Legal information for Student activists
Universities use a broad range of legal sanctions to both deter and punish effective student actions on campus.
This section examines:
If you are planning to participate in a protest occurring on university grounds, you should be aware of all charges for which you may be potentially liable.
If any charges are laid against you, in internal proceedings or otherwise, you might want to seek independent legal advice. Many student organisations offer this service free for students; if not, you can contact legal aid or your local community legal centre.
Are universities public or private?
Strictly speaking, universities are private property but their nature as large educational institutions means that they are in practice open to the public. This is consistent with the idea that universities are ”public institutions”. This dual status of public and private is convenient for universities, for whom it provides a more expansive line of attack against activist students.
For example, police can charge student protesters with offences under which the university is seen as ”private”, such as trespass, as well as offences that apply to ”public” places, such as offensive behaviour.Universities may also of their own accord initiate legal action to suppress activism. In the USA, the University of California (Berkeley) has initiated a civil action which aims to restrain a range of protesters from blocking the destruction by development of open public parks. This is an entirely new application of the law, but based on an earlier action against anti-logging protesters. These initiatives have become known as Strategic Lawsuits Against Public Participation (SLAPPs) ; see Legal threats to silence activists.
Common criminal charges
The normal range of criminal charges is open to university authorities to report matters to police in dealing with student dissent and actions. Initiating criminal charges can be an embarrassment to university administration. You could consider using this as a strategy to force the university to drop charges or to avoid charging students in the first place. Many of these offences are dealt with in more detail in Common charges and offences.
Trespass
If you are not a student (or staff member) your rights to be on campus are broad but qualified. Officers of a university can legally order you to leave (for whatever reason) under the trespass law of the Summary Offences Act 1966 (Vic). See the Trespass section for more information.
Under Section 9 (1C)(a) of the Summary Offences Act 1966 (Vic), a person can be warned off university premises, orally or in writing, so that entering university grounds can constitute an offence.
Other offences
The University may seek to have police bring other charges (see Common charges and offences ). Offences such as obstruction, unlawful assembly and offensive behaviour may apply
The Summary Offences Act 1966 (Vic) gives a broad definition of ”public place” so as to include private property open to or used by even a small number of members of the public. Given this definition, it is easy to see how universities can be characterised as ”public places” where police see fit for the purposes of charging students with offences with a ”public place” element.
Increasingly, universities are arranging for police presence when they anticipate a protest so you also need to be aware of the offences of assaulting and resisting or hindering police .
University discipline and students' rights
All Australian universities have some form of internal disciplinary procedures (usually found in the statutes or regulations under the Act that created the university) which provide penalties for both staff and students who break university rules. There is usually a general offence of breach of discipline or misconduct. Check your university's rules for the specifics of these procedures.
Universities often make it a condition of enrolment that students agree to abide by the university rules. This is sometimes worded (in the enrolment forms) as a requirement to obey the university authorities. Note that no university authority (senior executive or security guard) can order you to do something that he or she is not empowered to do under the applicable University Act. You need not obey any unreasonable or oppressive direction.
Most universities bring misconduct allegations against students under the broad banner of ‘prejudicing good order, government and peace' at university. This means that any action that you as a student take in protest can potentially be viewed as ‘misconduct' under this dangerously broad characterisation. The law requires that there be a certain degree of certainty in a contract, and there is nothing that should preclude this standard from applying in the education context.
For example, Chapter 13 of the University of Melbourne Statute concerning student discipline provides that:
" breach of discipline or good order " includes conduct or behaviour which-
i. is lewd or obscene,
ii. impairs the ability of any person to participate in any activity of University life sanctioned by the University,
iii. unreasonably prevents or attempts to prevent any person authorised by the University to speak at any lecture, class, seminar or other academic activity, or any political, social or similar gathering,
iv. causes any person to hold reasonable fears for his or her safety or physical or psychological well-being,
v. causes any person to feel intimidated, threatened or in fear of being attacked,
vi. (for the purpose only of a direction under clause 3.7(d) of the Procedures to Resolve Sexual Harassment Complaints) breaches the University's policy against sexual harassment,
vii. breaches any provision contained in an Act of the Commonwealth or of the State of Victoria to which the University is subject, such as those relating to occupational health and safety,
viii. breaches the University's policy with respect to the use of computers and computer facilities,
ix. breaches the University's policy with respect to intellectual property,
x. interferes with, or causes damage to, or loss of, any property or facilities owned or controlled by any person whilst such property or facilities are lawfully on any premises owned or controlled by the University,
xi. constitutes a failure to comply with any lawful direction or order given in order to ensure the safety of any person, the preservation of any property or the maintenance of good order,
xii. involves the impersonation of another person or the use, whether deliberately or not, of forged, false or falsified evidence of academic standing or immigration status or any other relevant matter in order to gain or maintain enrolment,
xiii. involves concealing or withholding, whether deliberately or not, the whole or part of a student's academic record, or submitting incorrect details of his or her academic record or immigration papers or any other relevant matter, or relying on the academic record or immigration papers or any other relevant material of another person or persons, in order to gain or maintain enrolment,
xiv. is a breach of the regulation relating to assessment made under Statute 12.2.10.
Breaching the discipline and good order provisions of universities can of course have serious consequences. Again for example, Chapter 13 of the University of Melbourne Statute concerning student discipline provides that a breach of discipline and good order can, in certain circumstances, be punishable by:
- reprimand
- fine
- the payment of clean up costs
- exclusion from specified University premises or facilities either permanently or for such period and on such terms and conditions as is thought fit, or
- exclusion of the student from the University either permanently or for such period as is thought fit.
Most universities have similar sanctions and powers. Universities may also have the power to withhold a degree or academic transcript unless fines or other debts outstanding have been paid.
Misconduct hearings
If you are questioned by university authorities in circumstances where it is possible that disciplinary charges may be laid, you should follow the same course as if you were being questioned by the police: that is, decline to answer any questions until you have had independent advice from a lawyer about your rights. If you do not turn up to a hearing, the authority may, however, find the disciplinary charges proven in your absence.
University by-laws may also offer some protection. In particular, students charged under university rules are entitled to the benefit of the rules of natural justice. That is, you are entitled to a fair hearing and safeguards against bias on the part of the decision makers. There must be hearings procedures under administrative law, which must be procedurally fair, and appeal mechanisms, which you can use if there is an adverse finding against you.
There should be a staff and a student representative on the relevant committees, although there may be no entitlement. You may be entitled to have someone accompany you. Universities differ as to whether you can take a student advocate, friend or lawyer. The committee should be comprised of people who have no interest in the matter.
Many universities may not allow you to have your own lawyer present at hearings, but may allow a non-legal advocate from your student organisation to represent you. Some universities do not allow ‘advocates' of any nature. Questions of procedural fairness should be argued in this circumstance.
Being denied the right to independent representation when the university will have one of its own officers arguing the case against you is a breach of the principle of procedural fairness. In such circumstances, treat the hearing as an information gathering exercise – you do not have to say anything. You can obtain legal advice prior to the hearing. You may be able to negotiate the charge being dropped before the charge is heard through legal advice and representation.
Some practical tips
It is important to remember that a misconduct hearing is not a court of law but an administrative body, similar to a tribunal. It cannot consider questions of law and allegations can be challenged on this basis.
University misconduct hearings are intimidating and can be punitive. In preparation for this you may consider:
Obtaining support letters about why charges should be dropped from student organisations, unions on campus and supportive staff
Getting advice from a lawyer. The lawyer might be able to send a letter outlining how the charge/investigation contravenes natural justice
Running a media campaign to embarrass the university.
Discrimination
The acts of many universities prohibit religious, political or racial discrimination. RMIT University, for example, has a cultural diversity and anti-racism policy that prohibits religious or political discrimination affecting students or staff members.
If there is good evidence of any such discrimination, and the matter cannot be resolved at the institution, you would have strong grounds for civil proceedings in the courts against the university. Religious or political discrimination complaints can also be taken to the appropriate Human Rights and Equal Opportunity Commission or body.
State legislation may also prohibit discrimination on other grounds, such as gender, sexuality or disability.
Security guards at universities
Security guards generally have no more legal power than the average citizen, except:
- when they are sworn in as special constables, then they have some extra arrest powers; and
- when there is some extra power under the university rules.
There is no common theme on this issue in university rules across the nation. There may also be questions around how these extra powers are conferred.
Prescribed officers including security guards usually have power to give directions to students, such as ordering you to leave the campus. Such directions, if disobeyed, can lead to discipline proceedings for students enrolled at the relevant campus and the university's staff members bringing police on campus with the possibility of trespass proceedings being initiated.
Identification
Members of the Victoria Police have the power to demand identification if there is a reasonable suspicion of a person having committed an offence. Universities may alter their by-laws to enable security guards and other staff members to demand identification. If a student of that university campus refuses to supply identification on demand, this could form the basis for a misconduct charge. If the challenged person is not a student of the campus and does not produce identification then this could be grounds for the police to be called in and they may have the power to request the name and address of that person.
Search
A security guard is never allowed to search you or your property, unless you consent to it. Do not give consent to any security guard to do this. If a security guard does carry out a search without consent, you may pursue criminal and/or civil action. Police may not have the power to search you on university grounds if these grounds are not considered a “public place”, as police usually need a warrant to conduct a search on private property. See Are universities public or private? above.
Use of force
Security guards, in certain circumstances, can legally arrest you. They must inform you of the reason for arrest and caution you. The police should be advised immediately. Be aware of the restrictions that apply to the use of force by security guards – if you feel that ‘unreasonable' force has been used, you can allege assault to police or pursue civil action.
Strategy
A possible strategy for avoiding conflict between students and security guards is to negotiate with their union. It is possible to achieve results such as occurred in the 1992 occupation of the Administration Building at Macquarie University when the University's (privatised) security guards were used to evict students. After discussions with their union, they were not used against students in the second occupation.
See Complaints against security guards and Powers of Security Guards for more information.
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