Simpson Grierson Partners Shan Wilson and Sally McKechnie and Senior Solicitor Rachael Judge discuss Tauranga Boys College Board of Trustees v International Education Appeal Authority, where the High Court found that Tauranga Boys College (the College) had no jurisdiction to exclude or expel international students based on conduct outside of school.
To hear more about legal issues affecting your school, Shan Wilson and Simpson Grierson Senior Solicitor Alex Winsley will be among the seminar presenters at the Law for School Guidance Counsellors Conference on 12 June.
The College took disciplinary action against three German international students for smoking cannabis outside school hours in a public park. The students were not wearing school uniform, no complaints were made to the College, and there was nothing to suggest they were seen by the public.
One week after the incident, one of the students admitted to smoking cannabis on the day in question during an interview with the College’s International Director. Following this admission and subsequent interviews with the students, the principal decided to conduct an investigation.
In the process of applying for tuition, the international students were required to sign contracts stating that the College would have “reasonable responsibility for the student outside school hours including school events”. The contracts prohibited students from using non-prescription drugs and provided that, in the event of a breach, the contracts could be terminated. The contracts differed to the school rules, which stated that the possession, use, or being under the influence of non-prescribed drugs “while at school” or “while under the school’s authority” “shall be considered gross misconduct”.
The College relied on its contracts with the students and the international student code of practice guidelines (guidelines) to commence disciplinary action. The guidelines stated an international student’s contract is a separate legal arrangement and, where a student is in breach (including through conduct outside the school), their enrolment may be terminated without following the suspension, exclusion, and expulsion provisions of the Act.
The students’ parents raised concerns about the disciplinary process with the International Education Appeal Authority (IEAA). Despite the parents’ concerns and the IEAA’s wish to complete its own investigation before any decision was made, the College expelled/excluded the students on the basis that their actions amounted to “gross misconduct that is a harmful or dangerous example to other students” and a breach of contract.
The International Education Appeal Authority’s decision
The IEAA continued its investigation process after the College decided to expel/exclude the students. The IEAA determined that the Act prevailed over the contracts. It upheld the complaints and found that the College had:
- no authority to discipline the students for an incident that took place outside the College;
- no legal basis for terminating the students’ tuition at the College; and
- breached provisions of the code of practice (code) that dealt with enrolling international students.
The IEAA directed the College to revoke its decision to expel/exclude the students and to refund certain expenses incurred by the parents (such as school fees).
The High Court decision
The College challenged the IEAA decision by way of judicial review in the High Court. The High Court upheld the IEAA’s decision. Justice Ellis considered the Act and code clearly provide that a domestic or international student’s right to tuition can only be terminated or refused in accordance with the Act. Therefore, contractual provisions inconsistent with that right were illegal. In the circumstances of the case, the College had no jurisdiction to take disciplinary action over international students based on conduct outside of school.
Justice Ellis was of the view that the College could still terminate its contracts with international students without invoking the relevant disciplinary provisions of the Act, but only in the limited circumstances provided by the Act, such as a failure to pay school fees.
Going forward, regardless of any contract in existence with international students, schools will need to ensure that:
- any alleged misconduct by a student is under the authority of the school; and
- any proposed disciplinary action is consistent with the disciplinary provisions set out in the Act and code.
If you have any queries about the issues raised by this case, please contact one of the authors.
Partner Shan Wilson is in Simpson Grierson’s employment law group. She advises on all employment relations issues in the workplace. She has particular expertise in union-related issues, alongside a related practice advising schools on education law issues. Shan has been practicing in the employment law area now for over 25 years. Shan has particular expertise in union-related issues – having assisted clients at the bargaining table or providing strategic advice behind the scenes. She has extensive experience in dealing with industrial issues, including test case issues before the Employment Court and Court of Appeal. Shan’s work experience includes time at one of London’s leading law firms, Allen & Overy. This enabled Shan to gain high-level experience in employment law issues across different jurisdictions. Shan has also built expertise in the education sector. Her knowledge and experience in this sector is not just in assisting schools with staff issues, it stretches wider to advise school boards on governance issues, student discipline matters, and she is well informed on all manner of issues arising from the Education Act. Shan sits on the boards of both a primary and secondary school. Contact Shan at [email protected] or connect via LinkedIn
Partner Sally McKechnie is a leading public law and regulatory litigator and leads Simpson Grierson’s Wellington-based government and public law practice. Sally provides advice and representation on regulatory and statutory compliance, administrative decision making and processes, statutory interpretation, policy development and law reform. Sally’s approach is informed by her experience as a litigator. She is an experienced public law advocate, with considerable trial and appellate experience. Sally has appeared regularly in the High Court and Court of Appeal. Sally has particular expertise in regulatory compliance in the primary sector, education, health and medico-legal, privacy and official information. Sally joined the firm from Crown Law in May 2017. As Crown Counsel, she advised Ministers and senior officials on their public, regulatory and administrative law obligations. Sally was a Rhodes Scholar at Oxford University and began her legal career at another major New Zealand law firm. Contact Sally at [email protected]
  NZHC 1381