Does a private school have to give its students natural justice?

Natural justice. Has a nice ring to it, doesn't it?

 "Natural" - with connotations of good, clean, healthy, and pure - ordained by mother nature, perhaps.
And "Justice" - suggesting fairness, trust, playing by the rules.

Well, natural justice is a bit less than it sounds. It really means applying certain rules of fairness when making a serious decision affecting somebody. It is not a guarantee of a substantively just outcome, but  a fair procedure in arriving at an outcome. That's why the term  has become almost interchangeable with procedural fairness (a term without such nice connotations, but which more clearly identifies the concept.)

Natural  (by Darcy Moore on Flickr)

Justice (by Nolene on Flickr)

Still, you'd think even procedural fairness was something everyone's in favour of as a matter of course. And you'd think schools would be bending over backwards to demonstrate it's a value they promote.

But do schools have to provide natural justice as a matter of law?

In Australia, the answer is "it depends". It depends both on whether you go to a government or non-government school and in which State or Territory you live.

Government schools are part of the executive government of the States and Territories. All government entities must give procedural fairness when making serious decisions affecting people's lives, unless this explicitly excluded by parliament.  This applies no less to government school authorities.

For private schools, on the other hand, the basis of the relationship between the parents of students and the school authority is contract.  It is only if the contract of enrolment explicitly includes a requirement to provide natural justice that it is provided, unless parliament creates a separate requirement that schools must provide natural justice.

So has parliament decided to do so?

In NSW, Victoria and the Northern Territory, the relevant education Acts (here, here and here) require that a private school must have school discipline policies that provide procedural fairness. Interestingly, at least in NSW, the statute explicitly rules out the implication that procedural fairness becomes a term of the contract of enrolment. A parent cannot require a school to give procedural fairness, but the government regulatory authority, the Board of Studies, can withdraw the school's registration if it fails to do so.  A parent is therefore left to complain to the Board of Studies.  With a government school a student can go to the Supreme Court to seek a remedy directly against the school if it has failed to give procedural fariness. For a non-government school, the student needs to have the Board of Studies intervene, which may raise broader questions about whether the failure justifies the de-registration of the school (unless the school has agreed in advance to include procedural fairness in the contract).

In what practical ways could this affect a student? 

Take this fictional scenario: a school has a discipline policy saying "there will be strictly no cyber-bullying between students of this school, whether at school or outside school. Any breaches will lead to serious disciplinary consequences." The school obtains evidence of belittling comments by one student against another on Facebook, suggesting the second student will be ostracised at school. Unbeknown to the school, the Facebook comments have been made by the first  student's boyfriend who was given access to the student's password. If the school fails to give procedural fairness, and the relationship with the student is governed only by contract, the school might legally say "we will expel you" with no questions asked. Procedural fairness at least gives the student a right to say "but, it wasn't me - someone else was pretending to be me".

Lest this be thought unlikely, it is worth looking at the case of Charles Phillip Bird by his tutor Vredê Jane Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419. In that case a boy in class played a pop song, grabbed " his crotch, rubbing his nipples and rolling his eyes his crotch, rubbing his nipples and rolling his eyes". He was subsequently expelled. The parents claimed he had been denied procedural fairness. The judge held that there was nothing in the contract requiring procedural fairness, and as the conduct occurred before May 2005 when procedural fairness became a requirement for a non-government school's registration, that was that.

So if a parent asked a non-government school to include procedural fairness in the contract, should it do so? In my view yes.  If the school is required to provide procedural fairness in any case, why not agree to it as part of a contract. If you intend to provide it, you are no worse off. Failing to do so on request suggests you don't really intend to provide it.

Should all schools be required to accord natural justice?

In my opinion, yes. All schools should have to provide natural justice when applying serious disciplinary measures to students, and it should be protected by the courts.

Part of the reason is that all schools are part of the regime of compulsory education. Compulsory education is justified in part on the basis that all citizens need to understand key civic values - in particular the rule of law. If students do not have the experience that discipline is imparted fairly, it will be difficult to establish a pattern of trust in the institutions of law. With apparently declining trust in democratic institutions in Australia, especially amongst young people, this appears to me increasingly important.

Moreover, non-government schools derive their power from the requirement of compulsory education. And, in Australia, they receive significant public funding to support their role. It seems to  me a student ought to derive the same rights of justice in any school so established and funded. Those Australian systems which do not require procedural fairness should follow suit. And schools, in whatever jurisdiction, ought  proudly to offer contracts to parents that embed natural justice.

Will a second High Court challenge against chaplains in schools succeed?

In my previous post I pointed out that the High Court of Australia had unanimously held that the Australian Constitution does not prevent the Australian Government funding chaplains in schools on the grounds of freedom of religion.

But they did rule (in a 6:1 decision) that the National School Chaplaincy program was invalid. Why? Because the Australian Government had not passed legislation authorising that expenditure, and the Australian Constitution requires the Executive government's access to public funds to be explicitly supervised and authorised by parliament.

The ground has shifted quickly in the couple of weeks since the decision was handed down. As I had suggested it might, the Australian parliament, supported by both major parties (but subject to questioning as to its legal validity by the Liberals), passed legislation purporting to give the necessary authority.

And today, Williams, the Queensland father who ran the first high court case, has announced a possible new challenge to the this legislation.

So will the new legislation survive a new challenge?
There are some reasons to think it may not, at least in part.

To oversimplify, the new legislation purports to grant the Commonwealth executive power to make payments (and to have made payments in the past) in relation to other legal persons in relation to a whole raft of existing programs. These range across

• school chaplaincy
• school security
• solar panels in schools
• early childhood education
• teacher shortages
• cadets in schools
• diagnostic tools for NAPLAN testing
• the development of the Australian Baccalaureate
• student resilience and well-being
• Indigenous education
• Digital education
• seat belts on school buses

And that's just a selection of the programs affecting schools. Whatever one's view of chaplains in schools, it is clear the legislation seeks to protect Commonwealth funding of a vast range of school programs.

 The legislation also seeks to rescue expenditure in many other areas:

• climate change
• water reform
• human rights assistance
• mental health
• local health initiatives
• small business support

In fact the list of programs protected runs to some 60 pages, and represents up to 10 percent of all Commonwealth government expenditure.  But this breadth of expenditure has nothing to do with whether the legislation will be successful.

The legislation appears to attempt to do two things:

1. it asserts a general right of the Commonwealth to make arrangements or grant assistance to other legal entities, whether or not there is a specific head of legislative power under the Constitution; and
2. it requires any of the grants of financial assistance which are to States and Territories to be done subject to a written agreement with the recipient.

This second step is an attempt to shore up the spending by utilising the tied grants mechanism under section 96 of the Constitution.  I think it is uncontroversial that this will be successful. This has been a major source of expansion of Commonwealth power over the last 4 decades. A number of the High Court justices specifically mentioned that the Williams decision did nothing to overturn this power. But, crucially, they point out that the States have the option of whether to accept the funding in accordance with the conditions. If they are not prepared to accept the conditions, the States can just say "no thank you", leaving the Commonwealth with its money in its coffers.

But the Commonwealth doesn't really want to do that. It doesn't want to depend on the consent of another government for its spending programs (especially with many non-Labor states around the country). It wants to fund these recipients directly. So its legislation still asserts the validity of the direct authorisation method in 1 above. And this is the method that, to me, seems doubtful. 

The question is whether the Commonwealth can only legislate under one of the general headings of its enumerated powers under section 51, or whether, it can legislate to authorise financial assistance in any sphere whatever.  My starting assumption would be the former. It seems to me this is part of what the High Court was rejecting in Williams.  The Commonwealth had argued that as a legal person itself it could make any financial transaction that any other legal person was capable of. The High Court said "no, you need to do it subject to the approval of Parliament". But I don't think they, in effect, said that parliament had unlimited powers of legislation for approval of such expenditure. Surely, the authorisation would be limited also by the existing powers of parliament. I can't see how the legislation addresses this problem. (Most Commonwealth legislation bends over backwards to enumerate all the Constitutional powers it relies on for its validity; this Bill does not).

On this analysis, it would mean that only if the authorised expenditure came within the scope of the enumerated legislative powers would the Bill be successful (unless it is covered by an agreement with a State under section 96). 

So where does this leave chaplains in schools?

It depends. If the school funded is a government school then really (unless there are States in which schools are separate legal entities, which I doubt) these will be grants to the States. A government school in NSW, for example, is part of the Crown in right of the State of NSW. So a grant to a school is a grant to the State. If the State agrees, the Commonwealth can give it the grant subject to conditions under 96. 

The Commonwealth could also use section 96 of the Constitution to give financial assistance to non-government schools employing chaplains, if it does so through the States. That is, the State would get the money subject to an agreement to pass it on to the intended recipient. If it is a 'motherhood' program, for which the State would get political blame if it blocked funding, it is very likely that the program would proceed. It is, after all,  the existing mechanism through which Commonwealth funding to non-government schools is provided.   But if a State disagreed with the program, the funding could be blocked.

The final  mechanism would be for the Commonwealth to fund the recipients directly. This is what they have done until now with the Scripture Union of Queensland who employed the chaplains in the Williams case. The question is whether the Commonwealth has the legislative power to make legislation authorising assistance to employ chaplains in schools. In Williams, The Commonwealth argued it had such power under section 51(xxiiia) of the Constitution:

the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

The Commonwealth argued that the chaplaincy program came within the meaning of "benefits to students". Four of the High Court judges found it was unnecessary to decide the point in Williams. Two judges decided  the point against the Commonwealth, citing earlier high court authority for their stance. And Justice Heydon, (now dubbed the "great dissenter" since the departure of Justice Michael Kirby), yes, dissented.  So it appears to me unlikely for the High Court as currently composed to find that the Commonwealth had the legislative power to approve direct expenditure (bypassing the State) for chaplains. 

And I suppose this is why Williams is having another go.

Is there a guarantee of freedom of religion under the Australian Constitution?

Today's High Court decision in Williams v Commonwealth held unanimously that Australia's Constitution's does not prevent the Commonwealth Government from legislating to provide schools money to employ religious chaplains on the grounds of freedom of religion.

The media headlines have focussed on the fact that the High Court upheld Williams' case, granting a declaration that the Commonwealth Executive lacked power to allocate money to schools without an explicit appropriation from parliament.

But, if Williams' aim was to prevent religious chaplains in government schools, his victory appears likely to be short-lived. If not quite a Pyrrhic victory, it does not appear likely to be long savoured. My first impression is that the Commonwealth government could fix this through legislation. And given the Opposition were in government when the program was introduced, one would think there would be bipartisan support if the Government proposed remedial legislation.

So the decision will not offer much comfort for those who, from a policy stand-point, oppose the government funding religious persuasions in schools. Australia's constitution, unlike America's, does not erect what Thomas Jefferson called a "wall of separation between church and state".

The relevant section of the Constitution is section 116, which provides

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

The Williams case, because of the way it was pleaded, did not focus on the highfalutin aspects of "free exercise of any religion." It was a question of whether there was, by the requirments of the National School Chaplaincy Program, a "religious test" required as "a qualificaiton for any office or public trust under the Commonwealth".

Williams argued that a chaplain employed under the program was an office under the Commonwealth. But the Court held this argument "fails at the threshold" (Gummow and Bell JJ, paragraph 108). The chaplains "hold no office under the Commonwealth", they were not employed by the Commonwealth nor had any contract with the Commonwealth. The Commonwealth was only a source of funding for the Scripture Union of Queensland which employed the chaplains.

Or as Heydon J (who agreed with the majority on this point) says

 "The Commonwealth has no legal relationship with the "chaplains". It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals." (at445)

So the Court did not really address the question of the separation between Church and State. They did not need to address it because they could quickly dismiss the argument that the engagement of a chaplain was an office under the Commonwealth.

But what of the strong line of US cases which have held that there is a huge wall of separation between church and state? And that government can do nothing to vaguely benefit any religion?

The US Constituion provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." [first amendment] and "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." [article VI]

This was clearly the model on which clause 116 of the Australian Constitution was based. The words, though not identical, are very similar. Surely higher courts ought to reach similar conclusions about their interpretation? No. And it wasn't really argued in this case.

This is because the High Court of Australia had already reached a conclusion on this point back in 1981 with the Defence of Government Schools (DOGS) case.  This argument was not revisited and not raised by the plaintiff.

Interestingly, the judgment of Gummow and Bell does advert to the similarly phrased US constitution:
"The similar terms in which the "religious test clause" is expressed in Art VI, cl 3 of the United States Constitution was emphasised by the plaintiff but there is no clear stream of United States authority on this provision which points to any conclusion contrary to" the conclusion that a chaplain was not an office under the Commwonwealth. 


This seems to be a suggestion that the High Court would feel itself persuaded by decisions of the US Supreme Court on this clause, at least where the High Court itself had not previously decided on an aspect. 


But the doctrine of precedent holds that the High Court of Australia will be bound by its own authoritative decisions, notwithstanding their inconsistency with those of other superior courts in other jurisdictions.

(I have not dealt here with the  most significant feature of this far reaching decision,  High Court held (by a 6:1 majority) that the Commonwealth had not acted within its legal powers when the Executive, without an explicit appropriation by parliament, directly allocated money to schools. My first impression is that the Commonwealth government could fix this through legislation This is the legally most significant aspect of the case, which could well have profound implications for many aspects of Commonwealth policy. But I shall not primarily focus on it in this post.)

In one sense this isn't really a case about education law, but a High Court case involving schools comes up only rarely, so too good a chance to pass up.