Currently, if a domestic primary or secondary school student and their whānau are unhappy with a board decision, they can seek a review by the Ombudsman or a judicial review in the High Court. These pathways are not particularly accessible. Judicial review in particular be intimidating and expensive.
Early childhood education, international students and tertiary students all have their own specific dispute resolution processes. In the compulsory schooling sector students and their whānau do not have the same voice to raise concerns about decisions that affect them. Unresolved issues, or issues that are not resolved in a timely manner, may lead to increased alienation from education and a failure to support the right to education.
The Independent Taskforce that reviewed Tomorrow’s Schools recommended that local panels be established to resolve disputes between students and their school.
As part of the Government’s response to the Independent Taskforce’s final report, sections 216-236 of the Education and Training Act enable the establishment of a dispute resolution scheme for resolving serious disputes that students and their whānau have been unable to resolve with their school board. Serious disputes are disputes about:
- rights to education under the Act, including enrolment and attendance
- learning support
- stand-downs, suspensions, exclusions and expulsions
- racism and other types of discrimination
- physical and emotional safety
- physical restraint on a student by a teacher or other authorised staff member.
The date for establishing panels has not yet been set. The panels will be established by regulations, which will also provide additional detail about panel processes and procedures. The Ministry will consult publicly as these regulations are developed. The Ministry will also prepare material, such as guidance and communications material, to provide additional information to principals, boards, students and their whānau.
When the dispute resolution panels are established, they will hear serious disputes between a student (or, in the case of a student aged under 16 years, the student and the student’s whānau) and the board of the student’s school. If a student aged under 16 is in care, the student and his or her carers will be able to make a complaint to the dispute resolution panel.
Local dispute resolution panels will be overseen and administered by a Chief Referee appointed by the Minister. Panels will have a mix of local members and expert members from a central list. Panel members will be appointed by the Chief Referee.
In addition to appointing panel members, the Chief Referee will have a range of responsibilities. These will include filtering out complaints that are trivial, vexatious or otherwise unsuited to the scheme, and publishing anonymised case notes to consolidate and disseminate best practice.
Panels will be focused on resolving disputes through mediation. This involves a mediator working with both parties to help them reach an agreement to settle the dispute. In these cases, the remedy is whatever the parties agree to in the mediated settlement.
If mediation is unsuccessful or not appropriate given the circumstances of a particular dispute, the panel can make recommendations or, with the agreement of both parties, determine the dispute i.e. make its own decision about how to resolve the dispute.
There are several remedies available. Panels can recommend that the board take certain actions including reversing or modifying decisions in relation to the student, apologising to the student and reviewing any related rules/bylaws or policies. These recommendations are not binding. The panel can also, with the prior agreement of both parties, make binding decisions to uphold, reverse or modify the board’s decision, and make related orders to give effect to those decisions. Panels can issue a declaration that the board has breached the student’s rights.
Mediated settlements and orders made through determination can be enforced by the parties through the courts.
Once implemented, the panels will provide a dispute resolution process that is accessible for all students and their whānau, free, flexible, uses restorative and culturally appropriate processes and procedures, and provides timely resolution to disputes.
