Education (Establishment of Tertiary Education Institutions) Amendment Bill

24 September 2004

Attorney-General

1. 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.
   
   
2. 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.
   
   
3. 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).
   
   
4. 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)).
   
   
5. 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.
   
   
6. 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.
   
   
7. 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.

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.