Mai Chen: St Bede's decision raises questions

St Bede's College. Photo / Geoff Sloan

The case of St Bede's College students, Jordan Kennedy and Jack Bell, breaching the Civil Aviation Rules while on a school rowing trip raises the following questions:

Can schools still discipline their students if they misbehave?

Or, given the case of Hawkes Bay student Lucas Battison, who won a High Court battle against St John's College last year after being suspended for refusing to cut his hair, is that punishment now disallowed due to the High Court granting an injunction in the St Bede's case allowing the boys to row at the Maadi Cup at Lake Karapiro?

Finally, should the St Bede's council have expressed disappointment that the parents sued?

The rowing case does not change the ability of schools to discipline their students for misbehaviour as long as the school follows due process and ensures that the particular punishment proposed was not disproportionate. In this case, the judge found that the school had not carefully considered all of the individual circumstances for each of the boys.

The parents sought interim orders to allow the boys to row at the Maadi Cup, which is an interlocutory application and not the substantive hearing, which is still to come.

The legal tests were met here as there were serious questions of law to be tried and the applicants would have been irrevocably prejudiced, whereas the school is still able to discipline the students after due process.

The court said that "it is at least seriously arguable that to make the decision based on the emailed report of a head coach who was not present when the incident took place, without interviewing the boys in question or the other participants, and without gathering information on the consequences of the decision to assess whether it was proportionate to the alleged misbehaviour was unfair and in breach of natural justice".

Justice Rachel Dunningham also questioned whether the school had regard to all the relevant considerations, including the consequences of the decision on other team members, parents and sponsors. Unless that was done adequately, the judge was concerned that the disciplinary action taken by the school may not be proportionate to the misconduct.

As for the parents suing, section 27 of the Bill of Rights Act protects each person's right to natural justice, and the right to judicial review. The school is subject to public law obligations and has to comply with due process obligations in the Education Act and the Bill of Rights Act.

There are other non-judicial public law tools, but a complaint to an Ombudsman would take three-six months. What is clear is that, if the parents had not had the means to get a court injunction, their boys would not have rowed at the Maadi Cup.

The last word goes to my son, who is almost 12. When I asked him what he would have done if other boys in his class had urged him to do something silly, his reply was, "I would have told them to do it themselves."

*Mai Chen is managing partner of Chen Palmer, Public and Employment Law Specialists, and Adjunct Professor at the University of Auckland School of Law.

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