Michael Moore’s Education (Amendment) Bill went straight into the too-hard basket last week. There it will stay until the next case arises.
Moore put the Bill up because of the expulsion in March of eight boys from Canberra Grammar School. It provides for an independent board of review to look at expulsions and suspensions of longer than 10 days. A student or parent could appeal and the board could either affirm or overturn the decision. The board would have educationalists from government and independent sector, a lawyer, the Community Advocate and a representative of the Association of Independent Schools.
The Bill would have applied to private as well as independent schools. The Liberal and Labor Party will not support it, so Moore, an Independent, will let it lie on the table. Presumably, he wants to cry “”I told you so” when the next case comes up.
The issue is a quintessential tussle of public and private interests. Is it a case of meddlesome officialdom wanting to stretch its unwanted tentacles into private organisations, private affairs and family matters? Or is it a case of an assertion of the public interest in ensuring justice is done and is seen to be done in a matter of public importance?
Moore, of course, thinks the latter. He has chosen, he thinks, a very good example. He told the Assembly that the Canberra Grammar School had applied its discipline inconsistently: some boys had been expelled for marijuana offences while others merely suspended. The latter had been treated with favouritism, he said. This warranted a review mechanism to ensure justice was done.
Moore said his Bill had wide support in government schools and among students from independent and government schools, but had met “”outrage and indignation from some independent executives”.
The Grammar School has perhaps been its own worst enemy in opposing Moore’s Bill. Moore’s assertion of inconsistency and favouritism and a great deal of unease in the community and among some parents will remain largely unchallenged without some sort of independent review mechanism.
Those assertions and unease could easily be unfounded, but we will never know.
For example, I could think of a gradation of marijuana offences: smoking in holidays, hiding marijuana for someone else, an isolated one-joint incident on the school premises, or off the premises but while in the school’s charge, growing it at the school, up to the most serious of growing, selling and encouraging others to use it.
In that collection of “”offences”, punishment might range from detention to a 500-word essay on, say, the Opium Wars through to expulsion. Thus the inconsistency of imposing a “”different” punishment for the “”same” offence might be an unfounded conclusion.
While people are chucking general accusations around in the absence of a review mechanism, the finer points of whether justice is being done can get over-looked. Justice certainly requires consistency, but it is rare that two cases are the same and it is often the case that two cases are in a similar class, but when all the circumstances are known, justice might require different punishments.
If the school subjected itself to this outside public review procedure (without naming students), a lot of the disquiet might disappear.
However, there is a trade off for the school, which it no doubt finds unacceptable. Once it permits a review mechanism, it loses ultimate power and control over students. It could be forced to take back students whom it did not want at the school.
The Moore process would require two elements. The first is whether the procedure is right and the second whether the absolute punishment fits the crime.
The procedural questions include such things as whether students were told the behaviour was wrong and the punishment for it, a right to reply to the allegations, and the way that type of behaviour has been dealt with in the past. The fitness of punishment includes issues like the seriousness of the conduct, past misbehaviour and the circumstances of the student’s life.
In abstract, these are classic requirements for any system of crime and punishment. However, in practice a review board might hold different values from the principal or other person determining punishment at a school. A review board might say all the procedural matters were dealt with properly, but the absolute punishment was wrong: smoking dope does not warrant expulsion.
Moore’s Bill says the substitution of a review board’s decision for the principal’s is justified because a community standard of justice should be imposed on places of education, just as the community requires schools to teach to a minimum standard.
The schools would argue that parents send their children to independent schools precisely because they want different standards and values from those in the community, or at least those in government schools, especially disciplinary ones. They pay for the privilege of empowering a principal in his or her absolute discretion to enforce those standards.
What is the wider public interest: one that respects the private right and choice of parents to vest in a principal wide discretionary powers of discipline or one that says wide discretionary powers are unacceptable in any educational institution?
A lot of organisations, including schools, have wide powers under their constitutions or rules to deal with members for breaches of the organisation’s rules. Sporting bodies fine, suspend and expel members for shouting at umpires, taking dope, offending sponsors and the like. Unions can expel members for breaking rules. Social clubs formed for reasons from the worthy to the ridiculous can expel members for breaking of what might seem bizarre rules.
Legislation like Moore’s aside, courts will interfere in these organisations’ rulings in certain circumstances. They will insist that allegations are made known to accused people, that they get a chance to respond to them and that the sanctions exercised are within the rules of the organisation. They will jump in readily if someone’s livelihood is permanently affected, but won’t if the organisation is essentially a private concern. A chap could be expelled from a bridge club, for smoking against the rules, for example, and a court would not intervene, even if it were shown he had not been given a right to be heard and that the charge had been trumped up.
Private social organisations can determine for themselves who are to members.
But once you get into the educational and vocational arena things change. It might well be that expelled students have some right of legal redress anyway. If that is the case it is better such cases go to the sort of body that Moore envisages than through the inexperienced and expensive court system. Moore’s proposal is for an ad-hoc rather than permanent body. It would only meet as cases arose.
The case for government-enforced statutory appeal rights is not based on the government’s provision of money to independent schools. Rather it is the same public requirement for justice for, say, a jockey thrown out of a private jockey club without being heard or without redress. The jockey’s livelihood is profoundly affected, just as the life of the expelled student is. It is difficult, if not impossible, for a student to explain to a prospective employer why he swapped schools half way through Year 12.
The money argument is irrelevant in principle, but perhaps not in the politics of Moore’s Bill. It would have looked a bit poor for the ACT Government to support “”interference” in independent schools so shortly after cutting $520,000 from the top ranked schools.
Thus it will remain on the parliamentary table (the too-hard basket) indefinitely, though its mere presence there might influence principals of all schools to ensure their discipline and punishment procedures are fair.