Gormless Government releases confidential legal advice on Charter School law

Written By: - Date published: 9:30 am, September 6th, 2024 - 31 comments
Categories: david seymour, International, labour, making shit up, spin, Unions, workers' rights, you couldn't make this shit up - Tags:

It is difficult to work out what is more concerning about the latest mistake committed by this Government. Is it the deeply cynicial attacks on workers’ rights and conditions of work that are in breach of international labour organisations rules as well as foreign trade agreements? Or is it the ineptitude which saw them release confidential legal information confirming all of this?

This latest incident relates to the legislation reinstating charter schools.

Two days before the submissions period closed the Government announced that it was going to amend the bill to prevent teachers in charter schools from engaging in multi employer collective agreement bargaining. It also stated that the employer of a state school could order an employee to provide services to a charter school or a student of a charter school.

From John Gerritson at Radio New Zealand:

The government has announced changes to the bill reintroducing charter schools just two days before submissions on the legislation close.

The changes limit teachers’ employment bargaining rights and give the publicly-funded private schools access to resources available to state schools.

Submissions to the bill were due to close on Thursday night but RNZ understands the deadline could be extended.

Associate minister of education David Seymour said the late changes were necessary to stop teacher unions from hamstringing the schools.

He said Cabinet had agreed to progress an amendment stopping unions from initiating multi-employer collective agreement bargaining for charter school staff.

“Unions will still be able to engage in single-employer collective agreement bargaining and charter schools will have independence to negotiate changes to employment terms and conditions relevant to their school,” Seymour said.

He said the change was necessary because multi-employer agreements would affect charter school sponsors’ influence over the terms and conditions offered to their employees “and could therefore influence the flexibility the schools can provide in teaching and other aspects of school operations”.

Seymour said the amendment would also give charter schools access to the same teaching resources as state schools including specialist services like resource teachers and technology education.

He said the late changes were needed to counter expected union opposition to the schools.

Seymour did allow further time for submissions. It was extended from Thursday 25 July to Monday 29 July.

The changes were ham fisted, incredibly late, and the anti Union provision clearly breached ILO conventions.

It makes you wonder if this was proposed so the other measure, requiring state school employees to provide services to charter schools if instructed to by their employers, received less attention.

Things have not gone smoothly for the Government. In another example of hamfistedness a regulatory impact statement containing legal advice the Government had claimed legal privilege over was emailed to members of the select committee and others.The members of the select committee were then told that the RIS that was emailed the day before was legally privileged and not the final version. They were asked to delete the original, unredacted version. The legal advice was not in the amended RIS.

Opposition members had previously sought advice on the legality of this proposed amendment paper from Ministry of Education advisers to the committee. They were told that no information or advice would be provided because the advice was legally privileged.

They then sought independent advice from the Ministry of Foreign Affairs and Trade but this was voted down by a majority of the committee by Government members 5 to 4.

So they chose to release Government’s advice in their minority report to the bill.

The advice is pretty clear. It said:

… there is a strong misalignment [betwen the bill and] the ILO obligations as it creates a significant restriction on parties’ ability to bargain freely. If a complaint were to be brought to the ILO, it is likely that the ILO would confirm the misalignment. This could require officials to participate in hearings and follow up on any recommendations and could have reputational impacts.

About FTA obligations it said:

New Zealand has obligations under free trade agreements (FTAs), including with the European Union (EU) and United Kingdom, to “respect, promote and realise” the fundamental rights at work contained in the ILO fundamental conventions. In light of the above assessment, it follows that this option is also likely to breach some of our binding FTA obligations.

And there are potential Bill of RIghts issues and the possibility of litigation for breaching the right to freedom of association.

Non-compliance also entails risks if unions or individuals challenge the implementation via domestic litigation. There are possible legal challenges based on section 17 of the BORA, which refers to freedom of association. ILO obligations, as interpreted by the ILO supervisory mechanisms, may be used as an interpretation aid by the Court. Any limitation on that right is required to be demonstrably justified under
section 5 of the BORA, which says that the rights and freedoms contained of the BORA may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

No wonder the Government wanted this advice hidden.

David Seymour has put on a brave face. He claimed that the threat of litigation under the Bill of Rights Act was absurd, that complaints under trade agreements were hypothetical and in a Simpsons reference asked for people to please think about the children. Apparently allowing teachers in charters schools the ability to negotiate collectively for minimum job conditions will adversely affect students’ education. Let me know if you can make sense of this.

This whole incident is shambolic and shows the cynical abuse of worker’s rights, Parliamentary Process and our international obligations.

This provides yet another example of why this Government is not fit to rule and needs to be replaced. As soon as possible.

31 comments on “Gormless Government releases confidential legal advice on Charter School law ”

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  1. Rodel 1
    6 September 2024 at 10:21 am

    Frustrating that Seymour the radicalised puppet of billionaire controlled Atlas mafia has so much power over the hapless Luxon and his governmentof morons with only 8% public support and in parliament only because of rigged elections in Epsom.

    ACT leaders; Banks, Hide , the so-called philosopher whose name no-one can remember and Seymour is a ltiany of deceitful self seerving fraudsters.

    • Belladonna 1.1
      6 September 2024 at 10:44 am

      "and in parliament only because of rigged elections in Epsom."

      This is demonstrably not true in the 2020 or 2023 elections.

      • bwaghorn 1.1.1
        6 September 2024 at 11:48 am

        Yeah but he wouldn't have !@#%÷×+ been there if they hadn't had several rigged elections prior, !!

        • Belladonna 1.1.1.1
          6 September 2024 at 12:56 pm

          No more 'rigged' than any other electorate which chooses an MP from a minority party, while party-voting predominantly for another party.
          I think that was the case for virtually all of the Maori electorates in the 2023 election. They elected a TPM MP, but the majority of the party vote went to Labour.

          Look at Hauraki-Waikato for an example:

          Maipi-Clarke (TPM) elected as the electorate MP, but the TPM party vote was 8.5K, while the Labour party vote was 11.5K

          If the good people of Epsom feel that Seymour is the best electorate MP to represent them in parliament, then that's their call. Just as if the good people of Hauraki-Waikato feel that Maipi-Clarke is the best electorate MP to represent them in parliament, than that's their call, too.

          It has been a constant source of amazement to me, that the Left have historically not made more use of this provision (they have made some use – look at Anderton) – especially in electorates where there is a significant Labour/Green split.

  2. georgecom 2
    6 September 2024 at 12:19 pm

    what and inordinate amount of time, money and resources taken up by something which has been proven to make no actual improvement to education achievement levels. in other words, what a huge waste of money, time and resources in the name of Seymours ideology.

  3. Ed1 3
    6 September 2024 at 12:50 pm

    The link to the minority report appears to merely go to the Bill; on a quick look I could not see the minority report – what paragraph number is it? Or is there a different link to that report?

    [Hi Ed1 – I tried to link to the pdf but this did not work for some reason. If you click on “Versions and APs” and then click on the version reported from the Education and Workforce Committee the minority report is part of that – MS]

    • Ed1 3.1
      9 September 2024 at 9:36 pm

      Thanks. I read through the reports from the NZ Labour Party and the Green Party. Good work from them both.

  4. Ngungukai 4
    6 September 2024 at 3:51 pm

    Toy Boy Seymour and the Atlas Group getting a large slice of the education pie.

  5. Mike the Lefty 5
    6 September 2024 at 4:42 pm

    It is a worker's right in NZ to join a union if he/she wishes. If Seymour tries to interfere with this he will have a fight on his hands to be sure.

  6. thinker 6
    6 September 2024 at 6:09 pm

    It makes you wonder if this was proposed so the other measure, requiring state school employees to provide services to charter schools if instructed to by their employers, received less attention…

    So, who constitutes "their employers"? Is the Principal an employee of the Ministry? Or, if not, will state school funding be a stick or a carrot to supporting charter schools?

    In my public sector career, I learned quickly that rarely anything is written that doesn't serve a purpose. There must be some grand plan behind that text.

    On a more general note, towards the latter part of the Rogernomics era, I remember a cartoon where Roger Douglas was so keen to make his boat go faster that he just let the sails go, so much that, clearly from the cartoon, he'd let them go out of control.

    I think there's an element of that thinking with this government. Passing controversial but clearly not urgent legislation under urgency, refusing to front up to public scrutiny, both on a grand scale. Now, we have Seymour brazenly flying in the face of international laws, presumably on the basis noone will call his bluff.

    But submissions aren't that difficult to make, depending on what's at stake. I don't know if anyone will, but I wouldn't be so confident noone will lodge one. And the international lawmakers won't be snubbed the way this government thinks it has the right to snub the media and citizenry. IMHO

    There are people who see themselves as big fish, but it’s only because they’re swimming in a small pond

  7. Dean Reynolds 7
    7 September 2024 at 9:00 am

    Act's mad dog aim is to privatise the public education system. Charter schools are the beginning of this process. Seymour is steadily progressing the hidden agenda of his masters at the Atlas network.

    All Labour has to do is publicly state that whatever this government establishes as a privately owned competitor to a publically owned enterprise, (schools, motorways, etc) will be nationalised as soon as Labour returns to power.

  8. Ngungukai 8
    8 September 2024 at 1:22 am

    ACT = Atlas Group.

  9. Incognito 9
    8 September 2024 at 11:26 am

    The creeping privatisation of the education system in NZ is a concern.

    Charter schools represent a slow drip towards privatisation within our schooling system that’s taken hold starting with ECE.

    […]

    I would then cite a white paper that was written by one of the groups who was interested in opening a charter school, which said, "For widespread success there needs to be the ability for sponsors to get a return on capital, which has made the ECE model so successful in New Zealand." So we're talking about a slow drip towards privatisation that will quickly become an absolutely leaking drip.

    https://www.parliament.nz/mi/pb/hansard-debates/rhr/combined/HansDeb_20240625_20240626_16 [Jan Tinetti in debate on Education and Training Amendment Bill — First Reading on 25 June 2024]

    With the tertiary education institutions under immense financial strain, it’s only a matter of time before privatisation knocks on their door too.

    [Edit: correction of quote]

    • Michael Scott 9.1
      9 September 2024 at 5:21 pm

      I can't see the problem with the state funding private schools at the rate it costs the state to educate children. Simply set high standards for private schools and if they don't meet them withdraw the funding.

      The State does not need to be involved in providing education in the way we need the state to pay for frigates for Defence or MRI scanners for Health. Many families already successfully educate their children at home.

      Clarence Beeby's vision ("The Government's objective, broadly expressed, is that all persons, whatever their ability, rich or poor, whether they live in town or country, have a right as citizens to a free education of the kind for which they are best fitted and to the fullest extent of their powers.") is able to be delivered by either public or private schooling.

      What we are trying to achieve is that every NZ child has access to a high quality education.