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Education (Establishment of Tertiary Education Institutions) Amendment Bill (Consistent) (Section 27(1)) [2004] NZBORARp 33 (24 September 2004)
Last Updated: 21 March 2021
Education (Establishment of Tertiary Education Institutions) Amendment
Bill
24 September 2004
Attorney-General
Legal Advice:
Education (Establishment of Tertiary Education Institutions)
Amendment Bill 2004:
Consistency With The New Zealand Bill of Rights Act
1990:
- We
have considered the Education (Establishment of Tertiary Education Institutions)
Amendment Bill (PCO version 6153/2) for consistency
with the New Zealand Bill of
Rights Act 1990 (the "Bill of Rights Act"). We understand that this Bill is to
be considered by Cabinet
Policy Committee on Wednesday, 15 September 2004. We
have been asked to consider this Bill under some urgency.
- The
Bill proposes to amend the current process for determining the establishment of
tertiary education institutions by establishing
a sequential process for making
such a determination. A tertiary education institution is identified as being a
college of education,
a polytechnic, a specialist college, a university or a
wananga.
- This
Bill intends to make it clear that the initial consideration for any application
must be whether the establishment of such an
institution is in the interests of
the tertiary education system and the nation as a whole (new section
162A(1)(a)). This criterion
is currently provided for in the Education Act 1989
but is not given any priority over the other criteria (section 162(3) of the
Education Act).
- The
Bill also provides that, if the establishment of a new tertiary education
institution is not in the interests of the tertiary education system and
nation as a whole, the Minister may decline the application on this basis alone
without considering the merits of the application further (new section 162A(4)).
The Bill provides that the Minister must obtain
the advice of the Tertiary
Education Commission before making a determination under section 162A(1)(a) (new
section 162A(2)).
- The
Bill will have retrospective effect in relation to any Order in Council
establishing a university that may be made after this
Bill is introduced into
the House (see clause 5). The explanatory note of the Bill states that it is
intended that the retrospective
application would have the effect of encouraging
both the Qualifications Authority and those seeking establishment of a
university
either to wait until after the Act comes into force or to follow the
new procedures in anticipation of the Bill’s
enactment. We
understand that the changes to the process will be applied to one long-standing
application by a tertiary institution
for university status.
- We
have considered whether this Bill raises issues of consistency with the Bill of
Rights Act, specifically the right to the observance
of the principles of
natural justice (section 27(1)). We have come to the view that the Bill appears
to be consistent with the Bill
of Rights Act.
- In
accordance with your instructions, we attach a copy of this opinion for referral
to the Minister of Justice. We also attach a copy
for referral to the Minister
of Education and Associate Minister of Education (Tertiary Education), if you
agree.
Roger Palairet Acting Chief Legal Counsel Office of Legal
Counsel
|
Boris van Beusekom Senior Legal Adviser Bill of Rights/Human Rights
Team
|
cc
Minister of Justice
Minister of Education
Associate Minister of
Education (Tertiary Education)
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Education (Establishment of Tertiary Education Institutions) Amendment Bill. It
should not be used or acted upon
for any other purpose. The advice does no more
than assess whether the Bill complies with the minimum guarantees contained in
the
New Zealand Bill of Rights Act. The release of this advice should not be
taken to indicate that the Attorney-General agrees with
all aspects of it, nor
does its release constitute a general waiver of legal professional privilege in
respect of this or any other
matter. Whilst care has been taken to ensure that
this document is an accurate reproduction of the advice provided to the
Attorney-General,
neither the Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
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