Summary
Mr. Jones (a teacher) and the New Zealand Post Primary Teachers’ Association (Te Wehengaru) successfully applied for judicial review of decisions made by the Teaching Council of New Zealand to reduce the length of certification for teachers to one year, and increase fees for practicing certificates. The court found the Council had failed to consult with teachers and acted outside the scope of their authority under the Education Act 1989. The decisions were quashed.
Background
In 2015 the Government decided the Teaching Council should become self-funded. In August 2019, the Council Board received a report from its Chief Financial Officer claiming significant increases to fees would be required to allow the Council to cover annual shortfalls.
In response to this advice, on 14 May 2020 the Council announced two key decisions. The first was to reduce the period a practicing certificate for teachers would be valid for from 3 years to 1 year. The second was to impose an annual fee for certification of $157, with other applicants such as those trained overseas or applications after expiry incurring additional fees.
The applicants challenged these decisions.
The Case
The applicants advanced that the Council had failed to consult with teachers before imposing an annual certification system and to properly consider the merits of annual certification. The Council argued it did not need to consult on its decision to move to annual certification. The Court disagreed, and held that the teachers had not been given an opportunity to dissuade the council from the proposed change.
The Council had also failed to consider other alternatives, such as annual instalments. It only provided that fees were to be paid triennially. Both in meetings and consultation documents the Council had stated it was unable to accept annual instalments, however nothing in the Education Act prevented this as a possible avenue. As such, it had misrepresented its legal position by claiming such measures were not lawfully available.
The applicants also argued the Council acted outside the terms of the Education Act by imposing omnibus fees that included expenses beyond what could be charged for. The Court held the Council only had authority to charge fees for matters specifically referred to under the Act, such as providing professional leadership and disciplinary functions. The inclusion of matters outside the Act, including “ensuring the voice of the profession is heard” and “providing independent policy advice to the Government” meant the whole fee was unlawful.
The applicants additionally sought to review a decision by the Council to establish a Leadership Centre, based on concerns that teachers would be expected to fund it themselves through their fees. This ground was ultimately unsuccessful, as the government was prepared to fund the operation and teachers would not be adversely affected by the operation.
The Court has discretion to decline relief in situations where there are strong reasons for it to be withheld, even if a decision is unlawful. Although the Court found the Council’s actions were unlawful, the parties acknowledged relief would substantially disrupt the issuance of practicing certificates. In order to reduce disruption, the applicants suggested the Court suspend its order to quash the decision by six months. However, the Court considered allowing the Council to continue acting unlawfully for six months would amount to a judicial amendment to the legislation. Because of this, the Court was obliged to quash the decision immediately.
Result
The High Court issued a declaration that the decisions on fees and annual certification were unlawful and quashed the decisions. All of the approximately 13,000 teachers who were issued annual practicing certificates have now been given three-year certificates by the Teaching Council.
In response to this decision, the government is introducing a new bill to clarify the scope of fees the Teaching Council may charge. Education Minister Chris Hipkins has stated the Education and Training (Teaching Council Fees) Amendment Bill “will make the Council’s fee-setting powers consistent with other self-funding professional bodies”. While the change will help to avoid disputes over fees in the future, it does not alter the Council’s ongoing obligation to consult with teachers fairly and openly.
The Bill was given royal assent on 19 November 2021.
If you would like to understand more about this case, or have a similar matter, please contact Director Brigitte Morten
