Photo: 123rf.com
By Ann Skelton*
Opinion - The Children's Commissioner and Youth Law general manager are the latest in a growing line to voice their concern at the lack of progress from the government on the establishment of a national school disputes panel.
Even though the government changed the law back in 2020 to allow these panels to be set up, it has yet to make good on its legislative promise.
Youth Law general manager Neil Shaw says "hundreds of families" would benefit from a disputes' panel to rule on disciplinary decisions like stand-downs and exclusions.
Without a clear path to challenge school decisions, he suggests that many students face increased alienation from education which has the potential for life-long implications for the student.
The intention of the scheme is to facilitate and promote the resolution of serious disputes between students and state schools in an effective, flexible, and timely manner.
It came about as a recommendation from the independent taskforce that reviewed Tomorrow's Schools. Its report was released in November 2019. This resulted in the Education and Training Act being tweaked the following year.
Alas, the review stated that dispute resolution panels would be set up by ... well, 2023.
Time is obviously marching on.
As things currently stand, the tertiary and early childhood sectors, and international students as a specific group, all now have their own external disputes resolution process.
But state primary and secondary school students currently only have their internal school complaints process available, with strictly limited rights of review or appeal.
As we have seen over the past few years, those students with financial backing can challenge a school or board decision through a judicial review process, which is expensive and intimidating, or file a complaint with the Ombudsman, which can mean delays of months or years and can only result in non-binding recommendations.
So, this lack of available review or appeal options spurred the proposal for a dispute resolution scheme.
How would it work? First, the proposed scheme would set up a chief referee with the responsibility of triaging the serious disputes and appointing members to the list of local and national dispute resolution members.
Each panel set up for a dispute would contain both local community members and expert members from this chief referee's list - including a mediator (hence my own interest).
The definition of "serious disputes" is wide. This latitude is significant. A dispute could be about a student's right to enrol or attend a school. Or their right to education under the Act generally.
Or, perhaps, the learning support the student receives. Or the stand-down, expulsion or exclusion of the student. Or alleged racism experienced. Issues of physical or emotional safety while at school might be considered, as well as any physical restraint used on a student by a staff member employed by the school.
A panel set up to review a "serious dispute" may assist the parties to come to an agreed resolution through mediation, or the panel may make a non-binding recommendation on the parties, or it may make a determination of the dispute which will only be binding if the parties agree to be bound before the determination is made.
It is mandatory for the board to participate in the process and while the parties may have support people present at the meeting, legal representation or lawyers are not permitted to attend.
The process is subject to confidentiality so any outcome can not be disclosed, unless the parties agree. However, the chief referee may publish anonymised reports of outcomes which will contribute to best practice guidelines, allow greater transparency and provide precedents for all schools and boards to see.
Small wonder it's taking time to set this up. The ambit is far-reaching. Its success will depend on the calibre of the people involved, not least the chief referee.
It's unclear what progress has been made on the scheme's establishment so far but at this point it will need to be ready to hit the ground running as the need for free, flexible, timely, culturally appropriate processes and procedures for these kind of disputes, with potentially a restorative focus, has now been evident for decades.
Education Minister Chris Hipkins has said the advent of these panels draws ever-nearer now that the "law change needed to establish this has been passed, and the government remains committed to establishing a disputes resolution process".
We can only hope that dispute resolution organisations, such as the Arbitrators' and Mediators' Institute of New Zealand will be called upon to assist in providing advice and resources to get this scheme up and running without further delay.
*Ann Skelton is a barrister and mediator, heads the firm Mediation Partners, and has been following the issue of school dispute panels with professional interest.