The Case of Kurt

The Central Australian University established under the Central Australian act of 2001 empowers the minister to make statutes with regards to the proper operation of the university.  These regulations are made to ensure that cheating in the institution of learning are conducted with integrity. The statute expands powers of the university to deal with the cheating, plagiarism, and attempts to circumvent the assessment process.  In his memorandum, the minister makes his remarks that in order to better protect the status and the reputation of the universities, there is need for extremely high standards of professionalism and scholarly behavior. The statute in specific seeks to keep up to date with advances in technology which can make cheating harder to detect.  The statute provides that university must ensure so far as is practicable that all students are fully aware of their obligation to maintain academic integrity during their studies at the university. Further, it provides that no student may bring into any examination room during the course of any examination any computer equipment or similar device which connect to the internet. The definition of the computer equipment , the university intern use policy has fairly broad definition for workplace IT equipment defend as computers, ipads, tablets and telephones and other devices which are capable of connecting to the internet in connection with work.

Brief facts of the case

Kurt is a budding physiotherapist student in the university. He has been failing in his studies due to many late night parties. There was a practical assessment test to be conducted and due to the fear of failure decided to prepare records required techniques in his Digi Watch 2000 a new device with a small on board computer capable of displaying video. However, Kurt does not take the watch to physio-assessment room but leaves it outside and quickly switches it on and refers to it between each of three sessions he is required to perform as part of his assessment.  The dean of faculty once after seeing Kurt suspicious behavior demanded to see Kurt immediately after the assessment and takes his Digi watch.  He does not caution him or allow his to seek advice before the interview when Kurt asks to be allowed to call student advocacy.  Kurt provides a signed statement which he confirms that:

 He did not take the Digi watch into the room where the assessment was conducted

 He thought looking at it was fine as it was not a written examination

No one at the university told him about the rules

He had no intention to breach the rules

Kurt was found guilty and suspended for his studies for one term.

Issues

1. Whether the principal was justified to suspend Kurt from the university

2. Whether the actions by the principal were in accordance to the rules

3. Whether Kurt actions amounts to the violation of the exams rules

4. Whether the procedure to suspend Kurt was fair

Kurt advice on the prospects for appealing and defending this alleged breach

Fair hearing

On the issue on whether the principal was justified to suspend, the university administration failed to give Kurt a chance to defend himself or call students advocacy. The university regulation provides that the university must ensure so far as practicable that students are fully aware of their obligation. It has emerged for a fact that Kurt was not aware of the regulation as provided by the university. Any proceedings in respect of right needs to be handled in a manner that accords all the parties right to be heard.

The university is rightfully justified to exercise its powers as provided under the act to discipline the student. However, in the exercise of its powers, the university needs to ensure that the process observes the rule of natural justice. The decision of the university with regard to Kurt rights to clear his studies therefore is a fundamental question of Kurt right on education and as such needs a procedure that must be fair[1].  Kurt therefore has a case to file a matter in form of a judicial review to challenge the administrative action of the university to suspend him from the university. Kurt has an option to apply for the prerogative remedies to have the decision set aside[2].  Despite the statutory powers conferred on the university to render decision, Kurt is within scope to seek remedies when ultra vires decisions are made due to the procedural irregularities affecting the decision. The non-observance of the requirement that the university must ensure all student are aware of the rules was not complied. Failure of the university to discharge this important responsibility cannot later turn back and seek to benefit from their own misdoings[3].

On whether the issue to suspend Kurt was fair, where the decision maker fails to consider obligatory consideration expressed or implied, the decision taken by the body has to be invalidated. It suffices to say that where the decision maker fails to take relevant consideration into account, there is high probability that the outcome of the decision may be affected by defects.

Procedural error

On the issue of whether the actions by Kurt amounts to violation of the rules, the act section 22 provides that no student may bring into any examination room during the course of the examination any computer equipment or similar device which could connect to the internet. From the facts provided, Kurt did not take the watch into the assessment room but left the watch outside. The dean under suspicious circumstances demands to interview Kurt. In Kurt signed statement he confirms to have left the Digi watch outside.  The university internet use policy makes a broad definition for the computer ides.  The principle act of the university provides that all misconduct hearing needs to follow the rule of natural justice.  The interview conducted was a denial of the natural justice which guarantees Kurt the right to be heard.  The statute imposes penalties which include immediate suspension for any proven breach. It is important to take note of the word proven and in the current case there was not substantive evidence of any prove that has been provided by the university to inform the decision to have Kurt suspended form the university.

Application law and case law

The orders of certiorari are available where there is fatal want of jurisdiction, where the procedure leading to a decision is vitiated by failure to observe constitutional or natural justice and where the decision is flawed by an error of the law on the face of the record.[4]

It is with no doubt that higher education has changed and resolution of student has become a key focus in Australia and elsewhere. Question of the nature of the legal relationship between university and students are now being explored.

A law student suspended form law school from the University of Melbourne in 1983 for unsatisfactory progress challenged the decision in the Supreme Court of Victoria but failed when the court confirmed that visitor had exclusive jurisdiction. In the case of Clark vs university of Lincolnshire and Humberside[5]

Kirby J referred to matters of academic judgment that universities have special responsibilities to uphold high academic standards. There are issues pertaining to the intimate life of every independent academic institution that sensible courts decline to review such as making of examination papers, viability of research project and other internal affairs. However, on decision concerning other person’s rights it gives the institution an authority to exercise decision that needs intervention to ensure there is fairness[6].

Decisions with regards to academic misconduct have consequences beyond the university. In the case of Republic vs the university of Cambridge[7]  the court distinguished a disciplinary and academic issues. It was held that requisite interest is affected by disciplinary decision of administrative nature made by the university acting in accordance to its powers provided under the statute.

Conclusion

The rise in litigation involving university tends to suggest that rules and processes are not done as intended.  This is demonstrated by the series of the judicial review cases in courts on grievances on procedures. It has become an issue how the students bypass the tribunal for complaint of these natures and opts to square their grievances in court of law.  Absence of evidence of being treated differently student will be hard pressed to use anti discrimination laws to challenge university decisions. Judicial review is the last resort for any party aggrieved by the decision of an administrative body. The basic tent behind this rule is to give agencies the opportunity to rectify their mistake.

Question Two

Introduction

In Central Queensland an area faced by drought and economic slump, the politicians are paying great attention to ensure that is more mining development in the region as soon as possible at any price. The Minister of Commonwealth for the department of environment and mining is becoming more concerned in regards to the rising number of anti- mining demonstrations every time new proposal is under review and discussion. The demonstration is not only bad for business but also they have been entangled in fights with the police.  The CQU School of law has been identified as the main source of these demonstrations.

Therefore to manage this minister introduces and passes into law the Peaceful protests act 2018. The objective of the act is to provide the courts and the police officers additional powers to be able to control peaceful protest and to warranty freedom of speech. It is also serves the purpose of keeping the streets from violent demonstrators and guards the police from threats and abuse as they deliver on their mandate. In addition the act will also give the police an indemnity, acting within the jurisdiction of their duties from perky and distressing claims made by protestors who may be injured in the occurrence of an incidence which they might have inflicted on themselves.

Brief facts of the case

In September the laws were put into trial after anti-mining protest occurred in Rockhampton Mall. However before the protest two undercover police officers by the names Samantha and Andrew managed to gain entry into the student association rooms at CQU University where the Anti-Mining Green Alliance Meetings were conducted, in the walls they placed hidden microphones. The police officers that are Samantha and Andrew impersonated as staff of CQU to gain entry to the rooms. It is through the Hidden microphones that they obtain tips about a proposal for a one person protest In the Rockhampton Mall.

One of the local organizers of Anti-Mining Green Alliance CQU is arrested while walking alone wearing a sandwich board written “Scomo Can’t Eat Coal”. Upon the arrest of Daniel in the mall the minister successfully applied to the court for an order that he

Not do any act which is likely to cause annoyance or  inconvenience to any politician or executive of any mining company in central Queensland

To stop associating with any other member of the Anti- Mining Green Alliance CQU for a period of one year

In the course of brawl involving Daniel and the arresting Officer, Jackson who was standing by was struck in the face with the sandwich board which the police officer was wrestling away from Daniel. Consequently Jackson suffered broken glasses and bruising to his cheek. Jackson who is a part time model is concerned that he will be hit by a financial loss. Since he will not be able to work for a month and seeks the replacement of his glasses and his lost income. Chloe and Lorraine friends of Daniel and followers of his exploits in social media, who are not members of the Anti- mining Green Alliance CQU, were all in the mall to witness the arrest. Lorraine becomes upset and discusses the matter in loud voice with Gayle. They are both heard saying in ”Those dirty cops”, ”What Mongrels and even worse,” They are corrupt lackeys of the establishment”. Jade an off duty police officer behind them heard the whole conversation and arrested both Chloe Lorraine for breaching Section 4 of the act abusing police officer

Issues of the case

Whether the arrest and the court orders issued to Daniel is an infringement of rights to his rights

Whether the police is liable for the injury, financial loss incurred to Jackson and if they should compensate him

Whether the arrest Chloe and Lorraine is in breach of section 4 of the act.

Arguments

Infringement of rights

On the issue whether the arrest and the court orders issued is infringed to his rights, notwithstanding the fact, the  police obtained order as per the regulations of section 7 of the act which the act allows the police to apply to a court for orders to be granted use a listening device to overhear, record or monitor any private conversation to gather evidence pertaining to possible breach of this act. It is evident from facts of the case that the police (Andrew and Samantha) impersonated to gain entry into the buildings of and implanted the microphone[8]. Impersonation in itself is a criminal offense which cast into aspersions the police officers and the entire process.  Therefore this makes the procedure or the manner in which the police officers acquired the intelligence or information about the impending protest is a direct violation of the fundamental freedom from interference with privacy, family, home and correspondence[9].

In addition the orders and provision of section 7 of the act is in complete violation of freedom of rights since planning to protest or engaging in peaceful demonstration is not a crime but a right granted under freedom of expression. To the second point is that however it was in the plans, there was no announcement made to the public in relation to the order that the mall is a no protest area prior to the occurrence of the protest[10]. Therefore arresting Daniel was unlawful and complete violation of the section 3 of the act which states that act on application of the minister to the court allowed for an area to be listed as a no protest area.  Since the public was not made aware that there was an order barring any person protesting in the mall.

Moreover the court order restricting Daniel from associating with any other member of the Anti- Mining Green Alliance CQU for a period of one year is a direct violation of freedom of association. This because it is the right of every individual to join and leave groups voluntarily, it is right to come together with other individuals to jointly express, promote and pursue common interests[11]. Freedom of association is both a personal and collective right which is assured by all democratic and legal systems. Hence through issuing such an order is a violation of the fundamental right of human being to associate.

Reimbursement of financial loss

On the issue whether Jackson should make claims as result of the financial loss incurred to him due to the injury. Jackson should seek for reimbursement of the financial loss inflicted by the injury since Jackson and the entire public is not aware that the mall is a no protest area. There was failure by the minister to announce that there was an order that that the mall is no protest area. Therefore the provisions of the section 6 of the act which states that no claim may be made against police officer by any individual for any injury incurred during arrest in a no protest area, including any claim for consequential loss arising from such an injury will not hold making the police liable to the injury inflicted and the financial loss associated with it.

Breach of Section 4 of the act

On the case of arresting Chloe and Lorraine there is complete breach of the provisions of section 4 of the act which states that that no individual in a protest or near a protest area shall use threatening, abusive or insulting word against any police officer in the process of delivering their mandate. Since the minister had failed to announce the mall as a no protest area hence no one in the public was aware of it. Secondly Chloe and Lorraine are not members of Anti- mining Green Alliance CQU, this meant that they were not protesting nor directing there words to the police officer but rather expressing dissatisfaction on how the police officer handled Daniel.

Application of the law and case law

Application of the case law  in the decision of the high court Coco vs The queen[12]

while considering legislation providing for authorization of entry onto premises to install listening devices where the entry would otherwise be unlawful, Mason CJ stated that statutory authority to engage in  what would be tortuous must be clearly expressed in unmistakable and unambiguous manner. It is well stated in Annett v Mcann[13]

that it can now be taken as settled that when a statute confers powers upon public official to destroy , defeat or prejudice a person’s rights, interests or expectations the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

Bibliography

Central Australian Act

of 2001

Administrative decisions (judicial review) act 1977 (cth) s 8.

”constitutional or natural justice”, ”basic fairness of procedure”  that is guaranteed to the citizen by article 40.3 of the constitution

Committee of the Justice – all souls review of administrative law in the United Kingdom, administrative justice – some necessary reforms, report 1988, para 6.3

Griffith university Vs Tang

(2005) HCA 7; (2005) 221 CLR 99, 157

Pineiro v Australia catholic university ltd (206) AATA

Craig vs South Australia

(1995) 184 CLR 163.

Quick J and Garran RR, The Annotated Constitution of the Australian Commonwealth (Sydney,

Angus & Robinson, 1901) at 622

Irving H, To Constitute a Nation: A Cultural history of Australia’s Constitution (Cambridge

University Press, 1997) at 100.

J Goldsworthy, ”The Constitutional Protection of Rights in Australia“in G J D Craven (ed),

Australian Federation: Towards the Second Century (1992) 151 at 154; JA La Nauze, above n 40 at 227-232; R C L Moffat, above n 42 at 86.

A copy of Clark’s draft is available in Williams JM, The Australian Constitution: A Documentary

History (Melbourne University Press, 2005) at 63-112.

yrnes A, Charlesworth H and McKinnon G, Bills of Rights in Australia: History, Politics and Law(UNSW Press, 2009) at 25; see also Williams G, Human Rights under the Australian Constitution(Oxford University Press, 1999) at 37-42.

See M R Wilcox, An Australian Charter of Rights? (1993); R Brazier, Constitutional Reform: Reshaping the British Political System (1991) ch 7; L Spender (ed), Human Rights

[1] Administrative decisions (judicial review) act 1977 (cth) s 8.

[2] Committee of the Justice – all souls review of administrative law in the united kingdom, administrative justice – some necessary reforms, report 1988, para 6.3

[3]  Craig vs South Australia

(1995) 184 CLR 163.

[4] ”constitutional or natural justice”, ”basic fairness of procedure”  that is guaranteed to the citizen by article 40.3 of the constitution

[5] (2005) HCA 7

[6] Pineiro v Australia catholic university ltd (206) AATA

[7] Griffith university Vs Tang

(2005) HCA 7; (2005) 221 CLR 99, 157

[8]

See M R Wilcox, An Australian Charter of Rights? (1993); R Brazier, Constitutional Reform: Reshaping the British Political System (1991) ch 7; L Spender (ed), Human Rights -

[9]

J Goldsworthy, ”The Constitutional Protection of Rights in Australia“in G J D Craven (ed),

Australian Federation: Towards the Second Century (1992) 151 at 154; JA La Nauze, above n 40

at 227-232; R C L Moffat, above n 42 at 86.

[10]

A copy of Clark’s draft is available in Williams JM, The Australian Constitution: A Documentary

History (Melbourne University Press, 2005) at 63-112.

[11]

yrnes A, Charlesworth H and McKinnon G, Bills of Rights in Australia: History, Politics and Law

(UNSW Press, 2009) at 25; see also Williams G, Human Rights under the Australian Constitution

(Oxford University Press, 1999) at 37-42.

[12] Irving H, To Constitute a Nation: A Cultural history of Australia’s Constitution (Cambridge

University Press, 1997) at 100.

[13] Quick J and Garran RR, The Annotated Constitution of the Australian Commonwealth (Sydney,

Angus & Robinson, 1901) at 622