This submission was made to the Education and Workforce Committee on 25 July 2024.
Submission on Education and Training Amendment Bill
Thank you for the opportunity to submit on the Education and Training Amendment Bill (the Bill).
My comments on the Bill focus on my concerns about the potential watering-down of the rights of students and the public to access information about publicly funded schools.
The Bill introduces two new public bodies: charter school ‘sponsors’, and the Authorisation Board. Sponsors will operate and govern charter schools. The responsibilities of the Authorisation Board will include making decisions on applications for sponsors to operate charter schools, determining interventions where charter schools are not meeting contractual or legislative requirements, and providing oversight and advice for the performance management system.
The Bill proposes to make both sponsors and the Authorisation Board subject to the Ombudsmen Act 1975.[1] This is entirely appropriate given their roles, and ensures access to an independent and impartial means for the public to hold these bodies accountable. Being added to the Ombudsmen Act will also, quite appropriately, make the Authorisation Board subject to the Official Information Act 1982 (OIA).
In the ordinary course of events, this would also make sponsors subject to the OIA. Clause 212ZH(1) of the Bill, however, clarifies that the OIA ‘does not apply to a sponsor if the sponsor is performing or exercising its functions, duties, or powers under this Act or the relevant charter school contract.’ [2]
I am deeply concerned about this provision. Placing charter schools outside the reach of the OIA puts parents and students of those schools at a disadvantage relative to their state school counterparts, both in terms of their ability to hold the governing body to account for the management of their school, and their right to access information affecting their individual rights and interests. It also excludes an accountability mechanism for organisations that will be receiving full public funding to carry out functions that would otherwise be provided by government. There does not appear to be any defensible reason for this.
The nature of charter schools and the impact of exclusion from the OIA
There is a long-standing presumption that any new public bodies created by statute will be made subject to the Ombudsmen Act and the OIA (or the Local Government Official Information and Meetings Act 1987), unless there is a demonstrable and compelling reason for them not to.[3] These Acts are constitutional safeguards which, to remain most effective, must continue to apply as widely as possible across the public sector.
I accept charter schools will adopt some characteristics of private schools. They will operate independently from the conventional public education system with greater flexibility in the governance of their schools, including in the way they spend funding, the type of teachers they hire, and nature and design of the curriculum and qualifications offered. However, charter schools do not resemble private schools in key respects. They will be fully publicly funded, offer fees free education, generally be required to accept all eligible students who apply, and perform a function that would otherwise generally be performed by state schools. Several dozen existing state schools are already earmarked for conversion to charter schools,[4] and students of such schools may not be in a position to choose the type of school they attend.
In addition to the general principle that all public bodies should be subject to the OIA, there are two primary reasons I am particularly concerned about exclusion of schools of this nature from the OIA.
The first is that, where these schools are to receive full public funding to perform a statutory function, the public has a legitimate expectation that there will be transparency over the expenditure of those public funds. Being subject to the OIA ensures that these bodies are accountable to tax-payers for how that money is being used and for how well they are performing their functions. No compelling reason has been offered to explain why charter schools should be treated more leniently than other publicly funded schools by being made exempt from this expectation.
The second is that this Bill would create an inequality of rights between those who attend state schools and those who will attend charter schools by not conferring key rights to access certain information to the parents and students of charter schools. For instance, section 23 of the OIA provides a right of access for individuals to a statement of reasons why an agency (or any public body) made a particular decision or recommendation affecting the requester. This is not a right provided by the Privacy Act 2020. Section 22 of the OIA confers a right of access to internal documents containing policies, principles, rules, or guidelines affecting decisions about individuals.
These provisions have particular significance in the context of disputes and disciplinary matters. They enable people to understand their rights and the basis of decisions affecting them, and help them to decide whether to challenge those decisions. Charter schools will have the power to make certain decisions with the potential for significant adverse impacts on people, including decisions to expel or exclude students from their school. Not having these tools available is likely to make it more complex for people to effectively understand and challenge those decisions.[5]
Summary
The current proposal represents somewhat of a constitutional anomaly. It is unusual for an agency to be subject to the Ombudsmen Act, but not the OIA. In part, this is because the Ombudsmen Act and the OIA are complementary measures which work most effectively in conjunction with one another. Gaining sufficient transparency over agency activities and reasonable access to information about decisions are often necessary preconditions for people to be able to effectively exercise other rights, including the ability to make a complaint under the Ombudsmen Act. In other cases, information gained through the use of the OIA may provide sufficient clarity to make a subsequent complaint to the Ombudsman unnecessary.
I also cannot help but observe that it is rather an uncomfortable juxtaposition that the clause affirming the application of the New Zealand Bill of Rights Act 1990 to charter school sponsors directly precedes the clause in the Bill which would exclude the OIA, given the pivotal role the OIA plays in helping New Zealanders to realise their fundamental freedom to seek and receive information. Section 14 of the Bill of Rights Act provides:
- 14 Freedom of expression
- 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.
It may be helpful for me to clarify that if the Bill is passed in its current form I would still expect charter schools to deal with requests for information in a way which is administratively reasonable and consistent with those fundamental rights referred to above. However, the best way for these rights to be realised is to make the OIA apply to charter schools. It would provide a proven and efficient framework for people to access information, offer clear guidelines for charter schools on how to approach decisions on requests and what information can be refused, and provide a recognised mechanism to resolve disputes about such decisions. Not doing so would ignore the constitutional presumption that the OIA should apply to all public bodies, risk creating a publicly funded schooling model which is less accountable than the rest of the public education system, and water down the rights of students attending a form of public school.
I strongly urge the Committee to recommend removing clause 212ZH from the Bill to ensure that charter school sponsors are subject to the OIA.
I am happy to speak to this submission if the Committee considers that would assist the Committee.
Yours sincerely
Peter Boshier
Chief Ombudsman
Footnotes
[1] By amending Part 2 of Schedule 1 of the Ombudsmen Act 1975 to add sponsors and the Authorisation Board. Return to text
[2] Incidentally, while it is my view that clause 212ZH should be removed in its entirety and charter school sponsors made subject to the OIA, should the exclusion be retained, it may be sensible to give further consideration to the way in which that clause is constructed. The OIA is organised around what information is held and in what capacity. The current drafting of the exclusion, with its focus on whether the sponsor is performing certain functions or powers, gives rise to some uncertainty. Return to text
[3] This presumption is reflected in the Legislation Design and Advisory Committee, Legislation Guidelines, 2021 Edition, at 20.5, available at: http://www.ldac.org.nz/assets/documents/LDAC-Legislation-Guidelines-2021-edition-v2.pdf. Return to text
[4] https://www.beehive.govt.nz/release/charter-schools-lift-educational-outcomes. Return to text
[5] If the OIA does not apply, then parents and students would need to seek reasons and relevant information from sponsors in reliance on general principles of reasonable administrative conduct. If they wished to challenge any decisions to refuse access to reasons or information, they would then need to make a complaint through the independent review process or to the Ombudsman under the Ombudsmen Act. Return to text
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