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Pastoral Care Bill being rushed, needs further investigation says Law Society

07 November 2019

A bill addressing gaps in the pastoral care of domestic tertiary students is being rushed through the legislative process without adequate analysis, the New Zealand Law Society says.

The Law Society has presented its submission on the Education (Pastoral Care) Amendment Bill to Parliament’s Education and Workforce Select Committee today. The bill proposes a new mandatory code for domestic tertiary students requiring providers to take all reasonable steps to protect students and it creates a new offence for providers responsible for serious harm to or the death of students.

“Swift action to remedy regulatory gaps that may have been a contributing factor to the recent deaths of students in New Zealand is understandable. However, the Law Society is concerned with the haste in which the Bill has been drafted,” Law Reform Committee Convenor Tim Stephens says.

The Law Society says the new criminal offence, as currently drafted, is very unclear. Although the Departmental Disclosure Statement for the bill says the offence is one of strict liability, the wording of the provision does not suggest that.

“If strict liability is intended, then the section should specify that the defendant will only avoid liability by proving a lack of fault.

“In our view, the committee needs to reflect on whether strict liability is appropriate in these circumstances. The Supreme Court has recently observed that the reverse onus in strict liability offences may need to be revisited in light of the New Zealand Bill of Rights Act,” Tim Stephens says.

The Law Society says it was not clear what constitutes ‘serious harm’ where a breach of the code has occurred, as the wording of the definition of serious harm also appears to cover cases where the breach results in a student being endangered but not physically or psychologically harmed.

In relation to the new civil penalty, the Law Society says the current provision does not expressly state the burden of proof required to establish the alleged contravention.

“The Law Society recommends the committee carefully reconsiders the new offence provisions in the bill, and considers alternative ways of addressing the regulatory gaps,” Mr Stephens says.

Last updated on the 7th November 2019