A last-minute court order has given a reprieve to two New Zealand schoolboy rowers who were banned from competing after a prank in which they breached airport security. The two boys, whom we will refer to as Bret and Jemaine, obtained the High Court injunction in an urgent hearing less than three hours before they were due to compete. The High Court of NZ decision is available here.

An unexpected journey (on a baggage carousel)

Bret and Jemaine were selected by St Bede's College, Christchurch (the College) to represent the College at the 2015 Maadi Cup regatta. The Maadi Cup is, according to its website, 'New Zealand's largest and most colourful regatta'.

The team from the College started their journey to the Maadi Cup on Friday 20 March 2015. At a layover in Auckland, whilst their supervising coaches went to collect their rental van, it appears that Bret and Jemaine were encouraged by their peers to ride the baggage carousel. They did this, and breached the secure area of the baggage area. This was filmed by one of the other boys.

Unsurprisingly, this was a serious incident. The boys were interviewed by airport security staff and the police. Although the seriousness of their actions was impressed upon them, no further action was taken by the authorities.

The College, however, was less lenient. If all the facts were proven, this would clearly be a breach of the College's Code of Conduct which was signed by the boys and their parents prior to the trip. The head coach made contact with the Head of Sport, who then referred the matter to the Rector of the College. The boys did not have unblemished disciplinary records.

The Rector decided that the boys would be suspended from the rowing team and sent home, consequently missing the Maadi Cup.

The lawyers sent in

The following day, the College was contacted by a lawyer for the boys. The lawyer invited the College to reconsider its decision, and expressed concerns about whether natural justice had been afforded to the boys in the disciplinary process. The Rector, the Deputy Principal and the school's legal advisor subsequently flew to Lake Karapiro (the site of the Maadi Cup) to meet with one of the parents. The College decided to stand by its decision.

But for the consequences that flowed on from the decision, this incident may never have ended up as news. For the boys, missing out on the Maadi Cup was not just about a few races. A father of one of the boys told the Court that the decision to suspend the boys from the team was 'serious and disproportionate'. The rest of the team, as well as the boys, had apparently spent countless hours and months of hard work to compete in the races. It was stated that there would be a 'material adverse effect' on the rest of the crew, and their families who had gone to significant expense to send the boys to the Maadi Cup.

For the boys, the decision to suspend them from the team also had consequences for their future rowing prospects. For one of the boys, participation in the Maadi Cup was 'his best opportunity to gain a New Zealand under 19 trial later this year'. He would have the chance of making the team for the Junior World Championships. Missing out on the Maadi Cup would mean forgoing the opportunity to vie for national representative honours. For the other boy, other representative opportunities were also at stake.

The Court even heard evidence that the rowing crew (of eight) were six seconds faster over 500m with the boys on the team, equivalent to 24 seconds faster over the course of a race.

The legal issues

The issue before the Court was a motion to grant an injunction that would allow the boys to compete. The decision was not one that determined, in a final way, the merits of the school's decision.

For the Court to consider the matter there first needed to be a serious question to be tried - that is, the dispute was serious, not frivolous or vexatious. Second the Court must look at the balance of convenience - that is, the risk of damages and other consequences that might flow as a result of not granting the injunction.

The dispute was said to involve the allegation that the College did not afford the boys procedural fairness - the legal term for natural justice. In the end, the Court determined that there was a serious dispute because:

• the disciplinary decision was made on the basis of an email of the head coach who was not present at the incident;
• the boys in question were not interviewed;
• witnesses were not interviewed;
• information about the consequences of the decision was not gathered;
• the assessment of whether the punishment was proportionate to the alleged mis-behaviour, unfair or in breach of natural justice was not made.

The Court considered what was at stake for the boys in terms of future NZ selection, but also recognised that the College may suffer some detriment and indeed be vindicated later. It also took account of the detriment suffered by the team mates, their families, and sponsors. It did also note that the effect of the injunction would be to deprive the school of the effectiveness of this particular punishment. Nevertheless, the Court decided on balance to grant the injunction to allow the boys to compete.

Punishment postponed

Although the Court was confined to these particular issues about the decision, it did not condone the action of the boys. Indeed, it recognised that 'the orders are neither an endorsement of the boy's behaviour, nor a decision that the [College's] response was inappropriate. It may well be that the school's response is ultimately vindicated.'

The Court directed, as a condition of the injunction, that the parents take steps to have the matter heard quickly. It directed that a formal statement of claim be lodged by 5pm Wednesday 25 March 2015, or else the injunction would be lifted. This would still be in the middle of the Maadi Cup.

The College will still be able to discipline the boys after a due process. One of the parents of the boys even went so far as to state that he would support the school in any such appropriate punishment.

The law in Australia, and practical steps

Despite this being a case heard in New Zealand, the legal principles apply similarly to Australia. Court cases of this kind are particularly rare, mainly because they involve a serendipitous confluence of events where something time-sensitive is at stake. Courts also usually don't intervene in school disciplinary matters, but in this case was prompted to by the urgent circumstances.

In New Zealand, however, the legal obligation of non-government schools to afford procedural fairness in disciplinary decisions has been at the heart of some notable cases. A High Court case last year about a student with long hair who was suspended from his school when he refused to cut it, is a further example of courts intervening in a school's disciplinary process.

Whether either case would arise in Australia depends on whether a non-government school is required by law to afford procedural fairness to a student. Given that this is a matter for each State or Territory, there is no clear answer, but there are some guiding examples.

In NSW, there is a requirement that schools must have policies and procedures for discipline 'based on the principles of procedural fairness'. However, there is doubt as to whether this gives rise to a right that can be enforced by a Court. Recent cases have suggested that this is not so, and that the requirement for procedural fairness is far from automatic. The situation is similar in Victoria, where disciplinary policies must incorporate procedural fairness.

In any case, because it is a matter for a non-government school's registration, and a matter of good practice, schools should nevertheless ensure that they afford their students procedural fairness. Stated generally, this includes the requirements that:

• the nature of the complaint of accusation is made clear to the student;
• the school should ensure that 'both sides of the story' are heard by the decision maker;
• the student is given a chance to present the student's case;
• that the decision is made by an unbiased decision-maker; and
• the decision-maker acts reasonably.

For the record, the team placed 3rd in their heats at the time of publication. Newstalk ZB has published a statement by the boys and their families, which says 'the Court action undertaken was never intended to justify or excuse their actions' and that they understand 'there may well be disciplinary consequences'. One of the boys' fathers, who was Chairman of the College's Rowing Club, confirmed that he stood down from that position before commencing legal action against the College. Stuff.co.nz has stated that the College board will be meeting to discuss the judgment.

Reports in the NZ Herald have shown that the alumni and College community are split on the merits of such drastic legal action. This recent court action has also lead to suggestions that a school disciplinary appeals tribunal should be established to avoid school-related disputes progressing to the courts. The debate, it seems, has just started.

Should the Court have intervened? Do you think this undermines the authority of the School?