By Oliver Fredrickson

Recent events, including the death of a student in a university hall of residence, have prompted the Government to reassess the quality of pastoral care being provided to tertiary education students. The recently passed Education (Pastoral Care) Amendment Act 2019 attempts to rectify the apparent shortcomings, allowing the Minister of Education to issue a mandatory code of practice to govern the pastoral care of all tertiary students. Such a code was already in place for international students, but not domestic. The Pastoral Care Act addresses this regulatory gap to ensure that all tertiary students live in a safe environment and have their emotional and physical wellbeing adequately cared for.

Code of Practice

In 2004, a number of tertiary education providers adopted a voluntary code of practice. Unfortunately, some did not and over time the code effectively fell into abeyance. Many of the monitoring regimes imposed to ensure the wellbeing and safety of students were eventually scrapped in cost-cutting measures.

Under the Pastoral Care Act, the Minister of Education will impose a mandatory code of practice requiring all tertiary education providers to take all reasonable steps to “maintain the wellbeing” of domestic tertiary students and to “protect” international students.

As the Act only received its Royal assent on 19 December 2019, the minister has imposed an interim code of practice for the 2020 academic year, which took effect on 1 January 2020. The interim code imposes on to all tertiary education providers a general duty of pastoral care over their students. This general duty covers physical safety, access to advice and support services, physical and mental health support, freedom from discrimination and racism, support for transition to tertiary study, and the opportunity to take part in decision-making of support services.

The code also includes specific additional requirements for those that provide student accommodation. These requirements are plentiful and seek to provide students with a positive and supportive environment in student accommodation.

Throughout 2020, the Government will consult relevant stakeholders on the development of a long-term code to take effect from 2021.

Administering and enforcing the code

The Minister of Education has appointed the New Zealand Qualifications Authority (NZQA) to be responsible for administering the code. A key part of this role will include monitoring and investigating any suspected breaches of the code. The interim code allows any person to refer any issue related to an alleged breach to NZQA. If the breach is particularly serious, the Pastoral Care Act allows financial sanctions to be placed onto the tertiary education provider. These sanctions may come in the form of a criminal or civil penalty.

Under s 238S, a provider commits a criminal offence if it:

• without reasonable excuse, breaches the code of practice; and
• the breach results in serious harm to or the death of one or more of its students.

The adjudicating court will determine whether a reasonable excuse existed, whether the breach caused the harm, and whether “serious harm” occurred. A tertiary service provider who commits this criminal offence is liable on conviction to a fine not exceeding $100,000.

Similarly, NZQA may apply to the court to order a tertiary service provider to pay a civil pecuniary penalty. Under s 238T, the court may order a civil pecuniary penalty not exceeding $100,000 if it is satisfied that the provider has, without reasonable excuse, committed a “serious breach” of the code of practice. The select committee report makes it clear that the court will determine what constitute a “serious breach”.

These two forms of financial sanctions are mutually exclusive. Once a court finds that a tertiary education provider is criminally liable under s 238S, it may not then impose a pecuniary penalty under s 238T in respect of the conduct, events, or other matters that were subject of the criminal proceedings. The same is true if a court first orders a civil pecuniary penalty.

Dispute resolution scheme

Separate from the code of practice, the Pastoral Care Act also establishes a student contract dispute resolution scheme (DRS) to resolve contractual and financial disputes between students and tertiary service providers. The scheme doesn’t apply to the interim code, but is anticipated to come into force in with the permanent code of practice in 2021, once the details of its application are arranged and agreed.

The Pastoral Care Act requires all providers to comply with the rules of the DRS, which will be operated by a person or agency appointed by the Minister of Education. A student may lodge a claim with the DRS operator if:

• the provider has refused or not tried to resolve the dispute; or
• if the provider has been given an opportunity to resolve the dispute, but the student is not satisfied with the process or outcome.

The DRS operator may then issue a resolution through an adjudication or following a mediation process. This resolution may require a tertiary education provider to pay a student claimant up to $200,000. Once the resolution is made, the student may then apply to the District Court to have this enforced as if were a judgment of the court. However, the District Court may modify the resolution before giving effect to it if it is satisfied that the terms of the resolution are manifestly unreasonable.

Oliver Fredrickson oliver.fredrickson@justice.govt.nz recently completed an LLB(Hons)/BCom at Victoria University and works as a clerk to the Chief District Court Judge Heemi Taumaunu.