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University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
“Almost adults”: is New Zealand’s pastoral care code for domestic tertiary students in student accommodation fit for purpose?
Ruby Blake-Manson
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) University of Otago
October 2023
Acknowledgements
Takina te hoe kia rite: wield the paddles together. This dissertation is only possible thanks to the many people who have supported me.
Firstly, thank you to Bridgette Toy-Cronin for being an incredible supervisor. The insight and skills you have passed onto me through this dissertation are invaluable. Thank you for demonstrating to me how to develop my writing to be clearer and stronger.
Thank you to Arana College. You have been my home for three (effectively four) years of my time at university. My life is unquestionably better for the experiences I have had, people I have met and personal development I have undergone because of you. Thank you especially to Jess. I have turned up to your office in various moods throughout the past three years and you have always had time for me. You are an amazing leader, mentor and the best “subbie of the subbies”.
Thank you to my kind friends, especially Monique, Ella and Dani who have put up with me talking about colleges for years and who have kept on telling me I could do it when I felt like I couldn’t.
Thank you to Callum for always being there for me, no matter where we physically are in the country. I am grateful for you and the unwavering love you have given me this year.
Finally, thank you to my family. Grandad, thank you for always being interested in my opinion. Mum, Dad and my sisters Poppy and Scarlett, thank you for checking in with me, looking out for me and encouraging me onwards. Mum, for showing me what inner strength is, thank you. Dad, it has been exceptionally special to write this as you complete your Masters. I’m excited to give you a copy of my dissertation, and to read your thesis.
Table of Contents
Table of Abbreviations
The Bill The Education (Pastoral Care) Amendment Bill 2019
Colleges Colleges, halls, villages etcetera which are tertiary student accommodation
The Current Code Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021
The DRS Education (Domestic Tertiary Student Contract Dispute Resolution Scheme) Rules 2021
The Guidance The Guidance for Tertiary Providers for the Current Code, provided by, and written by, NZQA
The Guild Code The Universities UK/GuildHE Code of Practice for University Managed Student Accommodation (applicable in the United Kingdom)
The Interim Code The Education (Pastoral Care of Domestic Tertiary Students) Interim Code of Practice 2019
NZQA New Zealand Qualifications Authority, the Current Code Administrator
RAs Residential Assistants, older students who are the first staff contact point for students in tertiary student accommodation
RTA Residential Tenancies Act 1986
The UK Charter The University Mental Health Charter Framework (a voluntary charter in the United Kingdom)
The Voluntary Code The New Zealand Code of Practice for Tertiary Student Accommodation (defunct)
The 2010 Amendment The Residential Tenancies Amendment Act 2010, which inserted s 5B into the Residential Tenancies Act 1986
Introduction
I was a first-year student residing in Arana College at the University of Otago in 2019 when the concept of a pastoral care code for tertiary student accommodation first emerged in New Zealand. It is upsetting that change in this area of law took such a tragic event. Mason Pendrous, a first-year student, had passed away sometime between 26 August and 10 September 2019 in his room at the Sonoda Christchurch Campus, at the University of Canterbury. His body was not found until 23 September 2019, with his cause of death unable to be determined due to this delay.1 He was last noted leaving and re-entering the building on 12 August 2019, with his last computer activity recorded on 26 August,2 yet the alarm was not raised at the Sonoda Christchurch Campus until the day his body was found.3 A few days later, every student at Arana College was made to line up at dinner to be checked off a master list. This highlighted to me the importance of colleges and their role in supporting, caring for and ultimately ensuring the safety of students.
These events resulted in the Education (Pastoral Care of Domestic Tertiary Students) Interim Code of Practice 2019 coming into force on 1 January 2020 (“the Interim Code”).4 The Interim Code remained in force for two years, until the Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021 came into force on 1 January 2022 (“the Current Code”).5 The Current Code is mandatory for tertiary providers, and now remains in place indefinitely.6 The Current Code seeks to ensure providers have practices which “support the wellbeing and safety” of students.7 Different parts cover tertiary students generally and tertiary students in student accommodation, or colleges, with different expectations for domestic tertiary students, international tertiary students and international secondary and primary school students.8 In this dissertation I refer to all tertiary student accommodation as “colleges”, though at different
4 The Education (Pastoral Care of Domestic Tertiary Students) Interim Code of Practice 2019.
5 The Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021.
6 As per the Current Code, above n 5, cl 3. Minor amendments to the Education and Training Act 2020 impacting the Current Code have occurred since then.
campuses they are known by a variety of names including halls of residence and villages. Additionally, while the Current Code refers to students as both “learners” and “residents”, in this dissertation I refer to those who live in tertiary student accommodation as “students”, except in quoting the Current Code directly.
Since 2019, I have been employed as a live-in subwarden (more commonly known as a residential assistant (“RA”)) at Arana College, in 2021 and 2022, and as a live-out RA in 2023. I have seen the impacts the Interim Code had on how pastoral care was conducted when it was in force in 2021 and then again, the impacts of the Current Code when it was introduced in 2022. I have seen the difference between what, as a college, RAs are legally required to do and what is done through a sense of obligation or passion for pastoral care, to improve the experience of those at the college.
My initial reaction to the implementation of a code was that this was a good idea and would protect students, improving their experiences and overall wellbeing in tertiary accommodation. I have had the benefit of seeing first-hand, Arana College’s processes in implementing both the Interim Code and now the Current Code. I have learned how a college works and the practicalities of providing pastoral care (although, of course, no two colleges are the same). I have also had the benefit of being on the receiving end of pastoral care (before either code’s creation), as an 18-year-old fresh out of high school. In undertaking this research, I have stepped back from these two lenses, using the experience and understanding of pastoral care they have provided me to understand specific aspects of the research. Throughout my dissertation, I have been mindful of the biases my past experiences in colleges might create. Having perspective and personal understanding of the two key stakeholders (colleges and students) in a discussion around pastoral care in colleges has aided me in understanding different viewpoints. I have then drawn conclusions based on strength of argument and evidence, maintain awareness of how my experiences in colleges might influence my decisions. I am deeply grateful, both for my job being able to support this research in the manner it does and for the ability to carry out research that I find so meaningful and important.
In this dissertation, I will provide a reflection of the Current Code and give suggestions for how the Current Code might be improved. The focus of this dissertation will be on the specific obligations owed to domestic tertiary students (not international tertiary or secondary students)
residing in student accommodation, as the Interim and Current Codes note the first time such extensive legally binding rights and obligations were introduced for domestic tertiary students. Firstly, I will reflect on the creation of the Current Code and New Zealand’s previous regulations in this area, before looking at the importance of pastoral care for tertiary students in student accommodation. This will be followed by considering how overseas jurisdictions regulate in this area to determine if another approach to regulating pastoral care would be preferrable. Secondly, I will determine a framework for analysis for the Current Code to judge whether the Current Code is fit for purpose, introducing the relevant parts of the Current Code for this dissertation. Thirdly, I will use my framework for analysis to look at if the Current Code achieves the broad objectives of pastoral care for students and if it strikes the right balance between regulation and flexibility for tertiary student accommodation providers to act in a way that best fits them and their students. Finally, I will draw conclusions on how the Current Code has been made and functions, and whether it is fit for purpose for regulating tertiary student accommodation.
I The Creation of the Current Code
It is important to examine how the Current Code came into being, both in a legislative sense and in a relevance sense. Domestic students in tertiary student accommodation in New Zealand, until the Interim Code, had little regulatory protection. Tertiary student accommodation differs from rental accommodation in important ways. Renting is the letting of a physical space. As such, renting does not include being given meals, access to study rooms, recreational and fitness facilities, and other amenities colleges provide. Importantly, in renting, the landlord has no responsibility over the wellbeing or the mental health of their tenants. In contrast, living in tertiary student accommodation is often billed as an “experience”9 and a “lifestyle”.10 In colleges, the student is expected to be independent to a degree (self-managing aspects of their life like their eating, exercise, study and overall wellbeing) like renting, but unlike renting, colleges give students a safety net of support provided by the staff of the college.
Regulation of tertiary student accommodation has always been excluded from residential tenancy law. The Residential Tenancies Act 1986 (“RTA”), from its creation, excluded “any hostel, dormitory, or other similar type of premises” run by a university.11 In 2010, the Residential Tenancies Amendment Act 2010 (“the 2010 Amendment”) was passed, inserting s 5B of the RTA 1986, which provided for a specific exemption for tertiary education providers that are also “accommodation provider[s]”.12 To be exempt under this section, a provider’s accommodation must be exclusively used to accommodate tertiary students13 and have clear “house rules” for students to abide by,14 with students having access to these “house rules”.15 As mentioned in Parliamentary debates for the 2010 Amendment, the exemption of student accommodation was
11 Residential Tenancies Act 1986, s 5(h) (repealed 1 October 2010).
12 Section 5B(1)(b).
13 Section 5B(1)(a).
14 Section 5B(3).
15 Section 5B(4).
intended to provide “a better level of protection for tertiary students”.16 To this end, the 2010 Amendment was supported by the New Zealand Union of Students’ Associations. In the Union’s submission on the 2010 Amendment, they noted it would mean students were “treated fairly” with “safety and security paramount”.17
The exclusion of student accommodation from the RTA 1986, especially prior to the 2010 Amendment, left a legal gap surrounding the regulation of tertiary student accommodation. Those who provided such accommodation were under no legal obligations to provide any standard of pastoral care, college environment or student voice. The two key legal requirements colleges faced prior to the Interim Code were s 5B of the RTA 1986,18 and any stipulations the colleges added to contracts between students and the colleges.19 A general duty of care surrounding the wellbeing of students may have applied, although without any judicial consideration it is uncertain as to how strong such a duty may have been. In an attempt to fill this gap, in 2004 a voluntary code was written by the Tertiary Student Accommodation Working Party; the New Zealand Code of Practice for Tertiary Student Accommodation (“the Voluntary Code”). This sought to “provide a framework” for tertiary education providers and providers of student accommodation to the “benefit and protection” of students.20 The Voluntary Code was split into “standards”, intended to be complied with by all providers to meet a “minimum level of acceptable performance” and “guidelines”, which were recommended but not required.21 The main points of the Voluntary Code included an explanation of student-college contracts and their contents,22 how “house rules” should be set and maintained,23 and standards for facilities and services,24 care and protection,25 and planning and performance.26 It is worth noting the entire Voluntary Code is a 12 page document,
16 (26 May 2009) 654 NZPD 3827.
17 New Zealand Union of Students’ Associations “Submission to the Social Services Select Committee on the Residential Tenancies Amendment Bill 2010” at 2.
18 Discussed at page 18 above.
with a much stronger emphasis on the logistical running of colleges than on students and their wellbeing.27 Even so, the Voluntary Code set relevant standards and guidelines that were aimed to be feasible for colleges to implement.
While the Voluntary Code was intended to be reviewed in 2007,28 a review never occurred.29 When the Treasury and Ministry of Education prepared a Supplementary Analysis Report to aid in the development of a new code in 2019, they noted the Voluntary Code did not “reflect current needs and priorities”.30 They noted it was unclear “how widely [the Voluntary Code] is used in practice”.31 The Rt Hon Chris Hipkins, in his speech for the Education (Pastoral Care) Amendment Act 2019, noted not all tertiary providers even signed up to the Voluntary Code in the first place.32 Additionally, Mr Hipkins noted monitoring of aspects of the Voluntary Code were cut between 2004 to 2019 for cost reasons, with many providers contracting out of provisions of the Voluntary Code through accommodation contracts with students.33 The lack of uptake by colleges and lack of enforcement effectively rendered the Voluntary Code defunct.
A separate code existed for international students. A Labour-led Government was responsible for the 2002 Code of Practice for the Pastoral Care of International Students (“the 2002 Code”). 34 A later National-led Government updated this to produce the Education (Pastoral Care of International Students) Code of Practice 2016 (“the 2016 Code”).35 The 2002 Code focused on recruitment, contracts and grievances for international students, with some references to wellbeing and welfare, although these are not the central focus of the 2002 Code.36 The updated 2016 Code focused more on ensuring prospective students had “accurate and reliable information” about
32 (17 October 2019) 741 NZPD 14462.
33 At 14462.
studying, living in New Zealand and the services available to them.37 While the 2016 Code has more references to safety and wellbeing, it is not the central focus of the 2016 Code.38 A press release, when the 2016 Code came into force, highlights the 2016 Code’s aim of ensuring New Zealand’s international student market (which, pre-COVID, brought in significant income to universities in particular) continued to grow.39 Notably, neither the 2002 Code nor the 2016 Code extended to domestic students.
As Mr Hipkins noted when first proposing a domestic code in Parliament, this lack of defined and enforced legislation led to domestic students in tertiary accommodation having less protections than international students in the same college, or students renting a flat under the RTA 1986.40 Consequently, universities effectively held themselves to their own standards, with some being more stringent than others about directly running and monitoring colleges themselves, while others contracted this out to providers or took a more lax approach. The lack of consistency in colleges throughout New Zealand, and lack of regulations, became apparent after a tragedy in 2019; the passing of Mason Pendrous in a University of Canterbury college, Sonoda Campus.
As a result of Mason’s passing, Hon Kit Toogood KC undertook an investigation at the commission of the University of Canterbury University Council to determine why there was a delay in the discovery of Mason’s body.41 In his findings, he noted the lack of an office at the Sonoda Campus was a contributing factor.42 Staff, in the form of RAs only, were present from 5- 10pm each day only43 and if a resident required support outside of this, they would need to walk
40 (17 October 2019) 741 NZPD 14462.
41 Kit Toogood Confidential Report of Investigation on Behalf of the University of Canterbury into the Circumstances Surrounding the Delay in the Discovery of the Death of Mason Drake Pendrous, a Resident of Sonoda Christchurch Campus: Findings for Publication (10 January 2020) at 1.
42 At [62](a)(ii).
43 At [30].
12 minutes to the closest office.44 This, coupled with the lack of pastoral care given to Mason,45 and Mason’s introverted nature,46 resulted in the delay.
Mason’s passing received a large amount of media attention.47 Mr Hipkins, then the Minister of Education, asked the Tertiary Education Commission to get accommodation providers to “immediately check on the welfare of all the students living in student accommodation”.48 Within weeks, the Government of the day announced their intention to change the law surrounding the duties of tertiary accommodation providers in relation to pastoral care; creating the Interim Code for use in the following 2020 academic year, to be followed by a more permanent version (the Current Code).49 The Education (Pastoral Care) Amendment Bill 2019 (“the Bill”) was introduced to Parliament on 14 October 2019, three weeks after Mason was found.50 In the Bill’s first reading, members of Parliament spoke of ensuring an incident like Mason’s death never happened again. Mr Hipkins spoke of ensuring pastoral care was provided, with any issues identified and dealt with swiftly.51 While members of the National Party (then in opposition) raised some concerns with the technicalities of the Bill, they supported its purpose and its necessity.52 The Bill passed into law on 19 December 2019,53 around two months after its introduction, after receiving cross-party support.54 The majority of the time of the process was spent in select committee (17 October - 26
44 At [35].
45 At [62](a)(i).
46 At [62](a)(iii).
47 Such media attention was seen both within New Zealand (such as Sam Sherwood “Student’s body went unnoticed in university hall for close to eight weeks” Stuff (online ed, Wellington, 25 September 2019) and overseas (such as Teo Amus “A college student died in his dorm room. It took almost two months for anyone to notice.” The Washington Post (online ed, Washington D.C., 25 September 2019)).
51 (17 October 2019) 741 NZPD 14462.
52 At 14462.
53 Initially the Education Act 1989, s 238G. After the repeal of the Education Act on 1 August 2020, it then became the Education and Training Act 2020, ss 534-535B.
November 2019) to allow time for submissions.55 This was very quick; most bills in New Zealand spend around six months in select committee alone.56
The Current Code itself, while developed over a longer period of time, was also made relatively quickly (especially when factoring in the delay, presumably caused by COVID-19).57 Consequently, the creation of the Current Code could be considered a case of reactive, or “knee- jerk” law making, most commonly associated with legislative responses to terrorism attacks.58 Knee-jerk law making is often seen as a “relatively uncostly and visible” response to something that has gone wrong.59 However, due to the creation of such legislation over a short time frame, “knee-jerk” legislation often holds a connotation of being ineffective and “poorly thought through”.60 Ip suggests there are two key criteria as to if legislation is knee-jerk legislation.61 Firstly, the legislation was passed shortly after an event in a shortened time frame and, secondly, it does not fill a meaningful gap in the law, being instead a “reflexive response”.62 Related to this second point, Ip notes to be effective, legislation should be relatively narrow to address a specific shortcoming of the existing law, in contrast to broad sweeping legislation which is difficult to apply in practice.63 Certainly Ip’s first criterion for determining if a law is “knee-jerk” is fulfilled, but it is questionable whether the second criterion is met. Whether the Current Code is too broad and difficult to apply in practice, is a question I consider as I examine the Current Code in the following chapters. Importantly, the Current Code does fill a “meaningful gap” in New Zealand’s law, as can see from the lack of regulations, particularly pastoral care regulations, existing around domestic tertiary student accommodation prior to its introduction.
December 2019), a permanent code was intially planned for the 2021 academic year but ended up coming into force for the 2022 academic year.
59 At 33.
60 At 35.
61 At 35.
62 At 35.
63 At 35.
Student accommodation is a key part of the university experience in New Zealand, primarily for first year university students. It acts as a bridge, introducing students to the “adult world” as students are given a level of independence living away from home (responsible for factors like how much sleep they get, when they do washing, and what they choose to do with their time). Student accommodation through colleges provide a safety net of sorts at the same time, often providing cooked meals for students, running events to engage them and helping them set a work- life balance. Perhaps the most important feature of student accommodation is the pastoral care provided by the staff at the college. RAs normally live onsite, acting as a first point of call for any issues.64 Senior staff then take over any more serious pastoral care issues, which, if warranted, may be escalated further to trained health professionals or other organisations.65 This system seeks to care for students’ mental and physical health as they transition into tertiary education.
The majority of students residing in colleges in New Zealand are 17-19 years old, with the move to a college their first time living away from home.66 Therefore most are legal adults (in that they no longer have a legal guardian) when they move into student accommodation. As has been pointed out in a study of public tertiary employees who have pastoral care as a component of their job, these students cannot be expected to suddenly act like adults.67 Consequently, pastoral care is crucial at this point of student’s lives, as for many this will be their first year as a legal adult. Their parents cannot call up a college and receive their child’s university results from staff, nor do colleges have to disclose to parents if their child gets in trouble (within the terms of the contract).68 Additionally, at this time, a student’s life can be in a “state of constant flux” for many reasons: relationships (friend and romantic) changing, problems with study, money issues, mental health issues including homesickness and their first unrestricted exposure to alcohol.69 As such, pastoral care in student accommodation requires constant reflection and adaptation as the students’ lives
64 As explained in University of Otago “Submission to the Education and Workforce Committee on the Education (Pastoral Care) Amendment Bill 2019” at 3-4, this occurs in colleges across New Zealand.
65 University of Otago Submission, above n 64, at 4.
66 Universities New Zealand “Submission to the Education and Workforce Committee on the Inquiry into Student Accommodation” at 1.
and general circumstances change.70 Such care may be required (and often is) after traditional work hours.71
Students entering university today are vulnerable to mental health struggles, particularly due to the pressure of determining their career path in an increasingly uncertain world.72 Consequently, universities are now being seen as responsible for developing the “whole student”, which is not only equipping a student with the learning they need to succeed, but supporting their personal development and wellbeing.73 This concept of developing the “whole student” involves supporting students through different “crises and challenges”: including developing their identities, developing mature relationships, managing emotions and ultimately finding their purpose in life.74 It is seen as important not only to the student’s academic success, but to them and their future wellbeing and resilience.75 Sopoaga and others, studying students in their first year at university and wellbeing, suggests that reminding a student they matter and giving them a sense of belonging contributes greatly to their overall wellbeing, something a college environment is perfectly suited to provide.76 Peer interaction and exposure to diversity is also key in developing a student, again something a college can provide.77
Ultimately, a college environment, along with the pastoral care that can be provided in that setting, can have a significant and positive impact on a student’s wellbeing and future. Students who spend time in student accommodation have higher academic achievement, are more likely to finish their degree and, as discussed, report better wellbeing outcomes due to the sense of security and support
provided.78 There are benefits to the universities themselves too as studies have shown the selection of colleges universities offer play a large part in students when deciding which academic institution to attend.79 This is particularly true for first year university students who are moving to a different city or area for university.80 The benefit to universities alone provides a large incentive for universities to devote resources to the student accommodation on offer.81
It is important to keep in mind that student accommodation is not exclusively for first year students or school leavers. Universities New Zealand, a statutory body which represents New Zealand’s eight universities, noted in 2020 there were 79 colleges across New Zealand, housing 18,719 students.82 Of those students, 45 per cent were in accommodation exclusively for first years, 46 per cent in mixed accommodation (for first years and beyond) and the remaining nine per cent in accommodation exclusively for post-first years (including post-graduate students).83 Therefore, while the majority of student accommodation in New Zealand houses either first years or undergraduates (primarily those aged 21 or under), there is a notable percentage where students are older. While in many sections of the Current Code, the wording has been made intentionally broad so colleges can fulfil the Current Code in a way that works for them, it does apply to all students of all ages. This means sections on pastoral care are required to be applied whether the student is 18-years-old and just out of school, or whether the student is a mature 30-year-old with much more life experience. Consequently, there is a question of whether the Current Code is too narrow, catering primarily for first year students (the focus of the majority of the Parliamentary debates of the Bill), rather than the needs of all students. This point is examined further in analysis of the Current Code and its regulations.
It is also important to note that even within New Zealand, student accommodation models differ. Some universities, such as the University of Otago own the majority of their colleges (11 of 15) and those that are owned are run directly by the University.84 This represents 73 per cent of students in Otago colleges. The remainder of colleges not owned by the University are formally affiliated with the University and are run by councils or boards.85 Other universities have even higher percentages of colleges owned by the University, such as Lincoln University which owns 100 per cent of its residential colleges.86 On the other end of the spectrum, the University of Canterbury
83 Universities New Zealand Submission, above n 66, at 3.
86 Universities New Zealand Submission, above n 66, at 5.
owns only four of their ten colleges, which in 2020 meant 18 per cent of University of Canterbury college students were residing in a University owned and operated college.87 Now, the University of Canterbury contracts out the running of the colleges they own to external providers (run by the company UniLodge).88 These examples highlight the different college models which exist in New Zealand. The different models of ownership of colleges also mean different investment models for colleges. While university owned and operated colleges typically aim for a breakeven,89 private trust-run colleges often aim to make a surplus to re-invest into the college the following year,90 and commercial provider-run colleges generally aim to make a “commercial rate of return on their investment”.91
In addition to variations in ownership and investments models, colleges vary in their makeup of student body, the services they offer, their procedures for different issues which might arise, the events they run and their internal staff structures. However, the Current Code applies to “tertiary education providers”, and the provider is responsible for ensuring the student accommodation complies with the Current Code.92 In practice, it is recommended to tertiary education providers that if they work with a third party (like commercial providers or private trusts) they should have “robust contracts and processes in place” to ensure the accommodation provider complies with the Current Code, as breaches will fall back on the tertiary education provider.93 While third parties may have the final say on what is in a student contract,94 providers will still have to comply with the Current Code.95 Having oversight from the tertiary accommodation provider in administering the Current Code aligns student accommodation as part of the wider university experience. As discussed earlier, recent academic literature has noted this alignment is important and beneficial to student wellbeing and personal development.96
92 New Zealand Qualifications Authority “Guidance for Tertiary Providers” (November 2021) at 48.
93 New Zealand Qualifications Authority “Guidance for Tertiary Providers”, above n 92, at 48.
94 In 2020, this was the case for 41 per cent of students in student accommodation across NZ as per Universities New Zealand Submission, above n 66, at 4.
95 Outcome 6 of the Current Code, above n 5.
96 See Van der Meer, above n 72, at 299 and see generally Sopoaga and others, above n 76.
New Zealand’s Current Code is unique in that it focuses on the wellbeing of domestic students, rather than just the physical requirements of the buildings of a college. It is useful to look towards our cognate jurisdictions of Canada, Australia and the United Kingdom, for insight into different approaches to regulating domestic students in tertiary student accommodation.
1 The United Kingdom
The United Kingdom has three accommodation codes, each for a different version of college ownership.97 Compliance for colleges to the code that is applicable to their ownership model is mandatory. These codes have a strong focus on the physical environment of colleges98 and do not address wellbeing or pastoral care to anywhere near the same extent as New Zealand’s Current Code.99 As an example, the Universities UK/GuildHE Code of Practice for University Managed Student Accommodation (“the Guild Code”) treats students as “tenants” and the provider as a “landlord”, and protects students’ rights “to a safe, good quality place to live”.100 The extent of the mention in the Guild Code of pastoral care is a statement that the college must “have in place appropriate policies and procedures to support residents that are experiencing health or wellbeing issues”.101 This provides a very basic level of protection for domestic students in tertiary student accommodation. The Guild Code does not specify what “appropriate policies and procedures” might contain beyond “encouraging” students to access support services and having “procedures” to contact the “relevant organisation” if a student is at risk.102 Such requirements suggest it is the responsibility of a college in the United Kingdom to recognise a student needs pastoral care or further support, but it is not the college’s responsibility to provide such care and support themselves. The emphasis on physical accommodation rather than prescriptive pastoral care requirements perhaps responds to a more diverse community (in ages and pastoral care needs) at colleges in the United Kingdom than in New Zealand. New Zealand’s experience of using the
97 Universities UK “Accommodation Code of Practice” <www.universitiesuk.ac.uk>.
98 With sections on “Fire Safety” (s 2A), “Electrical and Gas Supplies” (s 2B) and “Environmental Quality” (s 4), for example.
101 The Universities UK/GuildHE Code of Practice for University Managed Student Accommodation, cl 6.4.
102 Clause 6.4.
Voluntary Code, effectively the same as the Guild Code in terms of the pastoral care requirements of colleges, suggests the Guild Code will be ineffective at protecting students. Furthermore, given the majority of New Zealand’s college communities are known to be undergraduates, New Zealand does not need to provide as much flexibility as is allowed for in the Guild Code. It is not a model we therefore should look towards.
Recent English case law provides some guidance on wellbeing obligations to students, albeit its usefulness is limited by its focus on universities’ duties, with no explicit discussion of duties of accommodation providers. In 2022, Ralton J in Abrahart v University of Bristol found there to be no common law duty of care owed by universities to their students.103 Consequently, 25 bereaved families who had lost children to suicide while their children attended universities in the United Kingdom put forward a petition to the United Kingdom Parliament, requesting the “creat[ion] [of a] statutory legal duty of care for students in Higher Education”.104 The petition received over 128,000 signatures and as a result of passing the 100,000 signature barrier, a debate had to be held in the United Kingdom Parliament.105 In that debate, the Government’s view was that a common law duty of care owed to students by universities already exists in the United Kingdom, with the current Minister of Higher Education noting Abrahart was still under appeal in the High Court and that this appeal may confirm their view.106 The Government did not believe the “most effective way to improve student mental health is to introduce new legislative requirements”.107 Instead, the Minister asked all universities in the United Kingdom to sign and implement a set of voluntary obligations by September 2024, called the “University Mental Health Charter Framework” (“the UK Charter”).108 If this is ineffective, it was noted in the debate the Government may consider legislative requirements.109
duty of care for students in Higher Education, above n 104. Parliamentary Debate (5 June 2023) 733 GBPD HC 216WH-242WH.
108 At 240WH. The University Mental Health Charter Framework was created in 2019.
109 At 241WH.
The United Kingdom Government sees voluntary obligations surrounding pastoral care as the way forward. Of course, as mentioned the United Kingdom is talking about requirements on universities rather than student accommodation providers, which is not the focus of this dissertation. However, New Zealand’s Voluntary Code was, although well intentioned, ineffective. The UK Charter may face the same fate without any binding requirements to hold universities to their word. Like New Zealand did, the United Kingdom may see some changes initially until the compliance costs become too great and the pressure on universities to uphold it weakens. It is possible the appeal court in Abrahart will find there is a common law duty of care, which coupled with the UK Charter, may be sufficient to enact real change. Alternatively, the Government may follow through with its threat to legislate if there is poor compliance with the UK Charter, especially if public pressure remains. It remains to be seen if such legislation in the United Kingdom would take the form of a compulsory code. Ultimately, the United Kingdom approach of a voluntary code has been tried and failed in New Zealand and should not be reverted to. It does not, therefore, provide a model for New Zealand to follow but should be watched for developments, as Abrahart continues on appeal.
2 Australia
Australia has addressed aspects of student accommodation through state legislation, (but not through codes, only primary legislation)110 and more recently, in the 2020 Australian Capital Territory case, SMA v John XXIII College (No 2).111 The case concerned a resident of John XXIII College, attached to the Australian National University. The resident had taken part in a drinking event at the college, had been told to leave the college premises along with other students after becoming too intoxicated, and had then been sexually assaulted by a fellow college resident off- campus.112 Justice Elkaim found that while the college did not breach its duty of care by allowing the drinking event to take place,113 it did breach its duty of care by telling the students they had to
112 As explained at [4]-[8].
113 At [252].
leave the premises in such an intoxicated state,114 and was negligent in its handling of the resident’s complaint after the assault occurred.115 This outcome was upheld on appeal in 2022.116 SMA v John XXIII College clarified the extent of the duty of care that colleges owe their students.117 The duty of care was determined through interpretation of the Civil Law (Wrongs) Act 2002 (ACT)118 and was supported by the college holding itself out as providing pastoral care, not just providing accommodation for first years.119 In the college’s handling of the complaint, the college was under a contractual duty to investigate the complaint and to “act... for the welfare of its residents”, as noted in the college’s own handbook.120
SMA v John XXIII College represents an alternative way to uphold pastoral care standards rather than a code, through the law of negligence and using a duty of care. However, the outcome of SMA v John XXIII College may have differed if the college had not so distinctly held itself out as a pastoral care provider, particularly in terms of the breach of duty of care to tell students to leave the premises where this was a factor in the decision. Perhaps having such regulation through case law does provide a better alternative to cater for individuals in student accommodation across a range of ages. If a college was to cater only for post-graduates, who did not want a large amount of pastoral care, the college could hold themselves out as providing only a low level of such care. Therefore, the college would not be responsible for their student’s wellbeing to such an extent. It should be noted using case law to supplement legislation requires supposed wrongdoings to occur, be taken to court and be argued to shape the law in this area further. Is using case law the best method when the “wrongdoings” can include sexual assault, death and other serious matters? Is it best to wait for students who have suffered such wrongdoing to take a college to court in order for the law to develop further? New Zealand’s Current Code takes a more proactive approach, giving colleges clear obligations. As such, New Zealand’s approach is preferred to protect students from the outset.
114 At [262]. Elkaim J noted the college staff should have provided support and pastoral care instead at this point.
115 At [280] and [283].
116 John XXIII College v SMA [2022] ACTCA 32. The damages awarded to the plaintiff were reduced as a result of the appeal.
117 At [246].
3 Canada
The state of Ontario in Canada takes a different approach again. Ontario’s Human Rights Code 1990 provides for accommodation rights for all individuals, not just those in student accommodation. Much like New Zealand, student accommodation is excluded from Ontario’s Residential Tenancies Act 2006, preventing students from holding the rights and accessing the pathways available to tenants under the Act.121 While in New Zealand student accommodation is only excluded if certain requirements are met, such as having “house rules”, the Ontario version simply excludes all student accommodation.122 In a scenario where a student had a formal complaint for the college they lived in, any disputes, rights and processes would be contained within the contract the student signed with the college.123 However, the Ontario Human Rights Code 1990 would apply to the student and has specific provisions for accommodation, relating to discrimination and for disability accommodations in housing.124 While this is nowhere near as far reaching as a code, it does provide some protections to students in accommodation. If a student has a complaint in this respect, they can file a complaint with the Ontario Human Rights Tribunal.125
In contrast, the New Zealand Bill of Rights Act 1990 does not explicitly extend individual rights to people in accommodation. However, the accommodation rights contained the Ontario Residential Tenancies Act are unlikely to be enough to protect students in many college-student disputes (particularly without any sort of other requirements for colleges in the Ontario Residential Tenancies Act). Additionally, these accommodation rights would likely not include any sort of pastoral care. Therefore, in Ontario, the college decides what standards to hold themselves to via their contracts with students, with a minimum standard provided by the Ontario Human Rights Code. Relying on self-regulation of colleges is risky. Ultimately, self-regulation as an approach is
<www.housingrightscanada.com> .
something New Zealand has tried and found not to be successful, and it is questionable how much self-regulation is actually protecting students in Ontario.
4 Considering the international examples
The United Kingdom, Australia and Canada illustrate three different approaches to regulating tertiary student accommodation. A code focused on the physical aspects of student accommodation might work in the United Kingdom, but with a large undergraduate community in colleges in New Zealand, such a code would be unlikely to suit New Zealand. The United Kingdom Government’s decision to encourage universities to undertake voluntary obligations surrounding pastoral care would likely be ineffective in New Zealand, as introducing voluntary obligations is an approach New Zealand tried and failed at, with the now defunct Voluntary Code. Waiting for appropriate case law to develop pastoral care standards, the Australian approach, is risky for students and requires the right case to be brought forward by the right person. It also requires a harm to have occurred, rather than putting in place proactive protection for students. The Canadian approach of setting minimum standards for people in any accommodation protects basic rights of students, but it will not result in any basic level of pastoral care being offered. New Zealand’s decision to have a mandatory code for colleges that covers pastoral care is a proactive approach as it ensures students are provided pastoral care at a clear minimum standard. A mandatory code best suits New Zealand’s college communities (of which a large portion are undergraduates), is a strong statement of the standards a college must hold themselves to, and ensures students are well set up for their time at university.126
126 Universities New Zealand Submission, above n 66, at 1.
II The Current Code in Practice
Before examining the contents of the Current Code, I will identify the purpose and specific objectives of the Current Code. Identifying the intended purpose of the Current Code is a crucial first step in my analysis as it allows me to construct a framework of features the Current Code should contain. I will then compare this to the Current Code, so I can ultimately determine if the Current Code is fit for purpose.
1 Determination of my framework for analysis
I have developed a framework for what the Current Code should contain through analysis of several relevant sources. First, I examined the statements of the Government at the time (as recorded in Parliamentary debates and press releases) as to what their intent for the Current Code was. Second, I examined submissions made to Select Committee on the Bill, and submissions on the proposed changes to the Interim Code (ie. for the Current Code) from important stakeholders. Third, I looked at what the Current Code says, in its text, that it intends to achieve. Finally, I analysed the academic literature discussing what pastoral care for tertiary students should include.
In considering Parliamentary debates, I focused on the debates for the Bill as this is where the concept of having a code was most discussed. I manually went through each of the debates, looking for common themes and noting when a theme was mentioned. I examined the goals of the Current Code as contained within it to support these themes. I also examined the submissions made to Select Committee for the Bill and submissions made for the Current Code from important stakeholders to look for common themes as to what the Current Code should contain. Finally, I examined academic literature on what makes good pastoral care for tertiary students and what hallmarks are important within it. Through this process, I developed a framework for analysis of the Current Code:127
127 Structure based on framework for analysis in Ron Paterson, Jane Meares and Jacinta Ruru Regulating Lawyers in Aotearoa New Zealand (March 2023) at 49.
I will use my framework for the remainder of this dissertation to measure the success of the Current Code in achieving these aims. Before doing so, I will expand on these themes.
2 Supporting safety and wellbeing of students in student accommodation
This theme was emphasised in the Parliamentary debates for the Bill and it is present in the Current Code’s application section (which functions as the purpose section of the Current Code).128 Members of the Labour Party (notably Mr Hipkins) emphasised the importance of having consistent and adequate pastoral care throughout a student’s time in a college, and having a clear and fast process if something were to go wrong.129 This emphasis is reflected in my framework as parts 1(a) and 1(b). Indeed, this is really the central reason the Interim and then Current Code were developed; to ensure pastoral care supports students and to prevent another tragic event in colleges. Academic research also supports the emphasis on student safety and wellbeing.130 In particular, research has highlighted the impact of accommodation staff building relationships with students on the staff’s ability to provide adequate pastoral care.131 This has been seen as something which students want and which aids students greatly.132
131 Joanne D Worsley, Paula Harrison and Rhiannon Corcoran “The role of accommodation environments in student mental health and wellbeing” (2021) 21 BMC Public Health 573 at 13.
132 Worsley, Harrison and Corcoran, above n 131, at 13.
Student privacy, part 1(c) of my framework, was emphasised in the Parliamentary debates for the Bill. Members of the National Party, particularly Tertiary Education spokesperson Dr Shane Reti MP,133 highlighted a concern for balancing safety and wellbeing with a student’s right to privacy.134 The right to privacy was emphasised in submissions for the Bill from both universities themselves,135 student associations136 and the Privacy Commissioner.137 Academic research states students value their privacy and the ability to have time to themselves, often seeing their bedroom as a safe space and a place of self-expression.138 After all, most students entering student accommodation are 18-years-old or above (or will turn 18 in the first few months of living at the college) and therefore are legally emancipated from their guardians. They are entitled to privacy like any other adult.
The final part of section 1 of my framework concerns staff training and support. Submissions from former and current RAs on the Bill highlighted how RAs “on the ground” at colleges were students themselves, within a few years of age of the students they were caring for.139 RAs, therefore, were sometimes personally dealing with similar issues to the students they were looking after.140 In their role, RAs were confronted with challenging situations, and some had little training to cope with them.141 Other submitters for the Current Code also spoke about this at length, asking for strengthened and relevant staff training.142 Given the importance of staff at student accommodation, particularly for first year students who often require more guidance, adequate training is essential.143 Academic commentary also discusses the importance of staff being able to
139 Liam Wairepo “Submission to the Education and Workforce Committee on the Education (Pastoral Care) Amendment Bill 2019” at 1-2 and Anonymous Anonymous “Submission to the Education and Workforce Committee on the Education (Pastoral Care) Amendment Bill 2019” at 2.
140 Liam Wairepo Submission, above n 139, at 1-2 and Anonymous Anonymous Submission, above n 139, at 2.
141 Anonymous Anonymous Submission, above n 139, at 2.
Te Oranga me Te Haumaru o Te Ākonga: Tertiary learner wellbeing and safety (25 June 2021) at 17.
provide relevant and proactive care,144 something which staff training would clearly help to facilitate.
3 Inclusive and supportive environment for students to succeed
This was the second major theme in the submissions on the Current Code and forms part 2 of my framework for analysis. A key aspect of this theme was the role of “student voice”, part 2(a) of my framework. The importance of student voice is emphasised in academic commentary, which notes that consideration of student voice is central to developing sound and effective student wellbeing practices.145 Ensuring student’s opinions are heard was highlighted in the submissions on the Bill, as ultimately student accommodation exists for students and their use.146
Another aspect of ensuring a safe and inclusive environment was setting clear expectations, part 2(b) of my framework. The concept of “house rules” had existed before the concept of the Interim and Current Codes, as noted in the RTA 1986.147 Therefore, the idea of having expectations for students (part of treating them as young adults responsible for their own actions, while still looking out for their safety) has been present in New Zealand’s legal system for decades. However, few relevant guidelines existed surrounding what “house rules” might include, nor how these should be communicated to students.
The final aspect of this theme is ensuring the environment caters for all students of varying backgrounds, part 2(c) of my framework for analysis. In the key messages of the submissions for the Current Code, both providers of tertiary student accommodation and students themselves agreed it was important for colleges to have inclusive learning environments.148 Such environments would ensure students are not only mentally supported, but can achieve the best outcomes academically.149 These submissions for the Current Code suggested including
environmental considerations for Māori and Pasifika students, students who are disabled, of different backgrounds, different sexualities and different faiths.150 The environment of a college impacts on the wellbeing of students through the connections they make and the support they feel.151 This statement is, again, particularly true for first years who are often trying to develop a greater sense of their own identity.152
The Current Code is secondary legislation. Due to the flexibility offered in the creation of secondary legislation, the Current Code is structured in a different manner to primary legislation. The Current Code is split firstly into “parts”, which contain distinct “outcomes” the Current Code aims to achieve. Each “outcome” is further split into “processes” by which the outcome is to be achieved. Each “outcome” and “process” is a distinct “clause” of the Current Code, with a total of 93 “clauses”. The Current Code contains seven “outcomes” relevant to domestic tertiary students and therefore relevant to this dissertation.153 Three of these “outcomes” are specifically for tertiary student accommodation154 while the other four apply to tertiary education providers generally (capturing student accommodation where providers have such accommodation).155 I will be looking at these “outcomes” only in terms of how they impact tertiary student accommodation. Each “outcome” is discussed in more detail in the next chapter, but in brief these cover learner wellbeing systems,156 learner voice and complaints,157 environments,158 the safety of learners,159 staff at colleges and pastoral care,160 student-college accommodation contracts161 and facilities and services at colleges.162
The Current Code also interacts with two important pieces of legislation: the Privacy Act 2020 and the Education (Domestic Tertiary Student Contract Dispute Resolution Scheme) Rules 2021 (“the DRS”). The key aspects of the Current Code which interact with the Privacy Act 2020 are the disclosure of a student’s personal information to their parents or guardian, noting again most are 18 years old and therefore legal guardianship has ended,163 and the ability of staff to enter into a student’s bedroom.164 The DRS explains how dispute resolution (for contractual and financial disputes) between a student and a college must be conducted, as students in tertiary student
154 Outcomes 5-7, covering cls 23 – 33.
155 Outcomes 1-4, covering cls 1 – 22.
156 Outcome 1.
157 Outcome 2.
158 Outcome 3.
159 Outcome 4.
160 Outcome 5.
161 Outcome 6.
162 Outcome 7.
accommodation are excluded from approaching the Tenancy Tribunal.165 It also interacts with a few other pieces of legislation.166
The Education and Training Act 2020, where the authority of Current Code comes from, also provides for a Code Administrator.167 The Code Administrator is currently the New Zealand Qualifications Authority (“NZQA”).168 Consequently, NZQA has the role of monitoring tertiary providers and their compliance with the Current Code, issuing performance improvement notices and sanctions in cases of breach and undertaking periodic reviews to ensure the Current Code is being met.169 If NZQA determines a breach has occurred, NZQA can impose conditions on how a provider operates,170 impose limitations on a provider enrolling students171 or (if a sanction has not been complied with) revoke a provider’s status as a provider.172
167 The authority for a Code Administrator comes from the Education and Training Act, s 535A.
III Analysis of the Current Code
In this section, I analyse the Current Code against my framework of analysis, to consider if the Current Code is fit for purpose for domestic tertiary students in New Zealand student accommodation. In interpreting the Current Code, I also draw on the Guidance for Tertiary Providers (“the Guidance”), a document NZQA has published, which explains to tertiary providers what their obligations under the Current Code look like in practice.173
The Current Code has a strong emphasis on this aspect of my framework for analysis. This is unsurprising as pastoral care is at the heart of the Current Code. Ultimately, the Current Code was created to prevent another death like Mason’s, so learner safety and wellbeing is detailed in a standalone outcome,174 and it is also referred to in other clauses.175 The Current Code notes the broad care providers generally must give to students to “promot[e] physical and mental health awareness”.176 This acts as a more passive process of giving opportunities and information to students. In doing so, this arguably recognises their age and independence. There is also a requirement of “proactive” and “responsive” wellbeing practices for providers, looking specifically at risk-averse situations and mitigation of harm.177 Clause 27 is the most relevant section in relation to pastoral care on a day-to-day basis in student accommodation however.178 This speaks specifically to what providers must have to ensure students are regularly monitored and looked out for. It holds providers must have “appropriate welfare safeguards”179 which include (when a student is not considered to be at risk) systems to “regularly check that residents continue to be active within their student accommodation”.180
173 New Zealand Qualifications Authority “Guidance for Tertiary Providers”, above n 92.
174 Outcome 4 (Learners are safe and well).
175 Such as cls 8 and 10.
178 Clause 27.
179 Clause 27(1)(c).
180 Clause 27(1)(c)(ii).
One of the ways the Current Code tries to ensure proactive pastoral care is through the concept of wellbeing check-ins in cl 27. The Current Code, in its wording, leaves room for the provider to decide how they wish to enforce this. Such flexibility might be beneficial given the different sizes of colleges and breadth of students present within colleges in New Zealand. The Guidance offers no clarification on what this may look like.181 In the college I work in, this takes the form of “floor rounds” (where a RA knocks on each of their resident’s doors and has a conversation with them surrounding their wellbeing), a weekly check in system, or, if a resident cannot be reached in person, phone calls or messages to establish contact with them. However, the breadth of cl 27 does leave opportunity for providers to undertake less comprehensive processes while arguing such processes are sufficient under the wording of the Current Code. Some of this risk is mitigated elsewhere in the Current Code as it is stated “the level of live-in accommodation staffing provides appropriate oversight” for students “based on the type and nature of the accommodation”.182 This means colleges made up of first years will require more oversight than a postgraduate college (as explained in the Guidance).183
In terms of the wellbeing check-ins, the provider must make sure, within them, that students “continue to be active within their student accommodation”.184 The use of the word “active” is potentially problematic. Ensuring students are “active” within the community was an issue raised in submissions for the Current Code by the University of Otago, who noted some individuals will never “engage” with the college.185 This can be for a variety of reasons, and while some indicate concern for the wellbeing of a student, not all do. For example, a student might not engage due to their desire to get into a competitive entry course, because they have a partner or friends outside the college they spend free time with, or because they are heavily involved in activities outside the college community (like a competitive sport).186 This leads to a question over how “active” should be interpreted in this context. No matter how hard colleges try, some students will never attend a sports match, floor dinner or movie night because it does not interest them. The term needs to be
181 New Zealand Qualifications Authority “Guidance for Tertiary Providers”, above n 92, at 56.
182 Clause 25(d).
183 At 54.
184 Clause 27(1)(c)(ii).
185 Allen + Clarke Analysis of Submissions, above n 142, at 39.
186 Different types of student engagement are explained in University of Otago Submission, above n 64, at 3.
broader, to accept that while wellbeing check-ins are crucial, students who do not interact with the college more than speaking to staff, but for whom the staff have no real concerns (for example, many mature postgraduate students), are not captured within this.
Overall, part 1(a) of my framework is captured by the Current Code which provides for students to be looked out for consistently during their time at a college. The Current Code, however, puts a lot of power into the individual college’s hands as to the level of pastoral care that will be provided. It effectively sets a minimum requirement and leaves it up to colleges as to how far past this they want to provide pastoral care. The use of the word “active” without definition gives the possibility for providers to be found in breach of this requirement by nature of their students rather than the college’s actions. A breach would be more likely to occur in colleges where the college’s characteristics result in certain cohorts of students living there, and consequently different expectations for how they interact with college staff (ie. colleges in New Zealand which offer large apartment style rooms for couples, allowing a more independent lifestyle, might be more likely to be found in breach of this clause).187
187 Universities New Zealand Submission, above n 66, at 3.
The Current Code provides procedures for three different levels of risk a student may be at. At the lowest level (which overlaps with Part 1(a) as it is proactive), colleges must “work... with residents to evaluate their needs” with a consideration of how the provider can plan to meet them included within this.188 The Guidance highlights such needs as information provided by a student or needs which develop from an incident or situation.189 While it gives no specific examples, my experience as an RA suggests this may include things like pre-existing, but well-managed anxiety or depression, a glandular fever diagnosis part-way through the year, or dealing with the passing of an extended family member near exams.
The second level addresses when a student is identified as “at risk”.190 Such a student is defined as one in the Current Code when the “tertiary provider... has reasonable grounds to believe that there is a serious issue relating to the learner’s health, safety or wellbeing”.191 A resident “at risk” must have developed a welfare management plan with staff “that includes welfare checks and which could include referral to external services”,192 with welfare checks undertaken “when reasonable in the circumstances” (welfare checks are discussed in detail later).193 The provider must have a link between the student accommodation and the “organisation's wider information gathering and communication system” to look out for a resident’s wellbeing and again connect them to the appropriate services.194 The Guidance explains this may include looking at a resident’s academics to note sudden changes in attendance or grades, but notes that information sharing must be in accordance with the Privacy Act 2020.195
At the third and most serious level, providers must have a “critical incident and emergency procedure manual” to deal with the most serious situations it may face.196 “Critical incident[s]” are not defined in the Current Code, but in the supplementary material NZQA points providers to in
188 Clause 27(1)(a).
189 At 55.
190 Clauses 27(1)(c)(i), (ii) and (iv).
191 Clause 5(1) definition of “learner ‘at risk’”.
192 Clause 27(1)(c)(i).
193 Clause 27(1)(c)(iv).
194 Clause 27(2).
195 At 56.
196 Clause 27(3).
the Guidance, NZQA defines it as an “unplanned or unforeseen traumatic event”, giving the example of the death of a student.197
These procedures are similar in concept to the Interim Code. However, one key difference is the removal of a section “encouraging residents to disclose health or mental health needs” so the provider can proactively work with the resident to manage them.198 The New Zealand Disabled Students’ Association noted in submissions for the Current Code they did not like the wording of this section and requested it become more empowering.199 It appears the recommended change has occurred in the Current Code.200 However, this change leads to conflict in dealing with issues swiftly. As it stands, students can self-disclose to colleges any mental or physical health conditions if they wish. These disclosures allow college staff to support a student from the beginning of their year. For example, in my experience as an RA, extra check-ins with them could be planned, the entire staff team can be notified to look out for them more and senior staff may put in welfare management plans at an earlier stage. Therefore, if or when issues arise, staff are more prepared, and the student can get help sooner. Practices like these are crucial as many problems students face may not be serious initially but may develop into significant challenges if not addressed properly.201 At the same time, no individual should ever have to disclose more than they want to.202 In somewhat comparable situations, asking a person explicitly about their mental illness for employment203 or in an educational establishment204 is illegal. The Current Code needs to have some middle ground between what was in the Interim Code and what is present now. Such a change would result in a situation where students are reminded that if they feel they may need extra support and want that from the college specifically, a pre-emptive disclosure can be much more beneficial for them rather than waiting until they have an issue.
<www.nzqa.govt.nz> at 1.
199 At 39.
200 Clause 27(1)(a).
However overall, the provisions the Current Code has for students at risk and for critical incidents and emergencies are sufficient. The provisions give the set processes I have specified are important in my analysis framework, while also attempting to act swiftly. Importantly, such provisions seek to protect students proactively where possible. A further emphasis on proactivity, in terms of telling students they can disclose any needs to staff, may ensure potential issues are dealt with earlier and strengthen the care a college provides.
Dealing with issues a resident may face and providing pastoral care (particularly in serious situations) inherently will result in an invasion of the privacy of students. Getting the balance between respecting a student’s privacy and invading that privacy in situations of concern is crucial for colleges to get right and ultimately to build trust between staff and students. In such a balance, the Privacy Act 2020 is important to consider in terms of how it applies to students. The Privacy Commissioner at the time, in his submission for the Bill, discussed the key provisions of this Act that would apply.205 He noted the law would “by default” treat students as being able to exercise all their rights under the Privacy Act.206 However the Commissioner noted that the Privacy Act also provides “considerable scope for agencies to develop their own policies about the treatment of the personal information they hold”.207 Therefore, it is open to the provider to develop their own policy.208 The provider would have to adhere to information privacy principle 3 via being clear about the information collected and their policy with it.209 Providers must also adhere to information privacy principle 11: no disclosures of personal information without “good reason” and only to the appropriate people.210 The Commissioner notes a scenario which may be a “good reason” is when the individuals’ life or health is at risk.211
The two main concerns with privacy are (a) the disclosure of personal information about a student to their next of kin or nominated person and (b) the ability of staff to enter a student’s room. Looking firstly to concern (a), the Current Code differentiates between those under 18-years-old and those 18 or older, although the distinction is not extremely clear.212 For those under 18, a
208 Privacy Commissioner Submission, above n 137, at 2.
Analysis of Submissions, above n 142, at 40.
212 Note the following clauses of the Current Code relating to concern (a) apply to tertiary providers generally too, however I am discussing them only in the context of a college.
provider must keep the contact details of the “next of kin”213 for these students and contact them if “there is concern regarding the[ir] wellbeing or safety”.214 Additionally, there must be “appropriate arrangements” for these students, including “effective communication” with a parent or legal guardian regarding their wellbeing and safety for colleges specifically.215 In contrast, for those 18 or over, these students must provide the contact details of a “nominated person”.216 The provider must contact such a person when a described circumstance in relation to wellbeing or safety occurs217 or if “disclosure is necessary to prevent or lessen a serious threat to the student’s life or health”.218
There is no provision for the disclosure of information not related to the wellbeing of a student to any other person. This protects student’s privacy in terms of their academic results and for any other activities they wish to undertake at university (ie. colleges cannot disclose if a student has decided to join a political club to their parents, for example). In considering who a provider can disclose information about a student’s wellbeing to, this differs depending on if the student is under 18 (next of kin)219 or 18 and over (a nominated person).220 It appears from the language used the bar for disclosure differs between these age groups, being higher for those 18 or over. However, the explanation for when disclosure by the provider is allowed for those 18 and over, when something has happened which falls under a “describe[ed] circumstance” for contact “in relation [to the student’s] wellbeing and safety”, is confusing.221 At first glance, it is not clear how this differs from disclosure when the provider has “concern regarding the wellbeing and safety” of the student, the circumstance for disclosure for a student under 18.222 The Guidance seems to suggest the difference is that providers, and therefore colleges can set their own circumstances as to when they will contact the nominated person, by making these circumstances known through “contracts,
215 Clause 27(1)(c)(iii).
216 Clause 22(1)(a).
217 Clause 22(1)(b).
218 Clause 22(1)(c).
219 Clause 22(2).
220 Clause 22(1)(a).
221 Clause 22(1)(b).
222 Clause 22(3).
enrolment conversations [and] orientation sessions”.223 It appears the bar was meant to be set higher for those 18-years-old and over, but this, technically and peculiarly, would allow for a greater invasion of privacy than those under 18-years.
Concerns over technicalities in the Interim Code relating to the level of disclosure were highlighted by the Office of the Privacy Commissioner. In the Interim Code, the wording for those over 18- years-old was unclear as to contacting the parent or guardian (as it was there, later changed to the nominated person) and resulted in contacting being allowed for anything related to wellbeing or safety.224 It appears there has been an attempt to narrow it here, but the situation has not been entirely fixed. Instead, now as long as colleges tell students in what situations they will disclose, that fulfils the Current Code. This seems inconsistent and a work around of the Privacy Act 2020. The clauses in the Current Code should be altered to be a clearer and higher bar for those 18 or over. Additionally, with only 0.2 per cent of students enrolled in tertiary education across the country in 2020 being under 18-years-old,225 a distinction between those under 18 and 18 or over may be relatively unnecessary and result in colleges investing extra resources into students purely because of their age rather than based on a reasonable assessment of their wellbeing and needs. Perhaps a distinction should not be made between the two at all.
Moving to consider concern (b), the ability of staff to enter a student’s room, the Current Code provides for two scenarios where this can occur without the resident’s express consent: welfare checks and routine checks. A “routine check” is defined in the Current Code as a check “where the provider has no cause for concern about the wellbeing or safety of the resident”.226 Staff must give at least 24 hours’ notice to a student for a routine check.227 Neither the Current Code nor the Guidance clarifies what these are to be used for, but my experience as an RA a routine check would be used to check the condition of the room or to empty rubbish bins, for example.228 A “welfare check” is defined in the Current Code as a check “where the provider, having attempted to obtain
223 At 42.
227 Clause 27(1)(c)(v).
228 Note additionally, students can request staff enter their room (ie. to complete maintenance) or can agree to staff entering their room if staff ask (although are entitled to say no if the above procedure has not been followed).
the consent of the resident for the entry, has serious concerns about the wellbeing or safety” of the student.229 Welfare checks can be undertaken when “reasonable in the circumstances”, with the circumstances being clearly defined in the house rules for students.230 The Guidance further expands on this, saying the house rules should note welfare checks will occur where there are “safety and health reasons”.231
Both routine checks and welfare checks were not present as distinct concepts in the Interim Code. However, in the proposed changes to the Interim Code, a welfare check would have been allowed immediately when there was a risk to life, while other “without cause” welfare checks required 24 hours’ notice.232 Students who submitted on this proposed change wanted a requirement for consent “as far as reasonably possible”,233 while the University of Otago noted the 24 hour period was “counterproductive” as if there was a serious concern for the wellbeing of a student (even if not life-threatening) they would enter immediately.234 Both of these recommendations were adopted and the final system the Current Code holds for both routine and welfare checks is appropriate. The system balances the right of colleges to maintain their premises and look out for the welfare of their students (including in serious situations) while also maintaining the privacy of students.235
229Clause 5(1) definition of “welfare check”.
230 Clause 27(1)(c)(iv).
231 At 56.
<www.conversation.education.govt.nz> at 18.
The pastoral care which staff provide (both for serious incidents and day to day) and the attitude they hold in relation to their job can make a large difference to the experience of students.236 The Current Code recognises this and has multiple provisions relating to who can be a staff member, their training and how staff are to be supported. There are several areas staff must be trained in, with training “tailored to their role”: these include Te Tiriti, cultural competency, physical and sexual violence prevention, escalation procedures, mental health literacy, suicide and self-harm awareness and drug and alcohol awareness.237 Staff training must be ongoing238 and tailored to the specific college staff will be working in, as the Current Code states “the experience and training of accommodation staff is appropriate for the type and nature of accommodation”.239 Staff themselves are to be provided with “ongoing wellbeing support” by the provider.240 Additionally, as mentioned previously, there must be “managerial oversight” of staff at all times for quick escalation of situations241 and the level of staffing must provide “appropriate oversight and support” for the nature of the students living in that accommodation.242 The Guidance gives more clarification in this area, noting staff should be trained in “the limits of their role” and when to escalate a situation to more senior staff.243 It also notes staff should be trained in first aid and emergency equipment.244
The training the Current Code and the Guidance specifies is extremely important, especially in colleges with large numbers of students from diverse backgrounds. Its importance was highlighted by students in the submissions for the Current Code, where they noted the importance of training on racism and supporting disabled students.245 Overall, the majority of submitters on the Current Code supported extensive staff training.246 While encouragingly, many topics are included in the
237 Clause 10(2).
238 Clause 25(a).
239 Clause 25(b).
240 Clause 25(e).
243 At 53.
244 At 53.
245 At 10.
246 At 17.
list for staff training, there should be some sort of consistency across New Zealand in terms of the extent of training for RAs in particular. The way these topics are listed leaves it very much up to the provider as to the extent they want to educate their staff on a topic, appearing as a potential loophole for providers. NZQA as the Code Administrator is perfectly suited to developing documents and setting a minimum standard for what must be taught in these given areas, with allowances given for colleges of different types (ie. documents relating to homesickness and time management would likely be more applicable to colleges catering for first years rather than postgraduate colleges). Such documents would give a stronger degree of consistency across RAs within universities and across universities, which for basic training (such as cultural competency and physical and sexual violence protection) is necessary to ensure students of all ages are protected.
In terms of wellbeing support for staff, this is required to be “responsive to the needs of staff”.247 Staff wellbeing support is a vital addition to the Current Code. RAs are often only a few years older than the students they are caring for and dealing with some of the high-level situations they encounter can be distressing.248 Senior staff too, as ultimate points of contact, can be required to make quick and difficult decisions. As above, a more rigid outline for what such support looks like in practice from NZQA would provide more clarification and ultimately ensure staff are being protected. What the Current Code asks for could be another loophole for providers with the words “ongoing wellbeing support” being all that is required, which is rather vague. Stronger support requirements could include mandated regular check-ins between RAs and senior staff, more promotion of external wellbeing support for staff and mandatory counselling for staff if they have dealt with certain traumatic scenarios.
In terms of who can be hired as staff, individuals must be “fit and proper persons”.249 Providers are to take “all reasonable steps” to ensure staff are “suitable for employment in student accommodation”250 and staff must undergo a Police vet if some students will be under the age of
247 New Zealand Qualifications Authority “Guidance for Tertiary Providers”, above n 92, at 54.
248 R. Jason Lynch “The Development and Validation of the Secondary Trauma in Residential Assistants Scale” (2019) 44(1) The Journal of College & University Student Housing 10 at 12.
249 Clause 26.
18-years-old as per the Children’s Act 2014.251 In this situation, identity must be confirmed252 and a risk assessment must be undertaken,253 with this procedure required to occur periodically with every three years of employment.254 If the student accommodation does not have students under 18-years-old, then a “good character” assessment of the individual must be taken in accordance with the section and must occur periodically with every three years of employment.255 The Guidance notes “a fit and proper person is a person who is of good character who abides by the laws of New Zealand and elsewhere and is likely to continue to do so”.256 These requirements appears to be sufficient to protect students. Colleges will be aware of the sort of person they are looking for in terms of personality and background and so long as they pass a basic good character test, then it is (and should be) up to colleges as to who they wish to hire.
255 Education and Training Act, s 540A.
256 At 55.
Student voice is seen as an important concept in the Current Code and as such, an entire outcome is dedicated to it, which covers providers generally.257 Relevant to this part of my framework, the Current Code ensures diverse student groups are heard and respected, noting the role of providers is “building and maintaining effective relationships with diverse learner groups”258. The role of providers also includes “working with diverse learners... to develop, review and improve... goals, plans and practices”259 as well has having processes for “actively hearing, engaging with, and developing” student voices.260 The Guidance gives clear examples of what such processes might look like: feedback sessions for students, surveys, partnering with clubs or organisations in the broader university to cater to diverse groups, office hours for staff, student representatives and opportunities for students to have one-on-one conversations with staff.261 Some of these have also been noted in academic literature surrounding student wellbeing as having great positive impacts in student accommodation and on student experience.262 Student voice is also present in clauses specific to colleges, such as working with students to develop information about their responsibilities at the college263 and working with students to develop and improve “house rules”.264
Having a breadth of circumstances where student voice is sought is necessary and importantly, was requested by many submitters for the Current Code, particularly students.265 There must be space for student feedback in a college, much like how a large business might send out an employee survey to ascertain whether they could be doing anything differently. Additionally, creating an environment where students feel comfortable voicing their concerns and opinions is crucial in a college, especially where their concerns may relate to mental or physical health. The examples given in the Guidance are realistic, many requiring relatively little effort but resulting in a large payoff in terms of either new ideas or simply students feeling heard.
257 Outcome 2, covering cls 12-14.
261 At 29.
262 Walker, above n 145, at 318.
263 Clause 24(1)(c).
264 Clause 28(b)(i).
265 At 8.
However, the feasibility of some of the further references to requiring student voice seem questionable, particularly working with students to develop “house rules”.266 “House rules” are set by staff that understand the risks of college life and are set in place for the good of students, not to act as a punitive measure or to be overly restrictive without good cause. Students may not always grasp this concept, instead arguing that as they are now legal adults, they deserve the least restrictions possible. As an example, the college that I work at has several entrances, of which all lock to students except the main entrance from 10pm-6am. Students regularly complain about this, but there is a reason for this decision. The other gates are locked to prevent strangers from entering the college at night. If anyone wants to enter the college during these hours, they must scan their access card and walk past the main reception where there is a security camera and a security guard. While staff members listen to students who complain about this, realistically this is unlikely to change. Going back to the Current Code, some of these clauses need to be revisited and potentially reworded to acknowledge that while students should give input, ultimately it is the college’s decision whether to implement their input. This should be especially so where the matter in question relates to student safety, or (within reason) where the college’s resources limit the actions they can take.
266 Clause 28(b)(i).
“House rules” are an important part of a college, keeping students safe and setting expectations for them as to their behaviour and how the college will run. Therefore, how they are determined, if they are reasonable and if students are made sufficiently aware of them by the college are all important factors of them and impact on if such rules are actually followed.
There can be many different ideas and concepts captured within “house rules”. “House rules” are set under the RTA 1986,267 as noted in the definition section of the Current Code.268 However, the RTA 1986 provides no further information about what “house rules” means, or what it might include. Strictly speaking, neither does the Current Code. However, the Current Code does explains what “house rules” should achieve.269 They are to “promote and encourage... resident safety, a sense of community... learning and personal growth and ... a positive and respectful community”.270 The rules themselves are to be “clear, reasonable and accessible to students”.271 The Guidance instead explains further what “house rules” may actually contain: policies on “health and safety, drug and alcohol use etc.”, “setting out residents’ responsibilities within the community of the accommodation and outlining unacceptable behaviour” and “establishing quiet zones/times for study, personal responsibility, self-management etc.”.272
The “house rules” must be well communicated to students to be effective. The Current Code holds a copy of the “house rules” are to be given to prospective students before they sign their contract with a college.273 This idea of having the house rules solidified to such an extent that they can be given to students up to six months before they move into the college is at odds with the student voice requirement of the “house rules”, where students are to help “develop and improve” the “house rules”.274 These clauses seem incompatible with each other. There is a clear benefit in making the “house rules” clear from such an early stage. This way students could (in theory) decide
267 Section 5B.
268 Clause 5(1) definition of “house rules”.
269 Clause 28.
272 At 57.
273 Clause 31(4).
274 Clause 28(b)(i).
not to attend a college if they had such a large objection to a particular rule for whatever reason. Making house rules accessible to students at any time throughout the year is important. For example, if a student breaks a rule and claims they were unaware of it, staff can point to both the contract the resident signed and the accessible version of the rules to highlight if they were unaware of the rule, this is through their own fault. Consequently, there is a good argument to maintain the clause where colleges have solidified “house rules” given to students early275 and, as discussed, alter the student voice clause to still respect student input, but to better reflect the gravity of “house rules”.276
The Current Code strikes a good balance in making it mandatory for colleges to have “house rules”, but leaving it open as to what these might look like. In this way, a college can tailor their rules to their resident cohort: how many students they might have, the proximity of the students (ie. are they all in separate self-catered apartments or single rooms close to one another) and the maturity of the students. This flexibility is key to ensuring the “house rules” are applicable and relevant to the college. However, a stronger clarification in the Current Code (rather than just in the Guidance) about some of the topics “house rules” must include would strengthen the consistency of “house rules” across universities. Perhaps this could be similar in style to the list of topics required for staff training, as discussed earlier.277 It should be mandatory for colleges to address all the listed topics in their “house rules” (even if addressing them for the college means writing “There are no restrictions on ...”). Such a requirement would ensure all “house rules” across colleges touch on the same topics, and are clear, avoiding confusion for students in what they can and cannot do.
275 Clause 31.
276 Clause 28(b)(i).
277 This could be similar to cl 10(2).
Colleges bring together people of varying ethnicities, religions, sexualities, cultures and genders. Therefore, the environment at a college cannot cater to one type of person. It needs to be welcoming and accepting of all. This consideration must be balanced with the limits a college inherently has, in terms of funds, staffing and time. A college may not have the resources to completely cater for every student in every aspect. Alternatively, catering for one student may inherently result in a negative impact for another student (one individual may require low lighting to avoid sensory overload, while another may require bright lighting to see properly). In these conflicting instances, referring students to other student organisations, external services or community organisations may be necessary and useful.
The need to balance the above two factors is recognised and allowed for in the Current Code, in many instances for providers generally. In terms of supporting a diverse group of students, the Current Code states “providers must foster learning environments that are safe and designed to support positive learning experiences of diverse learner groups”.278 This is further explained as “reducing harm”279 and “recognis[ing] and respond[ing] effectively”280 to discrimination, racism, harassment, and bullying, highlighting students hold a “collective responsibility” for an inclusive environment.281. In addition, it includes “promoting an inclusive environment”,282 “upholding the cultural needs and aspirations of all groups”283 and providing “accessible learning environments”.284 Likewise, the Current Code recognises the need for support from wider services too, noting providers must provide information to students surrounding the “cultural, spiritual, and community supports available to them”.285 Other clauses hold more specific requirements for providers surrounding supporting learner participation and engagement286 and physical and digital spaces and facilities.287 Specific to colleges, the Current Code contains requirements around
278 Clause 15.
279 Clause 16(1)(a).
280 Clause 16(1)(b).
281 Clause 16(1)(e)(i).
282 Clause 16(1)(c).
283 Clause 16(1)(d).
284 Clause 16(1)(f).
285 Clause 16(1)(e)(ii).
286 Clause 17.
287 Clause 18.
wellbeing support in the environment288 and the communication of expectations of students in the college environment, including those “relating to diversity”.289
From reading the Guidance, it appears the language used in the Current Code has been made intentionally broad so a college can, in effect, survey their cohort and see what sort of adaptations might be necessary or beneficial.290 While the Guidance is useful, it does make it slightly unclear as to the actual extent colleges should be going to in order to fulfil these clauses. Overall, the Current Code does set a good moral precedent as to the effort a college should be going to, but it gives enough wiggle room that a college can prioritise other aspects of college life when required too. It would be interesting to see what a complaint under one of these clauses might look like and how a college would resolve it, to get a clearer idea of what colleges have to do in terms of their environments.
288 Clause 24 generally, specifically cl 24(1)(d).
289 Clause 24(1)(c).
Student-college contracts are an important consideration underlying some of the parts of my framework, without being a distinct part themselves. Due to the duties such contracts can impose on students and colleges alike, it is worthwhile to examine how the Current Code regulates such contracts. In many scenarios in New Zealand, students sign contracts with a college months before they arrive at a college, with students given a number of weeks to sign a contract before the offer lapses.291 If students decline the offer for that specific college (wanting a different college) or do not receive an offer, they often end up on a waitlist (either generally for any college at the chosen university, or for a specific college) which does not guarantee them a spot.292 Consequently, there is immense pressure on students to sign the contracts they receive months out from arriving at a college, due to the worry they will not get an alternative option. As such, colleges hold a large amount of power (in that they could put restrictive clauses in such a contract and students would still agree to it). Restrictions on what colleges can put in a contract are crucial therefore so students receive a fair deal when signing their contracts.
The key components the Current Code has oversight on in contracts are “information sharing across the provider”,293 “processes for checking on residents”,294 payments (including bond, refund policy and penalties)295 and disciplinary process and complaints (including the house rules of the college).296 All of these components must be made clear in the contract given to students, with refund policies “reasonable” in particular.297 Reasonable refund policies are important as many universities state they receive a number of withdrawals from prospective students in between the first round offers acceptance date (when students have already accepted contracts and therefore
<www.auckland.ac.nz>. Similar timelines exist for University of Canterbury (above n 9), Victoria University of Wellington (Victoria University of Wellington “Offer Process: University Accommodation Wellington”
<www.wgtn.ac.nz>), and other universities in New Zealand.
293 Clause 31(1)(c)(i).
294 Clause 31(1)(c)(ii).
295 Clause 31(1)(d) and cl 31(3).
296 Clause 31(1)(e) and cl 31(4).
297 Clause 31(3)(a).
often paid a deposit, or more) and move-in day in February.298 The Guidance offers little clarification on what any of these components might look like in a contract, other than noting the contract must have “all necessary details upfront so there are no surprises”.299
Ultimately, the Current Code’s regulations on what must be in a student contract are relatively relaxed and a large amount of power remains in the college’s hands. Some of this power (for example, as to what the fees and the “house rules” will be) exists necessarily in the hands of the college. Colleges offer different services (ie. a fully catered college will logically cost more than a self-catered college) and will aim to house different students (first years, postgraduates etcetera) and therefore require different fees and rules. The emphasis on refunds is important as it allows prospective students to have more flexibility and take longer to consider if they want to, or indeed can, attend university. If they need to withdraw, a reasonable refund policy means they can do so with a smaller penalty. What the Current Code contains is at the limit of control that can be exerted before encroaching on the ability of colleges to run effectively.
There is no case law addressing a contractual dispute for a college in New Zealand. It would be interesting if this situation were to arise and how the court might treat a college in comparison to a business. Would a court see a college more like a business there to make a profit, or would it put a large focus on the obligations a college owes through the Current Code? I am unsure but this would certainly be an interesting case to follow if it arose. Perhaps an alternative to having a section on contracts in the Current Code is to remove the exemption of students from the RTA 1986 (or at least only exempt students from select provisions), something academic Williamson has recommended.300 This change would afford more protections to students as a result and give them the right to take colleges to the Tenancy Tribunal.301
298 As the University of Auckland (above n 10), University of Otago (above n 10), University of Canterbury (above n 9), and other universities in New Zealand state on their website.
299 At 61.
The Conversation (online ed, Melbourne, 31 March 2021).
For contractual or financial disputes between tertiary providers and students, the process in the DRS can be used when the situation has not been resolved within the college.302 This is a separate document which deals with how a student submits a complaint to a “DRS operator” (a person or agency appointed to administer the scheme).303 It also explains the process the DRS operator must follow in considering the complaint and reaching an outcome.304 Currently this operator is the organisation Tertiary Education Dispute Resolution.305 While an in-depth examination of the DRS and its provisions is beyond the scope of this dissertation, its existence and the basic process it provides for is important to note. Having a standardised process across universities and accommodation for serious disputes, which balances out the rights of the student with the rights of the tertiary accommodation provider is ideal. Such a process also allows students to lodge a claim only when their tertiary provider has not resolved the dispute or has not resolved it satisfactorily.306 It prevents the DRS from being a first instance place for disputes. Additionally, having this process run by an independent operator attempts to ensure a neutral decision in the best interest overall. Having such a scheme allows for the enforcement of contracts and provides a further strong incentive for colleges to uphold their contracts with students.
302 Created via authority from Education and Training Act, s 539.
(online ed, Wellington, February 2020) at 53.
Conclusion
In July 2022, the Green Party of New Zealand released the People’s Inquiry into Student Wellbeing, which surveyed 4,593 students across all New Zealand’s tertiary institutes.307 One recommendation of this inquiry was to “[w]ork with tertiary education and student accommodation providers to embed the Pastoral Care of Tertiary and International Students Code of Practice 2021”.308 Embedding the Current Code into student accommodation can only succeed if tertiary providers understand how it is to be applied in practice and if the Current Code is feasible.
The Current Code has been revolutionary in New Zealand. It has set a legal standard tertiary student accommodation must meet or face the consequences. Specifically, the Current Code has set minimum standards in areas such as staff and staff training, respecting student’s privacy and, of course, providing pastoral care. However, there are issues with the Current Code, possibly because it amounts to “knee jerk” legislation, or at least has some “knee-jerk” features. Aspects of the Current Code, particularly the pastoral care provisions, have not been written with the breadth of students that are present in colleges in mind: mature students, post-graduate students or simply students who have little desire to immerse themselves in the college lifestyle. Some provisions have been written in a confusing way that creates doubt about how to apply them, such as the disclosure for under 18-year-olds versus students 18 and over. Other provisions are too broad and risk inconsistencies across colleges in crucial areas, such as the requirements for staff training.
In some instances in the Current Code where competing provisions exist, it is not clear what should be balanced in practice, such as having clear house rules prior to the arrival of students while allowing students to have a voice in their drafting. Perhaps a longer process of creation might have identified and solved some or all of these issues. Provisions with issues, like the competing house rules provisions and the staff training provisions, need to be reviewed and altered to be more practical in application. Changes in these provisions with issues will create clarity for colleges in their obligations and result in colleges better supporting students.
308 At 45.
Nevertheless, some aspects of the Current Code are not only satisfactory but strike the right balance between caring for students while not being overreaching. Provisions that strike a good balance include those relating to room checks, procedures for issues of varying degrees of seriousness, and the requirements of a college to have an environment that caters for all. These provisions allow colleges to tailor the Current Code to suit them and their circumstances but draw a distinct minimum requirement as to what a college should offer to protect its students and their wellbeing.
New Zealand’s Current Code is the right approach to regulating tertiary student accommodation. It holds providers of such accommodation accountable and is proactive. Further changes made in consultation with providers (particularly those individuals who are putting the Current Code into practice at a ground level) and students would be beneficial for the Current Code. The Current Code can be made more flexible for colleges in some parts to allow for the diversity of colleges which exist, and narrower to give clarity of application in others, ensuring students in such accommodation are supported. A strengthened Current Code will give students the best possible start to their university education and allow them to grow from an “almost adult” to an “actual adult”.
Bibliography
A Cases
SMA v John XXIII College (No. 2) [2020] ACTSC 211.
John XXIII College v SMA [2022] ACTCA 32.
Abrahart v University of Bristol G10YX983, 20 May 2022.
B Legislation
Bill of Rights Act 1990. Care of Children Act 2004. Children’s Act 2014.
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C Parliamentary and Government Materials
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(26 May 2009) 654 NZPD 3827.
(17 October 2019) 741 NZPD 14462.
(10 December 2019) 743 NZPD 15695.
(11 December 2019) 743 NZPD 15854.
(12 December 2019) 743 NZPD 15911.
(5 June 2023) 733 GBPD HC 216WH-242WH.
D Books and Chapters in Books
Halsbury’s Laws of England (5th ed, 2020, online ed) Education at [866].
David McCaskill Laws of New Zealand Education: Pastoral Care of Students (online ed).
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E Journal Articles
Tim Baice and others “How do you (demonstrate) care in an institution that does not define ‘care’?” (2021) 39(3) Pastor Care Educ 250.
Andrew Gary Darwin Holmes “Researcher Positionality - A Consideration of Its Influence and Place in Qualitative Research - A New Researcher Guide” (2020) 8(4) International Journal of Education 1.
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John Ip “Law’s response to New Zealand’s ‘darkest of days’” (2021) 50(1) Common Law World Review 21.
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Jacques van der Meer “The Importance of an Increased Focus on Developing the “Whole Student” during and beyond Their Time at Higher Education, with a Particular Focus on First-Year Student” (2022) 10 Open J Soc Sci 297.
Fredrick Simpeh and Winston Shakantu “An on-campus university student accommodation model” (2020) 18(3) J Facil Manag 213.
Faafetai Sopoaga and others “Mental health and wellbeing of Pacific students starting University in New Zealand” (2018) 21(2) Pac Health Dialog 71.
Charles TR Walker “Wellbeing in higher education: a student perspective” (2022) 40(3) Pastor Care Educ 310.
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F Papers and Reports
Allen + Clarke Analysis of Submissions received in response to the Discussion Document
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(March 2023).
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G Internet Materials
Bob Abrahart “Should there be a new statutory duty of care for students in higher education?” (7 November 2022) Higher Education Policy Institute <www.hepi.ac.uk>.
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Canadian Centre for Housing Rights “Students and housing – Ontario housing law basics” (3 August 2021) <www.housingrightscanada.com>.
Chamberlains Administrator “College found liable despite appeal in sexual abuse matter” (21 July 2022) Chamberlains <www.chamberlains.com.au>.
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Ministry of Education “Pastoral Care for domestic and international learners: Code Q & A” (22 April 2022) <www.education.govt.nz>.
Ministry of Education and Te Mahau “Te oranga me te haumaru ākonga: Tertiary learner wellbeing and safety” <www.conversation.education.govt.nz>.
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New Zealand Qualifications Authority “NZQA as Code Administrator” <www.nzqa.govt.nz>.
New Zealand Parliament “Better care for students at halls of residence” (25 October 2019)
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H Other Resources
Teo Amus “A college student died in his dorm room. It took almost two months for anyone to notice.” The Washington Post (online ed, Washington D.C., 25 September 2019).
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Law Talk (online ed, Wellington, February 2020).
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Chris Hipkins “New code sets clear expectations for learner safety and wellbeing in tertiary education” (press release, 16 July 2021).
Chris Hipkins “New Pastoral Care Code will support tertiary students in 2020” (press release, 12 December 2019).
Gareth Hughes and Leigh Spanner “The university mental health charter is here” Wonkhe (online, 9 December 2019).
Steven Joyce “Updated Pastoral Care Code to help protect international students” (press release, 1 July 2016).
Petition from the LEARN Network to the United Kingdom Parliament regarding the creation of a statutory legal duty of care for students in Higher Education (closed 19 March 2023).
Anna Leask “Death of Mason Pendrous in Canterbury University dorm room - coroner releases final report.” The New Zealand Herald (online ed, Auckland, 4 October 2021).
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Joel MacManus “By skimping on pastoral care, university halls are failing to protect students”
Stuff (online ed, Wellington, 26 September 2019).
Daniela Maoate-Cox “How the death of a student changed the law” Radio New Zealand (online ed, Wellington, 27 June 2021).
Milan Perera “Minister asks universities to adopt Mental Health Charter by September 2024 or face licensing restrictions” Epigram (online ed, Bristol, 12 June 2023).
Sam Sherwood “Mason Pendrous was dead up to a month before he was found, coroner rules.”
Stuff (online ed, Wellington, 5 November 2019).
Sam Sherwood “Student’s body went unnoticed in university hall for close to eight weeks” Stuff
(online ed, Wellington, 25 September 2019).
Emily Walsh “Student accommodation is big business – but confused regulation leaves students vulnerable” The Conversation (online ed, Melbourne, 1 February 2020).
Myra Williamson “NZ student accommodation is expensive and under-regulated — here are 10 ways to fix it” The Conversation (online ed, Melbourne, 31 March 2021).
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