The School Donation Debate: Shining a Light on the Legal Vacuum Behind Persisting Inequality in New Zealand Education

Abstract

In the Court of Appeal decision of Attorney-General v Daniels, the content of “the right to free education,” provided for in s 3 of the Education Act 1989, was narrowly defined as a procedural rather than a substantive right. The court also identified alternative accountability mechanisms, which protected the right to free education. Some commentators have criticised the procedural right as being inconsistent with the substantive right to education contained in New Zealand-ratified international instruments. De facto compulsory donations in New Zealand state schools undermine the right to free education. Prolonged government education underfunding has resulted in state schools relying on donations to fill funding gaps. The persistence of this issue despite public dissatisfaction highlights the inadequacies of the current accountability framework for the protection the right to free, quality education in New Zealand. Where government policy causes breaches of s 3, the accountability via the legislative framework and alternative mechanisms is inadequate. The inadequacies reveal inconsistency with New Zealand’s international obligations, which require governmental accountability and sufficient government funding to education. The discussion demonstrates the need for better governmental accountability for the right to free, quality education in New Zealand.