Legal Beagle by Graeme Edgeler

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Legal Beagle: The hopeful disallowance of the New Zealand Teachers Council (Conduct) Rules 2004

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  • Raymond A Francis,

    Good to see someone prepared to do the hard yards on these matters

    45' South • Since Nov 2006 • 545 posts Report Reply

  • Yamis,

    As a teacher I'd like to see the Teachers Council sod off completely, and leave the police and courts (and media) to deal with dodgy teacher behaviour. We pay them a decent amount of money from our stingy pay and they do a freakin useless job.

    Since Nov 2006 • 879 posts Report Reply

  • Graeme Edgeler, in reply to Raymond A Francis,

    Good to see someone prepared to do the hard yards on these matters

    Now if only I could invoice someone for it! You out there, Bryce Johns? I'm very reasonably priced :-)

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • Moz, in reply to Graeme Edgeler,

    Now if only I could invoice someone for it! You out there, Bryce Johns? I'm very reasonably priced :-)

    In the context of this report I think you should be cautious about wanting to invoice someone for absolutely everything you do that is related to legal practice...

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Thomas Goodfellow,

    Capital stuff! it's always a delight to see an argument presented concisely and clearly yet with plenty of reference to the law. The layman's routine experience of boilerplate contracts (seemingly sold by weight, like dung), coupled with the drizzle of sensational cases like that Moz linked all corrodes faith that law can be a tool for justice, or even bring clarity to a complex dispute. And of course quality legal blogs have been instrumental in bringing this perspective to T. C. Mits...

    The merest of proof-reading nits: "by forbidding not merely those involved in its processed", last word should obviously be "processes" (typos sale passed spiel chuck)

    Germany • Since May 2012 • 8 posts Report Reply

  • Rich of Observationz,

    Without trying to untangle the legal side, there are very good reasons to suppress identity in Teachers Council proceedings:

    - the identity of minors are almost always suppressed in all proceedings. Most cases before the Teachers Council will involve minors, and their identity is likely to be revealed to some degree by any reporting of the teachers name

    - initial disciplinary matters between an employer and employee are always confidential. Since the Teachers Council process has elements of this (a teacher who breaches any aspect of professional standards will appear before the council, whereas in other professions they may be given a warning by their employer) confidentiality is appropriate.

    - knowledge that a teacher has been before the council will have a negative impact on their relationship with future students, potentially damaging their education

    Maybe they need to amend the legislation to provide for an assumption of identity suppression in a more constitutionally acceptable fashion.

    Back in Wellington • Since Nov 2006 • 4484 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    Without trying to untangle the legal side, there are very good reasons to suppress identity in Teachers Council proceedings

    There are also very good reasons to suppress identity in disciplinary proceedings relating to doctors and other medical professionals. They decisions are appropriately made on a case-by-case basis. You decide what needs to be suppressed, not what it is permissible to be released.

    It’s the open justice equivalent of the difference between the Official Secrets Act and the Official Information Act. Both deal with protecting sensitive information from damaging release, but the approaches to that issue couldn’t be more different.

    knowledge that a teacher has been before the council will have a negative impact on their relationship with future students, potentially damaging their education

    I can't see that this is any different from doctors. And if it's appropriate in a particular case, a suppression order limited to that information can be made.

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • John Holley,

    I was involved, due to some forensic investigations I conducted, some years ago with a case.

    I only found out well after the fact that the person had lied on to the Teachers Council when appearing in front of them. This allowed the person to get off without any penalty. I could never understand why I was not called to testify.

    Some degree of openness is needed.

    Auckland • Since Nov 2006 • 120 posts Report Reply

  • Moz, in reply to John Holley,

    (quoting Graeme, not John)

    There are also very good reasons to suppress identity in disciplinary proceedings relating to doctors and other medical professionals. They decisions are appropriately made on a case-by-case basis.

    I would generalise that to any disciplinary proceeding. Doctors are not more special than judges or bus drivers. As you say (repeatedly) the legal system has ways to deal with this.

    To me it's of more concern that those methods are often ineffectual. and commonly fail completely since the spread of the interwebpipething (to use the legal term). Unfortunately it's all too easy to bypass legal secrecy with a little work, and public interest generally leads to crowdsourcing of the effort.

    To me, that's an argument for working on the social license part of the legal system rather than the technical/theoretical side. Crowdsourcing relies on social license and to a large extent I think that democracy in action. As with things like music "piracy", once the majority of the population not only disagree with you, but don't understand why you're still going on about it, it's time to accept that you have lost the argument.

    I'm more interested in how we can on the one hand understand what secrecy most people think is reasonable, and on the other hand how we can persuade ourselves to accept more secrecy than we have now. Well, I do, because I think there's too much disclosure too often right now. Or maybe more accurately, I think the disclosure is too random and inconsistent. That leads to fairness issues, where someone with social power can significantly harm their enemy by publicising information, and their victim cannot respond for fear of legal repercussions.

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Matthew Poole, in reply to Rich of Observationz,

    knowledge that a teacher has been before the council will have a negative impact on their relationship with future students, potentially damaging their education

    And students never gossip, or pass rumours. There's also no communication between students at different schools, and no global electronic communication system that allows students to make contact with other students in a matter of minutes.
    If anything the pretence that suppression orders are a useful way of protecting teachers from future students knowing of their past is more anachronistic now than at any time in history.

    The pit from whence crawl… • Since Mar 2007 • 3925 posts Report Reply

  • Keir Leslie,

    I think the idea that the public is on board with radical openness / lack of privacy (however you want to put it) is pretty far ahead of the facts.

    Since Jul 2008 • 1389 posts Report Reply

  • Moz, in reply to Keir Leslie,

    I think the idea that the public is on board with radical openness / lack of privacy (however you want to put it) is pretty far ahead of the facts

    I suggest looking at what people do rather than what they say puts the lie to that. TV programs that advertise privacy violating content find more viewers, social media postings that do the same are widely echoed, people hand over huge volumes of personal information in return for trivial benefits, and so on. People mostly become concerned with privacy when they want it for themselves, and even then their desires are extremely narrow.

    One blatant example s the laws about pron. In theory it's illegal to publish sexually explicit photos of a person under the age of 18. It leads automatically to registration as a sexual offender. Which is pretty awful when schoolkids are found sharing sexts... almost as though the law is wildly out of step with social expectations.

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Keir Leslie, in reply to Moz,

    Again, I don't think argument-from-Daily-Mail is exactly the best way of establishing a broad social consensus for renegotiating privacy and openness.

    Since Jul 2008 • 1389 posts Report Reply

  • Moz, in reply to Keir Leslie,

    I don't think argument-from-Daily-Mail is exactly the best way of establishing a broad social consensus for renegotiating privacy and openness.

    I don't think is a good way to proceed either. I thought your objection was that people do actually value privacy much more than their behaviour indicates. In which case, I think you're wrong, and how people behave is exactly how we should discover their values. Doing otherwise leads to stupid outcomes, like removing speed limits because people say they never drive too fast for the conditions.

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Keir Leslie,

    I think that talking about “behaviour” is massively under-interrogating the various ways online actions are mediated by corporate power with explicit interests in exploiting personal information.

    (Also I am quite suspicious of the assertion that sexting is a crime automatically leading to sex offender registration under NZ law – is there authority for that?)

    (Also also while we're on an open data kick, here's Crooked Timber's open data seminar. It's really really good. Really good.

    Since Jul 2008 • 1389 posts Report Reply

  • Matthew Poole, in reply to Keir Leslie,

    automatically leading to sex offender registration under NZ law

    There’s not, as far as I’m aware, “sex offender registration” in NZ for any offence. One might end up on an unofficial register drawn up by one of the various groups that abound, but pending confirmation from Graeme I’m pretty sure there’s no public government register.

    As a wider observation, though, Moz is right on the money with that point about sexting and long-term consequences that are simply ignored. With or without the sex offender issue, I suspect that most 13-18y/o kids know, or know of, someone for whom sexting ended badly when the pic(s) in question went public after a nasty break-up or simply because a recipient was a douchecanoe of the first order, but blithely engage in the practice because "It won't happen to me." Knowing the consequences of opening up one’s life and actually following through on that knowledge are entirely different things.

    The pit from whence crawl… • Since Mar 2007 • 3925 posts Report Reply

  • Graeme Edgeler, in reply to Matthew Poole,

    One might end up on an unofficial register drawn up by one of the various groups that abound, but pending confirmation from Graeme I’m pretty sure there’s no public government register.

    Confirmed.

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

  • Keir Leslie, in reply to Matthew Poole,

    Yeah, I agree that there’s heaps and heaps of downside risk from sexting. I just don’t think that in NZ, if you’re between 16-18 and engaged in consensual exchange of vanilla pics, one of those downside risks is prosecution or conviction. My research on this consists of not much at all, so if someone has any actual authority one way or the other I’d be easily convinced I’m wrong.

    [Also yes the lack of a registry is one reason I am suspicious of that assertion. To be fair Moz is from Australia, now I look, so I’m being a bit devious in my restatement.]

    Since Jul 2008 • 1389 posts Report Reply

  • Moz, in reply to Keir Leslie,

    To be fair Moz is from Australia, now I look, so I’m being a bit devious in my restatement.

    Necessarily so, in this case. There is indeed a register in Victoria at least, and there are a number of teenage sexters on it who are trying to get off. The stupid consequences of some of these laws are under active attack, partly because it's hard to get the average person to accept that a: the law is that silly; and b: anyone cares. The answers are of course it is and yes they are required by law to care. One recent example is a gentleman who was convicted in the 1950's of having consensual gay sex and has spent much of his life trying to avoid being put in a position where he has to disclose that he is consequently a registered sex offender. Sucks to be him, yes?

    I suspect but don't know that there are similarly stupid laws in NZ (sex offenders working in schools strikes me as something there's likely to be laws against, for example, and I'm not certain that all past offences that are now considered unreasonable have been spent). I haven't lived in NZ for ~15 years. I do occasionally spend long enough in the country to qualify as a voter, however. I suspect I am a known letter writer in a number of MP's offices, and submit on bills occasionally. If there's a campaign to allow overseas-resident citizens to vote, or overseas electorates I'll support it.

    It's not common for a bill legalising something to also say "and past convictions are retroactively annulled".

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Moz,

    The Victorian situation is mildly convoluted but I think worth describing. Few politicians are silly enough to come right out and say "I want a lifetime ban from being on school grounds for any teenager who takes a photo of her breast", but somehow they have built that legal arrangement.

    The deal is this: it is an offence to produce or disseminate photos of people under 18 when those photos would be classified as R18 by the censor. Obvious enough. The maximum penalty for that is 5 years jail, because bulk distribution of child pron is bad. Also obvious. There's a register of sex offenders, because if we have a list it's easier to check that people applying to work in schools are not on it. Anyone convicted of a sexual crime that has a max sentence of two or more years goes on the register. You can't get off the register, obviously.

    Victoria has a police check system that's used for mildly-sensitive roles, called the "working with children check" (http://www.justice.vic.gov.au/workingwithchildren/ ). It covers more than you'd expect, specifically anyone who volunteers at an event where school kids go as part of their school activities (ScienceWorks, for example). So there have been times when I have refused to volunteer because I object to that system - paying the police for a half-arsed check, so I can volunteer for an afternoon? Shove that.

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Matthew Poole, in reply to Keir Leslie,

    Don't forget that even if we ignore NZ, the nonsense that Moz describes is utterly rife in the US. Kids who send pictures of themselves end up being charged with producing child pornography and then end up as registered sex offenders before they've even finished high school.

    The pit from whence crawl… • Since Mar 2007 • 3925 posts Report Reply

  • Rich of Observationz,

    Doctors are not more special than judges or bus drivers

    If a bus driver gets disciplined and it doesn't end up at the employment tribunal or in criminal proceedings, then it's a confidential employment matter with the bus company, right?

    Back in Wellington • Since Nov 2006 • 4484 posts Report Reply

  • Moz, in reply to Rich of Observationz,

    If a bus driver gets disciplined and it doesn't end up at the employment tribunal or in criminal proceedings, then it's a confidential employment matter with the bus company, right?

    Depends very much on the situation. It's definitely not a firing offence for the driver to tell her spouse that she's been disciplined at work.

    Sydney, West Island • Since Nov 2006 • 497 posts Report Reply

  • Keir Leslie, in reply to Matthew Poole,

    In general, any statement of the form "x is a bad thing and x happens in the US criminal justice system" is true.

    Since Jul 2008 • 1389 posts Report Reply

  • Graeme Edgeler, in reply to Moz,

    t is an offence to produce or disseminate photos of people under 18 when those photos would be classified as R18 by the censor. Obvious enough. The maximum penalty for that is 5 years jail, because bulk distribution of child pron is bad.

    Child porn is not R18. Child porn is banned. R18 material is stuff that adults are allowed, but children are not.

    In New Zealand, showing something like a photo that would be classified as R18 to someone who is not 18 carries a $3000 fine. If you knew it would be (or was) restricted, this ups the maximum penalty to three months' imprisonment.

    Wellington, New Zealand • Since Nov 2006 • 3011 posts Report Reply

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