New Zealand Law Society

SUBMISSIONS ON THE EDUCATION (ESTABLISHMENT OF

UNIVERSITIES AMENDMENT BILL

The Society does not seek to comment on the underlying policy of the Bill, which is to provide a sequential approach to deciding whether the two substantive criteria for establishing new universities have been met. The two criteria are:

(1) that it is in the interests of the nation and the tertiary system (s 162(3)(a)(b)); and

(2) that the would-be university has the attributes of a university (s 162(4)).

Both these criteria must be met. That is the current position and it would remain the position under the Bill if it becomes law. The proposed change is that the Minister must be satisfied as to criterion (1) before the inquiry into criterion (2) is undertaken.

A second issue raised by the Bill is whether, in addition, the substance of the test for university status is subtly changed. The present regime is that the Minister must "take into account" whether the applicant has the designated attributes of a university in s 162(4). The proposed regime in the Bill is that the Minister "must be satisfied" that it has those attributes that are to be taken into account. Whether there is any difference in substance between those two approaches is one of the questions raised by this Bill. That is a relevant question for the reasons noted next.

The change noted in paragraph 2 above is a change in procedure. It concerns the order in which the statutorily required inquiries are made. The change noted in paragraph 3 above – if it is truly a change – would be one of substance.

The salient point is that, as Members will know, Unitec has an application pending under the present regime. It believes it is disadvantaged if its application is to be governed by the new regime (which, given clause 6 of the Bill, it certainly will be, whether its application were determined before or after the Bill becomes law).

It is the impact of the Bill on Unitec that this submission addresses. In other respects the proposed changes in process and substance are legitimate matters of policy. The only issue is whether a current applicant should have its application dealt with under the current regime and not the new one. This submission does not make a specific recommendation. It aims only to identify some relevant principles that might be applied in considering this Bill.

Whether legislation is perniciously retrospective is always a question of judgment. There is a spectrum of retrospectivity, beginning with plainly unconstitutional retrospectivity (the criminalisation of past actions, for example) down to the plainly constitutional (altering any law for the future might unsettle the expectations and alter the plans of those who expected that the law would remain the same, yet it can hardly be contended that the law is immutable).

Harder cases are in the middle, and particularly concern litigants who have won litigation victories or applicants for approvals or concessions under legal regimes that are to be changed.

Legislation overturning litigation victories is often thought objectionable but it is certainly not intrinsically so. Much depends on the actual case. In many cases it is possible to preserve the victory won by a litigant while, quite appropriately, changing the law for others and for the future. This has happened on numerous occasions in New Zealand (eg the Citizenship (Western Samoa) Act 1982 overturned a court decision but could easily allow, and did allow, the actual litigant to retain her citizenship status, while removing that possibility from thousands of others). But there can be cases where the very reason for changing the law would be undermined if the particular litigant’s victory was left intact. That would be the case, say, if that litigant is in fact the only one that could ever be affected, or if the litigation concerned a particular event or issue that it is judged undesirable to leave in place. To illustrate: had it been the case in the Western Samoa example that it was a class action on behalf of all the 100,000 or so affected Western Samoans, then it is conceivable that the legislation would have taken the victory away in its entirety. One could not otherwise reverse that decision by legislation, yet the reasons for reversing it might be just as cogent whether there was one plaintiff or 100,000. So, in part, the issue of avoiding retrospectivity can depend on the number of affected people, the nature of their particular reliance on the previous law as declared by the court, and the national significance of the context. Sometimes retrospectivity is not avoidable, and sometimes it may be a good thing.

As applied in the present case, where there has not been any court judgment but where there has been an application by Unitec under the existing regime, the relevant considerations seem to be these:

Are the policy considerations requiring the change to the process for seeking university status so important that they must be imposed even upon existing applicants, for fear that, if not, the policy will somehow be frustrated?

The policy would seem to be an essentially procedural one only – viz: that costs and efficiencies are gained by staggering the criteria so that the national interest inquiry comes first, and must be demonstrated before any institutional inquiry is undertaken.

A relevant question in the present case would be whether this policy, though generally desirable for the future, is so important that it weighs against allowing one existing application to proceed under the current regime whereunder the two criteria are considered together. For example, many of the costs generally saved by the new process might already have been incurred in the particular case. If the whole change is about process, then the issue is whether the reasons behind the change apply to Unitec.

A second issue is whether the substance of the test for university status is consciously being changed by this Bill – in the course of making what otherwise seems a procedural change. There has been a suggestion that the new Bill raises the bar because a Minister "must be satisfied" that an institution has the attributes of a university whereas, as the law stands, the Minister "shall take into account" those attributes.

Whether the Bill really would change the substance of the test is far from clear. The difference between "take into account" and "shall be satisfied" is subtle to the point of non-existence. To say that they are different tests seems to require that one could say a Minister has properly "taken an attribute into account" even if he or she is not "satisfied" that an institution actually has that attribute. That does not seem plausible.

The Society thinks there is no difference between old and new formulation. It only looks different because of the different way in which the new Bill is expressed. The expression "take into account" remains, in s 162(4). What the new Bill does is make explicit that a Minister must be satisfied that an institution has those attributes that are to be taken into account. That must also be the status quo. The new Bill does not seem to change the test substantively.

If there really is an intended change of substance, then the issue is whether the policy reasons in favour of making that substantive change (presumably, that New Zealand should have only universities that demonstrably meet the criteria) are significantly undermined by allowing one applicant to continue its pending application process under the old, easier, regime (if it really is easier). Would a saving for current applicants result in a possibility that a body that does not meet the criteria judged necessary for a university would attain approval on the old criteria? In addressing that issue, the small number of universities in New Zealand would be an issue.

(These comments are not, of course, made with any reference to the merits of the Unitec application. They are not intended to suggest that Unitec would not meet the relevant standard. The point is simply that a Minister must, under the existing regime as well as the proposed one, be "satisfied" the standard is met.)

Chris Darlow

President

23 November 2004