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Education Amendment Bill (No 2) (Consistent) (Sections 5, 19(1)) [2010] NZBORARp 37 (28 May 2010)

Last Updated: 5 May 2020

28 May 2010

ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: EDUCATION AMENDMENT BILL (NO 2)

1. We have considered whether the Education Amendment Bill (No 2) (PCO

14196/7.0) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). We understand that the Bill is to be considered by the Cabinet

Legislation Committee on Thursday, 3 June 2010.

2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion, we have considered potential issues of inconsistency with s 19(1) (right to freedom from discrimination) of that Act. Our analysis is set out below.

Purpose of the Bill

3. The Bill amends the Education Act 1989 and the Education Act 1964 to:

• introduce secondary-tertiary programmes to give greater opportunities for secondary students to spend time learning in a tertiary environment or in the workplace

• exempt limited attendance centres from early childhood education licensing standards to make it easier for recreation facilities, shopping centres and similar organisations to provide short-term childcare

• change the refund provisions for international students enrolled in private training establishments

• update and clarify the law affecting private schools.

Freedom from discrimination

4. The Bill raises two issues triggering the right to freedom from discrimination.

Section 19(1) of the Bill of Rights Act affirms that everyone has the right to be free from discrimination on the grounds of discrimination in the Human Rights Act

1993, which include family status and national origin. Legislation may give rise to

prima facie discrimination under s 19(1) of the Bill of Rights Act if the legislation draws a distinction based on one of the prohibited grounds of discrimination and the distinction involves disadvantage to one or more classes of individuals.

5. A limitation on a particular right or freedom can be justified under s 5 of the Bill of Rights Act where the provision serves an important and significant objective and there is a rational and proportionate connection between the provision and that objective.

6. The first instance of prima facie discrimination involves amendments to a priority list for students who apply for a place in a school that is not in their home zone. The Bill amends the Act to add as a fourth priority those applicants who are a child of a former student of the school. The fifth priority becomes an applicant who is either a child of an employee of the board of the school or a child of a member of the board of the school. The sixth priority will be all other applicants.

7. The out-of-zone amendments distinguish between applicants based on being the relative of a particular person. Family status is a prohibited ground of discrimination under s 21(1)(l) of the Human Rights Act. Under that Act, family status includes being a relative of a particular person. The disadvantage exists for all other applicants to a school who are denied a place where other higher priority applicants receive a place at the school.

8. The second instance of prima facie discrimination involves foreign students and secondary-tertiary programmes. National origins, which includes nationality or citizenship, is a prohibited ground of discrimination under s 21(1)(g) of the Human Rights Act. New section 31K creates a preference for domestic or exempt students1 over foreign students for access to secondary-tertiary programmes.

Out-of-zone priority list

9. The purpose of the amendments to the out-of-zone priority list is to maintain a family connection to the relevant school. The first priority is not related to family status and remains unchanged by the Bill. The first priority is for any applicant who is accepted for enrolment in a special programme run by the school. The second and third priorities are for siblings of current or former students, respectively.

10. We consider that maintaining a family connection with an out-of-zone school is an important and significant objective. Maintaining family connections with schools strengthens both the engagement of families and whānau with schools and supports their children’s education. The priority list also rationally and proportionally reflects the descending degrees of family connection ranging from keeping siblings together to children of an employee of the board of the school or of a member of that board.

11. Additionally, students who live in the home zone have an absolute right to enrol at the school in their zone. School boards can decide whether or not to offer places at the school to out of zone students if there are spaces available. The priority list seeks to ensure transparency in decisions for placing out-of-zone students where there are more applicants than places at the school.

1 An exempt student is defined under s 2 of the Education Act 1989 and generally refers to a foreign student who is in New Zealand to study under an exchange programme approved by the New Zealand Government or is for the time being exempted from the payment of all or a specified proportion or amount of his or her fees.

Secondary-tertiary programmes

12. Secondary-tertiary programmes are a joint approach between secondary and tertiary institutions to provide nationally recognised qualifications to young people. These programmes seek to keep young people in school, participate in training or assist them into work. These are important and significant objectives.

13. The priority for domestic students for enrolment in secondary-tertiary programmes reflects the same priority of domestic students for enrolment in state schools. The definition of a domestic student is broad and includes dependants of people with residency permits, qualifying unexpired work permits and refugee claimants.

14. The secondary-tertiary programmes target young people who find the school system irrelevant to their needs. The programmes allow students enrolled in a secondary school to spend large amounts of time in tertiary institutions or in the workplace. Secondary-tertiary programmes are not appropriate for foreign students who are primarily in New Zealand to study with no long-term right to stay in the country. In addition, foreign students in the same age group as secondary- tertiary students already have access to a wider range of options for study at secondary-tertiary level because foreign students under the age of 16 are not obliged to be enrolled in school. There is nothing to stop these students enrolling in a private training establishment that provides a secondary level education.

15. We consider that prioritising domestic over foreign students for enrolment in secondary-tertiary programmes is rationally and proportionally connected to encouraging young people who find the school system irrelevant to stay in school, receive training or enter the workforce.

16. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

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 Biofuel 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.