Curriculum Change That Bypasses Democracy
Secondary legislation, often called regulations or rules, is the legal instrument that brings an Act of Parliament into life in everyday situations. It sets the precise policy guidelines and statements that allow people — including schools — to act in accordance with the overarching primary law, known as the empowering Act.
In schools, curriculum statements and ministerial directives (like the cellphone ban) operate as secondary legislation. The Education and Training Act (2020) is the empowering Act.
Minister Stanford has made explicit use of Section 90 of that Act, which grants her wide-ranging powers to issue Foundation Curriculum Policy Statements and National Curriculum Statements. These powers have been used to mandate the hours devoted to reading, writing, and maths (RWM) each week, to issue curriculum documents, and to legally require school boards to ban student cell phone use.
When we look at Section 90 in isolation, it is highly troubling. It seems to grant the Minister near-unilateral powers to issue education directives without needing extensive consultation. It shortens the distance between a policy idea and its enactment.
However, the sections in any Act are fundamentally connected and are supposed to operate in a logical, hierarchical way.
In the Education and Training Act 2020, Ministerial power is framed by higher-level statutory mandates:
- Section 4: Purpose of Act. This sets the supreme purpose, and it makes it explicit that a successful education involves more than academic achievement.
- Section 5: National Education and Learning Priorities (NELPs). This section is the binding layer that translates Section 4’s purpose into policy. Crucially, the NELP statement must be consistent with the mandatory, multi-faceted objectives in Subsection (4). These objectives — which cover attainment of educational potential, dispositional development, and social, cultural, and Te Tiriti awareness — are linked by the use of the word “and”. This makes them cumulative objectives of equal importance, consistent with the holistic spirit of Section 4.
These higher sections act as a legal ‘containment field’ around the powers exercised under Section 90. Practically, this means any statement issued using the powers granted under Section 90 must be consistent with the NELPs — these cannot be disregarded because they represent the Act’s higher-level objectives and purposes.
It doesn’t matter if you disagree with them. They are the law. A democratic process must be gone through for them to be changed.
The key legal question we must ask is: Have the Ministerial statements issued under Section 90 had the effect of implicitly changing the NELPs?
- Current Lawful Operation: Until Section 5 is officially removed (as planned in the current amendment bill), schools and boards must still operate in accordance with the whole Act, meaning they must still give equal importance to the NELP’s holistic objectives.
- Mandatory Consultation: Any statement that has the effect of altering these objectives implicitly requires the extensive consultation set out in Section 5(6), which includes consulting children, young people, and numerous national bodies.
The Minister has publicly championed the curriculum consultation process, but the question remains whether this consultation met the high bar required when the NELPs are at stake. National bodies have publicly walked away from parts of the process.
It is also possible that the consultation was offered because the Minister or Ministry recognised the statements do fundamentally alter the NELPs.
Consider the mandate for teaching reading, writing, and maths for an average of an hour a day each. While intended to raise academic achievement, the statement arguably elevates that academic objective above the other two, narrowing the scope under which learners can reach their educational potential.
Consider the shift in curriculum design from the holistic Understand-Know-Do model to the narrowed Knowledge-Practice model, and the push for a curriculum grounded purely in ‘the’ science of learning and explicit instruction. How can this shift allow for the full, non-negotiable development of the second and third NELP objectives (social/dispositional development and Te Tiriti awareness) in a way that is consistent with the law’s intent?
Consider the removal of the compulsory teaching of Māori and Pacific authors, and its replacement with Shakespeare, in the senior English curriculum. This action, reportedly influenced by the Minister’s office, directly undermines the explicit requirement in Section 5 to instil an appreciation of diversity and Te reo Māori.
By issuing directives under Section 90 that implicitly elevate one objective (achievement) at the expense of others (dispositions, social/cultural/Te Tiriti), the Minister is effectively making policy that is inconsistent with the higher-level statutory framework of Section 5. The effect is clear: the Minister is trying to bypass the democratic checks and balances and mandatory consultation requirements that Section 5 was designed to enforce.
The fate of Section 5 in the coming amendment bill is irrelevant to the present. As long as it remains in the Act, it is the law of this land. The Minister and Ministry must develop curriculum in a way that is lawful, because if they don’t they put schools and school boards at risk of acting in a way that is inconsistent with their legislative obligations.
The repeal of Section 5 is highly troubling. What it signals is a Minister changing the law to fit non-compliant regulations. This is how democratic scrutiny is bypassed. It is a tactic used by elected autocrats such as in Hungary, and is identified by democracy scholars such as Levitsky and Ziblatt as an indicator of democratic backsliding.
It is this that is at stake.