28 August 2007

Undie 500 and Otago University Code of Conduct

> ODT: "Little leeway for those arrested" > The Press: "Students may face rioting charges" After the weekend there's been a bit of suggestion that the students will be disciplined under the University codes of conduct - amongst other things, with some calling for them to be expelled from University. The relevant section of Otago University's code of conduct makes it clear that "off-campus" activity is covered by the Code:
Code of Student Conduct Students are expected to conform to the standards contained in this Code of Student Conduct off-campus as well as on-campus. ... Part 1: Student Conduct The basic rules of conduct require that no student shall ... (f) engage in actions that: (i) amount to assault or which result in, or can be reasonably expected to result in, harm to a person or persons; or (ii) are unreasonably disruptive to other members of the University or the local community; or (iii) result in, or can be reasonably expected to result in, damage to property of any person; or (iv) are otherwise unlawful; ... Explanatory Notes The actions proscribed in clause 1(f) encompass a wide range of anti-social behaviour, including not not limited to: 1. Vandalism and behaviours that result in property damage 2. Setting fires without regard for personal safety or the security of property 3. Throwing or firing projectiles, including glass bottles 4. Generating noise that is unreasonably disruptive to others 5. Assault 6. Non-consensual physical contact of a sexual nature 7. Threats, intimidation or harassment directed towards another person or group 8. Abusive behaviour directed at others based on race, religion, gender, disability, age, economic status, ethnicity, national origin, sexual orientation or gender identity 9. Theft or attempted theft of property and / or posession of stolen property.
In my view, however, attempting to discipline students for off-campus activities that are unrelated to the University is ultra vires and, to this extent, the code is invalid: - Universities have a broad power to regulate discipline "of the institution" (s194(1)(a) of the Education Act 1989). - However, the jurisdiction is subject to express and implicit limits. Obviously, it's not an unlimited power punish students for anything they do in their life. It's got to be connected to the purpose of the discipline power. - Most importantly, there must be some connection between the conduct and institution. The nature and extent of the connection may vary according to the regime and its circumstances. For example, in England, the Court ruled that Mayor Livingstone was not acting in his official capacity when he made intemperate remarks to a journalist after leaving a function at City Hall (Livingstone v The Adjudication Panel for England). Intuitatively, people recognise that a school's ability to discipline pupils only arises while they are: (a) at school; (b) in transit to or from school; (c) in school uniform; or (d) at school mandated events. - With some professional organisations, there's some broader ability to regulate personal activities which "bring the organisation into disrepute". But I think it is stretching it somewhat to try and rely on this approach here. The disrepute approach is essentially employment / professionally related; regulation here arises out of a service / govt-citizen relationship. In this context, I think there's a really strong argument that any discpline is beyond the jurisdiction of the University: - The activity was off-campus. - It's not enough that the parties were at accommodation that students live in while at University (unless it's University accommodation). - The only tenable connection is the fact that the behaviour happened following a student association events. (As an aside, student association events are a pretty remote connection to the University, especially where many of the sub-associations are quite informal and not necessary University sponsored.) - But I understand the behaviour, in fact, happened on Saturday night, the day after the conclusion of the student association event. What you're faced with is a situation where citizens, who happen to be University students, misbehave on their own time, in their own houses, in their own capacity. Even though the behaviour was outrageous, the University has no place punishing these people for these events. > UPDATE (5/9/2007) The ODT has an article on this issue today, noting that the Students Association has engaged Mai Chen to advise them and suggesting that any discipline action could be challenged in the courts: > ODT: "Code may face legal challenge"

22 August 2007

From Professing to Advising to Judging: a conference in honour of Sir Kenneth Keith

Tomorrow I'm speaking at the NZ Centre for Public Law and Faculty of Law at Victoria University of Wellington's conference honouring Sir Kenneth Keith (I am also one of the organisers of the conference). A link to my paper is below: > Dean R Knight, "A Murky Methodology: Standards of Review in Administrative Law" It's a bit dry from pages 8-19 but you can probably skip over that stuff. And perhaps a touch too long as well but, as you'll see, it's a pretty vast and difficult area.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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