SUBMISSION TO THE EDUCATION AND WORKFORCE COMMITTEE ON THE EDUCATION AMENDMENT BILL
INTRODUCTION AND SUMMARY
This submission is made by E Tipu e Rea Limited (E Tipu e Rea) in relation to the Education Amendment Bill (the Bill) and the proposal therein to repeal the provisions in the Education Act 1989 (the Act) enabling the establishment of Partnership Schools I Kura Hourua (Kura Hourua).
E Tipu e Rea opposes the Bill in respect of the proposed changes to Kura Hourua.
In summary, E Tipu e Rea believes that there is no strong policy justification for the wholesale repeal of the Kura Hourua model. Further, it is submitted that the proposal to disestablish Kura Hourua is inconsistent with the Crown’s obligations under the Treaty of Waitangi and its principles and will prejudice Māori. Initial indications are that Kura Hourua are presenting high levels of educational achievement amongst Māori Learners.
The Minister of Education has announced that over the next three years there will be a comprehensive review of the education system. It is unclear why specific amendments to Kura Hourua need to proceed separately and in advance of this broader review of the education system.
This submission addresses the Treaty issues raised by the proposed changes to Kura Hourua in the Bill and recommends that:
the Bill does not proceed;
further consideration is given to the impact of the proposed changes to Kura Hourua on Māori in light of the Crown’s Treaty obligations; and
the Crown engage with the schools and Māori communities to address these issues prior to any legislation being enacted.
E Tipu e Rea has consulted with and obtained the support of the operational and potential Kura Hourua in regard to this submission.
E Tipu e Rea wishes to be heard on this submission.
The contact details for E Tipu e Rea for the purposes of this submission are:
Chief Executive Officer
Phone: 021 337 377
BACKGROUND TO E TIPU E REA
E Tipu e Rea is a not-for-profit, non-political organisation that has been contracted by the Ministry of Education (the Ministry) to provide independent support to existing Partnership Schools, aspiring Partnership School sponsors, and Partnership Schools Kura Hourua that are in the process of opening.
E Tipu e Rea’s contract with the Ministry requires that E Tipu e Rea:
develop the pipeline of sponsors: engage with interested parties to promote the model and develop a diverse pool of potential sponsors;
support applicants: work with prospective sponsors to ensure that they put forward strong, realistic applications in any selection rounds;
provide ongoing support: support sponsors in the setting up and ongoing operation of their school;
broker support: act as a broker between potential and actual sponsors, and philanthropic or business organisations that might wish to support the Partnership School;
develop a pipeline of high-quality teachers and leaders to work in Partnership Schools. This might include providing professional development and matching suitable candidates with Partnership Schools.
THE PARTNERSHIP SCHOOL I KURA HOURUA MODEL
There are currently 11 Kura Hourua open in New Zealand. As of 2018, a further 3 Kura Hourua are yet to open.
The Kura Hourua model, introduced into the Act by the 2013 amendments, provides greater flexibility to schools established thereunder. Such flexibility is achieved in a variety of ways. For instance, Kura Hourua may set their own curriculum provided they use the vision, principles, values and key competencies of the New Zealand Curriculum or equivalent standards in Te Marautanga o Aotearoa. The requirement under the Act for all teachers to be registered is relaxed somewhat in respect of Kura Hourua, as well as the restrictions around salary conditions for teachers. Further, Kura Hourua are funded differently from State schools and receive bulk funding. This enables Kura Hourua to apply their funding in a way that delivers better learning outcomes for Priority Learners.
The key document for a Kura Hourua is the Agreement relating to Kura Hourua between the Crown (the Minister of Education) and the Sponsor (the Partnership Agreement), which records the terms and conditions upon which the Sponsor will operate and manage a Kura Hourua and the payments that the Minister will make to the Sponsor in consideration for the Sponsor’s operation and management of the Kura Hourua.
The 11 operational Kura Hourua are contractually required to have at least 75% of their enrolled students made up of Priority Learners. A key reason for this requirement was to address the under-achievement of Māori and Pacific students and students from low-income families in mainstream education. The school roll across the existing Kura Hourua is 75% Māori/Pacific. Some individual schools exceed that 75% threshold in terms of Māori enrolment.
Initial indications are that, generally, educational outcomes for Kura Hourua are better than in mainstream education. By way of example, based on 2016 NCEA data and interim 2017 data, the results of Kura Hourua secondary schools, Te Kapehu Whetu Terenga Paraoa and Vanguard Military School, are outstanding when compared to all New Zealand Schools. Similarly, Kura Hourua primary schools are achieving learning success at or above the national average of all New Zealand schools.
PROPOSED CHANGES TO KURA HOURUA
Education Amendment Bill
The Bill proposes to remove the Kura Hourua model from the education system. The Explanatory Note to the Bill states that the policy objective underlying this change is to “strengthen the quality of school education …”
Clause 10 of the Bill repeals Part 12A of the Act - the provisions enabling the establishment of Partnership Schools.
Clause 18 of the Bill amends Schedule 1 to the Act, inserting a transitional provision for existing Partnership Schools, which provides as follows:
In respect of any partnership school | kura hourua in existence immediately before the commencement of this clause, this Act applies as if sections 10, 18, and 20 of the Education Amendment Act 2018 had not come into force.
Despite subclause (1), section 158C does not apply.
This clause ceases to apply in respect of a partnership school | kura hourua on the earlier of—
the expiry of the partnership school contract for the school; and
the termination of the partnership school contract for the school.
The Bill, if enacted, will prevent the establishment of any new Kura Hourua, but it does not itself disestablish the existing Kura Hourua.
THE TREATY OF WATANGI AND THE TREATY PRINCIPLES
The principles of the Treaty of Waitangi, first articulated by the Court of Appeal in 1987 in New Zealand Māori Council v Attorney General (the Lands case),1 have developed significantly over time and are now the subject of extensive commentary from both the New Zealand courts and the Waitangi Tribunal (the Tribunal). The core Treaty principles that have emerged from Tribunal reports are as follows:
The Tribunal has considered the relationship between the principles of the Treaty and the provision of education services to Māori on numerous occasions. For the most part, this consideration has been in respect of historical treaty grievances relating to the Treaty compliance of education services in specific inquiry districts. The Tribunal has however also considered contemporary Treaty claims of more national scope relating to education in the Report on the Kōhanga Reo Claim (Wai 2336) and the Report on the Aotearoa Institute Claim concerning Te Wānanga o Aotearoa (Wai 1298).
In general terms, the Tribunal has found that the Crown owes obligations to Māori under the Treaty in respect of education. In relation to the proposed changes to Kura Hourua in the Bill, E Tipu e Rea submits that the principles of partnership, active protection and equity come into focus.
Partnership can be usefully regarded as an overarching tenet, from which the other key Treaty principles derive. The obligations of partnership broadly include the obligation to act reasonably, honourably, and in good faith.2
In the Te Whanau o Waipareira Report, the Tribunal observed that, “most of all the concept of partnership serves to answer questions about the extent to which the Crown should provide for Māori autonomy in the management of Māori affairs, and more particularly how Māori and the Crown should relate to each other that such issues might be resolved”.3
Further, the Tribunal noted that if no consideration is given to a Māori community’s values and aspirations in assessing the performance of Crown agencies, it cannot be said that the Crown and Māori are working together, nor that the principle of rangatiratanga has been maintained.
A key aspect of the principle of partnership is that the Crown undertakes good faith consultation with Māori on issues which affect Māori. The standard and manner of consultation is not necessarily fixed, but will depend on the issues in questions and the relative impact on Māori and Māori interests.
The Crown’s duty to protect Māori rights and interests arises from the plain meaning of the Treaty, the promises that were made at the time (and since) to secure the Treaty’s acceptance, and the principles of partnership and reciprocity. The Court of Appeal has stated that the duty “is not merely passive”.4 The Tribunal has found that active protection requires honourable conduct by, and fair process from, the Crown, and full consultation with – and, where appropriate, decision-making by – those whose interests are to be protected.
In more recent reports, the Tribunal has turned its attention to the Crown’s duty to protect Māori institutions and ways of life. In the Te Whānau o Waipareira Report, the Tribunal considered the Crown’s responsibilities to recognise and deal with non-traditional Māori groups, such as urban Māori authorities, as well as the tribes. In the course of its analysis, the Tribunal emphasised that: “The Treaty was directed to the protection of Māori interests generally and not merely to the classes of property interest specified in article 2”.5
The Tribunal has found that the obligations arising from kawanatanga, partnership, reciprocity, and active protection required the Crown to act fairly to both settlers and Māori – the interests of settlers could not be prioritised to the disadvantage of Māori. Where Māori have been disadvantaged, the principle of equity – in conjunction with the principles of active protection and redress – requires that active measures be taken to restore the balance.
The principle of equity also engages the promises in Article 3 of the Treaty, for which the Tribunal has noted “…article 3 contains two important messages…the protection of the Maori as a people and the assurance to them of equal citizenship rights”.6
TREATY ANALYSIS OF BILL
It is a requirement that Kura Hourua enrol Priority Learners, with a focus on Māori students who are not succeeding in the State system. The school roll across the existing Kura Hourua is 75% Māori/Pacific. Some individual schools exceed that 75% threshold in terms of Māori enrolment. Therefore, any changes to the Kura Hourua model will disproportionately affect Māori students.
The majority of the Sponsors are Māori trusts/incorporations, which have entered into Partnership Agreements with the Crown and have now invested time and money into developing Kura Hourua. The termination of the Partnership Agreements by the Crown will also affect those trust/incorporations and the Tribunal has found, in the context of the delivery of social services such as education, that the Crown owes duties to Māori entities under the Treaty.
The Bill states that the proposed changes to the Kura Hourua model are required to “strengthen the quality of education”. However, there is no compelling evidence that the existing Kura Hourua schools are not performing. This is recognised in the Regulatory Impact Summary (RIS) prepared by the Ministry of Education: “there are limitations relating to the problem definition, including the fact that there is limited information on the long term performance of schools in the PSKH [Kura Hourua] model”. On the contrary the evidence indicates the existing Kura Hourua are generally performing and students are succeeding in those schools.
Importantly, it is well evidenced that Māori students are underperforming in the State system. The Crown has a responsibility under the Treaty to provide adequate education services to Māori. This obligation derives from all three of the key Treaty principles discussed above: partnership; active protection; equity.
The diverse and often unique challenges for Māori in education arguably require a distinctive response from the Crown.7 The Crown’s proposed changes to the Kura Hourua model will prohibit the establishment of further Kura Hourua and will lead to either the closure of existing Kura Hourua or their transition back into the State system. In our view, this will prejudice Māori (in particular, those Māori students and parents who have chosen to enrol at Kura Hourua) in breach of the Treaty principles of partnership, active protection and equity, by repealing an educational framework that provides greater curriculum flexibility and enhances autonomy (rangatiratanga), while at the same time forcing Māori back into a system in which they have historically performed poorly.
As discussed, an important aspect of both the principles of partnership and active protection is that the Crown conducts meaningful consultation with Māori on issues that affect them (either directly or indirectly).
Here, there has been an absence of consultation with Māori on the proposed changes to the Kura Hourua model. In fact, in its RIS on the proposed legislative changes, the Ministry acknowledges that “There has been no public consultation and testing of the proposal to repeal the legislation allowing for PSKH [Kura Hourua]”. The fact that this was a commitment by the (now) Government during the election campaign does not negate the Crown’s duty to consult with Māori under the Treaty.
Further, there is a lack of clarity in the Bill and otherwise – both in terms of process and outcome - regarding what will happen to Kura Hourua in the proposed transition process.
Finally, at paragraph 3.2 of the Departmental Disclosure Statement (DDS) on the Bill, the Ministry outlines the steps that have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty. The Ministry does not identify the proposed changes to Kura Hourua as having any potential Treaty of Waitangi implications. For the reasons set out above, we believe this is a significant oversight.
E Tipu e Rea submits that, in order to meet its Treaty obligations the Crown should have undertaken a consultation process with affected Māori groups in respect of the Bill. That the Crown has not done so, nor recognised the potential Treaty implications of the proposed changes to Kura Hourua is concerning given the profound impact the proposed changes will have on those Māori groups identified earlier in the submission.
On 21 February 2018, the Minister announced that over the next three years there will be a comprehensive review of the education system. It is unclear why specific amendments to PSKH need to proceed separately and in advance of this broader review of the education system.
It is inexplicable that the Bill proposes to disestablish Kura Hourua before any alternative options have been considered and developed.
E Tipu e Rea therefore recommends that:
the Bill does not proceed;
further consideration is given to the impact of the proposed changes to Kura Hourua on Māori in light of the Crown’s Treaty obligations;
the Crown engage with the schools and Māori communities to address these issues prior to any legislation being enacted.
E Tipu e Rea wishes to appear before the Select Committee in order to speak to these submissions.
New Zealand Māori Council v Attorney General  1 NZLR 641 (the Lands case)
Waitangi Tribunal, Report of the Waitangi Tribunal on the Orakei Claim, 1987
Waitangi Tribunal, Te Whanau o Waipareira Report, 1998, p. 30
Te Whanau o Waipareira Report , p. 16
Ibid, p. 21
See for instance Waitangi Tribunal: The Whanganui Land Report; Report on the Kōhanga Reo Claim; Report on the Aotearoa Institute Claim concerning Te Wānanga o Aotearoa