of civil litigation. ALT LJ Vol 36(2) 2011, 99.
Durbach, A., McNamara, L., Rice, S. & Rix, M. (2013). Public interest litigation: making the case in Australia. Alternative Law Journal, 38 (4), 219-223.
O’Shea, L. (2011) Advocacy on Trial. Alternative Law Journal 36(2), 87 – 89.
Tilly, J. (2011). Governing on Country: Using institutions to close the gap in Indigenous disadvantage. Alternative Law Journal 36(1) 2011 – 37.
