Ensuring Consistency with the Education Act 1989: in a child’s best interests.
John Hancock & Clair Trainor[1]
INTRODUCTION
This paper overviews some issues facing students in the following areas: school suspensions, enrolment at school and special education. The key theme of our contribution is that, where the law is clear and well drafted, young people continue to be let down by lack of effective mechanisms to ensure compliance with the law by school boards and principals. We suggest a school review authority as a partial solution, nevertheless aware that this will not address all these compliance issues. We hope to promote discussion and debate around solutions, sharing the common ground of a commitment to effective education for all children and young people in New Zealand.
SCHOOL SUSPENSIONS
Student suspensions – what do the statistics tell us?
No discussion of educational best interests would be complete without reference to how students are affected by school stand‐downs and suspensions. In our perception, there has been less attention paid to this area since the Ministry of Education stopped producing reports setting out the statistical evidence on a quarterly basis. Prior to 2000, there would have been three reports by this time in the year. The current practice is to produce one report in April for the previous year. Below we refer to some statistical information taken from the Ministry of Education’s reports between January 1996 and December 2002[2]. The reports are comprehensive and well presented for those who wish to view the full details. Table One 2000 school year 2001 school year 2002 school year Total stand 16,921 17,141 17,912 downs for the year Total 5,108 4,802 4,937 suspensions for the year Grand total 22,029 21,943 22,849
Table Two
1996 school year
2000 school year
2001 school year
Total stand 6545 16,921 17,141 downs or specified suspensions for the year Total 3471 5,108 4,802 4,937 suspensions or unspecified suspensions for the year Grand total 10,016 22,029 21,943 22,849 N.B. Since 2001, school roll trends have been included in the Ministry’s suspension reports. This is of course a relevant factor, and the figures are as follows: At 1 July 2001, 733,924 students attended New Zealand’s 2,718 schools (it is noted that this is a 0.6% increase since July 2000). At 1 July 2002, 748,084 students attended New Zealand’s 2,699 schools (a 2% increase since July 2001). In the second table, you will note we have compared figures prior to the July 1999 amendments under the Education Amendment Act (no.2) 1998 with those after that date. It has been said that it is anathema to compare stand‐downs with the old specified suspensions. We don’t agree. It is our view that the changes in terminology that came in during 1999 should not obscure the actual reality that more and more students are missing school every year Yes, it is true that those who are ‘merely’ stood down do not face the risk of permanent exclusion from their school and may only miss short periods of schooling, but this will still cause disruption to the child and their family. Before leaving the area of suspension statistics, we note the following three matters. Firstly, the total specified and unspecified suspensions for 1990 were 4,401[3]. Can the 2002 figure of 22,849 be blamed entirely on increases in the numbers of students and “bad kids”? Secondly, the percentage of Maori students stood down or suspended continues to be very high compared to Maori as a proportion of the population. The table below shows this. It appears that the Ministry of Education’s Suspensions Reduction Initiative (introduced in 2001) has had an impact by reducing stand‐downs and suspensions of Maori students in specific areas of the country in 2002. However, overall there is no change, creating an urgent situation for young Maori, particularly Maori males, as many of you will know.
2002 school year 17,912
Table Three Year
Maori students as % of school population
1996
20%
Maori students as % of all stand‐ downs or specified suspensions 41%
2000 21% 39% 2001 21% 40% 2002 21% 41% The third point illuminated by the suspension statistics is that, while 75% of schools did not suspend a single student, 2% of schools were responsible for 35% of all suspensions and 1.5% for 24% of all stand downs. There is no doubt that where you live in New Zealand and which school you attend affects your chances of completing your education without missing school. This is clearly unfair and in our view is directly connected to the lack of case law guidance for school boards and principals. This is why we join the Commissioner for Children’s Office and others to support the introduction of a Schools Review Authority into law. This question will be taken up again later in our paper. Moving from statistics to legislation, one of the trends we have noticed since the legislative amendments came into force in July 1999, is that the principal’s decision to stand a student down does not always reach the statutory threshold necessary to justify that stand down. This point is one to be watched for in the context of steadily increasing numbers of stand‐downs from school (see Table One above). As you will probably be aware, the Education Act 1989 says under section 14, that: 14 Principal may stand‐down or suspend students (1) The principal of a state school may stand‐down or suspend a student if satisfied on reasonable grounds that— (a) The student's gross misconduct or continual disobedience is a harmful or dangerous example to other students at the school; or (b) Because of the student's behaviour, it is likely that the student, or other students at the school, will be seriously harmed if the student is not stood‐down or suspended for an unspecified period. [emphasis added] The threshold for gross misconduct has been set very high by the Court, although this simply confirms the clear wording of the statute[4]. It must also be noted that the misconduct must set a
Maori students as % of all suspensions or unspecified suspensions *Figures for specified and unspecified suspensions not separated out by ethnicity in 1996 report 47% 47% 47%
harmful or dangerous example to other students. We find this factor is often overlooked by principals when deciding whether or not to use their section 14 powers. Smellie J says in D v M and the Board of Trustees of Auckland Grammar School[5]:
Can the Headmaster’s Decision Stand
Because of the danger of fire and the very clear prohibition laid down, there is room for the view that the plaintiff’s conduct in smoking one cigarette [on a school camp] on the 9th March 1995, in the circumstances found by me was gross misconduct. I have reservations, however, as to whether it could properly be described as a dangerous or harmful example. It was something carried out at night, furtively, well away from the rest of the boys and in the absence of any authority figure. To describe it as flagrant or blatant is going too far, in my judgment. And it was only the subsequent apprehension and to some extent the way in which it was dealt with at the time [by a teacher] that caused it to be an example at all. [emphasis added] It is our experience that the point is rarely considered by principals and school boards in carrying out their statutory duties. Prejudice to a student’s education is frequently the result. This is disappointing as the statute is clear and there is case law in support. Yet obtaining compliance with the law can be difficult when the review options are limited. In the case from which we have just quoted, the student concerned was at a tertiary institution by the time the Court’s decision was handed down three years later. Additionally the family had to mortgage their house to pay the legal fees that applied to the judicial review proceedings. We note that they had made a complaint to the Office of the Ombudsmen before filing the proceedings in the High Court. Whilst the Ombudsman made a recommendation favourable to the student, the school declined to follow the recommendation. As the Ministry of Education declined to intervene, proceedings were issued
ENROLMENT AT SCHOOL
The right to a free education
Section 3 of the Education Act 1989 confers the basic right to education on all people, (who are not “foreign” students) aged from 5‐19 years. Section 3 states: 3 Right to free primary and secondary education Except as provided in this Act or the Private Schools Conditional Integration Act 1975, every person who is not a foreign student is entitled to free enrolment and free education at any state school during the period beginning on the person's 5th birthday and ending on the 1st day of January after the person's 19th birthday. It follows that section 3 is the most purposive and fundamental provision of the Education Act, recognising that the right of a young person to access free, state‐funded schooling is an essential aspect of New Zealand’s education system. This right applies to all New Zealand citizens and residents. Refugee children are also accorded the right to enrol and receive free education by way of New Zealand’s obligations under the United Nations Convention on the Status of Refugees[6].
Compulsory Enrolment
Section 20(1) of the Education Act 1989 provides that enrolment at school is compulsory for children aged between the ages of 6 to 16: 20 New Zealand citizens and residents between 6 and 16 to go to school (1) Except as provided in this Act, every person who is not a foreign student is required to be enroled at a registered school at all times during the period beginning on the person's 6th birthday and ending on the person's [16th] birthday. The concept of compulsory enrolment reflects the prevailing social attitude that it is in the best interests of a child to be enroled at school and accordingly parents who fail or refuse to enrol their children are subject to conviction and fine.[7] Enrolment at school ceases to become compulsory once a student turns 16, which is consistent with the age a child can leave home without parental consent. The Secretary of Education can also exempt a 15 year old student from attendance[8] where the educational problems, conduct of the student or suitability of the school environment are such to convince the Secretary to do so. In our experience this option is used frequently with regards to 15 year‐old students excluded from school who fail to be accepted into another school as a result of their exclusion and require considerable efforts by the Ministry of Education to facilitate a placement.
Excluded Students
It follows on from this that one of the great loopholes of the Education Act 1989 is its failure to compel schools to enrol students aged 15 years or younger who have been excluded from school. Whilst the principal of a state school is required to make reasonable efforts to find a place for an excluded student at another school, within 10 school days of the exclusion[9], a school may legitimately refuse to enrol an excluded student[10]. If these efforts fail, there is no obligation on the principal to continue to facilitate the enrolment of that student, other than to notify the Ministry of Education of their efforts[11]. In this event, an excluded student will remain outside the education system until the Ministry facilitates an enrolment or exemption, despite the statutory requirement under section 20 that they attend school. This process can take months where schools are reluctant to enrol the student. Whilst the Secretary of Education has the power to direct a school to enrol an excluded student, it is our experience that this power is seldom utilized, with correspondence school or exemption (in the case of 15 year olds) often the preferred option in the face of school opposition to the student’s enrolment.
Foreign Students
Foreign students are not accorded the rights of resident and refugee children to free, compulsory education, with their enrolment based on the consent of the Board of Trustees[12]. However, once a foreign student is enroled, they are entitled to the same rights as resident students, save for fees which remain at the level set by the Board. Foreign students on Government‐approved exchange programmes are exempt from the restrictions facing other foreign students[13].
Enrolment Schemes
Against the long‐standing ethos of free, compulsory education in New Zealand, the development of the law relating to the use of enrolment schemes to limit the enrolment criteria of certain schools has proved a controversial, politicised, issue[14].
Background
The current statutory criteria governing enrolment schemes has largely been shaped by two court cases decided in the 1980’s, both concerning Palmerston North schools. These cases, Brown v Minister of Education[15] and Goldfinch & Others v Attorney General & Director General of Education[16] dealt with similar facts. Students living in one part of town were compelled by enrolment schemes to attend schools in another part of town, rather than those in their immediate neighbourhood. The legislation at the time provided that a school subject to a scheme had to be “reasonably convenient” to those students compelled to attend it. In Goldfinch, the Director‐General of Education argued that the scheme in question, which compelled students to attend a school on the opposite side of town, was designed to make best use of the schools in the area and, in any event, did not breach the requirement of “reasonable convenience”. However, Ongley J held that locality was the paramount concern when determining reasonable convenience, an approach confirmed by the Court of Appeal in Brown and reflected in today’s legislation. Currently, section 11E (introduced by the Education Amendment Act 2000) of the Education Act 1989 states: 11E How a school defines its home zone (1) A state school's home zone must be defined by geographic boundaries, and must be described in such a way that any given address is either within or outside the home zone. (2) A school's home zone— (a) must be an area for which the school is a reasonably convenient school for a student living in that area to attend; and (b) may exclude any area for which another school is also a reasonably convenient school for a student living in that area to attend; and (c) may exclude any area which it is desirable to exclude for the purpose of allowing the Secretary to make best use of the existing network of state schools in the area. Section 11E(2)(c) provides some centralized control of the operation of enrolment schemes, whereby the Ministry of Education can override arguments of proximity where it is necessary to do so in order to make most efficient use of the network of schools in a particular area.
Current Issues Relating to Enrolment Schemes
Whilst schools with an enrolment scheme must generally accept the enrolment of local students, sections 11O and 11OA give schools the ability to review and, if necessary, annul the enrolment of students whose parents it believes on reasonable grounds have temporarily moved into the school zone for the sole purpose of gaining enrolment for their child. A school may also review and annul enrolment of any student it believes has been enroled on the basis of false information about the residence of the student.
The issues relating to temporary residences have become increasingly topical as popular schools with burgeoning rolls face increased demand. Unfortunately, in our experience sections 11O and 11OA have provided difficulties for students living within the school zone, whose personal situations do not conform within the norm.
Case Examples
An example of this was the case of a 16 year‐old girl, whose mother was dead and father lived overseas. She lived with family friends within the zone of a popular Auckland school. The school refused to enrol her in the basis that, whilst she was living within the zone, she was not living with her guardians and accordingly was living in what the school deemed to be a temporary residence. The school erroneously invoked section 11OA to justify its position. Whilst the Ministry of Education intervened successfully on the student’s behalf, the student’s enrolment was delayed for some months as a result. We have also received notice of a school refusing to accept the enrolment of the children of newly resident immigrant family in the area on the basis of purported temporary residence, despite the family providing reasonable evidential documentation as to the genuine nature of their residence such as utilities accounts and a residential tenancy agreement. The school’s position appeared to be based more on its preconceptions of new immigrants rather than the “reasonable grounds” provided for by the Act. Typically, it was the children who suffered, in terms of educational detriment, through no fault of their own whilst the matter was in dispute. Another concerning development we have become aware of, is that of a secondary school developing and administering its own defacto enrolment scheme to the detriment of students who are entitled to attend, apparently with the knowledge of the Ministry of Education. This is clearly inconsistent with the Education Act 1989 but unfortunately appears to have been little effort by the relevant government agencies to rectify this situation. Additional issues arise where a student moves out of the school zone after enrolment. Normally a student’s enrolment at the school would not be affected, as the Act does not provide for periodic reviews of enrolment status, instead implying that enrolment is continuous from acceptance. However, section 11OA(1)(c) allows a Board to review and annul the student’s enrolment in such circumstances if it believes on reasonable grounds that the student was enroled at the school whilst living at a temporary residence. Whilst the section is designed to protect overloaded schools from parents who intend to exploit the enrolment scheme system, this law has the potential to place families with genuine circumstances in the difficult position of having to prove their intentions to the satisfaction of the Board, which may have expeditious motives for reviewing the enrolment. Notwithstanding that a Board’s decision to annul a student’s enrolment is ultimately subject to review by the Secretary of Education[17], it appears to us that the best interests of the student concerned is submerged beneath the complex framework of section 11, which does not make any reference to the views or best interests of the student. Their voice is missing from this process entirely.
SPECIAL EDUCATION
A Brief Legal Update
There are now a number of general statements about meeting the educational needs of students with disabilities. International instruments such as the United Nations Convention on the Rights of the Child refer to disabled children’s rights[18]. The Education Act 1989 refers at section 60A to the National Education Goals (NEGS) and the National Administration Guidelines (NAGS). These are a statement of government policy for education and of course impose obligations on the school system. The NEGS include the following: ∙ Equality of opportunity ∙ Identification and removal of barriers to achievement ∙ Identification of students with special needs and the provision of appropriate support for those needs. The NAGS include: ∙ Monitoring student progress against national objectives ∙ Analysis of barriers to learning / achievement ∙ Implementing strategies to overcome barriers to learning Some students with disabilities and their parents felt these statements weren’t according with the day‐to‐day reality – hence the special education case of Daniels[19]. The case was argued prior to the Human Rights Amendment Act 2001 (HRAA 2001) coming into force[20]. The decision of the Court of Appeal was handed down in February 2003 and there was a remedies hearing in the Auckland High Court in August 2003. That hearing resulted in a deed of settlement from which the parties produced a media release. The decision of the High Court in Daniels may be summarised in the following terms: ∙ The Ministry of Education (via “Special Education 2000”) unlawfully provided special educational services other than under section 9 of the Education Act 1989[21]. ∙ The government policy of closing special education units was unlawful. ∙ There was no breach of the Human Rights Act 1993 nor the New Zealand Bill of Rights Act 1990, the Court taking the view that it was not the Court’s role to “seek equality of results”, but rather that of the government, should it so desire. The first point the Court made is interesting. Section 9 of the Education Act 1989 states that: Special education (1) If satisfied that a person under 21 should have special education, the Secretary [for Education] shall— (a) Agree with the person's parents that the person should be enroled, or direct them to enrol the person, at a particular state school, special school, special class, or special clinic; or (b) Agree with the person's parents that the person should have, or direct them to ensure that the person has, education or help from a special service. The Court of Appeal overturned the High Court on this point. It achieved this by making an historical distinction between students receiving “special education” under section 9 agreements and those with “special educational needs” under section 8 of the Education Act[22]. Section 8 states that:
Equal rights to primary and secondary education (1) Except as provided in this Part of this Act, people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at state schools as people who do not. The Court also expressed the view that because decisions on how to use Special Education 2000 resources were delegated to school boards or “clusters” of schools, the Ministry of Education was only required to have section 9 agreements (with students and their parents) where students were in a special school or receiving Ongoing Reviewable Resource Scheme funding (ORRS)[23]. With respect to the Court, this appears to be a tautological argument, which denies the reality of an expeditious bulk‐funding model introduced by the Ministry of Education via SE 2000. The decision of the Court of Appeal in Daniels may be summarised accordingly: ∙ The Ministry of Education’s bulk funding policy (“Special Education 2000”) was held to be lawful (largely by a distinction being drawn between students receiving “special education” (section 9 Education Act 1989) and those with “special educational needs” (section 8 Education Act 1989). ∙ The government’s policy of closing special education units was unlawful. N.B. There was no discussion of the application of the Human Rights Act nor the New Zealand Bill of Rights 1990. As mentioned the Court of Appeal sent the case back to the High Court for a remedies hearing. The hearing in August this year resulted in a deed of settlement from which the parties released a media statement. The essential feature of the deed was that an information gathering exercise would be conducted to look into special education, with parent representatives at local level, open forums and parent perspectives [on gaps in resourcing presumably] included in the reporting process. Exactly how this will translate into action for children with special needs remains to be seen.
REVIEW OF DECISIONS BY BOARDS OF TRUSTEES
What are the current mechanisms to obtain review of a School Board’s decision? Currently, students and parents who wish to seek review of what they perceive to be an unfair or erroneous decision by a Board of Trustees or a Principal have limited, somewhat removed avenues of recourse. For example, a family who wishes to appeal the decision by a Board of Trustees to exclude a suspended student is limited to the following options: ∙ Asking the Board to reconsider their decision ∙ Requesting that the Ombudsman review the Board’s decision ∙ Seeking judicial review of the Board’s decision in the High Court None of these options are particularly satisfactory for the student and family concerned. Once a Board has made its decision, it is highly unlikely that it will change its mind, particularly considering the nature of the available external review options. Furthermore, there is no legal obligation or criteria under the Education Act for a Board of Trustees to reconsider or review its decision in the event of an appeal.
The Ombudsman
The Ombudsman is an Officer of Parliament, usually an ex‐judge, who has the power to review and make findings relating to statutory decision‐making powers[24]. The advantage of this process is that it is free and accessible. However, the crucial drawback is that the Ombudsman’s findings are recommendatory only[25] and, whilst persuasive, are not binding on the entity or individual subject to the review. A Board can therefore choose to take no notice of an Ombudsman’s recommendation, with the only sanction being the possibility of a mention in the Office of the Ombudsmen’s annual report to the House. The timeframe for review is also lengthy due to the Office’s heavy workload.
High Court Judicial Review
Judicial review in the High Court, however, is binding. It is also prohibitively expensive for most New Zealand families and, depending on the nature of the proceedings and levels of animosity between the parties, it can take a long time before a final decision is made. In the case of an excluded student, it is likely that the student will have moved on to another school (or dropped out of the school system altogether) long before the High Court issues its judgment, except where a school has been injuncted at the interlocutory stage of proceedings to re‐enrol the student pending the outcome. These factors mean that there are very few legal precedents informing schools and families on the limits of school statutory functions under the Education Act 1989. Cases such as D v M and the Board of Trustees of Auckland Grammar School[26] take on great significance as they offer rare judicial consideration and guidance on matters such as, in that case, a suspension under section 14(1)(a). The lack of an accessible system of review and redress means that Boards are often making decisions in a legal vacuum and can afford to make decisions that are prima facie contrary to the Act. In our experience, Boards are usually quite well aware that the likelihood of any ramifications in the Courts regarding a disputed decision is minimal.
Options for Change – an Education Review Authority
We accordingly consider that for all the above reasons the present system is clearly not in the best interests of the students who are subject to schools’ statutory authority. Organisations such as the Office of the Commissioner for Children have been calling for the establishment of an accessible independent education review authority with jurisdiction to review and make binding decisions about disputes in schools, for quite some time[27]. The Green Party MP Metiria Turei has accordingly taken the initiative and drafted the Education (Schools Review Authority) Amendment Bill, which if enacted would establish an Authority with such jurisdiction, including mediation facilities. The Minister of Education responsible for the pre‐tertiary education sector, Hon Trevor Mallard, has dismissed the initiative. However, the idea is hardly revolutionary, with England and Scotland having established equivalent authorities designed to provide independent avenues of review. A report on these jurisdictions by Nicky Darlow, formerly of the Wellington Community Law Centre, provides invaluable comparative analysis on this issue[28]. Examples follow.
England – Independent Appeal Panel[29]
In England each Local Education Authority (LEA), with jurisdiction over a specified area, must establish an Independent Appeal Panel, which hears and makes findings on appeals by parents about
school decisions[30]. The Panel consists of three to five members and a clerk and must comprise of a lay person, with no professional experience of the education system, a person with professional expertise within education and a chairperson who preferably will have a legal background. Most importantly there are number of procedural requirements to ensure impartiality, including that no person employed by the school or the LEA may sit on the Panel[31]. Parents whose children have been subject to a decision by a school disciplinary committee are informed of the appeal process, including timeframes and a precedent document for a notice of appeal required to be lodged with the Panel. The appeal process itself is similar to that of an informal tribunal hearing, with each party to the proceeding able to give written or oral evidence to the Panel. Parties to the proceeding and Panel members are able to question witnesses. However, witnesses are not compellable and the hearing must be conducted in a fair manner. Whilst the Panel’s brief allows it to reinstate a suspended or excluded student, it does not have jurisdiction to void the original decision. Its decision can, however, be attached to the student’s file alongside the suspension/exclusion record. As in New Zealand, parents who wish to have the original decision voided must either seek Ombudsman or judicial review. In addition, parents with children with special educational needs can seek help and advice from an Independent Panel for Special Education Advice (IPSEA), established by the LEA. If a dispute with a school or LEA concerning a special needs student cannot be resolved, a parent can take the matter to a Special Educational Needs Tribunal for determination, with independent advice and representation from IPSEA, if needed[32]. Parents of special needs students in England therefore receive far more external support than their New Zealand counterparts. Against the background of the Daniels case, we believe that it is timely for the Government to consider implementing a similar model in New Zealand.
Scotland – Education Authority Appeal Committee[33]
Scotland has a similar procedure of review vested under section 28H of the Education (Scotland) Act 1980, which establishes the right of appeal to an Education Authority Appeal Committee. The Committee consists of up to seven members, including members with professional background in education and if relevant, special needs education. Like the English system, the members are precluded from having any association with the school subject to the appeal process. The appeal procedure itself is similar to the English system, in that it is run like an adjudicative tribunal. However, the Committee has jurisdiction to overturn the original decision and can consult with Scottish Ministers prior to making their decision, which must be issued within 14 days from the close of the hearing. If a parent wishes to appeal the Committee’s decision they may file for leave to appeal in the local Sheriff’s Court within 28 days of the date of the findings.
British Columbia – Canada[34]
The British Columbian education jurisdiction does not include provision for an independent appeal authority. However, it does require Boards to establish an appeal process to hear appeals by students and their families. In this respect it goes further than the New Zealand system, which confers no explicit requirement for Boards to review their decisions. A British Columbian Board is also a very different entity from a New Zealand Board of Trustees. Each school Board in British
Columbia (of which there are 60) has jurisdiction for up to 40 schools and is headed by a superintendent. This is a far more centralized form of school governance than our own system. The system, however, has been criticized for its lack of impartiality and hurtful impact on appellant students[35]. However, it is notable that the British Columbian education system prevents the exclusion of students aged under 16, section 75(1) of the School Act 1989 providing that: “A board must make available an education programme to all persons of school age resident in its district who enrols at school in the district.” [emphasis added]. The significant factor here is the requirement that the Board provide an education for all students of compulsory school age. This duty is not limited to “reasonable efforts” on the part of a Principal, like the New Zealand system, to ensure the enrolment of an excluded student. Hence, anecdotal evidence from the Darlow report suggests that suspension rates in British Columbia are “negligible”[36].
CONCLUSIONS
We are of the view that the current system of review needs a considerable overhaul in order to bring it line with a “best interests of the student” perspective. Whilst no‐one would like to see schools descending into a morass of litigation, the lack of external accountability of Board decisions at present compromises the basic rights of students to fair educational opportunity and fair responses to allegations of misconduct. It is contrary to established principles of justice that the Education Act establishes an in‐house adversarial system for determining suspensions, with no external right of appeal or specified appeal process. We believe that the establishment of an education review authority would ensure greater compliance with both the specific and purposive requirements of the Education Act, without necessarily compromising the individual integrity and independence of each school Board. This is surely in the best interests of both students and educators alike. N.B. Grateful thanks to Jeannette Faltin, a law student visiting us from Germany, for her research assistance. YouthLaw Tino Rangatiratanga Taimamariki November 2003 [1] Solicitors specialising in education law at YouthLaw Tino Rangatiratanga Taitamariki. YouthLaw has been providing services in this area of law to children and young people for 15 years. [2] www.minedu.govt.nz [a search for “suspension*” will produce the reports] [3] Figure quoted in: David Fleming, A Suspension by any other name? Changes to school discipline in New Zealand, in “Education Law in the Age of Human Rights”, Australia New Zealand Education Law Association, Auckland 1999.
[4] M & R v Syms and the Board of Trustees of Palmerston North Boys’ High School, unreported CP302 & 303190, HC, Wellington, 5 Dec. 1990, at pp 18ff. [5] Unreported, M.477/97, HC Auckland, 11 June 1998, at p.62. [6] Article 22, see also articles 22(1) and 28(1) of the United Nations Convention on the Rights of the Child [7] section 24(1) Education Act 1989. [8] section 22 Education Act 1989 [9] section 15(5) [10] section 17D(1) [11] section 15(6) [12] section 4(1)(a) [13] section 4A and the Education (Foreign Students) Notice 2002 (New Zealand Gazette, March 2002, p731). [14] See Hannan, Recent Developments in School Law, New Zealand Law Society Seminar, October 2001 pp 15‐21 [15] [1985] 2 NZLR 356 (Court of Appeal) [16] (High Court, Palmerston North, A126/83, 20 December 1983, Ongley J) [17] section 11P Education Act 1989 [18] Articles 23, 28 & 29. [19] Daniels v Attorney‐General, unreported, HC Auckland, 3 April 2002 & 27 August 2003; Attorney‐ General v Daniels [2003] 2 NZLR 742; [20] The HRAA 2001 extended prohibitions against discrimination to the government and its agents under Part 1A of the Human Rights Act 1993. [21] Section 9 creates the power for the Ministry of Education to enter into agreements with parents, or direct parents to take steps to address a child’s need for special education through enrolment in a state or special school, a special class, or special clinic or by obtaining help from a special service. [22] Attorney‐General v Daniels [2003] 2 NZLR 742, at paragraphs 37‐54. [23] Above note 10, at paragraphs 55‐57. [24] section 13(1) Ombudsman Act 1975 [25] section 22 Ombudsman Act 1975 [26] Above, note 5. [27] Office of the Commissioner for Children, Briefing Paper to Minister of Education, April 1997 [28] Darlow, School suspensions and exclusions – a refection of behaviour or behaviour management?, November 2002, Winston Churchill Memorial Trust Fellow [29] for more info, ibid paras. 231‐256 [30] Schedule 18, School Standards and Framework Act 1998 [31] for a detailed summary of the UK appeal process visit http://www.dfes.gov.uk/publications/guidanceonthelaw/10‐99/exclude.htm [32] http://www.ipsea.org.uk/ [33] ibid paras 256‐271 [34] ibid paras 272‐294 [35] ibid [36] ibid para 205