Skills Active Aotearoa Ltd v The Minister of Education

JurisdictionNew Zealand
JudgeGrice J
Judgment Date31 October 2019
Neutral Citation[2019] NZHC 2800
CourtHigh Court
Docket NumberCIV-2019-485-212
Date31 October 2019
Between
Skills Active Aotearoa Limited
Applicant
and
The Minister of Education
First Respondent

and

The Chief Executive of The Mnistry of Education
Second Respondent

and

The Chief Executive of The Tertiary Education Commission
Third Respondent

[2019] NZHC 2800

Grice J

CIV-2019-485-212

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Indigenous, Judicial Review — review of providers in the vocational education training sector — consultation requirements — Treaty of Waitangi — natural justice

Appearances:

H J P Wilson and S I Jones for Applicant

M S Smith and S Connolly for Respondent

JUDGMENT OF Grice J
Contents

Introduction

[1]

Background

[15]

Formal consultation process

[21]

Law

[31]

Justiciability

[38]

The Treaty of Waitangi

[44]

Natural justice and legitimate expectation

[68]

Period before February 2019

[83]

Context

[83]

Legitimate expectation

[98]

Natural justice

[106]

Justiciability

[116]

Conclusion

[117]

After February 2019

[119]

Law

[119]

Decision two: setting the consultation period and engagement

[123]

Decisions three and four: refusals to extend time

[152]

Requests for information

[161]

Other engagement

[178]

Level of consultation

[182]

Other matters

[188]

Analysis of submissions

[188]

Preliminary decisions

[193]

Failure to consider relevant considerations

[205]

Discretion

[207]

Conclusion

[209]

Costs

[212]

Introduction 1
1

The roles and responsibilities of providers in the vocational education training sector (VET sector) are under consideration by the government as part of a major reform. The sector is responsible for the education of learners (students, trainees and apprentices) at a tertiary level and aims to equip them with the knowledge, skills and qualifications to enable them to perform in a specific role or kind of work in a specific industry.

2

At present learners can work toward qualifications by enrolling in a programme of study and doing mainly classroom based learning or alternatively by industry learning. The latter involves formal education and training in the workplace and most of the learning happens on the job.

3

Any reform will impact on the scope, role and responsibilities of education providers including New Zealand's Institutes of Technology and polytechnics (ITPs/polytechs) as well as Industry Training Organisations (ITOs) which operate in the industry training area.

4

Skills Active Aotearoa Limited is an ITO. It operates in the sport, exercise, recreation and performing arts sector.

5

The Minister of Education (the Minister) is the Minister responsible for the sector. 2 The Chief Executive of the Ministry of Education (the Ministry) heads the government department responsible for vocational education and is the second respondent to these proceedings. The Tertiary Education Commission funds vocational education providers and its Chief Executive is the third respondent to the proceedings. I refer to the respondents collectively as the Crown.

6

Skills Active seeks to judicially review four decisions made by the Crown. These decisions were made in the course of the development of reform proposals by

the Crown, which were put out for consideration in a formal consultation process which ran from 13 February 2019 to 5 April 2019
7

The relevant decisions are the decisions: not to consult directly with Skills Active either before or during the formal consultation period (decision one); to set a six-week consultation period with the ITOs including Skills Active (decision two); to refuse to extend that period on 20 February 2019 (decision three); and to refuse to extend that period on 4 March 2019 (decision four).

8

Skills Active says that the four decisions were in breach of Skills Active's rights and the Crown's public law obligations as follows:

  • (a) Decision one was made in a breach of natural justice, a breach of legitimate expectations, and the Crown failed to have regard to relevant considerations.

  • (b) Decision two was made in a breach of natural justice, a breach of legitimate expectations, and the Crown failed to have regard to relevant considerations.

  • (c) Decision three was made in a breach of natural justice and the Crown failed to have regard to relevant considerations.

  • (d) Decision four was made in a breach of natural justice and the Crown failed to have regard to relevant considerations.

9

Skills Active raised a number of additional matters in its submissions, in particular:

  • (a) It criticised the analysis by the Crown in its published analysis of the submissions made in the formal consultation period.

  • (b) It suggested that the Crown had shown “flickers” of predetermination as to the final outcome of the reforms.

10

A theme running through Skills Active's submissions and evidence was that it was entitled to a high level of engagement, approaching negotiation, with the Crown in the development of any reform proposals.

11

Mr Wilson for Skills Active nevertheless emphasised there was no legal claim based on bias or predetermination by the Crown. He also accepted that the Crown was not required to negotiate the reform proposals with Skills Active.

12

Skills Active says this Judicial Review is based on the relevant supervisory jurisdiction of this Court which arises at common law.

13

The underlying questions are: whether the Crown was required to directly consult Skills Active in the development of the reforms, if so what was the appropriate level of consultation required and did that occur?

14

An overview of the background and the consultation and engagement process that took place is necessary.

Background
15

There are 16 New Zealand polytechs and Wananga throughout New Zealand as well as several hundred private training establishments. These organisations are education providers and offer qualifications. The 11 ITOs offer vocational education qualifications and coordinate training for the learners.

16

New Zealand's polytechs face significant financial challenges. A number of the polytechs were or are insolvent. They continue to have significant financial difficulties. The government has had to provide millions of dollars to some to keep these bodies going. Their financial problems were projected to get worse if there was no change in the sector. 3 This added an element of urgency to the VET sector reforms from the Government's point of view.

17

The 11 ITOs are government funded and must be approved for the specialty or sectors in which they operate. 4 They organise the delivery, assessment and/or monitoring of training for trainees and apprentices. They do not actually deliver education but coordinate arrangements with education providers and employers who provide the work place training.

18

The genesis of the VET reforms was in the 2017 election Labour Education Manifesto. Reviews of the sector were commenced in earnest in April 2018 by the Ministry of Education and the Tertiary Education Commission (VET Review). Any reforms were intended to provide a sector capable of equipping learners with the skills needed to participate in the workforce. The rapid changes in workforce requirements meant employees were likely to change jobs more often and engage in more frequent vocational training.

19

The VET Review was to be an examination of the wider VET policy. It involved wide engagement, including with learners, employers, industry representatives, ITOs and polytechs as well as parties in the education sector generally. At the same time, a review of the polytechs was underway called the ITP Roadmap 2020 Project. This was to look at how to ensure a sustainable future for polytechs. Generally, the Crown was gathering information on what was required to make the VET system “fit for purpose” now and in future. In addition, the Crown needed to address the financial unsustainability of the polytech subsector.

20

In December 2018, the two reviews were merged into a single work programme to carry on the review and reform process. The new programme was called the Reform of Vocational Education (RoVE). Skills Active (and other stakeholders) were advised of the merged workstreams and told that public consultation on the VET reforms would take place in early 2019.

Formal consultation process
21

The Minister launched a six week formal consultation process on the VET reforms on 13 February 2019. A consultation discussion paper set out an integrated package of reforms for consideration (the Consultation Document). The paper set out the background to the reforms, explained why the changes were being proposed and gave an overview of what the changes would mean for various groups. It also set out other options for reform which had been considered and reasons why those had not been pursued.

22

In the forward to the Consultation Document the Minister said:

We propose to establish a unified, co-ordinated national system of vocational education and training.

The roles of industry training organisations (ITOs) would be re-shaped so that they are much more focused on skills leadership and making sure that the education and training provided meets the needs of employer.

Our proposals are ambitious, and necessarily so. We cannot continue to tweak the system knowing the model is fundamentally broken, and isn't delivering our work force the skills they need to thrive.

23

The three main proposals for consideration were set out in the document as follows:

The government's integrated programme of reform comprises three main proposals:

  • (a) Redefined roles for education providers and industry bodies;

  • (b) An institution with the working title of New Zealand Institute of Skills & Technology [(NZIST)], bringing...

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