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Education (Social Investment Funding and Abolition of Decile System) Amendment Bill (Consistent) (Section 14) [2018] NZBORARp 35 (28 March 2018)
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Education (Social Investment Funding and Abolition of Decile System) Amendment Bill (Consistent) (Section 14) [2018] NZBORARp 35 (28
March 2018)
Last Updated: 3 January 2019
28 March 2018
Hon David Parker, Attorney-General
LEGAL ADVICE
LPA 01 01 23
Consistency with the New Zealand Bill of Rights Act 1990: Education (Social
Investment Funding and Abolition of Decile System) Amendment
Bill
Purpose
- We
have considered whether the Education (Social Investment Funding and Abolition
of Decile System) 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’).
- 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 s 14 (freedom of expression).
Our analysis is set out below.
The Bill
- The
Bill amends the Education Act 1989 (‘the Education Act’) and the
Official Information Act 1982 (‘the Official
Information Act’).
- The
Bill inserts a new Part 8AA to the Education Act. New Part 8AA prohibits the
decile system being used as a basis for public funding,
and establishes in its
place the “needs index”. The needs index is designed to target
funding for State schools, State
integrated schools, and partnership schools
kura hourua based on the risk of students’ underachievement. The needs
index would
be calculated by reference to a school’s students’
“need indicators” (to be prescribed by regulations), which
would
indicate students who are at risk of not achieving NCEA Level 2. The Bill also
provides for review of the funding distribution
based on the needs index, and
for privacy matters and regulations.
- The
Bill also exempts information concerning the needs index, and the amount of
grants or supplementary grants made under it, from
the scheme of the Official
Information Act.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form. The Supreme Court has interpreted freedom of
expression under
s 14 as affirming an “independent civil right to
apply” for information,1 and has noted that a
core value of this right is the ability to participate in political decision
making.2 The right
1 Mafart
v Television New Zealand Ltd [2006] NZSC 33; [2006] 3 NZLR 18 at [39].
2 Brooker v Police [2007] NZSC 30, [2007] 3
NZLR 91 at [114].
to receive information prevents the state from restricting a person from
receiving information that others may be willing to impart
to that that
person.3
- Clause
5 of the Bill (new s 79AJ) specifies that data collected for calculating the
needs index (including need indicators of a student
or students), the needs
index calculation, and the needs index for any school, are not subject to the
Official Information Act. Clause
6 also amends the definition of official
information in the Official Information Act to exclude any information held by
the Minister
of Education or the Ministry of Education concerning the same
information as specified in cl 5, as well as information concerning
the amount
of any grants or supplementary grants allocated to a board or sponsor.
- We
do not consider that these exemptions from the Official Information Act engage
the freedom of expression protected by s 14. The
Bill does not prohibit seeking,
receiving or imparting information, but rather removes one avenue (albeit a
constitutionally important
avenue) for seeking access to and receiving that
information.4
- The
traditional view is that freedom of expression does not mean that an individual
has a right to be given certain information. While
there have been some
indications in European Courts that a broader view of the notion of the freedom
to receive information could
be taken, thereby moving towards recognition of a
right of access to information,5 we are not aware of
any New Zealand authority extending s 14 to include a substantive right of
access to information.
- We
note that if New Zealand law were to recognise a right of access to information,
we consider it unlikely that the limitations imposed
on such a right by the Bill
would be justified. The Bill exempts from the Official Information Act a wider
range of information than
that required to protect students’ privacy and
to ensure schools were not stigmatised on the basis of their levels of funding;
for example, it is likely to exempt information such as the total number of
enrolled students at a school. Given the breadth of the
exemption and that the
Official Information Act is a key mechanism to access information about how
public funds are allocated, and
thereby a strong tool to ensure Government
accountability, it would be difficult to conclude the limitation was in due
proportion
to the importance of the objectives.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
3 Andrew Butler and Petra
Butler The New Zealand Bill of Rights Act: A Commentary
(2nd ed, LexisNexis, Wellington, 2015) at
[13.7.45].
4 We note that other provisions in the Education
Act, for example, require school boards to publish annual reports which include
financial
statements covering a school’s cash flows (see Education Act
1989, ss 87, 87AB, 87C).
5 Butler and Butler The New Zealand Bill of
Rights Act: A Commentary above n 3, at [13.7.48] and [13.7.51].
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