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This weeks article involves discussion and analysis of (Battison v Melloy & Anor  NZHC 1462) and the subsequent Judicial review.
In June this year, Lucan Battison, a 16 year old student from St John’s College in Hastings, took his school principal and board of trustees to the High Court for suspending him for having long hair, in contravention of the school’s ‘hair rule’, which requires students hair to be short and tidy.
Although Lucan won the case (Battison v Melloy & Anor  NZHC 1462), many condemned his actions as undermining the authority of the school. However, it should be kept in mind that Lucan did not actually appeal the school’s decision to suspend him. Rather he asked the Court a far more fundamental question – whether or not the decision to suspend him and the ‘hair rule’ itself were even lawful. This type of case is a judicial review, and is distinctive from an appeal in that the merits of the decision in question do not get considered by the Court. Judicial review highlights the critical role the Courts play in New Zealand’s constitutional framework by ensuring that the exercise of public power is done in accordance with the rule of law.
The school’s decision
The ‘hair rule’ had been established in accordance with the Education Act 1989 (‘Act’), which provides that boards can make rules that they think may be necessary for the control and management of the school. The principal thought that Lucan’s hair contravened this rule. Although Lucan offered to tie his hair up, this was not considered to be an acceptable solution, so he was suspended. The Act enables a principal to suspend a student if reasonably satisfied that the student’s conduct is a dangerous example to others. Lucan challenged the lawfulness of this action. The High Court decided that both Lucan’s suspension and the ‘hair rule’ itself were unlawful. The Court’s view was that the Act sets a high threshold and only allows suspension where a student’s conduct so seriously impacts on the welfare of other students that the principal is left with no alternative.
The case also decided that the ‘hair rule’ itself was not lawful, because all such rules by the board are subject to the general laws of New Zealand, which include a requirement for certainty. Lucan had offered to tie up his hair and there was evidence to suggest that if he did his hair would appear to be short. The Court considered that the rule did not actually require hair to be cut, and there was too much uncertainty about what was meant by the ‘short’ in order for it to be enforced. Although Lucan’s lawyers made a number of arguments that the ‘hair rule’ also breached his right to personal dignity and freedom of expression, the Court did not consider it necessary to rule on this point – leaving open whether a new, more certain ‘hair rule’ could be put in place by the board in future. The Court was clearly mindful of the significant precedent that would be set.
A claim for judicial review invokes the court’s inherent power to supervise the use of public power to ensure it is used appropriately. Although the public may disagree on whether Lucan should have taken his school to court in these circumstances, the fact that he at least had the right to must not become contentious.
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