The Government has recently announced its proposal to close and merge nearly 20 per cent of schools in Christchurch. The impact of the proposed school closures and mergers is far-reaching. The announcement was immediately met by strong responses from many people in Christchurch, including school boards, principals, staff, students, parents, whanau, and local community members.
There has also been media and political attention drawn to the process adopted by the Government regarding the school closures and mergers, particularly the matter of how consultation on the proposals will proceed.
While the common law requirements for public law decision making apply to the current process, the closure and merger of schools is a special case. This is because the Education Act 1989 (Act) also sets out a statutory framework for school closures and mergers which has clear requirements for consultation.
What are the current proposals and consultation time frames?
On 13 September 2012, the Minister of Education and the Minister for Canterbury Earthquake Recovery announced a suite of proposals relating to the future direction for education in Christchurch. The announcement included the following:
- Renovation work is commencing immediately on 40 Christchurch schools;
- Closure is proposed for 13 state primary and intermediate schools (and as at the time of writing this article, two schools have already volunteered to close);
- Mergers are proposed for 18 state primary schools; and
- More information is needed before firm proposals can be made for 11 schools.
The Ministry of Education (Ministry) is the department managing the consultation process for the Government, and has advised the schools facing closure or merger of the timetable for consultation. Schools will have until 7 December 2012 to provide the Ministry with comment on the proposals and any relevant information.
What is the statutory framework?
Aside from the traditional common law fetters on public decision making (decisions must be in compliance with the law, not be based on an error of fact, and must be reasonable), there are statutory consultation requirements that the Minister must also satisfy.
The Act provides the main statutory framework for New Zealand’s public education system, and it also directs how school closures and mergers should be undertaken.
Section 157(2) of the Act requires consultation by the Minister with the Board of the affected school. Section 157(3) of the Act states that a Minister shall not close or merge a school without first consulting the boards of all state schools whose rolls might, in the opinion of the Minister, be affected if the Minister takes action.
Subject to section 157 of the Act, a Minister can close a school (section 154), redesignate a school (section 154A), or merge a school (section 156A).
The duty to consult
There are two important parts to section 157 of the Act.
First, it does not require consultation with staff, students, parents, whanau, or the community at large. While in practice school boards are representative of local communities, there is a concern that there are many people beyond the board who will have a view on the proposed school closures and mergers, and who will want their voice to be heard.
Second, the section only requires consultation, not agreement. The Minister has a statutory requirement to solicit views from school boards, but is not required to act on them. The Minister has said in Parliament that no decisions have been made. Some Cantabrians will also have garnered hope that what they say may make some difference from comments made by the Prime Minister. It has been reported in The Press that the Prime Minister expects the proposals for school closures and mergers to change before any final decisions are taken (“PM defends Christchurch school closures”, 27 September 2012).
While sections 157(2) and 157(3) set out the statutory requirements for consultation, the Minister still needs to comply with the legal requirements of good consultation. Those consulted will have to be given a chance to have their say, and the Minister (or her representatives) will need to undertake consultation in a genuine and not cosmetic manner. As Justice McKay noted in Wellington International Airport Ltd v Air New Zealand  1 NZLR 671 (CA) at 675, citing Lord Morris of Borth-y-Gest in the Privy Council decision in Port Louis Corporation v Attorney-General of Mauritius  AC 1111: “To ‘consult’ is not merely to tell or present. Nor, at the other extreme is it to agree.”
In that regard, the Minister has written to all affected schools to assure them that “this is a genuine consultation process and there have been no decisions made in advance of the full process” (“Christchurch school principals relieved by consultation”, The Press, 29 September 2012).
Consultation on decisions
Once the consultation for the proposed school closures and mergers ends on 7 December 2012, the Ministry will prepare a report to the Minister based on submissions and comment by schools. The Minister has indicated that she will advise the school boards of her decision on 18 February 2013.
Section 154 of the Act provides that once the Minister is satisfied that a school should be closed, the Minister may ask the board if it has any arguments in favour of the school staying open. The school board has a statutory time frame of 28 days to respond to the Minister’s request for reasons not to close or merge. Again, the Minister will need to consider any such arguments with an open mind.
The Government has indicated that formal announcements on all school closures and mergers in Christchurch are expected to be made on 5 April 2013.
Leading up to the formal announcements, there are several statutory consultation processes where school boards, staff, students, parents, whanau, and community can get involved and have their say on the proposals to close and merge Christchurch schools. The whole point of consultation is to ensure that the best decision is made and that the decision is made in the fairest and most informed way.
The provisions in the Act regarding consultation and engagement with school boards demonstrate that Parliament intended local people to be involved in this process in some way. The Government will need to ensure that before it makes any decisions on the proposals for school closures and mergers in Christchurch, it undertakes a genuine and fair consultation process as prescribed in the Act and by the Courts.