Transcending Jurisdictions

Teaching Dunsmuir in Australia

Narelle Bedford, Bond University

Australia. Canada. Kangaroo. Moose. The kangaroo and the moose are both uniquely adapted and suited to their environments. Despite these vastly different environments, the universal questions of life (movement, food and care of infants) are the same. It is in the answers to those universal questions that variations occur.

As it is with kangaroos and moose, so it is with administrative law in Canada and Australia.

I teach a full semester course in Canadian Administrative Law to Canadian students. In Australia.[i] The fact this course is offered there may be a surprise to some readers, but its existence is evidence of the impact of internationalization in legal education. The benefits of internationalization were outlined in a 2012 report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice:[ii]

All law students’ thinking and learning is enriched by a curriculum which requires them to consider diverse approaches to common problems; to learn from differences but be alert for universals; to strive for best practice; to avoid parochialism, ignorance, and narrow‑mindedness; to cultivate the spirit and habit of open-mindedness and tolerance; and ultimately to make a contribution to advancing the common good.

Although administrative law may not be routinely thought of as a course with an international aspect, there are universal issues dealt with by administrative law in all jurisdictions – such as the regulation of executive power – that render it perfect to transcend jurisdictions. The same applies to the Dunsmuir decision.

Dunsmuir – the Australian context

The Canadian National Committee on Accreditation includes the Dunsmuir case as a prominent part of the substantive review component in the administrative law syllabus.[iii] The hurdle to teaching Canadian Administrative Law in Australia is finding ways to make it “authentic” to Canadian students who are already studying in Australia but would be seeking to return, write exams to gain Canadian accreditation and commence the journey to practice as lawyers in Canada.

Furthermore, in the book What the best law teachers do the authors identified a range of common traits amongst best law teachers that all were present regardless of jurisdiction.[iv] Amongst these was the ability to “actively engage” their students.[v] This concept has parallels to the “deep learning” (as opposed to surface learning) articulated by Professor Michael Head, who specialises in teaching Administrative Law in Australia and spent a semester at Osgoode Hall.[vi] With the key aims of authenticity and active engagement, I therefore offer two observations on teaching Dunsmuir in Australia.

Observation One – Identify the universals

By identifying the universals, even if the universals are questions ― such as how do the rule of law and legislative supremacy interrelate ― students can actively engage with topics and see their relevance regardless of the jurisdiction in which they may ultimately practice.[vii] Dunsmuir is relevant to all law students as it provides a structured consideration of key universal questions, for example deference, even though the answers may differ as between jurisdictions. Within deference, Dunsmuir grapples with questions of why, how, and when should courts defer to administrative decision‑makers.[viii] Through this discussion, broader and more fundamental questions inevitably arise, for instance what may be the parameters of judicial review itself. Moving beyond these questions, the case also raises aspects of procedural fairness including the ongoing discussion surrounding the importance of reasons and what courts should do in the absence of reasons or where only scant reasons are provided.

A further universal is the impact of privative clauses, especially given that both the Canadian and Australian parliaments/legislatures continue to insert them into legislation. Dunsmuir included privative clauses as one of the factors to be considered in a standard of review analysis, yet they are not in themselves determinative. The Australian position is similar but the means to get to that end is vastly different; in Australia the concept of jurisdictional error has a critical role.

Framing these topics as universal questions for all legal systems contributes to actively engaging students. Sometimes the detail of administrative law can be overwhelming for students who are encountering it for the first time. In an effort to help students embrace the subject, the universals provide a touchstone for them to return to as they develop their understanding of the subject. Understanding universal questions arise and that there are different ways of arriving at solutions and the solutions may ultimately be the same or may differ, helps students to appreciate the importance and complexity of administrative law in any society.

Observation Two – Embrace technology

Canadian Administrative Law is taught on campus in person via a two hour weekly participative lecture and a weekly one-hour small group tutorial of typically 10 to 12 students featuring lively discussion of problem‑based questions. To increase authenticity, I coordinated the production of a video featuring one of the Supreme Court Justices who wrote the majority judgment in Dunsmuir, Justice Bastarache. In the video he explains the key issues in Dunsmuir, the resolution reached in the case and its subsequent application. The video is played in four parts over four lectures on substantive review and also available at any time via the subject website.

The benefit of this particular technology assisted learning has been evaluated. I have collated and analyzed feedback from students spanning many semesters, and their reflections are typified by the following comments:

The Justice Bastarache videos provided a unique inside perspective on the reasoning process of the Supreme Court of Canada. The videos were helpful in illustrating that the highest court recognised the practical problem with the existing state of the law and had a clear purpose in mind when approaching Dunsmuir. It sought to clarify and better define the law surrounding judicial review. I appreciated the effort that went into obtaining these comments from the author of the judicial decision himself. The videos provided an invaluable supplementary perspective.

The videos reflected, through Justice Bastarache’s comments, the way that the Supreme Court balances its role with the will of the legislature reflected in statute. I found the videos showed a more humanised and personal look at the work of the court, illustrating that its decisions and that their effects are carefully considered beforehand.

Thus, the video capsule brings the case “alive” for students using technology and crystallises Dunsmuir’s practical relevance.

Conclusion

The universal issues raised in Dunsmuir endure and thus the case has the potential for enduring influence. As noted in respect of the 50th anniversary of the Roncarelli case, “normative understanding of the decision develops through reflection”.[ix] I hope this will also be true of Dunsmuir, so that judges, practitioners, and scholars are still analysing the case on the occasion of its 50th anniversary as we have for its 10th. The concept of a blogging symposium is consistent with my observations on teaching Dunsmuir in Australia ― identify the universals and embrace technology. Change is a constant, but I do note the Roncarelli analysis also included a perspective from an Australian scholar.[x] Long may the kangaroos and moose discuss and analyse the universals together and long may we teach each other’s significant cases to our students.



[i]
Bond Law has been teaching a Canadian program for over 20 years. In 2015, Bond Law welcomed its 1,000th Canadian student.

[ii] Australia, Office of Teaching and Learning, Final Report on Internationalising the Australian Law Curriculum for Enhanced Global Legal Practice (2012).

[iii] The National Committee on Accreditation (NCA) is a standing committee of the Federation of Law Societies of Canada. The mandate of the NCA is to help Canada’s law societies protect the public interest by assessing the legal education and professional experience of individuals who obtained their credentials outside of Canada or in a Canadian civil law program, and who intend to practice in a Canadian common law jurisdiction.

[iv] Michael Hunter Schwartz, Gerald Hess & Sophie Sparrow, What the Best Law Teachers Do, (Harvard University Press, 2013).

[v] There is a substantial body of academic scholarship emphasising the importance of student engagement. For example, in legal education specifically see: Lillian Corbin; Kylie Burns, and April Chrzanowski, “If You Teach It, Will They Come? Law Students, Class Attendance and Student Engagement” (2010) 20(1) Legal Educ. Rev. 13 & Bonita London, Vanessa Anderson and Geraldine Downey, “Studying Institutional Engagement: Utilizing Social Psychology Research Methodologies to Study Law Student Engagement” (2007) 30 Harv. J.L. & Gender 389.

[vi] Michael Head, “Deep Learning and ‘Topical Issues’ in Teaching Administrative Law” (2007) 17 Legal Educ. Rev. 159 at 163. This built on research by the scholars who initially proposed the distinction between deep and surface approaches, see Ference Marton and Roger Säljö, (1976), “On Qualitative Differences in Learning: I—Outcome and Process” (1976) 46(4) Brit. J. Educational Psychology 11.

[vii] Graeme Orr argues both context and coherence are necessary in the teaching of public law in “Teaching Public Law: Content, Context and Coherence” (2015) 25 Legal Educ. Rev. 299.

[viii] As identified in Paul Daly, A Theory of Deference in Administrative Law: Basis, Application and Scope, (Cambridge University Press, 2012).

[ix] Genevieve Cartier, “The Legacy of Roncarelli v Duplessis 1959 -2009” (2010) 55 McGill L.J. 375 at 392.

[x] Mark Aronson, “Some Australian reflection on Roncarelli v Duplessis” (2010) 55 McGill L.J. 375 at 615.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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