In brief - The application of procedural fairness is pivotal for all educational institutions, regardless of whether they are a government or non-government institutions
The rise of the activist parent and disgruntled student are increasingly causing educational institutions angst due to an upswing in the volume of complaints and a willingness to take legal action, particularly against disciplinary action and decisions to exclude students. A number of unique court cases show that complaints of lack of procedural fairness are on the rise and the requirement to "walk the tightrope" in order to get the balance right is fraught with complexity and continuing to evolve.
More students and parents want to have their say
The expectations on education providers in today's world are high. Although the primary focus is to provide students with an education, the factors contributing to an exceptional education are rich and varied. Educational institutions are expected to deliver opportunities, experiences and outcomes in the best interests of each student in order for them to achieve the highest standard they are capable of achieving.
There has been an increasing tendency for parents and students both in schools and tertiary institutions to voice concerns about how students are taught, what they are taught, how they are assessed and decisions taken on disciplinary matters. In turn, this has given rise to complaints and claims against educational institutions. In addressing those complaints and claims, educational institutions are increasingly facing allegations of breach of the principles of procedural fairness.
Procedural fairness a difficult tightrope to master
Difficulties for educational institutions can arise when decisions are made on behalf of students which may be perceived as being inappropriate or not in the best interests of the student. While there is certainly a role for parents and students to be involved in "having a say" on education, an educational institution must be able to meet its goal, that is educating students collectively. However, educational institutions must balance a range of considerations when making decisions and often procedural fairness can be a difficult tightrope to master.
The balancing act for educational institutions becomes the student's need to receive an education versus maintaining the health, safety and wellbeing of other students and staff at the institution and maintaining the effectiveness of the institution's education programs.
Expanding application of procedural fairness beyond judicial system
Procedural fairness, sometimes called "natural justice", is a fundamental requirement in the application of the decision-making process. In October 2010, the former Chief Justice of the Federal Court of Australia, his Honour Robert French, commented in a lecture titled "Procedural Fairness - Indispensable to Justice?" to the Law Students' Society of the University of Melbourne Law School:
Procedural fairness requires, in essence, that "justice must both be done and be seen to be done". (In the case of R v Sussex Justices: Ex parte McCarthy [1924] 1KB 256 at 259, Lord Hewart CJ emphasised the importance of procedural conduct in maintaining confidence.) It is the concern to avoid a practical injustice. (See Re Minister for Immigration and Multicultural Affairs: Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 per Gleeson CJ at 37).
Procedural fairness ensures fairness in a decision-making procedure that affects the rights, interests, status or legitimate expectations of a person or organisation. (See Aronson M, Dyer B and Govers M, Judicial Review of Administrate Action, (3rd ed, 2004) p. 370 and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596). Although the rules of procedural fairness have historically been associated with the judicial system, its implementation and use have expanded beyond the courts to a wide variety of settings. (See Kioa v West [1985] HCA 81; (1985) 159 CLR 550 and McInnes v Onslow Fane [1978] 3 ALL ER211 per Megarry V-C at 219).
Procedural fairness an enshrined right in government institutions
The obligation to afford procedural fairness to all students is far from certain, and there is a distinction to be drawn between government institutions, where procedural fairness is a right enshrined in legislation, and non-government institutions, where the position is less clear and often turns on the terms of the contract between educator and student or parent. (For example, in Ge v Taylors Institute of Advanced Studies [2003] VSC 354, Kellam J accepted that there was no clear and consistent authority in Australia regarding a student's entitlement to procedural fairness).
It is well established that procedural fairness is a basic right of all individuals dealing with government authorities and that government educational institutions follow these principles in all circumstances. (See CF (by Her Tutor JF) v State of New South Wales (Department of Education) [2003] NSWSC 572). Therefore, procedural fairness is undoubtedly afforded to students in government educational institutions.
Procedural fairness in non-government institutions based on contractual agreement
The position for non-government educational institutions is not as clear. Legislation in Victoria, New South Wales and the Northern Territory requires that, as a condition of registration, a non-government school is to have a policy for the discipline of students that is based on procedural fairness. (See section 4.3.1(6)(a) of the Education and Training Reform Act 2006 (Vic); section 47(h) Education Act 1990 (NSW) and section 61A(m) Education Act 1979 (NT)). However, in non-government institutions the power for a decision to be made arises from an agreement between the institution and the parent/student. Any decision made by a non-government institution under that contract, without due cause, may be an actionable breach of contract.
Non-government schools generally have greater freedom in their decision making powers and the processes employed to make such decisions. The general position is that, regardless of whether public funds are provided to a non-government institution, public law principles such as procedural fairness are not obligatory in non-government schools (See Seymour v Swift [1976] 10 ACTR 1), save for where legislation requires non-government schools to include procedural fairness in their policies. Unless legislation provides otherwise, the courts have held that "there is no rule or principle of law... from which it could reasonably be made out that the headmistress of a private school has to act in a quasi-judicial capacity and therefore has to apply the rules of natural justice". (See Seymour v Swift).
Where there is a requirement to afford procedural fairness to students, the application of procedural fairness needs to be considered on a case-by-case basis.
Three rules of procedural fairness: hearing, bias and no evidence
Procedural fairness gives rise to three rules:
- The hearing rule
- The bias rule
- The no evidence rule
For procedural fairness to be achieved, all elements must be met. That is, procedural fairness will not be found to have been provided if only some aspects of the principles are followed.
Hearing rule is about being heard and kept informed
The hearing rule provides that a person should be informed of the matters alleged against them and be afforded adequate opportunity to present their case before a decision affecting their rights or interests is made. (See Aronson M, Dyer B and Govers M, Judicial Review of Administrate Action, (3rd ed, 2004) p. 370). The hearing rule is all about "being heard" and the right to:
- Be informed of the allegations
- Be informed of the information which will be taken into account in reaching a decision
- Know the process by which the matter will be considered
- Be informed of the potential adverse findings and consequences
- Respond to the allegations - verbally or in writing
- Know how to seek a review of the decision made in response to the allegations
In ensuring the right to be heard, consideration should be given to any limitations on that person as to whether they require an interpreter or other support, including (in the case of a school student) whether it is necessary to have parental involvement.
In not allowing a person to "be heard", a breach of the hearing rule may occur, even if that person does not have anything to contribute that is relevant to the decision. However, if a decision is made, and the submission of that person who was given a hearing is not taken into consideration, no breach of the hearing rule would occur.
Bias rule requires decision maker to be of fair, unprejudiced mind
The bias rule addresses the manner in which a decision is made - that is, is the decision maker must be of a fair, unprejudiced mind. The bias rule is not concerned with the merits of the decision itself. (See Kioa v West at 662 per Brennan J). The right to an unbiased decision includes the right to:
- impartiality in an investigation and the decision-making process
- an absence of bias by a decision maker, whether actual or apparent. Actual bias may be where a decision maker has pre-judged the matter, or where a conflict of interest exists.
The bias rule encourages a neutral investigator and decision maker. It is preferable for different people to carry out these roles but that is not always possible or practicable in an educational setting. In order to be procedurally fair, a decision maker must act justly, reasonably and objectively.
No evidence rule requires proper investigation and consideration of all relevant submissions
The no evidence rule provides that a decision ought to be based on logical and probative evidence. This usually requires an educational institution to ensure that a proper investigation of the allegations has occurred and that all relevant submissions have been considered when making a decision.
Unique cases illustrate practical issues
Procedural fairness in educational institutions can arise in a number of contexts. It is not surprising that many of the cases that have come before the courts in Australia have been based on the question of whether procedural fairness ought to be afforded to a student in a non-government institution. As discussed earlier, it is clear that procedural fairness must, as a consequence of the enacting legislation, be afforded to students in government schools.
Some of the more unique cases which are illustrative of the practical issues faced by educational institutions in walking the procedural fairness tightrope are as follows.
Application of the hearing rule in Government schools
The matter of DM v State of New South Wales (Unreported, Supreme Court of New South Wales, Simpson J, 16 September 1997) saw DM being excluded from a government school after he assaulted a female student using two kitchen knives, one of which cut her uniform and her back, drawing blood.
DM alleged the decision to exclude him was beyond the power conferred and contrary to the rules of procedural fairness. The matter was reported to the head teacher who investigated the incident and produced a report, which included a statement from DM. The principal then took control of the investigation and suspended DM pending the final determination.
A meeting was held with DM and his father at which DM's father was obstructive and difficult. The principal considered the matter and on the basis of an absence of remorse from DM (and perhaps also DM's father), DM was excluded from the school.
An appeal to the Assistant Director General supported the school's decision. A report was also commissioned on whether DM had been provided with procedural fairness. None of the reports commissioned for the investigations were provided to DM.
DM brought proceedings against the State of New South Wales and challenged the decision on the basis that he was not provided with the details of what information would be taken into account when a decision was made, namely the investigation reports.
The court held that in making a decision to exclude DM, the school had a duty to afford DM procedural fairness. A person whose rights might be affected by an administrative decision must be given an opportunity to comment on, explain or refute damaging material used against them. DM was not aware of the material against him and therefore was not given adequate opportunity to deal with those matters which were adverse to him and material to the decision.
Simpson J noted that it was necessary to balance the various interests of DM, other students and the school. While disclosing the information to DM may have created difficulties in balancing competing interests (See Paul MacMahon, 'Case Note Procedural Fairness in Student Discipline: DM v State of New South Wales. Unreported Supreme Court of New South Wales, Simpson J., 16 September 1997', (1998) Volume 3 No 2 Australia & New Zealand Journal of Law and Education, p. 87), such disclosure is necessary for schools to ensure they adequately "walk the tightrope" of procedural fairness.
The court ordered that an appropriate departmental officer other than the Principal, reconsider the decision after having given the student notice of all material information and an opportunity to be heard, as expected with procedural fairness.
No obligation of procedural fairness at non-government institution
In some circumstances, the requirement of a student being afforded procedural fairness is doubtful and the case of Ge v Taylors Institute of Advanced Studies Limited [2003] VSC 354 is an example of where procedural fairness is to be accorded on a case-by-case basis.
Ge was a Chinese national, studying for his year 12 Victorian Certificate of Education at a private college. Ge was charged with blackmail, attempted robbery, assault and false imprisonment of a fellow student. In the circumstances of such charges having been laid, the college suspended Ge.
Ge considered his suspension was a breach of an implied term of his agreement with the college and alleged that he was not accorded procedural fairness. In this regard, Ge alleged that the college suspended him without giving him the opportunity to "show cause". Ge considered he was entitled to be heard and was not afforded such opportunity.
The college did not concede that in the circumstances it had any obligation to provide procedural fairness to Ge.
The court commented "...the question of whether a student is entitled to rely on the principles of natural justice or procedural fairness, to challenge a decision to suspend or expel him or her from a school, is not the subject of clear and consistent authority in Australia". (See Ge v Taylors Institute of Advanced Studies Limited at 41)
However, and in any event, the court found that despite Ge not being given the opportunity to be heard, there was ample material before the college regarding Ge's conduct which caused serious concern. In these circumstances, the court found it was doubtful whether the rules of procedural fairness would apply and acknowledged that it was necessary for the college to have acted, and they did so reasonably. This demonstrates that procedural fairness must be considered on a case-by-case basis, and no doubt the serious nature of the student's conduct was critical.
No reference to procedural fairness in contract between school and parent
In the matter of Bird v Campbelltown Anglican School Council [2007] NSWSC 1419, a student in Year 10 was expelled after bringing CDs into class with explicit language and/or adult themes, as well as displaying inappropriate gestures while singing in class.
Bird alleged the school was required to afford him procedural fairness and that the school had denied him of this opportunity. Bird further alleged that the decision was affected by actual or apprehended bias.
The court was required to determine, among other things, what procedural requirements bound the decision maker, and whether those requirements were complied with. It was noted that, at the relevant time, there was no legislative provision in New South Wales which provided for any obligation on the part of the school (being a non-government school) to comply with the principles of procedural fairness. Therefore, the court held that the position of the school in this case was distinguishable from government schools, which are subject to regulations concerning disciplinary procedures.
The court found that, in the absence of any general obligation, any requirement for procedural fairness must be found in the terms of the contract between school and parent. The Conditions of Enrolment signed by Bird's parents made no reference to procedural fairness. Therefore, the court determined that the circumstances of the case did not and could not give rise to any "legitimate expectation" that the rules of procedural fairness applied.
Bird's case failed as the evidence demonstrated that there were no particular procedural requirements in the contract that the school failed to adhere to and that procedural fairness was not required.
Court finds no grounds for bias
The court noted that, even if it had found that there was a requirement of procedural fairness, the content of that requirement varies according to the circumstances of the case. In this matter, there was a separate investigator (the deputy principal) from the decision maker (the principal). As a result, the court did not consider there was any substance to support the proposition that there was either actual or ostensible bias by the school in the decision it made.
Parents fail in their bid to sue solicitors for professional negligence
Bird's parents subsequently sued their solicitors, asserting in effect that the claim against the school was hopeless and therefore the solicitors were negligent in allowing the parents to bring the action and/or not advising the parents the case was hopeless. The case against the solicitor, Bird v Ford [2013] NSWSC 264, was heard at first instance by Justice Schmidt of the Supreme Court of New South Wales. While the case turned on issues other than procedural fairness (the parents' case against the solicitors was dismissed, and their appeal also failed, see Bird v Ford [2014] NSWCA 242), Justice Schmidt commented that:
Therefore, as a matter of common law, there is no requirement at present for non-government schools to apply procedural fairness. However, as the law in this area continues to develop, a prudent course would be to bear those principles in mind as far as practicable.
Regulatory intervention in NSW requires schools to comply with procedural fairness principle
In New South Wales, there is specific guidance from the body that regulates both government and non-government schools and teachers, to the effect that, in the context of disciplinary policies at least, the principles of procedural fairness should be followed.
In January 2014, the Board of Studies, Teaching, and Educational Standards NSW (BOSTES) was established. BOSTES is an amalgamation of the Board of Studies of NSW and the NSW Institution of Teachers, established pursuant to the Education Act 1990 (NSW). BOSTES publishes a Registered and Accredited Individual Non-Government Schools (NSW) Manual (manual) that, among others, sets out the policies a non-government school should have.
The manual notes, in part 3.7, that disciplinary policies should be based on principles of procedural fairness (referring to the right to a fair hearing and to an unbiased decision), and gives guidance as to what is contemplated in this regard.
BOSTES' role is primarily to monitor and ensure compliance with the Education Act. BOSTES does not have any power to impose sanctions on schools or to provide compensation to parents.
Arguably, notwithstanding BOSTES' requirement that schools' disciplinary policies incorporate principles of procedural fairness, failure of a non-government school in New South Wales to comply with principles of procedural fairness in, for example, disciplining or expelling a student, does not of itself give rise to a civil action on the part of the student or the parent.
However, should BOSTES find a lack of procedural fairness on the part of the school, one would expect the parent to rely on that finding in any civil proceeding against the school, and for a court to find that of at least persuasive effect.
VRQA requires schools' discipline policies to be based on procedural fairness
In Victoria, the Education and Training Reform Act 2006 (Vic) provides for three statutory bodies which regulate educational institutions: the Victorian Registration and Qualifications Authority (VRQA) (established under Part 4 of the Act), Victorian Institute of Teaching (established under Part 2.6 of the Act) and the Victorian Curriculum and Assessment Authority (established under Part 2.5 of the Act). Together they are the equivalent of BOSTES.
The VRQA oversees the registration and monitoring of government and non-government schools. The VRQA ensures that minimum standards are maintained by educational institutions and that dispute resolution schemes allow for effective student compliant handling systems. It ensures a school is not registered unless the school policies relating to discipline are based on procedural fairness.
In part 2 of this article, we look at procedural fairness in universities and other tertiary institutions and review of some of the more recent cases that have made it to the courts which give a flavour of the sorts of issues that tertiary institutions face. We also provide some practical advice for all educational institutions on how to adhere to the principals of procedural fairness regardless of obligation. We cover developing clear policies, documenting the complaint, training staff and top ten risk management tips.
| Amanda Ryding | Natalie Bodak |
| ajr@cbp.com.au | nyb@cbp.com.au |
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
