New Zealand Educational Institute Te Riu Roa Incorporated v Minister of Education

[2025] NZHC 2964

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-478

[2025] NZHC 2964

UNDER

Judicial Review Procedure Act 2016, Part 30 of the High Court Rules 2016 and the common law

IN THE MATTER

of an application for judicial review and/or for declaratory judgments

BETWEEN

NEW ZEALAND EDUCATIONAL INSTITUTE TE RIU ROA INCORPORATED

Applicant

AND

MINISTER OF EDUCATION

Respondent

Hearing:	16 September 2025
Appearances:	M S Smith KC, J Kirton-Luxford and M S Te Hira for Applicant H W Ebersohn and R Douglas for Respondent
Judgment:	8 October 2025
Reissued:	9 October 2025

JUDGMENT OF BOLDT J

Introduction

[1]    In this year’s budget, the Government defunded and disestablished two resource teaching services, both of which have been part of New Zealand’s education landscape for decades. As a result, around 170 resource teachers will lose their positions in the 2026 school year. The disestablished roles — Resource Teacher Literacy (RT: Lit) and Resource Teacher Māori (RT: Māori) — are filled by specialist

NEW ZEALAND EDUCATIONAL INSTITUTE v MINISTER OF EDUCATION [2025] NZHC 2964 [8

October 2025]

teachers who work across multiple schools and kura, and who provide expert assistance to students and classroom teachers.

[2]    RT: Lit and RT: Māori are employed by the board of a host school, but teachers serve clusters of nearby schools and provide specialist assistance as required. The Government estimates that disestablishing the roles will save around $55 million over the next four years. It plans to reinvest that funding in other initiatives that promote literacy and Māori education.

[3]    The New Zealand Educational Institute Te Riu Roa (NZEI) is New Zealand’s largest education-sector union. It represents more than 50,000 members, most of whom are teachers, principals, and support and specialist staff. In this proceeding, NZEI seeks judicial review of the Government’s decision to disestablish the two roles.

[4]    NZEI attributes the disestablishment to  the  Minister  of  Education,  the  Hon Erica Stanford (the Minister), though the decision is now enshrined in the Appropriation (2025/26 Estimates) Act 2025 (the Appropriation Act). NZEI initially sought orders which would have required the Government to maintain and fund the disestablished positions for at least another year. At the commencement of the judicial review hearing, Mr Smith KC, on behalf of NZEI, retreated from that suggestion, acknowledging the Government may not spend money without express authorisation from Parliament to do so.1

[5]    Instead, NZEI seeks a declaration that the decision to disestablish the positions breached the Education and Training Act 2020 (the Act). It argues ss 4(d) and 9(1)(a) incorporate the Crown’s obligations under the Treaty of Waitangi | Te Tiriti o Waitangi (the Treaty) into the Act. Sections 4(d) and 9(1)(a) provide that one purpose of the Act is to establish and regulate an education system that honours the Treaty and supports Crown-Māori relationships. NZEI alleges the disestablishment of the resource teaching roles will do neither of those things.

[6]    NZEI also alleges the Minister acted in a manner that was procedurally unfair. Less than three months before the budget was announced, the Ministry of Education

1      Constitution Act 1986, s 22(c). Public Finance Act 1989, ss 4(1) and 5.

(the Ministry) gave the education sector three weeks to comment on the proposal to disestablish the positions. NZEI submits that period was too short, says stakeholders were not given sufficient information to provide a meaningful response and alleges the Minister had, in any event, already made her mind up before the consultation began.

[7]    I am satisfied the application must fail. The Minister did not make the decisions NZEI attributes to her. Disestablishment was proposed by the Minister, who presented her budget package to Cabinet in April 2025, but the operative decisions were made by Cabinet, the Executive Council and Parliament respectively. There is no challenge to the Order in Council which formalised the decision by fixing school staffing levels for the 2026 school year.2

[8]    The claim is unsustainable in other respects too. Budget decisions — how much a Government spends and what it decides to spend it on — lie at the heart of our political discourse. Spending and policy decisions are matters for the political branches of Government. Budgets are rigorously scrutinised, but accountability lies with Parliament and ultimately the electorate. With a few narrow exceptions, which I discuss below, it is not the Court’s role to intervene in decisions about how revenue is raised or how public funds are spent.

[9]    Although those conclusions are sufficient to dispose of NZEI’s claim, I have examined the allegations of predetermination on its merits. I am not persuaded that the Minister’s decision to refer the disestablishment proposal to Cabinet was predetermined, though it would not have affected the validity of the decision if it was.

[10]   Finally, the evidence NZEI has tendered has not persuaded me the consultation underpinning the decision, or the decision itself, breached the Crown’s obligations under the Treaty. The evidence the parties have produced does not show that maintaining the status quo is the only way, or the best way, to address the literacy needs of vulnerable primary school children, or the wider educational needs of tamariki Māori.

2      The Education (2026 School Staffing) Order 2025.

[11]   That conclusion need not be the end of the inquiry. A wide-ranging examination of the Government’s approach to literacy teaching would be required before any reliable conclusions about the effect of disestablishment on tamariki Māori could be drawn. That is especially so given the funds currently committed to the resource teaching positions will be reinvested in other education initiatives. An inquiry of that nature is far better conducted in an inquisitorial forum like the Waitangi Tribunal, rather than on the basis of the narrowly-focused evidence the parties have tendered in this proceeding.

Background

[12]   It is common ground that RT: Lit and RT: Māori teachers provide valuable and highly skilled support to classroom teachers and have done so for decades.

[13]   The RT: Māori role was established in 1986. RT: Māori teachers provide support in the revitalisation of te reo Māori and tikanga Māori and for the education of Māori students more generally. They offer support to teachers and provide assistance with bilingual and immersion programmes. They also help with curriculum planning and facilitate links with iwi, hapū and Māori in the community.

[14]   The RT: Lit service was established in its current form between 1999 and 2001. RT: Lit teachers provide expert help to children in years 0–8 who require intensive assistance with reading, writing or oral language. They provide support to classroom teachers as well as to students. While they do not focus on Māori learners in particular, Māori and Pasifika students are disproportionately represented amongst those who need extra literacy support. Part of NZEI’s case is that the disestablishment of the RT: Lit positions will have a disproportionate effect on Māori students.

[15]   NZEI has mounted a comprehensive challenge to the way the disestablishment decision was made. It argues the consultation period — three weeks at a time schools were busy trying to implement new curricula for literacy and maths — was too short. It also alleges the Ministry provided insufficient information for those consulted to provide “intelligent and useful” responses, especially as respondents were not told what new initiatives were proposed in place of the disestablished roles. The Ministry,

citing budget secrecy, acknowledges it was deliberately vague about the details of the proposed reinvestment.

[16]   I discuss the mechanics of the decision, including the consultation process and the allegation of predetermination, in considerable detail later in this judgment. That said, my principal conclusion is that disestablishment, as a policy decision which was made by Cabinet and given legal effect by Order in Council and legislation, is not amenable to review, and I deal with that ground first.

The budget decision

[17]   The proposal to disestablish the resource teaching services in this year’s budget first appeared in official advice in December 2024. It is apparent that  by  late January 2025 disestablishment of the roles, and reinvestment of the savings, was the Minister’s firm preference. In February, in order to meet the Ministry’s obligations under the relevant collective agreement, the Minister obtained Cabinet’s approval to notify the sector of that proposal.

[18]   Consultation about disestablishment opened on 28 February and closed  on  21 March. The Ministry received more than 2,700 submissions. While some identified concerns about the way the services operate, submitters overwhelmingly favoured retention of the roles. The Ministry briefed the Minister on the responses, and outlined five options for her budget package, including the status quo. The Minister met with her officials on 31 March, and decided to proceed with the proposal to disestablish the RT: Lit and RT: Māori positions.

[19]   Cabinet approved the education appropriation on 14 April. The Cabinet paper noted the Minister had consulted the sector about disestablishment of the resource teaching roles and that the outcome of the consultation had been considered as part of the decision.

[20]   The Minister of Finance delivered the Budget on 22 May 2025. The Appropriation (2025/26) Estimates Bill (the Appropriation Bill) was introduced and had its first reading the same day. The detail of each appropriation is found in the

volumes of estimates appended to the legislation.3 The estimates for Vote Education record the savings the Government expects to realise from the disestablishment of the resource teaching roles. They also make provision for increased funding for structured literacy and various Māori education initiatives.

[21]   Section 579 of the Act provides that teachers’ salaries are to be paid “out of money appropriated by Parliament for that purpose”. Section 582 provides that each year the Governor-General must “by Order in Council, prescribe limits on the number of regular teachers who may be employed at payrolled schools during the next year”. The Education (2026 School Staffing) Order 2025 (the Staffing Order) was made on 4 August 2025. It omitted the clauses in last year’s Order which permitted the employment of RT: Lit, RT: Lit (Māori) and RT: Māori.4

NZEI’s application

[22]   NZEI’s statement of claim purports to challenge two decisions, which it characterises respectively as the “2024 Decision” and the “2025 Decision”. That said, and confusingly, NZEI does not allege the Minister made two separate decisions about disestablishment. In argument Mr Smith clarified that the only decision NZEI challenges is the Minister’s decision, whenever it was made, to defund the resource teaching roles. While not apparent on the face of the statement of claim, NZEI has pleaded two decisions only because it makes alternative allegations about when the decision was made. NZEI’s primary allegation is that the Minister decided to disestablish the two roles before the end of 2024.5 Alternatively, if I do not accept the decision was made in late 2024, it alleges the Minister made the decision in late March 2025, after the consultation.

[23]   NZEI’s primary allegation — that the Minister was committed to disestablishment from late 2024 — implies the subsequent consultation exercise was a sham and the official advice which indicated the decision had not been made until shortly before the budget was disingenuous. Mr Smith submits I should reject the

3      Appropriation (2025/26 Estimates) Act 2026, s 6(3).

4      Compare Education (2025 School Staffing) Order 2024, cls 37 and 86 with Education (2026 School Staffing) Order 2025, cls 36 and 83.

5      The statement of claim alleges that “in late 2024, the Minister decided that RT: Lit and RT: Māori should be disestablished, with 2025 being their final funded year”.

Minister’s evidence that she formed no final view about disestablishment until late March 2025.

[24]   NZEI says the decision to disestablish the two roles is reviewable because it breaches the various provisions in the Act which require the Government to honour the Treaty when establishing and regulating New Zealand’s education system. It argues the decision engaged several principles of the Treaty, including the principles of active protection, informed decision-making, partnership, equity and the honour of the Crown. It says the information available to the Crown could not have satisfied it, as an honourable Treaty partner, that the decision will not leave affected tamariki Māori materially worse off. Finally, NZEI pleads the disestablishment of the two roles “was unreasonable in all of the circumstances”.

[25]   The Minister’s response is straightforward. She denies she decided anything in 2024, other than to seek further advice about ongoing funding for the resource teaching roles. She accepts she decided, in late March 2025, that her budget package should no longer include funding for the two services. Instead, she proposed the funds should be redeployed to support literacy and Māori education in other ways.

[26]   Most importantly, the Minister says the decision to adopt the package and to introduce legislation giving effect to it was made by Cabinet. Her role was to propose and argue for disestablishment, but she was not the decision-maker. Even after the package received Cabinet approval, the decision had no legal effect until August, when the Executive Council made the Staffing Order. The positions were not formally defunded until the Appropriation Act passed into law in mid-September.

[27]   The Minister rejects any suggestion that the decision was predetermined, or that it will disadvantage either tamariki Māori or children who struggle with literacy. In any event, the Minister argues that none of the pleaded grounds of procedural fairness have any relevance when decisions are made in the course of preparing a budget. It is settled law, the Minister argues, that policy decisions which precede the introduction of legislation cannot be questioned in any forum outside Parliament.

Justiciability

[28]   Mr Smith began his oral submissions by asking whether budget processes and decisions are beyond the reach of the High Court’s supervisory jurisdiction. The short answer, at least in the great majority of cases, is yes. While each year’s budget is a voluminous document which forms the centrepiece of the Government’s agenda, the Appropriation Bill which carries it into law is a statute, presented to and passed by Parliament.

[29]   Budget decisions, the formulation of budget legislation and the policies underpinning them are the province of the executive and the legislature. Unless the Government acts unlawfully, policy and spending decisions will not generally be justiciable, still less the process by which they are made.

[30]   The cases which support that proposition are too numerous to list. For example, in Curtis v Minister of  Defence,  the  Court  of  Appeal  affirmed  the  High Court’s decision to strike out a challenge to the Government’s decision to disestablish the combat wing of the Royal New Zealand Air Force. The Court described whether Air Force would be left insufficiently armed as:6

[28] … par excellence a non-justiciable question. It is a question which is not susceptible of determination by any legal yardstick. Furthermore it is one of government policy into which it is constitutionally improper for the Courts to go. The appellant has no prospect of showing the Minister’s decision to have been unlawful and hence no prospect of obtaining relief of any kind. It is therefore appropriate that his application for judicial review was struck out.

[31]   The principle of non-interference, which recognises that Parliament has exclusive responsibility for the formulation, consideration and passage of legislation, extends to all matters connected with the legislative process, such as pre-legislative consultation and ministerial decisions about the scope of the legislation that will be introduced.7 Section 4(1)(b) of the Parliamentary Privilege Act 2014 provides that Act must be interpreted in a way that:

… promotes the principle of comity that requires the separate and independent legislative and judicial branches of government each to recognise, with the

6      Curtis v Minister of Defence [2002] 2 NZLR 744.

7      Parliamentary Privilege Act 2014, s 10(2).

mutual respect and restraint that is essential to their important constitutional relationship, the other’s proper sphere of influence and privileges;

[32]Parliamentary Practice in New Zealand describes the position as follows:8

It is a matter for the House to decide what business to consider, what legislation to pass, or what resolution to adopt. It would make no difference that any resulting legislation would be invalid or ineffectual, or that the House had been effectively wasting its time. If the House relies on a particular resolution as having legal significance, a court may be required to determine whether the resolution had the meaning claimed. But the court will not allow itself to be drawn into giving relief (even of a declaratory nature) against the House for having adopted the resolution in the first place.

[33]   It is common for those disadvantaged by legislation, urgent legislation especially, to feel aggrieved by the process that preceded its enactment. Affected parties often feel they have not had a sufficient opportunity to put their case in opposition. Nonetheless, none of the usual features which characterise effective consultation in administrative law, such as adequate notice, adequate time, adequate information and a decision-maker with an open mind, have any application in the legislative context. The adequacy of consultation may properly be explored as part of the political process, but it is not a matter for the Court.

[34]   The relevance of consultation and open-mindedness when Ministers formulate policy was considered by the Court of Appeal in CREEDNZ Inc v Governor-General.9 That case concerned an Order in Council made under the National Development Act 1979. The Order had the effect of suspending the usual statutory procedures for obtaining the consents required for the construction of a new aluminium smelter and adopting a fast-track process instead. Opponents of the smelter submitted Ministers were obliged to consult before making the Order, and alleged the decision was predetermined. Cooke J observed:10

Realism compels recognition that before the end of July 1980 the Government had decided that a smelter project by the company in the South Island was likely to be in the national interest and should go ahead if possible.

8      David Wilson (ed), McGee Parliamentary Practice in New Zealand (5th ed, House of Representatives, Wellington, 2023) at 682. Footnotes omitted.

9      CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA).

10     At 179.

…

… What can properly be inferred is that when the question arose in April 1981 the Government was already clearly in favour of the company’s project and highly likely to decide in favour of an Order in Council.

But it is fallacious to regard that as a disqualification. The references in the amended statement of claim to a real possibility or suspicion of predetermination or bias are beside the point in relation to a decision of this nature at this governmental level… It would be naive to suppose that Parliament can have meant Ministers to refrain from forming and expressing, even strongly, views on the desirability of such projects until the stage of advising on an Order in Council.

[35]   CREEDNZ was concerned with secondary legislation, but Cooke J’s remarks apply with even greater force to policy choices that precede the introduction of a Bill.

[36]   In Anning v Attorney-General,11 on which NZEI relies, Goddard J endorsed the comments of Michael Gronow in Judicial Review of Ministerial Policy Discretion:12

There are … areas … where no matter how important a decision is to the interests of a person affected, the courts will not interfere by imposing requirements of reason giving, natural justice or rationality on the grounds that the decision is one of government policy. One example is, generally speaking, government funding decisions. A person affected may well have a strong expectation that funding will continue to be allocated in a particular way and may have acted in reliance on that expectation. Nevertheless, the courts will not intervene due to a recognition that, with perhaps only limited funds to distribute, a government will constantly have to alter its funding decisions. It may not be able to accord procedural fairness: if the money isn’t there to spend, worthy causes may have to miss out.

[37]   I made a similar point in Te Rūnanga o Ngāti Whātua v Attorney-General.13 In that case the Minister of Justice provided affected parties with three weeks to comment on proposed legislation that would retrospectively alter the test for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011. Ngāti Whātua sought a declaration that that period was inadequate.14

[38]   Ngāti Whātua argued Ministers were obliged to provide adequate opportunity for consultation before introducing legislation that would affect their interests. In

11     Anning v Minister of Education [2002] BCL 518 (HC).

12     Michael Gronow “Judicial Review of Ministerial Policy Discretion” (1994) 68 LIJ 835 at 836.

13     Te Rūnanga o Ngāti Whātua v Attorney-General [2024] NZHC 2271, [2024] 3 NZLR 218.

14 At [11].

addition, and like NZEI, Ngāti Whātua argued that when engaging in consultation the Minister must retain an open mind throughout. In dismissing Ngāti Whātua’s application, I observed:

[68] … The Government is always free to determine for itself whether, and how extensively, to consult affected parties before introducing legislation. Sometimes the Government does not consult at all. And while legislation carries an inbuilt consultation phase, in the form of the select committee process, the House, if it chooses, is free to dispense with that too.

…

[78] … the suggestion the Minister must consult with an open mind is especially inapt in the legislative context. Legislation is often (indeed usually) formulated because Ministers are already firmly convinced the proposal represents good public policy. Often it reflects a manifesto commitment. Ministers are political actors. They may be persuaded, by official advice or evidence before a select committee, that a Bill should be changed, but the suggestion the Court can insist Ministers retain an open mind about legislation is, to put it mildly, unrealistic. As McGechan J observed in Westco Lagan, accountability in this area is political and ultimately electoral. The spectre of the Court invalidating a pre-legislative consultation process because the Minister did not approach it with an open mind is unimaginable.

[39]   The Supreme Court of Canada reached the same conclusion in Misikew Cree First Nation v Canada, which concerned whether Ministers were obliged to consult with the Misikew Cree First Nation about proposed legislation that had the potential to affect their treaty rights to hunt, trap and fish.15 By a majority of 7-2, the Court held there was no such obligation.

[40]Writing on behalf of herself, Wagner CJ and Gascon J, Karakatsanis J observed:

[2] … Two constitutional principles — the separation of powers and parliamentary sovereignty — dictate that it is rarely appropriate for courts to scrutinize the law-making process. The process of law-making does not only take place in Parliament. Rather, it begins with the development of legislation. When ministers develop legislation, they act in a parliamentary capacity. As such, courts should exercise restraint when dealing with this process. Extending the duty to consult doctrine to the legislative process would oblige the judiciary to step beyond the core of its institutional role and threaten the respectful balance between the three pillars of our democracy. It would also transpose a consultation framework and judicial remedies developed in the context of executive action into the distinct realm of the legislature. Thus, the duty to consult doctrine is ill-suited to the law-making process; the law- making process does not constitute “Crown conduct” that triggers the duty to consult.

15     Misikew Cree First Nation v Canada 2018 SCC 40, [2018] SCR 765.

Exceptions

[41]   The principles of comity, parliamentary privilege and non-interference are fundamental. The budget is a matter for Parliament, not the Court. That said, there are undoubtedly exceptions to that broad proposition.

[42]   While the Government has responsibility for preparing the budget and Parliament has ultimate responsibility for determining what public funds should be spent on, the annual appropriation process does not amend or suspend the law.16 Some spending obligations are fixed outside the budgetary process, or are subject to freestanding appropriations which do not depend on annual renewal. Ministers are sometimes under a discrete statutory obligation to spend money in a certain manner and a failure to do so will be unlawful even if the decision to withdraw (or refrain from allocating) funding forms part of the Budget.17 In such situations, the Court can usually do no more than declare the Minister’s actions unlawful. Even so, I accept Mr Smith’s submission that a breach of a legal obligation to spend money in a particular way will not be “cured” or validated by its inclusion in that year’s Appropriation Act.

[43]   The result is that sometimes separate legal obligations mean the relevant Minister (and through her, Cabinet) does not have complete flexibility to cut or reprioritise spending. NZEI argues this is one of those cases. Mr Smith submitted the provisions in the Act which require the Crown to establish an education system that honours the Treaty mean the Crown cannot cut or reprioritise spending in a way which will affect Māori learners, at least without engaging in careful consultation which honours the Treaty partnership.

16 Daniels v Attorney-General (No 1) [2002] BCL 475 at [51] per Baragwanath J. An appeal against the High Court’s decision was partially successful — see Attorney-General v Daniels [2003] 2 NZLR 742 (CA) — but the relevant passage in [51] of Baragwanath J’s judgment was not challenged.

17   See, for example, the  Crown’s liability to meet judgment debts;  Crown Proceedings Act  1950,  s 24(3). Judicial salaries are another example; District Courts Act 1947, s 6, Senior Courts Act 2016, s 135.

Anning v Minister of Education

[44]   Mr Smith placed particular emphasis on Goddard J’s decision in Anning v Minister of Education.18 In that case the applicants sought judicial review of a pre-budget decision made by the Minister of Education eight years earlier. The 1994 budget cut the tuition subsidy payable to the University of Otago’s Dental School, leading to a significant increase in student fees and substantial losses to the University. At the time, grants for tertiary institutions were set using a fixed formula (the EFTS formula), which was set out in the Education Act 1989.19 The Minister, the Hon Lockwood Smith, calculated the subsidy for Otago’s dentistry school without applying the EFTS formula, instead (and erroneously) believing he was aligning the subsidies for dental and medical students.20 Despite reviews, the error was not corrected in future budgets.

[45]   The Education Act provided that grants to tertiary institutions were to be “determined by the Minister”21 and paid to institutions “out of money appropriated by Parliament for that purpose”.22 It followed, as Goddard J held, that in setting the level of the subsidy the Minister was exercising a statutory power of decision, though not one that gave him any meaningful discretion.23 The Education Act assumed Parliament would appropriate money accordingly. The Judge held:

[136] Whilst I readily accept the Crown’s argument that neither Cabinet’s approval of the Minister’s decision nor the Appropriation Acts themselves are amenable to review, I do not accept the argument that Cabinet approval or the subsequent enactment of legislation can retrospectively render valid that which was unlawful; or can shield an unlawful exercise of statutory power from review by the Courts. The fact that the Minister’s decision was taken into the Estimates for 1994 and ultimately became part of that year’s Appropriation Act, does not retrospectively render his determination lawful or immune from review. The supervisory jurisdiction of the Court is not so easily ousted. The Minister’s determination of the amount of a general grant under s 199 did not fall within the category of a general funding decision, ungoverned by statutory criteria or any promulgated policy.

18     Anning v Minister of Education, above n 11.

19 At [132].

20 At [154].

21     Education Act 1989, s 199(2).

22     Section 199(1)(b).

23     Anning v Minister of Education, above n 11, at [126] and [132].

[46]   Mr Smith argued that the present case is on all fours with Anning. He submitted Minister Stanford’s decision to incorporate disestablishment into the budget package she presented to Cabinet was the equivalent of Minister Smith fixing the 1994 dental subsidy. He argued Minister Stanford’s decision is tainted by an illegality as profound as the one declared unlawful in Anning, namely a breach of the Crown’s obligations under the Treaty. Mr Smith described that as a “hard-edged question of law”, deserving of a declaration of invalidity.

[47]   Mr Smith pointed to other parallels as well. Justice Goddard held that once the Minister decided to depart from the statutory formula, he became subject to a duty to consult the University, given it stood to be directly and adversely affected.24 Apart from anything else, consultation would have alerted Minister Smith to the erroneous assumptions underlying his decision.25 Mr Smith argued the same considerations point to the existence of a duty on Minister Stanford to consult more extensively than she did with those who stood to be affected by disestablishment.

[48]   Justice Goddard declared the 1994 subsidy decision unlawful and invalid but dismissed other aspects of the  claim.26  The  plaintiffs  sought  to  challenge  Minister Smith’s refusal, later in 1994 when his errors had become apparent, to revisit his earlier decision. The Judge held that refusal “was not the exercise of a statutory power of decision but a matter totally within his discretion”.27 She also dismissed the third ground of review — a challenge to Cabinet’s refusal in 1997 to realign dental and medical funding — noting it “was a policy decision and accordingly not amenable to review by the Courts”.28

[49]   Anning does not assist NZEI. Indeed, Goddard J herself described the case as “unique, because the funding decisions were governed by statute, and also because the error of decision-making was so singular”.29 Among several critical differences, the Education Act gave the Minister executive responsibility for fixing the relevant subsidies and tethered him to a formula he was obliged to follow. Unlike most budget

24 At [153].

25     At [129] and [154].

26 At [165].

27 At [131].

28 At [131].

29 At [165].

decisions, the size of the grant was not a collective decision of Cabinet, but the exercise of a heavily-constrained statutory power by the Minister. 30 As Goddard J observed, that process was unusual. The School of Dentistry’s grant was (or should have been) fixed by law. It was Minister Smith’s disregard of the responsibility the Education Act vested in him that was unlawful.

[50]   In this case, the Minister had no analogous executive power, nor was she subject to the same kind of statutory obligation that bound Minister Smith. The Minister was not personally empowered to defund or disestablish the resource teaching roles. None of the decisions she made between  December  2024  and March 2025 had any legal effect.

[51]   It follows that no decision to reprioritise funding was taken until Cabinet approved the Minister’s education package. Even then, Cabinet’s decision to adopt a budget measure has no legal significance. It was not until the Executive Council made the Staffing Order in August that the legal position changed.31 The final decision to defund the positions came when the Appropriation Act received the Royal Assent. Until then it was, at least in theory, open to Parliament to disallow the Staffing Order,32 maintain the existing appropriation, and continue funding the resource teaching roles.

Who was the decision-maker?

[52]   I pressed Mr Smith about how and why he attributes the disestablishment decision to the Minister, rather than the Executive Council which made the Staffing Order, or Parliament, which passed the budget into law. He acknowledged the Minister had no unilateral power to determine the education appropriation, but he argued, in effect, that her power lay in her responsibility for proposing budget decisions to her colleagues. In other words, if the Minister had not recommended disestablishment of the resource teaching roles, they would not have been disestablished.

30 At [132].

31 Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [17]. Attorney-General v New Zealand Māori Council [1996] 3 NZLR 140 (CA) at 160.

32 Legislation Act 2019, s 116.

[53]   Mr Smith acknowledged the Minister was not exercising an express statutory power, like Minister Smith in Anning, but characterised her interactions with officials and her decision to submit the disestablishment proposal to Cabinet as the exercise of a public power. He submitted the disestablishment was, in substance, the Minister’s decision because she proposed it and saw it through Cabinet. Mr Smith relied on the Supreme Court’s decision in Ririnui v Landcorp Farming to support the proposition that the exercise of public power is reviewable, even in the absence of an identifiable statutory power.33 Ririnui began:34

[1]        This is a judicial review case. Judicial review is a supervisory jurisdiction which enables the courts to ensure that public powers are exercised lawfully. In principle, all exercises of public power are reviewable, whether the relevant power is derived from statute, the prerogative or any other source.

[54]   Mr Smith’s submission has a pragmatic appeal to it. It was the Minister’s idea to disestablish the positions; it is clear she regarded reprioritisation as consistent with her wider programme of change in the primary sector. The Minister promoted the proposal to Cabinet and was acting in an official capacity when she did so. Nonetheless, disestablishment was not her decision. Her budget package was a precursor to a Cabinet decision, which was itself a precursor to Parliament’s consideration of the Budget.35

[55]   While it sounds trite, a fundamental characteristic of a public power is that it involves a decision to exercise, or refrain from exercising, a power of some kind. A step in a decision-making process will not generally be reviewable unless that step is itself capable of altering rights, interests or liabilities.36 Mr Smith urged me to examine the deliberative process in the Minister’s office in isolation from the decisions of Cabinet and Parliament that followed. For the reasons already discussed, the disestablishment decision cannot be broken down into its constituent components in that way. The Minister had no independent power to disestablish the resource teaching roles. Nothing would have changed if Cabinet had rejected her proposal.

33     Ririnui v Landcorp Farming [2016] NZSC 62, [2016] 1 NZLR 1056.

34     Arnold J, writing for himself and Elias CJ.

35     Cabinet itself cannot be reviewed; Cabinet is, as Cooke J put it in CREEDNZ, above n 9, at 177 “a body existing by constitutional convention rather than law”.

36     Marlborough Aquaculture Ltd v Chief Executive, Ministry of Fisheries [2003] NZAR 362 at [14] (HC).

[56]   The distinction between the respective roles of individual Ministers, Cabinet and Parliament remains of critical importance. Ministers’ budget initiatives are often rejected. Departmental budgets may be fixed at a level lower than individual Ministers hope for. It is also entirely conceivable, especially in a coalition Government, that some Ministers wish to cut spending in their portfolios more drastically than Cabinet, as a collective body, will countenance.

[57]   This is not one of those rare cases, like Anning, where a budgetary determination was vested by statute in the responsible Minister, or where there is an ongoing legal obligation to maintain a particular level of funding.37 The Minister was effectively an advocate in her bilateral meetings with the Minister of Finance and when presenting the Ministry’s budget to Cabinet.38 She was not the decision-maker.

The nature of the decision

[58]   The fact NZEI has sought to attribute to the Minister a decision that rested with Cabinet, and later with Parliament, is fatal to the claim as pleaded. That said, and in case I am wrong about the identity of the decision-maker, I record that I would not, in the absence of a clear legal error, have regarded the intermediate ministerial steps which fed into the budget as justiciable in any event. In Ririnui, Arnold J observed:39

[89] While the modern view is that courts have the power to review all exercises of public power whatever their source, the courts accept that some exercises of public power are not suitable for judicial review because of their subject matter. Decisions about the allocation of national resources or involving issues of national defence or national security or involving national political or policy considerations have been held to be not reviewable by the courts, although courts in recent times have been more willing to review decisions in areas previously regarded as inappropriate for review, the most obvious example being decisions in relation to national security. Courts have treated decisions about Treaty of Waitangi settlements as inappropriate for judicial review, not simply because they often involve legislation but also because the issues involved in settlements — such as the nature, form and amount of redress — are quintessentially the result of policy, political and fiscal considerations that are the proper domain of the executive rather than the courts.

37     Anning v Minister of Education, above n 11, at [132] and [165].

38     See, for example, Cabinet Office Cabinet Manual 2023 at 2.22(c) which provides that Ministers “determine government policy collectively, through the Cabinet decision-making process.”

39     Ririnui v Landcorp Farming, above n 33. Footnotes omitted.

[59]   Budget decisions are intensely political in nature and carry an inbuilt accountability process through the Parliamentary debates and Select Committee scrutiny that follows.40 Away from Parliament, budgets are always accompanied by open and vigorous debate in the media and other public forums. As Richardson J observed in CREEDNZ:41

The willingness of the Courts to interfere with the exercise of discretionary decisions must be affected by the nature and subject-matter of the decision in question and by consideration of the constitutional role of the body entrusted by statute with the exercise of the power. Thus, the larger the policy content and the more the decision-making is within the customary sphere of elected representatives the less well-equipped the Courts are to weigh the considerations involved and the less inclined they must be to intervene.

[60]   Every budget, but especially those delivered when funds are scarce, requires the Government of the day to make difficult decisions. It is common for successful and popular programmes to be cut or curtailed entirely, often without notice or consultation, and often to the dismay of those affected.

[61]   The choice between highly skilled resource teachers who travel from school to school and greater in-school investment in structured literacy is a policy decision. It involves choices, both about the best way to deliver high-quality teaching to children whose educational needs may otherwise be unmet and about the most efficient use of public funds. As Goddard J observed in Anning, policy decisions are not amenable to review, though they remain a proper matter for vigorous academic, public and political debate.42 The decision to disestablish the resource teaching roles, like the 2002 decision to disestablish the air combat wing, is a matter for the political branches of Government, not the Court.43

40 The Minister appeared before the Education and Workforce Committee, which scrutinised Vote Education in this year’s Budget, and asked her about the disestablishment. The Committee’s report indicates the disestablishment of the resource teacher roles was one of the topics on which the Minister was questioned. (2025/26 Estimates for Vote Education (Education and Workforce Committee, 22 May 2025) at 17).

41 CREEDNZ, above n 9, at 198–199.

42 Anning, above n 11, at [135]–[136].

43 Curtis v Minister of Defence, above n 6.

Predetermination

[62]   My conclusions that the Minister was not the decision-maker, that she was not subject to an enforceable consultation obligation and that the decision was, in any event, non-justiciable, are sufficient to dispose of NZEI’s application. It does not matter when she finally made up her mind about disestablishment of the two services, nor would it affect the lawfulness of the decision if the Minister had been immovable in her conviction that that was the best course. Nonetheless, a significant part of the NZEI’s case centred around its allegation of predetermination. That question accounted for most of the evidence, and both parties made extensive submissions on it. Given the prominence the question assumed in argument, and the fact NZEI suggests I should reject the evidence the Minister tendered about her decision-making process, I have examined the issue on its merits.

The disestablishment decision

[63]   The Ministry first suggested disestablishing the RT: Māori service in 2022, raising the possibility during that year’s collective bargaining round. In  her  affidavit, Stephanie Mills, National Secretary | Korimako Tangiata at NZEI said the 2022 proposal to abolish RT: Māori “came out of the blue”. NZEI strongly opposed the idea and it was swiftly abandoned.

[64]   It is unclear when the possibility of defunding the resource teaching roles was first mooted in the context of this year’s budget. In her affidavit, the Minister said that late in 2024 she was approached by a “representative group of principals” who expressed frustration with the RT: Lit service delivery model and “advocated strongly

… to repurpose this resource into the structured literacy staff resource”.

[65]   The first piece of official advice that mentioned disestablishing the RT: Lit service appeared in December 2024. Internal correspondence within the Ministry spoke of a line-by-line review of the education budget, designed to identify savings which could be re-invested to support the Minister’s priorities.

[66]   In her affidavit, the Minister explained that a “strategic shift” is underway in the provision of literacy support, including a renewed emphasis on in-school expertise.

The Minister noted the curriculum has been updated and is “underpinned by the principles of structured literacy”. She said she instructed her officials to consider options that would improve resources and strengthen the implementation of structured literacy in the classroom, “including staffing resource to support learners who have fallen behind”.

[67]   On 4 December 2024, the Minister received a paper entitled “Feasibility of new Budget 2025 initiatives”. It noted she had requested advice on the feasibility of four new Budget initiatives, including disestablishing the RT: Lit service. The paper set out to describe the “feasibility and risks” of each proposal. It noted the RT: Lit service costs the Government around $11.453 million each year, with around 106.6 full-time equivalent teachers employed.

[68]   The paper addressed the mechanics of defunding, which included a requirement, under the Primary Teachers’ Collective Agreement, to notify employing boards of the possibility of disestablishment by 1 March 2025, with final notification no later than 1 July 2025. The paper also noted the likelihood of concern within the education sector and that some, “particularly unions”, would be concerned about the teachers who stood to lose their jobs.

[69]   The paper suggested the latter concern could be partially mitigated through “consultation with the primary sector in the design of the replacement service”, preferably before the budget. It noted other risks, including the loss of targeted and tailored support during the transition to structured literacy, the need to manage the loss of a capable and experienced expert workforce, “impact on learner outcomes” and the risk of industrial action, including a greater likelihood of strike action during collective bargaining. The paper concluded that disestablishment was feasible but carried a number of risks. The officials advised “if you decide to progress, we will prepare a Budget savings template according to Budget timelines”.

[70]   On 6 December 2024, Ministry officials provided the Minister with a further paper, this time describing the risks and issues associated with retaining the RT: Lit roles. It identified a number of concerns about the service, including inconsistent practices across the service, significant time spent travelling to schools and claims that

“current data measures do not indicate sufficient impact”. At the same time, the paper advised the Minister that 90 per cent of the RT: Lit workforce had “recently upskilled in structured literacy approaches” and could be re-employed as classroom teachers, where their skills would be valuable.

[71]   There had, until this point, been no suggestion the RT: Māori service may also be at risk. But at a meeting on 17 December 2024, officials raised the possibility “that RT: Māori funding could be reprioritised to fund the Māori Education Package”. The Minister agreed to add RT: Māori to the projects whose funds could be considered for reprioritisation.

[72]   On 16 January 2025, the Minister received another paper from the Ministry. It noted that some of the initiatives the Minister was considering, including those involving resource teachers, would require “early budget decisions” to allow the Ministry to tell boards that the resource teaching positions were at risk of disestablishment before the budget was delivered.

[73]   The Minister agreed to proceed. The need for an early budget decision meant she was required to advise the Minister of Finance and obtain Cabinet approval. In her affidavit she observed the Cabinet decision authorising early notification “… is not the final Budget decision, which was made in April, but allows for the consultation”.

[74]   The official advice did not, at that stage, disclose any suggestion that the Minister was planning to engage in a consultation process before making a final decision. The Ministry’s 16 January paper appears to have assumed the decision had been made, and that the Minister would be notifying boards, not seeking feedback.

[75]   On 27 January 2025, the Minister received another paper from the Ministry, which contained formal advice and a draft Cabinet paper seeking early budget approval. It included the following passages:44

This report seeks your preferred approach for reprioritisation of [RT: Lit and RT: Māori] as part of your 2025 Budget savings package …

44     Emphasis added.

As part of the Budget savings process, you have decided to reprioritise funding for [RT: Lit and RT: Māori]. Removing the [RT: Lit and RT: Māori] roles would save $55.165 million over four years.

To make these changes we need to notify the sector stakeholders about changes to the Resource Teacher allocation by 1 March 2025 (as per collective agreement requirements). This means the Cabinet will need to approve these savings initiatives and agree that this can be announced to the sector by the end of February.

There are current issues with the allocation and utilisation of [RT: Lit and RT: Māori] roles. So, while disestablishing these roles does present some risks, these can also be somewhat mitigated by improving on the status quo through reinvestment of this resource.

[76]   The paper criticised the way both roles were functioning, noting inconsistency of practice across the services and, in the context of RT: Māori, “insufficient system-level reporting on how these roles are being utilised or how they are supporting improved outcomes for learners”. It suggested the geographic allocation of RT: Māori roles “is based off a dated model and does not reflect the current education landscape”.

[77]   The Minister added handwritten notes which provided an indication of her thinking in late January. After noting that reprioritisation would require early Cabinet approval and would realise $55.2 million in savings over four years, the Minister pushed back against some of the risks the Ministry had identified. She rejected the proposition that reprioritisation of the roles could result in a reduction in literacy and Māori education support in Years 0–8. The Minister wrote “NOT a reduction – changing supports to higher performing interventions in class; a reprioritisation to different literacy supports for Tamariki Māori!!”. The Minister responded to the suggestion there could be a reduction in the expert literacy and Māori education workforce by writing “not necessarily”. In her affidavit, the Minister confirmed the “[a]dvice from officials aligned with my views and my intention with the proposed reprioritisation …”.

[78]   At some point in early February, it is apparent the Minister decided to consult the sector about the disestablishment proposal, rather than to present it to boards as a fait accompli. The Minister presented a paper to the Cabinet Social Outcome Committee on 12 February 2025. It included the following paragraphs:

I am seeking your agreement to consult on reprioritising funding from RT Lit and RT Māori as part of Budget 25. I need the decision this month so that the Ministry can notify Boards of my intention by 28 February 2025, as required by collective agreements (1 March being a Saturday).

Following this consultation, I will make a decision whether to disestablish the roles. In July the Ministry of Education confirms to school boards the withdrawal of funding for these roles from the start of 2026 and Cabinet will approve the Staffing Order that gives effect to the changes.

[79]In the same document, the Minister asked the Committee to:

note that I wish to proceed with reprioritisation of Resource Teachers: Literacy and Māori (RT: Lit and RT: Māori), and these changes require early Cabinet approval to enable notification to sector stakeholder of changes to Resource Teacher allocations by 28 February 2025, in line with collective agreements.

[80]   In phrasing lifted directly from the “recommendations” section of the paper, the Committee agreed the Minister should “notify” stakeholders of her “intention” to disestablish the roles. Cabinet confirmed the Committee’s decision on 17 February.

[81]   In a paper initially dated  21  February  2025,  but  later  revised  and  dated 27 February, officials outlined a proposed consultation process. The consultation period was only brief, opening on 28 February and closing on 21 March. Officials recommended the Minister consult with “education sector peak bodies that will have interest in the changes to this finding, before making a final decision regarding the reprioritisation of this funding”. In the 21 February draft, officials suggested that “[c]lear communications regarding the rationale for the changes, along with consultation, will go towards mitigation of the risk of a negative response from the sector, particularly Māori education providers”.45

[82]   NZEI emphasises the changes in wording between the 21 and 27 February drafts. For example, the 21 February draft noted the Minister was “seeking to reprioritise funding” for RT: Lit and RT: Māori roles and that Cabinet had authorised the Minister to notify stakeholders of her “intent to disestablish funding”. The equivalent passage in the 27 February draft spoke of the Minister “considering reprioritising funding” and notifying stakeholders of her “proposal to disestablish

45     The last four words were omitted from the 27 February draft.

funding”. There were several similar changes; for example, “intention” was replaced with “proposal”, while “anticipated reduction” was replaced with “potential reduction”. NZEI characterises the changes as an attempt to project an open mind when, in reality, the Minister had already made her decision, or at least had embarked upon the consultation with a strongly predetermined view.

[83]   The Ministry identified 21 major stakeholders, including NZEI, the National Association of Resource Teachers Advisory Māori and other relevant Māori education bodies. Consultation materials were also sent to all state and state-integrated schools. The consultation document was ten pages long. It outlined a “proposal” to disestablish the two roles and reinvest the funding “into more equitable resourcing of education initiatives to deliver better learner outcomes”. It included a section headed “why change is needed”, which outlined the concerns officials had articulated to the Minister.

[84]   The document posed a number of questions. It sought respondents’ feedback about the two roles, including their quality and effectiveness and how they worked with other relevant support services in the area. It asked respondents what they considered the “key risks or benefits” of reinvestment to be and whether there were ways the funding for the two services could be reinvested to support students more directly in the classroom.

[85]   NZEI provided a succinct response to the Minister’s proposal, though in her affidavit Ms Mills said it would have been much fuller if respondents had been given more time. NZEI criticised the reports on which the Ministry relied for its criticisms of the services, noting the most recent was written in 2014. It recorded its view that the two services provide critical support for students with specific learning needs and emphasised the skill of the teachers — whose expertise extends well beyond structured literacy — who hold those positions.

[86]   NZEI argued the consultation process is not consistent with the Treaty, noting the Ministry had not outlined any proposal as to how Māori learners who experience inequities in the education system would be supported and that RT: Māori “are

currently the only service whose primary purpose is to uphold the revitalisation and preservation of te reo Māori in kura”.

[87]   Despite the short consultation period, the Ministry  received  a  total  of  2,786 submissions. 194 were from groups which between them represented a total of 53,159 people, and 2,446 were from individuals.46

[88]   On 28 March 2025, officials provided the Minister with two reports. The first summarised the results of the consultation process. The “key facts” section of the document included the following passages:

[5]        … Overall, submissions reflected strong support for retaining the RT Lit and RT Māori services, and significant interest in what the proposed reinvestment in frontline and learning supports will look like.

[6]        Should you choose to proceed with disestablishing funding for RT Lit and RT Māori, clear communications on the rationale around how the reinvestment options will support the sector will be essential, noting that at present the budget decisions are to be released on 22 May 2025.

[89]   While some respondents indicated they were concerned about poor distribution of resource teachers, difficulty accessing the services, inefficiency and inconsistency, most respondents conveyed positive experiences with the two services and spoke very highly of the knowledge and skill of the teachers. Respondents shared anecdotes about the positive effect resource teachers had had on their children, either in terms of literacy or in supporting the growth of te reo Māori. One of the critical concerns respondents expressed was the possible loss of expertise in the sector and the impact this may have on students.

[90]   Meanwhile, on 14 March the Minister had submitted her Budget 2025 package to Treasury and the Minister of Finance. That document expressly referred to the savings that would accompany the disestablishment of the two resource teaching roles. In her affidavit, the Minister explained that the 14 March document was a draft, required by Treasury officials to “run their processes”. She stressed that no final decision about the resource teaching positions had been made and noted that six

46     Other submissions came from smaller groups or did not indicate whether they were responding as an individual or as part of a group.

initiatives which featured in the 14 March draft underwent changes before they were finalised a month later.

[91]   In light of the response to the consultation, the second 28 March paper presented the Minister with a range of options. It included the following:

[29]      Following sector consultation and analysis of feedback, we propose three options (with further sub options) for you to consider. These are discussed in further detail in the following sections.

Option 1 — Proceed with reprioritising RT Lit and RT Māori funding through B25,

Option 2A — Do not proceed with reprioritising RT Lit and RT Māori funding,

Option 2B — Retain funding for RT Lit, reprioritise RT Māori funding,

Option 2C — Retain funding for RT Māori, reprioritise RT Lit funding,

Option 3 — Review and restructure RT Lit and RT Māori services

[30]      Options 2A, 2b, 2C and 3 have implications for your Budget package. If you decide not to proceed with the disestablishment of RT Lit and/or RT Māori, you will have to make trade-offs within your Vote Education package and Māori Education package to accommodate.

[31]      You would also need to write to the Minister of Finance immediately to set out any proposed changes to your Budget package. This would need to be sent by Wednesday 2 April 2025. A draft letter is attached as Annex 1. We will update the letter to reflect your decision, however, if you proceed with option 1, the letter is not needed.

[92]   The paper noted that disestablishment was likely to be received badly within the sector. It confirmed the loss of RT: Māori, even if offset by enhanced investment in the Māori Education Budget package, would represent a reduction in frontline teaching numbers and a loss of highly skilled staff. The Ministry briefly discussed the implications of the decision from a Treaty perspective. The paper recorded:

[85] Due to this work progressing quickly, the Ministry has not had an opportunity to complete a fulsome Te Tiriti analysis and due diligence of relevant Treaty rights or interests on the proposed RT Lit and RT Māori reinvested Budget options. The Waitangi Tribunal has found that the Crown has a duty to make informed decisions, and to engage directly with the impacts its policy could have on Māori learners, kura and Kaupapa Māori organisations before decisions are made. While consultation with peak bodies (such as Te Rūnanga Nui and Ngā Kura ā Iwi) has been undertaken for the

proposed disestablishment of RT Lit and RT Māori, there has been no consultation on the possible next steps presented in this paper, or the proposed Budget initiatives that intend to replace these services (if disestablishment is progressed).

…

[87] For Option 1, our analysis shows potential loss to the education workforce if these positions are not replaced with an equivalent workforce initiative. Across all options, there is variability in terms of Māori gaining agency and authority over their learning, and equity of outcomes. Option 3 has potential to be most compliant noting it allows an opportunity to engage with Māori if you choose to restructure the service.

[93]   The Minister had been overseas between 16 and 29 March. At her meeting with officials on 31 March she selected Option 1 and signed the report accordingly. In her affidavit, she said:

[60]      Officials … provided me with advice on Treaty of Waitangi implications, noting the limitations raising from tight time frames. I considered the most recent comments of the Waitangi Tribunal about the Crown making informed decisions in the Education context and engaging with the impact of policy decisions on Māori learners. Importantly, consultation with peak bodies, particularly Te Rūnanga Nui and Ngā Kura ā Iwi, was undertaken. The level of detail that could be consulted on was limited by the requirements of the budget process and budget secrecy, however. The potential impact of a reprioritisation of funding has been something I have considered throughout this process. In particular, the impact on Māori learners, teachers, kura and communities, addressing inequities, funding the overall Māori Education package, and retaining highly qualified teachers within the system.

[61]      Having weighed the risks and implications of the options available to me alongside the consultation feedback, the changes across education delivery and the proposed Budget 2025 package, I directed officials to proceed with the proposal to re-prioritise funding for both RTLit and RTMāori services.

Discussion

[94]   NZEI alleges the Minister’s decision was predetermined. It invites me to reject her evidence that she retained an open mind between December 2024 and March 2025 and made a final decision only after consultation with the sector in February and March this year. For example, the Minister recorded she had made it clear that “while early Cabinet approval was required to initiate consultation with the sector, final decisions would not be made until the main Budget 2025 process. These final decisions were contingent on the outcomes of consultation, and I was open to the results of consultation and what they might be”.

[95]   Cross-examination is rarely appropriate in judicial review proceedings and is almost unheard of when the decision-maker is a Minister. NZEI alleges there are inconsistencies between the Minister’s affidavit and the contemporaneous documents underpinning it. In the absence of cross-examination, both parties accept I am entitled to draw appropriate inferences from the written record and that there is no legal impediment to my rejecting parts of the Minister’s affidavit despite the absence of cross-examination.

[96]   NZEI is right to point to inconsistencies in the language used in the official advice the Minister received in late 2024 and early 2025. Sometimes officials spoke about the Minister “wishing” or “intending” to disestablish the roles. Sometimes, even fairly early in the process, they spoke about the decision to disestablish as though it had already been made, while other documents spoke of disestablishment as a proposal which was still under consideration. Sometimes the documents were internally inconsistent.

[97]   By the latter part of February, the language officials were using had settled; disestablishment was characterised as a proposal and the Minister was interested in feedback from the education sector before a final decision would be made. The final documents, compiled after the consultation process in March, listed a range of options for the Minister, including continuing with the status quo.

[98]   I do not consider the changes in the way the proposal was presented reflected an intention to present the Minister as more open-minded than she really was, or that the consultation was merely window dressing for a decision that had already been made.

[99]   The Minister wrote very little of the contemporaneous material herself. The documents are pieces of official advice written by others. The officials were, at each stage, doing their best to record, interpret or anticipate the Minister’s position. In almost all cases they reflected a second-hand account.47 I agree with Mr Ebersohn, for the Minister, that it is rarely safe to draw adverse inferences about anyone’s state

47     The Minister’s handwritten notes on the 27 January paper are an exception.

of mind from documents drafted by others, even if their contents are later “noted” by the decision-maker.

[100] NZEI relied heavily on the changes to the pre-consultation paper set out at [82] above. The earlier draft, dated 21 February, implied the disestablishment decision had effectively been made and that the change was “anticipated”. The latter version, dated 27 February, indicated disestablishment was under consideration, but that no decision would be made until the Minister had considered the feedback received during consultation.

[101]   I do not consider there is anything sinister or cynical about the changes. I am satisfied that, no later than the end of January 2025 (and possibly earlier), the Minister favoured disestablishment of the resource teaching roles. It is clear from the handwritten notes she appended to the 27 January paper that disestablishment and reinvestment was her firm preference. The Minister pushed back strongly on suggestions that there might be a downside to the changes. At that time the documents did not disclose an active proposal to consult. The 27 January paper asked the Minister to note that early Cabinet approval was required “to enable notification” of the changes.

[102]   The documents indicate the proposal to consult was developed in February. It is unclear when, or why, but shortly before the Minister presented her paper to the Committee on 12 February she decided it would be prudent to consult rather than “notify” the sector. It is also clear not all the Minister’s officials kept up with the change. Drafting of the February Cabinet paper appears to have started before the Minister decided to consult, and the paper clumsily presented two versions of the Minister’s position in the same document (“following … consultation I will make a decision”, on one hand, and “I wish to proceed with reprioritisation … I will notify sector stakeholders of my intention to disestablish”, on the other).

[103]   Similarly, the wording of pre-consultation advice by officials softened as consultation approached. It is apparent both the 21 and 27 February drafts sought to convey officials’ understanding of the Minister’s position. Mr Smith invited me to infer that between drafts officials received legal advice that it would be wise to convey

a greater level of open-mindedness. There is no evidence of that. While both drafts refer to consultation and make it clear the final decision would await the outcome of the consultation process, the obvious inference is that the document was amended because the first draft did not accurately reflect the way the Minister proposed to approach the exercise.

[104]   The Minister was entitled to begin the consultation process with a strong preliminary view. Indeed, as discussed already,48 there is generally no requirement that Ministers consult at all before making budget decisions (or before introducing other legislation).49 I am not prepared to reject the Minister’s affidavit based on inconsistencies in documents written for her by others. Contradictions in the advice she received and in the wording of the papers are consistent with busy officials preparing multiple briefings under pressure, without always paying careful attention to language.

[105]   Mr Smith invited me to find that the consultation was not “genuine”, at least in part because the Minister’s position did not change in light of the feedback she received. That conclusion does not follow. I have no doubt the Minister entered the consultation with disestablishment and reprioritisation as her firmly preferred approach. Even so, it was prudent for the Minister to ask the sector about its experience with the RT: Lit and RT: Māori services. Doing so provided her with a different perspective to the advice presented by officials and ensured she had not overlooked any factors which might have favoured retention. And it is not apparent that the sector’s concerns about the loss of skilled literacy staff fell entirely on deaf ears. The Minister noted that in late March, when she came to approve the final package, she asked for an extra $12 million, over and above the sum she sought in the 14 March draft, for structured literacy.

[106]   The feedback highlighted the invaluable contribution resource teachers make, both to classroom teachers and to students who require tailored support. At the same time, it highlighted some of the inconsistencies that had troubled officials. In her

48 See [34]–[40].

49 The collective agreement does not alter that position; it requires the Ministry to notify employing boards by 1 March that there is a possibility of overstaffing for the following year, with confirmation of defunding by 1 July.

affidavit, the Minister affirms that she carefully considered the alternatives presented in consultation before deciding to move ahead with the proposal.

[107]   I am satisfied the evidence shows the Minister strongly favoured disestablishment by the end of January at the latest. She prepared for budget discussions accordingly, at it would plainly have required information that was new and entirely unexpected to persuade her to change course. Nonetheless, I am satisfied she did not make a final decision about the proposal she would present to Cabinet until late March.

[108]   In Hamilton City Council v Waikato Energy Authority, Hammond J confirmed that “the fact that the minister (or other person) may take a great deal of persuasion to change her mind … does not thereby make her predisposed”.50 While I am not required to make findings on the question, NZEI has not shown that the Minister’s decision to refer the disestablishment proposal to Cabinet was predetermined.

Te Tiriti o Waitangi

[109]   The final issue arises from what Mr Smith describes as the “hard-edged question of law” fettering the Minister’s discretion, namely whether disestablishment of the resource teaching positions places the Crown in breach of its obligations under ss 4(d) and 9(1)(a) of the Act. In light of the conclusions I have already reached, most importantly that the Minister was not the relevant decision-maker and that the decision itself was non-justiciable, it is unnecessary for me to make firm findings about whether disestablishment was consistent with the Treaty.

[110]   NZEI does not seek declarations that the Staffing Order or the relevant parts of the Appropriation Act are inconsistent with the Crown’s obligations under ss 4(d) and 9(1)(a). Nonetheless, I record that if I were required to determine the point, I would not have exercised my discretion in favour of declaring the disestablishment inconsistent with those provisions, or with any broader Treaty obligations implicit in the Act. The Crown’s Treaty obligations are rarely “hard-edged”, especially in the

50 Hamilton City Council v Waikato Energy Authority [1994] 1 NZLR 741 at 763 citing Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 and Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671.

context of choices between competing policy options where reasonable minds may differ about their respective merits.

[111]Section 4 of the Act provides:

4        Purpose of Act

The purpose of this Act is to establish and regulate an education system that—

(a)provides New Zealanders and those studying in New Zealand with the skills, knowledge, and capabilities that they need to fully participate in the labour market, society, and their communities; and

(b)supports their health, safety, and well-being; and

(c)assures the quality of the education provided and the institutions and educators that provide and support it; and

(d)honours Te Tiriti o Waitangi and supports Māori-Crown relationships.

[112]   Section 9 lists a series of provisions in the Act that recognise and respect the Crown’s responsibility to give effect to the Treaty. Most relevantly, s 9(1)(a) cross-references s 4, and s 127(1)(d) provides that boards have responsibility to ensure their schools give effect to the Treaty “including by … taking all reasonable steps to make instruction available in tikanga Māori and te reo Māori and achieving equitable outcomes for Māori students.”

[113]   Mr Smith relied primarily on s 4(d), reaffirmed in s 9(1)(a), which provides that honouring the Treaty and supporting Crown-Māori relationships is one of the four principal purposes of the Act. He argued s 4(d) creates a free-standing set of rights and obligations which affected parties may enforce in the courts.

[114]   I doubt s 4 can be applied in that way. It sets out four broad and aspirational objectives, none of them easily susceptible to judicial assessment; indeed, it is easy to imagine affected parties claiming that almost any controversial policy decision breaches at least three. Like any purpose provision, s 4 is better regarded as an aid to interpretation than as a discrete and free-standing set of legal obligations.51

51     See Legislation Act, s 10(1) and (2).

[115]   In that respect, s 4 may be regarded as analogous to ss 3 and 8 of the Education Act 1989, which between them provided that children with special educational needs had the same rights as other children to enrol in and receive free education at a state school. In the High Court, Baragwanath J held those provisions created enforceable rights, capable of sustaining declarations of breach.52 The Court of Appeal disagreed, observing:53

[83] To repeat, while there are rights under the 1989 Act that can be  enforced by Court process, those rights do not include generally, and abstractly, formulated rights of the kind stated by the Judge. Rather, the rights are essentially those specifically established by and under the legislation which, to recall the Judge’s formulation, do in themselves provide for regularity and system and are designed to ensure appropriate quality. There is no free-standing general right, held and enforceable by each individual student under ss 3 and 8, of the kind stated.

[116]   Mr Ebersohn noted that the Act does not require the employment or retention of resource teachers. Moreover, disestablishment and reprioritisation were budget decisions, outside the scope of the Act. He submitted disestablishment does not disadvantage tamariki Māori per se. The funds previously allocated to RT: Māori will be reinvested in other aspects of Māori education. There is no evidence tamariki Māori will find it harder to access literacy support under the expanded structured literacy model that will be available to schools next year.

[117]   I agree the purpose provisions in s 4 are too general and abstract to give rise to enforceable obligations. In any event, there was limited evidence before me as to why, and how, disestablishment of the two positions might breach the Treaty. The only expert evidence on the topic came from the Rev Māmari Stephens, who described the Ministry’s decision to disestablish the RT: Māori positions, without full consultation with Māori “kanohi ki te kanohi”, as a breach of tikanga Māori.

[118]   NZEI’s submissions rely primarily on the same concerns about consultation that underpinned its claims of predetermination and absence of procedural fairness. I have already traversed several layers of alternative findings and it is not necessary for me to examine the detail of the Courts’ observations regarding the Crown’s

52     Daniels v Attorney-General (No 1), above n 16, at [137].

53     Attorney-General v Daniels, above n 16.

consultation obligations in the Treaty context.54 It is sufficient to observe that the principles of comity and non-interference are fundamental. Even when Treaty issues are engaged, it is not part of the Court’s function to comment on the adequacy of ministerial consultation prior to the introduction of legislation, whether in a budgetary context or otherwise.55

[119]   In any event, I am not satisfied the Ministry’s consultation process in the present case was as inadequate as NZEI maintains. Despite its brevity and the fact that at the same time schools were grappling with new curricula, the Ministry received thousands of submissions, many of which spoke powerfully of the value of the resource teaching positions. Mr Smith could not point to any relevant information that respondents had been unable to share. I am satisfied the Minister advanced the disestablishment proposal because she was convinced it was the best policy choice, not because she had insufficient information about the value of the disestablished positions.

[120]   Finally, and all else aside, I agree with Mr Ebersohn that any useful investigation into whether the provision the Government has made for Māori education complies with the Treaty could not be confined to the disestablishment of the resource teaching positions. RT: Māori (and RT: Lit, to the extent that service was disproportionately used by Māori students) are only part of a system designed to address educational inequity. The budget reinvests the savings in other literacy and Māori educational initiatives. It is possible the changes will result in improved services. Even if it were my role to do so, there is nowhere near enough evidence before the Court to allow me to draw conclusions either way. The evidence the parties have tendered has been assembled with understandable haste, and deals with a relatively small part of a large appropriation.

54   See New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) at 665 (per Cooke P), 683 (per Richardson J), 693 (per Somers J), where the Court of Appeal rejected the suggestion that a general duty to consult Māori is implicit in the Crown’s obligations under the Treaty, cf New Zealand Maori Council v Attorney-General [1989] 2 NZLR 142 at 152 “We think it right to say that the good faith owed to each other by the parties to the Treaty must extend to consultation on truly major issues”. See also Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at

[103] (per Glazebrook J) and [262]–[265] (per Williams J).

55 See discussion at [31]–[40].

[121]   A wide-ranging examination of educational inequity and whether the Crown is meeting its obligations under the Treaty is the kind of inquiry for which the Waitangi Tribunal is designed. As an inquisitorial forum, it will not be constrained by the limited evidence the parties have had the opportunity to tender in this Court. An inquiry of that nature would not be confined to the effects of disestablishment; the Tribunal would be able to examine the system as whole, drawing on appropriate expertise. It could consider whether, among other things, disestablishment of the resource teaching roles has left gaps in service the new investments do not fill.

Conclusion

[122]   The eloquent testimonials I have seen leave no room for doubt about the value of the contribution RT: Lit and RT: Māori  have  made  to  primary  education  in New Zealand over several decades. Nonetheless, the Minister formed the view that better outcomes, both for Māori learners and those struggling with literacy, will be achieved by disestablishing those positions and reinvesting the funds in other initiatives, most notably structured literacy. The Minister took her view to Cabinet, which decided to formalise the disestablishment of the resource teaching roles.

[123]   The decision took effect through two legislative instruments — the Staffing Order and the Appropriation Act — made by the Executive Council and Parliament respectively. That decision remains an appropriate matter for debate, both within the education sector and politically. Nonetheless, it represented a policy choice which was squarely the responsibility of the executive and legislative branches of Government. It is not amenable to judicial review.

[124]NZEI’s application is dismissed.

Costs

[125]   The parties have asked me to reserve the question of costs. While NZEI’s application has failed both as a matter of law and on the facts, there is a substantial public interest dimension to its claim. In light of that, the parties may agree that costs should lie where they fall, but I will leave that to them in the first instance.

[126]   If a ruling is required, I invite the parties to file memoranda of no more than four pages.  The Crown, as the successful party,  is to file its memorandum within   15 working days of the delivery of this decision; NZEI  will  then have  a  further  ten working days to respond.

Boldt J

Solicitors:

Annette Sykes & Co, Rotorua for Applicant Crown Law Office, Wellington for Respondent