Para No
Introduction [1]
Is the appeal moot? [2]
Issues [3]
Intervener [5]
Facts [6]
Investigation of misconduct: natural justice requirements [20]
The Act [23]
The Rules [36]
The Guidelines [37]
Natural justice requirements when investigating an incident [40]
Suspension decision: requirement for parental involvement [56]
Failure to apply statutory criteria [64]
The Principal’s second decision to suspend J [65]
The Board’s decision to expel J [69]
Result [77]
Costs [78]

Introduction

[1] This case raises a number of issues relating to the suspension or expulsion of a student from a state school or an integrated school. It is an appeal against a decision of Keane J in the High Court: J Suing by his Litigation Guardian v Bovaird HC AK CIV 2007-404-002684 7 June 2007. Keane J quashed a decision of the first appellant, the Principal of Lynfield College, to suspend the respondent, J, a 16 year old student at the College, and the later decision of the second appellant, the Board of Trustees of the College, to expel him. As a result J was reinstated and remains a student at the College.

Is the appeal moot?

[2] While the Principal and the Board appeal against the High Court decision, they made it clear through their counsel that they did not intend the outcome of the appeal to affect J’s position: he would continue to be a student of the College regardless of the outcome. We have decided that this does not render the issues raised moot. The order for costs made in the High Court against the Principal and the Board remains extant and is in issue on appeal, providing grounds to entertain the appeal: Elders Pastoral Ltd v Bank of New Zealand [1990] 3 NZLR 129 (PC) at 134. In this case, because the question of costs will turn on our analysis of the Principal’s and Board’s duties, issues which are of general importance in the education sector, we decided to hear and determine the appeal. In fact, we have concluded that Keane J was right to quash the decisions to suspend and expel J, for reasons we will come to. However, we disagree with Keane J on two very important issues of process, which were the focus of much of the argument before us.

Issues

[3] The argument before us focused on two aspects of the process undertaken by a school when considering suspension and expulsion of a student. These were:

(a) The extent of the natural justice requirements applying at the stage at which a principal or teacher undertakes an investigation of misconduct which may subsequently found a decision to suspend the student;

(b) Whether a principal must consult the parents of the student before making a decision to suspend.
[4] Before considering those matters we will summarise the factual background. We will then deal with the two matters identified above, before giving our reasons for concluding that Keane J was right to quash the suspension and expulsion decisions in the present case. That aspect of the judgment highlights the need for principals (and boards) to address carefully the statutory grounds for suspending (and expelling) a student before deciding to suspend (or expel) a student.

Intervener

[5] The Secretary for Education sought leave to intervene, given the significance of the matters at issue in this appeal to all state schools. Leave was granted and we received written submissions from Mr Palmer on her behalf. He also made brief oral submissions.

Facts

[6] The facts were carefully set out by the High Court Judge, who recorded where disputes as to factual matters were unresolved (he declined to allow cross-examination). We are in no position to resolve those factual disputes. We present a summarised version of the Judge’s statement of the facts so as to provide the factual context for what transpired in relation to the second suspension and resulting expulsion.
[7] In 2007, J was a 16 year old student entering his fourth year at the College. On 23 March 2007 he was suspended for gross misconduct after he was found to have been in possession of paraphernalia for smoking marijuana while at school and in school uniform (the “first suspension”).
[8] On 27 March, J and his mother appeared before the Board. J accepted that his actions were wrong and expressed remorse. He had not previously been in any serious trouble. He explained that ‘so far this year I have lost focus on my study and gone a bit off track for many different reasons’. Although the Board did not probe this statement further, Justice Keane said he understood the reasons to have been that in the previous summer holidays three of J’s friends had unexpectedly died. J had also experienced bullying.
[9] The Board elected to reinstate J from 29 March 2007. The reinstatement was conditional on J complying fully with the school rules, accepting random drug testing, and completing a drug rehabilitation course. Failure to comply with those conditions would result in J being referred to the Board for further consideration.
[10] On 1 - 3 April 2007, J attended a three-day geography camp on Mt Tongariro with his classmates. J was part of a group of five students who misbehaved causing disruption to the trip. On 4 April after he arrived back to school J and the other students implicated were asked to provide written statements in response to the specific allegations of misbehaviour under a series of headings. This was J’s response:

Lack of co-operation: I co-operated with staff when asked, I didn’t argue when asked by staff to do things. I co-operated with my teacher. It took me a while to get focused but, did eventually co-operate after being asked to which I shouldn’t need to be asked but I think we should have been allowed to have a certain amount of fun.

Rudeness to staff: I treated ... (the junior teacher) with respect the entire trip. I was civil to her even when she was accusing me of things I didn’t do. I complained about certain aspects of the trip which I realise I over exaggerated.

Smoking: This was explained to ... (the junior teacher) on the night of the accusations. Other students were caught with cigarettes. (The junior teacher) came into our room and asked if we had been smoking. We said no. She asked if she could search our bags and we said yes. She did not search our bags because she couldn’t be bothered. She should have searched our bags so this would have never happened.

Inadequate school research work: I have completed the school work and ... (the junior teacher) has signed my research work saying I have completed it.

Disobeying instructions: I obeyed orders most of the (sic) except for one incident which the rules were misunderstood. Me ... (and two others) asked if we could go for a walk, (The Head of Department) said we could. We walked down to the local school which was 50 – 100 metres down the road.

Rudeness to peers: I told a student to go to sleep because they were bashing on the walls, stopping my cabin from sleeping. Students were running around at night knocking on doors keeping everyone awake. Most students were not asleep until 3am – 4am. I was asleep at 1 am.

Bringing Lynfield College into dispute:

Inappropriate behaviour on bus: I was sitting on the seat the wrong way round talking to the students behind me as were many other students.

[11] Later J added, under the heading ‘Smoking’, the words ‘I smoked in Taupo’. The circumstances leading to this further admission of smoking are also disputed. According to J, after he wrote the statement on 4 April, the teachers called him into the Principal’s office and challenged him about the truthfulness of his statement. This questioning purportedly lasted over 45 minutes before J made the admission in order to cease the questioning.
[12] According to the teachers, on 5 April, the day after J wrote his statement, J made an inappropriate comment about anal sex in his geography class in relation to a discussion about the disruptions on the field trip. As a result J was sent by the teacher to sit outside the Acting Principal’s office. Inside the office the teachers were reviewing the statements made by the implicated students against the teachers’ report and complaints of the other students. As J was already sitting outside, the teachers put to J contrasting versions of the events suggesting that his statement was incomplete. They say that the discussion lasted 15 minutes and that, at the end of the discussion, J voluntarily added the admission of smoking at Taupo.
[13] A two week term break followed, after which the Principal called J’s mother on 24 April informing her that J would have to appear before the Board and requested a meeting with her. When J and his mother met with the Principal and Associate Principal that afternoon, J’s mother expressed the view that J had done nothing wrong and had no reason to be contrite.
[14] It was only the following day, 25 April 2007, that J’s mother received a letter dated 24 April 2007 from the Principal stating the J was suspended and therefore should not be at school. This letter prompted J’s mother and the mother of another suspended student to meet with teachers from the College to complain about the circumstances leading to the misbehaviour on camp.
[15] The Principal prepared a report for the Board on 30 April 2007. The report stated that J had been suspended for ‘continual disobedience’. It explained that J had been disrespectful to staff, left the camp, smoked and made an inappropriate remark about anal sex upon return to school. The report added that J had not shown any willingness to take responsibility for his actions. The Principal did note that J was a ‘capable student who in previous years did not require special guidance’.
[16] On 3 May 2007 the Board met with J, his mother and his grandmother. All three members of J’s family were given an opportunity to speak. J acknowledged that he had been told his conduct had to be ‘exemplary’ when he was reinstated and confirmed he knew that the school rules applied when he was on camp. However J said he believed the seriousness of his misconduct had been overstated. He also denied smoking and acting in an uncooperative or rude manner while on the camp. J’s mother challenged the Board’s materials relating to J, which she had received 48 hours earlier, and added that J had not been involved in the more serious misbehaviour that occurred on the camp.
[17] Following the meeting with J, the Board met the families of the other students who had been suspended as a result of their behaviour on the camp. In relation to J, the Board noted that he had breached school rules just days after being reinstated. The breach of rules was serious and amounted to a failure to comply with the conditions of reinstatement. The Board was of the view that J was refusing to take responsibility for his actions. This led the Board to conclude that J’s behaviour had deteriorated since the first suspension meeting. The Board reinstated the other students conditionally. However the Board did not believe that imposing the same conditions on J would be an appropriate or productive outcome. A unanimous decision was made to expel J.
[18] The Principal told J’s mother of the decision to expel J later that evening and confirmed it in writing by a letter dated 4 May 2007. No reasons were provided for the expulsion. On 8 May 2007 J’s mother requested a copy of the Board’s reasons. She was provided with a copy of the minute of the Board. The minute was a standard template. The only additional written statements of relevance were that under the heading ‘details of the incident’ was written ‘breach of conditions’ and ‘continual disobedience’, and under the instruction ‘consider all options available and record why this option was chosen. Also note why other options were not exercised’, the Board recorded ‘no belief that he will meet conditions of reinstatement – expel’. No further reasoning was provided.
[19] We now turn to the two matters identified at [3] above.

Investigation of misconduct: natural justice requirements

[20] Keane J found that there were breaches of natural justice in relation to both the first suspension decision (which was not under challenge in the High Court) and the second suspension decision, and that these were of such gravity as to invalidate those decisions. Much of the argument focused on this aspect of the High Court decision. As the first suspension decision is not an issue in the present appeal, we will focus on the second.
[21] The High Court Judge found that, by asking J and the other students who were alleged to have been disruptive on the geography trip to make immediate admissions, the Principal and his delegates failed to meet the principles of natural justice. He said that the parents of the students should have been notified, and the students should have been interviewed in their presence: at [77]. In the absence of these steps, the decision to suspend lacked a “firm footing”: at [78].
[22] In order to evaluate this conclusion, it is necessary for us to give an overview of the legislative scheme, particularly the relevant provisions of the Education Act 1989 (the Act) and the Education (Stand-down, Suspension, Exclusion and Expulsion) Rules 1999 (the Rules), which are made under s 18AA of the Act.

The Act

[23] Section 3 of the Act provides an entitlement to free enrolment and free education in a state school for those aged between 5 and 18 years. That entitlement is an important backdrop to the consideration of the provisions in the Act which apply in this case.
[24] The provisions of the Act dealing with standing down, suspension, exclusion or expulsion of a student from a state school are set out in a sub-part of Part 2 of the Act (ss 13 – 19). Sections 13 – 18 were inserted by the Education Amendment Act 1998.
[25] The starting point is s 13, which sets out the purpose of these provisions. In fact, there are three purposes. These are to:

(a) provide a range of responses for cases of varying degrees of seriousness; and

(b) minimise the disruption to a student’s attendance at school and facilitate the return of the student to school when that is appropriate; and
(c) ensure that individual cases are dealt with in accordance with the principles of natural justice.
[26] Underlying these purposes is the need for both the process undertaken by a principal and/or board and the sanction imposed on the student (if any) to be tailored to the particular circumstances, rather than driven by hard and fast rules.
[27] The reasons for the amendments made in 1999 is discussed in the Report of the Education and Science Committee to the House on the Bill which became the Education Amendment Act 1999. That report refers to a concern that students were being suspended or expelled from schools too frequently, and sometimes for relatively minor misbehaviour. There was also concern about the unfairness of the procedures followed by schools in some cases. On the other hand, the Committee records that there has been a “sea change” relating to the demands parents make on schools. Parents want and demand that the learning of their children should not be compromised by the disturbing or disrupting of a class. This was seen as another reason for the increase in suspensions and expulsions.
[28] The purposes stated in s 13 underpin the more detailed requirements that follow in ss 14 – 18. In the present case, the relevant provisions are ss 14, 17 and 17B. (Sections 15 and 16 deal with sanctions for students under the age of 16 years). In the present case J was over 16 years, hence s 17 applied.
[29] Section 14(1) sets out the grounds on which a student may be stood down or suspended. It provides:

14 Principal may stand-down or suspend students

(1) The principal of a state school may stand-down or suspend a student if satisfied on reasonable grounds that—

(a) The student's gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school; or

(b) Because of the student's behaviour, it is likely that the student, or other students at the school, will be seriously harmed if the student is not stood-down or suspended.
[30] As noted earlier, the first suspension of J was on the grounds of “gross misconduct” (s 14(1)(a)): see [7] above. To justify a suspension, this conduct had to have been considered to be a harmful or dangerous example to other students. The second suspension was said to be on the grounds of continual disobedience (s 14(1)(a)): see [15] above. The same “harmful or dangerous example” qualifier applies to this ground too.
[31] If a student is suspended by the principal of a school, then the board is charged with deciding upon the appropriate follow-up action under s 17. Section 17 provides:

17 Board's powers when suspended student 16 or older

(1) If a student who is 16 or older has been suspended from a state school, the Board may—

(a) Lift the suspension at any time before it expires, either unconditionally or subject to any reasonable conditions it wants to make; or

(b) Extend the suspension conditionally for a reasonable period determined by the Board when extending the suspension, in which case subsection (2) applies; or

(2) If the Board extends a suspension conditionally, the Board must impose reasonable conditions aimed at facilitating the return of the student to school, and must take steps to facilitate the return of the student to school.

(3) If a student fails to comply with any condition imposed under this section in respect of the lifting or extension of his or her suspension, the principal may request the Board to reconsider the action it took under this section in that case and the Board may confirm or reverse its earlier decisions or may modify its earlier decisions by taking any action specified in any of paragraphs (a) to (c) of subsection (1).

(4) If the Board has not sooner lifted or extended it or expelled the student under subsection (1)(c), the suspension of a student who is 16 or older ceases to have effect—

(a) At the close of the 7th school day after the day of the suspension; or

(b) If the suspension occurs within 7 school days before the end of a term, at the close of the 10th calendar day after the day of the suspension.
[32] In the present case there was confusion as to whether the Board’s consideration of the second suspension was under s 17(1) (because J had been suspended by the Principal) or s 17(3) (because J had not complied with the conditions of his earlier reinstatement). We will come back to that aspect of the case later.
[33] Where a student is suspended, the principal is required to tell a parent of the student immediately after the student is suspended that the student has been suspended and the reasons of the decision: s 18(2). In addition, a parent has a right to attend (with a representative) at least one meeting of the board, to speak at that meeting and to have their views considered by the board before it decides which of the options available to it under s 17(1) it will choose: s 17B. Section 17B provides:

17B Who may attend Board meeting concerning suspensions

If a student has been suspended, the student, the student's parents, and their representatives are entitled to attend at least 1 meeting of the Board and speak at that meeting, and to have their views considered by the Board before it decides whether to lift or extend the suspension or exclude or expel the student (whether under section 15 or section 17).

[34] In the case of a stand down, a similar requirement to notify a parent applies: s 18(1).
[35] As noted earlier, s 18AA of the Act authorises the Secretary of Education to make rules. Section 18AA(1) relevantly provides:

18AA Secretary may make rules

(1) The Secretary may from time to time, by notice in the Gazette, make rules (which must not be inconsistent with this Act) regulating the practice and procedure to be followed by Boards, principals, students, parents of students, and other persons under sections 14 to 18, including (without limitation) rules—

(a) Setting out procedural requirements to be followed when a proposed stand-down, suspension, exclusion, or expulsion is to be considered or decided:

(b) Specifying who should be consulted about the circumstances of a stand-down, suspension, exclusion, or expulsion:

(c) Setting out the steps to be taken by the principal and Board, respectively, when a student has been stood-down, suspended, excluded, or expelled:

...

(g) Providing for such other matters as the Secretary considers desirable in the interests of natural justice.

The Rules

[36] The Rules were issued in 1999, in the exercise of the power given by s 18AA. Notable features of the Rules are:

(a) Rule 7 sets out a number of principles which are to guide participants in the ss 14 – 18 processes. These include the need for those involved to understand the process, for respectful treatment of other participants and for participants to recognise that the board has a responsibility to maintain a safe and effective learning environment at the school;

(b) Rule 9 requires a principal who has stood down or suspended a student to ensure that the student and a parent are, as soon as practicable, given information on stand-downs or suspensions provided by the Ministry. It is notable that this requirement applies after the stand-down or suspension has occurred, not beforehand;

(c) Under Rule 11, a principal may convene a stand-down meeting after a student has been stood down, and must do so if a student or parent asks for such a meeting. Again it is notable that this occurs after the stand-down has occurred. If, as a consequence of the stand-down meeting, the principal is satisfied that reasonable grounds for the stand-down did not exist then he or she must ensure that the stand-down is withdrawn: r 12;

(d) Rule 15 sets out in some detail the requirements for information to be given to a student’s parents about a board meeting to consider the consequences of a suspension. This information must be provided at least 48 hours before the meeting, unless a shorter time is agreed with the parents involved;
(e) Similar requirements for the giving of information apply where the principal asks the board to reconsider the position of a student who has been readmitted to the school subject to conditions under s 17(3): r 20.

The Guidelines

[37] The absence of any provision requiring a parent to be involved with the suspension process before a student has been suspended is also reflected in the version of the Guidelines for Principals and Boards of Trustees on Stand-downs, Suspensions, Exclusions and Expulsions published by the Ministry to assist principals and boards of trustees (the Guidelines) which was available at the time of the decision to suspend and expel J. The last version of this document was published in June 2004. The Guidelines do, however, emphasise the significance of a stand-down or suspension and suggest that counselling and communication with parents under s 77 of the Act will provide the principal with useful information to take into account. The Guidelines continue:

The expectation is that prior counselling and guidance has been given to the student and that prior communication with the parent has taken place. Behaviour management strategy should also have been implemented. It is also expected that prior counselling, guidance and communication have been documented.

[38] The flow chart to be followed by a principal considering stand-down or suspension reflects this approach. The first item on the checklist deals with the provision of guidance and counselling to the student and keeping parents informed of this. But once a matter has reached a stage that stand-down or suspension is being considered, the requirement to engage with parents appears after the decision to stand-down or suspend has occurred, not before.
[39] The effect of the High Court decision was to impose additional obligations on principals and boards when investigating a possible suspension to involve a parent. As a result, after the High Court decision was released the Secretary of Education issued a supplement to the Guidelines providing guidance on how to discharge these additional obligations.

Natural justice requirements when investigating an incident

[40] Keane J’s conclusion that the Principal and his delegates had breached the rules of natural justice was built on the Judge’s interpretation of the purpose set out in s 13(c) of the Act. Having referred to that section, and to the principles set out in r 7 of the Rules, the Judge said (at [67]):

The need for the process to be fair, however, is basic. It applies most acutely where a Principal, or his or her delegate, faced with an issue of serious misbehaviour that could result in a child being stood down or suspended, needs first to verify whether the student has misbehaved and in what degree. If the student is caught red handed or freely admits the misbehaviour unprompted, that is one thing. The Principal may found a decision on one or the other subject first to consulting with the parents. If the child does not admit the misbehaviour freely, or positively denies it, and there is no compelling eyewitness, the Principal should not then seek an admission. The parents should be consulted. Any admission should be sought in their presence or that of a nominee.

[41] Keane J drew support for this conclusion by reference to s 221 of the Children, Young Persons, and their Families Act 1989 (CYF Act). That section renders inadmissible as evidence at a trial of a child or young person any oral or written statement made by the child or young person unless they have been told of their right to receive advice and been given the opportunity to act on it, and the statement has been made in the presence of one or more of a lawyer, a person nominated by the child or, in the event that no nomination is made, another suitable adult. He suggested that the serious consequences of a possible suspension made this analogy appropriate. The Judge also relied on a decision of the Ombudsman (case reference A9765) in which the Ombudsman had expressed the view that, in a similar situation, the decision of a principal to interview a student in the absence of the student’s parents was contrary to the principles of natural justice. However, the Ombudsman did not consider that the unfairness that resulted was sufficient to invalidate the suspension in that case.
[42] On behalf of the Principal and the Board, Mr Harrison argued that Keane J had unnecessarily extended the principles of natural justice. He pointed to the lack of any reference to a requirement of this nature in the Act or the Rules and the indications to the contrary, in that the Act and the Rules require engagement with parents after the stand-down or suspension has occurred. He said there were practical reasons against this additional requirement being imposed on principals, and argued that the practical implications in the circumstances of this case would have been unduly onerous. He pointed to the fact that the geography trip had involved 37 students, and a number of different students were thought to have engaged in misbehaviour of varying levels of seriousness.
[43] Mr Harrison pointed to the difficulty of assessing at an early stage of an investigation whether the outcome may be the instigating of a process that could lead to suspension or stand-down. He said that staff were placed in the unenviable position of having to second guess what may come out of the process at an early stage, and that that would have been very difficult in the circumstances of this case. He argued that the High Court approach did not give sufficient weight to “the realities of the school environment” and the need for urgency in undertaking investigations of this kind where, for example, the safety of other students is at stake.
[44] Mr Harrison said the two exceptions permitted by the Judge (when a student is caught red-handed or admits wrong-doing without prompting) were not as clean cut as they seemed. In this case, J denied offending in the face of evidence from a number of other students. And any unprompted admission could be made only in the course of some dialogue with a teacher – at what point must that dialogue stop to allow parental involvement?
[45] These matters were all contested by Mr Judd on behalf of J, and were also the subject of the intervention of the Secretary for Education. Mr Judd argued that the High Court decision did no more than decide on the particular facts what the Principal and the Board ought to have done in the present case. But the fact that the Secretary has felt it necessary to issue a supplement to the Guidelines to provide guidance to principals on the requirements resulting from the High Court decision gives the lie to that submission. The High Court decision has added further requirements to those already in the Act and the Rules.
[46] In her affidavit, the Secretary for Education, Ms Sewell, explained the absence of any requirement in the Rules relating to natural justice at the stage of investigating misbehaviour, or decision-making prior to suspending or requesting a reconsideration. She said this absence was “because natural justice is a concept that is dependent on the facts that present themselves at any time. Attempting to regulate too closely what constitutes natural justice risks developing a set of rules that do not admit exceptions for individual cases”. We agree with that sentiment, but in our view the High Court decision has introduced rigid requirements to a statutory regime which appears to have been designed to allow flexibility.
[47] The Secretary said that the Ministry had been asked to support an appeal in the present case but she had considered that advising schools on how to implement the High Court decision was more appropriate. She expressed the view that the procedural requirements made by the High Court decision were workable. However, she noted that the approach taken in the Guidelines did not preclude students giving their view of the facts in writing or otherwise, and expressed the view that the High Court decision did not mean that every investigation of misbehaviour must involve a parent or alternative contact. She said that such a requirement would be unworkable.
[48] As Lord Steyn once famously observed, “In law, context is everything”: R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28] (HL). The context for the investigation and decision-making for a suspension is that those undertaking the exercise are teachers who are no doubt expert in teaching, but are not lawyers or police officers. Decisions will sometimes be required to be made with urgency, to prevent ongoing disruption or to protect the safety of other students. The level of seriousness of the alleged misconduct will vary from case to case, as the statement of purpose in s 13(a) recognises. And the principal and other teachers have other responsibilities. The expectations of parents of students who do not misbehave are that teachers will be engaged in the education of those students (see [27] above). In this case, the student complement of the College is, we were told, over 1800.
[49] While these complicating factors mean that a principal sometimes has to make a prompt decision based on incomplete information, that information must always be sufficiently reliable to constitute “reasonable grounds” under s 14(1). The requirement of the board to review the decision within 7 days (s 17) and to notify the parents (s 17B) provide a check to ensure that a suspension was based on reasonable grounds. The special competence of a principal and the existence of these internal protections means that a court will rarely intervene in a principal’s decision to stand down or suspend a student under s 14(1).
[50] The Act specifically provides for a parent’s involvement after the suspension has occurred (s 17B) and the Rules have a similar requirement where a student is stood down: r 11. A parent is also entitled to information relating a stand-down or suspension once a student has been stood-down or suspended: r 9. These entitlements imply that neither Parliament nor the Secretary intended that parents would necessarily be involved beforehand – it is hard to see what purpose a post-suspension (or post stand-down) meeting would achieve if the issues had been thoroughly dealt with between the principal and the parent before the suspension occurred. Similarly, there would be little point in providing information about stand-downs and suspension as r 9 requires if parents have already been involved in the process.
[51] Mr Harrison suggested a number of other difficulties for schools if the High Court decision remains. We comment as follows:

(a) Allegations may prove unfounded after questioning a student, in which case the parents will have been involved unnecessarily: We agree there is some force to this. In the absence of unsolicited admissions of misconduct, some investigation and questioning of students may well be necessary before the seriousness of the misconduct can be assessed;

(b) Questioning a student will allow teachers to assess the seriousness of misconduct, to determine whether a suspension is even a possibility. It may be that the questioning will reveal that the behaviour is not as serious as suspected, and that therefore stand-down or suspension do not need to be considered as disciplinary measures: We agree that requiring parental involvement may lead to parents becoming involved unnecessarily when the conduct is ultimately found to be relatively trivial;
(c) If parents are unwilling or unavailable to attend, this may unduly hold up the investigation process: This is a matter noted by the Secretary of Education, and that requirement has been dealt with in the Guidelines by provision for an alternative person to participate in interviews if required. We agree that there needs to be sufficient leeway to allow matters to be dealt with swiftly where required. Imposing a requirement of this kind may prevent such swift action.
[52] The common thread among these difficulties is that the school environment requires an individualised response to each incident. Prescribing a set of rigid rules of universal application will not ensure that the principles of natural justice are always fulfilled. It is preferable to examine each case on its facts: Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [90]. Such an approach is consistent with the statutory scheme, which emphasises the importance of having a range of responses (s 13(a)) and ensuring that “individual cases” are dealt with in accordance with the principles of natural justice: s 13(c).
[53] All of this brings to mind the comment made by Lord Bingham of Cornhill in R(SB) v Governors of Denbigh High School [2007] 1 AC 100 (HL) in which he criticised the prescriptive approach suggested by the Court of Appeal in that case and added:

[31] I consider that the Court of Appeal’s approach would introduce “a new formalism” and be “a recipe for judicialisation on an unprecedented scale”. The Court of Appeal’s decision-making prescription would be admirable guidance to a lower court or a legal tribunal, but cannot be required of a head teacher and governors, even with a solicitor to help them. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger’s task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.

[54] We therefore respectfully disagree with the conclusion reached by Keane J on this aspect of the case. In our view, he was wrong to require parental involvement in the investigation and questioning of students where misconduct that potentially could lead to suspension is alleged. Imposing such a requirement is not necessary and is at odds with the legislative policy in both the Act and the Rules. We do not consider that Keane J was right to draw an analogy between the process preceding the second suspension decision and that dealt with by s 221 of the CYF Act. Section 221 deals with a criminal process where a young person is arrested or detained by the police or similar enforcement agency or is about to be charged with an offence. The seriousness of the situation is obvious. Even so, s 221 is qualified to some extent by ss 223 and 224. In contrast, a principal’s initial inquiry into whether a student should be suspended can, at worst, lead to a suspension decision that will trigger a process of review by the school’s board within seven days. The student’s parent or guardian will be able to support the student in that review process.
[55] What is required is the fair treatment of students. Overbearing behaviour by a teacher undertaking an investigation would compromise the fairness of the process. Parental involvement may be desirable where that can be provided for without compromising the effectiveness and promptness of the investigation. Such involvement may reduce the risk of later challenge, or the likelihood of such a challenge succeeding. But we do not consider that a failure to involve parents in an otherwise fair process breaches the principles of natural justice or compromises the basis of a decision to suspend a student.

Suspension decision: requirement for parental involvement

[56] As already stated, neither the Act nor the Rules contain a requirement that a principal consult with parents before making a decision to stand-down or suspend a student. Rather the requirement to engage with parents arises after the stand-down or suspension decision is made. Keane J regarded this as an “oddity”. He found that the failure of the Principal to contact J’s mother to allow her an opportunity to be heard before a decision to suspend J or to request the Board to reconsider its earlier decision to reinstate J under s 17(3) amounted to a breach of natural justice: at [79].
[57] The Principal and the Board argued that this imposes a requirement that is not required by, or even consistent with, the Act and the Rules which appear to be a comprehensive statement of the requirements applying to decisions of this kind. Mr Harrison argued on their behalf that, if it was a requirement to consult with parents before suspending a student, the same requirement must apply to a stand-down decision because the Act does not differentiate between them in a procedural sense. He said that this not only added a requirement to those of the Act, but was also inconsistent with the principles in r 7 of the Rules, which recognised the need for certainty in the process (and for all parties to understand the process, which is the process in the Act and the Rules, not one augmented by the Courts) and also recognised the responsibility a board had in relation to other students.
[58] Mr Harrison pointed to two significant decisions under the legislation prior to the 1998 Amendment for support. These were M and R v S and Board of Trustees of Palmerston North Boys High School [2003] NZAR 705 (HC) (decided in 1990) and D v N and Board of Trustees of Auckland Grammar School [2003] NZAR 726 (HC) (decided in 1998). Those two decisions are leading cases on the legal requirements to be observed in the case of suspensions and expulsions. They appear to have influenced the 1998 amendment. In both cases, decisions to suspend were made without reference to parents, and although those decisions were found to be invalid on other bases, the lack of parental involvement did not meet with any adverse comment.
[59] Mr Judd argued that a principal who was required to make a decision whether to stand-down or suspend a student needed to inform himself or herself of the individual circumstances of a student, and this could not be done without a discussion with the student and a parent. He argued that the Judge had done no more than make a finding of the natural justice requirements applying on the facts of the case.
[60] We accept that the authorities support the proposition that before a decision to suspend is made, the principal should inform himself or herself as to the circumstances of the student and the context of the misconduct. Both the Palmerston North Boys High School case and Auckland Grammar School case support that proposition. But it does not seem to us to be axiomatic that this involves discussion with parents. A school may well have sufficient information from its own resources without the need to consult a parent prior to a stand-down or suspension decision, especially where the student concerned has only recently been subject to similar disciplinary processes, as was the case with J.
[61] We agree with Mr Harrison that the Act and the Rules do not require parental involvement before a suspension occurs, and indicate that the contrary is the case. Under the Act, a suspension triggers a requirement to place the whole matter before the board, and this must happen quickly (the suspension otherwise lapses after seven days: s 17(4)). So the suspension decision has an interim quality. Of course, the board process does provide for parental participation.
[62] We do not accept Mr Judd’s submission that the Judge was not prescribing requirements for the future, but limiting himself to the facts of the case. Again, we note that the fact that the Judge’s decision led to the need for a supplement to the Guidelines indicates the contrary.
[63] We therefore differ from the High Court Judge on this issue too. We conclude that there is no legal requirement to consult with parents before a stand-down or suspension decision is made. It may be that in some circumstances where the school has limited information about a student, consultation with a parent will be necessary for a principal to inform himself or herself about the student. In other cases it may be good practice to involve a parent and, indeed, the Guidelines contemplate that there will have been some previous involvement with parents if there is a continuing situation of misconduct or disobedience. But we do not see this as a black letter requirement in all cases, and we do not believe that the failure to consult with the parent would, without move, invalidate a decision to suspend. The obligation of a principal is to act fairly. What is required to meet that obligation will depend on the facts of the particular case. But there is no rule of law that a principal must involve parents prior to making a decision to suspend in every case.

Failure to apply statutory criteria

[64] The High Court Judge’s decision was based not only on his findings requiring parental involvement, with which we disagree, but also on what he saw as a failure by the Principal and the Board to engage directly with the statutory criteria for suspending and expelling a student. Because our views on this aspect of the case correspond closely with those of the Judge, we will set out our conclusions briefly.

The Principal’s second decision to suspend J

[65] In order for a student to be suspended, a principal must be satisfied on reasonable grounds that the student has been engaged in gross misconduct or continual disobedience, and that, in either case, this is a harmful or dangerous example to other students at the school: s 14(1)(a) (it is common ground that s 14(1)(b) did not apply). The Principal’s letter of 24 April 2007 notifying J’s mother of J’s second suspension provided the following reasons for the suspension:

...[J] has been suspended from school under Section 14(1)(a) of the Education Act 1989 on the grounds that “the student’s gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school.”

The reason for this suspension is that ... [J] has broken the conditions of his reinstatement following his previous suspension by failing to follow the Lynfield College Code of Conduct on school camp’.

[66] Although the letter states that J has been suspended, it does not identify whether the basis of the suspension was gross misconduct or continual disobedience, and does not address the “harmful or dangerous example” criterion (see [30] above).
[67] In fact, the real concern appears to be the fact that J breached the conditions on which the Board had reinstated him after his first suspension, because he had broken school rules while on the geography camp. Breach of conditions of reinstatement is not, of itself, a basis for a fresh suspension: rather it provides a basis for the student to be referred back to the Board for reconsideration of its earlier decision to reinstate: s 17(3). It would have been open to the Principal to refer J back to the Board on this basis, but that is not was he was purporting to do.
[68] The result is that although J was treated as if he had been suspended for a second time, there was no valid second suspension as no grounds were specified under s 14(1). We stress that this finding of invalidity is borne out of the failure to identify whether the second suspension was a result of gross misconduct or continual disobedience. We make no comment as to whether the conduct complained of met the criteria set out in s 14(1).

The Board’s decision to expel J

[69] An invalid suspension decision by a principal can be cured by a valid reconsideration by the board: Auckland Grammar School at 739. However, in this case, the same difficulties surrounding the Principal’s second decision to suspend arise in relation to the Board decision. As already noted, there appears to have been confusion as to whether the Board was dealing with a referral back under s 17(3) or consideration of a suspension under s 17(1). In fact, because the Principal had suspended J, it was clearly the latter, but the documentation provides some basis for concluding that the Board thought it was dealing with a s 17(3) matter. The Board’s record, noted at [18] above, indicates this, which means the reason for expelling J was different from the ground on which he was suspended.
[70] Section 17 does not provide for the position where both s 17(1) and s 17(3) are in play. In light of that, the prudent course is to choose one or the other, thereby avoiding the confusion which arose in this case. Our impression is that the present case would have been more effectively addressed if the Principal had simply activated s 17(3) and referred J back to the Board for reconsideration of its earlier decision to reinstate J, rather than suspending him. This would also have avoided the Board having to ensure that the grounds under s 14(1) were satisfied for the second suspension as it would only have to reconsider its decision in relation to the first suspension.
[71] In addition, the process adopted by the Board was unsatisfactory. In particular, the Board questioned another student, M, about the allegation that J had smoked at Taupo while on the geography trip after the Board’s meeting with J and his mother had concluded, and therefore without providing an opportunity for J to respond. The Board then relied on what M had said, though M denies that he said what the Board has recorded him as saying.
[72] We also consider that there is force in the Judge’s concern that neither the Principal nor the Board engaged with the fact that J’s behaviour seemed to be quite out of character and that a solution other than suspension or expulsion may have been appropriate. An exploration of the reasons behind the sudden deterioration in J’s behaviour may have been beneficial when addressing the appropriate course of action to take, particularly in the context of the first suspension.
[73] Our concerns should not be interpreted as an indication that Court-style processes are required in every board hearing to consider what should be done about a student who has been suspended. The requirement is to conduct a fair process, allowing the student and/or his or her parent to put the student’s side of the story to the board. In most cases that will be able to be done without undue formality. The Act requires that the process be undertaken promptly (within a seven day timeframe). But the board must be careful to inform itself of the statutory test it is applying and to address the requirements of that test. For example, a finding of “continual disobedience” will not trigger the possibility of suspension and expulsion unless there is also a finding that the continual disobedience is “a harmful or dangerous example to other students”: s 14(1)(a).
[74] The Guidelines provide templates for principals and boards to use to record decisions made under ss 14 and 17. Keane J charitably described the Board’s record as “succinct”. In fact it was too brief to give any indication that the Board had engaged with its statutory task and applied the relevant criteria. It is not necessary for there to be extensive records kept, but there must be a sufficient record to demonstrate that the board members have addressed their minds to the criteria they have to apply.
[75] In our view the evidence before the High Court Judge provided a proper basis for him to conclude that the Principal had not satisfied himself as to the statutory grounds existing for a suspension, and the invalidity of the suspension then removed the statutory basis for the subsequent expulsion. In any event, the Board also appears to have failed to engage with the statutory criteria when determining to expel J.
[76] We conclude, therefore, that the decision to suspend J for a second time, and the consequent decision to expel J, were invalid. We uphold the High Court Judge’s decision to quash those decisions.

Result

[77] Although we have differed from the Judge on some important aspects of his decision, we agree with the result reached in the High Court and therefore dismiss the appeal.

Costs

[78] Mr Judd sought costs on behalf of J, regardless of the outcome of the appeal. He pointed out that, given the College’s concession that it would allow J to remain as a student at the College regardless of the outcome, the appeal was essentially moot from J’s point of view. As it turns out, J has had a considerable measure of success, in that he has succeeded in upholding the result of the High Court decision. In these circumstances we believe it is appropriate to award costs to J on the normal basis for a half day hearing. We therefore award costs of $3,000 plus usual disbursements to J. We leave it to the appellants to determine the apportionment of that payment between them.

Solicitors:
HarrisonStone, Auckland for Appellants
Ladbrooks, Auckland for Respondent
Crown Law Office, Wellington for Secretary for Education, Intervener

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