ABSTRACT
There has been considerable debate about whether it is possible to decolonise law curricula in settler-colonial states and, if so, what that might look like. Some of the barriers to incorporating Indigenous perspectives in Australian law schools stem from a belief that there is no room to do so in an already overcrowded curriculum and a fear that it is outside the expertise of teachers. This chapter draws on race-critical education scholarship and literature on Indigenous cultural competence to argue that challenging the apparently race-neutral ‘ordinary person’ test is a useful strategy towards decolonising legal education. The prevalence of the ‘ordinary person’ standard enables race-critical examination in both public and private law and at each stage of study, which thus reinforces students’ ability to apply learning to new situations. We share case studies of theory-informed and adaptable classroom activities in teaching the ‘ordinary person’ test in the partial defence of provocation in criminal law and in assessing racist trade mark registrations. While the stated intent of the ‘ordinary person’ doctrine is to promote consistency and equality in legal decision-making, these case studies show how it can also produce and mask structural racism. By explaining our ‘bottom-up’ approach to micro-scaffolding critical perspectives across public and private law subjects, we hope that our contribution offers achievable interventions that can be readily adapted to conventional law courses.
