New Zealand: Minister’s school consultation process not up to the pass mark

Last Updated: 15 November 2013
Article by Nick Crang, Stephanie Grieve, Jonathan Scragg and Ayleath Foote

The sequence of successful judicial reviews against the government on earthquake related matters continues with the second court decision to overturn a school restructuring decision of the Minister of Education.  Clearly very significant for the school, staff and families involved, the decision is a reminder on good consultation processes.

A primer on the case

The case, Board of Trustees of Phillipstown Primary School v The Minister if Education, involved judicial review of the Minister of Education's decision to merge Phillipstown School with Woolston Primary School.  The Minister was required by the Education Act to consult with the School board before merging or closing a school.

Following the earthquakes, the government decided to review the school network in Christchurch.  One proposal was to merge Phillipstown School with Woolston School.  Consultation initially began on the right footing, with the release of the Minister's proposed decision and supporting information in September 2012, but subsequently appears to have gone awry.

Subsequent information indicated a variety of reasons for the merger: the small roll of Phillipston, oversupply of primary schools in the area compared to demand, building damage, geotechnical concerns with the site, costs of earthquake strengthening and weathertightness concerns.  Detailed information on some of these points was requested and, to some extent provided by the Ministry of Education.  Indeed, the Ministry diligently tried to provide the necessary information to the school.

In its submissions to the Minister, the school focussed on educational and community reasons for retaining the school on the Phillipstown site.  The Minister, however, made her decision taking into account the relative costs of remediation at the Woolston site compared to Phillipstown.

Phillipstown School had not made submissions on the costs issue, believing that it would not be a factor in the decision.  This belief arose in part from an indication by a Ministry official that the costs were not the Minister's main focus, an inability to access the primary data initially used by the Ministry, and the absence of an explanation as to how the information was gathered, its purpose and how the cost estimates that were provided were allocated.

The Court decision

The Court held that the school had not had reasonable access to the information and judgements being relied upon by the Minister.  The Crown negotiated in good faith and even went to considerable effort to consult.  However, the Court found that this did not go far enough and that the Minister had failed to consult to the standard required by law.  As a result, the Court declared the Minister's decision invalid. 

The Minister has subsequently decided to reconsider the decision, and is undertaking further consultation with both Phillipstown School and Woolston School.  Further information will be provided and additional resources made available to support the schools in the consultation.

In making its decision, the Court applied the principle established by the Court of Appeal in the 1993 Wellington International Airport Ltd case that in order for consultation to be meaningful the party being consulted must be given a reasonable opportunity to state its views.  This means that party must be provided with sufficient information to enable it to be adequately informed so as to be able to make intelligent and useful responses.

Better consultation processes

The Phillipstown case emphasises three points.  First, that the issue of whether or not the party being consulted has been provided with sufficient information needs to be judged from its perspective, or at least taking into account its circumstances. 

The second point is that if the responses of the party being consulted seem misdirected or appear to misunderstand crucial issues, that could be a clue that they have not been provided with adequate information.

Finally, it may be necessary for the decision-maker to prepare information especially for the consultation.  Part of the problem in the Philllipstown case was that the Ministry provided reports prepared for other purposes, that did not present the information in a format easily understandable by the school and that were focussed on different issues than the point on which the Minister made her decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nick Crang
Stephanie Grieve
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