Analysis: A legal academic to look out for

Should St Bedes’ baggage carousel riders have been stood down? Was the punishment proportional? Should the parents have let their kids face the music? What kind of lesson are kids getting when lawyers protect them from their school’s view of conduct?

A wise academic from Canterbury has identified bad lawyering and judging as the real villains in this drama, and had the courage now unusual in legal circles, to say it clearly. the TV3 News website quotes Canterbury University dean of law Dr Chris Gallivan as saying – “It undermines the authority of the school and it makes the courts look bad, it makes lawyers look bad and it makes the parents look bad. It undermines the authority of the school.”

The judge in the case may have had little alternative but to grant the interim injunction that meant the school effectively lost. Though she appears to share the views of appeal court judges (on their right and duty to fine tune the ‘proportionality’ of decisions by lay citizens) senior judges’ appeal decisions may not have left her much room to move. Proportionality is a fashionable doctrine that conveniently justifies  an infinite range of second guessing of others’ decisions.

In the clamour of views on the case Dr Gallavin’s are the only ones I’ve seen from a lawyer that essentially focuses on the feeble judging that has created the dilemma that tempted the parents. It is unfair to blame the parents when judges have created a situation in which a parent could blame themselves for failing to stick up for their child, irrespective of the bad outcomes for schools generally. The judges should have been guarding others, and they’ve failed repeatedly.

There is plenty of public recognition that schools and teachers everywhere are now tormented by choices between bad and worse - should they draw sharp behavioural boundaries, where what matters most is certainty of authority, with the ‘correctness’ or ‘proportionality’ of an individual decision being of secondary importance, or is it better just to fudge issues and let ‘mercy’ reign because the risks and costs of a fight with lawyers are just too great.

The fault lies with arrogant judging. Those responsible do not feel arrogant. They think they do good by indulging the universal human wish to look compassionate. But it is arrogant all the same. Judges who feel free to satisfy their urge to tinker with decisions retrospectively, irrespective of the costs have delivered us into the clutches of long delayed decisions, timorous authority, sensible people who simply stay away from public service, from taking school teams anywhere risky. Judges who think that achieving the ‘right’ outcome in the case before them is a judicial duty and privilege, forget their responsibility to the rule of law. Their art should always be subject to the questions - ’but what will this do to the law – what lesson/message/rule/precedent does it propound for the thousands who look to the particular cases for guidance on how they will be treated”. Will people now know in advance whether they are on the right side of the law, or the wrong? Can people now work without routine recourse to lawyers? What practical message will be the ‘rule of lore’ conclusion from this judgment.

It should have been simple. The consequences of teachers uncertain of their authority are far worse, for all parties, than the loss of a sports event for two boys.

Perhaps too many judges who try to apply the rule of law perspective  are without the mental furniture to do so dynamically. That is they fail to work through the consequences far enough to see how they affect the incentives facing the just and the prudent, as well as the unjust. But too often they do not appear to think they even need to try.

Watch out for Dr Gallavin. He is worth listening to.

Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

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