1. Introduction

This Guidance is provided to assist all those associated with the stand-down or suspension process under the amended legislation that took effect on 12 July 1999.

It is also essential to read:

• Sections 13-18 of the Education Act 1989 (the Act) as amended by the Education Amendment Act (NO.2) 1998;
• Education (Stand-down, Suspension, Exclusion, and Expulsion) Rules 1999, (see Appendix 2); and
• Education Circular 1999/06 Suspension and Expulsion of Students from Private Schools, available at www.minedu.govt.nz/circulars

Definitions

Stand-down means the formal removal of a student from school for a specified period. Stand-downs of a particular student can total no more than 5 school days in a term or 10 school days in a year.

Suspension means the formal removal of a student from school until the board of trustees decides the outcome at a suspension meeting.

The principal of the school, or in the absence of the principal, a person directed by the board of trustees under Section 77(I) of the State Sector Act 1988 to act as principal, is the only person who can make the decision to stand-down or suspend a student from the school under Section 14(1) of the Education Act 1989. Such a direction, eg. to the deputy principal, can only take effect where the principal is absent, eg. special leave, sick leave, aft ending a conference, or there is a vacancy for the principal’s position. It is preferable that the board gives the direction in writing so that it can defend its position if challenged.

The board of trustees of a school is required to hold a meeting of the board, within 7 school days of the suspension, to decide the outcome of a suspension [15(4), 17(4)].

Following a suspension, the board may decide to:

1. lift the suspension without conditions;
2. lift the suspension with reasonable conditions;[1]
3. extend the suspension with reasonable conditions for a reasonable period;[2]
4. exclude or expel the student.

Exclusion means the formal removal of a student aged under i6 from the school and the requirement that the student enrol elsewhere.

Expulsion means the formal removal of a student aged i6 or over from the school.

If the student wishes to continue schooling, he or she may enrol elsewhere.

Exclusion and expulsion are for the most serious cases only.

Gross misconduct must be striking and reprehensible to a high degree and sufficient to justify removal (M and R v S and Board of Trustees Palmerston North Boy’s High School (1990) HC: Palmerston North, CP: 302 and 305 5/12/90, McGechan, J, see pages i8 & 19 of these Guidelines).

Purpose

Section 13 of the Act sets out the three-fold purpose of the provisions for stand-down, suspension, exclusion and expulsion:

13. Purpose – The purpose of the provisions of this Act concerning the stand-down, suspension, exclusion, or expulsion of a student from a state school is to:

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

(b) Minimise the disruption to a student’s attendance at school and facilitate the return of the student to school when that is appropriate; and

(c) Ensure that individual cases are dealt with in accordance with the principles of natural justice.

Context

Sections 13-18 of the Act provide the framework for stand- downs, suspensions, exclusions and expulsions. However, they need to be considered in the context of the broader philosophy of education, as expressed in other sections of the Act. The main references follow.

(a) Right to education

Section 3 of the Act states that all New Zealanders are entitled to free enrolment and free education at any state school from the age of 5 until the end of the year in which they turn 19. This is subject to provisions arising from approved enrolment schemes and integration agreements.

‘“Reasonable conditions” in this context implies that the conditions are within a parent’s control and are achievable by the student. Conditions that rely on the action of an external agency and are not under the control of a parent or student cannot be considered reasonable.

(b) National education guidelines

Section 6oA empowers the Minister of Education to publish statements of desirable achievements by the school system (National Education Goals) and desirable principles of conduct or administration (National Administration Guidelines). Boards of state schools are required to help all students realise their full potential by providing appropriate learning programmes and addressing barriers to learning and individual needs while respecting cultural differences.

This requires schools to report to parents any matters that may put a student at risk of not achieving (National Administration Guideline 1). The implication is that any behavioural matters that may lead to a stand-down or suspension should have previously been brought to the attention of parents.

(c) Right to counselling

Section requires all principals of state schools to take all reasonable steps to ensure that all students get good guidance and counselling. This implies that behavioural matters that may lead to stand-down or suspension have previously been acted on in other ways by the school.

(d) Obligation to parents

Section 7 requires all principals of state schools to take ‘> reasonable steps to ensure that parents are told of matters which, in the principal’s opinion, are preventing or slowing the student’s progress through school or are harming the student’s relationships with teachers or other students.

Natural Justice

Section 13(c of the Act states that the purpose of the provisions is in part to ensure that individual cases of the stand-down, suspension, exclusion or expulsion of a student from a state school are de. within accordance with the principles of natural justice.

These principles are recognised in many statutes to which boards of trustees and principals are subject. The most important of these is the New Zealand Bill of Rights Act 1990. Section 27, which applies to boards of trustees, S states:

(i) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations and interests protected or recognised by law.

(ii) Every person whose rights, obligations or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

Acting fairly and reasonably

Natural justice can be defined as the obligation to act fairly and reasonably in the circumstances. What is required will vary according to the situation. The principles of natural justice must guide the making of any decision that will affect a person’s rights, obligations or interests. See Judicial Guidance, pages 18/19.

The principal’s decision

From the time the principal begins considering if a student should be stood-down or suspended, the principles of natural justice apply. In other words, the principal must act fairly and reasonably in the circumstances.

Acting fairly and reasonably applies before the principal decides that an individual’s education is to be interrupted through either stand-down or suspension. The principal has to consider the circumstances of each situation and be satisfied that it warrants standing-down or suspending the student.

This means that the principal cannot stand- down or suspend a student automatically just because that student has broken a school rule. The principal must carefully consider the evidence and all the circumstances prevailing at the time. Justice Smellie in the case S v M and Board of Trustees Auckland Grammar School (1998) clarified this in page 61 of the judgement quoted on pages 18 and 19 in these Guidelines. It is within this context that a school’s ‘zero tolerance’ of behaviour is untenable.

The student’s rights

If the principal decides that the student’s actions come within the criteria of section 14(1) of the Education Act 1989 and, in consideration of other circumstances, warrants stand-down or suspension of the student, natural justice means that the student has the right to:

• remain on the school’s register;
• have the stand-down/suspension procedures consistently applied;
• be given notice of possible outcomes (as this could help determine the nature of representation);
• know the reason for the stand-down/suspension (know the case or charge);
• know all the information (evidence) on which the principal’s decision to suspend was based;
• be able to comment on/challenge that information (be heard);
• be able to correct adverse or biased material and challenge irrelevant material (defend oneself);
• have time to prepare a response to the information - therefore the information and the principal’s report is to be in hands of the student/parent at least 48 hours before the hoard meeting; and
• be represented at any meeting about the stand-down or suspension.

The board’s actions

Suspension must be followed by a meeting of the board (or its disciplinary committee as set out in the board’s policy) to decide what the outcome will be.

Parents should be given copies of any board policies relating to the suspension.

The board of trustees must also act fairly and reasonably. In addition to those principles of natural justice set out above, which also apply to the board meeting, the board must receive the principal’s report and hear with an open mind what the student/parent/representative has to say. The chairperson must be prepared to rule whether specific information or material presented by either the principal or the student/parent/representative is relevant in considering the suspension.

The rules allow for the board to decide on the process it will use to arrive at its decision on the outcome of a suspension meeting. However, to meet the principle of natural justice that the person “bringing the charge” (the principal who suspended the student) shall not also be the final arbiter, the board should make its decision without the recommendation or vote of the principal. The principal may be asked to leave the meeting while the board makes its decision. If the principal stays, the student and family may stay.

Any trustee, including the staff representative, who personally knows the student concerned, or who has any other personal association with the circumstances of the suspension, should declare this at the outset. It would be usual for that trustee to consider whether there is a potential conflict of interest that might make it appropriate not to take part in the suspension meeting. The board might also consider whether a member’s prior knowledge is likely to unfairly influence the outcome. Cultural or other considerations, however, may mean it is appropriate, under some circumstances, for the trustee to continue to be involved.

Please note: the board can only rule on the original charge being brought by the principal. Any prior history that the student may have cannot be considered[3] and if the original information is proved incorrect, the board cannot change the charge to something else.

Suspensions in the broader context of behaviour management

Deciding to stand-down or suspend a student is a response of last resort. These are serious decisions, which can have far-reaching consequences for the student (and other members of their family). They should be made only after considering all the implications for the educational future and life chances of the student.

Student behaviour leading a principal to consider stand-down or suspension maybe a symptom of serious underlying problems that may require the help of other agencies. Counselling and communication with parents (under section 77 of the Act) will provide the principal with useful information to take into account.

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

Other factors may also need to be taken into account. For example, the student maybe from a different cultural background, or the student (and/or parent) may not have English as a first language. These factors may be important both in deciding if a stand-down or suspension is the proper course of action, and in ensuring that any barriers to understanding the information being provided to the student and/or the parent, including language, are removed.

Many schools use restorative justice principles and develop behaviour management programmes that allow for all students to be catered for within their school.

If principals or boards believe they need assistance to handle these matters, they should make contact with those in their community who are best able to help. The Ministry has provided an information sheet for parents that is available from the school. It is also available in other languages on the ministry website http://www.leadspace.govt.nz/tools/lsquery.php?id=6&s=Suspension and click on the language required.