Indigenising the curriculum is the lumbering phrase for a project under way in most major Australian universities.

The phrase, or similar variations, is found in university policy statements, even employment ads for project officers.

What does indigenising a curriculum mean? Mandating and assessing a student’s delivery of an acknowledgment of country at Macquarie University is clearly bonkers. But what else is happening? Given universities rely on public funds and public legitimacy, we have every right to be informed about how this project is being implemented, and what it means for different academic disciplines.

The question for taxpayers, parents, students and anyone who cares about the quality of education is: When does indigenising a curriculum make sense? And how much is too much? Is there room for debate and dissent?

Is indigenising a curriculum an essentially political project? If so, should it be embedded in academic disciplines?

Our next stop, then, is the University of Melbourne, where there are some clues to these questions. At Melbourne law school, academics charged with indigenising the curriculum hold senior posts and have written extensively about what they have in mind.

Their ambitions are wide-ranging. Australian law would be re-labelled “settler law”, white people – both students and academics – would be known as “settlers” and “Indigenous law” would sit at the core of the legal curriculum.

Aboriginal man Eddie Cubillo is director of the Indigenous Law and Justice Hub at Melbourne law school. He was, for a period, associate dean.

Cubillo has written about his role overseeing a curriculum review at Melbourne law school to “embed Indigenous content” across Melbourne law school’s juris doctor (or JD) program – the standard postgraduate degree for students who have already completed a degree in another discipline. This content, says Cubillo, “which exposes and explores experiences of Aboriginal and Torres Strait Islander people in settler legal system … must by its nature challenge the premise that settler law is fair, just, objective and inclusive”.

Writing in the Law Institute Journal in July 2022, Cubillo said “Indigenous law … should be a core subject taught to the new generation of lawyers”.

Respectfully, why?

Australians, regardless of race, religion, gender and other traits, are governed equally by Australian laws, meaning the common law and legislation enacted by our state, territory and federal parliaments.

The operation and legitimacy of our legal system depend on certainty. We can delve into written judgments and legislation to discern what the law is. There are disagreements, to be sure, but our legal system is built on distinct and discoverable sources of law where judges interpret those laws.

Cubillo and others are not shy about ambitions to challenge “settler law”. But what is to be put in its place? To be blunt, what is “Indigenous law”?

By its nature, Indigenous law must be unwritten. With hundreds of different “mobs” in Australia, each with their own traditions, cultural norms and so on, how do we work out the content of Indigenous law handed down by word of mouth over tens of thousands of years? Who wields the power to decide them and on what evidentiary basis?

No country can be sensibly and safely governed by two systems of law or hundreds of different legal systems. Where there is a conflict, one must prevail. Which is it to be?

There is an overt contempt for Australian laws at the heart of the indigenising project.

Dare we ask a Monty Pythonesque question: what has common law ever done for us? Except provide personal liberty, freedom of expression, freedom of movement, contract laws, natural justice, the rule of law, the presumption of innocence, due process, stability and so on.

Cubillo says the law school curriculum review “considered questions such as how to work in ways that respect Indigenous sovereignty, while acknowledging that settler law has failed to find a way to properly recognise the reality of this sovereignty”.

Claims about Indigenous sovereignty are political, not legal. Cubillo will surely be familiar with Coe v The Commonwealth where chief justice Anthony Mason made it clear that the Mabo decision “is entirely at odds with the notion that sovereignty adverse to the crown resides in the Aboriginal people of Australia”.

When non-Indigenous people – including some judges – talk blithely of Indigenous sovereignty not being ceded, how far are they willing to take this? There are no reports of people transferring their property titles to Indigenous people, meaning those who mimic this slogan about sovereignty have, in fact, decided that Australia’s traditional property laws prevail.

Does the indigenising project make room for these simple questions, let alone more complex and uncomfortable ones?

For example, what are we to make of the recent Santos case in the Federal Court that uncovered academic and cultural experts ­exchanging emails and text ­messages coaching each other on how to use the Ampiji (mother serpent) and Jirakupai (crocodile man) to block gas company ­Santos’s Barossa project in the Timor Sea? Is this Federal Court judgment on the indigenised curriculum at Melbourne law school? It should be.

Cubillo mentions a first-year subject at Melbourne law school called Legal Methods and Reasoning where, following the curriculum review, “three of the 10 teaching days – almost one-third of reading material and classroom time – are now devoted to Indigenous/settler law matters”.

Of the 3000 words allocated to assessments, Cubillo says that following the review, “900 of those words – almost one-third of assessment” go towards “a ‘reflective essay’ on the Indigenous/colonial component of the course and the central theme of settler law’s legitimacy”.

Are “indigenous/settler law matters” about law? Or are they historical, political, social and cultural in nature? That’s not to say that historical and other issues are not worth studying. They might be, in the correct context. But should these issues take up one-third of a law subject curriculum and assessment? What legal issues are being pushed out of the law school curriculum to make way for political and historical ones?

Cubillo hopes this new indigenised curriculum will encourage students to join “justice movements”. He says first-year Melbourne Uni law students were given a series of “reimagined judgments” where academics rewrote court judgments by working within legal doctrine or “inventing new method”. After reading material not offered in previous years, Cubillo said he hoped students would approach their studies “with a healthy scepticism of settler institutions and a hunger for justice”.

If legal academics think “inventing new method” is the proper judicial function, they are mistaken. That is a political pursuit. If judges can make up laws, that will be the end of the rule of law.

Those who hanker for the rule of judges should remember that if judges can make laws favoured by one group, judges also will be free make different laws that offend that same group.

Does indigenising the curriculum respect these basic legal foundational principles?

Confusing the political with the legal is a common thread in the project to “indigenise” law school curriculums. There’s nothing wrong with law students choosing to study electives about political matters if that is their bent. But the ambition to turn law schools into breeding grounds for Indigenous rights activists will necessarily mean upending the curriculum from what the law is to what activists think it should be. That will turn law schools into taxpayer-funded activism hubs.

That’s at odds with what the Council of Australian Law Deans says is the purpose of a law degree: to learn about Australian law and how to apply these laws to client problems, learning court procedure, and understanding the role of law in society and respecting the ethical standards of the profession.

It is trite to point out that a law school must educate students about laws that apply to Indigenous people. Property law will cover Mabo and native title, for example. Sentencing laws often include specific considerations for Indigenous people. Family law must instruct students about the care of Indigenous children.

But why is Melbourne law school knee-deep in a review to indigenise its curriculum? Does the law school dean, Michelle Foster endorse Cubillo’s ambitions for Melbourne law school?

Inquirer asked Foster that question. She didn’t answer. Inquirer asked her other questions: What process is in place to ensure that indigenising the curriculum doesn’t go too far? Does the indigenising review team consult widely within the law faculty? Does it consult at all? Is dissent and debate welcomed?

We received no answer to these questions either.

Instead, Foster issued a motherhood statement about the law school proudly including “Indigenous law and knowledge as part of our JD curriculum, recognising the world’s oldest legal tradition and affirming the co-existence of Indigenous and Australian legal systems”.

Foster’s response adds further opaqueness to a project that warrants far more transparency and accountability.

The state of Australian law schools is best summed up as an “undisciplined discipline”.

Exploring this phenomenon in February in Inquisitive, a quarterly journal of the Heterodox Academy, University of Chicago law professor Tom Ginsburg explains how universities have drifted. They were founded on distinct disciplines or specialist faculties where academics were accorded academic freedom to interrogate knowledge in their fields of professional expertise.

That has changed, says Ginsburg, with academics injecting more and more of their own politics into the classroom and exploiting the claim to academic freedom to do so. These “undisciplined disciplines have weakened the claims to expertise on which academic freedom depends,” Ginsburg wrote. “When one’s scholarship is designed to include advocacy – what Tarunabh Khaitan has called ‘scholactivism’ – risks are obvious. Advocates may reject or downplay inconvenient results, distorting academic debates.

“More deeply, they violate the role (of) morality (in) scholarship, which is the very basis for social tolerance of academic freedom in the first place.

“While of course there is always a deep politics of scholarship, for example in the selection of topics for inquiry or methods for approaching them, these biases ought to be examined and minimised in genuine inquiry, not celebrated. This requires a humility about the limits of one’s own perspective.”

Humility and self-discipline are far too scarce among many legal academics. If academics can’t self-discipline, then law school deans should be what Ginsburg calls “the gatekeepers of good scholarship”.

Alas, instead of answering simple questions, they shower us with fluff and dross. And we are none the wiser about the project to indigenise and politicise law schools.

It resembles how activists tried to win the voice referendum. Instead of answering substantive, legal questions, they smothered us with fuzzy claims that it was the moral thing to do. That didn’t end well for the activists or the voice.