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 is part of our cultural heritage. It is deeply rooted in our law. It lies at the heart of the judicial function and conditions the exercise of a large array of administrative powers affecting the rights, duties, privileges and immunities of individuals and organisations.

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:

1. The hearing rule

2. The bias rule

3. 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 be afforded to students in government schools as a consequence of the enacting legislation.

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:

It is not in issue that at that time, there was no Australian authority which established that private schools are obliged to give a student procedural fairness, before a decision to expel is made. In 1976 the view had been taken in Seymour v Swift (1976) 10 ACTR 1 that the headmistress of a private school did not have to act in a quasi judicial capacity and so did not have to apply the rules of natural justice.

Since then other cases where complaints were made as to a failure to afford a student procedural fairness have been resolved at an interlocutory stage, on the basis of undertakings. There have also been English authorities which suggested that the rules of procedural fairness could be a source of rights against such a school, but there was no Australian authority deciding the point either way. There were Australian authorities where an obligation to afford procedural fairness had been found in respect of other private bodies, where, for example a person's livelihood might depend on membership of a voluntary association. Courts have intervened where a decision to expel was made without good faith or dishonestly or where processes required by the rules were not followed (see for example Carter v NSW Netball Association).(See Bird v Ford [2013] NSWSC 264 at 154-155)

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 principles

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.

Procedural fairness in universities and other tertiary institutions

Universities and other tertiary institutions are usually established pursuant to an Act of Parliament, and also have either subsidiary legislation or internal codes that require them to comply with the principles of procedural fairness.

For overseas students enrolled in tertiary institutions, the National Code of Practice 2007, enacted under the Educational Services for Overseas Students Act 2000 (Cth) provides specifically for the application of principles of procedural fairness in treatment of overseas students. Standard 8 in the National Code provides procedures for handling complaints and appeals which, as well as setting out key requirements that accord with the principles of procedural fairness, specifically records that:

While Standard 8 requires the provider to have arrangements in place for complaints or appeals, it does not prescribe the types of appeals process. An institution may use different processes for different types of complaints. When considering which processes are suitable, the provider should bear in mind the appropriateness of the process for the particular kind of complaint, as well as accessibility, timeliness, cost and procedural fairness.

Tertiary institutions face more complaints and more litigation than schools

For whatever reason, universities and other tertiary institutions tend to face a higher level of complaints of lack of procedural fairness than schools, particularly around higher studies students, access or otherwise to higher studies such as PhD courses, and alleged discriminatory treatment. They also tend to be more litigious.

A review of some of the more recent cases that have made it to the courts give a flavour of the sorts of issues that tertiary institutions face.

Exclusion of student on grounds of disruption found invalid

In the case of Durney v Victoria University [2014] VSC 161, Mr Durney was a law student who had made, over the course of four years, a series of complaints regarding noise in the law library, while at the same time creating disturbances himself, for example shouting, suicide threats and attempts to kill himself.

It culminated in the decision of the Dean of the Law Facility to exclude Mr Durney from the university, while affording him the facilities to sit his exams elsewhere. The decision to exclude Mr Durney was based, in large part, on two incidents that occurred in October 2012.

In the first incident, Mr Durney caused a disturbance outside the law school, shouting and placing a bag on his head, and in the second he shouted outside the law library, placed a bag on his head and a noose around his neck. Mr Durney was not aware, prior to the making of that decision, that the university would rely on the two October incidents. The university also relied on other internal material which was not provided to Mr Durney.

Student not given opportunity to deal with relevant matters adverse to his interests

This is an example of a breach of the "hearing rule". The court held that the individual who is the subject of a complaint must be given the opportunity to deal with the relevant matters adverse to his interests, being "adverse information that is credible, relevant and significant to the decision made", subject always to issues of confidentiality regarding that information. The phrase "credible, relevant and significant" refers to information that cannot be dismissed from further consideration by the decision maker.

The court held that Mr Durney should have been provided with information in relation to the two October 2012 incidents, the further documents held by the university, and the inconsistencies in his behaviour, and given the opportunity to respond. However, he was only required to be given the material critical to the decision.

Decision makers must follow a two-step process

As we discuss further below, this means that decision makers must follow a two-step process:

  • what is the "credible, relevant and significant" information that is a critical part of the decision; and
  • before that decision is made final, has that information been given to the respondent?

This also raises the issue of bias. If that information is not provided to the respondent, can the decision maker really assert that they would simply shut that information out of their mind and not rely upon it?

The university also argued against the court providing the relief sought by Mr Durney (which was to set aside the decision of the university) on the grounds of the futility of that relief, in that the university would make the same decision in any event (i.e. if it were to decide again).

The court held that, while the futility of the relief sought can be a grounds for refusing relief, here one could not say that the decision would be the same in any event. Reasons relied upon by the court in this regard included the fact that Mr Durney was a litigant in person and he may have sought legal advice, and further he may have put on medical evidence regarding his condition.

The court held that there was a denial of procedural fairness as the decision to exclude Mr Durney was based on a number of documents and the two October incidents, none of which were ever put to Mr Durney, and he therefore had no opportunity to respond to them.

Given how important the October incidents were, featuring prominently in the exclusion decision, and clearly given weight by the university when it made the exclusion decision, this was a denial of the requirements of procedural fairness. The court commented:

...The University treated the exclusion decision as if it were an administrative decision, where all relevant reports and evidence had to be comprehensively collected and placed before the Vice-Chancellor rather than as a decision affecting the rights of a person where it needed to ensure that the requirements of procedural fairness and natural justice were carefully observed. (Durney v Victoria University at 34)

The court declared that the exclusion decision was invalid and of no effect. Costs orders were made against the university.

As a postscript to this case, in the period between deciding to exclude Mr Durney and the court hearing, the university changed its governance legislation to allow it to refuse to enrol, or to suspend or exclude students, on grounds including emotional disturbance or health risks to themselves or others.

Lack of a fair hearing, bias on the part of a decision maker

Mr X was a medical student at the University of Western Sydney. Mr X and a female student attended a party during which there was an incident between them of a sexual nature, and subsequently a Facebook exchange which may have suggested that the incident was consensual. However, the female student then met with the Dean of Medicine and lodged a complaint of non-consensual sexual contact and subsequently went to the police.

Nine days following that meeting, Mr X was called into the Dean of Medicine, and read a letter informing him that he had been suspended from the faculty. Mr X brought court proceedings on an urgent basis, which was the decision heard in August 2013 (X v University of Western Sydney (No 3) [2013] NSWSC 1329).

In the first case, the Supreme Court held that the university's decision was a breach of procedural fairness and was not valid and of no effect for reasons including:

  • Mr X was not told of the facts relied upon by the university in making its decision (ie, the credible, relevant and significant evidence)
  • He was not given the opportunity to respond, including regarding the impact of suspending him; and
  • Had he been afforded the opportunity, he may have identified alternatives to suspension

Mr X reinstated as student but suspended again following review of the matter

Therefore, Mr X was reinstated as a student in the Faculty of Medicine. In October 2013, an Interim Pro Vice Chancellor (decision maker) was appointed to review the matter, the Vice Chancellor having recused himself on the grounds of apprehension of bias, following concerns raised in this regard by Mr X.

The decision maker reviewed the materials including affidavits filed in the first proceedings commenced by Mr X and met twice with Mr X and his lawyers. He then determined to suspend Mr X. Mr X sought judicial review of that decision.

The relevant events leading up to the decision were as follows:

  • Critical to the decision maker's thought processes was whether there was a real adverse risk to the complainant's mental well being if Mr X were to remain on campus.
  • Arrangements were made to try and segregate Mr X and the complainant.
  • The decision maker met on two occasions with Mr X and his lawyers, who sought details of the issues and evidence the decision maker would rely upon. The lawyers also indicated that a psychiatrist's report would be provided.
  • However, before receiving that psychiatrist's report, the decision maker sent a text to the Vice Chancellor saying that he had determined to suspend Mr X. He had, at the time of sending that text, no direct communication with the complainant regarding the potential adverse impact on her of Mr X remaining on campus. He had received views from others regarding what she felt about this, but that was hearsay evidence only.
  • Following sending the text message, the decision maker received the psychiatrist's report foreshadowed by Mr X's lawyer, which stated that, while it was "conceivable" that the complainant may feel uncomfortable having Mr X on campus, there was no evidence of risk.
  • The decision maker then interviewed the complainant, who informed him of her anxiety, inability to concentrate, counselling she was obtaining and the fact that she was unlikely to attend university if she saw Mr X.

The information provided by the complainant in that meeting was central to the decision to exclude Mr X. The decision maker did not provide this information to either Mr X or his lawyer, nor were they given the opportunity to respond.

Mr X brings second proceeding seeking judicial review of decision

Mr X then brought a second proceeding in the Supreme Court of New South Wales (X v University of Western Sydney [2014] NSWSC 82), seeking judicial review of the decision maker's decision. The grounds relied upon by Mr X were that he:

  • had not received all the information relied upon by the decision maker
  • did not know in particular what was relied upon to establish the risks to the complainant if he stayed on campus
  • therefore did not know the case he was to meet or how he should respond
  • it was possible that there were arrangements that could be made to segregate them and in fact arrangements had been put in place which he understood had been working

Mr X also asserted that the university erred in its application of the University's Misconduct Policy regarding elimination of perceived risks to health and safety of students, the determination to suspend Mr X was made having regard to an "improper purpose" and the decision to suspend him was "manifestly unreasonable, unjust and/or illogical".

The university submitted that it was only obliged to disclose critical, relevant information which was not apparent from its nature, and as Mr X knew of his potential impact on the complainant, there was no obligation to provide the information obtained from her in the meeting. The university said that all the interview did was confirm the hearsay evidence.

Court holds that there was a breach of procedural fairness

After hearing detailed arguments over at least five days, the court held that the determination to suspend Mr X was a breach of procedural fairness.

Of particular concern was the lack of provision of determinative material to Mr X, or the opportunity to make submissions on that material. The court commented:

There was no reference and certainly no direct information from the complainant contained in the materials provided to either Dr Rowland or the plaintiff before 30 September 2013 as to any of the [matters complained], a fact that presumably is related to Dr Rowland’s decision to interview the complainant on 30 September 2013. The [matters complained of] were all incorporated into Dr Rowland’s Reasons for Decision: at 6.6(b). Dr Rowland, in proceeding to make his decision known on 1 October 2013 left the plaintiff in the position where there was no opportunity for any other or independent inquiry or assessment to be made into any information available on the nature and level or significance of the matters raised by the complainant. This might include any known impact upon her ability to satisfactorily undertake course assignments, examinations, attendance at tutorials, lectures or clinical workshops, and further, whether any matters that were raised by the complainant could be addressed other than by outright suspension. (X v University of Western Sydney at 219)

Mr X had also argued apprehended bias on the part of the decision maker. This was rejected by the court which commented that the decision maker must have an open mind, not an empty one.

Educational institution's obligation of procedural fairness does not end when the internal investigation and complaints procedure ends

In the case of Rana v University of Adelaide [2013] SASC 85, Mr Rana was a law student at the University of Adelaide, who was excluded from first the Law Libraries and then subsequently the university in its entirety, the reasons for which did not emerge from the judgment.

This matter involved an application by Mr Rana for leave to appeal an earlier decision of the Supreme Court of South Australia striking out his case. One of the grounds of appeal was that the university breached the requirements of procedural fairness in failing to provide an outline of the submissions they made in court on the hearing of an application to strike out Mr Rana's substantive proceeding.

We raise this case only to note that, while the court found it unnecessary to consider this issue to determine the appeal, it did note that there could be situations in which the failure of the university to provide their submissions to Mr Rana in advance of the hearing could have been a breach of procedural fairness. The point to take away is that the obligation of procedural fairness does not end when the educational institution's internal investigation and complaints procedure ends.

Disgruntled student prepared to take matters far

Wecker v University of Technology Sydney [2007] NSWSC 927 is an example of another proceeding emerging from a decision to suspend or exclude a student. Mr Wecker was a graduate student at UTS who, following a dispute with the UTS Housing Office regarding student accommodation, threatened (and admitted threatening) the Housing Officer saying words to the effect either "I could get you and your manager killed" or "I have the power to kill you and your boss, it will be done". Subsequently, the university suspended Mr Wecker for 12 months.

Mr Wecker then made a complaint, alleging among other things, lack of procedural fairness against the university to the President of the Anti-Discrimination Board (which was declined as lacking in substance), sought and was granted leave to proceed in the Administrative Decisions Tribunal (which complaint was dismissed), then appealed that decision to the Appeal Panel (which again dismissed the application) and then finally appealed to the Supreme Court of New South Wales.

The decision turned ultimately on issues other than procedural fairness, but the case is interesting as an example of how far a disgruntled student will take matters. A somewhat common theme in cases of this kind is that allegations of lack of procedural fairness are often run alongside the main allegations, for example, in this case, arguments of discrimination in breach of the Anti-Discrimination Act 1977 (NSW) in allegedly taking into account in determining to suspend Mr Wecker that the university considered that he suffered from a psychiatric illness.

Court finds no basis for denial of procedural fairness claim by student unhappy with marks

In the case of Chan v Louey & Ors [2006] NSWSC 605, Mr Chan was a student with TAFE, studying the "Develop and apply knowledge of the library/information services industries" course and was informed that he had failed the first of the assessments required to complete the course.

The day after being informed that he had failed, and without availing himself of the appeal procedures afforded him by TAFE, Mr Chan commenced proceedings in the Supreme Court of New South Wales against the part-time teacher teaching the course in question. TAFE was subsequently joined as a defendant. Among other things, Mr Chan asserted denial of procedural fairness and fraud/improper purpose. The court rejected Mr Chan's application noting:

Mere dissatisfaction with the decision forms no basis for a challenge to it. Generally speaking, the decisions involved academic assessment... (Chan v Louey & Ors at 30)

Student pursues claim all the way to the High Court

Griffith University v Tang [2007] HCA 7 is another example of a claim brought by a student after being found guilty of engaging in serious misconduct. Ms Tang, a PhD student, had apparently undertaken research without regard to ethical and scientific standards and thus engaged in "academic misconduct". As a result, Ms Tang was excluded from her PhD candidature. This matter is another example of how far through the courts claimants will take matters.

Ms Tang first appealed against the decision to exclude her to the University Appeals Committee. The Committee upheld the decision, and Ms Tang then sought judicial review from the Supreme Court of Queensland.

A key issue was whether the decision that had been made to exclude Ms Tang was a decision made "under an enactment" pursuant to the Judicial Review Act 1991 (QLD), thus giving the court jurisdiction to hear the claim for judicial review. This issue went on through the Supreme Court of Queensland, the Court of Appeal of the Supreme Court of Queensland and then, finally, on to the High Court of Australia.

The High Court ultimately decided that, in order for the decision to exclude Ms Tang to be a decision "under an enactment" and therefore subject to judicial review, it had to be a decision expressly or impliedly required or authorised by the enactment and one that must itself confer, alter or otherwise affect existing or new legal rights or obligations derived from the general law of statute.

The decision to exclude Ms Tang from the PhD course was not made "under an enactment" and, therefore, judicial review of the decision was not possible. As a result, Ms Tang's efforts to have her candidature reinstated ended at the High Court.

Best to adhere to procedural fairness principles regardless of obligation

Most educational institutions, in dealing with complaints made by students or disciplinary issues in respect of students, will be subject to principles of procedural fairness. Even if they are not expressly applied (for example, in the case of non-government schools) it is prudent, in dealing with these types of matters, to adhere as far as possible to the principles of procedural fairness.

Develop clear policies for students and staff

Bearing in mind in particular the right to a fair hearing, and the need for the absence of bias or the appearance of bias, it is clear that educational institutions (both schools and tertiary) should have clear policies for dealing with both students and staff that, in particular:

  • identify the nature of the complaint
  • allow for the complaints-handling process to be clearly communicated
  • incorporate a defined and fair investigation phase that involves not just the gathering of information but the provision of that information to the student
  • consider a two-stage hearing phase:
    • identify the relevant, credible, and significant information central to or determinative of the likely decision
    • ensure that this information has been put to the student and they have been afforded the opportunity to respond
    • the exception is if there are confidentiality issues, or other reasons why it must not be disclosed (eg Police request, protected confidences)
  • then move to make the final decision
  • give careful thought to the appropriate decision maker to address the issue of actual or potential bias:
    • consider a decision maker at least one step removed from the student;
    • but remember that an open mind does not mean an empty one (do not be afraid to make the decision!)
  • record the reasons for the decision in writing and, where possible unless there are compelling reasons to the contrary, communicate these to the student, together with details of the appeal process

Document all stages of the process

A key point to consider is the need to document the process. Should the student dispute the process (and the case examples have given show this happens, and in universities appears to happen quite regularly) it will be necessary to have a "paper trail" to evidence that the above steps have taken place. Further, if the matter goes to court, the documents will need to be provided to the other party and the court on discovery.

Keep documents centralised and consider document management and destruction policies

We suggest that in each case, you determine who, will be responsible for keeping in one centralised location all the documents, memos, emails and other communications in relation to the complaint (including, as in the case brought by Mr X, the critical text messages). The need to retain these materials should also be built in to email and document management and destruction policies.

Ensure ongoing training of staff on disciplinary processes

Another practical tip is to ensure that staff are appropriately trained in the disciplinary processes and procedures as well as the requirement of, and means of achieving, procedural fairness in the institution's processes. This should not be in a one-off training session but regularly reinforced to staff in ongoing training sessions.

Ten top procedural fairness risk management tips

1. Inform the student of the allegations.

2. Inform the student of the likely consequences of an adverse decision and why a particular decision would be appropriate.

3. Let the student be heard – in an interview and, if appropriate, by way of a written response.

4. Consider all relevant evidence before making a decision. Identify the relevant, credible, and significant information - has the student seen it and had an opportunity to respond? Are there confidentiality issues?

5. Provide all details of the decision in writing and provide a copy of the relevant documents (eg, policies and procedures on which the action is based).

6. Have an independent investigator and separate decision maker.

7. Ensure the decision maker acts fairly and without bias.

8. Question whether others would see the process as being fair, valid and reasonable.

9. Consider whether the student would have an appeal process available to them and what they may appeal about.

10. Document all action, discussions, investigations, meetings and decisions.

Aim to strike a balance between providing procedural fairness to all students and maintaining educational imperatives

As educational institutions are likely to continue to see activist parents and disgruntled students in the years to come, the application of procedural fairness is pivotal for all educational institutions, regardless of whether they are government or non-government institutions.

It is simply not enough for an educational institution to acknowledge that a policy is based on the principles of procedural fairness. Educational institutions need to "walk the tight rope" in striking the delicate balance between providing procedural fairness to all students and maintaining the educational imperatives.

This article is based on a paper presented at the Australia & New Zealand Educational Law Association national conference in October 2014.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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