The Education and Workforce Committee has examined the Education and Training Amendment Bill (No 3) and recommends by majority that it be passed. We recommend all amendments unanimously.

The bill would amend the Education and Training Act 2020. Most notably, it would establish a new governance framework for wānanga that better recognises their mana and rangatiratanga. The bill would enable existing wānanga, by Order in Council, to reconstitute themselves as a Crown entity, or convert to a non-Crown entity. The bill would amend the Act to:

• articulate the characteristics that collectively define wānanga

• set out establishment and disestablishment provisions

• set out what must, and may, be covered within an Order in Council

• provide for new accountability and monitoring arrangements for wānanga that are not Crown entities.

The bill would also amend the Act to:

• permit the Ministry of Education to access early childhood service data from Statistics New Zealand in order to implement the new equity index

• alter school board ineligibility criteria, including by:

  • making people convicted of an offence specified in Schedule 2 of the Children’s Act 2014 ineligible to serve on a school board (unless the Secretary for Education provides an exemption)

  • enabling the Secretary for Education to audit school board members to determine whether they meet eligibility requirements

  • requiring board members to permit the Secretary for Education to obtain any relevant information to enable an audit to be conducted

• change election processes for school boards, including by:

  • moving the timing of the next mid-term elections

  • stating that school boards, as far as is reasonably practicable, should reflect the genders, sexualities, and sexes of their students and school community, and the diversity of disabled students at the school and of the school’s disability community

  • allowing schools to fill vacancies in student representative positions

• alter the status of Kura Kaupapa Māori so they are no longer treated simply as designated character schools

• ensure employers of licensed early childhood services and schools consider the results of Police vetting for non-teaching employees and contractors before employees begin work or before contractors have unsupervised access to children

• restrict the chief executive for Te Aho o Te Kura Pounamu to a term of up to 5 years, with the ability to reappoint for further terms

• require universities and wānanga to include in their annual report information on employee (including the chief executive) remuneration of $100,000 or more per year

• allow members of the governing council of Te Pūkenga to remain in their positions until they are either reappointed or replaced, as is the case for other Crown entities such as universities

• make a number of minor and technical amendments.

As part of our consideration of the bill, we have examined its consistency with principles of legislative design. We initially had some queries, but are satisfied that they have been addressed.¹

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Provisions related to tertiary education and vocational education and training are dealt with in Part 4 of the Education and Training Act. Clause 9 of the bill would insert Part 4A (proposed sections 398A to 398ZF). This new part concerns wānanga and their establishment, modification, and administration.

Te Wānanga o Aotearoa expressed concern about having provisions related to wānanga in a separate part of the legislation. It considered that this would risk creating a perception that wānanga are moving away from being tertiary education institutions. We acknowledge this concern.

For the avoidance of doubt, we wish to state that wānanga would continue to be tertiary education institutions, with the same legal status as universities and Te Pūkenga, if they are dealt with in their own part of the Act. Wānanga would continue to meet the definition of tertiary education institution contained in section 10(1) of the Act.

Section 390 of the Act protects the use of the terms “university”, “polytechnic”, and “institute of technology”. It is an offence for a person to use these terms unless they meet certain requirements. All three wānanga told us the term “wānanga” should similarly be a protected term.

We agree, in principle, that “wānanga” should be a protected term. It is plainly inequitable for the terms “university”, “polytechnic”, and “institute of technology” to be protected, but not “wānanga”. However, there has not been adequate consultation and robust policy development for this proposal. Without that work, we risk producing unclear or inconsistent legislation that could give rise to legal challenges or other unintended consequences. We also understand that the wānanga would prefer that the bill be passed into law without legal protections for the term “wānanga”, rather than slow the process.

For these reasons, we recommend that, as a matter of priority, the Government undertake full consultation and policy work with the aim of legally protecting the term “wānanga”.

Te Wānanga o Aotearoa recommended replacing the terms “Crown entity wānanga” with “Wānanga Tāhūhono”, and “non-Crown entity wānanga” with “Wānanga Tāhūtahi”. Te Wānanga o Aotearoa felt the constant use of the English terms throughout the legislation would unduly emphasise the relationship wānanga have with the Crown, to the detriment of the relationship wānanga have with their founding iwi and the communities they serve. It felt this would be inconsistent with the aims of the bill.

We were advised that, while they supported changing the English terms, not all wānanga supported the specific alternatives proposed by Te Wānanga o Aotearoa. One wānanga wanted to consult its founding iwi and mātanga reo (language experts).

There is insufficient time at this stage of the legislative process to reach consensus about alternative terms for Crown entity wānanga and non-Crown entity wānanga. Therefore, as a first step, we recommend amendments to refer to:

• wānanga that are Crown entities as category A wānanga

• wānanga that are not Crown entities as category B wānanga

• existing wānanga that have not been reconstituted or converted by an Order in Council as category C wānanga.

These placeholder terms would mean that emphasis was not placed on the Crown and its relationship with wānanga.

We accept, however, that these placeholder terms lack depth of meaning or any symbolism. We therefore also recommend inserting a regulation-making power into the bill that would allow the placeholder terms to be replaced by terms specified in an Order in Council made on the recommendation of the Minister (proposed Schedule 1 clause 89(6)). The Minister’s recommendation would itself be based on a recommendation from Te Tauihu o Ngā Wānanga (an association of representatives from the three wānanga).

This provision would allow the wānanga time to agree on terms that they deem appropriate. Once agreed, the legislation could be amended to use the new terms.

We acknowledge that it is generally undesirable to allow primary legislation to be amended using secondary legislation (commonly referred to as a Henry VIII clause). We believe it is justified in this case given the symbolic importance of the terms to wānanga, and because replacing the placeholder terms would not change their legal meaning.

We note that there is precedent for this type of provision. A similar provision exists in section 314 of the Act, which was used to rename the New Zealand Institute of Skills and Technology as Te Pūkenga—New Zealand Institute of Skills and Technology.

Proposed section 398J would allow the Governor-General, by Order in Council, to establish a wānanga as an institution that is not a Crown entity (a category B wānanga). Proposed section 398J(3) sets out what must be contained in an order, including what the wānanga must do to ensure adequate accountability for effective governance and administration (398J(3)(h)).

We recommend expanding this provision so that an order must require wānanga to prepare annual financial statements and audited statements of performance. These documents should be prepared in accordance with generally accepted accounting practice, within the meaning of section 8 of the Financial Reporting Act 2013. We recommend similar amendments to new Part 5 of Schedule 1 of the Act, which clause 36 would insert.

We also recommend inserting new paragraph (l) into proposed section 398J(3). This would require the wānanga to publish an annual report on an Internet site, including remuneration data. The report must include the number of employees or former employees (including the chief executive) who received remuneration of $100,000 or more. This should include compensation or other benefits, and be reported in brackets of $10,000 increments.

Proposed section 398Y would allow the Governor-General to disestablish a wānanga, by Order in Council made on the recommendation of the Minister of Education. Proposed section 398Y(4) would not allow the Minister to recommend the disestablishment of a wānanga that is not a Crown entity (a category B wānanga) unless certain requirements are met.

We recommend amending proposed section 398Y(4) so that the iwi, hapū, or Māori organisations that are primarily accountable for the wānanga are instrumental in the Minister’s decision whether to disestablish a wānanga.

Section 40 of the Public Works Act 1981 sets certain conditions whereby land must be offered back to the person from whom it was acquired (or to the successor of that person) if it is no longer required for a public work (in this case, tertiary education).

Proposed section 398ZC of the bill concerns the vesting of property of disestablished wānanga. To avoid ambiguity, we recommend inserting subsection (7). This would provide that, if property is vested in iwi or Māori under section 398ZC, they would be responsible for any obligations under section 40 of the Public Works Act.

We also recommend amending proposed section 398ZC to refer to property being vested in the Crown, rather than the Minister. This would be more accurate.

Proposed section 398S provides that a wānanga that is not a Crown entity (a category B wānanga) is a public entity as defined in section 4 of the Public Audit Act 2001. We understand that the usual process would be to amend Schedule 1 of the Public Audit Act, which lists classes of public entities. We therefore recommend inserting “wānanga that are not Crown entities” into Schedule 1 of the Public Audit Act.

Section 306 of the Act requires universities and wānanga to give the Minister of Education an annual report. Subsection (4) sets out what must be included in it. Clause 25 would insert paragraph (g), requiring universities and wānanga to also report the number of employees (including the chief executive and former employees) who received remuneration of $100,000 or more in the year to which the report relates.

Universities and wānanga already report information to the Public Service Commission about high employee salaries. This proposed change would make reporting requirements for universities and wānanga consistent with those for Te Pūkenga, schools, and other Crown entities.

In the bill as introduced, compensation or other benefits given to employees would have been excluded from reporting. To increase transparency, we believe they should be included in the reporting, and recommend amending clause 25 to this effect.

Section 54 of the Data and Statistics Act 2022 imposes requirements on each individual who works at a public sector agency and is authorised to access Statistics New Zealand data. One requirement imposed on these individuals is to “take all reasonable steps to ensure that they do not publish or otherwise disclose data in a form that could reasonably be expected to identify any individual or organisation” (section 54(1)(c)).

Clause 31 of the bill would insert section 548A into the Education and Training Act. This section would enable the individuals at the Ministry of Education who are authorised to access Statistics New Zealand data to disclose data to the wider ministry, despite section 54(1)(c) of the Data and Statistics Act. We understand that the data to be disclosed would be the equity index number of each early childhood service. This number is a measure of socio-economic circumstance and would be used by the wider ministry to determine how much funding each service would receive.

We understand that it is not intended that data about individual children or families would be disclosed under this proposal. To prevent this possibility, we recommend amending clause 31, proposed section 548A(1), to specify that the ministry could only publish or disclose data at the level of an early childhood service.

We also recommend amending proposed section 548A(1)(b) so that data containing personal information (as defined in section 7(1) of the Privacy Act 2020) could not be published or disclosed unless a service provider, who is an individual, has consented. This change would account for sole traders, about whom any information is considered to be personal information, even when it relates to the service they operate.

We consider that our above recommendations would strengthen the bill from a privacy perspective.

Clause 34 would replace section 638(2)(e) of the Act. This would allow regulations to be made that authorise the Minister of Education to determine, by notice, matters relating to school opening hours. We recommend inserting clause 34(2) into the bill, which would insert standard language into the Act specifying that a notice issued by the Minister would be secondary legislation.

Schedule 4 of the Act requires early childhood education service providers, boards of State schools and kura, and managers of private schools to obtain a Police vet for non-teaching and unregistered employees and contractors who are not children’s workers. Clause 37 of the bill would amend the Act to explicitly require service providers and schools to consider the information contained in the Police vet to assess whether the person would pose a safety risk to children.

We acknowledge concerns expressed about a lack of guidance or criteria to be used when considering the Police vet and assessing risk. To address these concerns, we recommend amending clause 37 to require service providers, boards, and managers to take into account guidelines issued by the Ministry of Education when they undertake a risk assessment.

This would be similar to the Children’s (Requirements for Safety Checks of Children’s Workers) Regulations 2015, which require decision-makers to take into account any guidelines on risk assessments issued by a key agency.

School boards can choose to supplement their elected membership by co-opting additional members. In 2020, roughly 5 percent of board members were co-opted. A board cannot co-opt a member if it would mean that there were more co-opted and appointed members than parent representatives.

Schedule 23 clause 1 of the Act sets out a list of criteria that, as far as is reasonably practicable, every school board should reflect. Clause 38 of the bill would amend the listed criteria to also include:

• “the genders, sexualities, and sexes of the student body of the school and within the community served by the school” (proposed clause 1(1)(a)(ii))

• “the diversity of disabled students at the school and of the school’s disability community” (proposed clause 1(1)(a)(iia)).

Most submissions we received on this bill were about school board co-option and appointment. Most were opposed to the proposed changes. We wish to stress that co-option has been and would continue to be optional. Schools have the flexibility to use co-option in ways that suit their communities. We do not consider that co-option has undermined democratic accountability, nor would this bill.

National Party and ACT Party members of the committee believe that the make-up of school boards should be skills based and reflect their community and that this should be set out in legislation. However, attempting to list every possible characteristic, as this bill does, is not appropriate and can in fact be problematic.

The legislation should simply state that, as far as is reasonably practicable, every board should reflect “the diversity of their students and school community”.

These members also believe the bill should have been delayed in order for the wānanga to agree on alternative terms for Crown entity wānanga and non-Crown entity wānanga. These members are also concerned about the proposed Order in Council mechanism that would be used to replace the placeholder terms.

These members are disappointed that the term “wānanga” is not being protected as part of this bill.