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

[2025] NZHC 2423

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 2423

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:	22 August 2025
Appearances:	M S Smith, J Kirton-Luxford and M S Te Hira for Applicant H W Ebersohn and R Douglas for Respondent
Judgment:	25 August 2025

JUDGMENT OF McQUEEN J

[1]    New Zealand Educational Institute Te Riu Roa (NZEI) is the professional organisation and union that represents the interests of more than 50,000 members, being principals, teachers and supporting specialists staff working in primary, area and secondary schools, early childhood centres, learning support and school advisory services.

[2]    NZEI has filed a judicial review proceeding challenging the decisions by the Minister of Education (the Minister) to defund and therefore disestablish the teaching roles of Resource Teacher Literacy (RT Lit) and Resource Teacher Māori (RT Māori).

NEW ZEALAND EDUCATIONAL INSTITUTE TE RIU ROA INCORPORATED v MINISTER OF EDUCATION [2025] NZHC 2423 [25 August 2025]

The RT Lit and RT Māori roles provide specialist support in schools and kura across New Zealand. There are around 170 resource teachers currently in these roles.

[3]    NZEI challenges the legality  of  the  Minister’s  decisions  under  the  Judicial Review Procedure Act 2016, pt 30 of the High Court Rules 2016 and the common law, on the grounds they:

(a)breach the principles of Te Tiriti o Waitangi  |  Treaty  of  Waitangi (the Treaty) and the Treaty requirements in ss 4(d) and 9(1) of the Education and Training Act 2020 (the Act);

(b)were based on an unfair consultation process;

(c)were pre-determined by the Minister; and

(d)were unreasonable in all of the circumstances.

[4]    In its application for interim relief, NZEI seeks orders that the Minister ought not to take, or direct third parties (including without limitation boards of trustees who employ affected resource teachers) to take, any further action that is, or would be, consequential on the decision made by the Minister to defund/disestablish the RT Lit and RT Māori teaching roles.

[5]    The Minister says the application should be dismissed. She says the threshold for making an interim order has not been met as the order sought by NZEI will not protect its position and nor is it in the interests of justice for such an order to be granted.

[6]    For the reasons set out below, I dismiss the application for interim orders. I conclude that a prompt hearing of the substantive claim is necessary and will issue a minute as to timetabling matters.

Background

[7]    The resource teacher roles have a long history in New Zealand’s education system. There have been several reviews of the resource teacher roles over time, but

the reviews have not led to significant change, although strengths and issues relating to the roles have been identified. In their current form, RT Lit and RT Māori roles are based at host schools with those teachers serving a cluster of schools. This means the RT Lit and RT Māori have an office at a host school but travel and work in schools within the cluster.

[8]    Teachers serving in the RT Lit role provide literacy expertise to assist students in years 0–8 who require intensive teaching and reading, writing or oral language. Teachers serving in the RT Māori role provide te ao Māori expertise to actively promote the revitalisation and maintenance of te reo Māori and tikanga Māori for students. In both cases, the support is both direct to students and indirect through their teachers.

[9]    Teachers are employed by school boards of trustees, rather than by the Minister or the Ministry of Education (the Ministry). The RT Lit and RT Māori roles are provided for in the relevant collective agreements with teachers or their representatives, such as NZEI. Amongst other things, those agreements set out the salaries for the resource teacher roles and provide for any disestablishment of such roles.

[10]   NZEI says that the resource teacher roles have operated as important mechanisms for discharging the Crown’s Treaty obligations to actively protect and promote literacy, te reo Māori and tikanga Māori in New Zealand’s primary and secondary schools. Nationally, Māori and Pasifika students are disproportionately represented as needing extra literacy support from RT Lit to reach their potential as students, and thus as adults.

[11]   The Minister says that a strategic shift is currently underway in the Ministry’s approach to providing literacy support. A system is being built that embeds effective, in-school, targeted expertise to accelerate progress in literacy. She explains that she wanted to see a shift that brings curriculum supports closer to children and young people and addresses some of the issues with distribution, access and variability. The Minister tasked the Ministry to consider options to strengthen the implementation of structured literacy, including staffing resource to support learners who have fallen

behind. She says that the number of teachers in this role has increased during her time as Minister, meaning that this targeted support to accelerate progress and achievement will be accessible to more schools and students. The Minister says that this approach to targeted curriculum supports, aligns with and complements work the Ministry is doing to strengthen the universal offering delivered by classroom teachers.

[12]   The Minister says that given the strategic shifts she has made since becoming Minister, she has directed the Ministry to consider if resources are being used efficiently and effectively, if services and interventions are aligned with best practice and evidence, and if resources are adequately targeted to the children who need it the most. The Minister says that reviewing the detail of Budget appropriations, checking for duplication, and ensuring resources are targeted and necessary are important considerations for effective utilisation of funds.

[13]   Key events relevant in the present case occurred from early December 2024, when the Minister began to receive advice from the Ministry on the feasibility of new Budget 2025 initiatives. The Minister was considering options to strengthen the implementation of structured literacy in schools given that the new curriculum in English and Te Reo Rangatira (the te reo Māori curriculum for students learning te reo Māori in immersion settings) was being required in schools from term one in 2025. Importantly, for present purposes, the advice included the possibility of reprioritisation of funding for the RT Lit and RT Māori roles.

[14]   The Ministry explained to the Minister that, to be realised in 2026, savings from reprioritising RT Lit and RT Māori needed early Budget decisions from Cabinet by 28 February 2025. This was so notification to school boards of trustees could be given in the timeframe required under the relevant collective agreements with teachers in relation to surplus staff processes. Further advice was given by the Ministry to the Minister about the issues, risks and timeframes arising.

[15]   Ultimately, the Minister submitted a paper seeking early Budget approval for reprioritising funding for RT Lit and RT Māori to the Cabinet Social Outcomes Committee (the Committee). The Minister’s paper set out the proposal to consult on reprioritising funding for RT Lit and RT Māori services and the Minister’s intention

to reinvest that funding in frontline, in-school support to improve learner outcomes. The paper set out the Minister’s view that the services were an inefficient and inequitable use of resources and the savings realised could instead be directed into targeted resources for learners in schools and qualified teachers and literacy specialists could be redeployed into areas of skills shortage in the education workforce.

[16]   The paper also acknowledged the notification requirements of the relevant collective agreements and that the Minister would need to inform school boards of the proposal by 28 February 2025 and that, following consultation, she would make her decision whether to disestablish the roles. The paper confirmed 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. The paper was considered by the Committee on 12 February 2025, and the Committee noted the Minister’s proposal to reprioritise funding for RT Lit and RT Māori services and the need for early Cabinet approval to enable sector notification and agreed that she should undertake that notification. On 17 February 2025, Cabinet confirmed the decision of the Committee.

[17]   The Ministry then advised the Minister about a consultation process, noting that her final decision regarding funding for the RT Lit and RT Māori roles was required on 1 April 2025. The Minister says that balancing the interests of the sector against the requirements of the Budget process was an important factor to the consultation process. She expected there would be significant interest in the proposal and that it would be important to provide sufficient detail as part of the consultation process. The Minister explains she was advised against communicating specific initiatives for investing the reprioritised funding because of the Budget process and Budget secrecy conventions; in effect to avoid pre-empting final Budget decisions.

[18]   On 28 February 2025, the Minister’s proposal for changes to funding for    RT Lit and RT Māori was publicly announced, and a consultation document released. The document included general comments about reinvestment of the reprioritised funding into frontline services, for more equitable resourcing of education initiatives to deliver better learner outcomes, and stated that if after considering the feedback, the Government decided to reinvest funding, it will focus on ensuring expertise is closer to the child and scaling frontline services for all students.

[19]   Officials from the Ministry met with NZEI representatives to convey the announcement, which was a surprise to NZEI. Consultation materials were sent to all state and state-integrated schools and peak bodies. Consultation materials were also sent to other key stakeholders identified by officials. Consultation about the proposal finished on 21 March 2025, amounting to a three-week period.

[20]   The draft Education package (including the reprioritisation  of RT Lit  and  RT Māori roles) was submitted to Treasury and the Minister of Finance on 14 March 2025, as part of usual Budget processes.

[21]   The  Minister’s  office   received   two   reports   from   the   Ministry   on   28 March 2025. One gave a detailed breakdown of the feedback received through consultation, while the second provided advice on next steps in relation to RT Lit and RT Māori and funding for the Māori Education package, updated her on the outcome of consultation and proposed five options to consider following the consultation.

[22]   The Minister returned from overseas travel on 29 March 2025 and met with her officials on 31 March 2025 to discuss the two reports. The Minister then directed officials to  proceed  with the proposal to reprioritise funding for both  RT Lit and  RT Māori services, having weighed the risks and implications of the options available to her alongside the consultation feedback, the changes across education delivery and the proposed Budget 2025 package.

[23]   On 14 April 2025, Cabinet approved the Budget initiatives in Vote Education, which included reprioritising funding for RT Lit and RT Māori services and other changes made.

[24]   Accordingly, Budget 2025 makes no appropriation for RT Lit and RT Māori in the 2026 school year. The legislation for Budget 2025 is the Appropriation (2025/26 Estimates) Bill which is currently before Parliament. Once enacted, it will incorporate the estimates into legislation, which set out the scope of each appropriation, including that for Education.

[25]   School staffing, including RT Lit and RT Māori roles, is delivered to schools by Order in Council, which is published each year by the Ministry.1 Annual orders generate funding for these (and other) teaching roles and related funding for the employing school. A Staffing Order provides the means to calculate the number of teachers employed by a school whose salaries will be paid out of the appropriated funds for the relevant school year. There is a substantial process for preparing a Staffing Order so that indications of changes to school staffing that may be included in the package submitted to Cabinet for inclusion in the Education Budget.

[26]   The Education (2026 School Staffing) Order 2025 (the Staffing Order 2026) was made by the Governor-General on 4 August 2025 and  is to come into force on  5 September 2025. It does not include funding for the RT Lit and RT Māori roles for the 2026 school year.

[27]    On 25 June 2025, written notice was sent to school boards of trustees of the decision to discontinue funding of RT Lit and RT Māori roles through Budget 2025. Those letters were formal notice of the decision in accordance with the collective agreements and to enable schools to plan for the required changes. Under the collective agreements, employment may be terminated by giving not less than two calendar months’ notice, unless a shorter period is mutually agreed. Employment of resource teachers is currently funded until 27 January 2026 (under the Staffing Order made in 2024). Therefore, notice of disestablishment needs to be given two months prior to that date, being 27 November 2025.

[28]   There have been further communications to schools from the Ministry about the surplus staff process, including enquiring as to progress being made.

The application for interim relief

[29]   As already noted, in its application for interim relief, NZEI seeks orders that the Minister ought not to take, or direct third parties (including without limitation boards of trustees who employ affected resource teachers) to take, any further action

1      Education and Training Act 2020, s 582.

that is, or would be, consequential on the decision made by the Minister to defund/disestablish the RT Lit and RT Māori teaching roles.

[30]   In practical terms, NZEI wishes the Court to protect the continued existence of the teaching roles in issue (including their funding by the Ministry) until determination of the substantive proceeding. NZEI says that the steps being taken by the Ministry to implement the decisions are creating and adding to the stresses felt by the affected teachers as well as the schools, students and communities they support.

[31]   NZEI wrote to the Ministry on 12 May 2025 expressing its concern about the nature of the consultation process undertaken, highlighting the Crown’s obligations under the Treaty and the Act, and seeking the urgent release of documents under the Official Information Act 1982. NZEI says that there have been delays in documents being made available. In part, this may be linked to it involving release of Budget documentation.

[32]   Counsel for NZEI sought agreement from the Crown to an urgent substantive hearing that would avoid the need for an application for interim orders. I understand agreement could not be reached as the Crown would not agree not to rely on ongoing steps as relevant to discretionary factors that would not favour relief, should any judicially reviewable error be found. Despite this, both parties are agreed that resolution of the substantive proceeding as soon as possible is desirable.

[33]   In any event, NZEI now applies for these interim orders, seeking to preserve the position of existing teachers in RT Lit and RT Māori roles, and to prevent accruing prejudice to those resource teachers, as well as to the students, schools and the communities that those teaching roles support.

Test for interim relief

[34]   NZEI’s application for interim relief is made under s 15 of the Judicial Review Procedure Act and/or the inherent power recognised in r 30.4 of the High Court Rules.

[35]   The Court may, under s 15 of the Judicial Review Procedure Act, make an interim order declaring (in the case of the Crown) that it ought not take any further

action that is consequential on the exercise of a statutory power if it is “necessary to do so to preserve the position of the applicant”.2

[36]   The Supreme Court set out the relevant test in Minister of Fisheries v Antons Trawling Co Ltd as follows:3

Before a Court can make an interim order … it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.

Is an interim order necessary to preserve the applicant’s position?

[37]   Counsel for NZEI, Mr Smith, submits that the interim orders sought are necessary to preserve the affected RT Lit and RT Māori teaching positions—to place the teachers in the position they would have been in but for the alleged illegalities. He says  that  generally  the  existing   RT Lit   and   RT Māori   are   employed   until  27 January 2026 and that is a position that can be preserved.

[38]   Mr Smith submits that interim relief is necessary because there is growing pressure on employing schools to disestablish the existing teaching roles and on affected teachers to seek new jobs on a precautionary basis, and the Ministry has been encouraging schools to commence surplus staffing processes on the basis those roles will not be funded from late January 2026. Mr Smith particularly emphasises the human toll in stresses to affected teachers, schools and their communities, and that the loss of affected teachers to replacement jobs will be hard to reverse.

[39]   Counsel for the Minister, Mr Ebersohn, submits that the order sought by NZEI will not have the effect of preserving the position of NZEI and there is no such order that can be made. He submits that there cannot be an order prohibiting the Minister

2      Under s 15(2) of the Judicial Review Procedure Act 2016, interim orders may be made, amongst other things, prohibiting a respondent from taking action that is consequential on the exercise of a statutory power but, under s 15(3), if the Crown is the respondent, then a declaratory order is needed. The meaning of statutory power is defined in s 5.

3      Minister of Fisheries v Antons Trawling Co Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3], citing Carlton & United Breweries Ltd v  Minister of  Customs  [1986] 1 NZLR 423 at 430 per Cooke J. See also Hata v Attorney-General [2023] NZHC 1255 at [22].

from acting under law that is not being challenged. He says that Parliament, through the Budget 2025 legislative process, has reprioritised funding for RT Lit and RT Māori and this has been operationalised by the Staffing Order 2026. Suspending the operation of the Staffing Order 2026 would not mean there is any provision in the appropriation for resource teachers in the 2026 school year. He therefore says that interim relief would need to be in mandatory terms which is not ordinarily appropriate in judicial review and further is not justified in the present case where the merits are weak.

[40]   Mr Smith confirmed at the hearing before me that NZEI does not seek to suspend the Staffing Order 2026 nor to challenge the appropriation legislation.4 Rather, NZEI’s focus is on review of the Minister’s decision to defund the RT Lit and RT Māori roles as that decision was advanced to Cabinet. Mr Smith says that is a separate decision amenable to review. In its statement of claim, NZEI’s relief includes a declaration that the disestablishment of the RT Lit and RT Māori teaching roles was unlawful.

[41]   In contrast, Mr Ebersohn characterises that contention as an impermissible challenge to preliminary steps taken by the Minister in relation to Budget 2025 where the Minster  has  not  exercised  any  separate  statutory  power  or  public  power.  Mr Ebersohn submits instead that Parliament is accountable to the electorate for its appropriation decisions.

[42]   Both the Minister and NZEI look (among other things) to the decision of Anning v Minister of Education to support their respective positions.5 In Anning, Goddard J concluded that:6

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

4      Mr Smith says that not seeking such measures does not mean the Staffing Order could not be amended if required, nor that the Crown’s Treaty obligations are limited by what is expressly provided for in existing Budget appropriations, nor that Parliament is not free to pass further appropriations legislation at any point.

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

6 At [136].

Act, does not retrospectively render his determination lawful or immune from review…

[43]   The issue of how to characterise the Minister’s decision and/or actions in an appropriations context (including the relevance of Budget conventions) will require further exploration in the substantive hearing. While Mr Smith accepts that NZEI does not challenge an express power under the Act (as was the case in Anning) he submits that a public power may be exercised and reviewable in any event, as is alleged here.7

[44]   There is a further significant point in NZEI’s claim. That relates to the Treaty references in the Act, which speak of honouring and giving effect to the Treaty. It appears that the meaning of these provisions has not previously been addressed by the courts. This too will require consideration in the substantive hearing in relation to the obligations alleged by NZEI as to the Crown’s breaches in the process adopted to defund the RT Lit and RT Māori roles. Here too, the parties’ positions as to the application of the Act when the Minister was not exercising an express power from the Act are contested.

[45]   Those issues illustrate that NZEI has a seriously arguable case as to whether the Minister has exercised a public power that is amenable to review, and whether the Treaty references in the Act required the Minister to undertake a more in-depth consultation. However, returning to the question of whether the interim order sought will have the effect of preserving NZEI’s position, I conclude that it will not have this effect.

[46]   NZEI has  a position to  preserve in the  sense that the existing RT Lit and  RT Māori are in principle able to remain employed until 27 January 2026. What NZEI seeks in effect to stop is further progress with the implementation of the surplus staffing processes school boards of trustees may need to undertake in response to the defunding of the RT Lit and RT Māori roles. I consider that it is possible for NZEI to have a position to preserve in this sense. However, there is little practical effect of the interim order as sought.

7      See Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.

[47]   I agree with Mr Ebersohn that the order sought amounts to effectively requiring the Minister to keep quiet, that is, to do nothing beyond what has already been done. While the order might stop further proactive communications from the Ministry to school boards of trustees, the reality is that those boards, their schools and students, and the affected teachers (and probably all teachers) are well-aware of the Government decision not to fund RT Lit and RT Māori roles from 2026. Further communications from the Ministry will not alter the knowledge already held by those parties.

[48]   The interim order does not seek to have any direct impact on the boards of trustees, who are the parties responsible for the relevant employment relationships with the affected teachers. While I acknowledge the emotional toll for the affected RT Lit and RT Māori teachers of the change in their position, I do not see that the interim order will mitigate their stress, as submitted by Mr Smith, in a manner that preserves their position. They will no doubt continue to consider their own positions, and what is best for them, as they are entitled to, whether or not any further steps are taken by the Minister. What will make a real difference is for them to know the outcome of the substantive claim in this matter.

[49]    I understand that formal notice of disestablishment of the relevant RT Lit and RT Māori roles must be given by 27 November 2025 in terms of the collective agreements, as employment may be terminated by giving not less than two calendar months’ notice (unless a shorter period is mutually agreed).8

[50]   I consider that the substantive claim in this matter should be heard promptly. I consider that making directions to that end responds to the overall justice of the situation.

[51]   NZEI seeks a very early hearing, on the basis that the necessary material is before the Court already. The Minster favours a hearing within two months to allow preparation time, including filing further evidence. It is also necessary to work within the limitations of the Court’s schedule. The matter is to proceed to hearing in accordance with my Minute also issued today.

8      Employment of resource teachers is covered by the Education (2025 School Staffing) Order 2024 until 27 January 2026.

Result

[52]The application for interim orders is dismissed.

McQueen J

Solicitors:

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