LEGAL EDUCATION TEACHERS ASSOCIATION OF SOUTH AUSTRALIA
ANNUAL CONFERENCE
21 August, 2009
Legal Education: Making it Real
Martin Hinton QC
Solicitor-General
Adjunct Associate Professor in Law, University of Adelaide
I commence this paper with a confession; I am not trained in theories of learning. Nor would I
consider myself a professional educator. But for a long time I have been involved in teaching law
students or recent law graduates, whether it be at the University of Adelaide, the Law Society or
in day to day practice.
The focus of my approach to my teaching responsibilities has largely been on the practical. And I
have noticed that in recent years Law Schools have made a concerted effort to introduce into
their courses legal skills components designed as an introduction to the life of a legal practitioner.
Initially I was all in favour of this and so I was only too happy to encourage and participate in
moots, witness examinations and interviews.
But I think it a truism that the practical is only as good as the grounding one has in the theoretical.
And I have come to the view that the most important legal skill is that of critical analysis for it fuels
the reason and it is the ability to reason that prompts one to think, to develop ideas, to adapt, to
persuade and advance a cause.
So far, nothing new you may think. Bear with me.
Too often in recent times I have sat in courtrooms listening to practitioners make submissions and
thought, if only they would stop and think through the ramifications of what they are saying.
If only they would think where their submission is leading.
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-2If only they had considered the context in which this particular law applied to the community, the
rationale for it and the contribution it is intended to make to our wellbeing. If only they asked, what
is the law trying to achieve and why ?
And so I have found myself in my more recent dealings with students attempting to pare back
laws, legal principles and judgments to reveal the essence of what it is that the law is attempting
to achieve and why.
Educators may call it the Socratic method of teaching.
To me it is a concerted effort to prompt thinking by directly confronting and engaging the
students. For me the skills of the cross-examiner come to the fore: if a witness gives evidence of
something that they have not experienced themselves it is hearsay - why do you think criminal
courts jealously guard the rule against hearsay ? Why did the Legislature decide that business
documents can be admitted in exception to that rule ? What is it about business or business
documents that they do not attract the same suspicion ? In Pollitt’s case the High Court created
the telephone exception to the hearsay rule; it is not hearsay to give evidence …- what do you
think it is about this much of a telephone conversation that warrants exclusion from the hearsay
rule ?
I suppose that may own approach encourages critical analysis. Perhaps its better to refer to it as
a rather basic process of deconstruction. One that seeks to get to the heart of the matter in order
to understand what the law is trying to achieve and why.
I took the liberty of examining the SACE subject outline for Legal Studies Stage 1 and Stage 2.
I was pleased to see references to the “dynamic nature of the Australian legal system” and the
intention that the subject “demonstrate how the system responds and contributes to social
change”.
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-3I noted that your courses seek to contribute to the development of 5 core capacities that form part
of the SACE educational framework. Those competencies are listed as:

communication

citizenship

personal development

work, and

learning
The competency that most caught my eye was ‘citizenship’. Under this heading it was written:
In Legal Studies students develop their capacity for citizenship by exploring the ways in
which the Australian legal system defines and clarifies both individual and collective rights
and responsibilities. Students learn about how the legal system affects the relationships,
actions, and interactions of people in society. Students explore the principles, history, and
global influences that underpin the legal system.
Students develop an understanding that the Australian legal system is constantly evolving
and has strengths and weaknesses. Students critically analyse the legal system and
explore different legal perspectives and priorities held by diverse cultural and interest
groups. This includes the extent to which the legal system influences, and is influenced by,
the Indigenous peoples of Australia.
Now this resonates with me personally.
So I gave it some thought, this broad notion of citizenship and the law.
Clearly what you educators have in mind is development of the young so that they may
participate in the community.
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-4And I thought some more about this. Citizenship, to participate, to be informed, to form an
opinion, to express and to contribute - was the lines along which my thinking developed.
Contribute to the debate was where my thinking ended up.
And I was satisfied with this because to my mind it translated happily to the development of the
law which itself is a reflection of our development as a society.
I was also happy because in an age where we are driven by the media and populist politics, I
think it crucial that we all are prompted to think about what is going on amongst our legislators, to
pause and think of what issue they are trying to address, to think of how it is currently addressed
and evaluate the alternative.
But to say that I was
personally pleased by what I read in your course outline is an
understatement.
To my mind this notion of citizenship as you call it is the grail for legal educators.
You see for me the law is much more than a profession or a vocation - it is more a living thing that
permeates every aspect of our daily lives and which we all commit to.
So far you may still be with me. But no doubt you are beginning to wonder where this is heading.
I am not here to tell you how to teach or to advocate one teaching methodology over another. So
what am I attempting to get at ?
Make it real.
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-5If our students, because to my mind this doesn’t apply just to secondary students, are to develop
their capability for citizenship in the way your subject outline suggests it is incumbent on us as
educators to open their eyes to the reach of the law.
The law is not something that exists in the ether. It pervades every aspect of our daily lives.
It impacts upon what you eat, what you drink, what you drive, how you drive, when you work, how
long you work for, what you are to be paid, what is to be deducted, the duties you owe your
neighbour, your principal, yours students, your children and your spouse. I could go on.
The law is every bit as real as we are. It governs our relationships with each other, with our
environment, with your God.
The law is every bit as real as we are.
Make it real so that they can see it, experience it and understand it.
But what do I mean by this idea of making it real.
I come back to the idea of deconstruction and to what I took your subject outline’s notion of
citizenship to include - to participate, to be informed, to form an opinion, to express and to
contribute.
This notion of citizenship, to my way of thinking, will only be achieved if we challenge students to
think from a young age.
Why do we have this law ?
Why did the judge decide as he did ?
What were the social influences on the decision ?
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-6Have they changed ?
Is the principle still sound or must we start from scratch ?
Let me demonstrate.

evidence - hearsay
I mentioned a moment ago the hearsay rule of evidence.
This rule may at times be difficult and seem unnecessarily restrictive. But it is there for a reason,
and that is to avoid what the courts see as a real threat to the court’s fact-finding process.
Hearsay evidence is a statement made out of court, produced as evidence of the truth of the facts
asserted in it.
Why is such evidence considered so dangerous? It all rests on the idea that testimony should be
given orally to the court, on the basis of memory, elicited via examination in chief and then
subject to cross-examination.
This method of testimony is not the product of some historical accident. Rather, these processes
are necessary for the trier of fact to assess the truth of the statements made, to assess the
reliability and believability of the witness.
To allow hearsay evidence is to allow evidence to enter the courtroom in a manner that bypasses
this system.
The risk is that evidence will be presented that cannot be tested by cross-examination, the
reliability of which the trier of fact has no means of assessing. It is about real people - the fact that
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-7persons who are being dishonest, or who may be mistaken about the matters they are attesting
to, behave in a certain way.
And that conduct or behaviour is well understood by ordinary people, the members of the jury.
Life experience teaches us how to assess the reliability of things we are told, whether to believe
or disbelieve a person. It is exactly upon this human element that the court process for evidence
testing rests.
Without understanding this context, it is easy to think that the court system is unnecessarily
technical and restrictive. But by understanding the point of the law, we understand the law better.
And we are able to assess cases in which a principle should or shouldn’t apply.
Indeed, the hearsay rule has exceptions. And courts are willing to make exceptions in cases
where the risk I have just mentioned does not hold. In Pollitt, the High Court was willing to make
an exception to the rule against hearsay for spontaneous identifications made on the phone.
Why? Because when people answer the phone and say “Hi Mum” or “G’day Bill”, that
identification is so spontaneous and automatic, that the risk if fabrication is very slight. Given the
very small risk, the High Court said that such evidence was admissible.
When teaching about trial procedure and the adversary system, invite your students to consider
these matters, why the rules of evidence exist.

contract - ticket cases
Consider a matter that arises in contract law.
The so-called “ticket cases” reflect real facts about the way humans operate in commercial
dealings.
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-8The requirements of a contract are offer, acceptance and consideration. The terms of the contract
depend upon the terms that were offered and accepted. Now for big and important contracts,
such as for the sale of a house, there will be a document that includes the contract terms,
carefully considered by both parties. But contracts are entered into thousands of times daily with
little consideration of the terms.
For example, when one enters a carpark where the terms are displayed on a sign. Or when one
purchases a flight or train ticket that lists the terms of the contract on the back of the ticket.
The reality is that nobody really reads these things. How then can the terms of such contracts be
analysed in terms of offer and acceptance, when one party has not even considered the terms of
the contract on offer?
In the ticket cases, courts have been forced to reconcile the technical requirements of the law of
contract with the reality that people don’t read, and even if they do read, probably don’t
understand, the terms of the contract. In some cases, this means that Courts will not enforce
certain clauses if the party offering those terms has not done what is reasonably necessary to
alert the other party to those terms.
For example, in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, the High
Court refused to give effect to a term written on a ticket, of which the cruise passenger was not
made aware.

contract - unconscionability
Another example related to the formation of contracts, is the equitable doctrine of
unconscionability.
Contract theory is premised on the idea of free consent, and parity between the two parties.
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-9-
In cases where those assumptions are clearly absent, courts have recognised this and have set
aside or refused to enforce transactions which offend equity and good conscience.
In Commercial Bank of Australia v Amadio (1983) 151 CLR 447, two elderly migrants, with limited
written English ability were asked by their son to execute a mortgage over their land in favour of a
bank to secure the overdraft of their son’s company. They believed that mortgage to be limited to
$50,000 for a period of 6 months. Unbeknownst to the parents, the mortgage secured their
property as an unlimited guarantee for their son’s debts. The bank was aware that they had been
misinformed about the contents of the instrument they were executing.
The Court set aside the instrument unconditionally, because the mortgagors were under a special
disability when they executed the deed containing the guarantee.
The disability was evident to the bank such as to make it unfair or unconscionable for it to be
allowed to rely on the guarantee.
What this case recognises is that persons entering contracts are not purely rational agents. They
are real people, some of whom are powerful, some of whom are more vulnerable. The law in
relation to unconscionability recognises this fact and protects against unconscionable exploitation
of weaker parties by stronger ones.

constitution - s92
What about constitutional law? I appreciate that inspiring high school students with excitement
about a document that is over 100 years old may not be the easiest task.
But constitutional law, just as other areas of law, is about people, and how the people who were
designing a nation wanted that nation to operate. The Constitution reflects their goals and
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- 10 concerns. Section 92 of the Constitution is but on example of this. It provides: On the imposition
of uniform duties of customs, trade, commerce, and intercourse among the States, … shall be
absolutely free.
In Cole v Whitfield (1988) 165 CLR 360, the High Court dealt with regulations made under a
Tasmanian Act which prohibited possession of crayfish of less than a minimum size. Similar
restrictions were in place in South Australia, but because of different breeding requirements in
warmer waters, crayfish could be caught younger and smaller. Whitfield imported South
Australian crayfish into Tasmania that were above the South Australian minimum size but below
the Tasmanian minimum size. He was prosecuted for having undersized crayfish, but pleaded
that the Tasmanian regulation was invalid.
In determining the meaning of section 92 the Court looked to the Conventions Debates which led
to the creation of the Constitution. They found within those debates the purpose of section 92: to
create a free trade area throughout the Commonwealth and to deny to Commonwealth and
States power to prevent or obstruct the free movement of people, goods and communications
between State boundaries.
In relation to trade, what section 92 was really about was preventing discriminatory burdens of a
protectionist kind. It was about ensuring that a nation was created a federation, not merely a
collection of colonies, protecting their own industries from competition. The Court held that the
Tasmanian regulations, despite imposing a burden on interstate trade and commerce, were not
discriminatory against interstate trade and commerce and were a reasonably proportionate
response to the need to protect an important natural resource. Accordingly, they were valid.
When teaching your students about federation, I invite you to consider the goals of those who
created the Constitution, and how those are reflected by our constitutional system. The division of
power between Commonwealth, States and territories, the separation of powers between
legislative, executive and judicial, the role of the High Court at the apex of the Australian judicial
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- 11 system, all reflect concerns and goals of those creating Australia. If you can help your students
understand those goals, they will be able to understand why our federal system operates the way
it does. Section 92 is just one example.

criminal law - mental element for murder
Turning the criminal law, consider murder. What is it? It isn’t just when one persons causes the
death of another.
The critical matter that makes a killing a murder is the mental element: the fact that the person
intended to kill. It is that intent to kill another human being that is so offensive to civil society. It is
that fact that justifies criminal punishment, which entails deprivation of liberty and social
condemnation.
By requiring that there be this mental element, the courts are concerned with administering
justice. Whether they do so at all times is certainly a question which invites discussion. The very
nature of justice itself is something that your students will consider when doing legal studies.
Challenge their assumptions, ask them to articulate their views.

tort - limits to negligence
In the area of tort law, the limits of negligence again reflect important facts about reality. The
obligation to prevent harm from occurring to others is not absolute and at large. The question of
who is one’s neighbour in negligence, is those people whom I might reasonably foresee could be
harmed by my act or omission. And my obligation to them is to do what is reasonable. The law is
not about imposing impossible obligations. It is about imposing obligations that are appropriate in
the circumstances.
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- 12 
property - native title
What about property law? Consider native title. In Mabo v Queensland (No 2) (1992) 175 CLR 1,
the High Court overturned the principle of terra nullius as reflecting a fiction.
Thus the Court recognised that native title was not necessarily extinguished simply by the act of
European settlement. Native title can survive until land is dealt with specifically in a manner that is
clearly inconsistent with title. The reason the court so found was that this former view was
premised on the plainly false assumption of terra nullius. The Court recognised that it was
offensive to uphold a principle that was so incongruent with reality. Indigenous people were here
before Europeans, they lived on the land for thousands of years before anybody arrived. That
was the reality. That is what the Court recognised.
So I come back to where I began.
I urge you to make it real. Make it relevant, make them think.
Why ? For the obvious reason. If it becomes real it becomes understandable, it may be
consumed, digested and energised.
It will greatly contribute to that core competency - citizenship.
I appreciate that you have much material to get through in teaching your courses. That you
perhaps have large classes, that time constraints and other pressures make it difficult to devote
the time and energy to deconstructing laws and cases as I have suggested routinely.
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- 13 But I urge you, whenever you have the opportunity, to discuss with your students, the reasons
behind legal principles, to invite their criticism and evaluation. If you can help them understand
the rationale behind legal principles, they will be equipped with the critical faculties that will take
them far in understanding the legal system and will hopefully allow them to pursue their own
learning.
They will participate in the debate.
Now in closing I should loudly and clearly correct one possible perception I may have unwittingly,
conveyed.
Please don’t take me as saying that you do not do these things - deconstruct, challenge,
evaluate, reconstruct.
I’m sure you do. In fact I know you do. And at this juncture may I be so bold as to congratulate
you on the civic participation task that you set for year 12s.
Every year we are bombarded by questionnaires and requests for interviews. Time permitting, I’m
happy to be involved.
It is precisely this sort of exercise that compels your students to engage in the debate on a
particular issue. A great initiative and I congratulate you.
My plea to you is to continue in this vein. So that when I sit in court and listen as I wait my turn to
a matter that may be the most mundane, I hear submissions from a new lawyer whose legal
education started in year 11, who demonstrates an understanding of exactly how this mundane
matter fits into the big picture and what it means for the ordinary person in the street and conveys
those same ideas to the judge, prompting him or her to think and then to apply the law in a
manner that best serves us all.
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- 14 -
Make it real and we will all advance.
I dearly wanted to write and deliver a paper today that was “sage-like”. So you would all sit
mesmerised by the depth of my wisdom and then, converted, spread the word amongst your
students.
Truth be told, that was never going to happen.
But perhaps I have managed to reinvigorate you to some extent, and I’ll settle for that.
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