Tauranga Boys College v International Education Appeal Authority

ORDER PROHIBHITING PUBLICATION OF NAMES OR IDENTIFYING
PARTICULARS OF THE SECOND TO FOURTH RESPONDENTS AND
THEIR FAMILIES
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2015-485-56
[2016] NZHC 1381
UNDER
the Judicature Amendment Act 1972
IN THE MATTER OF
a decision made pursuant to the Code of
Practice for Pastoral Care of International
Students
BETWEEN
TAURANGABOYSCOLLEGEBOARD
OF TRUSTEES
Applicant
AND
INTERNATIONAL EDUCATION
APPEAL AUTHORITY
First Respondent
L
Second Respondent
E
Third Respondent
p
Fourth Respondent
Hearing:
23 May 2016
Counsel:
M B Beech and J P M Dickson for Applicant
H Carrad for First Respondent (abiding decision)
J S McHerron, amicus curiae
No appearances by Second, Third and Fourth Respondents
Judgment:
24 June 2016
JUDGMENT OF ELLIS J
I direct that the delive7 time of this judgment is
2 pm on the 2i day ofJune 2016
TAURANGA BOYS COLLEGE BOARD OF TRUSTEES v INTERNATIONAL EDUCATION APPEAL
AUTHORITY [2016] NZHC 1381 [24 June 2016]
Table of Contents
Introduction
Legislative framework for the enrolment and education of international
students at State schools
[1]
[5]
The right of students to remain enrolled, and to tuition
[8]
The Code and the IEAA
[16]
Code ofPractice Guidelines for the Pastoral Care ofInternational
Students
[20]
The contracts between TBC and the boys' parents
[24]
Application for Tuition
[26]
Tauranga Boys' College Contractual Agreement
[29]
TBC School rules
[38]
The incident on 7 March 2014 and its aftermath
[40]
The IEAA's processes and its decision
[79]
The application for review
[85]
Was the IEAA correct to hold that the Act applied to the exclusion of the
[90]
contracts?
Was the IEAA correct to hold that TBC did not have jurisdiction to
terminate the contracts?
[102]
Was the IEAA correct to hold that the contracts did not exist?
[104]
Did the IEAA have jurisdiction to interpret and apply the Act,
rather than the Code?
[106]
Did the IEAA correctly apply the relevant contractual principles?
[108]
Did the IEAA breach natural justice by not giving TBC an opportunity to
comment on its adverse findings before releasing its decision?
[11 O]
Did the IEAA breach natural justice in refusing to allow Mr Mangan
[115]
access to counsel during his interview with Ms Sage?
[116]
Conclusion: grounds of review
[117]
Relief?
[119]
Result
Post script: confidentiality and gratitude
[120]
Introduction
[1]
In April 2014, the Board of Trustees of Tauranga Boys College (TBC) took
disciplinary action against three international students (L, E and P) for smoking
cannabis outside school hours and outside school grounds. 1 It is (now) accepted that
the action TBC took would not have been open to it under the Education Act 1989
(the Act) had the boys been domestic students emolled at a State school such as
TBC. But TBC maintains that its contracts with the boys' parents permitted it to do
what it did.
[2]
The International Education Appeal Authority (IEAA) subsequently upheld
complaints by the families of two of the boys against TBC in a comprehensive
decision dated September 2014. TBC now seeks judicial review of that decision,
essentially on the grounds that the IEAA:
[3]
(a)
ignored the contractual overlay of the dispute; and
(b)
breached natural justice.
The effect of TBC's disciplinary action was that the boys returned to
Germany in 2014 and there is no prospect of their returning to school here. But there
remain live issues as to the refund of some of their costs (which was ordered by the
IEAA) and the fact that the expulsion/exclusion remains on the boys' records. As
well, the issues raised by the review application are of some ongoing consequence
for TBC and, possibly, for other schools.
[4]
Before turning to consider the grounds of review it is necessary to set out the
legislative, contractual and factual background in some detail.
Legislative framework for the enrolment and education of international
students at State schools
[5]
Part 18A of the Act sets out the legal framework for the education of
international students at schools in New Zealand.
L was expelled. P left voluntarily in order to avoid expulsion.
expulsion was not an available option and he was "excluded".
Because E was under 16,
[6]
An "international student" is defined ins 238D as a person who is:
(a)
enrolled by a provider (also defined in that section as, inter alia, a
registered school);2 and
(b)
[7]
not a domestic student. 3
Only schools which are signatories to the code of practice published by the
Minister under s 23 8F ("the Code") may enrol international students. TBC is such a
school. The Code is discussed in more detail below.
The right of students to remain enrolled, and to tuition
[8]
Section 3 is the cornerstone of the Act and enshrines a child's right to free
education. It provides:
Except as provided in this Act or the Private Schools Conditional Integration
Act 1975, every person who is not an international student is entitled to free
enrolment and free education at any State school or pattnership school kura
hourua during the period beginning on the person's fifth bi1thday and ending
on 1 January after the person's 19th bitthday.
[9]
The s 3 right to "free" enrolment and education expressly does not apply to
international students. But once enrolled, the Act confers on such students the same
right to remain enrolled, and to tuition, as a domestic student. That is made clear by
s 4(2), which provides:
Subject to section 4B and to subsections (3) and (4) of this section, once
enrolled at a State school or in special education an international student has
the same rights to remain enrolled, and to tuition, at the school as a domestic
student. 4
[10]
Section 4B provides that no international student may receive tuition unless
the prescribed fees for that student have been paid. Significantly, that is the only
provision in the Act which differentiates between international and domestic students
in terms of their right to enrol and remain enrolled.
2
4
I use the word "school" rather than "provider" in this judgment.
"Domestic student" is defined ins 2(1) as a person who is a New Zealand citizen, or a holder of
a resident class visa, or a person of a class or description required by the Minister to be treated as
if they are not international students.
Subsections (3) and (4) are not material to the matters presently at hand.
[11]
Section 14(1) of the Act provides the sole basis on which a principal of a
State school may stand-down or suspend a student. The principal must be satisfied
on reasonable grounds that-
[12]
(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.
It is trite that the actuating misconduct or behaviour must occur at school or
at a time when the school is responsible for the student.
[13]
Once a student has been suspended, the school's board of tmstees has the
power under ss 15 and 17 to lift or extend the suspension or:
(a)
in the case of a student younger than 16 and "if the circumstances of
the case justify the most serious response", to exclude the student
from the school.
(b)
in the case of a student who is 16 or older, to expel the student from
the school.
[ 14]
Section 18 sets out important process requirements which govern any
exercise of the powers to suspend, exclude and expel.
[15]
That ss 13 - 19 are effectively a Code in te1ms of a State school's power to
suspend, exclude or expel is further confirmed by the Education (Stand-Down,
Suspension, Exclusion, and Expulsion) Rules 1999 (the Rules). The Rules provide
that a principal who, for disciplinary reasons, wants a student to absent himself or
herself from school or a parent to remove a student from school, may bring about the
absence or the removal only by standing-down or suspending the student under
section 14( 1) of the Act. 5
The Rules are promulgated under s l 8AA of the Act.
The Code and the IEAA
[16]
Section 238F of the Act provides that the Minister may publish a code of
practice that establishes a framework for the pastoral care of international students.
The purposes for which a code may be promulgated include:
[17]
(b)
setting out requirements relating to the manner in which providers
may assess and recruit prospective international students, including
the information to be given by providers about courses, procedures,
and costs:
(c)
providing for the welfare of international students, including the
support services to be provided by a provider and any repmting
obligations:
(e)
establishing the IEAA to investigate and determine complaints from
international students or their authorised representatives about
alleged breaches of the code, after all internal grievance procedures
have been exhausted, to investigate and determine complaints from
the administrator about alleged breaches of the code, and to refer
appropriate cases to the review panel; setting out rules of procedure
or empowering the IEAA to regulate its own procedure; and, subject
to section 238G, specifying the remedies and sanctions it may
impose:
(f)
establishing the review panel to determine whether a signatory
should be removed or suspended as a signatory to the code; ...
Section 238F(4) provides that a code is binding on all parties who are
signatories to it.
[18]
The Code that is presently in force took effect on 31 March 2002. Revisions
were made in 2003 and 2010.
TBC is a signatory to it.
The Code relevantly
provides that:
(a)
when enrolling an international student, signatories must provide the
international student with information about the circumstances m
which the signatory may terminate tuition: para 7.2.5;
(b)
signatories must comply with all relevant provisions of the Act in their
dealings with international students: para 11.1;
(c)
all contractual and financial dealings related to the emolment of
international students between signatories or their agents and
international students must be conducted in a fair and reasonable
manner: para 1.2;
(d)
all contractual and other financial arrangements between signatories
and/or recruitment agents on the one hand and international students
on the other hand must be recorded in writing, and international
students or their parent/s must be given a copy of any agreement to
which they are a party: para 1.3;
(e)
every agreement between signatories and international students who
are under 18 years of age must be signed by their parent/s:
para 11.3 .2;
(f)
when standing down, suspending, excluding, or expelling an
international student from school, State school signatories must
comply with s 18 of the Act and any relevant rules made under
s 18AA: para 4.3;
(g)
the IEAA may impose an appropriate sanction, sh01i of suspension or
removal from the Code, on a signatory that has committed a breach of
the Code that is less than a serious breach. These sanctions may
include: a requirement that c01Tective action be unde1iaken;
publication of the name of the signatory held to be in breach of the
Code; an order for restitution; and/or payment of costs and/or interest:
para 24.2; and
(h)
if a sanction has been imposed by the IEAA that requires the signatory
to undertake remedial action, the signatory will be given a specified
timeframe in which to undertake this action to the satisfaction of the
IEAA: para 24.3.
[19]
The Code also makes it clear that there are, potentially, a number of
accommodation options for international students including at a "homestay" or with
a "designated caregiver". "Homestay" is defined in the Code as "accommodation
provided to an international student in the residence of a family or household where
no more than four international students are accommodated".
"Designated
caregiver" is defined to mean "a relative or close family friend designated in writing
by the parents of an international student as the caregiver and accommodation
provider for that student ... ". 6
Code ofPractice Guidelines for the Pastoral Care ofInternational Students
[20]
NZQA has also published a Code of Practice Guidelines for the Pastoral Care
oflnternational Students (the Guidelines). The Guidelines make it clear that they are
by way of guidance only and that schools should seek legal advice to confirm that
what they do complies with the Act.
It can be observed in passing that this
admonition is an appropriate reflection of the administrative law principle that
guidelines cannot supplant, and must yield to, inconsistent legislative requirements.
[21]
The particular aspect of the Guidelines relied on by TBC in the present case
is pt 7.2.5 which deals with the "circumstances in which the signatory may terminate
tuition". It begins by noting that in New Zealand a distinction is drawn between
State and private schools. Then, it states:
Students in state schools can be removed from school only following a
formal suspension process.
In private schools a decision to expel a student 1s a contractual matter
between the student and the school concerned ....
[22]
Under the heading "Homestay rules, and school suspension and expulsion
procedures" the guideline goes on:
The expulsion provisions of the Education Act operate for international
students in the same way as they do for domestic students. These provisions
can only be applied in relation to conduct which is connected to the school
6
In the present case L was housed with his uncle, a designated caregiver.
accommodated by way of a homestay arrangement.
E and P were
and the school environment as opposed to the home or homestay
environment.
An international student's enrolment contract, on the other hand, is a
separate legal arrangement and, depending on the provisions of that contract,
a student could be required to leave school if there was a breach of the
contract which allowed for termination of the enrolment contract by the
school.
Often enrolment contracts between schools and international students
contain provisions requiring that students comply with homestay rules and
stating that schools may terminate a contract if a student is in breach of that
requirement. There may possibly be circumstances where a school can
terminate a contract with a student, in effect tenninating the student's
enrolment at the school, without following the suspension, exclusion, and
expulsion provisions of the Education Act and without being in breach of
clause 4(2) of the Education Act [sic].
The Ministry of Education advises schools that because of the complexity of
these issues, it is impmiant to seek legal advice in relation to the specific
facts of any such situation.
[23]
And under the heading "Termination procedures" pt 7.2.5 reads:
Signatories must advise students of their termination procedures, including
the situations in which the signatory reserves the right to terminate tuition.
These may include:
•
Continued and unexplained absenteeism
•
The exclusion or expulsion of the student in accordance with the
Education Rules 1999 (Stand-down, Suspension, Exclusion, and
Expulsion)
•
Provision of false or misleading information by the parent on student on
enrolment
•
Inadequate progress by the student
•
Failure of payment of fees
•
Where the signatory is unable to guarantee accommodation due to the
student's behaviour
•
In the event of criminal behaviour by the student (including such
behaviour outside the signato1y's premises)
•
An inability to attend for reasons such as illness or family obligations,
where the student cannot make up the missed course time and needs to
re-enrol if they wish to complete the course
•
Any breach of disciplinaiy regulations
•
Where the signatory is unable to comply with the Code regulations to
ensure their duty of care for the student.
The contracts between TBC and the boys' parents
[24]
Given TBC's reliance on the contractual relationship between TBC and the
boys' parents it is unfortunate that the relevant documents are, in parts, poorly
drafted, and that some are incomplete and unsigned. Nonetheless it seems that there
are three interlinked documents having potential contractual force, namely:
(a)
an application for tuition;
(b)
an "agreement to provide tuition services"; and
(c)
a document that is, confusingly, sometimes called a "pastoral care
contract agreement for international students" and sometimes an
"agreement between international students and homestay families". 7
[25]
These documents also refer to, and incorporate, the school rules. I set out the
salient parts of these documents below.
Application for Tuition
[26]
The third page of the "Application for Tuition" contains a section headed "H
Acceptance of Terms: Oath". Section H lists 10 numbered promises, underneath
which is a space for the student's signature. The promises include that the student
will:
7
1)
Abide by the laws of New Zealand.
2)
Abide by the rules and regulations of Tauranga Boys' College.
8)
Accept and comply with the Terms and Conditions of Tauranga
Boys' College Contractual Agreement.
9)
Accept all terms and conditions of my Homestay Contract.
These three documents form pait of a single enrolment "pack" that is provided by TBC to
prospective international students. And cl 15 of the tuition agreement provides "this agreement"
comprises the application for tuition in New Zealand as well as a document described as "The
Tuition Agreement including any Schedules annexed thereto". It must, however, be assumed
that there is also a separate agreement between the parents and the specific homestay providers
which relates (at the very least) to the payment ofhomestay fees of, apparently, $240 per week.
No such document was in evidence before me.
[27]
Underneath the space for the student's signature, are the words, "Before an
application can be considered the following section of the Oath must be completed
by the parent or guardian of a student under twenty (20) years of age".
[28]
There follows an acknowledgment that a parent or legal guardian accepts
responsibility for the student for the period of emolment and does:
... not make any protest or dispute against a decision made or measure taken
by the Principal of the College. We do not dissent from the Principal's
decision to send the above-named to his home early if it is considered
necessary for any breach of the above Acceptance of Terms.
Tauranga Boys' College Contractual Agreement
[29]
This document is described on its cover page as an "agreement to provide
tuition services between Tauranga Boys' College and the Applicant".
The
"Applicant" is described as "the parent or legal guardian of: (the 'Student')". The
contract then states:
[30]
1.
The Applicant has made application for tuition of the Student in New
Zealand and wishes the Student to attend Tauranga Boys' College
(the 'School').
2.
The School has agreed to enrol the Student upon and subject to the
terms and conditions hereinafter set out.
Then, the agreement sets out "The School's Obligations", which include
(cl 3) that the School "will observe and be bound by the Ministry of Education's
Code of Practice for the Pastoral Care of International Students" and that "the School
shall provide tuition in accordance with that accorded to domestic students".
[31]
Clause 4 .1 of the agreement provides that:
The school will have responsibility for the Student at school, as with
domestic students, and reasonable responsibility for the student outside
including
school
events
for
which
the
school
hours
parents/caregivers/designated caregivers/legal guardians have given consent
for him to attend. (Emphasis added.)
[32]
And cl 5 provides:
The School shall use its best endeavours to ensure the safety, health and
well-being of the Student but shall not be liable for:
[33]
5.1
Any damage or harm caused to the Student or the Student's property
while attending the School.
5.2
Any damage or harm caused to the Student or the Student's property
arising out of the Student's accommodation.
5.3
Any damage or harm caused to the Student or the Student's property
outside normal school hours. In the case of the Student's property,
shall not be responsible for any damage to such property that may
occur outside the school premises. (Emphasis added.)
Next, the agreement sets out "The Applicant's Obligations". Following the
words "The Applicant shall:" it states (cl 6.3), "The student will accept and abide by
the school's rules and all instructions given by members of staff/designated
caregiver/homestay".
[34]
The applicant is, of course, the parent or guardian, not the student. This
clumsy drafting ("The Applicant shall ... The student will") is confusing.
[35]
Clause 12 of the agreement acknowledges that "the stand-down, suspension
and exclusion of students provisions as set out in Part II of the Education Act 1989
shall apply to the Student in New Zealand". The clause also states:
Any decision under these provisions to stand-down, suspend or exclude the
Student shall terminate this agreement and the refunds policy will apply.
The parents will have no claim for damages for any compensation if this
agreement is terminated in these circumstances.
[36]
The annexures to the tuition agreement include:
(a)
the document which, as I have said, is variously called a "pastoral
care contract agreement for international students" and an "agreement
between international students and homestay families".
Neither
description is, however, particularly apt as the document merely
comprises a single page of things "The Student agrees to:", including
(at para 13) "Never use drugs of any kind not prescribed by a Doctor".
This document only has a space for the student to sign, not parents. 8
8
The IEAA found that this document did not conform with the requirement in paragraph 11.3.2 of
the Code that every agreement between signatories and international students who are under 18
years of age must be signed by their parent(s).
(b)
two pages covering fees and refunds, including the following
prov1s10n:
No refund will be made to a student expelled from the
school by the Board of Trustees or required to leave the
school because of misbehaviour, poor attendance, noncompliance with the school or Homestay rules or
regulations, Contractual Agreement or breach of New
Zealand law where convicted.
[37]
An execution page follows, which states (inter alia) "I understand that should
there be a breach of this agreement that this contract may be terminated". It has
spaces for signatures by the Student, the Applicant, a designated guardian, a
designated caregiver, and a representative of TBC. The IEAA observed that none of
the execution pages sighted by it had been signed on behalf of TBC.
TBC School rules
[38]
TBC's policy on the use of illegal substances provides that the possession,
use, or being under the influence, of non-prescribed drugs while at school "shall be
considered to be gross misconduct" and may result in a suspension period. The
preamble to this statement indicates that the focus of this policy is on "supply or use
of drugs on the school campus by students" and "students . . . at school under the
influence of drugs" (emphasis added). The preamble also notes that "the school's
policy is based on the suspicion of drug use as evidenced in their classroom
behaviour and does not involve random testing of students". 9
[39]
Lastly, my attention was drawn to a TBC document which summarises TBC's
rules in relation to drugs "while under the authority of the school" and contains a
definition of when students are deemed to be "under the authority" of the school,
namely while they are:
(a)
9
present at school during an official school day;
As from 1 January 2014, the Act has made it clear that State schools may not require students to
"provide a bodily sample", (but a teacher or staff member may encourage a student to participate
in a voluntary drug treatment programme that involves testing of bodily samples).
(b)
representing the school at any time whether it be in sport, cultural or
academic pursuits;
(c)
on a school trip or camp, whether or not a parent or guardian is also
present;
(d)
on the way to or from school; and
(e)
at any time they are wearing school uniform.
The incident on 7 March 2014 and its aftermath
[40]
After school on 7 March 2014, P, Land E, together with two other students
from TBC, met at Graham Park, Tauranga and smoked marijuana. None of the three
was in uniform. There is nothing to suggest that they were seen by any member of
the public. No complaint was received by TBC.
[41]
One week later, on 14 March 2014, TBC's International Director, Mrs Roff,
and the Homestay Manager, Ms Adams, interviewed P for 45 minutes.
The
ostensible reason for the interview was his failure to attend a family picnic the day
before. No support person was present for the interview. Neither Mrs Roff nor
Ms Adams could speak German. P's English was limited.
[42]
Mrs Roff asked P if he smoked a lot and "was this just smokes". He admitted
he smoked a lot. Mrs Roff then asked "if I take you over the road for a drugs test
will it show you have had cannabis?" According to Ms Adams' signed notes of the
interview, P "then fronted up and said yes".
[43]
The IEAA described this interview as "overbearing and unfair". It thought
Mrs Roff should have had concrete evidence before threatening him with a drug test
and a translator should have been present. 10 The IEAA also found that P was outside
TBC's jurisdiction when the cannabis incident occuned.
10
The school also had no power to compulsorily test P for drugs. And even if it did have power to
do so, there is no evidence that P's "classroom behaviour" provided the necessary evidence of
drug use for the purposes of the relevant TBC policy.
[44]
Mrs Roff subsequently advised the principal, Mr Mangan, that L, E and P had
met and smoked marijuana after school on 7 March.
[45]
Mr Mangan conducted initial interviews with each of the boys on 14 March
and decided, based on those interviews, he would need to investigate their
"suspected behaviour". He conducted further interviews with E and Pon 17 March.
At that point it emerged that E had obtained the details of the marijuana supplier
from his homestay brother.
[46]
Mr Mangan interviewed L (together with his uncle, with whom he was
living) on 18 March 2014. The principal indicated he was considering:
breach of contract, cancellation of contract, continuation of contract but with
significant conditions including drug testing, drug counselling, bag search all conditions that would be put in front of domestic students of the college.
[47]
Mr Mangan then contacted all the parents to say that his "interim view" was
that the boys' use of illegal drugs was:
... a breach of the contractual agreement with you [ie the parents], your son
and Tauranga Boys' College which states a breach of New Zealand law is a
breach of the contract. Accordingly we are considering terminating the
contract.
[48]
Mr Mangan asked the boys' parents to provide any "additional material for us
to consider. .. within the next 24 hours".
He noted that if the agreement were
terminated he would be "required to notify the Immigration Department and this will
likely impact on your son's visa which may be revoked, resulting in your son having
to leave New Zealand".
[49]
The deadline to provide further information was later extended to 21 March
2014 and then to 24 March, 26 March and 7 April.
The IEAA nonetheless
considered that the "time frames in every case for the German parents have been
impossibly short".
[50]
The parents expressed their concerns about the investigation and indicated
that they would be challenging it before the IEAA.
L's uncle filed his IEAA
complaint on 17 March 2014. This was followed by complaints to the IEAA by P's
father on 23 March 2014 and E's mother on 28 March 2014. Lawyers wrote to TBC
stating that the IEAA investigation should take place before the School's
investigation into the boys' conduct. They noted that the "actions took place outside
of the School, and that the boys were not in uniform. Therefore there has been no
damage done to the School's reputation".
[51]
The lawyers also pointed out that cl 12 of the Contractual Agreement
acknowledged that the stand-down, suspension and exclusion provisions in the Act
applied to L, E and P. They articulated their concerns at the process being followed
by TBC and said that: "the consequences being threatened (including depo1iation),
are disproportionately serious to the behaviour that occmTed".
[52]
Between 21 and 24 March 2014, Ms Sage (the IEAA member with
responsibility for the complaints) and Mr Mangan communicated by email. Ms Sage
suggested that Mr Mangan should "have regard to the provisions of the Education
Act before [making] any decision about these students". Ms Sage indicated she
was:
... thinking of coming to Tauranga to interview the student(s) and the school
personnel and would not like decisions to be made hastily and without due
consideration of the provisions of the Code and the Act.
[53]
Ms Sage asked Mr Mangan to defer making a decision until they could meet.
Ms Sage queried whether Mr Mangan had complied with the notice requirements for
stand-downs, suspensions, exclusions, and expulsions in ss 14 and 18 of the Act.
Mr Mangan responded, "What about breach of contract i.e. admitted breaking of the
law?? Leading to termination of contract and a requirement to notify immigration?"
[54]
Ms Sage responded by saying that the "statutory provisions override the
contractual provisions".
[55]
On 28 March 2014, TBC's lawyers wrote to L's uncle, asserting that:
. . . any proceedings before the IEAA is a separate issue to whether [L] has
breached his contract. The IEAA does not have jurisdiction to determine
whether [L]'s contract has been breached.
[56]
The lawyers referred L's uncle to para 7.2.5 of the Guidelines and said:
Paragraph 7 .2.5 of the guidelines clearly states that it is the private contract
for the pastoral care of international students that governs behaviour outside
of school hours and outside of school grounds, not the Education Act 1989.
[57]
The letter requested L's uncle to "only con-espond with us in relation to this
matter", requested his attendance at a meeting at TBC on 1 April 2014 and said that
if he did not attend "we may determine this matter in absence of any further
infmmation supplied by you".
[58]
The Chairman of the Board of Trustees, Mr Morgan, emailed L's uncle on
31 March 2014 advising that one of the other students involved in the incident had
voluntarily withdrawn from the school. 11 Mr Morgan said he mentioned this so that
L's uncle "could understand how other families were treating this issue, and also to
be aware of all options available to [him]". He also stated:
My understanding is Shelley Sage is investigating a complaint but it is not
her role to make the decision for the school. We believe that it is a
contractual matter and therefore it is the Principals [sic] decision.
[59]
On 1 April there was a meeting about Lat TBC. Attending on behalf of the
School were the Principal (Mr Mangan), the Associate Principal, Mr Morgan and
three lawyers from Holland Beckett. L's uncle spoke on behalf ofL.
[60]
From the notes of the meeting, it seems that the meeting was led by the
lawyers.
They said the question was whether the school should terminate the
contract. TBC wanted to hear L's and L's uncle's view on "whether to terminate"
and "areas we should be aware of (mitigating factors)". It was emphasised that the
complaint with the IEAA was a separate investigation and that the IEAA complaints
"don't cover issue whether admissions lead to termination".
[61]
L's uncle is recorded as saying that the decision should be deferred until the
IEAA had investigated, and that removing L from school was "out of proportion to
offending". The lawyer repeated that this was a "Contractual issue and not under the
Education Act" and that an "Admitted breach triggers entitlement to termination".
Mr Morgan accepted that "If a kiwi student uses marijuana outside school hours, the
II
This appears to have been a reference to P, although he did not formally withdraw his enrolment
until 3 April.
school is not responsible [but that] the school is responsible for international students
outside school hours".
[62]
On 2 April 2014, Ms Sage met with Mr Mangan for approximately four
hours.
Mr Mangan has deposed that although his lawyer was initially present,
Ms Sage did not feel comfortable without her own lawyer and would not proceed
unless the lawyer left. He then states that he "was concerned that this could delay
matters so I reluctantly agreed to proceed without counsel being present as I was
required to provide information prior to 4 April 2014".
[63]
Ms Sage's account of the meeting is set out in the IEAA's decision. 12 She
says she indicated she "wanted to have my interviews with Ms Roff and Mr Mangan
who were the people who had interviewed [L]". Because of the neutral stance taken
by the IEAA in relation to these proceedings she has not had the opportunity to
comment on whether she refused to participate in the meeting if a lawyer was
present.
[64]
On 4 April 2014, Mr Morgan wrote to the IEAA to indicate that the Board
considered it inappropriate to comment on the complaints to the IEAA prior to any
final decision in relation to the disciplinary outcome for the boys. Three days later,
Mr Mangan completed his investigation and wrote letters to the boys' parents. The
letters state that each of the boy's conduct was "in breach of the International
Student Tuition Contract . . . as well as being gross misconduct that is a harmful or
dangerous example to other students".
[65]
Mr Mangan advised that he was considering suspending each boy under s 14
of the Act.
The letters indicated that the decision to suspend was to go before the
Board of Trustees, that the parents would have the opportunity to address the
Trustees and that neither Mr Mangan nor Mr Morgan would be part of the decisionmaking process, given their previous involvement. The letters invited responses on
whether each boy should be suspended, by 9 April 2014.
12
At [15.7].
[66]
Mr Mangan has explained that, based on legal advice, TBC had by that stage
(7 April) chosen to accept that the Act was the "prevailing authority" following
which "we then approached the management of the incident under the principles of
the Education Act 1989".
[67]
On 9 April 2014, P's parents terminated their tuition agreement with TBC and
received a refund of some fees. On the same day, a law firm acting for E's parents,
requested TBC to delay its decision to enable consideration of voluntarily
withdrawing him. That would terminate the disciplinary process and avoid him
being suspended.
The lawyers observed (inter alia) that the offending occurred
outside TBC, that E was only 15 (he was the youngest of the three boys) and that his
"ability to obtain marijuana was the direct result of his placement in a home where
his host brother was a user".
[68]
None of these points persuaded TBC to change direction; however; it refused
to delay the matter. On 10 April, Mr Mangan conveyed his decisions to suspend E
and L to their respective parents. Mr Mangan expressed the view that:
(a)
E had planned to purchase and consume marijuana, and smoked it
along with four other students;
(b)
L had planned to purchase and consume marijuana after school and
had:
(i)
facilitated this by travelling to meet with the dealer on his
motorcycle, purchasing the marijuana with the money
contributed by some of the boys involved, and returning with
the marijuana to the group;
(ii)
smoked the marijuana that had been purchased; and
(iii)
returned home on his motorbike under the influence of
manJuana.
[69]
Mr Mangan considered that his findings against both boys amounted to
findings of gross misconduct that was a harmful or dangerous example to other
students in terms of s 14 and that suspension was the appropriate course.
Mr Mangan was also satisfied that their actions were in breach of contract. A Board
of Trustees' meeting was arranged for 16 April 2014 to decide what would happen to
the boys.
[70]
On 15 April 2014 lawyers for L's parents, wrote to the Trustees, expressing
L's deep regret for his actions, saying that he was "willing to make any apology, and
to undergo any counselling the School requires" and requesting the Board to
consider various mitigating factors, including that:
(a)
the incident took place outside the school;
(b)
the boys were not in uniform, so there was no damage to the school's
reputation;
(c)
the school would not have become involved at all if a New Zealand
student had engaged in the same conduct;
(d)
L was being punished more severely than a New Zealand student
would be;
(e)
L's "confession" had been obtained under duress and under false
pretences, in breach of the relevant rules and guidelines; and
(f)
[71]
access to marijuana was facilitated through E's homestay placement.
On 16 April 2014, the Trustees' Discipline Committee met to consider the
matter. The Principal prepared a report in respect of each boy, which was considered
by the Trustees. The IEAA recorded L's account that "he recalls nothing about the
meeting during which he was in tears".
[72]
The Board resolved that L's gross misconduct warranted expulsion and that
he should be expelled as of 16 April. Mr Mangan notified L's uncle and parents,
saying that:
... the consequence of this is that we are required to notify the Immigration
Depaitment of the Termination of Enrolment of a Foreign National holding a
Student Visa. I advise that I will take this action tomorrow.
[73]
The following day, Mr Mangan emailed again to advise that the reasons for
the Board's decision to expel L were:
(a)
his lack of genuine remorse;
(b)
his level of culpability, as he had procured cash, sourced drugs, and
supplied them to the group;
[74]
(c)
he drove while under the influence of drugs; and
(d)
lack of confidence of his contribution to TBC.
The Board also resolved that E's gross misconduct watTanted exclusion (as he
was under 16 so could not be expelled) and that he would be excluded from TBC as
of 16 April 2014. On 17 April Mr Mangan emailed E's parents and explained that
"exclusion would mean we as a college would request other schools in close
proximity to emol the excluded student".
Mr Mangan set out the reasons the
Trustees recorded for its decision as E's:
(a)
lack ofremorse;
(b)
failure to accept responsibility;
(c)
disrespect of the rules regarding drug use, despite admitting he knew
what he did was wrong; and
(d)
failure to advise TBC of drug environment despite several
opportunities.
[75]
In these proceedings Mr Mangan has deposed that the Trustees also decided
to cancel the contracts of E and L, although neither the minutes nor the
correspondence indicate this.
[76]
On 7 May 2014, Ms Sage wrote to L's uncle and parents and to Mr Mangan
about L's complaint, seeking clarification of some points. It was in this letter that
she proposed "issuing first a summary of facts and giving each party the opportunity
to comment upon that before [she wrote] the decision in terms of the Code".
[77]
On 14 May 2014, Mr Morgan wrote to L's uncle advising that the full Board
had met and considered some further material but had decided to maintain the
Trustees' decision to expel L.
[78]
The boys subsequently left New Zealand and have not returned.
The IEAA's processes and its decision
[79]
As I have said, complaints on behalf of all three students were made to the
IEAA in March 2014. Each raised concerns about the way TBC had dealt with the
7 March incident. They also raised wider concerns about the boys' pastoral care at
TBC.
[80]
I have detailed the early interaction between Ms Sage and Mr Mangan above.
No doubt TBC's refusal to await the IEAA's determination of the complaints prior to
taking irrevocable disciplinary action against Land E meant that, from the IEAA's
perspective, any particular urgency attaching to the matter had disappeared. On the
basis of the evidence filed by TBC, however, it appears that in the four or so months
which followed the final expulsion/exclusion decision:
(a)
TBC was asked for and did provide further information to the IEAA;
(b)
Ms Sage went on leave and the matter was taken over in the interim
by Mrs Gambrill who made a detailed request for further information
on 28 July 2014;
(c)
on 13 August Mr Mangan emailed Mrs Gambrill and asked her to
come to TBC so that she could have access to all the documentation
required and they could work through the matters she had raised
"systematically";
(d)
on 15 August Mrs Gambrill replied at length, repeating her detailed
requests for information. In relation to the request that she come to
the college she said:
We appreciate your invitation to visit. However, we will say
at the outset that the IEAA has limited access to funding and
this matter has reached the stage where it must be resolved
on the papers that have been filed or will be filed as in the
case of the German students there is no ability to interview
them fu11her. As the College staff are the only people who
could be interviewed it seems to us there would be little
merit in doing this with the amount of work that Ms Sage
has already put into the file. We also believe a further visit
could be wrongly interpreted by the complainants.
[81]
(e)
the information requested was provided by TBC on 29 August;
(±)
the IEAA released its decision on 23 September 2014. 13
In the IEAA's decision, it upheld the three complaints and made a series of
general findings, followed by specific findings in relation to each student. It is fair
to say that the report was critical of TBC and its processes.
[82]
The IEAA's general findings can be summarised as follows:
(a)
the 7 March incident was off school premises and during any school
activity so TBC had no authority to discipline the students for it;
(b)
TBC has not established a legal basis for terminating the students'
tuition at TBC, as neither the 7 March incident nor any other
identified behaviour:
13
The decision was a joint one, signed by both Mrs Gambrill and Ms Sage who had, by then,
returned from leave.
(i)
amounted to "gross misconduct or continual disobedience
[which was] a harmful or dangerous example to other students
at the school" for the purposes of the Act;
(ii)
(c)
permitted TBC to terminate the students' tuition contractually.
TBC had breached the following paragraphs of the Code:
(i)
paragraph 7.2.2, by failing to advise students about grievance
procedures;
(ii)
paragraph 11.1, by failing to comply with the provisions of the
Act in TBC's dealings with the students;
(iii)
paragraph 11.3, by failing to complete contracts with the boys'
parents;
(iv)
paragraph 13.4, by failing to tailor support services to the
needs of the students;
(v)
paragraph 14.3, by failing to comply with the Act and Rules in
relation to standing down, suspending, excluding or expelling
the students, and initially attempting to substitute contractual
arrangements for the statutory requirements; and
(vi)
paragraph 16, by failing to provide suitable homestay
accommodation in relation to E (his homestay brother being
the conduit for supply of the drugs consumed in the 7 March
incident) and for leaving the other boys unsupervised.
[83]
In terms of remedies the IEAA directed that:
(a)
the Trustees should revoke the expulsion and exclusion of L and E
respectively (and advise Immigration New Zealand);
(b)
TBC should refund to E's parents two terms' school fees plus $200
accommodation placement fee;
(c)
TBC should refund term two school fees to L's parents (if they had
not been refunded already) as well as school fees between 14 March
and 16 April 2014;
(d)
TBC should refund the $200 accommodation placement fee to P's
parents. 14
[84]
TBC has not yet complied with these directions. On 22 December 2014, the
IEAA wrote to the boys' parents to notify them of the pending judicial review of the
decision and that consequently "it was not in a position to take any fuiiher steps in
regard to the decision but must let the matter rest in Court".
The application for review
[85]
TBC's amended statement of claim lists a multitude of alleged legal en-ors in
the IEAA's decision and in its process. The eirnrs are pleaded under two main
headings:
"Illegality" and "Procedural impropriety/natural justice/legitimate
expectation".
[86]
By the time of the hearing before me the list of errors had been helpfully
refined, at least to some degree. But in my view the questions for the Court can be
fmiher refined as follows:
(a)
14
Was the IEAA wrong in law to hold that:
(i)
the Act applied to the exclusion of the contracts;
(ii)
TBC did not have jurisdiction to terminate the contracts; and
The Code requires the IEAA to impose an "appropriate sanction" for a "less than serious
breach". Serious Code breaches or non-compliance permit the IEAA to recommend to the
International Education Review Panel that the signatory school be suspended or removed from
the Code. There can be no suggestion that that would have been appropriate here.
(iii)
(b)
the contracts did not exist?
Did the IEAA have jurisdiction to interpret and apply the Act, rather
than the Code?
(c)
Did the IEAA correctly apply the relevant contractual principles?
(d)
Did the IEAA breach natural justice by not giving TBC an opportunity
to comment on its adverse findings before releasing its decision?
(e)
Did the IEAA breach natural justice in refusing to allow Mr Mangan
access to counsel during his interview with Ms Sage?
[87]
In my view the answer to these questions either directly or indirectly cover all
arguable matters raised by TBC. Other claims alleging unreasonableness, failure to
give reasons and breach of a substantive legitimate expectation were simply
untenable.
[88]
I reiterate that TBC did not seek to argue before me that they were permitted
to make the expulsion/exclusion decisions under the Act.
[89]
I address each of the above questions in turn.
Was the IEAA correct to hold that the Act applied to the exclusion of the contracts?
[90]
It must be observed at the outset that, as the narrative set out above shows,
prior to the IEAA's decision TBC appeared to have eventually agreed with the
IEAA's view that the only way in which it could lawfully terminate the boys' tuition
was by exercising disciplinary powers under the Act. The issue of what the contracts
did or did not pe1mit was thus not squarely before the IEAA. 15 And as will be
discussed later below, the IEAA found that there was room for doubt about the
contracts' validity in any event.
15
At [19.1] the IEAA noted that:
TBC purported to rely on the 'private contracts' up until 10 April 2014 and seemed not to
appreciate that the statutory provisions overrode that situation ... Only on 10 April 2014 was
the statutory process eventually adopted.
[91]
That said, however, I accept that the IEAA decision does make it clear that it
considered that the Act prevailed over the contracts. For example, it said:
... the statut01y provisions should be applied when there is a suspension and
a threat of expulsion and exclusion and even if the contracts for [E] and [L]
were found to be binding, they are expressed to be subject to the Code and
the Education Act 1989 expulsion provisions specifically.
[92]
And similarly:
The school cannot discipline outside of the school and associated activities
nor investigate the New Zealand boys' actions and behaviour. The same rule
should apply to both domestic and international students. (See s 4(2)
Education Act).
[93]
In my view these conclusions are unassailable. There is no ambiguity in
either the Act or the Code; international students at a State school may only be
expelled or excluded pursuant to the Act and on the same, limited, grounds as apply
to domestic students.
[94]
I of course accept that the school does (or should) also have a contractual
relationship with international students (or their parents). At its most basic, it would
provide for the student's enrolment in return for the payment of the required fees.
The requirement to pay fees is expressly refeITed to ins 4B of the Act and is the one
and only distinction drawn in the Act between domestic and international students'
right to be enrolled at a State school.
[95]
In my view there can be little question that TBC school could terminate a
contract with an international student for non-payment of the stipulated fees. And
the result would be that the student would no longer be enrolled or pe1mitted to
attend the school. The important point is that although termination on that ground
would necessarily have the same effect as an expulsion or exclusion, it would not be
an expulsion or exclusion strictly so called, and would not therefore breach the Act.
[96]
Another way in which the operation of a contract might lead to a de facto (but
not de jure) expulsion or exclusion is in relation to accommodation. For example a
contract between an international student and a homestay provider might require the
payment of fees and might attempt to stipulate ce1iain minimum standards of
behaviour at the homestay. Breach of those requirements might form a basis for
termination of that contract which could, in turn, lead to the student leaving school
(if alternative accommodation could not be found). 16
[97]
This was precisely what had occurred in McGuinn v Board of Trustees of
Palmerston North Boys' High School (a case to which counsel did not refer me). 17 In
that case, R was a pupil at Palmerston North Boys' High School (a State school) who
boarded at the school's hostel. 18 Pursuant to the contract entered into between the
board of trustees and the boy's parents it was agreed that the boy would be subject to
the rules and discipline of both the school and the hostel which unsurprisingly
included (effectively) a prohibition on theft.
When it was discovered that R had
been stealing a decision was made that he be removed from the hostel as a boarder.
He was, however, advised he could continue at the school as a day pupil.
[98]
R's parents sought judicial review and interim relief on the grounds that the
removal decision was contrary to the Education Act. In rejecting the application on
jurisdictional grounds Goddard J notably said: 19
In the present case I am of the view that the involvement of the board of
trustees and the principal of the school in the management of College House
does not even come within the sphere of a statuto1y function. The
management of a boarding establishment is in no way provided for or
contemplated by the Act and the boarding contract entered into by the
second plaintiffs and the first defendant is a purely private contractual
arrangement. Termination of that contract does not therefore equate to the
suspension or expulsion of a student from "the school" in terms of ss 13-18
of the Education Act but simply amounts to the tennination of a private
commercial arrangement.
[99]
With respect, her Honour's analysis seems to me to be entirely correct.
Terminating R's contractual boarding arrangement was not the same as an expulsion
and, most importantly, he was expressly permitted to remain at school.
While
termination might have had the same practical effect as an expulsion (because of R's
particular circumstances) there was no breach of the Act.
16
17
18
19
There was, however, no evidence before me about the existence or nature of such discrete
arrangements. Nor was there evidence that any of the families hosting the three boys in the
present case had any concerns about their behaviour.
McGuinn v Board of Trustees of Palmerston North Boys' High School [1997] 2 NZLR 60 (HC).
R's parents, Mr and Mrs M, brought the claim as R's next friends.
At68.
[100] But this is not that case.
Here, TBC purported directly to terminate the
tuition contract on disciplinary grounds which could not have justified expulsion
under the Act. The Act (and the Code) makes it clear that tuition may only be
terminated or refused in accordance with the Act. A purported contractual overlay
makes no difference to that. In my view:
(a)
the clarity and absoluteness with which the right to emolment and
tuition is expressed in the Act; and
(b)
the wider context of fundamental human rights, 20
mean that a provision in a contract that was in inconsistent with, or in breach of, that
right would be illegal. 21 To the extent that pt 7.2.5 of the Guidelines says anything
different, it is wrong. 22
[101] I accept that the upshot of this analysis is that the school had no jurisdiction
over international students outside of school. But I see no particular difficulty with
that and, indeed, it seems consistent with the position taken by TBC in the
contractual documents.
23
The existence of pastoral obligations under the Code does
not render the school in loco parentis. Any "disciplinary" issues arising at home or
in the community could either be dealt with by the homestay family or designated
caregiver (as a parent or caregiver would for a domestic student) or, in extreme
cases, the Police. In the event that a student's behaviour was such that criminal
charges were laid, that would presumably also be a matter between the Police and
the immigration authorities. While, in a severe case that might lead to the depaiiure
of the student from school, again, it would not constitute an expulsion and would not
be contrary to the Act.
20
21
22
23
For a recent discussion of which see Battison v Melloy [2014] NZHC 1462, [2014] NZAR 927.
Either at its inception or at any point of attempted enforcement: ss 3 and 5 of the Illegal
Contracts Act 1970.
Part 7.2.5 is, in fact, expressed in cautious and contingent terms and, in my view, is largely right.
See in particular the extracts quoted at [31] and [32] above.
Was the IEAA correct to hold that TBC did not have jurisdiction to terminate the
contracts?
[102] As Mr McHe1rnn submitted, the IEAA found that TBC breached the Act,
Rules and Code by attempting initially to exclude the boys from the school on the
basis of a breach of contract. But it did not hold that TBC lacked jurisdiction in any
circumstances to terminate the contracts.
[103] It follows from my analysis above that TBC did have jurisdiction to terminate
the contracts, but only in very limited circumstances, namely the failure to pay fees.
I do not read the IEAA's decision as saying anything different.
Was the IEAA correct to hold that the contracts did not exist?
[104] In my view TBC has also misstated this aspect of the IEAA's decision.
Again, I agree with Mr McHerron that its findings on this topic had three facets,
namely that:
(a)
to the extent that TBC was relying on contracts entered into by
minors, they are presumptively unenforceable against them;
(b)
E's parents had indicated they did not sign any contract and there was
no record of any such contract in the extensive documentation
received by the IEAA from TBC;
(c)
none of the contracts had (apparently) been executed by TBC so, in
that sense, there were "no completed contracts".
[105] I can discern no error in any of those propositions. Indeed, the form and
content of the contractual documents seem to me to be quite problematic in a number
of other respects, as well.
Did the IEAA have jurisdiction to interpret and apply the Act, rather than the Code?
[106] I agree with Mr McHerron that TBC's position on this issue misconstrues the
IEAA's decision. The IEAA did not interpret and enforce the Act exclusively of the
Code. It is the Code itself that provides the IEAA with jurisdiction to consider the
application of the Act in the schools' dealings with international students.
[107] Ultimately, the IEAA found that TBC had failed to comply with para 11.1 of
the Code, which required it to "comply with all relevant provisions of the Act in ...
dealing with international students". Paragraph 11.1 was engaged in relation to both:
(a)
whether TBC was entitled to terminate the boys' tuition on the basis
of the contracts alone, without regard to the Act's requirements; and
(b)
whether TBC's purported decisions to expel and exclude under the
Act breached the Act because the statutory "gross misconduct"
standard was not met.
Did the IEAA correctly apply the relevant contractual principles?
[108] Under this ground TBC contended that the IEAA's decision ignored "the law
of contract, as determined by the Courts, when making its decision about the
existence (or otherwise) of the Contracts". TBC did not, however, specify in its
submissions what aspect of the "law of contract, as determined by the Courts" it is
alleged the IEAA failed to consider. Nor does the statement of claim offer any
illumination of this ground.
[109] In any event, I have discussed what I consider to be the relevant contractual
principles above. Even putting to one side the contractual deficiencies that appear to
have existed in this case, I consider that the IEAA was coITect to conclude that the
Act prevails over the contracts, to the extent of any inconsistency.
Did the IEAA breach natural justice by not giving TBC an opportunity to comment
on its adverse findings before releasing its decision?
[11 O] TBC says that IEAA's decision was issued m breach of natural justice
because the IEAA did not give TBC an opportunity to comment before releasing its
decision. TBC relies in particular on the early indication given made by Ms Sage
that she would issue "first a summary of facts and [give] each paiiy the opportunity
to comment upon that before I write the decision in terms of the Code".
[111] TBC also relies on a paragraph in the Guidelines, which states:
The IEAA investigate [sic] complaints by means of letter, telephone, email,
interview and teleconference. A preliminary assessment repott is prepared
and forwarded to the parties for comment. This rep01t contains the
Authority's proposed recommendations.
[112] There can be no real dispute that this procedure was not followed in the
present case. The IEAA abides the Court's decision and offered no evidence. It can,
however, be infe1Ted from Mrs Gambrill's letter of 15 August (the relevant passage is
set out at [80](d) above) that she was, perhaps, concerned that she would be unable
to afford an equal opportunity to the complainants due to their return to Germany.
As well, the fact that TBC had refused to await the decision of the IEAA before
making the expulsion/exclusion decision meant that it was too late to discuss how
any identified deficiencies in its process could be remedied or rectified.
[113] On balance, however, and particularly in light of the criticisms of the TBC
contained in the report I do consider that there was a process failure here. TBC
should have been afforded an opportunity to comment on the findings of breach
before the decision was finalised. Although TBC was well aware of the IEAA's view
that the Act prevailed over the contracts, the specific Code breaches found had not
been put to TBC previously.
[114] The question then becomes what, if anything, should be done about it. I
address this at the end of this judgment, at [117] and [118] below.
Did the IEAA breach natural justice in refusing to allow Mr Mangan access to
counsel during his interview with Ms Sage?
[115] No automatic right to representation exists. The question whether natural
justice requires legal representation is context-specific, depending on the importance
of the issues at stake and the nature and potential complexity of the hearing. In my
view it did not so require in this case, for the following reasons:
(a)
as a matter of fact, the evidence does not establish an outright refusal.
Rather, it seems that Mr Mangan agreed to release his legal advisor
rather than to cause delays in the process that would have occurred
had Ms Sage had to arrange for her own counsel to be present.
(b)
the meeting on 2 April 2014 was not in any sense a "hearing". Rather,
it was an information-gathering exercise;
(c)
Ms Sage did not herself have counsel present; and
(d)
Mr Mangan was not, personally, in any meaningful jeopardy.
Conclusion: grounds of review
[116] In summary I consider that:
(a)
there was no eirnr in the IEAA's principal findings that:
(i)
TBC acted unlawfully in expelling L and excluding E on the
grounds of gross misconduct in te1ms of s 14 of the Act; and
(ii)
the contracts between TBC and the boys' parents cannot
override the Act or give TBC the right to terminate (and
effectively to expel and exclude) on grounds that were
inconsistent with the Act;
(b)
the IEAA's decision was within jurisdiction;
(c)
the IEAA did breach of natural justice in failing to give TBC the
opportunity to respond to its adverse findings before releasing its
decision; and
(d)
there is no merit in any of the other grounds of review.
Relief?
[117] Given my finding that there was a natural justice breach here, consideration
must be given to the issue of relief.
The standard options in judicial review
proceedings are to:
(a)
declare the decision invalid;
(b)
quash the decision;
(c)
refer the matter back to the IEAA in order that the matter can be
reconsidered in light of what TBC would have said had it been
afforded the oppmiunity; 24 or
(d)
do none of the above, m the exercise of the Court's remedial
discretion.
[118] I am persuaded that the last option is appropriate here, for the following
reasons:
(a)
first, I have heard fully from TBC on the eITors it alleges are
contained in the report. The hearing before me has thus effectively
"cured" the earlier breach of natural justice;
(b)
secondly, despite TBC's submissions, I have concluded that the IEAA
was right in all of the impugned aspects of its decision. In seems
wrong in principle to declare a coITect decision invalid or to quash ~t.
For the same reason it would be pointless to refer the matter back;
(c)
thirdly, the relief ordered by the IEAA was limited and hardly
disproportionate.
Had (for example) the IEAA recommended that
TBC be suspended or removed as a signatory to the Code the natural
justice breach would necessarily be of much more consequence; and
24
Although TBC originally submitted that the IEAA was functus, it later conceded that it was not.
(d)
fomihly, the breach of natural justice has not had (or, but for these
proceedings, would not have had) any detrimental effect on TBC's
reputation. The rep01i was expressly said to be not for publication
and confidential to the paiiies.
Result
[119] I dismiss the application for review and confirm the IEAA's decision
accordingly. There is no reason now for TBC not to comply with the remedial
directions the IEAA has made and it should do so foiihwith.
Post script: confidentiality and gratitude
[120] As I have just said, the IEAA directed that its decision was not for publication
and was confidential to the paiiies. While my decision is able to be published it was
agreed that the names of the three students and their family members should be
suppressed. I make that order (and this judgment has been anonymised) accordingly.
[121] Lastly, I record my thanks to counsel assisting the Comi, Mr McHe1rnn. In
the absence of any contradictor his careful and thorough submissions were
invaluable.
Solicitors:
Holland Beckett, Tauranga for Applicant
Crown Law, Wellington for First Respondent
J S McHerron, Barrister, Woodward Street Chambers, Wellington, amicus cmiae