KAWERAU INTERMEDIATE SCHOOL BOARD OF TRUSTEES V MINISTER OF EDUCATION HC ROT CIV 2012-463-000138

KAWERAU INTERMEDIATE SCHOOL BOARD OF TRUSTEES V MINISTER OF EDUCATION HC ROT CIV 2012-463-000138 [11 July 2012]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCIV 2012-463-000138[2012] NZHC 1632UNDER Part 1 of the Judicature Amendment Act1972IN THE MATTER OF An application for Judicial ReviewBETWEEN KAWERAU INTERMEDIATE SCHOOLBOARD OF TRUSTEESApplicantAND MINISTER OF EDUCATIONRespondentHearing: 1 July 2012Counsel: V Campbell, K Sullivan and M Hammond for ApplicantJ Holden and R Moran for RespondentJudgment: 11 July 2012RESERVED JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 11 July 2012 at 2:30pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Tompkins Wake, Lawyers, HamiltonCrown Law, WellingtonIntroduction[1] The Kawerau Intermediate School Board of Trustees applies for judicialreview of the Minister of Education's decision to close Kawerau Intermediate Schooland Kawerau College and to establish a new Year 7 – 13 school on the current Kawerau College site.[2] The Board claims that the Minister's decision is invalid in that she failed to take into account a number of relevant factors and was influenced by some irrelevant factors in reaching her decision. Furthermore, it is also claimed that the Minister was biased in reaching her decision to close Kawerau Intermediate School, in that she did not approach the decision with an open mind.[3] At the outset, I wish to record that both parties have come to Court in good faith. The evidence presented by the Board suggests that there is a great deal of public support for the retention of a separate intermediate or middle school in Kawerau. I was impressed with the obvious commitment on the part of the teaching staff of the school and the Board to achieving the best educational outcomes for children at the school. They fear that the amalgamation of intermediate or middle school aged pupils with secondary or senior school aged pupils would not be advantageous for the younger students for a whole host of reasons. They are clearly of the opinion that the strength of feeling in the community has not adequately been taken into account in the decisions which have been made.[4] I also gained the impression from the evidence that the Minister has also found the decision difficult but that she too was motivated by a keen desire to ensure the best educational outcomes for Kawerau children. Both parties, it seems to me, are committed to the same end but there are genuine differences about the means to achieve that end. It should not be forgotten that everyone is striving to do right by the children of Kawerau.[5] A second point I want to make clear is that this is an application for judicial review. It is not an appeal. I do not have the ability to assess the merits of theMinister's decision and reach my own view as to whether the decision to closeKawerau Intermediate School is appropriate. That is not my role. The Court's focus in applications for judicial review is on process. The question that the Court must ask itself is whether the procedure followed was in accordance with the Education Act 1989 and the requirements for statutory decision making? Even if the Board were successful in the application, the most that the Court could do would be to order the Minister to reconsider her decision. After reconsideration in accordance with guidelines from the Court, the Minister might reach the very same decision.Factual background[6] For almost the entire period at issue, the Minister of Education was the Hon. Anne Tolley. Following the general election held on 26 November 2011, the Hon. Hekia Parata became the Minister of Education and it was she who made the final decision on 21 December 2011.[7] In early May 2010 the Minister received a report from the Ministry of Education in relation to the provision of education in Kawerau. The report noted that the six schools in the Kawerau cluster of schools were collectively and seriously affected by declining rolls, student attendance and engagement issues, declining levels of achievement in literacy and numeracy, student behaviour issues and increasing surplus capacity. In light of these issues, the Ministry proffered the view that there was an urgent need to strengthen education provision in Kawerau.[8] The report identified four initial options (Options 1 to 4) all of which included the merging of Kawerau Intermediate School and Kawerau College on the Kawerau College site with Kawerau College being the continuing school. TheMinistry's preference was Option 1. Option 1 would have involved:(a) Merging Kawerau Intermediate School and Kawerau College;(b) Merging Kawerau North School with Kawerau Central School on the Kawerau North School site with Kawerau Central School being the continuing school;(c) Changing Putauaki School from a Year 1 - 8 contributing school to a Year 1 - 6 contributing school; and(d) Retaining Kawerau South School.[9] The report asked the Minister to agree to the commencement of consultation regarding the proposed strengthening of education provision in Kawerau through the merger of schools and the provision of education development initiative resources. The Minister agreed to consultation being commenced. The Minister was asked to indicate her preferred option for the reorganisation of the Kawerau cluster of schools from the four alternatives, but she declined to do so. She asked the Ministry to proceed on the basis that consultations would take place in respect of all four optionsin the Ministry's report.[10] On 21 October 2010, the Minister commenced the consultation process when she attended a meeting in Kawerau of the Board of Trustees and Principals of all potentially affected schools. She provided each of the Board Chairs in Kawerau with a letter which set out the initial four options and a fifth option (Options 1 to 5) that Ministry officials had subsequently identified. The letter confirmed that the Minister would be consulting about those options. In the week following that meeting, Ministry officials met with the individual Boards. The Ministry also engaged afacilitator to conduct consultation on the Minister's behalf.[11] In turn, the Kawerau Intermediate School Board of Trustees began consultation with the parents and caregivers of the students attending the school. Three hui were held on 26 October 2010, 27 October 2010, and 2 November 2010. The attendees at the three hui held by the Board did not support any of the options put forward by the Minister. A submission was prepared by the Board outlining the feedback received from the community at each hui and sent to the Ministry on or about 12 November 2010.[12] After receiving submissions from the Board as well as the other schools affected, the Ministry prepared a further report for the Minister dated 16 December 2010. The report noted that as a result of consultation some practical alternativeoptions for consideration had emerged. The Ministry considered that these alternatives should be included in the next round of consultation. Three options were proposed for the next round of consultation. The Minister was asked to indicate whether she wanted all three of these options to be considered or whether she would prefer to narrow the range of options. The Minister expressed her preference that the Board be asked to consult their parents about all three of the options.[13] Of the three further options for consultation (Options A, B and C), only Option B envisaged the retention of Kawerau Intermediate School. Option A envisaged the merger of Kawerau Intermediate School and Kawerau College on the Kawerau College site as a Year 7 - 13 school, while Option C envisaged the closure of Kawerau Intermediate School altogether and placing its Year 7 – 8 students into two reconstituted primary schools which would then encompass students from Year 1 – 8.[14] Between 17 February 2011 and 16 March 2011, the Board circulated a petition in Kawerau which asked adults over 18 years of age and residing in Kawerau to consider Options A, B and C and if they supported Option B, to sign the petition. 2,323 residents over the age of 18 signed the petition indicating their support for Option B.[15] On or about 16 March 2011 the Board forwarded additional submissions to the Ministry which supported the adoption of Option B. Further information was provided about the serious concerns held by the community about putting Year 7 - 8 students on the same site as Year 9 - 13 students.[16] The Ministry provided the Minister with a third report on the consolidation of education provision in Kawerau dated 14 April 2011. The Minister considered the report and formed the view that she should go forward with Option C, which was to:(a) Create two full primary schools by changing Kawerau South School to a Year 1 - 8 school and merging Kawerau North and Kawerau Central Schools with Putauaki School on the Putauaki site to form a Year 1 – 8 school;(b) Close Kawerau Intermediate School; and(c) Retain Kawerau College.[17] In her affidavit sworn in opposition to the application for judicial review, the Minister explains that she was of the view that Option C was the best way to sustain high quality education in Kawerau. In particular, she considered that Option B had too many schools to sustain high quality infrastructure for a declining or static population. It involved a reduction from seven schools to five, which in her view was not a sufficient reduction. She states that she was not looking at the current performance of schools as much as looking ahead to their performance in some 10 or 15 years from now. She was of the view that smaller schools tend to lose students which impacts on the number of teachers they can sustain, the level of operational funding they receive and creates issues regarding maintenance and management of school property, which may be too large for the school's roll.[18] Having reached the view that Option C was the best option for Kawerau, the Minister proceeded to give the relevant schools 28 days to provide any further arguments or other feedback about the changes proposed. This was in accordance with s 154 of the Education Act, which sets out the provisions to be followed by the Minister if it is proposed to close a school.[19] On 17 May 2011, a hikoi was held in Wellington in support of keeping Kawerau Intermediate School open. The Minister met with a delegation from the school at that time. In her affidavit the Minister states that she listened to what the delegation had to say as well as addressing issues previously outlined in the Board'ssubmissions. The Minister recalls listening to comments that the school's Principal made about the value of membership of the Association of Intermediate and Middle Schools. The Minister also states that she was very impressed by one of theIntermediate's students, a teenage boy, who spoke to her. She remembers him as very articulate and as having ably presented his views of Kawerau Intermediate School. The Minister states that she took on board what was said and took it all into account in her decision. In addition, further submissions from the Board were submitted to the Ministry.[20] During the 28 day period specified in s 154 of the Education Act, the Minister states that further consideration was given to what would strengthen the education provision in Kawerau into the future and another alternative for the reorganisation of schools was developed. This was known as Option D and included:(a) Retaining Kawerau South School as a Year 1 - 6 school and merging Kawerau North and Kawerau Central Schools with Putauaki School on the Putauaki site to form a Year 1 - 8 school but later changing it to a Year 1 - 6 school when the changes below were fully implemented;(b) Closing Kawerau Intermediate School and Kawerau College and establishing a Year 7 - 13 school with two campuses on the current Kawerau College site with a Year 7 - 10 campus situated on the western part of the site and a Year 11 - 13 campus situated on the eastern part of the same site; and(c) Establishing Te Whata Tau o Putauaki as a designated character Year 1 - 13 school on either the Kawerau North School site or on the Kawerau Intermediate School site.[21] The Ministry set out Option D in a fourth report to the Minister dated 30 June 2011. The proposal was a new schooling model for Kawerau in that it involved the creation of a Year 7 - 13 school with two campuses. Of note is that it was proposed by Kawerau College itself, notwithstanding that the College was to be retained under the option preferred by the Minister at the time.[22] The Minister also states that this further option was developed in large part because the earlier option of merging Kawerau Intermediate School and Kawerau College had been discounted due to the extent of public animosity towards that option. Much of this animosity was based on the perceived negative influence of the older students on younger students and the belief that the Kawerau College Board and staff would not effectively address that issue. The Minister states that she also felt that the new option would help address the large amount of dissatisfaction withKawerau College expressed by the community through the various consultation rounds.[23] The Minister states that, while the provision of primary schooling in Kawerau had been well traversed in the consultation process, the concerns about Kawerau College had not been considered in the earlier consultation. The Minister states that she therefore agreed to a further round of consultation on the proposal that Kawerau Intermediate School and Kawerau College be closed and a new Year 7 - 13 dual campus school located on the current Kawerau College site be established to take effect from 2013.[24] In relation to the other schools in Kawerau, notices were gazetted in relation to the merger of Kawerau North School, Kawerau Central School and Putauaki School as a Year 1 – 8 school on the Putauaki School site and the establishment of Te Whata Tau o Putauaki as a designated Year 1 - 8 Maori immersion school.[25] The Minister says she agreed to the new Year 1 - 8 Maori immersion school being established on the Kawerau North site using the technology facilities of either of the proposed Year 7 - 13 school or at the intermediate school should it continue. In the end she decided that the school should be located in the Kawerau North site in part because she was concerned that there needed to be a good geographic spread of schooling in Kawerau.[26] The Minister wrote to the Board and other stakeholders initiating further consultation on the future of Kawerau Intermediate School and Kawerau College in a letter dated 11 July 2011. There followed a number of consultation events in Kawerau, including meetings organised by the school communities and meetings with key stakeholders.[27] The Ministry provided a fifth report to the Minister dated 3 October 2011 which advised the Minister of the result of the consultation process. Kawerau College supported the proposal for a Year 7 – 13 dual campus school as one that best ensured strong secondary provision in Kawerau for the future. The Principal of Kawerau North School made submissions suggesting that there was support for theproposal for a new Year 7 – 13 dual campus school. The Putauaki School Continuing Board (ie, the board set up to oversee the merging of the primary schools and which included members of Putauaki, Kawerau North and Kawerau Central School Boards) also supported the dual campus Year 7 – 13 school. The Board of Kawerau Intermediate School opposed Option D and stated its preference for a separate intermediate or middle school for Years 7 – 8, Years 7 – 9 or Years 7 – 10 on the intermediate site.[28] Following that report, the Minister states that she reached the view that the proposal that both Kawerau Intermediate School and Kawerau College should be closed and that a new Year 7 - 13 dual campus school should be established on the current Kawerau College site should proceed. She states that she agreed to sending a further letter pursuant to s 154 of the Education Act, giving the Boards of the affected schools another 28 days to provide any further arguments in favour of Kawerau Intermediate School and Kawerau College staying open. The letter to the Boards is dated 11 November 2011.[29] In her affidavit, the Minister states that in reaching that view she considered it would be good for education in Kawerau for a new school to start afresh, allowing it to develop a new culture. Having the dual campus design also allowed for a sharing of specialist services while retaining some separation between younger and older children. In coming to her view, she states that she was very conscious of the fact that there were many vulnerable children in Kawerau and their records of achievement and attendance were poor. She was not confident that the Kawerau schooling system overall was working as well as it could for these children and she wanted to lift their level achievements. In her view, what was needed was a lesser number of efficient and well-resourced schools. She also states that she was influenced by comments made to her about the value of middle schooling. These comments came from Mr Doug McLean, principal of Whakatane Intermediate School, whose views were included in a summary provided to her of a meeting held at the Kawerau Town Hall at which Mr McLean spoke. These views fed into theMinister's views about the value of the dual campus proposal.[30] The general election occurred on 26 November 2011. Following the election and formation of the new Government the Hon. Anne Tolley was relieved of her education portfolio and the Hon. Hekia Parata became Minister of Education, effective on 14 December 2011. Accordingly, the final decision in relation to Kawerau Intermediate School became a decision for her, which she made on 21 December 2011 on the basis of a final Ministry report dated 20 December 2011 in which she was asked to note the clear differences of opinion between the Board andMinistry and to carefully consider the Board's viewpoint when making her decisionregarding the school's future.Applicant's submissions[31] The Board's application seeks to have the decision quashed on a number ofjudicial review grounds.General Policy Documents[32] The applicant submits that the Minister was required to have regard to the general policy of Government. In that regard, the applicants note that the Ministry of Education has published two policy documents relating to the provision of education in New Zealand which are relevant to this decision. These are theMinistry's Statement of Intent and a document named "Ka Hikitia – Managing for Success/Māori Education Strategy".[33] The applicant's position is that these two documents set out the policy upon which all decisions should be made and were material to the Minister's exercise ofdiscretion as to whether Kawerau Intermediate School should be closed. The core statements from these documents which are relied upon by the applicant are:(a) In the Statement of Intent:(i) At page 34 it commits the Ministry to implement its Maori education strategy;(ii) Page 10 states that the Ministry is "...focused on ensuring quality education for Māori learners";(iii) Page 11 states that the Ministry will "...design and deliver co-ordinated services that support vulnerable families".(b) In Ka Hikitia:(i) The Ministry of Education's strategy is contained on page 18 and states:The strategic intent of Ka Hikitia – Managing for Success is"Māori enjoying education success as Māori. This recognises the widespread aspirations of Māori to live and succeed as Māori in te Ao Māori, in Aotearoa New Zealand and in the wider world.In this strategy, 'Māori enjoying education success as Māori'means having an education system that provides all Māori learners with the opportunity to get what they require to realise their own unique potential and succeed in their livesas Māori.(ii) With regard to student outcomes, the Ministry promises outcomes that will see Maori learners:...working with others to determine successful learning and education pathways.and...gaining the universal skills and knowledge needed to successfully participate in and contribute to Aotearoa New Zealand and the world.(iii) At Table 1 on page 19 the Ministry identifies the main areas of focus for education in New Zealand. The list is broken into two columns. The first column states those areas where there will be less focus and the second column identifies where there will be more focus.(iv) In particular the table identifies that the Ministry will focus less on government intervention and put more focus on investing in people and local solutions.(v) The rationale behind the focus areas is stated in the following terms:1Successful transitions to school require effective support for the changes and new expectations for children, whānau and educators. The transition to school and the first years atschool have a significant influence on children'sachievement until at least age 14. This influence is especially marked for those from poorer backgrounds and has a strong effect on early leaving in secondary school.(vi) At page 33 the Ministry states a specific goal is to:Support Māori students to stay at school and stay engaged in learning.(vii) To achieve this goal the Ministry will:Identify schools with high early leaving exemptions, and implement strategies at years 9 and 10 to ensure that students remain engaged in education;Investigate strategies to support engagement andachievement of Māori students in years 7 and 8 in order to determine further policy priorities;Sharpen strategies to ensure that Māori students stay at school or in education provision and are engaging in successful learning that leads to meaningful achievement.[34] The applicant submits there is no dispute that the families living in Kawerau are vulnerable families and that the policy outcomes set out in the two policy documents above relate directly to the largely Maori community in Kawerau and were thus relevant considerations. The applicant submits that there are no references to either policy document in any of the reports written for the Minister on which the Minister based her decision. This, according to the applicant, is a significant omission and as a consequence there is no apparent consideration by the Minister of1 Page 21.what impact, if any, the policy statements should have had on her decision. Accordingly, it is submitted that the Minister acted unreasonably in failing to take into account the statements of Government policy as set out in the Statement of Intent and Ka Hikitia.Failure to take into account the views of the community[35] The applicant also submits that s 154(2) of the Education Act imposes a statutory duty on the Minister to consider all arguments received from the Board. The applicant sought feedback from the local community before making comments on the proposals put forward by the Minister. The Board was in agreement with the concerns expressed by the community at large and therefore included thecommunity's concerns in its feedback to the Minister.[36] On 20 December 2011 the Ministry reported to the newly appointed Minister that community opinion on the proposal was varied, but in general was more supportive than previous proposals to amalgamate the intermediate and secondary schools. However, the applicant submits that a recent survey of the adult population of Kawerau shows that 65 percent of the population continue to want a separate site for the Intermediate School and that the dual school concept has the support of less than 1 percent of the adult population of Kawerau.[37] The applicant notes that (in her affidavit) the Hon. Hekia Parata states that the new school would provide a new start and a fresh culture. The Minister also outlines her expectation that the Tuakana-teina ethic would prevail in that the older children would be expected to take care of and guide the younger children. The applicant submits that this ignores the very real concerns of the Kawerau community that it wanted to have its young 10 to 12 year old children separated from the adolescents aged between 14 and 17 years because of what are said to be the deeply concerning behaviours of the more senior students.[38] The applicant submits that the Ministry's reports do not even weigh up the advantages and disadvantages of a separate site for an intermediate or middle school. It therefore submits that the Minister has failed to take into account relevant andmaterial information because the Minister could not and did not consider all the arguments submitted by the applicant. The information provided to the Minister as to the level of support or otherwise for separate schooling for intermediate aged children in Kawerau was, it is submitted, clearly incorrect and misleading.Accordingly, the Minister's decision was based on mistakes of fact and her decisionshould therefore be declared invalid.Consideration of incorrect information[39] The applicant further submits that the consultation process was focused on the establishment of one school on a dual campus. The advantages and disadvantages of a dual campus or separate campuses were discussed at length and were the most important consideration from the perspective of the Kawerau community. According to the applicant, it now appears to them that the Ministry did not intend to create a Year 7 – 13 school on a dual campus. In support of this the applicant points to a press release dated 23 May 2012 from the Ministry in which the Ministry stated:The new school is expected to open by term one, 2013 on the current Kawerau College site. There will be new and refurbished buildings on the site, with separate campuses for middle and senior school students.[40] The applicant submits that it is apparent that the Ministry and the Minister are confused as to whether the two schools will be separated or not. This is said to be very different to what the Minister advised the Kawerau community on 11 November 2011. Throughout the consultation process the concept of a dual campus was put forward by the Ministry, according to the applicant, and the Ministry did not consult on the option of completely separate campuses for junior and senior students. It is submitted that the failure in the consultation process to take into account all relevant matters together with the now apparent confusion about what was actually being proposed is enough to establish that the Minister received and acted on information which was incorrect.Bias[41] Finally, the applicant submits that the Ministry had a clear predetermined outcome in mind and its reports to the Minister were designed to achieve that outcome. The applicant notes that the first report to the then Minister the Hon. Anne Tolley included four options all of which included the merging of Kawerau Intermediate and Kawerau College on one site. No other options were presented.[42] The applicant also submits that the Ministry's report to the Minister leading to her second interim decision on 11 November 2011 did not accurately reflect the feedback from the community and the submissions made during the consultationperiod. The applicant submits that as a result of the Ministry's manipulation of the information presented to the Minister, there was a real danger of bias on theMinister's part. The Ministry clearly expressed to the Minister the outcome itwanted to achieve and was relentless in its pursuit of this outcome in that it failed to report on the scale of community opposition to the outcome as evidenced by the most recent petition.[43] The applicant submits that in her affidavit at [9] – [11], the incoming Minister, the Hon. Hekia Parata confirms that she did nothing more than read theMinistry's report which reflected what is said to be the predetermined outcome desired by the Ministry and discussed the matter with the Ministry officials who are all said to have held the same predetermined view.[44] The applicant submits that given the extremely short timeframe between being appointed Minister and issuing her decision, the Hon. Hekia Parata could not have genuinely applied her mind to the decision. The applicant submits that she was, therefore, not open to persuasion and that the Minister surrendered her discretion tothe Ministry and acted under the Ministry's direction.[45] Accordingly, it is submitted that the test for predetermination has been met. Neither Minister approached the decision with an open mind and in the circumstances there was a real danger or possibility of bias on the basis that both Ministers have unfairly regarded with favour the Ministry's predetermined outcome.Respondent's submissionsGeneral Policy Documents[46] The respondent submits, first, that consideration of the Statement of Intent or Ka Hikitia is not compulsory. The respondent notes that Ka Hikitia is not, in any event, a policy document. It is a strategy document designed to influence the practices and services of the Ministry and other education providers.[47] In any event, the respondent submits that the Minister considered and consulted on the matters covered by the Statement of Intent and Ka Hikitia as identified by the applicant. Firstly, the respondent submits that there is substantial evidence that the Minister considered educational outcomes and consulted on them. There are numerous references throughout the various reports and letters of the objectives which are identified in the general policy documents. The final report to the Minister dated 20 December 2011 contained a detailed summary of the applicant's submissions. The applicant's concerns were specifically addressed and a response made to them in Appendix 6 of that report. The evidence therefore clearly shows that the Minister made her decision after considering educational outcomes for Kawerau and consulting on the issue.[48] While the Minister was not required to consider the Statement of Intent or Ka Hikitia, the respondent submits that the Minister also gave in-depth consideration to the impact that her decision would have on vulnerable families in Kawerau. The Minister however did not accept that maintaining separate schools on separate campuses would benefit such families. The goal of reorganising education in Kawerau was to support vulnerable families in achieving greater educational outcomes. Discussion of the consequences for the community and for students is well represented in the reports made to the Minister.[49] The respondent submits that supporting Maori students to stay at school and stay engaged in learning was also a key consideration in looking at the redesign of education provision in Kawerau. To this end the Minister considered that a lesser number of efficient and well resourced schools would have the effect of increasingattendance and achievement among vulnerable students. Replacing Kawerau Intermediate School and Kawerau College with a new and larger school would allow for the sharing of specialist services, allowing vulnerable students access to resources that would not otherwise have been available.[50] The Minister also considered that the creation of a larger school would rebuild confidence in the school system at all levels, encouraging children to stay interested in schooling and therefore keeping them at school longer. In particular, the Minister hoped that the greater resources available in a larger school would assist in the reduction of community problems, such as suicide, teenage pregnancy and gang membership rates.Failure to take into account the views of the community[51] The respondent submits that lack of community consensus in favour of the decision is not a ground for review and that the applicant's claims that thecommunity is not satisfied with the Minister's decision cannot support an argument that proper procedure was not followed.[52] The respondent also submits that the important role of Ministerial discretion does not require equal weighting to be given to all suggestions or all feedback from the consultation process. The respondent submits that the applicant's core complaintis that it considers the wrong decision has been made. That requires the applicant to show a high level of perversity or that the decision is so clearly untenable on the facts that it amounts to an error of law.Consideration of incorrect information[53] The respondent notes that the applicant alleges confusion about the proposed configuration of the school to be created on the college site and claims that the term"dual campus" was not sufficiently explained by the respondent to allow effective consultation to occur. The respondent submits there is no evidence of the applicant or other affected parties expressing any confusion around what was proposed in this case. It was always clear that the dual campus design would involve junior andsenior campuses but would have common specialist classrooms, gym, hall, library, administration and other areas which were to be used by all.[54] The respondent points out that in the letter of 11 July 2011, the Minister advised the applicant that consultation was commencing on the possible closure of Kawerau Intermediate School and Kawerau College. The Minister then went on to state:I propose to establish a new Year 7 – 13 school with two campuses for junior and senior students on the site of the current Kawerau College.[55] Equally, the respondent notes that the meaning of "dual campus" was furtherdefined in the report dated 3 October 2011 which was received by the applicant prior to it making its final submission to the Minister in December 2011. The report stated:3. The Ministry recommendation is to continue the process to:Close Kawerau Intermediate School and Kawerau College;Establish a new Year 7 – 13 dual campus college on the site of Kawerau College to open in 2013;4. In this recommendation, dual campus refers to a single school with two separate campuses on a single site, a middle school campus and senior school campus, the final configuration of which is still to be determined.[56] The respondent submits that the applicant's final submission to the Minister in December 2011 makes it clear that it understood the consultation process concerned a proposal involving some separation between the junior and seniorstudents as it uses the term "dual campus" interchangeably with "split campus," "dual site" and "split site".[57] In the alternative, the respondent submits that, even if the applicant was confused over the ultimate decision, this does not invalidate the consultation process itself. The applicant and the Kawerau community as a whole were presented with a number of options on how the proposed school would be established. The applicant accepts the consultation process involved consideration of both permutations of a"dual campus" school design. The respondent points to [10] of the affidavit of the Board Chair dated 20 June 2012 in which he states:The consultation process was focused on this issue of dual or separate campuses. In particular the advantages and disadvantages of a dual campus or separate campuses were discussed at length and was the most important consideration from the perspective of the Kawerau community and the applicant.[58] The respondent submits that the applicant's alleged confusion in this case has arisen following the Minister's decision in December 2011 and submits it is not opento the applicant to use recent developments and communications between the parties to attack the Minister's decision retrorespectively.Bias[59] The respondent's submissions note that the applicant claims that the Minister's approach favoured one particular outcome for some undefined, non- pecuniary reason but that the applicant provides no indication of what that reason might be. The respondent submits that the retention of Kawerau Intermediate School was put forward for consideration as part of the second round of consultation as Option B and that a fair-minded individual, having understood the considerations behind the reorganisation, can only have interpreted its inclusion as a serious attempt by the Minister to explore its viability as an option. Accordingly, the respondentsubmits that the applicant's case does not pass the threshold for bias contained incase law even assuming that a proposed ground for bias can be distilled from theapplicant's claim.Predetermination[60] The respondent submits that the applicant's claim appears to be based more on perceived predetermination rather than bias. The applicant seems to be arguing that approaching a decision with even a tentative view as to the outcome constitutes predetermination sufficient to invalidate the decision. This position, according to the respondent, is not supported by case law as there is a clear and well understood distinction between expressing a preference and approaching a decision without anopen mind. In the respondent's submission, decision makers are not required to have a blank mind or to be completely uninfluenced by previous consideration of matters involved.[61] The respondent submits that there can be no suggestion that the Minister simply went through the motions in the present case. The applicant's argument foran alleged predisposition to merge Kawerau Intermediate School and Kawerau College ignores the fact that the final decision did not involve a merger. Instead, it was decided that both schools would close and a Year 7 – 13 school would be established. The respondent submits that there is a material difference between this result and those anticipated during the first round of consultation. By closing both schools, the Minister ensured the new school would have a fresh start. In contrast, a merger would have kept most of the same staff and some organisational structures from the original schools. The option of closing both schools was proposed by Kawerau College itself and was in part drawn from community concerns that arose during the consultation process.[62] The respondent submits that it is therefore self evident that the Minister did not approach the decision with a closed mind. Records associated with the decision making process show options were expanded to accommodate the views of the Kawerau community, including those of the applicant.[63] The respondent also submits that the Minister was not required to approach decisions in a vacuum and is entitled to express a preference for a particular option or outcomes. The consultation process in the current case involved seeking feedback from an entire community. Without guidance on preferred options such consultation would have been unfocused to the point of being of no benefit. By selecting options for consideration by the community the respondent was able to provide the community and the applicant with the necessary detail to make an informed choice, reducing both the time and cost of the consultation process while simultaneously providing a framework for debating the key issues. Furthermore, the respondent submits that while five options were originally presented to the community, feedback was not limited to discussion around those options as evidenced by the decision toexpand the number of options in the second round of consultation following community feedback.Discussion[64] The statutory requirements for the closure of a school are set out in s 154 of the Education Act. Sections 154(1) and (2) provide:154 Closure of schools(1) Subject to section 157 of this Act, and to section 17 of the Private Schools Conditional Integration Act 1975, where, after consulting the board of a State school, the Minister is satisfied that it should be closed, the Minister may, by written notice to the board, ask the board if it has any arguments in favour of the school's staying open.(2) The Minister may, after considering all arguments (if any) received from the board within 28 days after it got notice under subsection (1)of this section, by notice in the Gazette specifying a day on which the school will close, close the school; and the school shall cease to be established on the day specified.[65] Section 157(3)(f) provides:157 Consultations(3) The Minister shall not—...(f) close a school under section 154 of this Act;...without first consulting the boards of all State schools whose rolls might, in the opinion of the Minister, be affected if the Minister takes that action.[66] I respectively adopt the analysis of the statutory requirements set out by French J in Aorangi School Board of Trustees v Ministry of Education:2[17] It is clear the section contemplates the following four-step process:(i) The Minister must consult the Board about the possibility ofclosure.(ii) Having consulted, the Minister must then decide whetherhe/she is satisfied the school should close.2 Aorangi School Board of Trustees v Ministry of Education [2001] NZAR 132.(iii) The Minister may give the Board a 28-day opportunity toprovide any arguments in favour of the school staying open.(iv) The Minister must consider all arguments received from theBoard before making a final decision.[18] Section 154 is subject to s 157, which states the Minister shall notclose a school "without first consulting the Boards of all state schools whoserolls might, in the opinion of the Minister, be affected if the Minister takesthat action."[19] The Act does not specify when the s 157 consultation is to take place in relation to the s 154 consultation, other than to say that it must take place before the closure decision is made.[67] On the issue of consultation, French J stated:[36] As I have mentioned, ss 154 and 157 impose a statutory obligation on the Minister to consult both the Board of Aorangi and the schools whose rolls might be affected in the event of closure. The legislation does notdefine what is meant by "consultation", nor does it prescribe any particularprocess. However, the following principles and requirements can be distilled from case law:(i) Whether or not necessary consultation has occurred requires a consideration in each case of the particular facts, the significance of consultation in terms of the relevant statutory scheme, and a commonsense approach to what is required as a matter of law in the particular case. (Manawatu Polytechnic vAttorney-General HC Wellington CP324/97, 15 December 1997)(ii) What is meaningful, that is, "true", consultation, its extent, howfar it goes and for how long is a question of fact and degree.iii) Consultation is not a negotiation. It does not require ultimate agreement. Nor does it necessarily require or involve an ongoing dialogue over a protracted period. What it does require is open-minded communication and hearing the voice of others who are given the opportunity and right to be heard. The party obliged to consult – in this case the Minister – must keep his/her mind open, consider what has been said and be ready to change and even start afresh. (Walsh v Pharmaceutical Management Agency [2010] NZAR 101).(iv) Consultation also requires that the consultee know what is being proposed and be sufficiently informed so as to be able to make an intelligent and useful response. (Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA)).(v) The more significant the decision, the more cogent the consultation may have to be. A ministerial decision to close a school is recognised by the Education Act to be an important decision. (Heke & Ors v Attorney-General HC Whangarei M9/95, 8 February 1995)...[62] The Board submits proper consultation should have included consideration of educational outcomes, but in this case no consultation at all regarding educational outcomes took place. I agree that in exercising her powers of closure the Minister is required by law to have regard to the purposes of the Education Act, and of necessity would be required to consider educational outcomes and accordingly consult on those. The scope of the consultation must be informed by the nature of the decision to be made.General Policy Documents[68] As to the general policy documents relied upon by the Board, I note that the core statements from the Statement of Intent and Ka Hikitia are quite broad and non- specific. They set out laudable objectives but there can, evidently, be genuine differences amongst those committed to implementing them as to how they are to be achieved. This case is a good example of those genuine differences.[69] The Board notes that there are no explicit or direct references to either policy document in any of the reports written for the Minister on which the Minister based her decision. This is said to be a significant omission and as a consequence there is no apparent consideration by the Minister of what impact, if any, the policy statements should have on her decision.[70] With respect, I do not consider that the reports to the Minister had to specifically mention the policy objectives set out in the Statement of Intent and Ka Hikitia nor did any decision made by the Minister have to specifically refer to them. Nonetheless, it would not be a lawful exercise of discretion for the Minister tototally ignore such objectives. It would be a "blindness verging on the irrational".3I am however not persuaded that the reports of the Ministry or the decisions made by the Minister failed completely to consider the likely educational outcomes or any other relevant policy objectives. I accept that the Minister did, in fact, consider educational outcomes in terms which complied with the policy objectives set out in the Statement of Intent and Ka Hikitia.3 Talley's Fisheries Limited v Minister of Immigration HC Wellington CP201/93, 10 October 1995 at[15].[71] The Minister stated in her affidavit:35. In reaching the view expressed in my letter I considered that it would be good for education in Kawerau for a new school to start afresh, allowing it to develop a new culture. Having the dual campus design also allowed for a sharing of specialist services while retaining some separation between the younger and older children.36. In coming to my view I was very conscious of the fact that there were many vulnerable children in Kawerau and that their records of achievement and attendance were poor. I was not confident that the Kawerau schooling system overall was working as well it could for those children and I wanted to lift their achievement. In my view what was needed was a lesser number of efficient and well resourced schools.37. I was aware of the problems the applicant's witnesses have Iidentified in their affidavits of high suicide rates, high teenage pregnancy rates and a gang culture. I wanted to put in place a new model in Kawerau to regenerate confidence in the school system at all levels, from primary through to college. I saw that as a way to keep children interested in schooling, and keep them in school longer – fostering them and giving them a better future. This would in turn hopefully reduce the rates of suicide, teenage pregnancy and gang membership.[72] I find as a matter of fact that the Minister was focused on educational outcomes and did bear in mind the relevant policy objectives set out in the Statement of Intent and Ka Hikitia, notwithstanding that there is no explicit reference to the detail of those policy documents in the reports to her or in her decision.Failure to take into account views of the community[73] The Board has criticised the consultation process in this case but I am of the view that the correct procedure under the Act was followed. By letter dated 5 May 2011, the Minister advised the Board of her provisional decision that Kawerau Intermediate School should close but that Kawerau College would be retained (Option C) and invited the Board, in accordance with s 154 of the Act, to advise her if there were any additional arguments in favour of Kawerau Intermediate School staying open. Following feedback from the community, the Minister chose not to proceed with Option C.[74] By letter 11 November 2011, the Minister advised the applicant of her revised provisional decision that both Kawerau Intermediate School and Kawerau Collegeshould close and a new Year 7 – 13 dual campus school on the site of Kawerau College should be built to open in 2013 (Option D). The Minister again invited the Board to advise her in writing if it had any further arguments in favour of the school staying open. She noted that the Act allowed 28 days for the Board to reply.[75] There is no suggestion that the Board did not have sufficient information to allow it to make intelligent and useful feedback. Following the Minister's letter of 5May 2011, the Board submitted a comprehensive report to the Minister. Likewise, a further comprehensive report was submitted to the Minister by the Board followingthe Minister's letter of 11 November 2011. The introduction to this report stated:The Board of Trustees presents this submission in response to the Minister ofEducation Hon. Anne Tolley's decision to close both Kawerau Intermediateand Kawerau College and create a new dual campus Year 7 - 10 / 11 - 13 in 2013 on the current Kawerau College site.The Board wishes to re-emphasise that this decision is against the wishes of the overwhelming majority of the Kawerau community, that parental choice is being compromised and the decision is fiscally irresponsible.Ministry of Education personnel continue to present one side of an argument that has been in conflict with the majority of the Kawerau community. The Board of Trustees knows its community and is adamant that retaining a separate intermediate or middle School on a separate site is the only acceptable option and is without doubt in the interests of children in the town.[76] The position adopted by Kawerau College was, however, completely at odds with that of Kawerau Intermediate School. Its Board outlined its position in a letter dated 9 December 2011:The Board continues to hold the position as set out in its previous detailed submission to the Minister, supporting the closure of both the Intermediate School and College at the end of 2012 and the opening a new 7 - 13 school in 2013 on the college campus....The Board continues to believe the only tenable option for secondary education in Kawerau is for the closure of both the College and the Intermediate at the end of 2012 with a view to the new 7 – 13 school opening at the start of the academic year of 2013.Throughout this review period the Board of Trustees and Principal have refused to engage in public criticism of the quality of education provision at the Intermediate School and will not deviate from this position. We simply see this as further reason why the way forward for Kawerau as a communityis to open a new 7 – 13 school for 2013 with a new culture and a new beginning.The Board of Trustees wishes to thank the Minister for her decision to allow statutory management to work in support of and with the Board and Leadership of the College through 2012 as we work collaboratively to strengthen further the educational experiences for our students and to prepare for the closure of the college and the groundwork for the new school, should the Minister arrive at that decision at the end of this 28 day period.[77] I note that the Education Act requires only consultation with the Board of the school which it is intended to close together with all other schools whose rolls might, in the opinion of the Minister, be affected if the Minister takes that action. Although the Act does not require wider consultation the Minister, nevertheless, facilitated consultation across the community.[78] I am of the view, having reviewed all the documentation, that the consultation process was consistent with the requirements as identified in Aorangi. I agree that it was not incumbent on the Minister to make further inquiries, in particular, to obtain more details about the wishes of families in Kawerau or to seek expert assessment. The consultation obligations cannot be used as a backdoor method of challenging the merits of the decision itself.[79] I agree with the respondent's submissions that a lack of communityconsensus in favour of the Minister's decision is not a ground for review and that the Board's claims that the community was not satisfied with the Minister's decisioncannot support an argument that proper procedure was not followed.[80] Ministerial discretion does not require equal weighting to be given to all suggestions. In Valuer-General v Wellington Rugby Football Union4 the Court of Appeal held that the weight to be given to relevant considerations is generally amatter for the decision maker. Arguments of "wrong weight" address valuejudgments rather than questions of law. They are thus prone to intrude on the decision maker's domain.4 Valuer-General v Wellington Rugby Football Union [1982] 1 NZLR 678.[81] The final decision taken by the Minister was in fact developed from a proposal put forward by one of the two schools involved, namely, Kawerau College. The Minister had already made a provisional decision to adopt Option C which had also been developed through the consultation process. This option would have led to the closure of Kawerau Intermediate School but would have retained Kawerau College. Nonetheless, following this provisional decision by the Minister, Kawerau College put forward a proposal to the Ministry which entailed the closure of Kawerau College as well as Kawerau Intermediate School and the establishment of a new Year 7 – 13 school altogether. The Minister was, in my view, entitled to prefer the option advanced by Kawerau College rather than the option advanced by Kawerau Intermediate School notwithstanding evidence provided by the Board of the public support for the retention of an intermediate or middle school in Kawerau.[82] It is my view that the views of the Board were taken into account throughout the consultation process, in particular, by the development of three further options, one of which (Option B) involved the retention of Kawerau Intermediate School. The Board's views about the desirability of separation of intermediate or middle school students from secondary or senior school students have also been taken into account in the development of Option D. Option D is not a merger of Kawerau Intermediate School and Kawerau College. The Minister has made it clear that there will be separate campuses but shared facilities. The detail of how far that separation is taken is for the establishment Board of Trustees of the new school.Consideration of incorrect information[83] At the heart of the Board's concerns as articulated during the hearing is itssubmission that there is significant confusion within the Ministry and between the Board and the Minister regarding as to what is actually being planned for education in Kawerau. In her affidavit sworn on 20 June 2012, the Board Chair stated:If the Ministry had advised the community it intended to create a year 7 to 13 school with separate campuses for middle and senior school students then the community response might have been quite different. In that case a Court proceeding may not have been necessary.[84] I take it from this comment that the Board would not have commenced Court proceedings if it could have been assured that there was to be real and effective separation between the intermediate or middle school students and the secondary or senior school students. It seems to me, with respect however, that the Minister'sposition has not changed markedly such that consultation proceeded on a wrong basis. In her letter to the Board dated 11 July 2011, the Minister stated:I propose to establish a new year 7 – 13 School with two campuses for junior and senior students on the site of the current Kawerau College.[85] Possible campus design was discussed at a public meeting on 25 August 2011. A Ministry official, Mr Alan Dibley, spoke at that meeting on the proposal using a Powerpoint presentation. One of those Powerpoint slides was a plan of a remodelled Kawerau College site headed "Possible Y 7 – 10 Middle/Y 11 – 13Senior concept". It showed distinct Junior School and Senior School areas but withcommon specialist classrooms, gym, hall, library and administration.[86] The report to the Minister dated 3 October 2011, stated:In this recommendation, dual campus refers to a single school with two separate campuses on a single site, a middle school campus and a senior school campus, the final configuration of which is still to be determined.[87] Then in her letter of 11 November 2011 to the Board, the Minister stated:After considering all the information provided to me, including the response from your Board, I am satisfied that both schools should close and a new year 7 – 13 dual campus school on the site of Kawerau College should be built, to open in 2013.[88] The Board submits that it now appears that the Ministry did not intend to create a Year 7 - 13 School on a dual campus. It points to a press release dated 23 May 2012 in which the Ministry states:The new school is expected to open by term one, 2013 on the current Kawerau College site. There will be new and refurbished buildings on the site, with separate campuses for middle and senior school students.[89] The Board submits that the press release is clear that the intention is now to have separate campuses for the middle and senior school students. The Board tookup this apparent confusion with the Crown Law Office who responded by email dated 28 May 2012:I confirm there has been no change to the decision and the press release was not intended to indicate otherwise.The Ministry advises that the ultimate layout of the dual campus/separate campuses is for the BOT in conjunction with the MOE and then the ongoing day to day use of the site is a matter for the Board and its staff.[90] With respect to the Board, I do not accept that the Ministry has changed its position. It is clear that there will be shared facilities and it is intended that separate classrooms for the middle school and the senior school are to be grouped on particular parts of the site but the exact degree of separation is to be determined by the establishment Board of Trustees. Such separation need not be completely physical. For instance, some degree of effective separation could be achieved by having different start and finish times for the middle school and senior school students.[91] In terms of physical separation, the establishment Board of Trustees may recognise the public concern about shared toilet facilities and ensure that there are quite separate facilities for both the middle school and the senior school students. The Board could also designate separate playground areas and even put fencing in place in certain areas of the school.[92] I am therefore of the view that the consultation process did not rely onincorrect information about the Minister's proposal for a single school with a dualcampus.Bias[93] The recognised approach for determining if bias exists is contained in Muir v CIR:5[62] ...First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the judge was or may be seen to be5 Muir v CIR [2007] 3 NZLR 495 at [62].biased. This factual inquiry should be rigorous, in the sense thatcomplainants cannot lightly throw the "bias" ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay-observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged judge that a belief in her own purity will not do; she must consider how others would view her conduct....[63] We emphasise that the touchstone is the ability to bring an impartial mind to bear on the case for resolution. That does not, however, mean that a judge needs to be perceived as operating in a sanitised vacuum.[94] I am of the view, however, that the applicant has failed to establish that the Minister was or may be seen to be biased.Predetermination[95] I agree with the respondent's submission that this matter should be addressedin light of the case law surrounding predetermination rather than under the rubric of bias.[96] The applicant argues that approaching a decision with a view as to the outcome constitutes predetermination sufficient to invalidate the decision. I do not agree that that can amount to an instance of predetermination sufficient to invalidate the decision. I accept the respondent's submission that there is a clear well defineddistinction between expressing a preference and approaching a decision without an open mind. Decision makers are not required to have a blank mind or to be completely uninfluenced by previous consideration of matters involved.[97] The accepted legal test for predetermination is found in CREEDNZ v Governor General:6Before the decision can be set aside on the grounds of disqualifying bias [predetermination] it must be established on the balance of probabilities that in fact the minds of those concerned were not open to persuasion and so, if they did address themselves to the particular criteria under the section, they simply went through the motions.6 CREEDNZ v Governor General [1981] 1 NZLR 172 (CA) at 194.[98] I am of the view that the Minister did not approach the decision with a closed mind. Records associated with the decision making process show options were expanded to accommodate the views of the Kawerau community, including the Board. Following the initial round of consultation, further options were added, including establishment of the designated character Year 1 - 13 Maori immersion school and retaining Kawerau Intermediate School itself. Following the second round of consultation, it was decided to seek feedback on the creation of a new Year 7 – 13 School with a dual campus design on the college site to address concerns about the negative effect secondary students may have on intermediate students.[99] Furthermore, the decision of the Minister was based on recommendations contained in various Ministerial reports, which were, in turn, based in part on feedback received from the community in addition to demographic and financial statistical modelling. Reliance on such analysis is not a hallmark of decision makers who have reached a decision before the deliberative process and are merely going through the motions. I agree with the respondent that the Minister is not required to approach decisions in a vacuum and is entitled to express a tentative or preliminary preference for a particular option or outcomes.7[100] I note that the Minister expressly did not seek to limit the proposals put forward for consultation. She decided to consult on all options presented to her. While five options were originally presented to the community, feedback was not limited to discussion around these options as witnessed by the decision to expand the number of options in the second round of consultation following community feedback.Other issues[101] There were other issues set out in the statement of claim. In particular, the Board queried the Ministry's analysis of school rolls in Kawerau and its projections for future years as well as the costs of the various options. These were not developed by the Board in its written submissions. In his oral submissions, the7 Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 (CA) at 208.Board's counsel acknowledged that these issues were not distinct causes of actionand invited me to consider them in the context of the major issues.[102] Having done so, I am satisfied that although costs are a consideration, thereorganisation of schools in Kawerau is not primarily a "cost cutting" exercise. It isprimarily designed to achieve better educational outcomes for the children of Kawerau.Conclusion[103] It follows from my discussion of the issues that the Board's application for judicial review of the Minister's decision to close both Kawerau Intermediate Schooland Kawerau College and establish a new dual campus Year 7 – 13 school on the College site fails. It is accordingly dismissed. I would however urge all parties to put their differences behind them and work together collaboratively to ensure the success of the new school. With good will, much can be accomplished. Costs were not sought by the Minister but if they remain an issue, I will receive memoranda..Woolford J