Important developments in Education law

The last week has seen some important developments in Education law.

The pastoral care requirements for domestic tertiary and international students have been strengthened under now-enacted amendments to the Education Act, and the date for submissions on the Bill replacing our core education legislation altogether is set for mid-February 2020.

The Bill seeking to improve the pastoral care of both domestic tertiary students and international students has been materially changed as a result of the Select Committee process. The amended Bill passed its third reading on 12 December 2019 and will come into effect, as the Education (Pastoral Care) Amendment Act 2019 (Pastoral Care Act) on the day after it receives Royal assent.

The changes made to the Pastoral Care Act during the Select Committee process are now likely to be incorporated through into the relevant provisions of the Bill replacing our core education legislation (the Education and Training Bill 2019) before that wider Bill is reported back from Select Committee. The closing date for submissions on the Education and Training Bill 2019 has now been set – with submissions closing on Friday 14 February 2020.

The main effect of the Pastoral Care Act will be to strengthen the pastoral care requirements for domestic tertiary students, by enabling the Minister of Education to create a mandatory code for domestic students alongside the current Education (Pastoral Care of International Students) Code of Practice 2016 (International Code).

However, the new Act will also make changes to provisions affecting international students which seek to improve the effectiveness of the International Code, including:

  • introducing new criminal offences for providers who breach either Code where the breach results in serious harm to, or the death of, a student, with a maximum fine of $NZ100,000 in each case, and
  • empowering the relevant Code administrator to obtain a court order requiring a provider to pay a pecuniary penalty (of up to $NZ100,000) if a provider has committed a serious breach of a relevant Code.

Other specific changes include:

  • giving monitoring and enforcement powers to the administrator(s) of the Codes, including powers to enter and inspect student accommodation, and issue new quality improvement notices to providers (as well as compliance notices), and
  • extending the statutory student dispute resolution scheme for contractual and financial disputes to domestic tertiary students.

The Select Committee made several changes that have been included in the new Act.

  • As amended, the Pastoral Care Act allows one Code to be created that covers both domestic tertiary students and international students.
  • Before issuing a Code, the Minister must consult the Privacy Commissioner and those parties he or she ‘considers likely to be affected by the Code' including representatives of students, parents, providers and provider staff. (However, the Minister is required to issue an interim Code for domestic tertiary students before 1 January 2021 and is not required to consult in respect of the content of that interim Code).
  • The Act restricts the Code administrators’ power to enter and inspect student accommodation so that it only applies if the student is given 24-hours written notice and (unless obtaining consent is unreasonable in the circumstances) the student consents to the entry or inspection.
  • The Act prevents student contract disputes being lodged for resolution with the statutory dispute resolution scheme more than seven years from the date of the act or omission the dispute is based on.
  • A pecuniary penalty can only be required for a serious breach of a Code if that breach occurred ‘without reasonable excuse'.

The New Zealand Qualifications Authority has advised that an interim Code for domestic tertiary students is expected to be in place from 1 January 2020.

Please contact us if you would like further information on the impacts of either the Pastoral Care Act or the Education and Training Bill 2019.

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