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Education (Tertiary Reforms) Amendment Bill (Consistent) (Section 14) [2007] NZBORARp 7 (13 April 2007)

Last Updated: 2 January 2019

Education (Tertiary Reforms) Amendment Bill

13 April 2007

Attorney-General

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: EDUCATION (TERTIARY REFORMS) AMENDMENT BILL

1. We have considered whether the Education (Tertiary Reforms) Amendment Bill (PCO

7566/16) ("the Bill") is consistent with the New Zealand Bill of Rights Act 1990 (the "Bill of Rights Act"). We understand that the Bill is likely to be considered by the Cabinet Legislation Committee at its meeting on 19 April 2007.

2. Our view is that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion, we considered potential issues of inconsistency with section 14 (freedom of expression) of that Act.

PURPOSE

3. The Bill aims to simplify and streamline the processes supporting the operation of the tertiary education system in New Zealand by creating a group of planning, funding, and monitoring instruments that recognise the differing roles of organisations within the tertiary education sector and require organisations to focus on outcomes. To achieve this aim, the Bill proposes substantial amendments to the Education Act 1989 ("the 1989 Act").

ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT

4. 4. Section 14 of the Bill of Rights Act provides:

"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind and in any form".

5. The right to freedom of expression in section 14 extends to all forms of communication that attempt to express an idea or meaning.[1] The right to freedom of expression has been interpreted as including the right not to be compelled to say certain things or to provide certain information.[2]

6. Clause 17 and 18 of the Bill propose the insertion of several new provisions in the 1989 Act requiring tertiary education organisations to submit information to the Tertiary Education Commission or the Ministry of Education.[3] Non-compliance with these requirements may have consequences[4] that create a degree of compulsion and it may be argued that this raises freedom of expression issues.

7. However, even if these provisions were considered to limit the right to freedom of expression affirmed by section 14 of the Bill of Rights Act, we believe that this would be justifiable under section 5 of the Bill of Rights Act. The required information is necessary to ensure the responsible expenditure of public money and the Commission must be able to

receive the information specified in the Bill if it is to carry out its assessment and monitoring functions properly.

8. New section 159YO also ensures transparency to the public and is in line with the right of the public to receive information, which is included within the right to freedom of expression.

9. We have therefore concluded that the Bill is consistent with the rights and freedoms contained in the Bill of Rights Act.

Footnotes

1 R v Keegstra [1990] INSC 224; [1990] 3 SCR 697,729,826

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

3 New sections 159P, 159R, 159YC, 159YD, 159YO, 159ZD & 159ZE.

4 Under new sections 159YB, 159YG and 159ZF.

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 (Tertiary Reforms) 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.