The University of Otago "did not want to be the behaviour police" but believed it had the responsibility and the authority to denounce student behaviour serious enough to affect its reputation, the High Court at Dunedin heard yesterday.
The Otago University Students Association (OUSA) is seeking a judicial ruling on the university's code of student conduct, which in 2006 was tightened to make it clear the university would discipline students for behaviour off campus as well as on.
OUSA counsel Bridget Ross, from Wellington law firm Kensington Swan, said the students' association believed the Act only enabled the university power to discipline students for behaviour on campus, or for behaviour at off-campus events such as field trips which directly related to their academic studies.
The review was not about whether the university should or should not address student behaviour, she said.
"It is not about what the university wants to do or would like to do. It is about what it is entitled to do under the law."
University counsel Diccon Sim said the university did not believe the Education Act was designed to limit disciplinary action, and that the OUSA's interpretation was too narrow.
All other New Zealand universities had identical or very similar disciplinary statutes, he said, "although I accept that doesn't make them all right".
Justice Warwick Gendall, of Wellington, said the key issue for him to decide was whether the university had the power under the Education Act, 1989, to discipline students off campus, but there was also the matter of how the university applied the code, he said.
Justice Gendall said he expected to deliver his rulings before Christmas.
Whether the University of Otago had the legal power to discipline students for behaviour off campus "was a question of degrees".
During the four-hour hearing, Justice Gendall suggested various hypothetical situations in which students might or might not be disciplined under the code and discussed with the counsels whether they thought the code could or would be applied.
"What if a student pinches study notes from another student in a flat in Leith St?" he asked.
Both Ms Ross and Mr Sim said they believed the code would be applied.
Mr Sim said it would not matter whether the student caught stealing the notes was in "Dunedin or Tauranga or anywhere else in the world", the code would still apply.
Justice Gendall asked whether the code would apply to "six students who . . . stripped naked and ran on to the field at Carisbrook".
Both Ms Ross and Mr Sim said they did not believe it would apply.
"What about a group who happen to be students who decide to commit arson in Castle St?" he asked.
Ms Ross said OUSA would say that was a situation where discipline should be left to the police.
To Mr Sim, Justice Gendall asked whether the university would apply the code if "one student bopped another".
Mr Sim said it probably would not.
Justice Gendall asked if the university might apply the code if a group of students annoyed or attacked others.
Mr Sim said it might, if the incident was serious enough to affect the university's reputation.
"So, it is a question of degrees, provided the university has the power under the Education Act to take disciplinary action in the first place [and] whether the rules were validly made," Justice Gendall said.
Both Mr Sim and Ms Ross said for the code to be applied, there had to be a nexus - a direct link - between the incident being investigated and the university.
The decision which sparked the OUSA legal challenge was the university's decision under the code to exclude first-year student Nathan Stewart for one semester after he was videoed throwing a bag at a passing car in George St during this year's Orientation Week toga parade.
The car window was broken.
Mr Stewart appealed the decision but it was upheld by the university appeals board.
He has since withdrawn from the judicial review case.
Ms Ross said the OUSA considered George St to be a public place and that police jurisdiction should apply rather than the university code of conduct.
Mr Sim said there was a "blatant connection" between the toga parade and the university, and it was right the code of conduct was used to discipline students who behaved badly.
Written evidence presented to the court showed 17 students were disciplined after the parade.
Three were given one-semester exclusions.
All were ordered to pay a contribution to clean-up costs or compensation for damage and were given formal warnings from police.
Justice Gendall has also been asked to rule on whether the university acted lawfully when it excluded student representatives from the appeals board hearings which considered decisions made under the code of conduct.
Mr Sim said the university believed the students had a conflict of interest because the OUSA has passed a formal resolution opposing the code and offering assistance to students who wanted to challenge it.
