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.