an ncylc e-bulletin

Issue #2: May 2004

SUMMARY OF
FOSTER & ORS v STATE OF NSW (DEPARTMENT OF EDUCATION)

On 5 June 2003 four students were placed on long suspension (11 days) with a number of other students of a North Coast of NSW High School, by the Principal of the School, for the "possession and consumption of a suspected illegal substance".

No drugs were actually found on these students. Their guilt was determined based on reports by other students that they had been seen smoking marijuana on school grounds during school hours. All four students denied involvement in this activity when questioned by the Principal.

The NCYLC, on behalf of the 4 students, sought a Supreme Court injunction on 6 June 2003 on the basis that if the suspensions were allowed to stand, the students involved would suffer undue hardship in one or more of the following ways:

  1. prevented from sitting for their trial examinations for School Certificate assessment
  2. prevented from participating in the school team’s football grand final
  3. prevented from undertaking work experience
  4. possibility of serious long term effects on their educational opportunities.

It was argued that they had been denied natural justice or procedural fairness because:

  1. the decisions of the Principal were ultra vires in that they represented an abuse of a discretionary power
  2. the Principal failed to take into account relevant considerations
  3. the Principal took into account irrelevant considerations
  4. the decisions were manifestly unreasonable and resulted in undue hardship to the plaintiffs (exams, football and work experience).

It was further contended that the Principal had failed to adhere to the Departmental Procedures for the suspension and expulsion in the following ways:

  1. the plaintiffs did not have made known to them the allegations against them
  2. the Principal failed to give each student explicit information about the nature of the allegations
  3. there was a "complete absence of credible evidence", the Principal having acted on uncorroborated information received from other students
  4. none of the plaintiffs was found to be in possession of an illegal substance or was observed actually consuming an illegal substance by the Principal or by any other person in authority at the school
  5. the decision was manifestly unreasonable in the circumstances, the Principal having failed to explore any alternatives to a long suspension
  6. the plaintiffs were not informed of their right to have an appropriate person of their choice present during the interviews.
  7. the Principal failed to take into account the denial by the plaintiffs of the allegations against them.

Interlocutory orders were sought permitting the Plaintiffs to attend Maclean High School on 10 June 2003. The injunction was granted with the notice of motion and adjourned to 10am on 11 June 2003.

On 11 June 2003 the notice of motion was heard before O’Keefe J over 2 days and the plaintiff’s action dismissed based on the following findings:

  1. that Education Department policy requires that the principles of procedural fairness outlined in the policy take precedence over all other policy considerations where serious disciplinary action against a student is contemplated;
  2. that wider principles of procedural fairness or natural justice have a place in addition to those outlined in the Procedures for the Suspension and Expulsion of School Students in school disciplinary processes;
  3. that where the gravity of the circumstances justify a Long Suspension, Department policy requires that particular emphasis be given to procedural fairness;
  4. that the presence of drugs on school campuses is a matter of extreme seriousness to be dealt with strict and immediate discipline;
  5. that the injunction is to be determined on the basis that the evidence as it stands would result in a success for plaintiffs at trial;
  6. that no drugs were found on any of the plaintiffs;
  7. that the students should have been informed of right to have an independent person of their choosing present at the investigation interview with the Principal;
  8. that the commencement of the interview with the threat "It would be easier to answer questions here than have the matter referred to the police" was unacceptable;
  9. that the failures outlined in 7 and 8 were a failure to observe procedural fairness and that a failure to observe procedural fairness means that the Department’s policies and procedures have not been followed;
  10. that no real injustice arose from the failures outlined in 7 and 8;
  11. that otherwise, the Principal did not fall into error, did not act on a wrong principle, did not allow extraneous or irrelevant matters to guide or affect him and did not fail to take into account material considerations favourable to the plaintiffs;
  12. that no undue hardship amounting to the harm or type of injury necessary to justify an injunction arose;
  13. that the award of an injunction in these circumstances could deter future reporting of such actions by members of the school community and have an adverse effect on future disciplinary action in schools, reverberating beyond Maclean High School; and
  14. that, on the balance of convenience, an injunction should not be granted.

On 10 July 2003 a costs order was awarded against the plaintiffs.

As a result, two of the four plaintiffs withdrew from the matter.

Before the case went to full hearing, it settled on the following terms:

  1. That the Department of Education forgoes the costs order obtained by O’Keefe J on 10 July 2003;
  2. A notation be inserted in column ‘10’ of the Suspension and expulsion Register stating the following: "No illegal substances were actually found in the possession of the student. However, no search was conducted and the student was suspended after an extensive investigation by the Principal and based on the evidence of a number of other students"; and
  3. The Department of Education to advise the plaintiffs of the notation and that the above represents the reason for the suspension and noting that the record reflects that reason.

The settlement terms were extended to all four original plaintiffs.

      Penny Taylor