Parents of a former student of an elite independent Sydney girls’ school recently commenced proceedings in the Supreme Court of New South Wales alleging that the School failed to accord their daughter procedural fairness. It is an issue about which all principals of independent schools should be mindful.
What is procedural fairness?
Procedural fairness, sometimes called ‘natural justice’, is a legal principle that ensures decisions are made fairly. It helps prevent outcomes that may unfairly affect a person’s rights or interests. It is based on two main rules.
First, the decision maker must give the person who will be subject to the decision a fair hearing. What is required for a fair hearing will depend on the circumstances. As Brennan J explained in Kioa v West (1985) 159 CLR 550, the rule is ‘chameleon-like’. However, the rule generally requires the decision maker to:
- Provide notice that the decision is going to be made;
- Explain the nature of the decision and its potential implications;
- Provide the person with any adverse information which may be used by the decision maker to his or her detriment; and
- Give the person an adequate opportunity to respond to that information and to put his or her case to the decision maker.
Second, the decision maker must not be biased. Such bias can be actual or apprehended. Actual bias refers to a situation in which the decision maker has already made up his or her mind about the decision to be made before having considered all of the relevant evidence.
Apprehended bias, which is much more common, refers to a situation in which a ‘fair-minded lay observer’ might think that the decision maker may not make an impartial and unprejudiced decision. As the High Court recently explained in Isbester v Knox City Council [2015] HCA 20, apprehended bias will arise if the person alleging that the decision maker is biased can prove that the decision maker has some ‘interest’ which might lead him or her to decide a case other than on its merits, and that there is a ‘logical connection’ between the ‘interest’ and ‘the feared deviation from the course of deciding the case on its merits’.
When will a principal be required to accord procedural fairness?
Generally, only decision makers who act in a ‘judicial’ or ‘quasi-judicial’ capacity are required to accord procedural fairness.
In Charles Phillip Bird by his tutor Vredê Jane Bird v Campbelltown Anglican Schools Council [2007] NSWSC 1419, the Supreme Court of New South Wales held that a principal of an independent school does not act in a ‘judicial’ or ‘quasi-judicial’ capacity.
Accordingly, a principal is not generally required to accord procedural fairness when disciplining students. A similar decision was made by the Supreme Court of Victoria in Ge v Taylors Institute of Advanced Studies Limited [2003] VSC 354 , and by the Supreme Court of the Australian Capital Territory in Seymour v Swift (1976) 10 ACTR 1.
However, a principal of a private school may be required to accord procedural fairness if the relevant enrolment contract expressly requires him or her to do so. In these circumstances, a failure to accord procedural fairness will constitute a breach of the contract. Such a breach may entitle the student and his or her parents or carers to damages.
How should principals approach the issue?
Principals should review enrolment contracts to determine whether they are obliged to accord procedural fairness when making disciplinary or other decisions. If they are, they should draft a disciplinary decisions policy which spells out what they will do to accord procedural fairness. This will act as a reminder to the principal, or any of his or her delegates, as to what is required to comply with the terms of the enrolment contract, and will give parents and students the benefit of greater certainty surrounding the decision making process.
Principals should not be afraid of procedural fairness. It is an important legal device which ensures that decisions are fair and reasonable. It helps to prevent rushed and disproportionate decisions.
How can JFM Law help?
JFM Law is very happy to assist schools with any matter relating to procedural fairness and disciplinary decisions policies. Contact us on (02) 9199 8597 or by email for a no obligation chat.
The information contained in this post is current at the date of editing – 04 September 2025.
