Ipsofactoj.com: International Cases [2004] Part 7 Case 12 [NZCA] 


COURT OF APPEAL, NEW ZEALAND

Coram

The Attorney General

- vs -

Daniels

KEITH J

BLANCHARD J

TIPPING J

McGRATH J

ANDERSON J

19 FEBRUARY 2003


Judgment

Keith J

(delivered the Judgment of the court)

  1. The High Court holds the State in breach of educational obligations owed to children with disabilities. The parents of 15 children with special educational needs challenged, by way of judicial review, government decisions to introduce a new programme, Special Education 2000 (SE2000). Their children have a wide variety of disabilities requiring special educational help. The relief sought is general. No parent sought particular relief in respect of the education provided to their child.

  2. Baragwanath J in the High Court held in the parents’ favour. He ruled that parts of SE2000 are inconsistent with the scheme of the Education Acts of 1964 and 1989, that the Secretary of Education was in breach of the obligations in the 1989 Act to enrol children, either under an agreement with the parent or by way of a direction, in a particular special institution or service, that the decision of the Minister of Education to disestablish special institutions and facilities was in breach of the 1964 Act and that the rights and entitlements of the children to the same free education as other children under the 1989 Act were put at risk. There was however no breach, he said, of the New Zealand Bill of Rights Act 1990. He reserved the question of relief for a further hearing. The Crown appeals and the parents, supported by the Human Rights Commission, challenge the ruling on the Bill of Rights.

    THE DUTIES ALLEGED AND THE RELATED LEGISLATION IN BRIEF

  3. The amended statement of claim sets out the following duties:

    4.

    At all material times the Crown had duties under the 1964 Act and/or the 1989 Act and/or section 19 of the New Zealand Bill of Rights Act 1990:

    4.1

    To provide free education for children of school age and, in particular, to provide free special educational facilities for children of school age who were in need of special education including the provision of special schools, special classes, special clinics and/or other special educational services.

    4.2

    Not to discriminate against children who were in need of special education.

    4.3

    Through the Secretary, acting pursuant to section 9 of the 1989 Act, to enter into agreements ("section 9 agreements") with the parents of children of school age who were in need of special education to provide for the special educational needs of those children.

    4.4

    As required by the circumstances of each case, to arrange via section 9 agreements for such children to attend and/or to receive the benefit of special schools, special classes, special clinics and/or other special educational services.

    4.5

    Not to circumvent the operation of section 9 of the Act by providing special education services for such children other than in accordance with section 9 of the 1989 Act.

  4. While the issues arising under the Bill of Rights were the subject of extensive written submissions, the time available at the hearing in this Court meant we did not hear oral submissions on them. As a result, we do not in this judgment consider the Judge’s ruling which in effect rejects para 4.2 of the claim and which is challenged by the parents and the Human Rights Commission.

  5. At times there were suggestions that the Crown might be depending on its common law or prerogative powers as well as on the powers conferred by the education legislation. As will appear, we need not consider that possibility. This judgment is accordingly confined to the claims based on the Education Acts. The main relevant provisions of the 1964 Act, the 1987 amendments to it and the 1989 Act appear in an Appendix.

  6. The duties in question arise in the first place from s8 of the 1989 Act which gives children with "special educational needs" the same rights as children without those needs to enrol and receive education at state schools. Those rights are stated in part in s3 which states the entitlement of every person aged from five to 19 to free enrolment and free education at any state school. The s8 right is subject to other provisions of Part 1 of the Act. That part includes s9, specifically invoked as a source of duties for the Secretary of Education in paras 4.3 to 4.5 of the amended statement of claim. That section requires the Secretary, if satisfied that a person under 21 should have "special education", either to agree with the person’s parent or to direct that the person be enrolled at a particular state school, special school, special class or special clinic, or that the person have education or help from a special service. It is only under such an agreement or direction that a person may be enrolled in a special school, special class or special clinic or have education or help from a special service. (In this judgment those special schools, special classes, special clinics and special services are referred to collectively as special facilities.) "Special education" is defined in both Acts (paras [38]and [48] below). Also at the centre of this case is the set of provisions (ss98-100) of the 1964 Act, headed "Special Education", giving the Minister the power to establish and disestablish special facilities and providing for related funding and regulation.

  7. It will be seen that the Crown submits that there are critical differences between each of the expressions "special educational needs" in s8 of the 1989 Act, "special education" in the 1964 Act and "special education" in s9 of the 1989 Act. The use of very similar expressions with arguably significantly different meanings and the continued coexistence of two principal statutes in such a critical area of the life of New Zealanders has made this case, along we assume with the surrounding controversy, more complex than it would otherwise have been. The situation is not helped by the use of the expression "special education" in its broader sense by the Ministry of Education in its administration of the full range of programmes, for instance in the very expression "Special Education 2000". Baragwanath J in his judgment tended to equate the expressions and counsel for the parents contended that the Government’s argument of difference introduced an unacceptable subtlety.

  8. The amended statement of claim alleges past and continuing breaches of the duties arising under those legislative provisions, caused by government decisions to approve, modify and implement SE2000. Among the decisions challenged is that of the Minister to disestablish all of the special classes, special units and special services throughout the whole of New Zealand. The 48 special schools remained.

  9. The various decisions to introduce and implement the policy were, it is said, invalid because of the unlawfulness arising from the breach of the duties set out in para [3] above, because irrelevant considerations were taken into account, because relevant considerations were not taken into account and because of unreasonableness. The plaintiffs accordingly seek a declaration that the policy known as SE2000 or parts of it are contrary to law, a declaration that all or any of the decisions listed in the statement of claim and taken by Ministers and others were invalid, an order setting aside all or any of the listed decisions, and an order requiring the Secretary for Education to perform the obligation imposed by s9 of the 1989 Act to enter into agreements with parents whose children need special education. As noted, no parent seeks particular relief in respect of the education of their child, and, consistently with that, the decisions challenged in the amended statement of claim do not relate specifically to identified individuals.

  10. Although the High Court process, like that in this Court, did not give any sustained attention to the educational needs of particular children, we have read the parents’ affidavits to get some sense of their problems and anxieties, including their concern about the present and future provision of the educational and related services they consider essential for their children. The parents’ affidavits date back three years to late 1999 and early 2000 when their children were 5 to 15 years of age. While there has been some limited updating, in part by the Crown, we do not have comprehensive current information which has been tested. The children had a range of disabilities. They included delayed global development which was sometimes very severe; epilepsy sometimes in association with autism, again some severe; Asperger’s syndrome; severe intellectual disability; brain damage from an incident during pregnancy; and Down’s syndrome. We quote from just one affidavit to illustrate the constant and enormous challenges the parents face:

    1.

    I am the mother of [W who] is seven years of age. There is no final diagnosis as yet, but he has significant developmental delay, intractable epilepsy, a form of cerebral palsy (which affects his legs) and a possible degenerating neurological condition.

    2.

    [W] can say one word and is able to walk with the help of a walking frame. He has poor balance and tends to fall over a lot. [W] has a wheelchair that he can move short distances.

    3.

    He is not toilet trained and has to be taken to the toilet regularly with a special toilet seat. When he wears underpants he tends to urinate on the floor, at worst four times a day.

    4.

    [W] also suffers from behavioural problems. Even though he cannot walk he can crawl quite quickly and can pull himself up to stand, reaching for things he should not touch like hot elements.

    5.

    We have experienced problems getting [W] a fair education since before he commenced school.

  11. The affidavits highlight two other matters: claims of inadequate provision of information, especially about entitlements under agreements under the 1989 Act, and real worries about the possible closure of the special units their children were attending, after the major changes were introduced in 1999.

  12. This judgment first describes the recent changes involved in the introduction and implementation of SE2000 and then puts them into their historical and statutory context.

    THE THREE QUESTIONS AND THE ANSWERS IN BRIEF

  13. Against that factual and statutory account, we consider and state our conclusions on rulings made by the High Court on the following questions:

    1. Is there any difference, and if so what, between the expressions "special educational needs" in s8 and "special education" in ss9 and 10 of the 1989 Act and in ss98-100 of the 1964 Act? What educational facilities come within "special education" for the purposes of ss9 and 10 of the 1989 Act? Has the introduction of SE2000 breached those provisions? (paras [37]-[57])

    2. What is the nature of the "equal" or "same" right, under s8, of children with "special educational needs" to enrol and to receive education as children who do not have those needs? Has that right been breached? (paras [58]-[97])

    3. Did the Minister comply with s98(2) of the 1964 Act when he made the decision in 1998 to disestablish all special facilities, except the special schools? (paras [98]-[113])

  14. We find no breaches of the provisions referred to in questions 1 and 2 and in those respects differ from the High Court. We do however agree that the Minister breached s98(2) in making the decision referred to in question 3.

    THE APPROVAL AND IMPLEMENTATION OF SE2000

  15. This brief account of a complex series of decisions (at least 17 of them taken by Cabinet) and actions can conveniently begin in 1995, the year in which SE2000 was agreed to in principle.

  16. In that year about 20,000 students (or about 3% of school age children) were receiving special education assistance. About 6,000 (or 1% of school age children) were in special schools or special units. Regular schools provided for the majority in the normal classroom environment or in attached special units. The total spending was $170 million, with special schools receiving 26%, regular schools 36%, 24% channelled through the Special Education Service (SES) (later renamed and since February 2002 incorporated within the Ministry as the Group Special Education), with the remaining 14% meeting the costs of distance education, travel and study awards.

  17. A paper of September 1995 from Hon Dr Lockwood Smith, the Minister of Education, to a Cabinet Committee said this:

    Executive Summary

    1.

    In consultation with special education advisory groups, the Ministry of Education is developing a model special education system for the year 2000. This longer term perspective is being taken to overcome difficulties associated with making resource shifts in the short term, and to avoid disrupting families’ current special education arrangements. The paper identifies the principal barriers to effective special education provision as (a) negative attitudes and (b) inadequacies in resource management. Attitude change is partly a process of public education and partly a process of increasing the ability and confidence of schools to provide for students with special education needs. Inadequacies in resource management may be overcome if a different model of funding and funding management for special education were to be adopted. The Ministry is seeking agreement from Ministers for further work to evaluate the relative merits of the possible alternative options for funding and management of resources. In this context, it is proposed that an earlier direction in relation to the contestability of special education services be rescinded.

    ....

    Background

    3.

    The question of how the special education resource should best be managed has been canvassed in a number of fora and in several Cabinet submissions since 1991. That the issues keep recurring without being satisfactorily resolved reflects the difficulties inherent in attempting to provide equitably for a small population with diverse needs spread across a wide geographic area.

    4.

    These difficulties are compounded by existing anomalies in the balance and type of provision of services – many of which owe their existence to historic attitudes to children with disabilities and to the provision of services for them. While these anomalies are readily acknowledged, it has proved less easy in practice to shift the balance of service provision so that it reflects current practices and contemporary needs. Resources for children with special education requirements have been hard won over the years, and families have been loathe to relinquish existing services without guarantees that equally resourced alternative services will be provided in their place.

    5.

    As a result, special education in 1995 is characterised by a confusion of purpose, a lack of consistent pattern of provision and entitlement, a diffusion of responsibility among key agencies, and a consequential lack of ability to hold anyone to account for the education outcomes of children with special education needs.

    6.

    The Ministry of Education has proposed a solution to the current impasse: that a consensus be sought on how special education in the year 2000 should look; that the steps be identified that are necessary to achieve it, and the agreed policies and other provisions be put in place as appropriate over the next five years.

    7.

    In this way, issues with ready solutions can be immediately addressed; sufficient lead time is provided for the development of essential elements of the Year 2000 programme (such as teacher training); and anxiety-inducing disruption to families’ current education arrangements is avoided wherever possible.

  18. In response Cabinet noted that many students with learning and behavioural difficulties did not then receive special education resources, noted that a model for a special education system for the year 2000 was to be developed in consultation with advisory groups, noted that the National Advisory Committee on Special Education was to be the conduit for community views and directed the Ministry to report back in December.

  19. In December Cabinet agreed in principle to the phased implementation of the proposed strategy for special education. It noted that the Ministry estimated that a significant increase in funding would be needed to equalise current provision across students with equivalent needs and to provide adequate support to students with learning and behaviour difficulties. The key elements of the strategy were individual portable entitlements for the approximately 2% of students with high and very high needs and additional learning support and direct formula based funding of schools to meet the learning support needs of moderate needs students.

  20. In 1996 Cabinet agreed to begin the Ongoing Resourcing Scheme (ORS) from 1998 – providing individual portable entitlements – and the Special Educational Grants (SEG) from 1997 – allocated to all schools on the basis of roll size and weighted by the socio-economic decile ranking of the schools. It also decided at about that time to have three special reviews of special education by the Education Review Office and an independent evaluation of policy (both mentioned later, paras [75] and [76]).

  21. SEG began in 1997 and the Budget allocated extra funds for SE2000 over the following three years. In November ORS was confirmed for 1998 with funding up to $6,000 and $10,000 for each student depending on severity of need. Decisions were also made towards the end of 1997 relating to particular programmes:

    • Severe Behaviour Initiative (SBI) to be trialled in Waikato in 1998 (Behaviour Support Teams providing specialist in school support).

    • Speech Language Initiative (SLI) to begin in 1998 (mostly for those in first three years at school; special language therapists through SES).

    • Resource Teachers of Learning and Behaviour (RTLB) to be trialled in Waikato in 1998 (nationwide network of specialist teachers to provide advice and assistance to teachers whose students have moderate learning and behaviour needs).

    • SEG funding increased and decile weightings altered.

    • Transition funding to ease transition from Special Education Discretion Assistance (SEDA) to ORS and SBI for 1998, with SEDA ending in 1997.

    • Early intervention for children in early childhood sector with moderate and high needs from 1998.

  22. In 1998, in addition to the developments just noted,

    • Cabinet broadened the criteria for ORS, decided that each student would attract a staffing resource as well as a cash grant and expanded it to include the Transitional Resourcing Scheme (TRS).

    • RTLB was to begin nationwide in 1999, requiring extra teaching positions. Existing teaching resources were to be transferred to that programme and ORS.

    • In July the School Staffing Orders in Council for 1999 were made. They provided for instance for 0.1 full time teacher equivalent (FTTE) for each special education student with high needs, and 0.2 for those with very high needs, as well as for RTLB teachers.

    • The SBI trial was positive and national implementation was agreed to for 1999.

    • Where SEG would be insufficient, specialist teacher assistance for students with physical, sensory or health needs was to come in 1999.

    • There was further transition funding.

  23. It was against the background of those developments occurring over a number of years that the Minister in October 1998 decided to disestablish all special classes, special units and special services. That decision is discussed later (paras [98]-[113]). It is enough to note here that those facilities were serviced by 1,166.01 FTTE. The SE2000 initiatives being put in place at that time would involve up to 1,728 FTTE – an increase of almost 50%.

  24. Only three of the above actions were taken expressly under a specific statutory authority: the staffing Orders in Council by the Governor-General in Council under s91H(1) of the 1989 Act; the disestablishment of special facilities by the Minister under s98(2) of the 1964 Act; and the establishment of ORS and TRS by the Minister’s delegate under s98(1) as special services. (Those services are now combined, with modifications, in the Ongoing and Reviewable Resourcing Scheme (ORRS); the parties did not raise any question about this change.) The other decisions have been made and implemented through the funding authority of the Minister under s79 of the 1989 Act, supported, as will appear, by the relationship the Minister has with Boards of Trustees under the legislation (paras [71]-[79]).

  25. As indicated in the above account, extra funding has throughout been a critical part of the development of SE2000. Special Education Funding for 2002 is $329.62 million as compared with $170 million in 1995. The number of students directly receiving assistance has risen from about 20,000 in 1995 to over 50,000 today.

    FREE AND COMPULSORY EDUCATION: THE POSITION OF CHILDREN WITH DISABILITIES

  26. From the beginning, 125 years ago, of free and compulsory education in New Zealand, the legislature has recognised that not all children will be able to attend ordinary schools, in particular because of disability. At first the recognition was simply by way of the child being exempt from compulsory attendance on the ground that the child was prevented from attending by sickness or temporary or permanent infirmity (Education Act 1877 s90). That exemption power continues to the present day, although in a more general form (s26 of the 1989 Act; cf s111 of the 1964 Act).

  27. In 1901, when Parliament carried that exemption forward, it took a further step and placed a duty on the parents of blind or deaf children between 7 and 16 (the general leaving age remaining at 14) to provide efficient and suitable education for those children (School Attendance Act 1901). A parent who was unable to meet that obligation was to notify the Minister and to send the child to such institution for the deaf or blind as the Minister directed; the parent was to contribute to the child’s maintenance and education as agreed with the Minister or up to ten shillings a week as fixed by a Magistrate (ss3, 4 and 21). The School for the Deaf had been established in Sumner, Christchurch, in 1880 (the first in the British Empire) and the School for the Blind in Auckland in 1891. The Government in fact met the costs of educating the children who attended the School for the Blind (M B Parsons, S J Havill and D H Ross in Havill and D R Mitchell (eds) Issues in New Zealand Special Education (1972) 101, 87 and 9).

  28. In 1907 that parental duty of education or financial support was extended to "defective" and "epileptic" children. The 1907 measure also provided definitions of the disabling characteristics in a way which emphasised the need for teaching which was different from that available in ordinary schools:

    (7)

    For the purposes of this section a ‘blind child’ means a child who on account of his defective sight cannot be efficiently taught with other children in an ordinary school; and similarly a ‘deaf child’ means a child who on account of his defective hearing cannot be taught orally with other children in an ordinary school; and, further, a ‘defective child’ means a child who, not being an idiot or imbecile, and not being merely backward, is by reason of mental or physical defect incapable of receiving proper benefit from instruction in an ordinary school, but is not incapable by reason of such defect of receiving benefit from instruction in a special school or class; and an ‘epileptic child’ means an epileptic child who, not being idiot or imbecile, is unfit by reason of severe or frequent epilepsy to attend an ordinary school, but is not a proper person to be sent to a mental hospital. 

    (Education Amendment Act 1907 s15, adding subs (7) to s159 of the Education Act 1904)

    The final phrase and the exclusion of idiots and imbeciles from the definitions of defective and epileptic children recognised the separate role of mental hospitals (see also the definition of "lunatic" in s2 of the Lunatics Act 1882). The widening of the scope of disability and the emphasis on special schools and institutions which were separate from ordinary schools were matched by the setting up of two further special schools: in 1908 for retarded boys at Otekaike, North Otago, and in 1916 for retarded girls in Richmond, Nelson (K A Milne in Havill and Mitchell, para [27] above, 134).

  29. In 1910 the expression "special school" was introduced into the statute book as a comprehensive term and was also defined in terms of separateness:

    "special school" means a school established or set apart specially by the Minister for the maintenance, education, or training of deaf, blind, feeble minded, epileptic, or otherwise physically or mentally defective children.

    That 1910 Act allowed tuition or instruction to be given privately to such children so long as it was "efficient and suitable" (an expression which throughout has been applied to education provided by parents and in private institutions). The provision at that time was applied to children up to 21 with the possibility of further extensions for feeble minded and epileptic children (Education Amendment Act 1910 ss11-12).

  30. The Education Act 1914 brought together the provisions about the education of blind, deaf, feeble minded and epileptic children in a part headed "special schools". The 1910 definition of special schools was carried forward. The duties of parents to provide efficient and suitable education were reaffirmed. So, too, were the provisions about the Minister’s powers and the payment by parents of the maintenance, education and training of the child at a special school.

  31. Significantly for this case, the 1914 Act, in its provisions about the management of public schools, provided a legislative basis not just for special (separate) schools but also for special classes in the public schools. The Minister now had legislative power to sanction the establishment of special classes for "backward or crippled children" (s56(2)). In its 1921 form the provision authorised the establishment, "either in connection with a public school or as a separate school, of special classes for children who through physical infirmity, absence from school, or other circumstances, require special tuition". According to D H Ross, the Officer for Special Education in the Department of Education, writing in 1972,

    The establishment of the first of these [special] classes at the Auckland Normal School in 1917 was an important step in the development of special education in New Zealand .... [T]he four special schools then in operation were not directly linked with the administration of ordinary primary schools. Three [for the deaf and retarded children, paras [27] and [28] above] were controlled by the Department of Education, and the fourth (for blind children) by a board of trustees with general responsibilities for the welfare of blind persons. The establishment, from 1917 onwards, of special classes in ordinary primary schools gave the education boards which administered them a direct responsibility for special education and offered the possibility that the gap between children receiving special education and other children might be narrowed. In fact, this gap proved difficult to bridge in many schools. (Havill and Mitchell, para [27] above, 21-22; see also Milne 134-135)

  32. The same authors give an account, first, of the developments from 1917 to 1945, under the heading "The pattern emerges", and, next, of "Progress since 1945". In the earlier period, "special education found a place as an integral part of the State school system". In the latter period, once the immediate post-war shortages had been overcome, "the way was open for the expansion of special education – which was now official Government policy". They describe some of the steps, and document the marked relative increase in the number of children attending special schools, classes and clinics. While in 1953, for instance, roughly 1.1% of school age children were enrolled fulltime at a special school or class or attended a speech clinic, that proportion had doubled by 1970. Dr C E Beeby, the Director of Education from 1940 to 1960, has provided an account in his Biography of an Idea (1992) 149-151 of some of the steps taken in that period, including the setting up of a speech training course for specialist teachers in 1940, the setting up of a remedial reading programme in 1941 leading to the training of specialists and the establishing of reading clinics in many primary schools, and the importing of a vigorous new principal for the School of the Deaf, Herbert Pickering, who helped establish special classes for the hard of hearing in some public schools and who also made the Department of Education aware of the importance of preschool training for children with impaired hearing.

  33. In 1962 the Commission on Education in New Zealand chaired by Sir George Currie, the last Vice-Chancellor of the University of New Zealand, identified four groups of children with special needs: rural children, children in fast growing dormitory suburbs, Maori children and those receiving

    what is called "special education" – the provision made in this country for the physically and intellectually handicapped. To those deprived members of the community sympathy and substantial assistance have been largely accorded without demur. Special education in New Zealand has a long history and, as far as the Commission can judge, this country compares favourably with advanced countries overseas in this respect. If progress has been slow in any fields of special education, it has been due to the fact that the knowledge of how to assist has been lacking rather than the good will to furnish that assistance; and this is so, even though for many of these children the economic return to the community can never be high. In this field, too, knowledge and techniques are always advancing and the Commission believes that, though the situation is good in general, there are opportunities for further improvement. The powers of many of these pupils turn out to be fuller in extent than was once believed: new kinds and new techniques of education are found to which they are better fitted to respond. To the group of the physically and intellectually handicapped we must now begin to add the group of the psychologically disturbed, and here our progress is still unsure. (Report on the Commission on Education in New Zealand 1962 (AJHR 1962 E2) 15)

  34. The Commission’s chapter on Special Education for the Handicapped (ch 10) began with a Table of those receiving special education services in 1961 – 6466 (or about 1.2% of the total enrolment) in 273 schools, classes or clinics with 455 teachers. It continued (465):

    The New Zealand practice of providing all these services through the education authorities and also of treating a large proportion of the children concerned in clinics and special classes rather than in segregated institutions, presents a divergence from the practice of some other countries, such as England. There, the health rather than the education authorities control many sections of special education and a greater tendency to segregation may be observed. Basic to the New Zealand approach is a reluctance to set apart from their fellows any group of children who can reasonably well be catered for in the normal classroom. There they have the best opportunity, it is thought, of growing up as normal people. Where the child’s disability is too great for teacher or pupil to cope with the ordinary classroom situation, there is still great value to the child in being able to live at home and attend special classes attached to the local school. The Departmental submission states: "Only where it is beyond the capacity of the ordinary school to care effectively for the child is a separate school provided. But even where the handicap is very severe the service remains within the education system." The Commission found no reason to disagree with this attitude, which it believes is much appreciated by parents of the children concerned and generally accepted by the country as a whole. Association with the less fortunate is also of undoubted benefit to the upbringing of normal pupils.

  35. It is of some significance that that extensive development of special education occurred in the first half of the 20th century with only limited amendments to the legislation regulating it. One change, made in 1944 in response to Herbert Pickering’s advice, was to provide for the special schooling of deaf children before they reached the compulsory school age of six (Statutes Amendment Act 1944 s20; see also Parsons in Havill and Mitchell, para [27] above, 101). The lack of a close detailed correlation, in a general sense at least, between the actual development and provision of special education and specific modification of the legislation also appears clearly from the Education Act 1964, the first consolidation of education legislation in 50 years. The new Act carried forward the duty of parents, first stated at the beginning of the century, to take steps to provide efficient and suitable education for a child who was of school age and suffering from a disability in body or mind of such a magnitude as to require special education. Next, the government continued to have the power (vested now in the Director-General rather than the Minister) to direct that such a child be sent to such special school or other institution providing special education as the Director-General thought fit. The parental obligation to contribute to the costs of maintenance and education of the child at the special school or institution was maintained (s115); the Act also expressly provided for the Director-General or Minister to ascertain the efficiency and suitability of privately provided special education and for the examination of children before they were compulsorily enrolled in a special school or special class established under the Act (ss113-114).

  36. We do not mean to imply that the lack of close correlation between changes in the education provided and in the law suggests illegality. On the contrary, some of the major changes of the late 1930s and later in special education, as in education generally, could be and were introduced under the broad powers already available under the law to establish schools, appoint teachers, and develop the curriculum. Some particular legislation was of course required, for instance in the general education law to change systems of educational administration, to remove the proficiency exam, to restore the age of enrolment to five and to open closed teacher colleges (both reversals of depression measures) and also to prevent education boards from refusing to employ a teacher on the ground that she was a married woman. In addition, Parliament increased appropriations to enable better pay for teachers, the construction of new school buildings, the improvement of existing ones and the provision of better equipment, including library facilities. With such exceptions, legislation was not needed to implement the government’s objective famously stated in 1938 by the Minister of Education, Hon Mr. Peter Fraser, in his annual report for that year:

    The Government’s objective, broadly expressed, is that every person, whatever his level of academic ability, whether he be rich or poor, whether he lives in town or country, has a right, as a citizen, to a free education of the kind for which he is best fitted, and to the fullest extent of his powers.

    [AJHR 1939 E1, 2-3]

    Dr Beeby’s biography, para [32] above, is about the preparation, and especially the elaboration in practice, of that statement of objective.

    "SPECIAL EDUCATION" (1964 & 1989) AND "SPECIAL EDUCATIONAL NEEDS": THEIR RELATIONSHIP

    "Special education" in the 1964 Act

  37. We return to the provisions of the 1964 legislation concerning special education. We have already noted that the 1964 provisions about parental duties and the related government powers departed little from those which appeared in the earlier statutes. The powers of the Minister to establish special schools and classes are however more extensive (with clinics, services and other facilities being added) and detailed and an express power of disestablishment is added.

  38. These powers are still in force and are critical in this case. They are to be read with the following definition in the 1964 Act of "special education" which also is still in force and which is to be compared with that enacted in 1989 (see para [48] below):

    Special education means education for children who, because of physical or mental handicap or of some educational difficulty, require educational treatment beyond that normally obtained in an ordinary class in a school providing primary, secondary, or continuing education.

  39. Section 98 of the 1964 Act, the first provision appearing under the heading "Special Education", enables the Minister to establish any special school; establish, or authorise the establishment of, any special class, clinic, or service, either as a separate unit or in connection with any State primary school, secondary school, technical institute, community college or integrated school, or in connection with any public institution approved for the purpose by him; and to make provision for special educational facilities to be provided by a correspondence school. In making that decision, the Minister is to have regard to the provision of special education in any locality or localities. The Minister has the power under s98(2) to "likewise" disestablish any special school, class, clinic, or service established under the section, "if he is dissatisfied with the manner in which the school, class, clinic, or service is being conducted, or if he considers that sufficient provision is made by another similarly established special school, class, clinic, or service, or by any other school or class in or reasonably near to the same locality". The Minister in the second situation is to give three months notice of the intention to disestablish to the controlling authority of the school, class, clinic, or service if it so requires. This power to disestablish special facilities is central in this case.

  40. Section 99, in accordance with the definition in s2(1), is concerned with "special education" being provided as educational treatment "beyond that normally obtained in an ordinary .... [state] school", and in the case of s99 not being provided in a special facility established by the Minister under s98. That is to say, "special education" under the 1964 Act may be provided in institutions and services which are not established by the Minister but which are financed by the Minister. They might be private facilities or facilities established within a state school by its board, rather than by the Minister. Apparently no such facilities have been recognised in terms of s99. The legislation has also long recognised the existence of private facilities not within s99.

  41. Section 100 authorises the making of regulations for the administration of special education. Again those regulations might apply to children in facilities established by the Minister, or in other ways, or both. No such regulations have, it appears, ever been made, a state of affairs which led Baragwanath J to say that "this continuing failure to grip the problem contributed to the incoherence of special education". With respect, that is too narrow a view of the development and application of special education. Close government regulation will not always be the best means of facilitating and encouraging education. The Thomas Committee on Education of 1944 took this position for instance:

    The State as trustee for the community has the duty to insist on certain minimum requirements and to encourage progressive developments, but .... it exceeds its function if it tries to impose a cut and dried philosophy on the schools or to control the curriculum in any detail.

    [The Post Primary School Curriculum (1944)]

    1987 and 1989 provisions on special education

  42. It was into the 1964 Act with those existing provisions that Parliament in 1987 first introduced the predecessors to the present ss8-10 relating to children of school age with "special educational needs (whether because of disability or otherwise)" (s8) and to "special education" (ss9 and 10). Those 1987 provisions were to come into force at the latest on 1 January 1990 but before that date they were replaced by substantially similar provisions which did in fact come into force on 1 January 1990. The 1987 Act would also have repealed ss113-115 of the 1964 Act, which had carried forward the obligations of parents to educate their children requiring special education, the power of direction of the Director-General and the financial obligations of the parents.

  43. The predecessor to s8, to quote its heading, would have given "equal" rights to education to persons with "special educational needs (whether by reason of disability or otherwise)" (s112A). To quote the section itself, those persons were to have the "same" rights to enrol and receive education at institutions established under the Act as persons without such needs. That right, critically, was expressed to be subject to s114, the predecessor to s9, "which [according to its description in s112A] empowers the Director-General to require a child to enrol in a special [facility] ...."

  44. The wording of s114 is significant: "where the Director-General of Education [was] satisfied .... that any child requires special tuition or assistance in a special school, class or clinic, or from a service established under this Act, the Director-General" was obliged to ("shall") agree with the child’s parents or to require them to enrol the child at that school, class or clinic or receive tuition or assistance from the service. That list of facilities exactly matched the list in s98 of the facilities which the Minister has power to establish under the Act. They do not include other special facilities, such as those referred to in s99.

  45. The third provision, s115, now s10, enabled the parent to seek the reconsideration of any requirement imposed by the Director-General or of any refusal to agree to the child’s enrolment at a special school, class or clinic or to receive tuition or assistance from a service established under the Act. It too, like s114, lists the four special facilities and does not use the expression "special education". As with s114, that provision proceeds on the basis that the needs of the particular child must be assessed. There is a plain contrast with the general entitlements in s112A of the 1987 provision and ss3 and 8 of the 1989 Act which themselves provide for no such individual assessment. Such a requirement would of course be inconsistent with the rights to education under the Act of the great majority of school age children under s3. No doubt some of those enjoying the same or equal rights conferred by s112A (now s8) would have been individually assessed in terms of s114 (now s9) to determine that they did not, in terms of s114, require special tuition or assistance from the special facilities established under the Act. Had their parents disputed the Ministry’s refusal to agree to that special tuition in a listed special facility they would have had available the review remedies under s115.

  46. It follows that, before the 1989 Act was passed, Parliament had already divided children with disabilities for educational purposes into two or really three categories. A particular child who, in the judgment of the Director-General, required special tuition or assistance in a special school, class or clinic or from a service established under the Act (that is by the Minister), was to be so enrolled by agreement or direction. That right and obligation would expressly override or qualify the "equal" or "same right" of that person with "special educational needs" under s112A (now s8) to enrol and receive education as other children. By contrast, children who had those needs but who did not, in the Director-General’s judgment, require special tuition or assistance in one of the listed special facilities did have the same or equal right to enrol and receive education as children who did not have those needs. We say "or really three" in the first sentence of this paragraph and use the word "qualify" in the third for this reason: the decision made under s114 that a child receive some education in a special facility would mean that the child would in all other respects have the "same right", conferred in s112A, as other children without special needs, but that right would be qualified by the extent of the special facility, required by the child, which would also be a matter of right under s114. There is also an additional category of children outside the scope of all those provisions, recognised in the power of exemption from any school attendance of those unable to attend school regularly or unable to be educated by reason of physical or mental handicap (para [26] above).

  47. That division continues in the 1989 Act. It is not stated with exactly the same precision since the rights to equal education under s8 are now declared "except as provided in this Part of this Act" rather than simply "except as provided in s9", but that is of no consequence for present purposes since s9 is one of the provisions of that Part and it plainly contradicts or qualifies (in the sense just indicated) any equal right to enrol and receive education at state schools of those who require special tuition or assistance in a special facility – equal, that is, to individuals who do not have special educational needs.

  48. The 1989 Act in the provisions replacing those enacted in 1987 does not proceed solely by reference to the list of the four special facilities as the 1987 provision did. Rather, as a shorthand, ss9 and 10 also use the expression "special education" which is defined as follows:

    special education means education or help from a special school, special class, special clinic, or special service (s2(1))

  49. This definition is to be contrasted with that in the 1964 Act. While the 1964 definition emphasises the handicap or difficulty of the child and the consequent need for educational treatment beyond that normally obtained in ordinary classes, the new definition is written solely in terms of institutions. It does that simply by listing the special facilities provided for in s98 of the 1964 Act and established or authorised by the Minister. Section 2(2) of the 1989 Act underlines the limiting of "special education" in the 1989 Act to those special facilities:

    2.

    (2)

    In this Part, and Parts 2 and 3, of this Act, unless the context otherwise requires, the terms .... special class, special clinic, special school, and special service have the meanings assigned to them by section 2 of the Education Act 1964.

  50. Although that attempted definition misfires, since there is no definition of those four terms in s2 of the 1964 Act, or anywhere else in it, the definition is significant because it ties the various types of special facilities and the expression "special education" in ss2 and 9 of the 1989 Act back to the specific institutions and facilities established or authorised by the Minister under s98 of the 1964 Act, and to nothing else. It does not have the broader emphasis of the 1964 definition.

  51. Notwithstanding the availability of the shorthand allowed by the new definition, Parliamentary counsel did not in fact rely solely on it and in the substantive provisions of s9(1) and (2) effectively equated "special education" with the four special facilities. For instance, the former provides:

    9.

    Special education

    (1)

    If satisfied that a person under 21 should have special education, the Secretary shall—

    (a)

    Agree with the person's parents that the person should be enrolled, or direct them to enrol the person, at a particular state school, special school, special class, or special clinic; or

    (b)

    Agree with the person's parents that the person should have, or direct them to ensure that the person has, education or help from a special service

    [emphasis added]

    (The reference to "a particular state school" was added to the Bill in the course of its passage through Parliament to enable the Secretary to use his power of direction where a parent is refusing to enrol a child in the school in question. The power, which has been used in practice for instance to override an enrolment scheme, appears to be of no consequence in this case.)

  52. The equation in the 1989 Act of special education with the institutions established or authorised by the Minister under s98 also appears in the critical s9(4) which requires a s9 agreement or direction if "special education" within its terms is to be provided:

    9.

    (4)

    No person shall be or continue to be enrolled at a special school, special class, or special clinic, or have or continue to have education or help from a special service, except pursuant to an agreement or direction under subsection (1) of this section. 

    [emphasis added]

  53. The 1989 Act in our view carried forward without change the substance of the 1987 amendments. Sections 9 and 10, like ss114 and 115 before them, are concerned with the four listed special facilities and only with them. It is unfortunate that confusion has been caused by the use as a drafting device of the expression "special education" in the 1989 Act with a significantly different and narrower meaning than the expression has in the 1964 Act.

  54. The distinction between those who require special tuition or assistance in a special facility under s9 and those with special educational needs but who are able to exercise their same or equal right to enrol and receive education as others under s8 appears from one other feature of these provisions, a feature which goes back to 1901. That feature is that a wider age group continues to be covered by the provisions relating to special facilities. By contrast to the equal rights of school age children under s8, s9 covers all persons who should have special education from birth to 21.

    The SE2000 initiatives and s98 (1964) and s9 (1989)

  55. Under SE2000 a range of new special education initiatives have been taken. As discussed earlier (paras [21]-[24]), they now include the ongoing and reviewable resourcing scheme (ORRS); resource teachers: learning and behaviour (RTLB); the severe behaviour initiative (SBI); and the speech language initiative (SLI). There is also the additional funding to schools, some provided through the special school staffing orders. Which of those initiatives come within the scope of s9(1) and the requirement of s9(4) that those receiving "special education" receive it only under a s9 agreement or direction? The special schools remained after the other special facilities were disestablished and plainly continue to come within s9; ORRS (in its earlier versions) was established under s98 of the 1989 Act in January 1999 and it also comes within s9. Children using those facilities must be the subject of an agreement or direction under s9(4). But what of the other initiatives? Baragwanath J suggested for instance that RTLB would appear to fall within what he referred to as "that undefined concept" of special education, as he thought would SBI and SLI.

  56. We do not see the legislation in that way. To repeat, the 1989 definition of "special education" ties back to the 1964 Act by reference to "special school, special class, special clinic, or special service" and the misfiring but nevertheless significant definition of those expressions. Under the 1964 Act those special facilities are established or authorised only by the Minister (or authorised delegate). While the predecessors to ORRS were so established under s98 the record before us indicates that the other SE2000 programmes were not. Rather, they were and are provided through the decisions of school boards of trustees, sometimes operating on a cluster basis (as with RTLB), on the basis of the additional funding provided under the relevant aspects of SE2000. It follows that it is only the provision of education in special schools and through ORRS that at present requires the Ministry to make decisions under s9 about individual students. (See also the power in s9(1) in respect of regular state schools: para [51] above.) The remaining resources are directed for the benefit of those with special educational needs who under s8 attend local schools which are to provide the relevant services through the other SE2000 programmes and the related funding.

    Conclusion on question 1

  57. We accordingly answer Question 1 in para [13] as follows: it is only those educational facilities which are established by the Minister under s98(1) of the 1964 Act which come within ss9 and 10 of the 1989 Act. It follows that at the moment the only contracts which must be concluded or directions which must be given under s9 are those that relate to children attending special schools or who come within the ORRS programme. On the record before us no breach of s9, as so understood, has been shown.

    THE RIGHT TO FREE EDUCATION

  58. Section 3 of the 1989 Act is as follows:

    3.

    The right to free primary and secondary education

    Except as provided in this Act or the Private Schools Conditional Integration Act 1975, every person who is not a foreign student is entitled to free enrolment and free education at any state school during the period beginning on the person's 5th birthday and ending on the 1st day of January after the person's 19th birthday.

  59. As already indicated, the right or entitlement to free enrolment and free education has existed for 125 years, since the enactment of the Education Act 1877. The right has always been matched by a correlative duty of attendance, with exemptions from that duty for those with disabilities, among others.

  60. That s3 right underlies the right, first introduced in the 1987 Amendment Act, of students with "special educational needs", now set out in s8:

    8.

    Equal rights to primary and secondary education

    (1)

    Except as provided in this Part of this Act, people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at state schools as people who do not.

    (2)

    Nothing in subsection (1) of this section affects or limits the effect of Part 2 of this Act (which relates to enrolment schemes and the suspension, expulsion, and exclusion of students).

  61. Baragwanath J in his discussion of s8 rights stated this conclusion:

    [T]he statutory language must be construed as requiring the authorities to evaluate the particular educational needs of each individual student and respond to them. For reasons developed in Part 5 [the next part of his judgment] I have concluded that, read together in their context, ss3 and 8 require an individual focus on every special needs student to ensure that each receives an education that is

    not clearly unsuitable (and in that specific sense is "suitable"), and

    is regular and systematic.

  62. Part 5 begins with the Judge recognising that "since s8 confers on special needs students ‘the same rights’ as are enjoyed by others, the initial question is as to the nature of the rights conferred by s3". It is accordingly no surprise that he ends this part of his judgment in terms very similar to the passage just quoted:

    [137]

    Faced with the choice between giving substance to the "entitlement" and "rights to education", or emptying them of legally enforceable content, I am satisfied that the former must be adopted. In enacting s3 the Legislature deliberately conferred an entitlement to education. In my view it cannot have intended such entitlement to entail anything less than:

    it must not be clearly unsuitable (and in that specific sense of it suitable) for the pupil

    it must be regular and systematic.

  63. Three points can be conveniently made at this point. The first is that the conclusion the Judge set out in the two passages applies to all children, and not simply to those with special educational needs, the subject of s8. Since s8 depends on the generally applicable s3, that extension is inevitable: those with special educational needs have the "same rights" (the substance of s8) or "equal rights" (its heading) to enrol and receive education as people without those needs subject, that is, to the exception for those covered by s9.

  64. Secondly, the Judge saw the rights and the correlative obligations as relating to each individual child in the state school system. The State has a legal obligation to evaluate and respond to the educational needs of each student and, again, that obligation applies to each and every student and not simply to those with special educational needs.

  65. Thirdly, the Judge saw the issue in all or nothing terms. That appears from his statement of the choice he considered he faced in the concluding paragraph of part 5 of the judgment (para [62] above), in the heading to that part, Justiciability and the right to education, and in his statement of the Crown’s preliminary submission

    that the nature of the "entitlement" in s3 and the "rights" in s8 is such that it is not justiciable by the Courts. It is rather a matter for the Crown, for which its Ministers are accountable to the electorate via the ballot box. There is too large a component of policy as to what budgetary allocation should be made, as against other public policies with which it competes. And the entitlement – to "education" – is expressed in such broad terms as to fall outside the classification of being a law on which the Courts can pronounce.

  66. He returned to the point throughout this part of his judgment:

    [I]t by no means follows that because the system cannot be required to provide everything, therefore it cannot be required to provide anything.

    ....

    The Crown’s submission that the Courts can have no role to examine legality in this sphere goes too far.

  67. In this part of his judgment Baragwanath J draws on a number of decisions, particularly from the United Kingdom: In re S (Minors) Care Order: Implementation of Care Plan [2002] 2 AC 291, Phelps v Hillingdon London Borough Council [2001] 2 AC 619, R v East Sussex County Council, ex parte Tandy [1998] AC 714 and Ireland: Sinnott v Minister of Education [2001] 2 IR 505. Each case concerns claims by particular individuals alleging breach, among other things, of differently drafted legislation, constitutional provisions or standards of care in negligence, with specific evidence about the alleged failure of particular educational regimes prepared for each individual. We come back to the cases later, after considering the terms of ss3 and 8 and the related provisions of the 1989 Act, but we recall the point made earlier about the general way in which this case has been presented and the general character of the relief that has been sought.

  68. What are the "rights" and "entitlements" to which ss3 and 8 refer? Is it for the Courts to give them some minimum content in the way that Baragwanath J proposed in the passages quoted above? He did not of course in those passages go so far as to say the Courts should attempt to review, on some extensive basis, government policy and actions, by reference, say, to the Fraser statement of objective (para [36] above), and he expressly recognised the authority and responsibility of the Crown and its access to expert knowledge and resources not possessed by the Court. "The Court’s role is simply to determine whether the law has been infringed and if so to award conventional relief ...."

  69. We begin, as did Baragwanath J, with the proposition that Parliament has conferred rights to education. It has done that since 1877. It has continued to recognise the essential role of public education for both private and public good in the money that it votes for education each year, as the Judge also recognises. The state’s obligation is now also recognised internationally, notably in the International Covenant on Economic, Social and Cultural Rights.

  70. But what content does the correlative right of the individual child have? Can it be determined and breaches of it established by a court on the broad basis stated? There can be no doubt that the child does have a right to free enrolment and education in state schools. But the rights, the Crown says, are those provided for by and under the legislation. They are the rights to enjoy the benefits of the system for the delivery of education set up by and under the Act.

    Rights and duties of children and the Crown under the legislation

  71. The legislation begins with the right and duty of all school aged children to attend state schools free (ss3, 20, 25(1)). That right is supported by grants provided by the Minister out of Parliament’s appropriation to the school boards and by other parliamentary appropriations. Supplementary grants are to be used only for the purpose designated (s79). Schools must remain open for a prescribed number of days and hours (ss65A – 65G). They may employ only those teachers who have been registered by the Teachers’ Council (ss120A, 123-124 and Part 10A). The Minister sets National Education Guidelines made up of national education goals, foundation curriculum policy statements, national curriculum statements and national administration guidelines. According to s60A,

    60A

    (a)

    national education goals are statements of desirable achievements by the school system or by an element of the school system; and statements of government policy objectives for the school system;

    (b)

    foundation curriculum policy statements, are statements of policy concerning teaching, learning and assessment that are made for the purposes of underpinning and giving direction to the way in which curriculum and assessment responsibilities are to be managed in schools; and national curriculum statements and locally developed curriculum;

    (c)

    national curriculum statements state the areas of knowledge and understanding to be covered by students; the skills to be developed by students; and desirable levels of knowledge, understanding and skill to be achieved by students during the years of schooling;

    (d)

    national administration guidelines may set out statements of desirable codes or principles of conduct or administration set out requirements relating to planning and reporting, communicate the Government's policy objectives; and set out transitional provisions for the purposes of national administration guidelines.

  72. A School Board must, in accordance with the administration guidelines, prepare a charter for each school it administers. The Board is to consult parents, staff employed in the school and others it thinks fit. The purpose of the charter is to establish the mission, aims, objectives, directions and targets of the Board that will give effect to the national education guidelines and the Board’s priorities. The Minister is to approve the charter, with or without amendment, and may revoke it; and if no charter is prepared in its place within six months approve a charter for the school. The charter constitutes an undertaking by the Board to the Minister to take all reasonable steps to ensure that the school is managed and administered for the charter purposes and that the school, its students and community achieve the charter’s aims and objectives. The 1993 statement of national educational goals begins in this way, emphasising the achievement of each student:

    Education is at the core of our nation’s efforts to achieve economic and social progress. In recognition of the fundamental importance of education, the Government sets the following goals for the education system of New Zealand.

    1.

    The highest standards of achievement, through programmes which enable all students to realise their full potential as individuals, and to develop the values needed to become full members of New Zealand’s society.

    2.

    Equality of educational opportunity for all New Zealanders, by identifying and removing barriers to achievement.

    ....

    6.

    Excellence achieved through the establishment of clear learning objectives, monitoring student performance against those objectives, and programmes to meet individual need.

    7.

    Success in their learning for those with special needs by ensuring that they are identified and receive appropriate support.

  73. The national administration guidelines include these passages:

    1.

    Boards of Trustees must foster student achievement by providing a balanced curriculum in accordance with the national curriculum statements (i.e. the New Zealand Curriculum Framework and other documents based upon it).

    In order to provide a balanced programme, each Board, through the Principal and staff, will be required to:

    i.

    implement learning programmes based upon the underlying principles, stated essential learning areas and skills, and the national achievement objectives; and

    ii.

    monitor student progress against the national achievement objectives; and

    iii.

    analyse barriers to learning and achievement; and

    iv.

    develop and implement strategies which address identified learning needs in order to overcome barriers to students’ learning; and

    iv.

    assess student achievement, maintain individual records and report on student progress.

  74. Each Board in its annual report is to provide an analysis of any variance between the school’s performance and the aims, objectives, directions, priorities and targets set out in the charter (s87(3)). Boards include elected parent representatives.

  75. The Education Review Office has the function of reviewing, either generally or in relation to particular matters, the performance of state schools and other bodies in the provision of educational services. It can do that of its own motion or under the direction of the Minister. The Office has extensive powers of entry, inspection and obtaining information. The resulting reports are published and are widely available as well as being provided to the Minister and the institution. The Office has specifically reported on special education, for instance in 2001 on the programme provided for 46 students included in the ORRS, enrolled in 42 mainstream schools throughout the country. The conclusion to the report set out positive features and suggested desirable improvements: informed parents, trained staff and therapy and specialist programmes.

  76. SE2000 has also been the subject of an independent review set up by Ministers, and carried out by Dr Cathy Wylie in 2001 (see paras [99]-[102] below) and a three year (1999-2001) evaluation commissioned and funded by the Ministry of Education and undertaken by a team of researchers at Massey University: Special Education 2000: Monitoring and evaluation of the policy: Phase Three (2002). The results recorded in the Final Report Summary show a generally positive trend in all components of SE2000 except the SBI (the severe behaviour initiative). The survey showed overall satisfaction. The Summary also noted the changes that had been made (including those following the Wylie report such as the introduction of the ORRS) and it identified issues for further action.

  77. Near the end of 2001 a further new power of review external to the school was created in place of other powers (including the power of the Secretary to bring court proceedings to enforce the charter). The new Part 7A, Interventions in Schools, has as its purpose to provide "a range of interventions that may be used to address risks to the operation of individual schools or to the welfare or educational performance of their students" (s78H). The means of intervention chosen by the Minister or Secretary is to be that which he or she considers reasonable to deal with the risk without intervening more than is necessary. The range extends from requiring information, requiring specialist help, requiring an action plan, appointing a limited statutory manager to dissolution of the Board and the appointment of a commissioner (s78I).

  78. In addition to the system created by and under the Education Acts to promote education, external scrutiny is provided by the Ombudsmen, the Controller and Auditor-General, the responsibility of Ministers to the House, the parliamentary processes of scrutiny including the estimates and financial and annual reports, professional and public scrutiny and comment, and international review through bodies such as the OECD.

  79. To return to the education legislation, there can be no doubt that in addition to the statutory powers of the central government to intervene (notwithstanding the emphasis of the reforms introduced by Tomorrow’s Schools on local, especially parental, administration), some of the failures of a school to comply with its obligations could give rise to legal proceedings. A failure to open for the requisite period or to employ registered teachers are obvious instances. In other words, we do not find helpful the "all or nothing" or "justiciability or not" discussions in the judgment below and submissions. The schools have duties correlative to the students’ statutory rights and those general rights are capable of legal enforcement.

  80. Rights and duties enforceable through court process arising under the 1989 Act may be general like those just mentioned. But they also include rights enforceable by a particular individual arising out of actions affecting that person alone. That is plain, for instance, in respect of rights under enrolment schemes and in relation to expulsion and suspension. So far as the former is concerned, the first priority group of applicants who live outside the school’s home zone are those accepted for enrolment in a "special programme" run by the school (s11F). (Next are siblings of current students and siblings of former students ....) A "special programme", approved by the Secretary, includes programmes that provide special education and other types of specialised education to overcome educational disadvantages, as well as Maori language immersion courses (s11B; see also para (b) of the definition). The expulsion and suspension provisions include within their statement of purpose "ensur[ing] that individual cases are dealt with in accordance with the principles of natural justice" (s13(c); see also s18AA about rule making).

  81. Judicially enforceable rights may also arise in respect of s9 which does of course accord rights to any particular individual whom the Secretary is satisfied should have special education. Section 10 does enable the merits of the Secretary’s decision to make a direction or to refuse to agree with the parent that a special facility be made available to a particular child to be reconsidered first by the Secretary and then by an agreed arbitrator with experience or expertise in special education and with the power of decision, which may be more valuable than judicial proceedings. But such proceedings would undoubtedly be available in appropriate cases to enable individual children to enforce their statutory rights, including the procedural ones, and to review the decisions taken under the legislation. Parliament has conferred some rights in respect of education which can be judicially protected. The real question is of course about the content of those rights.

  82. We return to the Judge’s findings about s3 (para [62] above). Any requirement that the education be "regular and systematic" is met in its essence, it seems to us, by the statutory requirements including those for minimum days and hours, teacher registration and curriculum. Those and the other features of the Act mentioned above, together with the very opaqueness of the proposed standard, also appear to us to negate a judicially enforceable "not clearly unsuitable" general standard and the grave difficulty it presents for judicial supervision. Compare, for instance, compelling evidence of a complete failure by the Secretary to consider information plainly bearing on the contention that a particular child being considered under s9 "should have special education".

  83. To repeat, while there are rights under the 1989 Act that can be enforced by court process, those rights do not include generally, and abstractly, formulated rights of the kind stated by the Judge. Rather, the rights are essentially those specifically established by and under the legislation which, to recall the Judge’s formulation, do in themselves provide for regularity and system and are designed to ensure appropriate quality. There is no freestanding general right, held and enforceable by each individual student under ss3 and 8, of the kind stated.

    The cases relied on in the High Court

  84. Do, however, the cases on which Baragwanath J relied give reason to question that conclusion based on the statute (see para [67])? We do not think so, essentially for the reason already given: each case concerns a claim by an individual that rights owed to that particular person were breached.

  85. In the most recent case, In re S, care orders relating to four children in two different families were in dispute between the parents and the relevant local authorities. The appeals before the House of Lords concerned the impact of the Human Rights Act 1998 (and in particular the rights to respect for family life and the right to the determination of civil rights and obligations and to a public hearing within a reasonable time by an independent and impartial tribunal) on the Children Act 1989. In respect of one family there had been a "striking and fundamental" failure to implement the care plan, "serious failings" arising from a financial crisis involving substantial cuts in the social services budget. The House of Lords nevertheless left the care orders in place. In the other case the Court of Appeal had held that the care plan was insufficiently mature, it had replaced the care order with an interim order and had remitted the case to the County Court for further considerations. Again, the House of Lords left the care orders in force. In both cases the legal controversy concerned the introduction by the Court of Appeal of what was referred to as a "starring" system – a system under which after a court had made a care order in favour of a local authority the court could be asked to intervene if a "starred milestone" were not delivered within a reasonable time after the date set at trial. The House of Lords rejected the Court of Appeal’s introduction of that system and to that extent allowed the appeals by the Secretary of State for Health and the local authorities. Lord Nicholls of Birkenhead, with whom the other Lords of Appeal agreed, emphasised at the outset of his opinion "a cardinal principle of the Children Act" of non-intervention by the court once a care order was made. That principle, he said, is subject to particular statutory limits and the High Court’s judicial review jurisdiction also remains available (paras [23]-[24]).

  86. While the result in the case and that principle of non-intervention may provide limited distance to the Crown in this appeal, the cases are plainly far apart. The legal rights and obligations of a particular child, the local authority and the parents arose in In re S under legislation which is sharply different from ss3 and 8 and the related provisions of the 1989 Act involved in the present case. The judgment does not provide real assistance in this appeal.

  87. The four plaintiffs in Phelps were all suing local authorities in negligence - for failure to assess their disability in two cases, to provide competent advice in a third and, in the fourth, to provide education in accordance with a statement of educational needs made under the Education Act 1981 emphasising the need for that plaintiff to have access to a computer and to be trained in its use. The House of Lords held in favour of the plaintiffs, restoring the damages judgment made in one case, rejecting strike out applications in two others and allowing pre-action discovery in the other. This case has in common with In re S established or alleged failures in relation to the particular plaintiffs. There is of course the difference that the plaintiffs succeeded, but in negligence and not under legislation. The House of Lords, in the words of Lord Slynn of Hadley, held specifically that damages could not be sought for breach of statutory duty:

    In the present case, although the duties were intended to benefit a particular group, mainly children with special educational needs, the Act is essentially providing a general structure for all local education authorities in respect of all children who fall within its provision. The general nature of the duties imposed on local authorities in the context of a national system of education and the remedies available by way of appeal and judicial review indicate that Parliament did not intend to create a statutory remedy by way of damages. Much of the Act is concerned with conferring discretionary powers or administrative duties in an area of social welfare where normally damages have not been awarded when there has been a failure to perform a statutory duty. The situation is quite different from that concerning the maintenance of factory premises as in Groves v Lord Wimborne [1898] 2 QB 402. ([2001] 2 AC at 652)

  88. On the previous page, in a passage quoted by Baragwanath J, Lord Slynn had said this:

     It is clear from the legislative provisions to which I have referred that Parliament intended that various stages of the process were to be monitored by an appeals procedure. Moreover, there can be no doubt that some of the acts of the authority may be examined by way of judicial review, even if in other areas the extent of the discretion conferred on the authority with its particular expertise is likely to lead to a court refusing to interfere even by way of judicial review: see, e.g. A v Liverpool City Council [1982] AC 363, 373, per Lord Wilberforce.

  89. Baragwanath J quoted that passage, after saying that the fact that according to Phelps a common law "obligation exists under the legal system whose senior judges form our ultimate Court of Appeal points against any suggestion that the plaintiffs’ argument in favour of justiciability is unprincipled". As we have already indicated, "justiciability or not" puts the argument in the present case into too absolute a form. The 1989 Act plainly creates some rights, powers and duties which can be enforced and be the subject of review proceedings in the courts.

  90. The Tandy case, like the present, was an application for judicial review in respect of special educational needs. But, unlike the present, Beth Tandy’s application was based on specific facts, relating to her own particular situation: a reduction from five to three of the hours of home tuition provided to her each week under a statement of special educational needs and under the education legislation. She had ME and as a result had found it very difficult and at times impossible to attend school. The local authority’s statutory duty was in part similar to that in s9 of the New Zealand Act. It was required to make arrangements for the provision of suitable education for school age children who by reason of illness might not receive suitable education unless such arrangements were made. "Suitable education" was defined by the statute as "efficient education suitable to his age, ability and aptitude and to any special educational needs he may have". The decision to reduce the hours was dictated purely by financial considerations, the county council’s funding having been cut. Lord Browne-Wilkinson, speaking for a unanimous House of Lords, held that the statute imposed an immediate obligation to make arrangements to provide "suitable education", defined by reference to wholly objective educational criteria. The Council’s financial resources were an irrelevant consideration and its decision was quashed.

  91. The amended statement of claim in this case does allege that irrelevant considerations were taken into account: that the Minister or Ministry, or both, wished to limit the provision of targeted special educational services to a set percentage of school age population and wished to cap the future costs of special educational services. The Judge made no finding of fact in support of that pleading. The nearest he got was to say that it had originally been "intended" that 2% of students should qualify for ORS as having a "high" or "very high" level of disability. Following a trial, that figure, he said, was "reduced" to 1% and Cabinet on 3 December 1997 accepted the recommendation that eligibility for ORS be set at a figure that would come up to 1% of the currently projected 1998 student population. He also said, when discussing Tandy, that "it is perhaps implicit in the Crown’s submissions that lack of resources beyond what Parliament has already voted should preclude any statutory duty arising in the present case". That was certainly not explicit in the hearing before us, nor can it be said to be implied and we were not taken to any part of the very extensive record before us to demonstrate decisions to fix set percentages or to cap costs. Rather, as is to be expected, officials in the light of evolving experience have advised Ministers about the likely numbers of students requiring the various services and the likely costs for budget and other purposes. What they were engaged in was the stating of expectations rather than the fixing of absolutes. And, as noted, the spending on those with special educational needs has almost doubled since the 1995/96 year and many more children now come within the scheme (para [25]).

  92. The other major education case considered by Baragwanath J under this heading is Sinnott v Ministry of Education [2001] 2 IR 505 decided by the Supreme Court of Ireland before the House of Lords decided Phelps. Baragwanath J commented that insofar as it denied general damages for breach of duty Sinnott was inconsistent with Phelps and to that extent might be seen as conservative. But he said it provided clear support for the Court’s jurisdiction to declare a special needs student’s entitlement to education appropriate to his or her needs.

  93. As the final sentence suggests, Sinnott was, again, about an individual’s complaint based, to quote Keane CJ, on "a depressing saga extending over twenty years" in which Mrs. Sinnott’s efforts to persuade the State’s health and education authorities to recognise autism and provide appropriate education and training for those suffering by it were met with what the trial judge described as "official indifference and persistent procrastination which continued up to and through this trial" (para [6]). The trial judge summed up Jamie Sinnott’s experience as follows in a passage also quoted by Baragwanath J (para [22]):

    No programme was devised for Jamie’s education and training until half way through the trial when a grossly defective one was gathered together in haste which was roundly condemned by the experts – even those called on behalf of the defence.

  94. Jamie Sinnott sought a declaration that he had been deprived of his constitutional rights under articles 40 and 42 of the Constitution and damages for breach of those rights, negligence and breach of duty. His mother sought similar remedies. The trial judge granted declarations and awarded damages, some to meet the costs for Jamie’s future programmes. All that the State challenged in Jamie’s case was the High Court’s order that he was entitled to free primary education appropriate to his needs from the age of 18 onwards for as long as he was capable of benefiting from such education and the mandatory relief the Court awarded. The relief was reduced to a declaration but with the Court noting that were the Minister of Education to be found in the future to be in breach of the Minister’s obligations, the power of the court to ensure the upholding and vindication of the plaintiff’s rights would be "as ample as the defence of the Constitution requires" (quoting Ó Dálaigh CJ in State (Quinn) v Ryan [1965] IR 70). The case emphasises that individual rights, particularly constitutional ones, are to be taken seriously. There was no dispute that the State had breached its obligation under the Constitution to "provide for free primary education ...."; the essential dispute was about remedies. By contrast, the question in the present case is whether there is a breach.

  95. It follows that we do not find that the education cases cited in favour of the entitlement found by Baragwanath J to exist under ss3 and 8 support that finding. They do not affect our conclusion that there is no freestanding general right, held by each individual student under ss3 and 8, of the kind stated.

  96. A final argument by the respondents under this head remains to be considered. The right to an education stated by Baragwanath J, they say, is only the right to "a process which [is] at least regular, systematic and not clearly unsuited to the educational needs of the child" (our emphasis). On the face of it "not clearly unsuited" appears to state a substantive standard. The Judge does not appear to be speaking of a process alone, but of educational programmes with real content. Indeed, the submission continues that the Judge was quite properly expressing the content of the right conferred by Parliament. Whether there is a real difference in the field of education generally, or on the particular facts of this case, between process and content, the emphasis on process does not affect the conclusion we have reached under this head.

    Conclusion on issue 2

  97. To repeat, and to answer question 2 in para [13], we conclude that ss3 and 8 do not establish a freestanding right of the kind stated by the Judge. No basis has been laid for a finding of a breach of those sections in this case.

    THE 1998/99 DIS-ESTABLISHING OF ALL SPECIAL FACILITIES EXCEPT SPECIAL SCHOOLS

    The High Court’s reasoning

  98. In October 1998, in the context of the many other SE2000 steps that had been and were to be taken, the Minister of Education accepted a submission to disestablish all ministerially established special classes, clinics and services (but not, contrary to what the Judge said near the end of his judgment, special schools). That action was taken under s98(2) of the 1964 Act. In the relevant part of his summary of the legal obligations of the Crown, Baragwanath J ruled that:

    [140]

    .... The Act compels the Crown to monitor the standard of education received by each special needs student, to ensure that special education is provided to those who are not adequately catered for by mainstream schools, and not to disestablish facilities or services that are necessary for such care without first determining that adequate alternative resources exist to continue the provision of equal education.

  99. He then went on to apply the law he had stated to the facts, beginning with a lengthy quote from the report prepared by Dr Cathy Wylie in July 2000. The Judge continued:

    [143]

    On the basis of the foregoing legal analysis, this evidence on its own establishes breach of s98(2) and, in a general way, of ss8 and 9. The former Minister could not reasonably, in its light, have concluded that, New Zealand wide, "sufficient provision [was] made" for the "sizeable number of children with special needs [who] are missing out on the support they need to participate as much in school and class life as any other child". Dr Wylie’s report requires a conclusion both of failure to meet minimum standards and of unequal treatment. The materiality of the disestablishment is demonstrated by the observations about the "profound effect" and "expos[ing] the absence of any effective governmental role in ensuring that there as adequate provision for children with special needs at the local level" and "maindumping".

    [144]

    This conclusion is supported by the fact that the Ministry paper recommending the introduction of SE2000 made no attempt actually to match disestablished facilities against a list of substitutes "in or reasonably near to the same locality" (the language of s98(2)). It assumed that "where there was sufficient needs" the local board would be able to set up its own special facilities using its own staff plus the ORS and SEG funding, RTLB itinerant teachers and other resources to be provided by SE2000.

    [145]

    But it is one thing to hope that in each affected area an autonomous elected board would choose to set up such facilities; another to have reasonable assurance that it would in fact do so in a manner and on a timescale to ensure that "there is sufficient provision" as the statute requires. The fact that "[d]ecisions on how to meet these needs are made at the local level" means that they are not made by the Minister. Nor does "sufficient provision is made by another similarly established special school ...." mean "sufficient provision may in the future be made by another similarly established special school .... if general Ministry expectations as to parental and board behaviour patterns are realised".

    [146]

    It may be accepted that "make provision for" is a general formula which in another context could refer to the provision made by the Ministry throughout New Zealand by SE2000. But in the context "sufficient provision is made by another similarly established special school ...." is not apt to permit the wholesale disestablishment of special needs facilities without either quite specific examination of local geography and assurance that its current, or at least immediately imminent, special needs facilities make sufficient provision for the needs of local students, or such generous general provision and systems to ensure its effective application that there would be no reasonable doubt that all students’ needs are duly catered for. Dr Wylie’s evidence establishes that neither occurred.

    [147]

    For this reason SE2000 contravened s98(2) of EA89.

    [original emphasis]

  100. We agree with the Crown’s criticism of the Judge’s use in this context of the Wylie report. The quoted passage – like the report as a whole – is concerned with what happened after the impugned decisions were made and with proposing changes for the future. The terms of reference began with this statement:

    The Government is committed to the stated aims of Special Education 2000, that is to:

    (1)

    improve educational opportunities and outcomes for children with special education needs in the early childhood and school sectors;

    (2)

    ensure there is a clear, consistent and predictable resourcing framework for special education; and

    (3)

    provide equitable resourcing for those with similar needs irrespective of school setting or geographic location.

  101. The review was to focus on students on the margin between moderate and high special educational needs, the staffing of special education units, the SEG to assess the extent to which it enables schools to meet the moderate special education needs, and the effectiveness of recent changes to special education transport policy. "There is a particular interest in improving support for Maori and Pacific Islands students with special educational needs."

  102. Dr Wylie was not asked – as indeed counsel for the parents recognised – to review the initial decision by reference to the information before the Minister at the time of decision. Further, such judicial use of an independent report, sought by the government to assess policies adopted earlier and to propose improvements in the policies, could provide an unfortunate disincentive to such a sensible course of action. The validity of the Minister’s action has to be determined by reference to the situation in October 1998 when he took the action.

  103. Next, the Judge’s reference in paras [145] and [146] of his judgment to provision being made by another similarly established special school does not mention the other distinct base for the disestablishment decision, namely that the Minister "considers that sufficient provision is made .... by any other school or class in or reasonably near to the same locality". It is also to be noted that s98(2) requires "sufficient provision" rather than the "equal education" to which Baragwanath J refers. His temporal point – "is made" in the Act compared with what "may in the future be made" in para [145] – is also to be related to the provision in s98(2) for the giving of three months notice with the consequence the disestablishment decisions did not take effect until 27 January 1999 and to the fact that the decision was to be seen along with all the other SE2000 decisions. The Judge’s reference to the expectations of the behaviour of parents and school boards must also be seen in the context of the substantial movement, effected by the 1989 Act, of responsibility for education and the related powers and duties generally from central government to local communities.

  104. We do consider however that there is force in the point the Judge makes at the beginning of his para [144] about the need, when the Minister made the decision, to assess the match of the facilities being disestablished with those that will be available in the localities concerned – in this case localities spread throughout New Zealand. Close attention must be given to the terms of s98(2) and to the facts. Section 98(2) is as follows:

    The Minister may likewise disestablish any special school, class, clinic, or service established under subsection (1) of this section, if he is dissatisfied with the manner in which the school, class, clinic, or service is being conducted, or if he considers that sufficient provision is made by another similarly established special school, class, clinic, or service, or by any other school or class in or reasonably near to the same locality:

    Provided that in the last-mentioned case he shall, if the controlling authority of the school, class, clinic, or service so requires, give 3 months' notice of his intention to disestablish the same.

    The Minister’s reasons

  105. To turn now to the facts, we set out part of the report to the Minister and his account of his reasons for his decision. We begin with the Minister’s affidavit. The Hon Wyatt Creech deposed:

    18.

    I was responsible, as Minister of Education, for the decision to disestablish the staffing entitlements and hence the units, classes and services. I undertook this action after deliberately seeking advice from officials as to its legal and policy appropriateness. I took the action under the power granted to the Minister of Education by section 98(2) of the Education Act 1964. I attach .... a submission I received from the Ministry of Education on 16 October 1998 [extracts from which appear in the next paragraph] asking that I exercise my power under s98(2). A list of every position to be disestablished was attached – this meant that the classes, units and services were effectively disestablished because they had no entitlement to teachers.

    19.

    As pointed out above, .... I sought advice from Ministry officials on my power to do this. I also read s98(2) myself at the time. In exercising the power under s98(2) of the Education Act 1964 to disestablish staffing entitlements, a Minister has to "consider that sufficient provision is made by .... any other school or class in or reasonably near to the same locality." Because I was making provision for support to be available to all schools I considered that provision was sufficient and, indeed, was thoroughly appropriate and would address the special education needs of many more young New Zealanders in a much fairer way than was then provided for. Based on this I considered the requirements of s98(2) were fully satisfied.

    20.

    I therefore approved this submission on 21 October 1998. The Staffing Orders for 1999 reflected this decision by containing no reference to special education staffing for units and classes, but adding reference to RTLB and staffing for students in the ORS. I agreed to this because its replacement greatly enhanced the resources being made available to meet New Zealand’s special education needs.

    [original emphasis]

  106. The Ministry paper to which the Minister refers says this:

    7.

    The provisions outlined above [involving up to 1,728 full time teaching equivalents, para [23] above] will replace the 1,166.01 full-time teacher equivalents (FFTEs) in classes, units and services that are no longer required because sufficient provision has been made to meet the needs of the students previously served by these classes, units and services. A table outlining the classes, units and services to be disestablished is given in Appendix 1. A complete list of these positions and the schools to which they are attached is given in Appendix 2.

    8.

    The purpose of these classes, units and services has been to fulfil one or more of the following:

    meet the needs of students with ongoing high or very high needs

    provide services for students with more moderate hearing and/or vision impairment or physical disability who may require intensive support over a short time or support on separate occasions throughout their schooling

    assist teachers and students with moderate learning and behaviour difficulties

    49.

    The education, support and therapies provided by these classes, units and services will from 1999 be provided by the various Special Education 2000 initiatives outlined in the table above. Where there is sufficient need, a board of trustees will be able to set up its own special class or unit using its entitlement staffing and special education staffing and funding.

    10.

    The Ministry therefore recommends these classes, units and services be disestablished on the grounds that there is sufficient provision in, or reasonably near, the same locations through the provision of various Special Education 2000 initiatives. Section 98(2) of the Education Act 1964 requires the Minister to give at least three months notice of disestablishment.

  107. The staffing orders mentioned by the Minister in para 20 of his affidavit and the new programmes referred to in para 7 of the Ministry paper were discussed earlier (paras [15]-[25]).

  108. Section 98(2) empowers the Minister to "likewise disestablish any special school, class, clinic or service established under subsection (1)". The word "likewise" must refer to the beginning of subs (1), which enables the Minister to disestablish a special facility "having regard to the provision of special education in any locality or localities". "Special education" in that context has its wider 1964 Act meaning. That is to say, the Minister in making the decision to disestablish is to have regard to the educational treatment beyond the norm, available in the locality or localities, required by children with a physical or mental handicap or educational difficulty. The Minister can properly look to facilities beyond those which the Minister has established or authorised under s98(1). That wider scope of the matters the Minister is to have regard to also appears from the ground for action the Minister invoked in this case: he considered that "sufficient provision is made .... by any other school or class in or reasonably near the same locality", "other", that is, than "another similarly established special school, class, clinic, or service". The Minister accordingly properly looked as well to those parts of the SE2000 programme which had not been established or authorised under s98(1).

  109. We do not however consider that the Minister properly directed himself in terms of the legal test established by subs (2). The Minister had to consider whether "sufficient provision is made by any other school or class in or reasonably near to the same locality". There is nothing in the submission to the Minister to demonstrate that the Ministry had undertaken an examination locality by locality to determine that such sufficient provision had been made in each locality. The complete listing of the new and old facilities does not show that. And there are indeed at least two indications in the submission that the matching examination required by s98(2) is being left for others and for future action. So para 9 of the Ministry paper, referring to the new (and indeed increased) resources available, refers to a board of trustees being "able" to set up its own special class or unit "where there is sufficient need" (para [106] above). Second, the Minister was recommended to

    direct the Ministry to report back to the Minister of Education by 7 November 1998 [just 16 days after the Minister approved the recommendation] on the impact of the proposal in para (a) [to disestablish all the special facilities other than the special schools] on existing special units of all types together with proposals that will ensure the continuity of the general capacity to offer choice to parents between mainstreaming or a special education unit (including assessment and experience units).

  110. That process, although being carried out over a very short period, appears to be part of the type of process contemplated by s98(2) to be carried out before any disestablishment decision is taken. The process, after the event, in fact had no effect on the disestablishment decision.

  111. The Minister’s affidavit also does not demonstrate a locality by locality examination. Rather, he too was looking to the support he was providing to be available to all schools (para 19, quoted in para [105] above). It is not of course for this Court to examine the sufficiency of the service. Our task is more limited. But we do have to see whether the Minister has addressed the issue presented to him by the legislation. We consider that he did not.

  112. Section 98(2) does impose a high standard on the Minister. It was of course written in a time when education administration was more centralised. This provision was not amended when the reforms involved in Tomorrow’s Schools were the subject of legislation and the Government has recognised that the special education legislation requires review. It was probably never contemplated that it would be used to implement one aspect of a country-wide comprehensive reform such as that carried out over recent years. It is however the source of the power invoked by the Minister to disestablish the special classes, units, and services across the country and we conclude that he has not undertaken the locality by locality task which the legislation required of him.

    Conclusion on question 3

  113. On that ground and to answer question 3 in para [13], we find that the Minister acted in breach of s98(2) when he disestablished the special classes, units and services. Since the Court is not at this stage concerned with remedies, we draw no consequence from that conclusion.

    RESULT

  114. It follows that we dismiss the Crown’s appeal so far as it challenges the ruling that the Minister acted in breach of s98(2) of the 1964 Act when he disestablished the special classes, clinics and services that existed in 1998. In other respects we uphold its appeal. In particular no breaches of ss3, 8 and 9 of the 1989 Act have been established.

  115. As noted earlier, we have not ruled on the submissions on the Bill of Rights, and issues of relief remain in the High Court. Any issues of costs are reserved.

    A P P E N D I C E S

    KEY STATUTORY PROVISIONS

    EDUCATION ACT 1964

    2.

    Interpretation

    (1)

    In this Act, unless the context otherwise requires,—

    ....

    Special education means education for children who, because of physical or mental handicap or of some educational difficulty, require educational treatment beyond that normally obtained in an ordinary class in a school providing primary, secondary, or continuing education

    .... Special Education

    98.

    Special schools and classes

    (1)

    Having regard to the provision of special education in any locality or localities, the Minister may—

    (a)

    Establish any special school

    (b)

    Establish, or authorise the establishment of, any special class, clinic, or service, either as a separate unit or in connection with any State primary school, secondary school, technical institute, community college or integrated school, or in connection with any public institution approved for the purpose by him

    (c)

    Make provision for special educational facilities to be provided by any correspondence school established under section 105 of this Act

    Provided that any special school established under paragraph (a) of this subsection may be placed under the control of the Education Board of the district and shall, where so placed, be deemed to be a State primary school, save that it may, on the recommendation of the Education Board and with the approval of the Minister, be placed under the control of any person or persons appointed by the Education Board for the purpose instead of a School Committee.

    (2)

    The Minister may likewise disestablish any special school, class, clinic, or service established under subsection (1) of this section, if he is dissatisfied with the manner in which the school, class, clinic, or service is being conducted, or if he considers that sufficient provision is made by another similarly established special school, class, clinic, or service, or by any other school or class in or reasonably near to the same locality

    Provided that in the last-mentioned case he shall, if the controlling authority of the school, class, clinic, or service so requires, give 3 months' notice of his intention to disestablish the same.

    99.

    Other special classes or services providing special education

    In addition to the establishment of special schools, classes, clinics, and services as provided for under section 98 of this Act, the Minister may recognise for purposes of financial assistance such other classes or services providing special education or facilities supplementing special education as may from time to time be prescribed.

    100.

    Administration of special education

    (1)

    The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes

    (a)

    Defining the categories of children requiring special education; providing for the mode of determining which children come within any category and for the examination of children who come within that category; and prescribing the general type of special education appropriate to children who come within any category

    (b)

    Prescribing the conditions for the recognition for purposes of financial assistance under section 99 of this Act of special classes or services providing special education or services or facilities supplementing special education

    (c)

    Providing for the expenditure of such money as may from time to time be appropriated by Parliament for the purposes of special education and for the establishment, maintenance, and management of special schools, classes, clinics, and services established under section 98 of this Act

    (d)

    Providing for the grading and staffing of special schools, classes, clinics, and services providing special education

    (e)

    Providing for the general control, organisation, management, and inspection of special schools, classes, clinics, and services providing special education, and defining the courses of instruction therein

    (f)

    Providing for the training of teachers for the purposes of special education

    (g)

    Providing for the furnishing of such reports and returns in respect of special schools, classes, clinics, and services providing special education as the Director-General may from time to time require

    (h)

    Providing for such other matters as may be deemed necessary in order to give full effect to the intention of the provisions of this Act relating to special education.

    (2)

    Regulations made pursuant to this section may provide that—

    (a)

    The control and management of any special school established pursuant to paragraph (a) of subsection (1) of section 98 of this Act, or of any special school that is an integrated school, may at any time be vested by the Minister in the Director-General; and that the Minister may at any time remove the control and management of any special school from that control and vest it in some other controlling authority constituted pursuant to this Act

    (b)

    The Director-General may, notwithstanding anything in this or any other Act, direct the controlling authority of a primary school, including an integrated primary school, to limit the instruction given in any special class or classes established at that school to such level as he may determine.

    113.

    Ascertainment of suitability of education of certain children— (repealed in 1989)

    The Minister may provide such means as he thinks fit to satisfy himself that every child of school age who is suffering from disability of body or mind of such magnitude as to require special education, and is receiving tuition privately, is receiving efficient and suitable education.

    114.

    Compulsory enrolment in special school, etc., Of certain children— (repealed in 1989)

    (1)

    Subject to the provisions of this Act, the parent of any child of school age who is deemed by the Director-General, after such special examination as the Director-General may require, including examination by a medical officer authorised for the purpose by the Minister of Health or examination by some other person so authorised, to require special tuition may be required to enrol the child in any special school or special class established under this Act, or in any recognised occupational group providing special facilities for the education of such children, unless in the opinion of the Education Board of the district the child is unable conveniently to attend the special school, class, clinic, service, or recognised occupational group, or would be required to live away from home in order to do so.

    115.

    Director-General may in certain circumstances direct that a child be sent to special school, etc.— (repealed in 1989)

    (1)

    It shall be the duty of the parent of every child who has attained the age of 7 years and is of school age and is suffering from disability of body or mind of such magnitude as to require special education to take steps to provide efficient and suitable education for the child.

    (2)

    In any case where the parent of the child fails to provide that education for the child, or is deemed by the Director-General to be unable to provide that education, the Director-General may direct that the child be sent to such special school or other institution providing special education as he thinks fit.

    (3)

    Where any such direction is given by the Director-General in respect of any child, any parent of the child may, within 28 days after the date on which a parent of the child has been informed of the direction, appeal to a District Court Judge against the direction, and the Magistrate may suspend or vary or rescind or confirm the direction.

    [The remainder of the section required the parent to contribute to the cost of the child’s maintenance as agreed or determined by a Magistrate and provided for the administration of the schooling.]

    EDUCATION AMENDMENT ACT (NO 2) 1987

    [Never in force: repealed by 1989 Act]

    11.

    Equal Rights To Education—

    112A.

    (1)

    Except as provided in section 114 of this Act (which empowers the Director-General to require a child to enrol in a special school, class, or clinic, or receive tuition or assistance from a special service), persons with special educational needs (whether by reason of disability or otherwise) have the same rights to enrol and receive education at institutions established under this Act as persons without such needs.

    (2)

    Nothing in subsection (1) of this section affects or limits the effect of sections 129 and 129A of this Act (which relate to limitations on enrolment at schools) or sections 130 to 130DA of this Act (which relate to the suspension and expulsion of pupils).

    12.

    New sections substituted—

    114.

    Special education

    (1)

    Subject to the provisions of this Act, where the Director-General is satisfied (after any special examination of the child concerned that the Director-General requires by any person authorised b the Director-General for the purpose) that any child requires special tuition or assistance in a special school, class, or clinic, or from a service, established under this Act, the Director-General shall –

    (a)

    Agree with the child’s parents that the child should be enrolled there or, as the case may be, receive tuition or assistance from the service; or

    (b)

    Require them to enrol the child there or, as the case may be, ensure that the child receives tuition or assistance from the service.

    (2)

    Subject to section 115(3) of this Act, a parent who, after the expiration of one month after the making of a requirement under subsection 1(b) of this section, fails or refuses to comply with the requirement commits an offence, and is liable on summary conviction to the penalty prescribed by section 116 of this Act for failure to enrol a child on the register of a school.

    (3)

    An agreement of requirement under subsection (1) of this section shall have effect notwithstanding anything in section 129 or section 129A of this Act.

    (4)

    No child shall be enrolled at a special school, class, or clinic, or receive tuition or assistance from a service, established under this Act except pursuant to an agreement or requirement under subsection 1 of this section.

    115.

    Right of reconsideration

    (1)

    Subject to paragraphs (m) and (n) of subsection (6) of this section, a child’s parent may, in accordance with this section, require the reconsideration of –

    (a)

    Any requirement in respect of the child under section 111(1) or section 114(1)(b) of this Act; or

    (b)

    The refusal of the Director-General to agree under section 114(1)(a) of this Act to the child’s enrolment at a special school, class or clinic, or receiving tuition or assistance from a service, established under this Act.

    [The remainder of this provision is similar in effect and in much of its wording to s10 of the 1989 Act, set out in part below]

    EDUCATION ACT 1989

    An Act to reform the administration of education

    Part 1 Rights to Primary and Secondary education

    3.

    Right to free primary and secondary education

    Except as provided in this Act or the Private Schools Conditional Integration Act 1975, every person who is not a foreign student is entitled to free enrolment and free education at any state school during the period beginning on the person's 5th birthday and ending on the 1st day of January after the person's 19th birthday.

    8.

    Equal rights to primary and secondary education

    (1)

    Except as provided in this Part of this Act, people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at state schools as people who do not.

    (2)

    Nothing in subsection (1) of this section affects or limits the effect of Part 2 of this Act (which relates to enrolment schemes and the suspension, expulsion, and exclusion of students).

    (3)

    Subsections (1) and (2) of this section come into force on the 1st day of January 1990.

    9.

    Special education

    (1)

    If satisfied that a person under 21 should have special education, the Secretary shall—

    (a) Agree with the person's parents that the person should be enrolled, or direct them to enrol the person, at a particular state school, special school, special class, or special clinic; or

    (b) Agree with the person's parents that the person should have, or direct them to ensure that the person has, education or help from a special service.

    (2)

    Notwithstanding anything in this Act that relates to enrolment schemes, or in the enrolment scheme of any school, but subject to the rest of Part 2 of this Act (which relates to the suspension, expulsion, and exclusion of students), where there has been an agreement or direction under subsection (1) of this section, the person concerned shall be allowed to enrol at the state school, special school, special class, or special clinic, concerned or (as the case requires) to have education or help from the special service concerned.

    (3)

    Subject to section 10(4) of this Act, where a direction has been given under subsection (1) of this section in respect of a person, a parent who, more than 1 month after it was given, fails or refuses to comply with it commits an offence, and is liable on summary conviction to the penalty prescribed for failing to comply with section 20(1) of this Act (which relates to enrolling children at school).

    (4)

    No person shall be or continue to be enrolled at a special school, special class, or special clinic, or have or continue to have education or help from a special service, except pursuant to an agreement or direction under subsection (1) of this section.

    (5)

    Notwithstanding anything in section 5 or section 6 of this Act,—

    (a)

    A child under 5 may be or continue to be enrolled at a primary school, or in a class below form III at a composite school; and

    (b)

    A person under 21 who turned 14 in any year may in any later year be or continue to be enrolled at a primary school, or in a class below form III at a composite school; and

    (c)

    A person under 21 who, in the opinion of the Secretary,—

    (i)

    Has not completed the work of form II; and

    (ii)

    Has not completed work equivalent to the work of form II,—

    may be or continue to be enrolled at a secondary school, or in a class above form II at a composite school; and

    (d)

    A person under 21 may be or continue to be enrolled at a secondary school, or in a class above form II at a composite school, on or after the 1st day of January after the person's 19th birthday,—

    pursuant to an agreement or direction under subsection (1) of this section.

    10.

    Right of reconsideration

    (1)

    Subject to paragraphs (p) and (q) of subsection (6) of this section, any person's parent may, in accordance with this section, require the reconsideration of—

    (a)

    Any direction under subsection (1) of section 9 of this Act relating to the person; or

    (b)

    If the person is not a foreign student, the Secretary's refusal to come to an agreement under that subsection relating to the person.

    (2)

    A requirement under subsection (1) of this section shall be made to the Secretary in writing within 1 month of the direction or refusal concerned.

    (3)

    Subject to subsection (5) of this section, where a requirement under subsection (1) of this section is made in respect of a direction given by the Secretary,—

    (a)

    The direction shall not take effect—

    (i)

    Until the Secretary has reconsidered and confirmed it; or

    (ii)

    Where a requirement is made under subsection (4)(c) of this section, until that requirement has been considered by an arbitrator and the parent concerned has been told of the arbitrator's decision; and

    (b)

    No offence is committed under section 9(3) of this Act for so long as the direction has not taken effect.

    (4)

    Where a requirement is made under subsection (1) of this section, the following provisions apply

    (a)

    If the requirement relates to a direction, the Secretary shall reconsider it and then—

    (i)

    Confirm it, or cancel it and issue another, or cancel it and refuse to issue another, as seems appropriate; and

    (ii)

    Notify the parent concerned in writing of the result of the reconsideration and the reasons for it.

    (b)

    If the requirement relates to a refusal, the Secretary shall reconsider whether or not the matter concerned should be agreed, and then—

    (i)

    Agree or refuse to agree to the matter with the parent concerned, as seems appropriate; and

    (ii)

    Notify the parent concerned in writing of the result of the reconsideration and the reasons for it

    (c)

    A parent who is dissatisfied with the result of the reconsideration may, by notice in writing to the Secretary, require the result to be sent to an arbitrator.

    [The remainder of the section provides for the appointment of an arbitrator, the procedure to be followed in the arbitration and its binding effect.]

    GLOSSARY

    FTTE Full time teacher equivalent

    ORRS Ongoing and Reviewable Resourcing Scheme

    ORS Ongoing Resourcing Scheme

    RTLB Resource Teachers of Learning and Behaviour

    SBI Severe Behaviour Initiative

    SE2000 Special Education 2000

    SEDA Special Education Discretion Assistance

    SEG Special Educational Grants

    SES Special Education Service

    SLI Speech Language Initiative

    TRS Transitional Resourcing Scheme


Cases

In re S (Minors) Care Order: Implementation of Care Plan [2002] 2 AC 291; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; R v East Sussex County Council, ex parte Tandy [1998] AC 714; Sinnott v Minister of Education [2001] 2 IR 505; State (Quinn) v Ryan [1965] IR 70

Legislations

Education Act 1989: s.3, s.8, s.9, s.10, s.20, s.25, s.26, s.60A

Education Act 1964: s.98, s.99, s.100, s.111

Education Amendment Act 1910: s.11, s.12

Education Amendment Act 1907: s.15

Education Act 1914: s.56

Education Act 1904: s.159

Education Act 1877: s.90

Lunatics Act 1882: s.2

New Zealand Bill of Rights Act 1990: s.19

Constitution: Art.40, Art.42

International Covenant on Economic, Social and Cultural Rights

National Education Guidelines

Authors and other references

Hon Dr Lockwood Smith (the Minister of Education), paper to a Cabinet Committee, September 1995

M B Parsons, S J Havill and D H Ross in Havill and D R Mitchell (eds) Issues in New Zealand Special Education (1972)

Dr C E Beeby (Director of Education: 1940-1960), Biography of an Idea (1992)

Commission on Education in New Zealand (chaired by Sir George Currie, the last Vice-Chancellor of the University of New Zealand), 1962

Thomas Committee on Education, the Post Primary School Curriculum, 1944

Hon Mr. Peter Fraser (Minister of Education), Annual Report 1938

Special Education 2000: Monitoring and evaluation of the policy: Phase Three (2002)

Representations

T Arnold QC, W G Liddell and A S Butler for Attorney-General (instructed by Crown Law Office, Wellington)

G M Illingworth and I C Bassett for the Respondents (instructed by P J McDonald, Auckland)

R E Harrison QC and D J Fleming for the Human Rights Commission as Intervener (instructed by D J Fleming, Human Rights Commission, Auckland)


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