Otago University, the Proctor, and the constitution
September 24, 2018
It’s probably the most famous public law case in English common law history. John Entick was a writer for the anti-government publication, The Monitor, which caused much ire among the elite members of the English state. In an apparent act of retribution, three government officials, led by Nathan Carrington, entered Entick’s home and seized or destroyed some 2,000 pounds worth of property (a significant amount in 1765). Carrington was acting under the direction and authority of the Secretary of State for the Northern Department, Lord Halifax, and so claimed the power of entry and seizure as a result of that official authority. Entick sued Carrington for trespass, seeking to recover monetary damages in respect of the losses he had suffered.
The court sided with Entick. Among various statements about the fundamental importance of respecting private property, the Court ruled that government officials cannot enter someone’s home without clear authorisation to do so in law. It is not enough that an official represents the state and its interests – that status confers no more legal authority than any ordinary citizen might have. And because an ordinary citizen cannot enter private property without lawful authority, an official cannot do so either.
The resulting case, Entick v Carrington, is burned into the mind of every law student throughout the Commonwealth, including New Zealand. It represents the important proposition that the powers or government and government officials are limited by law, and cannot do something that affects private citizens just because there is nothing to stop them. It’s such a fundamental point about the way our government works that we often take it for granted. We don’t live in a police state, and we don’t accept authoritarian government action. Government can only take action where it has lawfully authority to do so.
Which is why it is so surprising and concerning that the Proctor of Otago University, Dave Scott, entered a private student flat and seized property belonging to the occupants of that flat. The back door was unlocked, and there was nothing stopping him, so the Proctor simply walked in, took what he wanted, and left. Apparently, the seized property was later destroyed. The occupants of the flat only discovered what happened when the Proctor returned on another occasion to explain himself.
This situation is, without question, a violation of the fundamental principle established in Entick v Carrington. The Proctor had no lawful authority to either enter the flat or seize the property that he did. He represents the University of Otago, and carries the authority of that auspicious institution, but that authority is not a cloak of invisibility to the eyes of the law. There is nothing in law empowering the University of Otago generally or the Proctor in particular to trespass on private property. Worse, this appears not to be a one-off incident, but an established pattern of a naked abuse of power.
The University seems to have belatedly recognised this. In a follow up article on the incident, a spokesperson for the University is quoted as saying: Neither [the Proctor] nor the university claim a right to search private premises and what was done here was unusual and unlikely to be repeated. Reading between the lines, we might well surmise that the University has realised that the Proctor’s actions were not just inappropriate, but completely unlawful. There is no justification for the Proctor to police student behaviour to standards that he considers appropriate, or to take unilateral action that affects private citizens. It now seems unlikely that such outrageous behaviour will happen again as the cold realisation of what the Proctor has actually done hits home.
That is small comfort, however, for the students who have lost their property as a result of these unlawful actions. What is conspicuously absent in the reporting on this matter is the indication of any sort of public or private apology from the Proctor or the University to the affected students. One is definitely owed to them. But we can’t force an apology out of anyone. In our society we respect individual rights and the rule of law, and forcing people to apologise is something we just don’t do. Except, maybe, when the Proctor of the University of Otago thinks no-one is watching...
***Updated: I understand that the Proctor has now apologised to the students involved, which is a positive step.