Australian school principals often find themselves navigating complex legal terrain when it comes to suspending or expelling students.
Indeed, balancing the duty of care to protect the broader student body with the rights of individual students requires a solid understanding of the legal obligations involved. With each State and Territory having its own set of rules and expectations, principals need to stay informed to avoid potential legal pitfalls.
Recently, The Educator sat down with Megan Kavanagh, a partner in Colin Biggers & Paisley’s employment and safety team, and her colleague Joel Beveridge, to discuss how principals can understand the legal framework around suspension, expulsion, and the duty of care when managing disruptive students.
When asked about the key legal obligations when deciding to suspend or expel a disruptive student, and how can they ensure procedural fairness during this process, Kavanagh and Beveridge said school leaders must consider several factors when deciding to suspend or expel a disruptive student.
“First, you need to look at what your contracts and policies around discipline and exclusion provide,” they told The Educator. “Second you should ensure that the student has been afforded fairness in the assessment of their conduct.”
Kavanagh and Beveridge note that this is not so much about procedural fairness, as it is about reasonably substantiating that the conduct has occurred as alleged, and that it is sufficiently serious to give rise to discipline or exclusion under your contract.
“In the case of Seymour v Swift [involving an expulsion decision in a private school] Blackburn J reasoned that ‘there is no principle of law by virtue of which a headmaster of a private school has to act or acts in a quasi-judicial capacity and is therefore bound to apply rules of natural justice',” they said.
“In the case of Bird v Campbelltown Anglican Schools Council the court did not imply a right to procedural fairness into the contract of enrolment.”
However, Kavanagh and Beveridge noted that in the case of Gray v Marlborough College, a right to procedural fairness was implied into the contract.
“Consequently, if your policies and procedures require that you afford a student natural justice, then such standards should be applied.”
Kavanagh and Beveridge emphasised the challenging balance school leaders face in upholding a safe learning environment while respecting individual student rights. They pointed to a NSW case underscoring the duty of care schools have to protect students from “foreseeable violence.”
“The case of State of New South Wales v Mikhael illustrates that schools have a duty of care to protect students from reasonably foreseeable violence,” they said.
“When a student's behaviour poses an unacceptable safety risk, and recurrence is reasonably foreseeable, exclusion may be proportionate and necessary to fulfil the duty of care owing to other students.”
Kavanagh and Beveridge said that in the scenario that a student is suspended or expelled, there are several important ways that principals can minimise the risk of litigation from parents against their school.
These include
- Having a clear enrolment contract and supporting policy and procedures outlining the school's right to cancel a student's enrolment.
- Developing and maintaining clear, accessible policies on student behaviour and discipline.
- Applying policies consistently and fairly to avoid discrimination claims.
- Keeping detailed records of incidents, communications, and decision-making processes.
- Ensuring fairness in assessing conduct.
- Regularly reviewing and updating policies.
- Ensuring consistent application of policies and ensuring that students and the community understand the application of those policies.
- Providing staff training on policy implementation.
Kavanagh and Beveridge also highlighted the importance of principals documenting incidents and interventions to comply with legal requirements so they can safeguard themselves in cases involving student discipline or potential expulsion.
“Laws vary from state to state around the extent of documentation,” Kavanagh and Beveridge said. “Good documentation is important to defend any challenge to your decision.”
Without proper records, Kavanagh and Beveridge point out that a school's version of events may not be accepted, and poor records management can lead to significant risks and penalties.
“Schools should implement comprehensive, secure, and compliant record-keeping systems to safeguard themselves in cases involving student discipline or potential expulsion.”