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Education and Training Amendment Bill (Consistent) (Sections 14, 17, 18 and 19) [2024] NZBORARp 46 (13 June 2024)

Last Updated: 28 June 2024

13 June 2024

LEGAL ADVICE

LPA 01 01 24

Hon Judith Collins KC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Education and Training Amendment Bill

Purpose

1. We have considered whether the Education and Training Amendment Bill (the Bill) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).
2. We have not yet received a final version of the Bill. This advice has been prepared in relation to the latest version of the Bill (PCO 26178/5.0). We will provide you with further advice if the final version includes amendments that affect the conclusions in this advice.
3. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with:
   • section 14 - Freedom of expression
   • section 17 - Freedom of association and section 18 – Freedom of movement
   • section 19 - Freedom from discrimination.

The Bill

4. The Bill amends the Education and Training Act 2020 (the principal Act) to:
   • provide for a new type of school, charter schools/kura hourua (charter schools), that provides increased flexibility, and allows State schools (apart from specialist schools) to convert to charter schools; and
   • repeal the early childhood education network approval provisions; and
   • enable the Secretary for Education to make rules for the form and content of attendance data that schools are required to provide.
5. The Bill establishes the legislative framework for the establishment and operation of charter schools (including the content of their contracts). The Bill amends the principal Act to include charters schools in many of the same provisions that currently apply to State schools.
6. The Bill establishes the Charter Schools Authorisation Board (Authorisation Board). The Authorisation Board’s key duties include approving new charter schools and using interventions against charter schools that are not complying with contractual or legislative obligations. The Bill also outlines requirements for ‘sponsors’, which are the governing body of the school and could be a body corporate, corporation sole, limited partnership, or institution.

Consistency of the Bill with the Bill of Rights Act Section 14 – Freedom of expression

7. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, including

the freedom to seek, receive, and impart information and opinions of any kind in any form. The right to freedom of expression has also been interpreted as including the right not to be compelled to say certain things or to provide certain information.1

8. The Bill contains various provisions of a regulatory nature that prima facie limit the right to freedom of expression. Some of these provisions are prescriptive, describing in detail who is required to give certain information, while others set out more generic requirements that may be included in any regulations. We note for completeness that any regulations must be consistent with the Bill of Rights Act, otherwise there is a risk that they will be ultra vires (go beyond the authority of the primary legislation).
9. Provisions within the Bill that engage the right to freedom of expression mostly apply to sponsors, school staff (such as school principals), and charter schools that need to deliver education to students, rather than requiring students or their families to provide information.
10. Those provisions that engage freedom of expression include both those amending the principal Act and new provisions being introduced within the Bill. For example:
    • clause 26(7) inserts sponsors and “person responsible for teaching and learning in a charter school” to section 81(7) of the principal Act which provides for powers of State schools when suspended students are under 16 years. It includes a requirement for the principal to notify the Secretary for Education what steps the principal took when arranging for the student to attend another school, if the principal has been unsuccessful in that attempt;
    • clause 40 inserts new provision 212F ‘Application for approval to operate charter schools’, particularly subclauses (2) and (3) which require certain information in an approved form from applicants to operate a charter school;
    • clause 40 also inserts new provision 212ZC ‘Interventions in charter schools by Authorisation Board’, particularly subclauses (1)(b) and (c) which require the sponsor to provide information to both the Authorisation Board and to the Secretary for Education;
    • clause 54 amends section 619(1) of the principal Act to add sponsors into those who the Secretary for Education may require information from for the administration of the principal Act;
    • schedule 3 inserts a new Schedule 6B which states that section 31 of the Crown Entities Act 2004 applies to the Authorisation Board. Section 31 requires a person appointed as a member of a statutory entity to disclose to the responsible Minister the nature and extent (including monetary value, if quantifiable) of all interests that
      

1 RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th) 1.

the person has at that time, or is likely to have, in matters relating to the statutory entity.

11. These provisions are necessary for the efficient and effective operation of the education sector and the charter schools. Accordingly, we consider that any limits on freedom of expression in the Bill are justified under s 5 of the Bill of Rights Act.

Sections 17 and 18 – Freedom of association and movement

12. Section 17 of the Bill of Rights Act affirms that everyone has the right to freedom of association. The right to freely associate is directed towards the right to form or participate in an organisation, to act collectively, rather than simply to associate as individuals.2 Section 18(1) of the Bill of Rights Act affirms that everyone lawfully in New Zealand has the right to freedom of movement and residence within New Zealand. The rights to freedom of association and movement are closely aligned.
13. A number of provisions prima facie limit the right to freedom of association and movement. The Bill amends the principal Act to include charter schools in many of the same provisions that currently apply to State schools. For example:
    • clause 22 amends section 77 of the principal Act to include, alongside principals at State schools, “persons responsible for teaching and learning in a charter school...” among those that may preclude students from the school for health reasons (i.e. if they have reasonable grounds to believe that the student may have a communicable disease);
    • clause 25 amends section 80 of the principal Act to include that, alongside principals at State schools, “persons responsible for teaching and learning in a charter school...” may stand down or suspend students under certain circumstances;
    • clause 32 inserts a sponsor within section 87(3A) of the principal Act so that the Secretary for Education may direct them to enrol a student if they have been expelled from another charter school.
14. We consider any limitations the Bill imposes on the freedom of association and movement are demonstrably justified under s 5 of the Bill of Rights Act. As with similar advice given on a previous Bill,3 we note that the purpose of these kinds of provisions is to minimise disruption to the delivery of education for students, and protect the health, safety, and wellbeing of students. The provisions are therefore rationally connected to these objectives and minimally impair freedom of association and movement.
    

2 Moncrief-Spittle v Regional Facilities Auckland Limited [2021] NZCA 142, [2021] 2 NZLR 795 at [113].

3 See the Ministry of Justice’s advice to the Attorney-General dated 21 November 2019 – ‘Consistency with the New Zealand Bill of Rights Act 1990: Education and Training Bill, publicly available at https://www.justice.govt.nz/assets/Education-and-Training-Bill.pdf.

Section 19 – Freedom from discrimination

15. Section 19(1) of the Bill of Rights Act affirms the right to freedom from discrimination on the grounds set out in the Human Rights Act 1993 (the Human Rights Act).
16. Two factors must be met for discrimination to be identified under section 19(1) of the Bill of Rights Act:
    • there is a differential treatment or effect as between persons or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination; and
    • that treatment has a discriminatory impact (i.e., it imposes a material disadvantage on the person or group differentiated against).
17. Prohibited grounds under the Human Rights Act include age, national origin, religion, disability, and family status.

National origin

18. As with the principal Act, a number of clauses within the Bill distinguish between domestic students4 and international students.
19. For example, clauses 47 to 49 of the Bill amend sections 519 – 521 of the principal Act to cover charter schools as well as State schools in relation to key provisions on the enrolment of international students. These provisions state that an international student may not be enrolled at a charter school without the sponsor’s consent (cl 47(1)), and prioritise domestic student enrolment over international student enrolment in certain circumstances (cl47(3)) and provide that international students must pay fees unlike domestic students (cl 49). Also, clause 51 outlines courses specifically for international students but not domestic students (see section 524 of principal Act)).
20. We consider that the various clauses that distinguish between domestic and international students within the Bill are justified limitations on the right to freedom from discrimination on the basis of nationality. As noted in previous advice5, the distinction recognises that the education system is funded through taxation and, without placing restrictions on who can access state-funded education, the system would be under considerable financial strain. In addition, international students may have different educational needs to domestic students.
21. For completeness we note that clause 48(2) allows the Minister to by notice declare international students of a specified kind or description to be entitled to enrol at charter schools (section 520 of the principal Act). As noted above any regulations must be
    

4 The definition of domestic student is wide. Domestic student is defined as an individual who is a New Zealand citizen, the holder of a residence class visa under the Immigration Act 2009, or a person of a class or description of persons required by the Minister, by notice in the Gazette, to be treated as if they are not international students.

5 See the Ministry of Justice’s advice to the Attorney-General dated 21 November 2019 – ‘Consistency with the New Zealand Bill of Rights Act 1990: Education and Training Bill, publicly available at https://www.justice.govt.nz/assets/Education-and-Training-Bill.pdf.

consistent with the Bill of Rights Act, otherwise there is a risk that they will be ultra vires

(go beyond the authority of the primary legislation).

Disability

22. Schedule 3 of the Bill inserts new Schedule 6B into the principal Act. This applies provisions of the Crown Entities Act 2004 to the Authorisation Board including section 30 which outlines qualifications of members.
23. These provisions provide that a person is not eligible for appointment to an office if they are subject to a property order, or personal order that reflects adversely on their competence to manage their own affairs in relation to their property, or capacity to make or communicate decisions relating to any particular aspect(s) of their personal care and welfare, under the Protection of Personal and Property Rights Act 1998.
24. We have previously considered such limits on s 19(1) justified because they are rationally connected to the important objective of ensuring that only those people capable of discharging relevant functions of office are appointed.6 We consider that the provisions in the current Bill are justified for this reason.

Conclusion

25. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Edrick Child

Acting Chief Legal Counsel Office of Legal Counsel

6 See the Ministry of Justice’s advice to the Attorney-General dated 21 November 2019 – ‘Consistency with the New Zealand Bill of Rights Act 1990: Education and Training Bill, publicly available at https://www.justice.govt.nz/assets/Education-and-Training-Bill.pdf.