Carol Anderson, Lawyer with Education Law NZ and Special Counsel with Auld Brewer Mazengarb and McEwen, discusses the legalities and issues relating to schools using trespass notices to deal with challenging members of the school community. 
Introduction
Trespass notices are sometimes used by schools to deal with difficult or disruptive individuals or persistent complainants. Although the school has an obligation to ensure the safety and well-being of students and employees, banning the difficult person from the entire school for two years is not always necessary and may result in ongoing disputes. If the person is someone, such as a parent, who would normally have a right to come onto the school grounds, state schools need to follow a fair process, by communicating their intention, and giving the person the opportunity to respond before issuing a written trespass notice. Bear in mind that trespass notices filed with the Police remain on the Police record even after they have expired.
Schools and school grounds
It is not always understood that schools and school grounds are not freely accessible by the public. State schools are owned by the Ministry of Education and the board of trustees is the lawful “occupier” responsible for managing the school and grounds through section 70 of the Education Act 1989 and under the terms of the Property Occupancy Document provided by the Ministry of Education.
Teachers and current students have a right to be on school grounds at appropriate times and parents have an “implied licence” to come onto school grounds. An implied licence means it is assumed they have a right to be in certain parts of the school at certain times. Members of the public do not have an automatic right to be on school grounds although some will have an implied licence to attend for certain events, or depending on functions, roles and historical community relationships. In smaller communities, for example, there may be an implied licence for the community to cross or use the school grounds after hours.
Trespass notices
The Trespass Act 1980 gives the school two ways to deal with individuals that it decides should not be on school grounds. Under section 3 the principal can warn a disruptive or dangerous person, or a person who has no reason to be on the school grounds, to leave the school immediately, and can call the Police if they don’t. This is usually done verbally.
Under section 4 the school can warn someone to stay off the property in future, usually by written trespass notice. The default period in the Act is for two years. The trespass notice removes the implied licence that a person might otherwise have to enter and remain on school property.
In either case, if a person ignores the warning, the Police can be called and the person may be charged with an offence under the Act.
However issuing a written trespass notice to stay off school property for two years is a decision with more long term implications than warning someone to leave the school grounds on a single occasion. State schools are public bodies, so issuing a trespass notice to someone who would normally expect to be able to come onto the school grounds is a “public law” decision and a fair process should be followed. A board of trustees or, if delegated, the principal, may make the decision, but the decision may be reviewed by the Ombudsman or be subject to judicial review by a Court. [1]
Withdrawing trespass notices
Trespass notices can be withdrawn by the occupier at any time, by writing to the person trespassed and, if the notice was filed with the Police, by notifying the Police.
What the school should consider
Before issuing a written trespass notice, the first question the board or principal of a state school should ask is whether the person would normally have some kind of right or implied licence to be on school grounds. If so, that person will have a right under the Bill of Rights Act to a fair process. The Ombudsman has held that, in practice, a fair process means the person should be told of the school’s intention to issue a written trespass notice and the reasons for the notice, and be given an opportunity to respond before the trespass notice is issued.
Trespass notices and parents
It is particularly important to follow a fair process when trespassing a parent. The common law treats the trespassing of parents or guardians of enrolled pupils differently to the trespassing of other members of the public because of the parent or guardian’s right to be involved with their child’s education. The removal of the implied licence of a parent to be at the school is a serious decision. The Ombudsman is likely to review trespass notices against current parents.
The Ombudsman’s office takes the same approach as international case law which has found that schools must follow appropriate processes when ordering parents off school property. For example in the UK, in Wandsworth Borough Council v A[2], the Court held that parents of enrolled pupils have greater rights to be on school grounds than, for example, a “textbook seller or milkman.” It said the board of trustees must follow an appropriate process to exclude a parent from the school grounds. At a minimum, the parent should be offered a chance to respond.
In the USA case State of Washington v Green [2010] [3]the Court held: “A parent has, at minimum, a statutory interest in observing her child’s activities in the school. In balancing those interests to protect against erroneous deprivation of the parent’s interest, we evaluate what degree of due process protection was afforded.”
Trespass notices and members of the community
Although members of the public do not have an automatic right to be on school grounds there are often circumstances where the individual concerned may have a history of regular involvement with the school such that a trespass notice may be offensive and distressing to the person. In such a situation a trespass notice may not be the most effective way of dealing with the situation but if considered necessary, ideally the same fair process should be followed.
The Human Rights Tribunal considered a school board’s decision to issue a trespass notice in Fehling v South Westland Area School.[4] Mr Fehling was lawfully on part of the school grounds that had been leased by the school to a senior teacher. Mr Fehling was served with a trespass notice under section 4 of the Trespass Act without any prior discussion or warning. The school declined to provide the reasons that the trespass notice had been issued. Mr Fehling complained to the Ombudsman. The school then told Mr Fehling the notice was issued because complaints had been made that Mr Fehling had been using the school’s pool, toilet and shower facilities. The Tribunal found that there was no lawful basis for the trespass notice and Mr Fehling had never posed any actual threat to students or the community. It commented that, “At the heart of Mr Fehling’s grievance is that the School, without notice and without a hearing, evicted him from his lawful presence on the…property. Furthermore, no reasons were given for this action. He feels that employing the Police to serve this notice made him feel humiliated and powerless.”
The recent case of Nelson College Board of Trustees v Fitchett [5] found that a section 4 trespass notice cannot be used to prevent disruptive members of the community from attending board meetings for two years. In that situation section 50 of the Local Government Information and Meetings Act 1987 applies and takes precedence over the Trespass Act. Section 50 limits the exclusion to the specific meeting which was disrupted and cannot be used to prevent attendance at future meetings.
Trespass notices and former students
Sometimes students who are excluded or expelled come back onto the school grounds, even though they no longer have a right to do so. The reasons for this may vary. Some schools issue trespass notices to resolve this issue. It is recommended that this be avoided if possible and that verbal warnings and reminder letters be used instead. The student is already experiencing being alienated from his or her social group as a result of the expulsion or exclusion, and the effect of that isolation is greater than schools often realise. A trespass notice increases the sense of isolation. A further reason is that trespass notices filed with the Police remain on the Police record even after they expire and have the potential to cause problems for the student with Police vets later in life.
Other possibilities to consider
If the person would normally have an implied licence to be at the school, consideration could be given to the appropriate length of time for the notice. Two years is the default period in the Act and on the standard form downloadable from the Police website but since a trespass notice can be withdrawn by the occupier at any time, the school can consider issuing a trespass notice for a shorter period. In some cases all that is required is sufficient time for people to calm down.
The school can also consider limiting the parts of the school that the person can come onto rather than banning them from the whole school. For example, limiting the trespassed person to coming into the administration area but not to the classrooms or grounds.
Schools have obligations under the Health and Safety at Work Act 2015 and the Education Act 1989 to ensure the safety and wellbeing of staff and students. This needs to be balanced against the extent to which the safety and well-being of staff and students is actually impacted by the person’s conduct, which will depend on such factors as whether the conduct was in sight and hearing of the students, the age of the students and whether there is a reasonable likelihood of harm.
Last resort
The general view of the Ombudsman is that trespass notices should be a last resort when dealing with “difficult” or angry members of the community, unless there is clearly a safety threat to staff or students or the person’s presence is disruptive of the school programme. If the person is a parent, then to comply with the Bill of Rights Act a letter from the school warning that a trespass notice may be issued, and giving the individual an opportunity to respond, will normally be required.
Carol Anderson is a Public and Education Lawyer with Education Law NZ and Special Counsel with Auld Brewer Mazengarb and McEwen. Carol Anderson combines skills from a background in education and law which make her particularly qualified to assist clients with educational issues and disputes. Carol’s work in education has included heading a high school languages department, teaching English in Japan and training teachers in the Sudan. She worked for the Education Review Office reviewing schools in Auckland and Northland and was contracted to do a national legal and educational research project. She has conducted independent investigations, reporting and providing advice to boards and principals dealing with conflict situations or unresolved complaints. She also provides advice for improving board processes and effectiveness and regularly does health and safety reviews and staff and student well-being reviews. She has worked as a Limited Statutory Manager and as a Specialist Advisor to schools. Carol is a trained mediator, was a school trustee for a number of years and was involved with the Kohanga Reo movement. After qualifying as a barrister and solicitor, she worked with Lee Salmon Long in Auckland as a commercial litigator, as a Barrister Sole, and as a civil litigator with Neilsons Lawyers. She was a senior associate at Chen Palmer Public and Employment Law in Wellington and more recently at the Auckland office where she specialised in Education Law. She has acted for parents, tertiary students, school boards (both state and private), Early Childhood Education organisations, tertiary institutions and other educational organisations in the public sector. Connect with Carol via LinkedIn 
[1] Horowhenua District Council, Ombudsman’s Opinion (David McGee April 2013). “…the exercise of its occupier rights by [the decision maker] must be consistent with the rights affirmed by the Bill of Rights Act.”
[2] [2000] 1 WLR 1246
[3] [2010] Court of Appeals No. 2D12–4828c
[4] Human Rights Review Tribunal [2012] NZHRRT 15 [63] http://www.nzlii.org/nz/cases/NZHRRT/2012/15.html
[5] [2017] NZCA 572
