The terms ‘natural justice’ or
'principles of natural justice' are often bandied around schools, particularly
in relation to student disciplinary matters and employment issues.
At a global level, schools are creatures of statute or, put another way, Crown entities. Boards and principals are given powers on behalf of the state. The way they exercise these powers or make decisions can affect the rights and interests of others.
Examples are:
At a global level, schools are creatures of statute or, put another way, Crown entities. Boards and principals are given powers on behalf of the state. The way they exercise these powers or make decisions can affect the rights and interests of others.
Examples are:
- stand-down, suspension, and exclusion provisions in the EducationAct1989
- the disciplining of employees, including dismissal
- refusal to enrol a student or decisions about the resources allocated to students with special needs
- the appointment and promotion of staff or not, as the case may be.
The courts and other quasi-judicial
offices such as the Ombudsman have an interest in reviewing decisions of Crown
entities, including schools, when an allegation is made that the decision was
unfair and adversely affected rights and interests.
Decision makers in schools must, therefore, ensure that their decision-making processes accord with the principles of natural justice.
Decision makers in schools must, therefore, ensure that their decision-making processes accord with the principles of natural justice.
It is now quite clear that boards of
trustees and principals are subject to the principles of natural justice in
disciplinary matters. Ignorance of or failure to comply with these principles
may result in a judicial review by the High Court of a school’s decision, with
the possibility that the decision is declared void. The consequences of this
may mean that a school has to re-enrol a student, restore property, or pay
damages. (Students may also make complaints to the Ombudsman.)
Every proceeding that may potentially affect a student’s rights is considered a judicial proceeding, and the rules of natural justice will apply to it. This would include:
Every proceeding that may potentially affect a student’s rights is considered a judicial proceeding, and the rules of natural justice will apply to it. This would include:
- depriving him or her of membership of a school community (suspension/expulsion)
- depriving him or her of property (confiscation – permanently or long term)
- imposition of large fines and bans on participating in social, sporting, and cultural activities.
Many of the principles of natural justice are now enshrined in statutory law, which schools are subject to. The most important of these is the Bill of Rights Act 1990. Section 27 of the Act states:
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations or interests protected or recognised by law.
(2) Every person whose rights,
obligations or interests protected or recognised by law have been affected by a
determination of any tribunal or other public authority has the right to apply
in accordance with law for judicial review of that determination.
The principles of natural justice
are, in effect, a set of rules that a decision maker must adhere to when making
a decision that will affect a person’s rights, obligations, or interests. There
are two principal rules of natural justice, both of which operate within
schools. They are:
- A person may not be a judge in his or her own case.
- A person’s defence must always be fairly heard.
The reason for this rule is
contained in the overworked but nonetheless true quotation: "Justice
should not only be done but should manifestly and undoubtedly be seen to be
done."
The courts have held that, if there is a real possibility or likelihood of bias, then the decision is in breach of natural justice and will not stand.
It would be my advice that any teacher, parent, or pupil directly involved in a disciplinary incident should not also be involved in the decision as to the action to be taken. This is particularly so when the punishment contemplated is serious – that is, if it affects the student’s rights, obligations, or interests.
The principal is entitled as a board member to be present at any hearing and to remain in the room while a decision is being reached. However, this course of action is not recommended. The principal and any other person with a direct interest in the outcome, for example a parent and student, should give evidence and express their views at the hearing, but should not be a decision maker themselves. In order to further reduce the likelihood of bias or prejudice, these people should leave the room when all evidence and submissions have been made.
The net effect of this action is that it removes the possibility of bias and ensures that justice will be seen to have been done. If people think that the decision was arrived at fairly, they will more likely accept the result and its consequences. In contrast, if they consider bias or prejudice played a part in the decision, they will not accept the outcome and will be more inclined to challenge it in the court.
The courts have held that, if there is a real possibility or likelihood of bias, then the decision is in breach of natural justice and will not stand.
It would be my advice that any teacher, parent, or pupil directly involved in a disciplinary incident should not also be involved in the decision as to the action to be taken. This is particularly so when the punishment contemplated is serious – that is, if it affects the student’s rights, obligations, or interests.
The principal is entitled as a board member to be present at any hearing and to remain in the room while a decision is being reached. However, this course of action is not recommended. The principal and any other person with a direct interest in the outcome, for example a parent and student, should give evidence and express their views at the hearing, but should not be a decision maker themselves. In order to further reduce the likelihood of bias or prejudice, these people should leave the room when all evidence and submissions have been made.
The net effect of this action is that it removes the possibility of bias and ensures that justice will be seen to have been done. If people think that the decision was arrived at fairly, they will more likely accept the result and its consequences. In contrast, if they consider bias or prejudice played a part in the decision, they will not accept the outcome and will be more inclined to challenge it in the court.
It is only proper that a student’s
defence is fairly heard, since the school’s decision will affect his or her
rights, obligations, and interests. In practice, it is difficult to determine
what constitutes a fair hearing. However, the following are important elements:
- Notice of the charge must be given to the student. The student is entitled to know what he or she is being accused of. It is also advisable to supply the student with the evidence you have against him or her, in order that he or she may prepare a proper defence. Evidence that is instrumental in determining the outcome cannot be withheld from the student or parent; it must be disclosed to them.
- Adequate time must be given to prepare a defence. A student must be given sufficient time to prepare a defence. Allowance should be made:
- a. for a reading of the charge, the supporting evidence, and any rights they may have
- b. to seek and receive expert advice
- c. to prepare (oral or written) submissions.
- An opportunity to present a defence must be given. A meeting should be called of all appropriate people to consider the evidence and make a decision. The student and parent should be informed of the date, time, and venue of the meeting well in advance.
- Having an open mind. This involves listening to all that is said by both parties. A decision maker cannot ignore evidence by following an inflexible policy or rule – that is, that breach of a rule will automatically be followed by a certain punishment. Discretion is given to boards so that it will be exercised by considering all the surrounding circumstances of each case, for example, the age of the student, family circumstances, school history, and degree of guilt. What weight is attached to these factors is a matter for the decision makers, but they must be considered in determining the outcome.
- Taking into account factors relevant to the incident and not considering irrelevant factors. Factors such as peer pressure, general character, and previous disciplinary problems may be relevant circumstances in a case. The student’s race and religion, and the behaviour of his or her siblings, would not normally be relevant factors.
- Reaching a decision that is reasonable. In essence, this means that a school must act in good faith and on lawful and relevant grounds of public interest. A court will intervene if it considers that a decision maker has made a decision that no other reasonable person in a similar position would have made.
An important aspect of natural
justice is that a decision maker must give reasons for their decision. This is
done for the following reasons:
- Reasons demonstrate transparency and accountability in decision making, which are desirable traits in Crown entities.
- Transparency and accountability encourage greater community involvement, which is the aim of our school system.
- Giving reasons helps the decision maker identify the relevant considerations and give due weight to the evidence.
- Reasons demonstrate to the parties that their arguments have been duly considered and understood.
- The reasoning can help shape future behaviour.
- If the decision is well reasoned, it is less likely to be appealed or, if it is, the appellate authority will be able to understand the decision.
The Education
Act 1989 gives boards and principals the discretion to manage schools as
they see fit (sections 75, 76) subject to other laws of the land. They must
also not exceed the power given to them (Act ultra varies).
Examples within schools where breaches have happened include:
Examples within schools where breaches have happened include:
- students being asked to leave school without reference to the Education Act 1989 (Kiwi Suspension)
- students being asked to sign contracts agreeing to voluntary withdrawal from school if in breach of contract conditions
- parents being threatened with legal action if they do not pay school fees (voluntary donation component)
- staff members being removed from a management position without consultation.
In addition to making decisions that
are authorised by the law, decision makers must exercise their decisions
reasonably and in good faith.
The Education Act 1989, sections
13–19 and the Stand-down Suspension Rules promulgated by the Ministry of
Education in 1999 to some extent codify natural justice principles, or what is
sometimes known as ‘procedural fairness’. It is very important for schools to
closely observe these statutory provisions and rules, for three reasons:
- They are designed to ensure that the ultimate decision about the student is fair, even if in all circumstances it is adverse to him or her.
- It reduces the risk to schools that the decision will be appealed on the grounds it was unfair and a breach of natural justice.
- An appeal to a decision can be costly not only financially, but also in terms of a school's reputation, lost time preparing and going to court, or detailing responses to the Ombudsman.
The following are examples where
appeals were made on the grounds that they breached natural justice in the
suspension process.
School rules and the setting of
boundaries or consequences before the event cannot dictate the outcome.
A school, for instance, cannot write in a policy that ‘consumption of alcohol or drugs will automatically lead to suspension’.
The operative word to be inserted should be ‘may’. This would show an open mind and a willingness to weigh all the mitigating and aggravating features, rather than an inevitable result regardless of the circumstances. (M & R v Palmerston North Boys High School (1990))
A school, for instance, cannot write in a policy that ‘consumption of alcohol or drugs will automatically lead to suspension’.
The operative word to be inserted should be ‘may’. This would show an open mind and a willingness to weigh all the mitigating and aggravating features, rather than an inevitable result regardless of the circumstances. (M & R v Palmerston North Boys High School (1990))
The Education Act requires that a
board or its duly authorised subcommittee considers all statutory options
available to it when considering what to do with a suspended student. These
options include:
- lifting the suspension and allowing the student’s return to school
- lifting the student’s suspension, with conditions
- extending the suspension
- excluding or expelling the student.
Some schools have considered only
options 1 and 4 because they perceive the setting of conditions as either too
inconvenient or problematic. (S v M and Board of Trustees Auckland Grammar
School (1998))
Principals in suspension matters
bring the case against the student and therefore act as a prosecutor.
It is not appropriate, therefore, for the principal to retire with the decision makers to determine the outcome for the student. It creates a conflict of interest and calls into question their impartiality.
It is not appropriate, therefore, for the principal to retire with the decision makers to determine the outcome for the student. It creates a conflict of interest and calls into question their impartiality.
Principals are required by the
Education Act to present a report to the board, parent(s), and student 48 hours
before the suspension meeting.
The report should contain all the evidence against the student,, allowing him or her at least 2 days to prepare an adequate defence or explanation for the allegations.
Principals sometimes introduce new evidence or even charges against the student at the suspension hearing. This is a breach of natural justice, since the student would not have an opportunity to consider a defence or to respond adequately.
The report should contain all the evidence against the student,, allowing him or her at least 2 days to prepare an adequate defence or explanation for the allegations.
Principals sometimes introduce new evidence or even charges against the student at the suspension hearing. This is a breach of natural justice, since the student would not have an opportunity to consider a defence or to respond adequately.
Boards are bound to act as good
employers (section 77(A), State Sector Act 1988).
They are also required to abide by collective agreements and the employment
provisions in the Education Act, as well as other legislation.
In general, if disciplinary action is contemplated, an employee must be advised of the following:
In general, if disciplinary action is contemplated, an employee must be advised of the following:
- the allegation against them and the evidence relied on for the allegation
- their right to representation
- their right to an opportunity and forum for defending and explaining themselves
- the possible consequences for them.
The Education Act regards the full
board as the employer, giving it various powers over employees, such as for
appointment and dismissal. However, it also provides for delegation of its
authority to individuals and subcommittees, which is a practical and useful
provision (section 66).
Many boards, however, do not formally move such a delegation at a board meeting, or minute it. This may mean that if the principal or subcommittee takes disciplinary action, they may be acting ultra viries (outside their legal authority).
An important principle of law is that a person whose rights and interests are affected by a decision has a right to know by what authority the decision maker makes this decision. In the case of a board of trustees, it is the Education Act or, in effect, Parliament. If a board wishes to delegate this authority, it must show by a resolution and minute that it turned its mind to the issue and completed the delegation lawfully.
Many boards, however, do not formally move such a delegation at a board meeting, or minute it. This may mean that if the principal or subcommittee takes disciplinary action, they may be acting ultra viries (outside their legal authority).
An important principle of law is that a person whose rights and interests are affected by a decision has a right to know by what authority the decision maker makes this decision. In the case of a board of trustees, it is the Education Act or, in effect, Parliament. If a board wishes to delegate this authority, it must show by a resolution and minute that it turned its mind to the issue and completed the delegation lawfully.
Allegations of serious misconduct or
incompetency usually require an investigation that results in a report being
produced. It is important that if the report’s conclusion is adverse to the
employee, the employer does not move automatically to dismissal. The employee
should be furnished with a copy of the report and asked to make submissions on
its findings and what, if any, disciplinary action should be taken.
This step is important as a matter
of natural justice, since the employee may put strong mitigating factors that
could influence an ‘open-minded’ employer as to the penalty.
The following questions should be at
the forefront of a decision maker's mind, in order to comply with the
principles of natural justice:
- By what power or authority do I make this decision?
- Could my decision affect the rights and interests of others?
- Am I being reasonable and acting in good faith?
- Would an objective outsider such as a judge or Ombudsman, looking at my decision in light of the facts, think I am being reasonable and acting in good faith?
- Have I given the person a full opportunity to present their case and have I listened to everything they have had to say with an open mind?
- Have I only examined relevant considerations and have I attached due weight to all the aggravating and mitigating features?
- Is the disciplinary action proposed proportional to the offence or circumstances, and have I considered all other options in achieving the objective of the decision
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