Friday, April 1, 2011

Australian Cabinet Information - a retrograde approach in the 21st Century

Matthew Moore’s story on the NSW Government’s resistance to releasing the “Blue Book” briefings for incoming Ministers highlights the continuing malaise in attitudes to FOI/Right to enforcement or access to government information in Australia.


Australian governments, public officials and law reformers continue to display a narrow and outdated conception of how to handle cabinet confidentiality. The general approach of categorically exempting information tagged as “Cabinet documents” with no public interest test or excessively long periods of protection (and in my view 10 years is far too long and unjustified).

The one exception is Queensland where under the Right to Information Act 2009 the Premier has been proactively releasing a small but steady stream of Cabinet documents

In contrast is the New Zealand position where the release of Cabinet information has been taking place for many years and in contrast to Queensland is extended to even very important decisions and topics.

See for example

Anti-Money Laundering and Countering the Financing of Terrorism AML/CFT Bill: Approval for Introduction at

See briefing to new incoming Conservation Minister in 2008

Govt departments -

Proactive publication is now so common in New Zealand there is a policy governing proactive release see CO Notice (09) 5 7 August 2009 Publishing Cabinet material on the web: approval process and publication requirements. See below

In fact Item 8 even allows for a New Zealand Minister to release documents before they have been considered by Cabinet.

The irony is that it took an Official Information Act request to access this Cabinet Notice.

We are told that our system of government in Australia would fall apart if this type of information was released after a Cabinet decision let alone beforehand. This dreadful fate is said to await even if you release Cabinet documents before 20 years has passed at a Commonwealth level. Strangely nothing seems to happen to the smooth running of our system of government when Premiers or Prime Ministers exclusively brief journalists on a Cabinet meeting, or a Minister leaks who was on what side of a Cabinet argument or when a former Minister reveals cabinet deliberations in their memoirs penned shortly after leaving office.

There seems an almost total incapacity by government officials and government ministers to understand how a structured means of access that uses the public interest as the key to determine the degree, timing and extent of release is a better fit for governance in the 21st century.
It probably was an inferior form of governance even in the 18th century.

New Zealand CO Notice (09) 5 7 August 2009 Publishing Cabinet material on the web: approval process and publication requirements


1 A Minister may decide that it is appropriate for Cabinet material to be published online, either proactively or following a request for the information made under the Official Information Act 1982.

2 The Cabinet Manual (at paragraph 8.4) provides guidance about the proactive release of Cabinet material. This notice sets out in further detail the processes and responsibilities that follow a Minister’s decision to publish Cabinet material on the web. It aims to support departments and staff in Ministers’ offices to publish Cabinet material online consistently and effectively so that it is easy to find. The notice covers:
  • • the approval process, including roles and responsibilities; • consideration of principles of the Official Information Act 1982 and other
  • relevant considerations; • content and presentation requirements; and • quality assurance.

3 “Cabinet material” means submissions that have been considered by Cabinet or a Cabinet committee, and Cabinet and Cabinet committee minutes. “Publisher” means the person in a department or a Minister’s office who is responsible for administering the publication of the Cabinet material on the web.

4 The notice relates only to Cabinet material of the current administration. The process for publicly releasing Cabinet material of a previous administration is set out in paragraphs 8.83 and 8.84 of the Cabinet Manual.

Approval to publish Cabinet material

5 Cabinet material may be published on the web only if the relevant portfolio Ministers(s) has approved the release of the material in that way. The publisher is responsible for obtaining the approval or for checking that approval has been obtained.

6 Approval can be obtained by:
  • • the publisher (ie a Minister’s office or department) seeking the portfolio Minister’s approval to publish a Cabinet paper/minute online;
  • • the portfolio Minister directing officials to publish a Cabinet paper/minute online; or • the Cabinet minute noting that the portfolio Minister will publish the information on the
  • web.

7 Before approving publication, the Minister should consider:
  • 7.1 the application of the principles in the Official Information Act 1982, the Privacy Act 1993, and the Security in the Government Sector manual to the information;
  • 7.2 whether the document contains any information that would have been withheld if the information had been requested under the Official Information Act 1982;
  • 7.3 whether the document contains any information that must be withheld under the terms of any other legislation; and
  • 7.4 whether, in the circumstances, publication on the web is the best means of public release.

8 If a Minister decides before the paper is considered by a Cabinet committee or by Cabinet that publication will be appropriate, the paper should contain a recommendation noting that intention:
note that the Minister intends to publish this paper and related Cabinet decisions online, subject to consideration of any deletions that would be justified if the information had been requested under the Official Information Act 1982.
Content and presentation

9 It is the publisher’s responsibility to ensure that only the final versions of Cabinet material are published on the web.
  • • Papers: the final version of a paper is that signed and dated by the Minister and considered by a Cabinet committee or Cabinet.
  • • Minutes: the final version of a minute is that issued by the Cabinet Office following a Cabinet or Cabinet committee meeting.

10 Cabinet committee minutes should not be published, however, until they have been confirmed by Cabinet.

11 Depending on their administrative arrangements with departments, Ministers’ offices may choose to review the finalised content before publication on the web.

12 Once Cabinet material is published on the web, the storage and handling requirements belonging to its original security classification (specified in the Security in the Government Sector manual and at may no longer apply. Unless some information has been withheld from the online version, departments may need to think about reviewing the security requirements of the original version stored on their document management systems.

13 Where possible, papers and relevant minutes should be published together so that readers have context for the decisions made by Cabinet. The Cabinet Office is able to provide electronic copies of minutes on request.

14 Where Cabinet material has been published on the web following a request under the Official Information Act, any deletions should be flagged in the body of the text at each deletion point. It is good practice to state the reasons for deleting information.

15 Do not publish:
  • • Cabinet Office summaries, which do not provide information additional to that contained in Cabinet papers and/or minutes;
  • • the distribution lists on Cabinet and Cabinet committee minutes, since their function is purely administrative for the distribution of hard copy documents;
  • • the names and signatures of Cabinet Office committee secretaries; or • CAB100 consultation forms accompanying Cabinet papers.
16 Cabinet material published on the web should conform with the current New Zealand Government Web Standards 2.0. At the time of writing this notice, this is version 2.0 (dated March 2009) and is available at standards-2/

Quality assurance

17 It is the publisher’s responsibility to ensure the quality and accuracy of Cabinet material made available on the web.
18 The following points should be included in any quality assurance checklists used by publishers of Cabinet material:
  • • the Minister has approved the item for publication • it is the final signed version being published • if it is a Cabinet committee minute, that it has been confirmed by Cabinet • the title and other reference information (eg shoulder number) is accurate • the date on which the paper was signed has been included • any distribution lists have been removed • the Cabinet Office summary (including its distribution list) has been removed • the signatures of the Secretary of Cabinet and/or of Cabinet committee
  • secretaries have been removed • the related CAB100 consultation form has been removed • all related Cabinet material (paper, minute) is included.

Monday, March 28, 2011

Submission on the Disclosure Log Discussion Paper - Office of the Australian Information Commissioner

Submission on the Disclosure Log Discussion Paper
By Rick Snell
Associate Professor
Law School
University of Tasmania
28 March 2011

This submission contains no confidential material.

In general I am supportive of most of the suggestions made in this Discussion Paper but would like to focus my attention on some particular points.

Consultation questions

Q15. Should agencies and ministers adopt a practice of updating their disclosure log on a particular day each week or fortnight?

I see no need for agencies to be limited in this way.

Q16. What other steps should be adopted to ensure a consistent and suitable approach across government to disclosure log publication?

I listened with great interest to the comments made at the Information Law Conference by both agency personnel and journalists.

I have great sympathy for the case made by journalists, especially by Michael McKinnon, that the public interest in delaying general release by the Disclosure Log to enable requesting journalists to craft stories based on the released material, is relatively minor compared to the threat to the public interest in deterring or lessening the use by journalists of the Act.

In particular I note that a number of comments were made in side sessions, plenary events and in casual conversation as to how the 10 day discretion on disclosure logs would be deployed to the disadvantage of journalists by releasing the information very quickly.

I would suggest the Information Commissioner adopt a guideline whereby the applicant can make a request on whether any released information be delayed from general release up to the 10 day maximum period. The applicant making this request should justify where it is in the public interest for the Agency to delay updating the Log for this specified period.

Some applicants will be happy with immediate release, other applicants such as journalists, researchers or members of parliament or NGOs may have good reasons to have a period of exclusive access.

Where applicants do not specify a grace period then the Agency is free to publish at its discretion.

I would reject the suggestion that “Agencies and ministers could invite applicants to propose or negotiate the date of publication, provided this occurred within the ten working days stipulated in s 11C. The discretion would remain with the agency or minister to decide the actual date, but they would better understand any special concern of the applicant.” This option gives too much discretion to agencies and does nothing to prevent the manipulation of the timing to disadvantage particular applicants including, but not exclusively, journalists.

The alternative of allowing the applicant to nominate the grace period rewards and protects certain users and adds little extra burden or restrictions on agencies.

Q13. Is 12 months a reasonable period for agencies and ministers to make available, by website download or otherwise, information that is listed in a disclosure log register?

No this is far too short a time. For the initial period of the new reforms all Disclosure Logs should be available for a minimum of 2 years and then this issue should be re-examined in light of actual experience.

Q14. Should the disclosure log register indicate when information is likely to be removed from an agency’s or minister’s website, or the date on which information was in fact removed?


Q12. What steps can be taken by agencies to make information in a disclosure log easily discoverable, understandable, machine-readable and accessible for members of the public?

At the minimum the information should be in searchable format.
Agencies should be required to index with searchable key terms.

Q7. Should all agencies and ministers adopt the same template for their disclosure log?


Q8. Should a disclosure log contain the headings and information specified in the draft template annexed to this paper?


Q9. Should the disclosure log contain a summary of an FOI applicant’s request, whether the documents requested were provided in full or in part, and whether all information provided to the FOI applicant is made available under the disclosure log?


Q10. Should this information be provided in the disclosure log register or in some other manner (also see question 8 above)?

In the Disclosure Log or link to it.

Q11. Should it be open to an agency or minister to supplement a disclosure log entry with comment or explanation?


Monday, March 7, 2011

Evaluating FOI 2.0 performance - some initial thoughts

Nick Howard Student Administrative Law 204 and Comparative Administrative Law 609 UTAS 2010

As part of my undergraduate degree in law at the University of Tasmania, I took Associate Professor Rick

Snell's unit in comparative administrative law. In consultation with Rick, I wrote two essays concerning the new Right to Information laws in Australia. In particular, I researched as to how best the new FoI 2.0 regime could be evaluated. This proved to be a challenging task.

In the past it has been easier to evaluate Australian FoI through, inter alia, comparative analysis. Moreover, comparative criteria such as information polity, asymmetry and compliance analysis have proved, for the most part, useful. However, I have argued that with the advent of FoI 2.0, these criteria are no longer a viable and effective mechanism for evaluation.

One of the key concerns with a 2.0 system is that there is nothing in place to safeguard the citizenry from the dumping of unordered, unstructured and superfluous information on government websites, in order to comply with Right to Information legislation. How is the citizenry to know whether or not what is broadcast by the government is quality information in the public interest? In addition, as suggested by Professor Alsadair Roberts in Blacked Out, there is also a problem of supply and demand. How are governments to tell how many people want the information and what exactly to supply? There is a possible solution.

In Wiki Democracy: How technology can make government better, democracy stronger, and citizens more powerful, Professor Beth Simone Noveck coined a revolutionary idea: ordinary people through open source technology could make government decision-making more expert and more democratic.[1] For Professor Noveck this is in the context of patents. Moreover, she argued that the public could assist in patent examination and 'collaborating groups of dedicated volunteers [could] help decide whether a particular patent should be granted'.[2] This thesis could be modified and in turn employed as a mechanism for the evaluation of a 2.0 system.

A website could be created for the purpose of public collaboration. Thereon, the citizenry could post comments on and rate disclosed information pertaining to its comprehensiveness; usability; accessibility; and comprehensibility, for example. This would provide feedback for government departments and in turn improve the quality of the proactively released information. Consequently, these comments and ratings could be used in comparative analysis between two countries, for example Australia and New Zealand, to thus evaluate an FOI 2.0 regime.

Rick Snell

After our discussions in Law 609 Nick and I continued to mull over this issue of trying to evaluate FOI 2.0 regimes. In part our thinking was influenced by the approach adopted in the Tasmanian Discussion Paper on FOI Strengthening Trust in Government: Everyone's Right to Know 2009 at page 12 that divided information into 4 categories that subsequently were incorporated in Section 12 of the Right to Information Act 2009 (Tas):

  • Required disclosures
  • Routine disclosures
  • Active disclosures
  • Assessed disclosures

These were defined in the Discussion Paper as:

Required Disclosure; that is the disclosures required by law or enforceable under an agreement, for instance annual reports, the Report on Government Services etc.

Routine Disclosure; that is the voluntary publishing of Government Information of interest to the public, for example the Department of Health and Human Services Health Progress Chart and the Department of Education Schools Improvement Report.

Active Disclosure; that is the voluntary release of information upon request. This includes the release of information which holds no broad public interest, but there is no public detriment in providing the information on request. A large amount of information is released on a day to day basis because someone makes a request and agencies disclose it without reference to FoI.

Assessed Disclosure; that is the release of information after it has been assessed against defined limitations, the onus is on release unless an agency can prove that the release would be detrimental to the public interest.

The idea has been to create a system that integrates the traditional FOI 1.0 approach into an integrated information management system geared towards increasing the availability of timely high quality information to citizens.

Yet few mechanisms, or much attention, has been devoted to evaluating whether this is taking place. The Office of the Australian Information Commissioner has put out a discussion paper about information principles ( but as Peter Timmins points out it is silent on how agencies establish their performance on achieving improved information access other than crude quantity measures (see

Currently, at UTAS and in collaboration with Dr Rhonda Breit from the School of Journalism at University of Queensland, we are looking at ways of utilizing the ideas of Beth Noveck and the initial work by Nick Howard to start this type of assessment.

One of my volunteers, Kat Burela, has developed an audit template to evaluate the ease of accessing information about the Right to Information Act on Tasmanian Government web sites.

We will ask reviewers to evaluate various Tasmanian government web sites in terms of accessibility of their information about Right to Information. The following categories have been used:

The access point discloses the link provided, and the number of subsequent links required gaining information (in the form of text, file or FAQs).

The target audience depicts the type of information provided (whether to inform the public of their rights or the departments of their duties and obligations.

The overall ranking each site has received is a personal ranking given against a prepared questionnaire.

Type of content

Accessibility of content

Search Option

We are developing a SurveyMonkey survey which will allow volunteers to both rank/audit the government web sites (in terms of FOI) and the survey mechanism we have developed.

We will then move onto the more difficult task of trying to evaluate whether post Right to Information there has been a qualitative information improvement in availability of government information.

[1] B Noveck, ‘Wiki-Government – how open source technology can make government deicison-making more expert and more democratic’, accessed at < >.

[2] Ibid.

Sunday, February 20, 2011

Once We Were Sloths 2

Four months on and it is about operating at newer fitness levels that seem to occur on a weekly basis.
In terms of weight I have hovered between 96 – 99 kg but now that weight is built around a newer and firmer body configuration. The inability to drop more weight has been extremely frustrating despite the more positive side which is that I have kept the 20+ kilos off I have lost since I started in late 2009.
I have offset the frustration in the weight department against the fitness gains and other positive changes.
My waist has gone from 104 cm to 102 cm and my pants size from 97cm to 95 cm.
Since the start of the new year I have increased exercise classes from 2 hours of circuit class a week with 1-3 hours of badminton to:
  • 2 hours of circuit (done at higher levels of intensity and faster recovery)
  • 1-2 hours of badminton
  • 2 hours of Spin
  • 1 hour of Body Combat
  • 1 hour of Pump

A strong keenness to add more sessions but university semester is beginning and will only be able to do early morning classes and evening classes (which I haven’t tried yet).
The most noticeable change has been my flexibility (in Sloth 1 – the increase in flexibility had been noticeable but now it is at a whole other level). Each week there is a surprising but much appreciated moment (or several) when I do something and then realised that I couldn’t do that previously:
  • Rise from a low chair without using my hands.
  • Grab my ankle for a quad stretch.
  • Lay in bed and bring my knee up to my chest.
  • Do a squat and instead of meeting resistance within nano seconds I keep squatting lower and lower.
  • I can now twist my body almost 180 degrees.
In terms of fitness I find that not only do I have the capacity and energy for extra exercise sessions (sometimes 2 on the same day) but I am putting in more effort during those sessions.

An old reflection

An old reflection

In my first newsletter to Introduction to Law students, in the last couple of years, I have included this reflection of an encounter with Justice Albie Sachs from South Africa.

I wrote the extract below in 2008 when I was overseas rather than teaching first week Introduction to Law. Last year during my 2010 work travels (10 countries, several conferences), I met the cousin of the judge who is the focus of my 2008 reflection – Justice Albie Sachs recently retired from the Constitutional Court of South Africa. His cousin, a sprightly elderly woman, described how she used to take food to Albie each day while he was in prison during the apartheid years in South Africa. She was very annoyed with me because I was leaving South Africa the next morning as she wanted me to visit Albie and would have taken me to see him. Three things struck me. First, how was I in this position to be offered the chance to meet a truly inspirational man (and being unable to take up opportunity)? Secondly, how deeply she was committed to her country despite the massive problems (in some areas 60-80% of population have aids, areas with high illiteracy 50% +, high unemployment). Third, Shirley and her husband Ben Rabinowitz are among the richest folk in Cape Town (and among the most significant contributors to charity, the arts, sports and scholarships) – were willing to give up their time to allow a complete stranger to meet their cousin. I met her whilst at a dinner with 50 odd lawyers, judges and former judges – many of them women. Many of them had played significant roles in keeping the worst ravages of apartheid at bay and in rebuilding their country. I hope some part of my teaching will be enriched by their example and experiences they shared with me.

The 2008 reflection
It has been strange to be away from Uni for the first week. As a co-ordinator of two subjects (Introduction to Law and Law 204 Administrative Law) I feel guilty or at least irresponsible for delegating my work to other people whilst I am travelling in the US.

In contrast I think that this trip has added enormously to my understanding of law, legal education and strengthen my desire to be an effective teacher. I have now seen and been involved in classes in 4 very different US law schools (New Mexico, Brandeis, Washington College of Law, Charlotte).

More importantly the after dinner speech last night in the exquisitely beautiful banquet room of the First National Reserve Bank of Atlanta would have been worth the last 20 days on the road, living out of a suitcase and putting up with extra security checks at every airport because I was a foreigner who had purchased his tickets outside the US.

Why did the dinner speech have such an impact?

It was not the large marbled hallways, the beautiful works of art, the boardroom table that probably cost a few hundred thousand dollars. It certainly was not the 18 hours of conference attendance over the last 3 days.

First the guest speaker was introduced by former President Jimmy Carter. Carter has redefined the role of former Presidents and the conference I have been at for the past 3 days at the Carter Centre perfectly illustrates this. 125 delegates (political leaders, activists, key donors and scholars) brought together to tackle a major issue see

Yet the key moment was the speech of Justice Albie Sachs – a founding member of the Constitutional Court of South Africa see

This elderly gentleman quietly stood at the podium. In a gentle voice he asked us what was the moment in our life that most challenged us as individuals. Many, like me, were flickering through a catelogue of events that seemed unremarkable or not significant enough to air in this august forum.

Justice Sachs with a simple statement and movement then proceeded to hold us spellbound. He said

“It was not the bombing which left me with this (flaps around a stump where his right arm once was), a bombing authorised by the state of South Africa. No it was my cracking under the slow torture inflicted upon me in a South African police cell…” – he then proceeded in soft unemotional words to paint the picture of a proud lawyer driven pass the point of physical endurance who was forced to sign a confession to crimes and to implicate friends and others. Still clinging to the last vestiges of pride by starting his confession “I make this confession under duress, I have been tortured…” yet too weak and defeated to resist being forced to sign blank sheets of paper so that his “real confession” could be typed on it.

The rest of the talk covered how he came back from this personal hell to be a key figure in restoring the rule of law in his beloved country.

Last night left me pondering what is it about the law that captures some people’s imaginations so deeply and becomes ingrained so completely with their souls that they can endure physical attack and cold, calculating torture? Endure it with enough faith to replant the seeds, after their own personal low point, for a better justice system.

What was it, and how was it passed on, in Justice Sach’s legal education, that allowed him, or committed him, so strongly to the rule of law? Can I, or will I ever, be able to pass this on to any of my students?

The other notable event yesterday was a quiet walk, in the Japanese Garden at the Carter Centre, with the head of Google Global Development and another scholar. The three of us talked about how Google could make accessible more of the necessary information that people at the bottom of the pyramid (the bottom 25% of the world’s population in terms of income, life expectancy, education etc) need. I probably was able to offer little new insight but it was an incredible opportunity to have just even a very brief input into an exciting enterprise. Certainly all those decades ago as a young first year law student, still with the rough edges of Queenstown on proud display, I never imagined that I would have experienced a day like yesterday. An experience that arose as a result of my continual legal education.

Yet I am annoyed with myself. The walk and the discussion was unexpected – so I wasn’t prepared. My input was therefore limited. A good lesson about being prepared for any circumstance including accidental opportunities.

Tuesday, January 25, 2011

Teaching as a Subversive Activity by Neil Postman and Charles Weingartner Penguin 1971

In a previous blog I wrote about rediscovering a book I had read around 1980 which was already fairly dated by that time.

“Teaching as a Subversive Activity. It left a big impression on me but as I was thinking in the last 5 weeks about the influences/inputs into my teaching journey it didn’t come to mind. Yet when I went back and reread the book I was staggered by the extent to which my teaching fits onto their template. Any student taught by me who looks at the Wikipedia page on Inquiry Education would say I simply replicated their methods. Yet at no time in the last 22 years have I relooked at the book. Yet most of the elements I have chosen – deep learning, constructive alignment, action learning, avoiding teaching inert or dead material – for my teaching from various authors fit almost as modules or snap lock parts to this central framework.”

The book came out in the US in the late 1960s and has all the hallmarks of being written at the height of the counter culture revolution and when radical or even complete change in society, institutions and power structures was seen not only as desirable but both possible and necessary. The first 40-50 pages had a profound influence on my thinking. The remaining 80 or so pages were devoted to advocating a complete, and often nonsensical, transformation of the educational system and the roles of teachers, administrators and students with little regard to how such a radical overall could occur. Whilst I could see how it’s critique of classroom teaching and the benefits to be gained from inquiry learning the suggestions for society wide change seemed both unworkable and unrealistic even by 1980.


“The inquiry method is motivated by Postman and Weingartner's recognition that good learners and sound reasoners center their attention and activity on the dynamic process of inquiry itself, not merely on the end product of static knowledge. They write that certain characteristics are common to all good learners (Postman and Weingartner, 31–33), saying that all good learners have:
  • · Self-confidence in their learning ability
  • · Pleasure in problem solving
  • · A keen sense of relevance
  • · Reliance on their own judgment over other people's or society's
  • · No fear of being wrong
  • · No haste in answering
  • · Flexibility in point of view
  • · Respect for facts, and the ability to distinguish between fact and opinion
  • · No need for final answers to all questions, and comfort in not knowing an answer to difficult questions rather than settling for a simplistic answer”

At the time of my first reading of this book I was halfway through a combined arts/law degree and the critique of the traditional approach to study clicked with me and fitted with other readings I had encountered like Karl Popper (the concept of a searchlight – trial and error – approach to experiencing and observing to gain knowledge as opposed to a static collection of bits and pieces of knowledge – the bucket approach) along with other inquiry orientated writers such as Pirsig’s Zen and the Art of Motorcycle Maintenance, Zen and the Art of Archery and Richard Bach’s books Jonathan Livingston Seagull, Illusions: The Adventures of a Reluctant Messiah. The film and TV series Paper Chase had also raised critical questions for me about what was taught in Law Schools and its applicability to life.

Postman and Weingartner contrasted the rate and type of change taking place in the world outside the classroom, touching on and making many similar points to Alvin Toffler’s book Future Shock (published around the same time), with the rearview mirror approach of education where most of the teaching was aimed at preserving the status quo and the business of teaching was largely information dissemination and transmission of cultural heritage [at 15-16].

Postman and Weingartner argued that [14-15]

“Our sociological theories, our political philosophy, our practical maxims of business, our political economy, and our doctrine of education are derived from an unbroken tradition of great thinkers and of practical examples from the age of Plato the end of the last century. The whole of this tradition is warped by the vicious assumption that each generation will substantially live amid the conditions governing the lives of its fathers and will transmit those conditions to mould with equal force the lives of its children. We are living in the first period of human history for which this assumption is false.”

If anything the rate, type and impact of change in 2011 is a quantum leap from what Postman and Weingartner were responding to in the late 1960s. The transferability of content information taught in University classes often will not survive past a student’s graduation. Yet, despite the expansion of formative and continuous assessment in law schools, summative assessment still dominates and whilst deep learning (the work of Gibbs and Ramsden) and constructive alignment (Biggs) gain ground the majority of students still appear to be collecting pieces of content to fill up their buckets to be poured out in a final exam. Content gathers who reflect back what has been communicated to them will generally be successful. Inquirers need to deliver back the content but are rewarded for the layer of insight and originality they add to their recollection efforts. Most effort is spent trying to guess what will please the lecturer.

Postman and Weingartner felt that the primary focus of education was content orientated, or driven, and that the method used was largely a secondary or minor consideration. A position that remains unchanged within most law schools – most accreditation schemes whether like those in the US or especially like the hold of the “Priestly 11” in Australia - focus first and primarily on content. Postman and Weingartner [at 19] argue:

“To our knowledge, all schools of education and teacher training institutions in the United States are organized around the idea that content and method are separate in the manner we have described. Perhaps the most important message thus communicated to teachers in training is that this separation is real useful and urgent, and that it ought to be maintained in the schools. A secondary message is that, while the 'content' and 'method' are separate, they are not equal. Everyone knows that the 'real' courses are the content courses…”

Therefore the type of teaching style or methodology that is adopted is secondary to the measurement or assessment of how accurately students have their ability to recall content whether this be the facts of a case or more often in law schools the ‘rules’ and ‘principles’ derived from a case or particular judgment. Teachers who fail to engage, who bore their students or simply read out their old lecture notes or passages from textbooks rarely face censure and as content acquisition is the student’s responsibility can rarely be found wanting. Whereas a bored or unengaged student who fails to play the content game easily demonstrates their inadequacies by what they produce, or fail to replicate, in a 60%+final exam. Law Schools, driven by the complementary missions of accreditation protection and delivering employment ready graduates,

Postman and Weingartner argued that students become comfortable with, or gravitate towards, sitting and listening – passive learning. Questions of teachers tend to be more about administrative and technical details (how long, word count etc? will this be on the exam?) rather than substantive or inquiry type questions. Teachers tend to ask “convergent questions” of the ‘Guess what I am thinking’ type and await the ‘right answer’ [20-21] to appear. When the lecturer asks “What did the High Court decide?” there is a limited array of responses.

The learning process is largely a case of passive learning, where a smart student learns to predict, and replicate, the narrative of the teacher and the teacher’s role becomes primarily one of judging how close the student comes to replicating the ‘answer’ or the story known or accepted by the teacher.

The structures of the course both intellectual (syllabus, course synopsis, source of the questions) and physical (design of the classroom or seating arrangement – tiered lecture theatres or tutor standing at front of a room) inherently favour a passive or ‘wait and respond’ style of learning. Postman and Weingartner write [at 27-28]

“… the passive reception of someone else's story. Of course, the school syllabus is exactly the latter: someone else's story. And most traditional learning environments are arranged to facilitate the sending and receiving of various story lines. That is why teachers regard it as desirable for students to pay attention, face front, sit up in their seats, and be quiet."

In many law schools the majority of students and lecturers find it difficult not to drift into, and remain bogged, in their respective roles of passive listeners and note takers (albeit now with some distraction via Facebook) and information transmitters. The difficulty largely stems from the fixed structures of the lecture theatres – fixed rows of tiered seating, all eyes centered to the front and a pool of faces often in the dimmed lights required for a powerpoint presentation. The art of reading out lecture notes is now tweeked with the repeating of stripped down dot points on the screen.

For Postman and Weingartner the constant changes and challenges in modern society requires an ability to construct and seek new knowledge.

“Knowledge is produced in response to questions. And new knowledge results from the asking of new questions; quite often new questions about old questions. Here is the point: once you have learned how to ask questions - relevant and appropriate and substantial questions- you have leaned how to learn and no one can keep you from learning whatever you want or need to know.”

A process of inquiry learning will help students cope with a society and environment whereby story lines are created by a multiplicity of information flows – sequential, episodic, alternative, visual, and where broken continuity is inferred [at 27]

Whilst Postman and Weingartner were early, and radical proponents, of the now common student engagement/student centered approach to learning they were almost recklessly indifferent to the role or contributions of the teacher to this process. Indeed in many of their examples the model teacher is the one who slides into the background as a facilitator. They do offer a few interesting categories of different approaches within the traditional teaching approach they critique:

  • Lamplighter
  • Gardener
  • Personnel Manager
  • Muscle Builder
  • Bucket Filler

In the end what I took away, very deep in my subconscious, from this little book was a desire to create a student centered learning environment where the mission was to enhance students to be independent learners and questioners. Content is subordinate to how it helps students understand and engage with current and future issues and problems.

Thursday, January 20, 2011

Working on a Memoir

Working Title: Postcards from the Past to the Future – Snapshots from an unfinished journey

Cover art: with kind permission of Rachel-Ireland-Meyers (see

It will be the painting titled Blue Echo

After some encouragement from Professor Gary Meyers, who teaches Introduction to Law with me, I have started to write a memoir.

My recent promotion to Associate Professor was the final release moment of something I had been struggling with for a while ie what am I doing in a place like a law school (given my roots, erratic track record as a student, a stop and start progress in the lowest echelons of the public service) teaching law? My economics/law graduate son puts it a little more starkly when he asks “How did you smuggle an Arts subject (the way and what I teach in Administrative Law) into the law school”? What is a young boy who grew up in a mining town, with an underwhelming secondary school record, doing engaging in public debate and tussles with elected officials? How did I gain an international profile in FOI yet have no, or no orthodox, traditional publication or research foundation and especially as after matriculation college I was ready to give away any further education and head back to work in the mines?

Gary’s proposal was simple
“You have an interesting story to tell – tell it”.
In part I think his aim was to provide a point of reference for a growing cohort of students that Australian government policy is sweeping into Universities – namely first in family and more students from lower socio-economic backgrounds and/or from regional areas. First, they have few reference points to relate their experiences to and secondly there are only a few places/authors that are able to share their sense of loss and even feelings betrayal of the family, friends and community you abandon on a higher education journey.

Furthermore after being awarded the Australasian Law Teacher of the Year Award in 2009 (and given my age - early 50s) I started to think of what could I leave as a legacy in terms of my approach/skills as a teacher that is something other than the "me"? Was there something in the method and process of my teaching, that clearly strikes a chord with many students and committees overseeing teaching awards, that could be useful to other teachers?

I only started writing in December, so very early formative stages, but have written 25,000 words and more are impatiently lining up. I have decided to adopt Richard Delgado’s motto, shared with me in an email, of
“write fast, edit slowly”.
I have yet to work out a structure, a real conception of an audience or readership (and at the moment it is more simply for me and family/friends although the “in-house” readership is growing). In the first few words, and before it became clear it was to be a memoir, the writing project had rammed me up against a number of unresolved issues about who I was and my past. Exposure to an early draft of Humeirah Fasq by Sabah Carrim
( encouraged me to tackle my own relationship to my past.

A reader, of an early draft, noted some similarity to Obama's Dreams from My Father which I had not read until three weeks ago. A great book. Like Obama, the search/construction of my story then sets up other actions (travelling home to talk with my mother about my birth father. A subject I had not raised for the last 48 years).

In part the effort has been (and still is) to find my voice/tune, to recall/reconstruct fragments and like Obama deal with unknown/uncertain family history. As I write I have also started to read more and very different memoirs including Hemingway’s A Movable Feast, Bob Ellis Goodbye Jerusalem: Night thoughts of a Labour Outsider. Patricia William’s The Alchemy of Race and Rights, Helene Chung’s Ching Chong China Girl and recall other ones I have previously read like Clive James Unreliable Memoirs and Dylan’s masterpiece Chronicles: Volume 1.

Now I am starting to explore in more depth, and tease out, some of the themes - academic as activist and my engagement with the law as an outsider. The other major theme I want to tackle is my journey as a university lecturer and the style of teaching that gives the subjects I teach a hallmark among UTAS law students as “a Rick subject”. The hallmark indicates, for those in the know, that this subject will be a far different experience than most of their other law subjects and indeed most of their UTAS learning experiences.

In the back of my mind the format I would like to try and emulate, to a degree, is The Rough Guide series ie like The Rough Guide to Bob Dylan ( in terms of the storytelling, the use of colour, boxes and photographs (or drawings). At the moment the writing is simply text but I have been collecting old photographs and often writing segments with a photo in mind to accompany the final text.

I have also started to reread, especially Richard Delgado (, about the use, and/or application, of narrative and the personal experience in law scholarship. Patricia Williams has been heavily criticised for both of these approaches and as a consequence she finds many of her articles rejected by law reviews because they rely too heavily on her first hand accounts. Richard had sparked my interest in weaving personal narrative into my scholarship during a very brief visit he and Jean Stefancic ( had made to Tasmania in December 1995 after a short series of lectures in Melbourne. In preparation for his visit I had read some of his work including “Storytelling for Oppositions and Others: A Plea for Narrative”, 87 Michigan Law Review 2411 (1987). We had a brief conversation about writing from the perspective of difference or the outsider in law (gender, race, ethnicity) and I had speculated whether the voice of a marginal/regional/working class perspective could also be an approach. From about that period a more personal and polemic tone started to appear in my academic writings.

A theme in the memoir will be the exploration of my feeling/concept of being an outsider to the LAW and the paradox of being a respected and award winning teacher of the law. At the moment this theme is implicit and has only just started to bubble to the surface - still raw and rambling in its appearance – in the writing or more accurately in the writing waiting to be done in the next few days.

In part, until my promotion, I felt that a lot of my activity including my teaching approach, written scholarship and public engagement in law reform, policy debates and discussion was in some sense illegitimate/unorthodox or of lesser value/respectability or status than the more traditional activities of my peers. A friend, now a Law School Dean, emailed me on hearing of the promotion and stated “You must feel incredibly validated for all your hard work over the years”. This was an eureka moment/comment for me. Yes I did. I had lodged an application, with the extremely strong backing of my new Dean, that asked for my efforts to be judged against the normal criteria but not in reference to the usual benchmarks (A1 refereed journals, competitive research grants, formal university teaching surveys). Another colleague wrote
“You are a star! One of the few real teachers that made it in the research encrusted world - so not only congratulations on a promotion so very well earned, but thanks from the rest of us for whom teaching is the goal.”

This memoir owes part of its existence to my recent long and slow slog back to better levels of health and fitness. Not only do I feel much better with myself, more comfortable in the world around me but I also have the energy to divert to this activity.

I have started to try and tell a story about some of my journey that has meaning not only for me but for those who I have encountered on the way. I have already discovered that a memoir and a personal narrative can have a deep impact on others and that ‘my story’ is also in parts a story of other people who may not want any version of that story told.

I haven’t decided wherever to, or when, post excerpts from the memoir on this blog. In the short term probably not and may restrict it to unwanted reflections or by-products of the process (the next proposed blog entry on the book Teaching as a Subversive Activity is an example of this – a piece too long and/or out of tune with the project).

I remember seeing on an ABC Book Club segment a discussion about the Great Gatsby. Someone commented how Fitzgerald had developed a deep and multilayered background for every character, event, relationship but had pared it all down to a minimalist presence on the actual page. In A Movable Feast Hemmingway wrote about a crowd scene a poet had worked on for a year to reduce down to a sparse few words. At the moment I am just trying to capture events, memories, flashbacks and to explore feelings and reactions by just letting the words flow out.

One thing I am discovering is how fragile and unreliable memories can be. One example around 1980 I read a second hand copy of Teaching as a Subversive Activity. It left a big impression on me but as I was thinking in the last 5 weeks about the influences/inputs into my teaching journey it didn’t come to mind. Yet when I went back and reread the book I was staggered by the extent to which my teaching fits onto their template. Any student taught by me who looks at the Wikipedia page on Inquiry Education would say I simply replicated their methods. Yet at no time in the last 22 years have I looked again at the book. Yet most of the elements I have chosen – deep learning, constructive alignment, action learning, avoiding teaching inert or dead material – for my teaching from various authors fit almost as modules or snap lock parts to this central framework.

Whether this memoir is finally published or in what form who knows but already I have reaped dividends in my family and personal relationships, in my sense of self and in my understanding of my teaching. At the very least it has provided enough renewed passion to get me through at least one more semester of teaching.

1st Leaf - Mexico