Two of Auckland’s biggest schools are at the centre of a first XV player eligibility row which has angered the student’s family and raised legal questions over a code drawn up and governed by 12 Auckland principals — amid wider concerns about the impact the code is having on other
Schools rugby: King’s College and Mount Albert Grammar block teen’s first XV chance in poaching rules row; 12 principals a ‘law unto themselves’ say parents
Parents of a student blocked from playing first XV rugby for King's College have sought political and legal help. Photo / Photosport
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While the intent of the code is considered by many to be laudable - one of the principals says they take students’ wellbeing “very seriously” - it appears to be a blunt instrument that is catching out innocent parties — with no right of appeal to the principals, many of whom refuse to acknowledge questions let alone answer them.
Senior lawyer Michael Heron KC told the Herald he was concerned the best interests of students had been lost in college sport rules generally, while other legal experts say the principals’ rugby code may be exposing the schools to a major court challenge.
And New Zealand Rugby itself says it wants to have more involvement in matters of rugby participation but, it says, it has no jurisdiction over Auckland first XV rugby.
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Parents Aaron Taylor and Megan Flynn say the principals’ code does not and should not apply to their son and have sought political and legal help.
Taylor believes the principals are behaving like a “law unto themselves” in that any individual school that might try to challenge the rules is threatened with a boycott of rugby and other sports.
“This isn’t the All Blacks,” says Flynn. “These are kids. And in particular, my kid who has built the physical and mental fortitude to get to his position to have it taken from him by a code that isn’t governed or carefully applied. It’s just not right.”
The parents say they have also been told by contacts within rugby that their son isn’t the only one affected this year, with others in a similar position.
New Zealand Rugby’s community rugby general manager Steven Lancaster said: “We’re aware of the situation and certainly would like to be more involved in matters that relate to participation in rugby. The reality is NZR does not have jurisdiction over the Auckland 1A rugby competition and so a resolution would be required between the parties involved.”
Taylor went to his local Auckland Central MP, Chlöe Swarbrick, who has written to MAGS headmaster Patrick Drumm and King’s College headmaster Simon Lamb, asking the schools to review their decision.
“I’m not having a crack at the headmasters; I’m not seeking to make life hard for them,” Swarbrick told the Herald.
However, she had asked them to reflect on the code and whether discretion could be applied in the case of a student who had changed schools for reasons unrelated to rugby.
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“The history behind and purpose of this Code of Practice make total, general sense in upholding the integrity of the game and its teams, namely to mitigate completely legitimate concerns that wealthier schools may poach players from others,” Swarbrick said in her letter.
“However, my strong sense from inspecting these rules in light of their purpose, hearing the story of the Taylor whānau and understanding the broader context is that there is room in this case for compassion and exercise of your discretion.
“Technically, I can see that there’s even a question of whether these rules apply in [this player’s] circumstances, given the apparent bar to his playing is:
“Any transferring student who was involved in another Auckland 1A Schools Rugby Development Programme from Year 8 will not be permitted to play 1st XV Rugby for a 2-year period from the date of enrolment.
“I understand that [the player] played rugby at MAGS in years 9, 10, and 11 but only in junior grades and not part of a 1A Development Programme nor squad.”
Swarbrick said she was “at a loss” as to why the rules were being applied “so zealously”. The student in this case was not poached, and he was finding a sport which gave him meaning, wellbeing and hope.
Both Swarbrick and the parents have questioned why there is no natural justice or ability to appeal. “I write to strongly encourage reflection on this decision and the implications for a young person and their educational and wellbeing outcomes.”
She said if there was an opportunity to “respectfully” challenge the decision, she would like to know the process, so that she could support the family.
In the meantime, the student can only play rugby in lower grades, his first XV dreams dashed.
The Herald wrote to all 12 principals, asking them to comment on the case, their code and the wider ramifications.
Simon Lamb, of King’s College, responded: “King’s College is not in a position to respond to a situation surrounding a single teenager nor resolve this issue. It comes down to what involvement any student has in ‘rugby development’ in a previous school.”
There appears to be little enthusiasm from King’s to delve deeper into the student’s “rugby development” at MAGS.
Certainly, the student’s parents say their son - a utility forward who can play lock, No.8, or blindside flanker - was not in any 1A (first XV) development programme.
MAGS headmaster Patrick Drumm told the Herald: “There is consensus that all rugby programmes in a school are part of a development programme.”
He does not specify who came up with this consensus but that “the code is signed by the principals of all 12 schools and enjoys unanimous support from all signatories”.
“The agreement was drafted in response to unethical recruitment and poaching practices occurring in a small number of schools over many years. It is pleasing that we have now seen a significant reduction in these behaviours,” said Drumm.
“As school leaders, we regularly communicate the principles of the code to our communities so parents are able to make the best decisions for their sons if considering transferring schools. There is consensus that all rugby programmes in a school are part of a development programme. It is important to note that a transferring student is still eligible to play grade rugby for their new school.”
Speaking independently and after being approached by the Herald, Heron said he was aware of concerns over the principals’ code and College Sport Auckland’s anti-poaching rules across a “whole range of sports”.
He said it was much bigger than rugby, citing hockey, netball and “many other sports”.
“[The broader system doesn’t] have the interests of the child at the centre of this,” said the former Solicitor-General. “I am sure all of these principals are doing their best but my concern is they are worrying more about the school than the child. You see it again and again.”
Statistics shared by New Zealand Rugby at the Herald’s request show a drop in numbers for boys’ participation in the sport at secondary school level.
Heron said he did not want to be critical of the principals, because he knew they were motivated by a desire to prevent poaching. But he questioned whether we had now got to the point of sacrificing a child’s enjoyment of — and participation in — sport for the sake of competitions.
“Is what they are doing in the best interest of kids or in the best interests of the school?”
An education law expert says students’ rights under the Education Act would supersede any code that has been created by schools or their principals.
Gretchen Stone, a partner at law firm Harrison Stone, said: “Speaking generally, principals and school boards are not able to use a Code of Practice to effectively ‘contract out’ of their obligations under the Education & Training Act 2020.
“A Code wouldn’t be enforceable to the extent that it expressly breaches the Act, or the effect of it is to breach the Act.
“Actions by a school that are not in compliance with the Act would certainly be open to legal challenge.”
Aaron Taylor has also had advice from his mother Erica Wellington, a former school principal and JP, who also believes the Education Act serves as a document upon which a challenge could be laid.
The Ministry of Education’s National Education Goals document clearly iterates the principle of “educational opportunity for all New Zealanders, by identifying and removing barriers to achievement”.
Section 127 of the Education Act states, among other points, that a board’s primary purpose is to ensure a school:
- Gives effect to relevant student rights set out in this Act, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993
- Takes all reasonable steps to eliminate racism, stigma, bullying, and any other forms of discrimination within the school
- And, in a further clause, ensures achieving equitable outcomes for Māori students (the student is Māori).
Taylor took a King’s Counsel to a meeting with King’s College headmaster Simon Lamb, and he says the lawyer believes the family has a strong legal case. The problem for them is the expense and time a legal challenge will soak up.
Heron was uncertain whether it was a question of legality — ultimately, that would be for a court to determine — but he agreed parents and others would be hampered by the time and expense needed.
Taylor believes the code also runs roughshod over College Sport Auckland, the guiding organisation for secondary school sport in the region.
College Sport Auckland CEO Mark Barlow told Taylor in an email his son would be eligible to play immediately for King’s as a new-to-school player under CSA’s bylaws. He added: “The 1A Principals Code of Practice is not administered by CSA.”
Barlow told the Herald in an email: “My understanding is the principals who have teams in the Auckland 1A rugby competition have an additional agreement which they have all agreed to follow. This agreement is not administered by CSA. Any questions regarding this agreement should be directed to the schools involved.”
MAGS headmaster Drumm told the Herald: “It is important to note that the code sits outside the College Sport Auckland and School Sport New Zealand bylaws thus avoiding potentially expensive litigious appeals processes. I must also emphasise that as self-governing schools, individual school principals and boards have always made final decisions around who represents their schools in co-curricular activities (Polyfest, kapa haka, sport, dance competitions etc).”
Drumm said school leaders took the wellbeing of their students and wider community “very seriously”.
“Over the recent years, the drive to professionalise and ‘over-hype’ school sport has created pressures and unrealistic expectations that have been detrimental to the health of many young people.
“The Code of Practice has been a small but significant step towards rebalancing our priorities as schools — that is, ensuring teaching and learning remains at the forefront of our core business.”
As well as questions to Lamb and Drumm — the principals of the two schools directly involved — the Herald sent individual emails to the 10 other principals and schools: Auckland Grammar, Kelston Boys’ High School, St Kentigern, Sacred Heart, St Paul’s College, De La Salle, Dilworth School, Tangaroa, Liston College and St Peters.
The Herald asked them if they were aware of the Kings-MAGS case, whether principals had discussed or reviewed it as a group, how they could justify the anti-poaching rules being applied in this case, whether there are exemptions in cases like this, and if they had considered any legal ramifications.
The principals were also asked for their response to criticisms they were “playing God” at the expense of a student’s wellbeing.
Not one of them replied.
The Auckland 1A principals last year withdrew their teams from Sky TV broadcasts of first XV matches and blocked coaches and players from talking to media. The Herald has continued with its coverage of schools rugby, which has been popular with readers.
Aaron Taylor has a number of words to sum up how he views the principals and the code in light of his battle over the past few weeks. Among them, in his opinion: arrogant, belligerent, contradictory and selfish.
Meg Flynn says: “It’s not reasonable to me for the principals to have such differing views on what the code means and how it is to be applied. There is no clarity, governance or appeal process resulting in 12 people having unmonitored power to make decisions for our kids. There are kids at school, earning places in sports teams unable to progress because there isn’t a fair process in place. How is this even happening and why is no one challenging it? How many kids need to be impacted before there is change?”
