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Education Amendment Bill (Consistent) (Sections 5, 27) [2009] NZBORARp 15 (26 March 2009)

Last Updated: 28 April 2020

Education Amendment Bill - 2009

26 March 2009

Attorney-General

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: EDUCATION AMENDMENT BILL

1 We have considered whether the Education Amendment Bill (PCO 13565/5.0) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). We understand that this Bill is likely to be considered by the Cabinet Legislation Committee at its meeting

on Thursday, 2 April 2009.

2 We considered potential issues of inconsistency with section 27(1) (right to natural justice) of the Bill of Rights Act and assessed whether or not one of these issues is justifiable under section 5 of that Act. To that end, we examined whether the relevant clause serves an important and significant objective and whether there is a rational and proportionate connection between this clause and that objective [1].

3 We have reached the conclusion that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

PURPOSE

4 The Bill amends the Education Act 1989 (the ‘Act’) and seeks to:

• introduce information matching between the New Zealand Teachers Council and the

Ministry of Education to identify individuals teaching in schools without registration

• reduce compliance costs relating to Police vetting, and

• allow school boards to provide out-of-school care and recreation services as authorised by the Ministry of Education.
  

5 The Bill also aims to enhance the efficient governance of the compulsory education system and the efficient administration of the compulsory and tertiary education systems. The Bill further amends existing provisions to clarify some definitions and correct minor technical and drafting errors in the Act.

BILL OF RIGHTS ACT ISSUES

Section 27(1) – Right to natural justice

Police vets

6 Clauses 22 and 71 require police vets to be made on non-teaching and unregistered employees who have been or are to be appointed to work during normal school or opening hours at a school or an early childhood service. These clauses also provide for police vets to be made on contractors and their employees who work at a school or early childhood service and who have unsupervised access to children at the school or the service during normal school or opening hours. Registered teachers and holders of a limited authority to teach (essentially a non-qualified teacher regulated by the Teachers Council) are already subject to police vetting under section 124B of the Act.

7 Clause 77 (Transitional provision in relation to Police vetting) provides that the board or management of a state or private school, or the provider of an early childhood service must, within 8 weeks after the date on which the proposed Act comes into force, obtain a Police vet of any person who must be vetted under the proposed clauses 22 and 71, and no vet has been obtained with respect to this person within a period of 3 years immediately before the commencement of this Act.

8 The Bill does not describe the procedures by which information certified in a police vet is to be obtained and assessed. Consequently, we have considered whether these clauses could be viewed as restricting the right to natural justice, as affirmed in section 27 of the Bill of Rights Act, of the affected persons. To this end, we have been advised by the Ministry of Education that, inter alia:

• vetting can only be carried out with the consent of the person concerned

• the person has the opportunity to validate the vetting information. In practice validation is the process whereby a person is given the opportunity to clarify whether the information contained in the vet is correct

• where the person is an employee, a school or service is expected to act as “good employer”.

Each service or school risks liability under employment law if the issue is not handled with due care.

9 We have concluded that police vets under clauses 22, 71 and 77 are accompanied by sufficient safeguards and are, for that reason, not prima facie inconsistent with section 27 of the Bill of Rights Act. By way of general comment, we note that the provisions appear to be directed at ensuring that children at schools and early childhood services are in a safe learning environment.

Interim suspensions

10 Clause 41 of the Bill amends section 139AU(2) (Interim suspension until complaint of possible serious misconduct concluded) of the Act. The proposed new subsection allows for an interim suspension by the chairperson of the Disciplinary Tribunal of a teacher’s practising certificate or authority either with or without a hearing. The possibility of suspension without a hearing raises a prima facie issue of inconsistency with the right to be heard, one of the principles of natural justice affirmed in section 27(1) of the Bill of Rights Act.

11 We note that one aim of suspending a teacher without a hearing in cases of alleged serious misconduct may be to ensure the safety of children and young people while there is uncertainty over the behaviour of the teacher concerned. This is an important and significant objective.

12 Clause 42 of the Bill proposes the insertion of a new section 139AUA(2) that provides that the chairperson of the Disciplinary Tribunal must review his or her suspension decision if the teacher, at any time during an initial period of suspension, asks him or her to do so and provides a written explanation or statement in support of his or her request. This effectively balances the safety concerns against the right of the teacher to be heard. The chairperson of the Tribunal has the power to subsequently lift or revoke an interim suspension following reconsideration – see proposed new section 139AUA(1)(d).

13 The review of an interim suspension under section 139AUA(2) is not subject to a formal right of appeal. However, a decision of the chairperson of the Tribunal under this provision is likely to be amenable to judicial review.

14 In addition, the first period of interim suspension may not be any longer than three months, following which the Disciplinary Tribunal may renew the interim suspension of a teacher for further periods of no more than three months – see proposed new section

139AUA(3).

15 In those circumstances, the teacher may make representations to the Tribunal at a hearing. Such a hearing is subject to existing procedural provisions in the Education Act – the Tribunal may, amongst other things, receive evidence on oath, or require a person to give evidence in person and produce documents or other information in support. There is also the right to appeal the decision to a District Court – see proposed new section

139AUA(5), alongside sections 139AX to 139AZB of the Education Act.

16 These more substantive procedural rights are not available to a suspended teacher

during the first period of suspension. However, we have concluded that the limitation of the right to natural justice in section 27(1) of the Bill of Rights Act can be justified under section

5 of that Act. In reaching this conclusion, we have considered the objective of interim suspension without a hearing, a maximum three month limit on the first period of interim suspension, and the right to have this interim suspension decision reviewed following this decision.

CONCLUSION

17 We have concluded that the Bill does not appear to be inconsistent with the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Helen Wyn General Manager Public Law

Footnotes

1. The application of s 5 entails an assessment of whether the restriction is rationally connected to an important objective and is proportionate to that objective: see, most recently, R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271].

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 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.