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Changing the name of VUW – and the law

by Sir Kenneth Keith
My principal reason [for supporting the petition asking for proper consultation with members of a university before the name of any university is changed] is that the proposed change is needed to create clarity in the legal position and thereby avoid unnecessary litigation.

First, some background. In 1989-1990, when I was a Law Commissioner, I chaired committees consisting of senior University representatives and senior departmental officials, as part of the Learning for Life process. We were charged with the task of elaborating the critical principles of academic freedom and institutional autonomy; that work resulted in sections 160 and 161 of the Education Act 1989 as added by the Education Amendment Act 1990.

I was also involved in the preparation of the statement about the characteristics of four types of tertiary institutions; see particularly s 162(4) (a) for the distinctive characteristics of universities. (I may be seen as having some responsibility in relation to the Ministerial power given by section 162(5). If so mea culpa!)

The 1990 Amendment Act also repealed the provisions of the Acts for the then six universities, in Dunedin, Christchurch, Wellington, Palmerston North, Hamilton and Auckland, concerning administrative and financial matters. Two important provisions, however, remained, all essentially in the same form. For convenience, I take those provisions from the Victoria University of Wellington Act 1961.

Section 3, headed Constitution of the University, contains four subsections, the first and second being most important –

Subsection (1) sets out the purpose; the University is established for the advancement, dissemination and maintenance of knowledge by teaching and research;

Subsection (2) says that the University consists of people, not bricks and mortar, libraries, laboratories, courses …; the members of the Council, the professors emeriti, the professors, the lecturers, the Registrar, the librarian, the graduates and undergraduates and others including some of the graduates of the University of New Zealand which was dissolved from 1 January 1962;

Subsection (3) provides that the University is a body corporate; and

Subsection (4) declares that the University is the same institution as the earlier institutions going back to Victoria College (1897), Victoria University College (1933) and Victoria University of Wellington (1957 when the institution was still associated with the University of New Zealand).

The other substantive provision of the 1961 Act is section 4. It provides that there is to be a Court of Convocation of the University. It is to consist of the persons whose names are enrolled on a register kept by the Registrar in terms of a statute made by the Council. The Court has the power to make representations to the Council on any matter concerning the interests of the University.

The 1990 Amendment Act contains other possibly relevant provisions. Section 162(1) provides that the Act has effect as if each body listed in Part 1 of Schedule 13 was established as a University under subsection (2). That schedule lists all the seven Universities in existence then (ie without the Auckland University of Technology). But, as is recognised by the phrase ‘as if’, that is a fiction. They already existed. I do not see the provision as significant in the current context.

What is significant is section 162(5), introduced in 1990. As the Committee need not be told it empowers the Minister of Education, on the recommendation of the Council of the institution concerned, to change the name of the institution by Gazette notice. That power applies to all four categories of institutions – colleges of education, polytechnics and wananga as well as universities. Such notices have been made, but not in respect of any university. All the changes to the names of universities have been made by Acts of Parliament, except for the University of Otago, established by an Ordinance of the Province of Otago in 1869, the year before the University of New Zealand came into existence. It has maintained its name throughout.

I now turn to the issue of uncertainty.

Does the Minister have the power under section 162(5) not just to change the name of a University but also the particular Acts of Parliament using that name? My initial answer would be ‘No’. It is contrary to long established legal principle for a subordinate instrument, in this case not even a regulation made by the Governor-General in Council, to amend an Act of Parliament, unless that power is clearly conferred by statute; for an instance see the International Terrorism (Emergency Powers) Act 1987, section 6(6).

Perhaps an argument to the contrary may be made; and, as a one-time judge, I would prefer to hear the arguments before coming to a definite conclusion. (It may be of interest that the VUW administration has said that Parliamentary action by way of an amending Act would be needed were the Minister to accept its recommended change.)

If that initial answer is correct, the university in question would have two legal names until Parliament had acted and had endorsed the Minister’s decision. In the interim or if Parliament did not agree, under which name would the university enter into contracts, under the authority of which would the Chancellor confer degrees … .

The addition of section 301A in 1998 to the 1989 Act introduces further confusion. It empowers the Governor-General by order in council to change the name of any ‘education entity’ whose name is to be specified under this section. The expression is not defined and does not appear, on my reading, anywhere else in the Education Act 1989. But on its face it may well be read as applying to universities and other tertiary bodies. If it does, does it replace the Ministerial power in section 162(5) and impliedly repeal that earlier enacted provision? The explanatory note to the Bill from which this section appeared says, however, that ‘[t]he entities affected are the Special Education Service, the Early Childhood Development Unit, the Education and Training Support Agency and the Careers Service. Until their names are changed under the new section, they retain their existing names.’ (Education Legislation Amendment Bill (1998) p xii. If read in that way, is the provision now spent?

As I indicated in my first paragraph, this lack of clarity, with the prospect of dispute and litigation, is the principal reason for my strongly supporting the Petition.

Other reasons relate to the question whether the Regulations Review Committee would have jurisdiction over the Ministerial notice; the lack of flexibility in the Minister’s authority-the only answers are yes or no; no room for conditions or transition or protection of rights (although the last may not be much of an issue-many of us have University of New Zealand degrees and have not been fussed about its disappearance); and the public character of the Parliamentary process, especially given that in the case of the VUW, at least, there appears to be no Council statute relating to the Court of Convocation.

Recommendation – I agree with the petitioner’s prayer for relief.

This evidence from Sir Kenneth Keith, supported by Sir Geoffrey Palmer, was presented yesterday to Parliament’s education and workforce committee which was considering a petition signed by 2032 people requesting legislation specifying that any name change of a university incorporated by an empowering Act can only be made by amending Act after consultation with members of that university.

4 comments:

  1. greenwelly, 6. December 2018, 9:04

    You almost have to feel a bit sorry for Guilford walking into such a large calibre gunfight with only a knife….

     
  2. Michael Gibson, 6. December 2018, 10:05

    I recall making the helpful suggestion, some four months ago, that, in the face of likely litigation, the VUW Council should seek a Declaratory Judgment in the High Court that it was on the right tracks. I am pleased that this suggestion was published and brought to the attention of the Council.
    I recall also seeing Sir Kenneth at the fatal VUW Council meeting where the legally suspect decision was passed (with two members dissenting).
    There is no way that the Minister of Education can now acquiesce in the personality-driven demands of the misguided majority who voted for the name-change.

     
  3. Leviathan, 7. December 2018, 8:47

    The whole problem is ridiculous and can be solved simply, by means of punctuation, without learned legal jurisdiction.

    Currently, the name of the university is Victoria University, of Wellington.
    Simply moving the position if the comma: Victoria, University of Wellington.

    http://eyeofthefish.org/victoria-move-your-comma/

    Problem solved. Zero cost. Thank you. Bill’s in the post.

     
  4. Gavin Sutherland BCA, 10. December 2018, 17:35

    The punctuation solution is a wonderful compromise.
    What fee does the learned scribe expect for applied common sense.

     

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