OPINION: If the Otago University proctor won't respect students' private property rights, students may have to take matters into their own hands, writes Otago law professor Andrew Geddis.
Calling out members of your own institution for what you think is bad, indeed unlawful, behaviour is something of a fraught task. These are colleagues, after all, and even bosses who pay my wages.
However, given the University of Otago's statutory “role as critic and conscience of society”, we ought to be able to turn the spotlight on our own actions and question if they are right. And if the answer to that question is “no”, we should be prepared to say so without fear or favour. Hence, my thoughts on “BongShell”.
- Calls for University of Otago proctor Dave Scott to resign over confiscated bongs
- Second Dunedin flat claims bongs taken by Otago University Proctor Dave Scott
- Iconic bongs destroyed by University of Otago proctor - report
As first reported in Otago's student magazine, Critic Te Arohi, Otago's Proctor visited a student flat while distributing warnings about holding flat initiation ceremonies. After walking around to the back of the flat, and upon seeing some water bongs on a table (legal to own, but not legal to use for smoking cannabis), he entered it and seized them. The next day he chewed out their owners (who had, in fact, used the bongs for cannabis) and told them to tidy their place up or face the police. The bongs then were destroyed.
The University is now defending this action as “unusual and unlikely to be repeated”, but still a reasonable action for the proctor to take in preference to police involvement. The implication that the action is something of a one-off is belied by (as yet unconfirmed) reports that the proctor has done similar things previously, but let's move past that and deal with what we know for sure.
We start with the fact that the proctor simply is a university employee who, while holding some disciplinary powers over students, enjoys no more legal right to visit their residences, search them and seize property than does any other citizen. And, as other legal academics have told the ODT, those legal rights simply do not extend to going into someone's house to take what you think may be evidence of criminal behaviour.
Or, to put it more bluntly, what the proctor did was clearly unlawful and at least potentially criminal. The fact he did so with proclaimed good intentions does not change this conclusion. If I walk through your back door uninvited and wash your dishes for you in your kitchen, the fact that I'm trying to clean up your ungodly slovenly mess does not legally justify my actions.
What, though, of the proctor's disciplinary powers under the Code of Conduct that applies to all Otago students? After all, this code does state that “no student shall … engage in action[s] that … are otherwise unlawful.” So, doesn't that provision give the proctor some sort of general role in stopping students from smoking up (even if not the legal power to do what he did here)?
I don't think so. For in a test case brought by the Otago University Students' Association back when the Code of Conduct first was introduced, the High Court said this about its reach into students' lives:
“The test is not who or what organised the event, if there be an individual event, or for there be any organisation at all. It is whether the prohibited conduct, whether occurring in an event or not, or possibly only through a group of some individuals who are students, occurs with a sufficient nexus to the legitimate concerns of the University. The behaviour always requires a case by case assessment and analysis as to whether the behaviour has a sufficient connection to the University in its broadest sense, that relates to the application of the Code or the subordinate legislation.”
In my view, there's no reasonable argument to be made that students consuming cannabis in their own living room has “a sufficient nexus to the legitimate concerns of the university” to justify the code's application. Simply put, while smoking cannabis in your own home may (stupidly) still be illegal, doing so is none of the university's business and so the proctor has no disciplinary authority over those who choose to consume.
That then leaves a general “pastoral care” justification for the proctor's actions. After all, isn't it better for students to have a proctor acting as a stand-in parent who applies his “common sense” judgment to protect students from their own “bad decisions”, rather than the police searching their homes and charging them in court? That may not be exactly lawful, but surely it's preferable to the alternative.
Well, maybe. But here's the problem. If the proctor is going to act as a paternalistic morals police over what students do in their own homes, then students really need to ask whether they want that form of governance over their lives. And if they don't, then they ought to take action to prevent it.
Because the proctor (and all other university employees) only may enter onto student property under the general “implied licence” that applies to all visitors. This is the general legal presumption that an occupier will permit people to walk up to their front door in order to communicate with them
However, that implied licence may be expressly revoked at any time. If the occupier tells someone (or, even the world at large) “you may not come onto my property”, then the presumed legal right to visit disappears.
So, if students do not want the proctor (or other university employees) to know what they are doing in their homes, much less intervene by taking things he disapproves of, then they can tell him that. An email to his office informing him that he is not permitted to enter a particular flat's grounds. A notice in the flat's front window telling him that he (or other university employees) cannot be on the property.
For me, it would be a real shame if large numbers of students did feel the need to protect themselves in this manner. It would mark a real breakdown in the relationship between the proctor's office and the wider student body. But if students feel they cannot trust how the proctor will make use of his right to visit them in their homes, then they ought not to grant him that right at all.
Andrew Geddis is a Professor in the Faculty of Law at the University of Otago.
