‘How on earth did I end up here?’

ALTA Conference Dinner – ‘Legal Education for a Global Community’, St Paul’s College, University of Sydney 3 July 2012, Professor Rosalind F Croucher*

Thank you, Professor Mason for your kind introduction. It’s delightful to be back on campus and at St Paul’s College — a very elegant place. It is the oldest residential college at the University (and in Australia), founded in 1856 as an Anglican college for men. I remember the Victoriana evenings from when I was a student. I note the Union Jack hanging above our heads, perhaps leftover from such an occasion, or a mark of the founding of the College when New South Wales was still a British colony. One of its founding fathers was Sir Alfred Stephen, Chief Justice of New South Wales — a nice connection for us this evening, as a conference of law teachers.

In such a beautiful and historic place it is appropriate to remember its other history and to acknowledge Gadigal people as traditional custodians of the land.

My College association, though an Anglican by upbringing, is more with St Andrew’s College, founded ten years after St Paul’s, and of which I am an Honorary Fellow. I am, indeed, an ‘Andrewsman’. Andrews has been doing very well of late in the Rawson Cup (in which St Paul’s participates) and the Rosebowl, although only the former honour can be amongst the aspiration of Paulines, as the latter is the competition for women College residents. I know I should not rub such matters in – it’s akin to State of Origin status amongst the University Colleges – and I need to be polite to our host College, but …..

By way of preliminary observation I should also add how fitting it is that Professor Rosalind Mason, the Chair of ALTA, is described as ‘Master’ of Ceremonies for this evening. Professor Mason and I share ‘Rosalind’ as our given names, after the Rosalind of Shakespeare’s ‘As You Like It’, Shakespeare’s most significant female role. But of course Shakespeare’s women were boys dressed as women, and in this play, as in several others, part of the dramatic conceit, and humour, is that the ‘woman’ would then dress as a man. Boy dressed as woman dressed as man. The Tudor audiences loved this double and triple play. And so it is fitting that ‘Rosalind’ tonight is the ‘Master’ of Ceremonies.

The Dean of Sydney Law School, Prof Gillian Triggs, asked me to speak tonight – and I must say how delighted I am that we will be colleagues soon in another capacity, both as heads of independent government agencies within the Attorney-General’s portfolio. (An outstanding appointment for Gillian and the Government, I must say, and a credit on the University in its choice of Gillian for Dean!).

My brief was a fairly open one, initially about law reform and the challenges/practicalities of working with government on law reform issues. I can do that quite briefly: independence is essential. (In the final plenary session of this afternoon, one of the panellists, the Hon A/Justice Ronald Sackville AO spoke of the crucial value of independence for scholars, so it is common theme). Independence is hard won and requires constant nurturing. As Attorney-Generals change and departmental staff shuffle around — which they do seemingly constantly — there is a regular ‘re-training’ by us of them. The key difference in approach, between a government department and an independent law reform body is that government starts with the outcome they want to reach; we start with questions and don’t reach answers until the end. Throughout inquiries it is a process of constantly reinforcing the line of independence and the difference in processes that requires, but at the same time maintaining a respectful communicative relationship to ensure they trust us with the independence we have! That’s that brief discharged.

Thinking further about what I could talk about, it rather morphed into a more personal reflection, given the audience, the occasion and the location, on how I went from law teacher to law reformer. As I often say with my ‘mentor’ hat on, careers make perfect sense backwards. Prospectively it was quite another story — very serendipitous; very accidental. Career paths are actually formed through a wonderful conjunction of twists and turns — opportunities — filled also with lots of life’s experiences. It is a story of doors: ones that close; and ones that open.

By telling you a little of my story I might also be able to weave in a few pragmatic observations that you may find useful – a kind of Shannon Lush approach to career advice (for those of you who are ‘Spotless’ fans!) — or, as I have written about before, some ‘Mrs Beeton’ advice.[1]

First, an observation about the nature of the legal academic landscape today, tying together some thoughts from the final plenary session this afternoon.

Academic careers in law have undergone major transformations since World War Two. In his Hamlyn Lectures, under the title ‘Blackstone’s Tower: The English Law School’,[2] William Twining described the transition in the United Kingdom from the professional to the academic law school — ‘the trend of assimilation of law schools into the academy as liberal arts departments rather than professional schools’;[3] and with it the transformation of the staff from the part-time lecturer-practitioner to the full-time career academic.[4] This trend is certainly familiar in Australia.[5]

I have been an academic lawyer since 1982. In legal educational terms I am a ‘1970s model’. I had an essentially ‘traditional’,[6] some would say ‘conservative’, legal education, principally at the University of Sydney.[7] Those who taught me were a mixture of ‘1950s’ and ‘1960s’ models. Hardly any of them had a PhD. The height of postgraduate attainment for many was the BCL at Oxford. Coursework LLMs only really got started in the 1960s and they were a formalisation of continuing education for practising lawyers.[8] Quite a few of my teachers were practitioners, coming in to ‘the Law School’ in the late afternoon or early morning (the late afternoon ones often with wig marks on their foreheads from their day in court).[9] The defining contribution in legal scholarship was the definitive text – for example, Fleming on Torts in Australia; Scott on Trusts in the United States; Chitty on Contracts or Megarry on Real Property in the United Kingdom, to name but a few; or the casebook, borne out of the Harvard school of legal education,[10] increasingly with commentary, and in its later incarnations as ‘commentary and materials’, and publication in the Australian Law Journal. A passing acquaintance with legal theory, ‘Jurisprudence’, was tacked on at the end.[11] The revolution in legal education in Australia was just beginning to happen as I graduated.[12]

For 1970s models, like me, our legal education was rigorous and demanding, but essentially professional, and un-‘critical’.[13] Now the defining characteristics of legal academics and legal scholarship are very different; indeed so is legal education in general.

I began an academic career accidentally. It was not my ‘game plan’ at all—the Bar was. I did Arts/Law, majoring in and completing an Honours year in History. Along the way I played lots of music—as an oboist and cor anglais player with the ABC National Training Orchestra, Australian Youth Orchestra and then as part of the Opera and Ballet Orchestra at the Opera House. I finished my law as part of a minority at law school—I was married.

Then when I was at the College of Law, doing my Practical Legal Training course (free, then, I should add), I found out that I was pregnant. I was six months pregnant when I was admitted. When my daughter was born in March 1981 I was utterly clueless. Although I had worked two years part-time with a firm of solicitors, as successor to Susan Crennan in a research/devilling role, obtained my practising certificate, and could have continued there, the demands of motherhood came as a real shock. They were incompatible for me at that time. So I held a practising certificate for only one year.

When my daughter was nearly a year old I applied for a position in teaching at Macquarie University. I got it. Curiously, what secured me the teaching position, at the age of 27, was none of the things that a career path would have mapped out. Not a higher degree—I hadn’t even thought about that one yet, the PhD would come later, although I did have an Honours degree in History which evidenced research ability; not publications—I didn’t have any of those—all essential these days even to start in the academic world. But I did have teaching experience—in music. I had taught a residential summer school in early music, with a group aged from 17 to 70. It was a great background for teaching distance students, who came in for weekends at a time on campus. It was quite an enlightened approach to appointments, really, by the late Jack Goldring and John Peden.

Then the teaching was like a duck to water. I loved it!

I have now done a circuit of three major Sydney law schools: Macquarie, UNSW, Sydney, then back to Macquarie. The opportunity to join the ALRC came in 2006, after I had been Dean of Law at Macquarie for seven years. The position of Commissioner was advertised. I was appointed for three years. The Hon Philip Ruddock MP was the Attorney-General. At the end of 2009 the position of President became vacant and the then Attorney, the Hon Robert McClelland MP appointed me for five years. I am half way through that Commission now. (At the same time as my appointment the budget was slashed by 25% and rather than there being the President plus two Commissioners, I was left on my own for 2010! Last year the Department funded a Commissioner to lead one of the inquiries, and this year the Attorney-General appointed Professor Jill McKeough as Commissioner to lead the Copyright inquiry — something I am thrilled about).

My experiences have given me a particular perspective: on being an academic, on the challenge of balancing life and work — and work and life. So I thought I would give you some reflections through this lens.

For me the key is passion: finding the thing you are passionate about and keeping your focus on that. Being in an academic position is really exciting; but sometimes you may feel the weight of expectation that is upon you; your sense of sinking, not swimming; your sense that everyone around you is doing much better than you are, swimming faster, getting ahead quicker; all those sensations I remember only too well — but it is passion that will get you through — coupled with a good dollop of confidence.

One thing I found that helped me enormously was to drop the deadlines I had imposed for myself. I just had to do this once I had children, as I was just setting myself up to fail. Develop a list — prioritise — and do each thing well, and in order. Deadlines that you impose on yourself do not help. If you are passionate, things will get done — in time.

The other thing I do is to keep lists. Keeping lists of the things you do is reassuring. When you list all the things you do you surprise yourself, and you also keep a record of things that will be useful in addressing things like promotion criteria.

I also wanted to pick up some of the threads from this afternoon’s panel session on research and the frustration that was expressed in the room about the way that law research is, or is not, ‘counted’; the ranking of journals; and so on. My advice is to remember that promotion is based not just on research but on a range of things, including your teaching and your community and professional engagement. In a professional discipline these are matters that you should take seriously. Writing refereed journal articles is essential in building your research profile, but they are also an excellent means of getting free feedback from experts in your areas of interest — and this is priceless. Textbooks do have value, maybe not in the ‘research’ that is counted for ERA purposes, but they do advance your claim to excellence in teaching. And the same for writing in professional journals or mass media: they have value in advancing your claim in relation to community and professional engagement. Hence the importance of lists, to ensure that you keep track of the things you do so you can place them in the right ‘box’, come promotion time. To apply for promotion you need, quite simply, to work the criteria, either for a more senior appointment or promotion.

I would also recommend undertaking a PhD – especially for women, as it transcends gender!

If you an early career academic you may feel rather overwhelmed with the weight of expectation around you.[14] In my experience a great deal of managing the expectations of yourself and of others is simply prioritising, and understanding what the bounds of ‘normal’ are in undertaking research. If you commit to quality work then it has its own pace in some respects. The concentrated research times have to be fitted in around the teaching times. It will always be in patches. This is normal. It is very difficult during teaching terms to fit in much more than simply keeping up with the demands of teaching — especially if you are committed and conscientious and you haven’t been teaching long. The qualities of commitment and conscientiousness are worthy ones. They will generate quality in your publications as well. So, prioritise. Draw up a plan of what you want to work on first, second, and so on. You may be able to have several projects on the boil at once (particularly once you learn the art of using research assistants); but, if not, then focus on quality and your list. Keep adding to it and working on it. One at a time. Often when you are ambitious you feel everyone is doing so much more than you are and you are being left behind. The guilt is always there. At times it verges into panic. This is normal.

My advice after long experience is that these feelings don’t go away. They only get managed. Doing lists and prioritising have worked for me. If you have children, and are undertaking a PhD, if you don’t have the luxury of full-time doctoral study, things just take longer: there are many combinations of this equation. Understanding this helps you keep perspective on your own career path. It will just take longer. A central message is that you do not need to do everything at once — just do it well and focus on the horizon. Plan and prioritise. If your head will be filled up with wonderful ideas and projects you want to get on with, this is not a problem. If your head is not—this is.

For those of us in academic management roles, or just somewhere higher up the academic ladder than entry level or ‘early career’ academics, we also have responsibilities for our collective academic future by way of nurturing our more junior colleagues. We each have our part on this academic stage, and each of us in time will, no doubt, play many parts (with deference to Shakespeare).

My own journey has shown me that life just turns up different opportunities and you need to be open to them—to change direction, even, if required. The logic will come, but by looking backwards. The problem is, if you lock your thinking too much into a fixed idea of where you want to end up, then you miss seeing the opportunities for diversions that will lead you to that point which, in retrospect, appears so logical and natural a pathway.

Teaching music led me into law teaching and to being the Dean of Law at Macquarie University and then through that to leading a government agency that recommends changes to the laws of a nation. And in a funny way, I am in the shoes of my grandfather, who headed a government agency in the 1920s, as the first Director General of Public Health.

You need to keep your eyes open and also to be patient. There will be many doors that will close while you explore possibilities. I have a list of doors that didn’t open for me — and not one of them was I unhappy about, afterwards. But the thing with such doors is that once they close, you then find another one.

Thank you, Dean Triggs and Professor Mason for allowing me to offer a few words of advice and reflection. Being a law teacher is a core part of my being and it is real pleasure to have shared this evening with you as part of the ALTA conference 2012.

* President, Australian Law Reform Commission and Professor of Law, Macquarie University (from which position I am on leave for the duration of my appointment at the ALRC). The views in this presentation are mine alone, and do not reflect views of the ALRC.

[1] I have incorporated some advice on this subject in the rather irreverent, but serious, piece, ‘The Academy as Kitchen – Mrs Beeton comes to Law School’ – (2005) 39(3) The Law Teacher 243–258; as well as in the presentation I gave at the 2006 ALTA conference, ‘What about me? Academic futures — from the ground up’.

[2] Blackstone’s Tower: The English Law School, London: Sweet and Maxwell, 1994.

[3] Ibid, 37; and see R Collier, ‘“We’re All Socio-Legal Now?” Legal Education, Scholarship and the “Global Knowledge Economy” — Reflections on the UK Experience’ (2004) 26 Syd L Rev 503 and the wealth of other sources cited there.

[4] Described by John Henry Schlegel as ‘the professionalization’ of the staff in ‘Between the Harvard Founders and the American Legal Realists: The Professionalization of the American Law Professor’ (1985) 35 Journal of Legal Education 311. N J James, ‘A Brief History of Critique in Australian Legal Education’ (2000) 24 Melb Uni L Rev 965, in relation to the Australian experience.

[5] A good overview of the Australian pattern of development is found in M Chesterman and D Weisbrot, ‘Legal Scholarship in Australia’, (1987) 50 Mod L Rev 709; M Keyes and R Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ (2000) 26 Syd L Rev 537. There were tensions that came along with this shift, exemplified in the conflict between those who wanted the LLB curriculum to operate ‘entirely within the tradition of liberal university scholarship’ and those who accepted the role as pre-professional training, even increasingly ‘contextualised’: Chesterman and Weisbrot, 720. Macquarie Law School’s own history is a good example of that tension writ large in the 1980s: see, for example, James, above n 4, 973ff.

[6] Keyes and Johnstone, above n 5, 538–543 describe ‘the traditional model’ of legal education in Australia.

[7] I studied law at the University of Sydney, the oldest university in Australia. The Law Faculty celebrated its centenary in 1990. Its history is outlined A Century Down Town, J and J Mackinolty (eds), 1991. It was the only law school in Sydney until the 1970s.

[8] Chesterman and Weisbrot, above n 5, 719 note that ‘it is generally taken for granted that a coursework masters degree offered by a single law school will not be viable if it is too “academic” to attract practitioners’.

[9] 8am and 5pm Equity lectures bore witness to many somnolent students I am afraid to admit. The law school was then located conveniently in the heart of the downtown legal precinct.

[10] Schlegel, above n 4.

[11] For me the key point of recollection was the ‘escritoire’ intertwined lovingly into examples on ideas of possession by the enigmatic Professor Alice Ehr-Soon Tay, Professor of Jurisprudence.

[12] The law schools at the University of New South Wales and Macquarie were established in the 1970s in juxtaposition to the University of Sydney ‘model’. James, above n 4, 969 n 22 lists the chronology of law school establishment in Australia.

[13] See James, above n 4 on the development of the ‘critical’ element in legal education in Australia.

[14] As to expectations outside of the research arena some careful balancing, judgment and at times declining activities becomes the key: see ‘Mrs Beeton Comes to Law School’, above n 1, part 3, ‘Seafood, Meat and Poultry – Principles of the Kitchen’; and Robert H Abrams’, ‘Sing Muse: Legal Scholarship for New Law Teachers’ (1987) 37 Journal of Legal Education 1, 4-5.