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Ford v Board of Trustees for Smith Primary School [2021] NZCA 363; [2021] 3 NZLR 738 (2 August 2021)
Last Updated: 25 October 2022
For a Court ready (fee required) version please follow this link
NOTE: THE IDENTITY OF THE APPELLANT, THE CHILD AND THE SCHOOL IS
PERMANENTLY SUPPRESSED.
CONFIDENTIALITY ORDERS APPLY TO THE EVIDENCE FILED. THE FILE IS NOT TO
BE SEARCHED WITHOUT LEAVE OF A JUDGE OF THIS
COURT.
|
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
|
|
BETWEEN
|
FORD
Appellant
|
AND
|
BOARD OF TRUSTEES FOR SMITH PRIMARY SCHOOL
Respondent
|
Hearing:
|
8 July 2021
|
Court:
|
Brown, Clifford and Goddard JJ
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Counsel:
|
A S Butler and S W H Fletcher for Appellant P A Robertson and C T Child for
Respondent
S P Connolly and A M Piaggi for Secretary for Education as Intervener
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Judgment:
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15 July 2021 at 3.00 pm
|
Reasons:
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2 August 2021
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JUDGMENT OF THE COURT
A The appellant’s application to adduce
further evidence is declined. B The appeal is allowed.
- The
following declarations are made:
(i) The purported revocation of the appellant’s place at Smith Primary
School was unlawful.
FORD v BOARD OF TRUSTEES FOR SMITH PRIMARY SCHOOL [2021] NZCA 363 [15 July
2021]
(ii) The offer letter remains valid and the appellant is
entitled to enrol at Smith Primary School in accordance with ss 33 and 74(2)(a)
of the Education and Training Act 2020 on Monday 26 July 2021 or on such later
date as may be agreed by the appellant’s parents
and Smith Primary
School.
- The
respondent must pay the appellant costs for a standard appeal on a band A
basis with usual disbursements. We certify for two
counsel.
- Direction
under r 5(2) of the Senior Courts (Access to Court Documents) Rules 2017 that
documents or files of any kind related to
the appeal may not be accessed, except
by the parties, without permission of this Court.
Table of Contents
Para No
Introduction [1]
The statutory scheme [7]
Relevant facts [17]
The enrolment scheme [17]
Bella’s application [22]
The decision to withdraw the offer of a place [27]
The High Court judgment [30]
Issue on appeal [35]
The application to adduce further evidence [37]
Submissions [38]
Appellant’s submissions [38]
Respondent’s submissions [40]
Submissions of the Secretary [44]
Enrolment schemes: an overview [50]
The home zone [51]
In-zone students [53]
Out-of-zone students [56]
The present case [61]
Analysis [64]
Text [65]
Purpose [75]
Conclusion [86]
Relief [89]
Result [91]
REASONS OF THE COURT
(Given by Brown J)
Introduction
- [1] The
appellant (Bella), who turned five in July this year, wishes to attend Smith
Primary School (the School) where her elder sister
is already a student. The
School has an enrolment scheme specifying a home zone. Because she lives out of
the School’s home
zone Bella has no automatic entitlement to enrol at the
School but may apply for a place there.
- [2] On her
parents’ application Bella was offered a place at the School for Term 3 in
2021 which her parents accepted on or
about 28 August 2020.1
However on 19 March 2021 the School principal advised Bella’s
parents that, due to unexpected numbers of home zone enrolments,
the School
could not proceed with out-of-zone enrolments and Bella’s offer was
rescinded.
- [3] Bella’s
parents applied for judicial review of the decision that Bella was not entitled
to enrol at the School. They sought
declarations that the decision was unlawful,
that the offer of a place at the School remained valid and that Bella was
entitled to
enrol at the School.
- [4] While
accepting that the offer of a place at the School was the exercise of a
statutory power and the lawfulness of the withdrawal
of an offer was reviewable,
the High Court ruled that it would be inconsistent with the scheme of the
Education and Training Act
2020 (the 2020 Act) to adopt an interpretation which
prevented a school from revisiting an offer prior to a child being actually
enrolled. The application for review was declined.2
- [5] Bella now
appeals. The issue on the appeal is one of statutory interpretation: can a
school with an enrolment scheme lawfully
withdraw an unqualified offer to an
out-of-zone student of a place at the school? As in the High Court, the
Secretary of Education
(the Secretary) was granted leave to intervene.
1 Approximately 11 months before Bella’s fifth birthday.
2 Ford v A School Board of Trustees [2021] NZHC 1608 [High
Court judgment].
- [6] Given the
impending enrolment day the parties indicated that it would be advantageous to
receive a result judgment. Consequently
on 15 July 2021 we issued a result
judgment with reasons to follow.3 These are the reasons.
The statutory scheme
- [7] New
Zealand children of school age are entitled to free education. The starting
point is s 33(1) of the 2020 Act:4
Except as provided in this Part, every domestic student is entitled to free
enrolment and free education at any State school during
the period beginning on
the student’s fifth birthday and ending on 1 January after the
student’s 19th birthday.
However the right to attend any State school is qualified in relation to schools
which have an enrolment scheme.
- [8] Enrolment
schemes were provided for in the Education Act 1989 (the 1989 Act) as originally
enacted but at that point did not apply
to primary schools.5 Since
then there have been multiple iterations of enrolment schemes. The most recent
change came with the Education Amendment Act
2000 which substituted a new set of
relevant provisions (ss 11A to 11PB). It was these provisions which were in
force at the date
of introduction of the enrolment scheme the subject of this
appeal.
- [9] The 1989 Act
was repealed and replaced by the current Act which in large part came into force
on 1 August 2020. However the provisions
relating to enrolment schemes, most of
which are contained in sch 20, did not come into force until 1 January 2021.
Hence when on
28 August 2020 Bella’s parents accepted the School’s
offer, the 1989 Act applied. By the date of the purported withdrawal
of the
offer in March 2021 the relevant parts of the 2020 Act had come into force. In
this judgment we will generally refer to the
2020 Act and footnote the
equivalent provision in the 1989 Act, except where in the context it is
necessary to refer specifically
to the 1989 Act.
3 Ford v Board of Trustees for Smith Primary School [2021]
NZCA 321.
- Section
33 came into force on 1 August 2020, the day after the date on which the Act
received the Royal assent. Its predecessor, s
3 of the Education Act 1989 (1989
Act), was in essentially similar terms.
5 See s 12 of the
1989 Act as originally enacted.
- [10] Save in two
respects, s 11D of the 1989 Act was materially the same as s 74 of the current
Act which relevantly provides:6
74 How enrolment schemes work
(1) A person who lives in the home zone of a State school that has an
enrolment scheme is entitled to enrol at that school.
(2) An applicant for enrolment at a school with an enrolment scheme who lives
outside the school’s home zone is entitled to
enrol at the school
only—
(a) if the applicant is offered a place at the school in accordance with the
procedure set out in the enrolment scheme;
...
- [11] If
overcrowding7 occurs or is likely to occur at a State school, the
Secretary must establish an enrolment scheme for the school8 which
defines by geographic boundaries a home zone for the school9 and
complies with sch 20 of the Act.10 Section 71 states the purposes and
principles of an enrolment scheme:11
71 Purpose and principles
(1) The purpose of the enrolment scheme of a State school is—
(a) to avoid overcrowding, or the likelihood of overcrowding, at the school;
and
(b) to ensure that the selection of applicants for enrolment at the school is
carried out in a fair and transparent manner; and
(c) to enable the Secretary to make the best use of existing networks of State
schools.
(2) In achieving its purpose, the enrolment scheme of every State school
must, as far as possible, ensure that—
(a) the scheme does not exclude local students; and
(b) no more students are excluded from the school than is necessary to avoid
overcrowding at the school.
- The
former section was headed “Effect of home zone”. Also s 11D(1)
commenced with the words, “Subject to the provisions
of this
Act”.
- Overcrowding
means the attendance at the school of more students than its site or facilities
can reasonably be expected to take: Education
and Training Act 2020, s 10(1)
(2020 Act).
8 Section 72(1).
- Section
73(a); and sch 20, cl 1(1). This must be an area for which the school is a
reasonably convenient school for a student living
in that area to attend: sch
20, cl 1(2)(a).
10 Section 72(2).
11 Section 11A was the equivalent provision in the 1989 Act.
- [12] The
requirements of proposed enrolment schemes are spelled out in cl 5 of sch
20:
5 Requirements relating to proposed enrolment schemes
An enrolment scheme for a State school—
(a) must comply with the purpose and principles of enrolment schemes set out in
section 71; and
(b) must define the school’s home zone in the enrolment scheme in a way
that ensures that students can attend a reasonably
convenient school; and
(c) may have boundaries for its school’s home zone that overlap or are
contiguous with the boundaries of the home zone of any
adjacent State school
that has an enrolment scheme; and
(d) must promote the best use of the network of State schools in the area.
The equivalent provision in the 1989 Act12 required the Secretary to
additionally be satisfied that:
(e) the procedures for determining which applicants who live outside the home
zone will be offered places at the school comply with
section 11F and any
instructions issued under section 11G; and
(f) the Board has carried out adequate consultation under section 11H.
- [13] Six
priority groups are specified determining the order of priority in which
applicants who live out-of-zone are to be offered
places at a school.13
Second priority must be given to any applicant who is a sibling of a
current student at the school. If there are more applicants
in a priority
group than available places, selection within the priority groups must be by
ballot.14
- [14] Clause 2(5)
of sch 20 states:15
An application for enrolment at a school with an enrolment scheme must be
processed by the school in accordance with the enrolment
scheme, and may not be
declined on technical grounds or on any other ground that would be inconsistent
with the purpose and principles
set out in section 71.
12 Section 11I(1).
13 2020 Act, sch 20, cl 2(1).
- Schedule
20, cl 2(2). This is except for the first priority group for applicants accepted
into a special programme run by the school.
15 Section
11F(5) was the equivalent provision in the 1989 Act.
- [15] Clause 3
addresses instructions and guidelines on the operation of enrolment
schemes.16 With reference to instructions cl 3(1) states:
3 Instructions and guidelines on operation of enrolment schemes
(1) The Secretary may issue instructions to State schools that have enrolment
schemes about the following matters:
(a) the procedures for holding ballots:
(b) the dates on which ballots are to be held:
(c) the establishment and maintenance of waiting lists:
(d) the information to be given to applicants who live outside the
school’s home zone:
(e) any other matter that the Secretary considers necessary for ensuring the
fair, transparent, and efficient operation of enrolment
schemes.
Schools must comply with instructions issued under cl 3(1).17
- [16] With
respect to guidelines, cl 3(3) states:
(3) The Secretary may issue guidelines to State schools about either or both
of the following matters:
(a) the basis on which the Secretary’s powers in relation to enrolment
schemes may be exercised (including, in particular,
the power in clause 14(2)(a)
relating to the determination of whether an applicant lives within a home zone
or outside it);
(b) the manner in which schools must conduct reviews under clause 13 (which
relates to the review of a student’s enrolment).
Relevant facts
The enrolment scheme
- [17] From the
commencement of the 2002 school year, an enrolment scheme has operated at Smith
Primary School. The introduction of
the scheme was prompted by excessive
pressure on classroom spaces in 2001, primarily through the new entrant
intake.
16 Section 11G was the equivalent provision in the 1989 Act.
17 Clause 3(2)(a).
- [18] The
enrolment scheme description, which was among a bundle of documents provided by
counsel for the Secretary subsequent to the
hearing in response to our request,
specified the scope of the School’s home zone, recorded that the School
does not run a
special programme18 and provided as follows for
out-of-zone enrolments:
Out of Zone Enrolments
Each year the Board of Trustees will determine the number of places which are
likely to be available in the following year for the
enrolment of students who
live outside the home zone. The Board will publish this information by notice in
a daily or community newspaper
circulating in the area served by the school. The
notice will indicate how applications are to be made and will specify a date by
which all applications must be received.
Applications for enrolments will be processed in the following order of
priority:
[The priority categories were then explained].
If there are more applicants in the second, third, fourth or fifth priority
groups than there are places available, Selection within
the priority group will
be by ballot conducted in accordance with instructions by the Secretary. Under
Section 11G(1) [of] the Education
Act 1989. Parents will be informed of the date
of any ballot by notice in a daily or community newspaper circulating in the
area
served by the school.
- [19] Counsel for
the Secretary also provided copies of two documents which we will discuss
further below. First, instructions relating
to the operation of enrolment
schemes issued by the Secretary under s 11G(1) of the 1989 Act on 5 May 2011 and
amended on 14 July 2017 (the Instructions) which were the instructions in force
during 2020 when Bella’s application
was processed.19 They
stated that schools with an enrolment scheme must comply with those
instructions.
- [20] Secondly,
the bundle included a copy of the Guidelines for the development and operation
of enrolment schemes for State Schools
dated September 2017 issued by the
Secretary under s 11G(3) of the 1989 Act (the Guidelines). These Guidelines
explained that to
assist schools the Ministry had developed a pro forma
enrolment
18 Hence the first of the six statutory priority categories did
not apply.
19 We have not seen the instructions which applied at the time the
School’s enrolment scheme was implemented. However we record
that a letter
from the Ministry of Education to the School Board conveying approval of the
School’s enrolment scheme stated:
When you are preparing for a ballot to select out of zone students, please
pay particular attention to the requirements contained
in the Secretary’s
Instructions relating to the operation of enrolment schemes.
scheme at appendix 1. Appendix 2 contained draft notices, administrative
documents and letters to parents for use by boards of trustees.
- [21] We note
that corresponding with the 2020 Act there are new versions of both the
Instructions and Guidelines dated December 2020
and effective from 1 January
2021. However for the purpose of this judgment we have referred to those
provided by the Secretary that
were in force when the offer was made.
Bella’s application
- [22] The School
principal deposed that a newspaper advertisement is usually a
parent’s first interaction with the enrolment
scheme and attached an
advertisement which the principal said Bella’s parents were likely to have
seen. However that advertisement
was dated September 2019 and related to
enrolments for 2020. There was no advertisement in evidence relating to the 2021
year and
in light of the principal’s further evidence it may be doubted
whether there was an advertisement in 2020. Bella’s mother
deposed that
neither she nor her husband had seen one.
- [23] The
principal deposed that by August 2020 the principal determined that the School
could not hold a ballot for out-of-zone applicants
in 2021 because there were
insufficient spaces available. Rather, the principal determined that all of the
available places in the
School should be assigned to in-zone students on the
pre-enrolment list as well as siblings of current students. The principal
explained
that 2020 was the first year that the School had not held a ballot
since its establishment.
- [24] On or about
18 August 2020 the principal wrote to several parents advising them that the
School would not be holding a ballot
for out-of-zone students because all of the
places available would be filled by siblings of current students. However the
principal’s
evidence did not explain the process of communication with the
parents of those out-of-zone students who were to be offered places.
Bella’s mother deposed that the School approached them personally to
confirm that Bella was applying for a place as a sibling
of a current
student.
- [25] What is not
in dispute is that the principal sent to Bella’s parents a letter dated 25
August 2020 which stated:
Thank you for your application for enrolment of [Bella] at [Smith Primary]
School.
This year we will not be holding a ballot for out-of-zone students as all of
the places available will be filled by siblings of current
students, therefore I
am able to offer [Bella] a place at our school for next year.
As we have adopted a Cohort Policy, [Bella] will be eligible to start at the
beginning of Term 3 on Monday 26 July 2021, however we
will discuss this with
you closer to the time.
Please confirm your acceptance of the place in writing, or alternatively
indicate that you will not be taking up the offer. A tear-off
slip is provided
for your convenience. Your reply must reach the school no later
than 14 November 2020.
I look forward to hearing from you.
- [26] On or about
28 August 2020 Bella’s parents accepted the offer. However almost seven
months later on 19 March 2021 the School
principal informed Bella’s
parents that the School could not proceed with the five out-of-zone
enrolments.
The decision to withdraw the offer of a place
- [27] The
circumstances giving rise to that decision to withdraw the offer to Bella were
explained by Simon France J as follows:20
(a) The optimum roll for Smith Primary School is 208. However, overcrowding is a
more complex analysis depending upon the numbers,
for example, at each level.
The Ministry sets ratios for the school for each year, which presently are:
Year 1 – one teacher in one teaching space with 15 students;
Years 2 and 3 – one teacher in each teaching space with 23 students;
and
Years 4–8 – one teacher in each teaching space with 29
students.
(b) Smith Primary School has three teaching spaces for Years 1–3.
It needs four, as it has 85 students. The School
is this year using a lined
garage out of which to teach the 15 Year 1 students. It is a limited space, and
is neither a designed
classroom nor a designated teaching space. The curriculum
is limited by this. Some aspects of the curriculum must be taught elsewhere
20 High Court judgment, above n 2.
meaning the students have to move to other spaces and at times just fit in
with the other 70 children in their space.
(c) 2020 was not a typical year. One of the neighbouring schools was
experiencing overcrowding so decided not to advertise at all
for out-of-zone
applications. It is seeking to review its home area zone to address the issue;
this will have potential knock-on
effects to neighbouring schools. Another
neighbouring school has no numbers issues so did not have a ballot process for
the opposite
reasons, namely that all applicants would be accepted.
(d) Smith Primary School estimated likely home zone numbers and thought it could
accommodate all the out-of-zone applications in
priority group [two], being
those with siblings at school. Accordingly no ballot for group [two] was done,
but all five applicants
were offered places. This is the first time a ballot has
not been held. It was expected the school would not reach capacity until
Term 4,
2021.
(e) The principal, however, deposes:
The influx of students we received over the December 2020 to March 2021
period was simply unprecedented. We have never seen this kind
of growth in the
School nor in the wider ‘home-zone’ population.
(f) The school received six unexpected home zone applications between August and
December 2020. It was thought at the time that this
could be accommodated but
then at the start of 2021, a further seven were received. This led the school to
conclude it was not viable
to maintain the out-of-zone Year 1 offers.
(g) The principal identifies several reasons for withdrawing the offer of
enrolment:
(a) the increased numbers;
(b) the pressure currently on staff, students, and resources. The school is
described as stretched and struggling to accommodate
existing students;
(c) the workload on the new entrant teacher, and on external agencies that
assist;
(d) the current poor building resource for existing Year 1 students; and
(e) planned classroom remodelling in the balance of 2021.
- [28] With
reference to the offer letter, the School principal maintained that the advice
of a place was conditional on a further review
of the roll. Drawing specific
attention to the words “eligible” and “however” in the
third paragraph, it
was said that Bella’s start date was subject to
further review and negotiation with her parents.
- [29] When the
decision was made that it was no longer viable to enrol Bella and the other
out-of-zone children with siblings at the
School, the principal conferred with
a Ministry of Education adviser who confirmed that the course of action proposed
by the School
was the correct one.
The High Court judgment
- [30] Bella,
through her parents as litigation guardians, applied for review of the decision
to withdraw the offer of a place at the
School, contending that the offer letter
met the requirements of s 74(2)(a) of the 2020 Act and the School had no lawful
basis for
revoking the offer. The School responded that:
(a) the offer was made on the implied condition that there were sufficient
places available for out-of-zone children once all in-zone
students enrolled;
(b) nothing in the offer letter guaranteed Bella an absolute right of enrolment
under s 33;
(c) the School had reason to believe the enrolling of Bella was likely to cause
overcrowding and therefore the Act required that
Bella not be enrolled;
(d) the School was informed by the Secretary that it would be unlawful to enrol
Bella due to overcrowding and the School withdrew
the offer of enrolment on the
advice and guidance of the Secretary.
- [31] However, as
Simon France J recorded, by the end of the hearing it was accepted that the
School’s letter was not expressed
in conditional terms.21 Thus
the issue was whether the Act should be interpreted as conferring a power to
revisit an offer of a place made without qualification.
21 High Court judgment, above n 2, at [33].
- [32] Emphasising
the presence of the same phrase “entitled to enrol” in both s 74(1)
and (2), Bella argued that the scheme
of the Act is one of absolutely expressed
entitlements. It followed that, when a student accepts the offer of an
out-of-zone place,
the change in status from an absence of eligibility to enrol
to one of an entitlement to enrol is equivalent to an absolute home
zone
enrolment entitlement.22
- [33] While
recognising that that interpretation was clearly tenable, the Judge preferred
the interpretation advanced by the School
and the Secretary that there is a
difference between the status of enrolment, which accords many rights, and the
pre-enrolment
processes, which should not be viewed as creating binding
contracts that force a school to overload its classes with consequent impacts
on
existing students and staff.23 The Judge considered that
Bella’s interpretation was inconsistent with the purposes of the Act,
including to avoid overcrowding,
and gave insufficient weight to the fact that
the home zone entitlement does not arise before a child turns
five.24
- [34] The Judge
concluded:
- [47] Concerning
a school operating an enrolment scheme, rights to enrol will not completely vest
until the child is five. It is at
that date a home zone student must live in the
area, and at that date an out-of-zone student must have an offered place. It is
necessary
and sensible to operate a pre-enrolment process for out-of-zone
students that offers places to children in advance of their fifth
birthday.
While the normal expectation, and no doubt experience, is that such offers are
honoured, it would be inconsistent with
the scheme of the Act, and the purpose
of enrolment schemes, to interpret the Act as preventing a school from ever
revisiting an
offer prior to the child being actually enrolled.
- [48] The
circumstances in which an offer [can] be lawfully withdrawn are likely to be
very limited. There is no doubt that the decision
was properly taken in the
present case.
Issue on appeal
- [35] Bella
challenged the judgment on several grounds, identifying the following
errors:
(a) in departing from “normal interpretation principles” when
interpreting section 74 of the Education and Training Act
2020 (“the
Act”), and
22 At [28].
23 At [31].
24 At [35]–[36].
holding that the meaning of the phrase “entitled to enrol” in
section 74(2) was different to the meaning of the phrase
“entitled to
enrol” in section 74(1) (Judgment at [34]);
(b) in failing to address the effect of section 33 of the Act, which gives all
children a right to attend “any” school,
and in particular in
failing to address the effect of section 33 on the purpose of the Act;
(c) in finding that there was a power available for boards of trustees to revoke
or withdraw places offered to out-of-zone students,
despite section 74(2) of the
Act and the absence of any statutory power permitting revocation or withdrawal
(Judgment at [47]–[48]);
(d) in failing to follow this Court’s judgment in Goulding v Chief
Executive, Ministry of Fisheries [2003] NZCA 244; [2004] 3 NZLR 173 (CA), where this Court
held that final decisions which affect citizens’ rights are
“irrevocable”; and
(e) in failing to address ... the fact that express discretionary powers to
affect enrolment rights for students are generally vested
in the Secretary of
Education (not boards of trustees), and the circumstances in which they can be
exercised are tightly circumscribed
(compare Judgment at [46]–[48]).
- [36] However,
relief considerations aside, in our view the sole issue on the appeal is whether
the statute empowers a school to withdraw
an unqualified offer of a place at the
school made to an out-of-zone applicant under s 74(2)(a).25
The application to adduce further evidence
- [37] An
application was made to adduce what was described as an updating affidavit of
Bella’s mother to which was annexed a
paginated bundle of documents. The
apparent purpose of the affidavit was to identify “the other affected
families” and
to make clear that neither of Bella’s parents had
acted in breach of the suppression orders made in the High Court. However
that
evidence is not cogent in respect of the issues of law raised by the appeal. Nor
is there any suggestion in the submissions
of the respondent that the conduct of
Bella’s parents bears on issues of relief. Consequently the application to
adduce further
evidence is declined.
25 Or under s 11D(2)(a) of the 1989 Act if the offer was made
prior to 1 January 2021.
Submissions
Appellant’s submissions
- [38] Mr Butler
for Bella reprised his argument that s 74(1) and (2)(a) each confers an
entitlement to enrol, albeit on different groups
of students, as the phrase
“entitled to enrol” links back to the right recognised in s 33.
Reading ss 33 and 74 together
he submitted there is clearly an
“entitlement” to attend “any” State school but, where an
enrolment scheme
is in place, that entitlement is subject to the requirements
outlined in s 74. Enrolment schemes, which are a response to actual
or potential
overcrowding, create home zones and through them the concepts of in-zone and
out-of-zone students. However his argument
was that s 74 does not permit a
school to invoke overcrowding in order to deny the rights of enrolment it
confers. To the contrary,
s 74 explains that both groups of students are
entitled to enrol despite the existence of an enrolment scheme, that is, despite
there
having been recognition of likely or actual overcrowding.
- [39] Mr Butler
then submitted that there is no express power in the 2020 Act to revoke places
given to out-of-zone students. The Act
provides for discretionary powers to
affect individual students’ rights in a range of situations. Those
discretionary powers
permit the overriding of the default position
vis-à-vis zoning pursuant to s 74(2)(b) but only the Secretary is
permitted
to exercise them. Furthermore such powers are almost always subject to
statutory safeguards such as consultation and specific regulation
making powers
to oversee how they should be used in practice. While accepting that in highly
circumscribed situations the courts
can correct the text of legislation, in his
view the prerequisites to the use of that power are not present in this
case.26
Respondent’s submissions
- [40] For the
respondent Mr Robertson accepted that the offer of a place in the School’s
letter to Bella’s parents was
unconditional and that the decision to offer
her a place was a final decision. However he submitted that the purposes of the
2020
Act make it clear that a school must avoid overcrowding, ensure the health
and safety of
26 See Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1
WLR 586 (HL) at 592: “The court must be able to correct obvious drafting
errors. In suitable cases, in discharging its interpretative function
the court
will add words, or omit words or substitute words.”
all students and enrol children in a manner that is commensurate with available
resources. There were four strands to his argument.
- [41] First he
drew attention to the fact that cl 2 of sch 20 draws a distinction between
children who are offered a place at a school
during a pre-enrolment process and
those who are entitled to enrol, pointing out that no child has any entitlement
to enrol until
they turn five years of age. He submitted there is a difference
between a status of enrolment, which brings with it rights to receive
education
at a particular school, and a pre-enrolment process which assesses eligibility
for enrolment but does not lock in any rights
until enrolment occurs. Hence it
was said that Bella could not have any right to enrol until she turned
five.
- [42] Secondly it
was submitted that cl 2, which generally sets out the power of the School to
accept an enrolment application, must
carry with it the implied power to revoke
the acceptance of an application, citing s 15 of the Interpretation Act 1999.
That proposition
was said to be reinforced by the terms of cl 2(5). The
entitlement of the Secretary to review a School’s decision to decline
an
application for enrolment under cl 14(2)(b) was said to provide a
“backstop” to the exercise of powers granted to
schools even though
the review power may only be exercised in exceptional
circumstances.27
- [43] Thirdly
reliance was placed upon the power to correct errors provided in s 13 of the
Interpretation Act. Finally, a strong submission
was advanced that the
circumstances of this case weighed in favour of the Court declining relief, for
to do otherwise would disproportionately
impact enrolled students who already
have vested rights to an education at the School which must be given priority
over the rights
of others. It was submitted that it was necessary for the School
to balance the interests of current students, in-zone applicants
and out-of-zone
applicants. Of those, the out-of-zone applicants had the lowest priority and
therefore it was entirely appropriate
and reasonable for the School to withdraw
the offers made to Bella and others in her priority category.
27 Clause 14(3).
Submissions of the Secretary
- [44] For the
Secretary Mr Connolly likewise advanced the submission that a board of trustees
is entitled to withdraw an offer of a
place to an out-of-zone student if
circumstances change (for example because the board considers it has become
necessary to do so
to avoid overcrowding), in which event the student is not
entitled to enrol on the otherwise applicable enrolment day. However, in
contrast to the respondent’s argument, Mr Connolly contended that outcome
followed simply from the correct interpretation of
s 74(2)(a) in the context
of the statutory scheme. His interpretation relied on two
propositions:
(a) First, s 74(2)(a) applies only if there is an “extant” offer to
the applicant at the relevant enrolment date.
(b) Second, an offer made prior to enrolment is by its very nature
“conditional” in the sense that it is contingent on
the School in
fact having sufficient places at the time when the applicant intends to
enrol.
- [45] Two aspects
of the statutory text were relied upon in support of that interpretation. First
Mr Connolly reiterated the point
made by Mr Robertson that enrolment occurs only
on actual presentation by attendance at the school which cannot occur prior to a
child’s fifth birthday. He submitted that it is only at that time, on
enrolment day, that the question arises whether the relevant
statutory criteria
are satisfied. Mr Connolly emphasised that the interpretation favoured by the
Secretary resulted in the phrase
“entitled to enrol” having a
consistent meaning in both s 74(1) and (2)(a).
- [46] Secondly
reliance was placed on the fact that s 74(2)(a) uses the phrase “is
offered a place”. The adoption
of the present tense was said to support an
interpretation that required that there be an extant offer on the relevant
enrolment
day. Parliament could have used, but chose not to, the expression
“has been offered a place”.
- [47] It was
submitted for the Secretary that the process for enrolment is dynamic and there
is no perfect way for a board of trustees
to balance giving reasonable
assurances to parents of out-of-zone applicants while also ensuring as far as
possible that a school is not overcrowded. The fact
that pre-enrolment offers to
out-of-zone children are by their nature conditional was said to be a necessary
implication in light
of the relevant statutory scheme. Mr Connolly maintained
that the ability of a board to withdraw an offer does not require the reading
in
of a statutory power not given to the board by Parliament. Rather, the ability
to withdraw an offer was said to be simply a tool
available to the board of a
State school in the management of its enrolment scheme in much the same way as
the maintenance of a waiting
list.
- [48] The
negative implications of the case for Bella were highlighted:
- The
interpretation of s 74(2)(a) advanced by the appellant, whereby offers made
prior to enrolment dates cannot be withdrawn, but
instead guarantee an
entitlement to enrol once made, would compromise the ability of boards to
discharge their obligation to avoid
(or at least reduce) overcrowding by using
the primary tool at their disposal for that purpose: excluding out-of-zone
applicants
from enrolment. This would likely result in greater incidences of
overcrowding and/or boards adopting overly conservative enrolment
practices (for
example by tending to underestimate likely available places for out-of-zone
children).
- [49] The
preferred approach of the Secretary was summarised as follows:
- By
contrast, the interpretation advanced by the Secretary supports the ability of
boards to discharge their obligations and perform
the balancing act required of
them in doing so. In particular, it recognises that enrolment schemes are an
iterative and ongoing
process operating on the basis of two important
distinctions. The first distinction is between in-zone and out-of-zone children.
The second distinction is between the time period prior to enrolment and the
time at which enrolment occurs.
Enrolment schemes: an overview
- [50] We
commence with some observations about the manner in which the legislation
envisages an enrolment scheme will operate.
The home zone
- [51] The
interests of “local students” (a term which is not defined) are
sought to be safeguarded by the requirement in
s 71(2)(a) that an enrolment
scheme must as far as possible ensure that in achieving its purpose of avoiding
overcrowding it does
not
exclude local students. The means of securing the objective of balancing the
interests of local students with the avoidance of overcrowding
is by the drawing
of the geographical boundaries of the home zone defined in the enrolment
scheme. Any student within that
home zone has (what the Instructions describe
as) “an absolute right of enrolment” at the school.28 As
the Guidelines explain:29
It is important to understand, however, that the need to avoid overcrowding
does not take precedence over the rights of enrolment
that are guaranteed to
in-zone students. This means that the board must determine a roll figure around
which it can manage overcrowding
while at the same time providing for the
enrolment of all students who apply for enrolment from within the home zone.
When the board
draws up a home zone, it must do so with the capacity of the
school in mind.
- [52] The
Guidelines describe an enrolment scheme as a “tool” that enables a
board to prevent overcrowding at its school.30 However once the home
zone is defined by the enrolment scheme, the use of the enrolment scheme as such
a tool is spent so far as limiting
the numbers of in-zone students is concerned.
In order to exclude local students from the school in the future it would be
necessary
to amend the enrolment scheme under sch 20, cl 9(1) of the 2020 Act by
altering the geographical boundaries of the home zone.
In-zone students
- [53] The
legislation envisages both pre-enrolment and enrolment events.31 As
the Guidelines explain:32
Pre-enrolment processes include the process of applying for entry to the
school and, potentially, being accepted for enrolment. “Enrolment”,
on the other hand, occurs when attendance at the school commences and the
student is first marked as present on the school roll.
- [54] Section s
74 envisages applications by out-of-zone students. The legislation also
contemplates that in-zone students may participate
in a pre-enrolment process
by
- Commentary
to Instructions 1 and 34. Similarly the Guidelines refer to “an absolute
entitlement”: at 3.
29 At 4.
30 At 4–5.
31 See for example sch 20, cls 6(3)(b) and cl 11 of the 2020
Act.
- At
14. The verb “enrol” is defined in s 10(1) of the 2020 Act to
include “admit”, with “enrolment”
and
“enrolled” having corresponding meanings.
submitting either an application for enrolment33 or a
“pre-enrolment form”.34 However the Guidelines make clear
that a board cannot insist on pre-enrolments by in-zone students:35
A board cannot require applications for enrolment from in-zone students to be
made by a certain date, because the legislation gives
an absolute right of
enrolment to any student who lives within the home zone.
Almost certainly, however, boards will wish to receive such applications by
the same date set for receipt of out-of-zone applications,
because boards have
to quantify the number of places likely to be available for out-of-zone students
before proceeding to a ballot.
Therefore the board may include indicative dates
for pre-enrolment of home zone students in the same notice as that giving
information
to out-of-zone applicants.
The Instructions further state that applications by in-zone students made
subsequent to the pre-enrolment period must be accepted36 unlike
out-of-zone students who cannot be enrolled unless a new ballot is
arranged.37
- [55] The pro
forma enrolment scheme at appendix 1 of the Guidelines includes a non-compulsory
paragraph providing for applications
for enrolment by in-zone students. Although
the School’s enrolment scheme did not incorporate that provision, it
appears from
the 2019 advertisement exhibited to the principal’s affidavit
that the School did adopt the practice of advising parents of
in-zone students
that they also should apply for enrolment so as to assist the School to plan
appropriately for the following year.38
Out-of-zone students
- [56] Section
74(2)(a) envisages that an enrolment scheme will set out a procedure for
offering places at the school to out-of-zone
applicants. The pro forma enrolment
scheme in appendix 1 of the Guidelines is reflected in the School’s
enrolment scheme39
33 Clause 14(2)(a).
34 Clause 12(1).
35 At 14–15.
36 Instruction 29.
37 Instruction 30.
- The
draft newspaper notice in appendix 2 of the Guidelines included such advice to
parents of in-zone students.
- At
[18] above, save for the paragraphs in the pro forma scheme addressing special
programme priority.
and states that the published notice will indicate how applications are to be
made and by when.
- [57] The process
is elaborated upon in Instructions 15 and 20:
INSTRUCTIONS BALLOTS
...
|
COMMENTARY
...
|
15. Each of the second, third, fourth, fifth and sixth priority groupings
must be considered in turn. If the number of applicants
within a particular
priority grouping is less than the total number of remaining available places,
all applicants within the grouping
must be offered enrolment. Otherwise, a
ballot will be required, and all applicants within the grouping must be included
in the ballot.
...
|
A couple of examples may be helpful. Let us suppose that a secondary school
determines that it has 40 spaces available at year 9 for
out of zone students in
the following year. Let us also suppose that of the 70 out of zone applications
that it receives, 6 are from
siblings of present students. All of these must be
enrolled. The next to be considered are siblings of former students, of which
there are 9. All of these must be enrolled. Similarly the 2 children of board
employees must also be enrolled. This leaves 53 other
students, who must be
balloted because only 23 places remain.
...
|
20. Names drawn in the ballot must be recorded in the order in which they
are drawn, up to the limit of the number of places available
(either in total or
at a particular level, as the case may be). Beyond that point, names must be
recorded on a waiting list in the
order in which they are drawn in
the ballot. ...
|
...
|
- [58] The
commentary to Instruction 20 states that if there are no places available for
any of the applicants within a particular priority
group, a ballot of those
applicants will still be needed in order to establish a waiting list, because
vacant places may open up
later. It will be recalled that the establishment and
maintenance of waiting lists is
a matter on which the Secretary may issue instructions.40 The role of
the waiting list is evident in Instruction 24:
PROCEDURES SUBSEQUENT TO BALLOTS
...
|
COMMENTARY
|
24. If parents of successful applicants decline to accept the places
offered, or fail to respond within the 14 day period, the board
must offer the
vacant places to unsuccessful applicants in the order in which their names are
recorded on the waiting list. This
process should continue until all available
places (as specified by the board at the date of the ballot) have been filled or
no names
remain on the waiting list.
|
...
|
- [59] Consistent
with the content of those Instructions, appendix 2 of the Guidelines contains
the following draft letters:
(a) To parents of an out-of-zone applicant unsuccessful in a ballot:
A ballot has recently been held for places available for out of zone students
and I regret to have to inform you that < name > was not
successful. The names of unsuccessful applicants were listed in the order in
which they were drawn in the ballot and
were then placed on a waiting list. <
Name > is number < give number > on the waiting list.
I have asked parents of successful applicants to inform me within 14 days
whether or not they wish to accept the place that has
been offered. Any vacant
places that result from this process will be offered to unsuccessful applicants
in the order in which their
names appear on the waiting list.
(b) To parents of an out-of-zone applicant successful in a ballot:
A ballot has recently been held for places available for out-of-zone students
and I am pleased to be able to inform you that <
name > was
successful. I am therefore able to offer him/her a place at our school for next
year (or “in the next enrolment intake”).
40 2020 Act, sch 20, cl 3(1)(c). See at [15] above.
You will appreciate that a number of applicants were not successful in the
ballot. Please confirm your acceptance of the place in
writing, or alternatively
indicate that you will not be taking up the offer. A tear-off slip is provided
for your convenience. Your
reply must reach the school no later than < a
date that is 14 days from the date on this letter >. If confirmation is
not received by this date, the place will be offered to the person currently at
the head of the waiting list
of applicants who were unsuccessful in the
ballot.
(c) To parents of an out-of-zone applicant when no ballot was necessary:
The number of out-of-zone applications that the board received was fewer than
the number of places that are expected to be available
for out-of-zone students.
I am therefore pleased to be able to offer
< name > a place at our school for next year (or “in
the next enrolment intake”).
Please confirm your acceptance of the place in writing, or alternatively
indicate that you will not be taking up the offer.
A tear-off slip is
provided for your convenience. Please reply by < a date that is 14 days
from the date on this letter > to assist us with forward planning.
The tear-off slip in the second and third letters provided two options:
acceptance or rejection of the offer of a place at the School.
- [60] We draw
attention to the fact that in the second and third draft letters the offer of a
place at the School is unqualified: in
particular it is not expressed to be
contingent on the actual number of in-zone students who might enrol.
The present case
- [61] As
suggested above41 it does not appear that the published notice
procedure was followed by the School in 2020. There would have been no reason
for the
School to do so given that a decision had been made not to hold a
ballot. Logically it must follow, absent a ballot of applicants
within a
priority category, that no waiting list was established in August
2020.
- [62] Instead the
principal sent two forms of letter. The first was to all the out-of-zone
applicants, other than the five who were
siblings of current students at the
School, stating that it would be unnecessary to hold a ballot because all the
places
41 At [22]–[23].
available were filled by the siblings. It inquired whether the parents would
like their child to go in the ballot for 2022. There
was no reference to a
waiting list.
- [63] The second
letter to the parents of the five siblings was in the terms of the letter to
Bella’s parents recited above.42 Like the second and third
draft letters above, the offer of a place at the School was unqualified and
required acceptance or rejection.
The suggestion that the letter could be read
as conditional was abandoned in the High Court43 and it was accepted
by Mr Robertson in this Court that it was unconditional.44
Analysis
- [64] Against
that backdrop we turn to consider the parties’ contentions on the issue of
whether the Act should be interpreted
as conferring a power to withdraw an
unqualified offer of a place at a school made to an out-of-zone applicant under
s 74(2)(a).
The answer is to be determined by the text and purpose analysis
directed by the Supreme Court in Commerce Commission v Fonterra Co-operative
Group Ltd.45
Text
- [65] The
contention that the statutory language supported the interpretation that all
offers made under s 74(2)(a) can be withdrawn
prior to the event of enrolment
was advanced by the Secretary. As far as we can glean it was not run in the High
Court. Primarily
the argument hinged on the use of the present tense expression
“is offered a place”. That proposition was necessarily
reliant on
the submission that enrolment only occurs on presentation at the school by way
of attendance with the consequence that
that is the relevant date for
determining whether the statutory criteria are satisfied.
- [66] We do not
question the point that the date of actual enrolment is the date of first
attendance at a school as a pupil. As earlier
noted46 the various
steps preparatory
42 At [25].
43 At [31] above.
44 At [40] above.
- Commerce
Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR
767 at [22].
46 At [53] above.
to enrolment which are detailed in the Instructions and Guidelines are
part of a pre-enrolment process. We note that both
s 74(1) and (2) speak of
the relevant person being “entitled to enrol”, which phrase was the
focus of argument in the
High Court. We will shortly revisit the significance of
this point in the context of the argument advanced by both the respondent
and
the Secretary based on Bella’s age.
- [67] The thrust
of the Secretary’s argument is that the present tense expression is
intended to convey that s 74(2)(a) applies
only if there is an
“extant” offer to the out-of-zone applicant at the relevant
enrolment date. Attention is drawn to
the use of the past tense in s 74(2)(b),
the point being made that in subs (2)(a) Parliament could have used, but did not
use, the
expression “has been offered a place”.
- [68] We do not
consider that the use of the present or past tense should be significant in the
interpretation of s 74(2)(a). We read
the subsection as meaning that, if the
school decides there will be a place available for an out-of-zone student and
offers that
place which is then accepted by the student, an entitlement then
arises to enrol in due course on enrolment day.
- [69] It is a
distortion of language to endeavour to read the wording of s 74(2)(a) as meaning
that the applicant must be in a continuing
constant state of being offered a
place at the School, which endures until the enrolment date finally arrives. In
our view the making
of an offer of a place at a school is a single event, not an
ongoing state of affairs. A limited time for acceptance of the offer
is
stipulated in the offer letter. As Instruction 24 makes clear, in circumstances
where the offer is the consequence of a ballot,
a failure to respond to the
offer will result in its expiry.
- [70] It is
convenient at this juncture to engage with the argument that turned on the point
that Bella’s application was made
prior to her fifth birthday. The
Secretary’s argument was expressed in this way:
30. First, ... enrolment cannot occur prior to a child’s fifth birthday
and enrolment occurs only on presentation at the school
for attendance. It is at
that time, ie the enrolment day, that whether the relevant statutory criteria
are satisfied should be tested.
As the High Court noted the appellant’s
interpretation would give insufficient weight to the timing of enrolment and how
subsection
(1) applies for in-zone children. By contrast, the Secretary’s
interpretation means that the meaning of
“entitled to enrol” is determined consistently in subsection (1)
and subsection (2)(a).
(Footnote omitted.)
- [71] The High
Court had considered that Bella’s interpretation of the statute had some
strength as a consequence of the use
of the same expression “entitled to
enrol” in describing the status of both an in-zone student and an
out-of-zone student
who had received an offer of a place.47 In the
passage to which the Secretary’s submission referred in support of the
argument as to the statutory meaning the Judge
stated:
[35] That said, the applicant’s case gives insufficient weight to the
fact that the home zone entitlement does not arise before
a child turns five. It
is at that date, or any date subsequent, that a child can present themselves.
This matters because here the
applicant is contending that Bella had an
irrevocable right from a date not long after her fourth birthday. In that sense
it seeks
to accord a greater status to the out-of-zone child with an offer than
the home zone child has. The home zone child must remain resident
yet Bella is
said to be absolutely entitled.
- [72] We do not
share the Judge’s view as to the relative status of the two children. The
making of an offer to an out-of-zone
applicant is a function of the
pre-enrolment process which the legislation recognises. Upon acceptance of the
offer an entitlement
to enrol then arises. The absolute entitlement of the
in-zone student is also conferred by the statute but it has a residency
requirement
that applies as at the date of enrolment. As the Guidelines
stated:
Retention of entitlement to enrolment
The determination of validity of an enrolment of an in-zone student, or
enrolment of an out-of-zone student subsequent to a pre-enrolment
selection
process, is determined at the date of enrolment, which is the first day of
attendance consequent on the pre-enrolment process.
Once enrolled, the student
is entitled to remain enrolled at the school until the end of the
student’s schooling (for the year
levels provided by the school), unless
the enrolment is annulled under section 11O, terminated under another provision
of the Act,
or the student enrols at another school.
This means, for example, that if a student was living in-zone at the time of
enrolment, but the student and family later move to an
out-of-zone address in
circumstances where there is no ground for annulment under s 11O (i.e. it is not
a case of a temporary residence
being used for the purpose of gaining enrolment)
then the student is entitled to remain enrolled until completion of their
schooling.
47 High Court judgment, above n 2, at [34].
- [73] The fact
that the pathway for the out-of-zone applicant necessarily involves a
pre-enrolment process which is determined in
advance of the enrolment date does
not lend support to the Secretary’s argument that an offer made under s
74(2)(a) must be
viewed as unilaterally revocable by the School at any time
prior to enrolment day.
- [74] The
argument that sought to invoke the restriction in s 62(a) on the enrolment of
children under the age of five years we see
as a red herring.48 As Mr
Butler put it, it would make no sense in the statutory scheme if offers in
respect of new entrants could be revoked at any time
up until their fifth
birthday whereas an offer to an out-of-zone Year 9 could not be revoked.
Bella’s chrysalis state does
not prevent her acquiring an entitlement to
enrol at the later date permitted by s 62(a). The fact that she was only four
years old
did not render her entitlement to enrol vulnerable to revocation
pending her fifth birthday.
Purpose
- [75] The
starting point is the statement of purpose and principles in s 71. The
objective of avoiding overcrowding or the
likelihood of overcrowding49
will be addressed in the first instance by the geographical scope of the
home zone. That zone will be drawn having regard to the directives
in s 71(2)
that the enrolment scheme does not exclude local students and that no more
students are excluded from the school than
is necessary to avoid overcrowding.
However once that home zone is defined, then the die is cast in terms of the
availability of
an absolute entitlement to enrol for local students. All the
in-zone students will be entitled to enrol and hence no selection process
applies to them.
- [76] It follows
that the purpose in s 71(1)(b), of ensuring that the selection of applicants for
enrolment is carried out in a fair
and transparent manner, is solely concerned
with the manner in which out-of-zone students may be considered for enrolment.
Fairness
and transparency are also listed as considerations for the Secretary in
issuing Instructions on the operation of enrolment schemes.50
That
48 See the Secretary’s submission at [70] above.
49 2020 Act, s 71(1)(a).
50 Schedule 20, clause 3(1)(e).
objective is in effect reiterated in cl 2(5) of sch 20 in requiring that
enrolment applications must be processed consistently with
the s 71 purpose and
principles.
- [77] We consider
that fairness and transparency in the selection of out-of-zone applicants for
enrolment is sought to be achieved
in the legislation in a number of ways. First
there is the six-fold order of priority specified in sch 20, cl 2(1) in which
applicants
are to be offered places at a school. Secondly there is the
advertising of the pre-enrolment process and the related balloting procedure,
the details of which are specified with singular precision in the Instructions.
Thirdly there is the related waiting list process
which again is addressed in
some detail in the Instructions.
- [78] We have
already touched upon the first and second matters but the concept of the waiting
list was not explored to any significant
degree in the parties’
submissions. The waiting list will comprise the out-of-zone applicants who were
unsuccessful in the
ballot procedure. As Instruction 24 notes, the board must
offer vacant places to unsuccessful applicants in the order in which their
names
are recorded on the waiting list. It is notable that a copy of the waiting list
for places at a school must be available for
inspection at the school at all
reasonable times.51 The significance of the waiting list and an
out-of-zone applicant’s place on the list is also demonstrated by the
first of the
quoted draft letters from appendix 252 which informs the
parents of the unsuccessful applicant not only of the fact of their inclusion
but also their location on the list.
- [79] We consider
that for out-of-zone applicants the legislation envisages a binary scheme: an
applicant is either offered a place
at the school pursuant to s 74(2)(a) or the
applicant is recorded on a waiting list in the order in which that applicant was
drawn
in a ballot. The waiting list will reduce if and when vacancies arise and
offers are made to previously unsuccessful applicants.
The waiting list is a
one-way street in the sense that an applicant’s position on the list, as
notified in the relevant letter,
can only improve. It cannot be
relegated.
51 Schedule 20, clause 6(4)(c).
52 At [59] above.
- [80] In our view
the Secretary’s contention that a board is entitled to withdraw an offer
once made would cut across the binary
structure which the legislation
contemplates and would undermine the objectives of enrolment schemes. If an
offer previously made
was withdrawn, then that applicant would need to be
entered on the waiting list. Presumably such an applicant would be expected to
have priority over those already on the waiting list rather than being allocated
the last spot. Consequently all those already on
the waiting list would be
relegated to accommodate offerees who had been displaced consequent upon the
withdrawal of their offers.
We do not consider that can have been the intention
of the legislature and there is no support for such a scenario in the
statute,
the Instructions or the Guidelines. We comment below on the
implications of this analysis for offers of places pursuant to s 74(2)(a)
which
are expressly conditional.53
- [81] We reject
the Secretary’s submission that the ability to withdraw an offer is simply
a tool available to the board of a
State school in the management of its
enrolment scheme, in much the same way as the maintenance of a waiting list.
Indeed, at least
in theory, the concept of the offer of revocable places could
avoid the need for a waiting list altogether because offers could be
made to all
out-of-zone applicants and such offers could be progressively withdrawn as the
in-zone enrolment position became clearer.
Such a scheme would be opaque in the
sense that there would be no waiting list available for inspection at the
school. Nor is it
apparent by what process a decision would be made as to the
sequence in which offers would be recalled. In our view such a process
would
fail the objective of transparency and there is a grave risk that it would also
not be fair.
- [82] This
predicament was avoided in the present case by the decision to withdraw the
offers made to all five of the sibling applicants.
However it is instructive to
reflect on what process the board would have followed, or the Ministry might
have advised, had the number
of in-zone applications necessitated the withdrawal
of (say) only two of the five offers. How would that have been managed given
that the decision was earlier made not to hold a ballot?
53 At [84]–[85] below.
- [83] In that
regard there was a telling observation in the following passage from the
principal’s affidavit;
52. This matter has never been about the enrolment of just one more
student to me. This is about the potential enrolment of 5 additional
‘out-of-zone’ students, who are all in the same position (and six
‘in-zone’ students, who are entitled to
enrol, and are already
straining the School’s capacity). There is no way for me to pick and
choose which of the five ‘out-of-zone’
applicants may be enrolled if
a place becomes available, so I determined that it was appropriate and fair for
me to advise all 5
applicants of the same outcome; being that they are unable to
enrol in Term 3 and should defer enrolment until Term 1, 2022.
Interestingly the affidavit further stated that all five applicants are now
numbers one to five on the School’s priority list
and that Bella is
currently in number one spot.
- [84] As earlier
noted54 the suggestion that the particular offer to Bella of a place
was conditional in its terms was not pursued on appeal and the conditional
status of s 74(2)(a) offers was advanced solely on a statutory footing.
Consequently the concept of an offer expressly formulated
on the basis that it
was conditional upon an available place on enrolment day was not a live issue
before us and hence we did not
have the benefit of submissions on that issue
from the parties or, importantly, the Secretary.
- [85] Matters
which submissions on that issue would need to address would include the
relationship (if any) between such conditional
arrangements and the waiting
list, particularly given the manner in which the Instructions direct the list is
to be formed, and the
statutory requirement that the waiting list be available
for inspection at schools at all reasonable times. Both those matters, but
particularly the latter, have significant implications for the second statutory
purpose in s 71(1)(b) relating to the selection of
applicants for enrolment in a
fair and transparent manner. If the scenario of an expressly conditional offer
had been before us,
we would have wished to explore how the acceptance of such
offers would impact on the waiting list, whether an offeree’s name
would
be removed from the waiting list, if so whether on revocation of an offer the
applicant’s name would be reinstated to
the waiting list and the manner
and extent to which other applicants would be able to ascertain the existence of
such conditional
placements.
54 At [40].
Conclusion
- [86] The purpose
cross-check reinforces our conclusion on the textual meaning of s 74, namely
that an unqualified offer of a place
to an out-of-zone applicant may not be
withdrawn even though the eventual number of in-zone enrolments is considered to
cause overcrowding
at a school. It follows that the School’s purported
decision to withdraw the offer to Bella of a place at the School which
was
accepted by her parents was unlawful. The advice that appears to have been given
by Ministry of Education officials to the contrary
on a number of occasions was
incorrect.
- [87] For
completeness we briefly address the other arguments that were advanced in
response to the appeal. We do not consider that
there was any error in the
exercise of the power to make an offer under s 74(2)(a) which would render it
susceptible to correction
under s 13 of the Interpretation Act. Nor do we accept
that s 15 of the Interpretation Act provides support for the proposition that
the power of a school to accept an enrolment application must carry with it the
implied power to revoke such acceptance. Nor does
the implied power argument
gain support from cl 2(5) upon which the respondent relied to justify withdrawal
of Bella’s offer.
The offer of a place at the School and the acceptance of
that offer were made in accordance with the enrolment scheme. While the
overcrowding implications of the subsequent surge in in-zone enrolments is
unfortunate, it does not provide a basis under cl 2(5)
for purporting to
withdraw an accepted offer.
- [88] Our
conclusion is consistent with the common law principles governing the finality
of administrative decisions, as explained
by this Court in Goulding v Chief
Executive, Ministry of Fisheries.55 Unless the statutory context
suggests otherwise, an administrative decision will generally be treated as
perfected, and incapable
of being revisited, once it has been made and
communicated to the person to whom the decision relates.56 That is
the point at which, in the absence of an indication to the contrary in the
relevant legislation, “the conflicting interests
of flexibility in
administration and of citizens having reasonable certainty concerning matters
affecting them, are mutually accommodated
to the best overall advantage in the
public interest”.57 There
55 Goulding v Chief Executive, Ministry of Fisheries [2003] NZCA 244; [2004]
3 NZLR 173 (CA).
56 At [43].
57 At [34].
is nothing in the 2020 Act to support a different approach in relation to offers
made under s 74(2)(a). Rather, this approach is
consistent with the requirement
in the Act that enrolment schemes operate on a fair and transparent basis. Once
an unconditional
offer of a place has been communicated, the child and their
family can be expected to act on the basis of that offer. It would not
be fair
or transparent, or consistent with the requirements of good administration, for
such an offer to be withdrawn in the absence
of an express power to do so.
Relief
- [89] The
principal has explained in her affidavit the pressures which have come to bear
on the School’s staff, students and
resources as a consequence of the
unanticipated influx of in-zone students. While we do not traverse the detail of
the several points
made in the affidavit and emphasised by Mr Robertson, we are
very conscious of the difficult position in which the School finds itself.
Notwithstanding the brevity with which we address relief, this state of affairs
has exercised us considerably.
- [90] However, on
the basis of our conclusion that the purported withdrawal of the offer of a
place to Bella was clearly unlawful,
a declaration to that effect is necessary
and appropriate. We have carefully considered whether in the exercise of the
discretion
it might be appropriate to decline to grant the second declaration
sought, given the difficult circumstances detailed by the principal
and Mr
Robertson. However the second declaration is the inevitable consequence of the
first. We do not consider that it would be
a proper exercise of the discretion
to decline to make it. Nevertheless we have varied the form of the declaration
as sought to make
it clear that the date of enrolment can be adjusted by
agreement between Bella’s parents and the School without compromising
Bella’s enrolment entitlement.
Result
- [91] The
appellant’s application to adduce further evidence is declined.
- [92] The appeal
is allowed.
- [93] The
following declarations are made:
(i) The purported revocation of the appellant’s place at Smith Primary
School was unlawful.
(ii) The offer letter remains valid and the appellant is entitled to enrol at
Smith Primary School in accordance with ss 33 and 74(2)(a)
of the Education and
Training Act 2020 on Monday 26 July 2021 or on such later date as may be agreed
by the appellant’s parents
and Smith Primary School.
- [94] The
appellant is entitled to costs. The respondent must pay the appellant costs
for a standard appeal on a band A basis with
usual disbursements. We certify
for two counsel. Mr Robertson, perhaps understandably in the circumstances,
suggested that the Secretary
should be required to contribute to the costs
payable.58 However we do not consider that it is appropriate to award
costs against the intervenor in this matter.
- [95] We make a
direction under r 5(2) of the Senior Courts (Access to Court Documents) Rules
2017 that documents or files of any kind
related to the appeal may not be
accessed, except by the parties, without permission of this Court.
Solicitors:
Woods Fletcher, Wellington for Appellant Heaney & Partners, Auckland for
Respondent
58 Senior Courts Act 2016, s 178(2)(c).
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