JONES & ANOR v TEACHING COUNCIL OF AOTEAROA NEW ZEALAND | MATATŪ AOTEAROA [2021] NZHC 1581

JONES & ANOR v TEACHING COUNCIL OF AOTEAROA NEW ZEALAND | MATATŪ AOTEAROA[2021] NZHC 1581 [30 June 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-641[2021] NZHC 1581BETWEEN EVAN MORGAN JONESFirst ApplicantNZ POST PRIMARY TEACHERS'ASSOCIATION | TE WEHENGARUASecond ApplicantAND TEACHING COUNCIL OF AOTEAROANEW ZEALAND | MATATŪ AOTEAROARespondentHearing: 24-25 May 2021Counsel: J D Every-Palmer QC, M R G van Alphen Fyfe andT W R Lynskey for ApplicantsM Chen and L M Donnelly for RespondentJudgment: 30 June 2021JUDGMENT OF CHURCHMAN JTable of ContentsPART IIntroduction [1]The respondent's position [5]Relief [10]PART IILegislative background [13]Self-funding [28]The funding agreements [32]The consultation process [50]Post-consultation developments [65]PART IIIGrounds One and Two – Analysis [89]Ground Three – Error of law in respect of paying by instalments [130]Ground Four – Error in respect of ability to set period of validityfor practising certificates [139]Ground Five – Ultra vires in setting omnibus fee to cover other expenses [157]Ground Six – Failure to provide sufficient information and optionson level of expenditure/services rendered [180]Leadership Centre Decision [194]Relief [211]Outcome [244]Costs [247]PART IIntroduction[1] The first applicant (a teacher) and the second applicant (a union of post-primary teachers and principals representing approximately 85 per cent of post-primary teachers in New Zealand) seek judicial review of decisions made by therespondent (an independent statutory body established by the Education AmendmentAct 2015 to act as the professional and regulatory body for the New Zealand teachingprofession) which, at the material time, was governed by the Education Act 1989 (theAct).1[2] On 14 May 2020, the respondent announced decisions it had reached that:(a) practising certificates for teachers would be valid for one year ratherthan three years (Annual Certification Decision);2 and1 It is now governed by the Education and Training Act 2020 but this does not materially affect theCouncil's purposes, powers and functions.2 The Annual Certification Decision was published in the New Zealand Gazette on 6 November2020.(b) certification for all teachers trained in New Zealand would incur anannual fee of $157 with various categories, including overseas-trainedapplicants, provisionally certified applicants, and applicants lodgingrenewal applications after the expiry of their current practisingcertificate, incurring higher or additional fees (Fees Decision).3[3] On or about 6 March 2020, the respondent decided to accept a proposal toestablish a professional development initiative known as the Leadership Centre(Leadership Centre Decision). The applicants assert that as this time, the respondenthad not secured additional funding for the establishment and running of the LeadershipCentre and had not undertaken any consultation with the teaching profession in respectof that decision.[4] It is these three decisions that are challenged by the applicants. The May 2020decisions are challenged on six separate grounds. The six grounds can be summarisedas being:(a) Ground One: The respondent's failure to consult before imposingannual certification;(b) Ground Two: Failure to properly consider the merits of annualcertification;(c) Grounds Three and Four: Misconstruction and misapplication of keyelements of the statutory regime relating to payment by instalment andthe default three-year certification period;(d) Ground Five: Setting a fee for issuing a practising certificate said toamount to an unlawful tax; and(e) Ground Six: Failure to provide adequate information and options whenconsulting in relation to the practising certificate fee.3 The Fee decision was published in the New Zealand Gazette on 22 May 2020.The respondent's position[5] The respondent denies each of the grounds for judicial review. It also says thatthe respondent made nine decisions on 30 April 2020 and claims that the applicantswere only challenging five of them.[6] The respondent's primary position is that it did not have to consult on thedecision to move from triennial certification to annual certification because thatdecision did not fundamentally alter the rights, benefits or status of individual teachers.The argument was expressed as being that, if there is no detriment to those affected bya decision, then an obligation to consult which might otherwise exist, was negated.[7] In the context of assessing whether there was any detriment in relation to themove from triennial certification to annual certification, it was submitted that theCourt should give deference to the subject matter expertise of the majority of themembers of the respondent.[8] The respondent also denied that a misunderstanding of the law as to the legalability of the respondent to charge the fee for a practising certificate on annual basiswhere certification was for a three-year period, influenced its decision to adopt aprocess of annual certification.[9] The respondent says that it was not obliged to consult in respect of theLeadership Centre Decision because there was no intention for the cost of operatingthe Centre to be borne by the respondent. It describes the $47,000 of its funds thatwere actually spent in relation to the project as being "de minimis".Relief[10] The applicants seek a variety of forms of relief. In respect of the annualcertification and fee decisions (and the separate decision relating to the LeadershipCentre), it seeks:(a) an order quashing the decisions;(b) a declaration that the respondent acted unlawfully and in breach ofnatural justice in failing to consult on the Annual CertificationDecision;(c) a declaration that the respondent erred in law by failing to considerrelevant considerations in respect of the Annual Certification Decision;(d) a declaration that the respondent erred in law by determining that theAct does not permit teachers to pay for practising certificates ininstalments;(e) a declaration that the respondent erred in law by determining it couldlimit the period for all practising certificates to one year;(f) a declaration that the Teaching Council acted ultra vires in fixing feesfor registration and certification that included a tax for other purposes;and(g) a declaration that the respondent acted unlawfully and in breach ofnatural justice in failing to consult on the Leadership Centre Decision.[11] The respondent denied that the applicants were entitled to any relief. Inrelation to the exercise of the Court's discretion to grant relief, it asserted that the reliefsought had no "practical value". It also submitted that the interests of third partieswere relevant to the Court's discretion as to whether or not to grant relief. In thisregard, it was submitted that:Court intervention to vitiate the gazette notice for a new annual certificationfee, for any breach of the grounds of review, would result in [the respondent]becoming insolvent.Insolvency would have a catastrophic impact on all of [the respondent's]functions including those most important to the safety of children and youngpeople in classrooms to ensure teacher applicants for certification were fit toteach and have been properly vetted and that they are competent and have noconduct issues.[12] Emphasis was also placed on the fact that the annual certification fee had beenin place for some four months and that, in addition to having spent transitionalGovernment funding, the respondent had also spent reserves of $5 million in deferringthe fee increase from 1 July 2020 to 1 February 2021.PART IILegislative background[13] Before analysing the competing arguments, it is helpful to set out the legislativebackground.[14] The relevant legislation in force at the time of the impugned decisions was theEducation Act 1989. The Act required that teachers employed in New Zealand neededto be both registered and the holders of a current practising certificate.4[15] There are some 140,000 registered teachers and some 105,000 holders ofpractising certificates. The difference between the two numbers reflects the fact thatregistration is effectively for a lifetime but not all registered teachers are currentlyactively teaching and therefore do not need to hold a practising certificate.[16] There have been several changes to the name of the body now known as theTeaching Council and also to the fee setting powers of this body. As the consequencesof these changes are in issue in these proceedings, it is necessary to set them out.[17] Between 1 October 1989 and 31 January 2002, the Teacher Registration Boardwas a statutory body responsible for teacher registration and the issue of practisingcertificates. Its statutory fee setting powers reflected its limited functions.[18] Section 136 of the 1989 Act provided:The Registration Board may charge fees and impose costs(1) the Registration Board may from time to time by notice in the Gazette,with the written approval of the Minister, fix fees for registration as ateacher or for the issue of practising certificates; and different feesmay be fixed–(a) in respect of registration effected in different circumstances;and(b) for practising certificates of different kinds.4 Education Act 1989, s 349(2) (the equivalent provision in the Education and Training Act 2020 iss 92(2)).[19] On 1 February 2002, the Teacher Registration Board was replaced by theTeachers Council which was a Crown entity. The Teachers Council functions weremuch more broadly defined than those of the Teacher Registration Board, withs 139AE of the 1989 Act specifying some 13 different functions. However, the scopeof the fee setting powers was not similarly broadened. Section 130H, under theheading "Fees and costs" provided:(1) the Teachers Council may from time to time by notice in the Gazettewith the written approval of the Minister, fix fees for the granting ofa limited authority to teach;(3) where the Teachers Council cancels a limited authority to teach, itmay, by written notice to the person concerned, require the person topay the Teachers Council any reasonable costs specified in the noticethat were incurred by the Teachers Council in dealing with theproposal to cancel the authority or with the cancellation itself;(4) the Teachers Council may recover from any person as a debt due to itcosts required by subsection (3) of this section to be paid to theTeachers Council by that person,[20] Section 136, under the heading "Teachers Council may charge fees and imposecosts", provided:(1) the Teachers Council may from time to time by notice in the Gazettewith the written approval of the Minister, fix fees for registration as ateacher or for the issue of practising certificates; and different feesmay be fixed –(a) in respect of registration effected in different circumstances;and(b) for practising certificates of different kinds;(3) where the Teachers Council cancels a teacher's registration it may, bywritten notice to the teacher require the teacher to pay the TeachersCouncil any reasonable costs specified in the notice that were incurredby the Teachers Council in dealing with the proposal to cancel theregistration or with the cancellation itself;(4) the Teachers Council may recover from the teacher as a debt due to itcosts required under subsection (3) of this section to be paid to theTeachers Council by the teacher.[21] Section 139AF, under the heading "Powers of Teachers Council, relevantlyprovided:(3) the Teachers Council may provide goods and services that areconsistent with its functions and may, with the approval of theMinister, charge a commercial rate for any goods and servicesprovided;(4) the Teachers Council may, by notice in the Gazette, fix fees for all orany of the following:(a) any addition or alteration to a person's registration as ateacher;(b) any addition or alteration to, or extension of, a person'slimited authority to teach;(c) any addition or alteration to a person's practising certificate;(d) inspection of the register of registered teachers or any otherregister or any other documents kept by the Teachers Councilthat are open to inspection;(e) the supply of a copy of any entry into a register or otherdocument referred to in paragraph (d);(f) any other matter for which this Act provides that the TeachersCouncil may charge fees.[22] Effective 1 July 2015, the Teachers Council was replaced by the EducationCouncil. This is was a statutory body corporate. Section 382 set out an expanded listof some 16 specified functions. However, the fee setting powers set out in s 383(1)were only extended to include fees for the provision of professional leadership,5 andcosts relating to the performance of disciplinary functions.6[23] Section 383(1) did not include a fee setting power in respect of the followingfunctions listed in s 382:(b) to enhance the status of teachers and education leaders;(c) to identify and disseminate best practice in teaching and leadershipand to foster the education profession's continued development inlight of research, and evidence of changes in society and technology;(g) to conduct, in conjunction with quality assurance agencies, approvalsof teacher education programmes;5 Section 383(1)(f).6 Section 383(1)(g).(i) to ensure that appraisals made by professional leaders for the issueand renewal of practising certificates achieve a reasonable andconsistent standard, by auditing and moderating the appraisals madefor at least 10% of the practising certificates issued or renewed in eachyear;(j) to establish and maintain the code of conduct for teachers undersection 387;(k) to monitor and enforce the requirements relating to mandatoryreporting in this Part and Part 31;(m) to set criteria for reporting serious misconduct and for reporting oncompetence issues;(n) to perform the functions in this Part relating to teacher competence.[24] Section 383(4) authorised the Education Council to charge a fee for anythingthat it had fixed a fee for under s 383(1) and, s 383(5) authorised the EducationCouncil to charge for any goods or services it provided in accordance with itsfunctions.[25] Effective 29 September 2018, the Teaching Council was established as astatutory body corporate. The statutory functions remained the same as those of theEducation Council set out in s 382(1) with the addition of the following two functions:(ea) to review, at any time, the criteria for teacher registration establishedunder paragraph (e) and, after consultation with the Minister–(i) vary, delete, or replace one or more of the criteria; or(ii) add one or more criteria; or(iii) delete all of the criteria and substitute new criteria;(fa) to review, at any time the standards for qualifications establishedunder paragraph (f) and, after consultation with the Minister–(i) vary, delete, or replace one or more of the standards; or(ii) add one or more standards; or(iii) delete all of the standards and substitute new standards.[26] No additional fee setting powers were provided.[27] As at 1 August 2020, the Act was replaced by the Education and Training Act2020 which had the same statutory functions and fee setting powers as previouslyexcept that the auditing function formerly found in s 382(1)(i) was removed.Self-funding[28] Although not reflected in any amendments to the legislation, it appears thatfrom 2015 onwards, the Government made a policy decision that the Teaching Councilshould become self-funding. Up until this point, the annual operating deficits incurredby the Council had been funded by the Crown. This had allowed the Council to buildup substantial cash reserves. For the 2015/16 financial year, these reserves were saidto be $9.539 million.[29] The respondent has argued that its obligation to become self-funding arisesfrom the wording in cl 7 of Schedule 21 to the Act. That is not correct.[30] Schedule 21 to the Act was inserted on 1 July 2015 by s 41(3) of the EducationAmendment Act 2015 (No. 1). The heading of Schedule 21 is "Governance provisionsof Teaching Council". The schedule addresses some general governance relatedmatters and cl 7 is headed "Collective duties". The duties in cl 7 are standard in naturerequiring the Council to act in a manner consistent with its functions, duties andpowers; that it performs or exercises its functions, duties and powers efficiently andeffectively and:(3) the Teaching Council must ensure that it operates in a financiallyresponsible manner and, for this purpose, that it prudently manages itsassets and liabilities.[31] A general obligation to prudently manage assets and liabilities is somethingdifferent to a statutory obligation to be self-funding. However, whether the obligationto become self-funding was statutory in origin or the result of Government policy isnot directly relevant to the duties that the respondent owed to teachers to consult oversignificant changes to the registration process.The funding agreements[32] On 26 October 2016, the Ministry of Education and the respondent entered intoa funding agreement. The background section to this document recorded:The Ministry and the Council have agreed that the Ministry will providefunding to the Council to support it in becoming self-sufficient in carrying outits leadership and other statutory functions for the teaching profession and theeducation system.[33] The Ministry agreed to provide transitional funding of $21,340,000 plus GST,to achieve this outcome.[34] The duration of the transitional funding was said to be until 30 June 2019"when the Council will become self-sufficient".[35] If the Council was going to become self-funding, its income was realisticallygoing to have come from substantially increased registration and certification fees.The income streams available from other sources were minimal.[36] Since 2010, the fee for registration and the three-year provisional practisingcertificate for New Zealand trained graduates had been $220.80. The fee for renewingthe three-year practising certificate of any type was the same. For overseas trainedteachers, the fee for registration and a three-year provisional practising certificate was$302.57; and for a teacher moving from being provisionally certificated andcertificated "subject to confirmation" to a three-year full practising certificate, it wasalso $302.57.[37] The Teaching Council calculated that these fees would have to more thandouble to somewhere between $470 and $500 on a three-year basis in order for it tobecome financially self-sufficient.[38] After entering into the 2016 funding agreement, the Council then began aprocess to review fees for registration and practising certificates. This consultationoccurred in 2017 and included consultation on an option of moving from a triennialcertification process to an annual certification process. The response from the teachersconsulted to the possibility of annual certification was almost unanimously negative.[39] As a result of the impending general election in 2017, and uncertainty as to thepotential consequences of a review of "Tomorrow's Schools" announced by theMinistry of Education in November 2017, no changes were implemented followingthe 2017 consultation.[40] In June 2019, immediately before the expiry date of the first transitionalfunding agreement, the Teaching Council entered into a second transitional fundingagreement with the Government. The term of this agreement was specified as beingfrom 1 July 2019 to 30 June 2020. The purpose of the agreement was said to be:to meet the shortfall of approximately $9.6m per annum to enable theCouncil to remain financially sustainable for the 2019/20 financial year.[41] The terms of the agreement required the Council to continue to discharge allits statutory functions and toidentify additional sources of income to enable the Council to be financiallysustainable from 1 July 2020.[42] Following the execution of the second transitional funding agreement, theBoard of the Teaching Council needed to find ways to come up with what theyestimated as being an annual operating deficit of between $8.9 million and$9.7 million from 2020/21 onwards.[43] The Board received a report dated 15 August 2019 from its Chief FinancialOfficer. That report made a number of observations relevant to these proceedings.Firstly, it acknowledged that the Education (Teaching Council of AotearoaNew Zealand) Amendment Act 2018 made changes to the governance structure of theCouncil with effect from 1 July 2019, but not to its established statutory role, functionsand powers.[44] The report noted that the financial modelling that had been undertaken showedthat, in order to be financially self-supporting, the triennial fee for renewing apractising certificate would need to increase from $220.80 to $510 as well as otherincreases such as a separate initial registration fee of $85 and significant increases inthe fee for overseas teacher applications and applications were changing fromprovisional registration to full registration ($610 c.f. $302).[45] The paper also made the observation that consultation with the profession onproposed new fees "must be done by law". It noted that each year there were about5,500 new teachers joining the profession and a similar number leaving the profession.Significantly, the report did not address the issue of changing the period of triennialcertification to something shorter.[46] The Board of the Council received a further report from the Chief FinancialOfficer and Acting Deputy Chief Executive dated 25 September 2019. That reportidentified what was said to be the four levers available to the Board when consideringhow to achieve financial self-sufficiency: service levels, registration and certificationfees, cash reserves and other revenue or service charges.[47] The report contained the observation:Note that increasing Registration and Certification Fees is the only lever thatcan achieve financial sustainability in its own right. The other levers, evenwhen combined and used to their maximum extent, cannot achieve theobjective of achieving financial sustainability, but they can be used to dampenthe impact of increasing Registration & Certification fees (either in quantumor in timing).[48] The paper suggested three options ranging from a proposal similar to what hadbeen consulted on in 2017 to one which was materially different to that.[49] The report expressed the view that:Shifting to an annual renewal [of practising certificates] is possible; however,because it would take three years before all members were paying annually, aCouncil would need some sort of interim measure to maintain sustainability.In 2017, the Council proposed a transitional levy. Annual renewal is notpossible until renewals are successfully being processed online.The consultation process[50] The Board received a further briefing paper on 23 October 2019 from the ChiefFinancial Officer and the Acting Deputy Chief Executive. That paper noted that, as aresult of feedback from the Board on the earlier papers, the authors of the paper haddeveloped a proposal for "a singular fee rather than unbundling into various separatecomponents such as a professional responsibility levy". It also noted the advice givento the Board of the "need to undertake another comprehensive consultation processbefore the final decision on fees can be made, given the amount of time that haselapsed since the Teaching Council last consulted on fees."[51] The paper set out a proposed consultation process and timeline and thecommentary on this said:In designing the consultation process, we have given due regard to therequirement to ensure teachers have an adequate opportunity to respond to theproposal and the adequate ability to make an informed response on what isproposed.We have also given due regard to the legal advice we have received in regardto the Teaching Council's statutory obligations to consult and that the Boardhave adequate time to sufficiently consider the feedback with an open mindbefore making a final decision.[52] There was no mention in this document of reducing service costs or departingfrom the practice of triennial certification.[53] The Board of the Teaching Council decided to consult on raisingregistration/certification fees for the purposes of complying with the contractualobligations to become self-funding that they had committed to in the secondtransitional funding agreement. It set up a pre-consultation meeting with stakeholdersincluding the second applicant, called the Fees Consultation Steering Group on16 December 2019.[54] On 24 December 2019, the Acting Deputy Chief Executive sent an email to theinvitees who had attended the pre-consultation meeting which provided feedback onissues that had been raised by those who had attended the 16 December 2019 meeting.It related to the proposed increases in Teaching Council's fees from 1 July 2020.[55] In response to feedback that the Council needed to be clearer around paymentoptions for a teacher, the memorandum said that the Council had "clarified that theability to pre-pay or post-pay in instalments is not available". This statement is notcorrect and reflected a significant misunderstanding of the law.[56] On 15 January 2020, an amended consultation document was provided to theGoverning Board. That document essentially set out two options. Firstly, triennialfees of $470, increased by $100 for overseas trained teachers, provisionallycertificated teachers and teachers lodging a renewal application after their currentpractising certificate expired, and secondly, an alternative option of triennial fees of$500 for renewal of current three-year practising certificate, or $300 for a graduate ofan approved New Zealand Initial Teacher Education (ITE) programme, $400 for anoverseas trained teacher, $600 for provisionally certificated teachers, and teacherslodging a renewal application after the expiry of their current certificate, $500 forteachers who had not taught in New Zealand over the last five years, and $300 for agraduate from an approved New Zealand ITE programme applying for registrationonly. The essential difference between the two proposals was whether graduatesshould have lower registration fees than those renewing their registration.[57] However, in respect of both options and for all certificate types, the three-yearperiod between certifications was to be maintained. This document also contained astatement that:The Teaching Council has no facility for teachers to pay fees by instalmentsin arrears as it is a legal requirement that all applicable fees are paid in fullprior to a Practising Certificate being issued. Neither does the TeachingCouncil have the facility to support the pre-payment of fees by instalment inadvance.[58] The consultation material distributed by the Council referred specifically to theconsultation obligation that the Council believed that it was under. The commentsincluded:The Teaching Council is now consulting with the teaching profession andother affected parties on two options proposing new fees from July 2020,consistent with its obligation to act in accordance with the rules of naturaljustice.[59] The obligation to act in accordance with natural justice is found in s 382(3) ofthe Act which provides:When performing its functions and exercising its powers, the TeachingCouncil must act in accordance with the rules of natural justice.[60] The document also said:No final decision on an increase will be made until after those affected havebeen consulted, and their views considered with an open mind, consistent withour statutory obligations.The Teaching Council has issued this consultation paper to give partiesaffected by the proposed fee changes relevant information regarding theproposal, and a reasonable opportunity to make an informed response.The Teaching Council is seeking your feedback before making any decisionon whether or not to implement the proposed fee changes in Option 1 orOption 2. Your feedback on the consultation options is important.[61] The consultation document had a section on the legal authority of the Councilto set the fees. After referring to ss 364, 372 and 383 of the Education Act, thefollowing statement was made:The Teaching Council's fee-setting powers are broadly stated, and do notprescribe the criteria limiting when the Teaching Council may fix a fee, or thelevel of such a fee. Nor does the Teaching Council as an independent statutorybody, require ministerial approval in order to prescribe fees.[62] What the statement does not address is the question of whether the EducationAct confers a power on the Council to charge fees for matters not specificallyauthorised by the Act, or whether it can charge a "bundled" fee incorporating its costsin relation to those matters where it has a specific authorisation to charge fees andother matters where there is no such authorisation. That question has become an issuein these proceedings.[63] Unlike the 2017 consultation, this consultation document did not contain aproposal to alter the period of certification from three years to some other period.[64] Other than in relation to Limited Authorities to Teach, the sums payable underboth Option 1 and Option 2 were specified as being for three years rather than beingdescribed as an annual fee.Post-consultation developments[65] From late February 2020, the respondent and second applicant (and otherrepresentative groups) approached the Minister with options to mitigate the proposedfee increase.[66] On 10 March 2020, the Ministry made a request to the Minister of Financeseeking a late spending initiative for inclusion in the Budget, namely $16.5 million forthe purposes of "Supporting the Teaching Council to Transition to an annual practisingcertificate fee". There was no reference in the document to any proposal to transitionfrom three yearly to annual certification and the only explanation for the late spendinginitiative was the financial consequences of fees being payable annually rather thanevery three years.[67] On 2 April 2020, the Chief Executive of the Teaching Council sent a briefingpaper to the Minister noting that in terms of becoming independently financiallysustainable:Income from the current 3-yearly registration/certification fee of $220.80equates to only around 40 per cent of the expenditure required for the TeachingCouncil to carry out its statutory functions.[68] It referred to the consultation process and noted that the Council had not yetmade any final decision on any fee increase. It sought further funding. This documentalso did not refer to any proposal to alter certification from a three yearly to an annualprocess.[69] By letter of 24 April 2020, the Minister acknowledged the representations thathe had received from the respondent and others around the proposed increase in fees.The letter said:I am pleased to let you know that I have secured funding, through Budget2020, to cover the income gap a Council faces in transiting to an annual fee.The Budget will provide $11M in financial year 2020/21, followed by $5.5Min 2021/22, to enable the Council to transition to an annual fee. This fundinghas been approved on the condition that the Council takes steps to make itselffinancially sustainable and self-sufficient.Please let me know whether the Council will take up this funding to transitionto an annual practising certificate fee.[70] The Chief Financial Officer provided a briefing paper to the Board of theTeaching Council dated 27 April 2020. The subject was described as "Cost ofTransitioning to Annual Fees". It noted that the funding that the Government hadagreed to provide "can be used to help fund the fiscal gap created by shifting fromtriennial to annual fees."[71] The report also noted that the additional funding made viable a number of feesoptions not previously considered to be financially viable and noted that if these feesoptions were now to be considered, it would require a new consultation process. Thebriefing paper did not raise the issue of any change from triennial certification.[72] The Acting Deputy Chief Executive and Chief Financial Officer provided abriefing paper to Council on 29 April 2020 addressing the impact of the funding offer.The subject matter of the briefing paper was described as "Government fundingsupport for transitioning to annualised fees". The conclusion in the report was:The modelling and analysis undertaken indicates that $16.5 million inadditional Government funding together with a portion of the TeachingCouncil's forecast cash reserves is materially sufficient to support a transitionto annualised fees from 1 February 2021.[73] A second briefing paper from the Acting Deputy Chief Executive, also dated29 April 2020 referred to the financial modelling that had been done and asked theBoard of the Council to:Note that the further extensive financial modelling and analysis had beenundertaken to determine the viability of transitioning from a triennial fee to anannual fee with the transitional Government funding and the TeachingCouncil's forecast cash reserves.[74] A third briefing paper from the Acting Deputy Chief Executive to the membersof the Council dated 29 April 2020 invited the Council to either accept or decline:the $16.5 million in Government funding for the specific purpose oftransitioning to annualised fees, subject to negotiation of an appropriatefunding agreement on terms and conditions acceptable to Council (andconsistent with the Education Act) and the Ministry of Education and fixregistration/certification and other fees as per table 1 below by way of aGazette notice in the week of 18 May 2020.[75] The Council met by video conference on 30 April 2020 and agreed to acceptthe $16.5 million "for the specific purpose of transitioning to annualised fees". TheCouncil moved and seconded separate motions in respect of nine separate certificateswhich provided a base fee of $157 annually, plus an extra fee of $100 for applicantswho were overseas trained teachers, applicants who were provisionally certified, orwhose certificate had expired before their application for renewal. An annual fee of$157 was also approved for applications for limited authority to teach, for applicantswho had not completed any teaching in New Zealand in the last five years, andapplicants who applied for teacher registration only.[76] On 14 May 2020, the respondent issued a press release which was headed"Teaching profession to move to annual certification from February 2021".[77] The press release contained a statement which said:While fees will increase we believe delaying the increase until February 2021and moving to an annual process for certification best addresses teachers' keyconcerns and also allows the Council to get on a secure financial footing andbe the true independent body teachers deserve.[78] To the extent that this statement implies that teachers had expressed a concernwhich could be met by moving to an annual process for certification, it is untrue. TheCouncil had not sought any feedback on a change to an annual certification process.The consultation document had only sought teachers' views on fee increases andteachers were asked to indicate their preference for either Option 1 which wasdescribed as being "Beginning teachers and experienced teachers should pay the sameamount", or Option 2 "Beginning teachers should pay a lower amount to support theirentry into the teaching profession". There was also a box to tick if the teacher had nopreference for either option.[79] In a separate document, also issued in May 2020, entitled "Your fees at work",the respondent issued a breakdown of what the new annual fee of $157 was for:(a) $84.82 was said to represent the cost of registration and certification;setting and maintaining the Code of Professional Responsibility andStandards for the Teaching Profession; investigating complaints aboutteacher misconduct or incompetence; setting the requirements forbecoming a teacher; and approving and monitoring higher educationprogrammes;(b) $16.43 was said to be the cost of professional services including settingexpectations for appraisal against the Standards for the TeachingProfession, ensuring the voice of the profession is heard, growingleadership capability; and providing independent policy advice toGovernment and other agencies;(c) $35.28 was for support services such as HR, finance, admin, ITsystems, data and security; and(d) $20.47 was for GST.[80] At some undisclosed time prior to 18 May 2020, the Minister appears to havecommunicated with the Teaching Council raising a query about the change from threeyearly certification to annual certification.[81] On 18 May 2020, the Chief Executive of the Teaching Council responded tothat query by sending a briefing note to the Minister. That briefing note began:PurposeYou have asked the Teaching Council for information on the decision to shiftfrom certification for three years to certification for one year and how this willaffect teacher interaction with the Council.[82] The note went on to say:The Teaching Council Board decided that moving to an annual process forcertification best addressed the profession's key concern in the consultationfeedback – that $470 was too much at once, especially those in the ECE sector,beginning teachers, part-time and relief teachers.[83] This comment accurately reflects the near unanimous consultation feedback asto concern at the quantum of the proposed fees increase but, in implying that theconsultation feedback supported a move to annual certification, it is incorrect.[84] The briefing note went on to say:The Council is mindful of the impact on teachers and professional leaders thatannual certification could have. The details of how an annualised certificationwill work have not been fully established but we have a project team andworkstreams underway that are actively considering how it will beoperationalised before February 2021.[85] This statement confirms that the respondent had only just begun to think abouthow annual certification might actually work notwithstanding the fact it had alreadyannounced a decision to implement it.[86] This briefing note also gives some indication of why the Teaching Councilchose not to consult about any change proposal in relation to certification. It containsthe following assertions:In terms of part-payment of fees, or any other staggered payment arrangement,the law provides that teachers must pay all applicable fees before they canrenew or be issued with a practising certificate for a period of three years orlesser a period of time determined by the Teaching Council.Section 364(4) of the Education Act provides that "Despite anything in thisAct, the Teaching Council may refuse to register a person as a teacher or issuea practising certificate until the appropriate fee has been paid".The summary of which is that teachers need to pay all of the applicable fee atthe time of application in order to be issued with registration or a practisingcertificate (if eligible), as part-payment of fees (in arrears) is not authorisedby our legislation.[87] These statements of the legal position are wrong. Section 364(4) merely givesthe respondent a discretion not to register a person or issue a practising certificate untila fee has been paid. It does not in any way prohibit the respondent from acceptingpart-payment.[88] As at the date of the hearing, the respondent accepted that the claims as to itslegal inability to accept payment by instalment as set out in this briefing paper to theMinister, the 24 December 2019 paper to stakeholders and the consultation documentsent to all of the teachers, were incorrect.PART IIIGrounds One and Two – Analysis[89] The first two grounds for review, being the failure to consult before imposingannual certification, and the failure to properly consider the merits of annualcertification, are related so I will address them together.[90] The key issue is whether or not the decision to move from a triennial to anannual certification process after the consultation had concluded, amounted to asubstantial change requiring re-consultation. The author of Judicial Review:A New Zealand Perspective has described the obligation this way:7A shift of focus after consultation requires that consultation be reopened if theshift is substantial, as does significant new information or a change in theproposal but not if the change is only a reorganisation of previous proposals,or a change of personnel.[91] The Supreme Court in New Zealand Pork Industry Board v Director-Generalof the Ministry for Primary Industries indicated that ultimately, whether the obligationto consult again is triggered will depend on the nature, extent and impact of the furtherwork, with the focus being on whether that work led to a substantial change.8[92] A similar approach was usefully articulated by Collins J in Hawke's Bay andEastern Fish and Game Councils v Hawke's Bay Regional Council:9Fairness is at the heart of the issue. Those who have a right to be consultedmust be given an adequate opportunity to express their views and to influencethe decision-maker. An assessment of whether or not a decision-maker hasacted fairly is a quintessential judicial task that is highly influenced by context.There have been various formulations of the duty to re-consult whencircumstances have changed between the initial consultation and the basisupon which a decision is based. In Smith, R (on the application of) v EastKent Hospital NHS Trust the Court suggested that the need for re-consultationoccurred "if there was a fundamental difference" between a proposalconsulted upon and the basis upon which the decision-maker made his or herdecision.7 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,2018) at 13.83 (footnotes omitted).8 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries[2013] NZSC 154; [2014] 1 NZLR 477 at [173].9 Hawke's Bay and Eastern Fish and Game Councils v Hawke's Bay Regional Council [2014]NZHC 3191 at [118]-[120] (footnotes omitted).In some New Zealand decisions the scope of a decision-maker's duty to re-consult echoes the United Kingdom position to some extent. There can be nodoubt a decision-maker must re-consult if the final decision differs in afundamental way from the decision which was indicated at the time ofconsultation. However some New Zealand decisions suggest the duty isengaged at a lower threshold. For example, in Air New Zealand Ltd v NelsonAirport Ltd, Miller J found that further consultation might have been requiredif advice contained in a report already in the decision-maker's possessiondiffered in a "material[ly] adverse way".[93] The respondent relies on a number of different grounds to justify its failure toconsult on its decision to amend certification from a triennial to an annual process.[94] Counsel sought to distinguish the obligation arising from the common law ora statutory duty to act in accordance with natural justice on the one hand, and a specificstatutory obligation to consult on the other hand.[95] Ms Chen submitted:The Governing Board is required "to act in accordance with the rules ofnatural justice" in making decisions about fee increases and the period beforepractising certificates expire, as distinct from other provisions in theEducation Act where Parliament has expressly required consultation withaffected parties. Thus the Governing Board did not have to consult on theAnnual Certification Decision if fairness did not require it.She submitted that fairness did not require re-consultation here. It is thereforenecessary to see how the concept of fairness has been interpreted by the New ZealandCourts.[96] In the case of Contact Energy Limited v Electricity Commission, MacKenzie Jsaid:10The extent of the change is the major factor in determining whether furtherconsultation will be required. Here, the change was a fundamental one.[97] In Wanaka Stakeholders Group Incorporated v Queenstown Lakes DistrictCouncil, van Bohemen J found that the decision challenged, "went considerablybeyond the scope of the Statement of Proposal".1110 Contact Energy Limited v Electricity Commission HC Wellington CIV-2005-485-624, 29 August2005 at [31].11 Wanaka Stakeholders Group Incorporated v Queenstown Lakes District Council [2021]NZHC 852 at [220].[98] If an amendment is significant or goes significantly beyond the scope of aproposal then fairness requires consultation.[99] Where the rules of natural justice require consultation, or where a legitimateexpectation of consultation arises, the manner of consultation will be the same as ifthe obligation was expressly imposed by statute. In the case of R (Moseley) v LondonBorough of Haringey, which is regularly applied by the New Zealand Courts, the UKSupreme Court said:12A public authority's duty to consult those interested before taking a decisioncan arise in a variety of ways. Most commonly, as here, the duty is generatedby statute. Not infrequently, however, it is generated by the duty cast by thecommon law upon a public authority to act fairly. The search for the demandsof fairness in this context is often illumined by the doctrine of legitimateexpectation; such was the source, for example, of its duty to consult theresidents of a care home for the elderly before deciding whether to close it inR v Devon County Council ex parte Baker [1995] 1 All ER 73. Butirrespective of how the duty to consult has been generated, that same commonlaw duty of procedural fairness will inform the manner in which theconsultation should be conducted.[100] In determining the scope of fairness in the present case, Ms Chen placedsignificant emphasis on the fact that the majority of the members on the Council wereelected by, and represented, seven sectors of the teaching profession and that amajority of members were teachers, principals and professional leaders appointed fortheir relevant expertise. Eleven of the 13 members of the Governing Board were saidto be registered teachers.[101] It was argued that given the professional expertise of the members of therespondent, the Court should defer to their judgment on professional matters. Thisargument was advanced particularly in the context of whether or not it could be saidthat the move from triennial to annual certification produced any detriment to teachers.It was not accepted that having to go through the process of certification annuallyrather than once every three years, was a detriment.[102] Two reasons were advanced for this. The principal one was the developmentand implementation of Hapori Matatū. This was a digital services platform which the12 R (Moseley) v London Borough of Haringey [2014] UKSC 56 at [23].respondent had been developing. It facilitated online application for practisingcertificates in replacement for what was said to be a cumbersome paper-basedexercise. Reference was also made to the fact that even with triennial certification,some work previously had to be done on an annual basis. The implication was thatthe move to annual certification really did not produce any detriment to teachers.[103] The applicants' response to these arguments was essentially two-fold. Firstly,it was submitted that the development of the Hapori Matatū platform was a separateinitiative unconnected with the fees increase and that, but for the move to annualcertification, significant time and effort savings in processing applications forcertification would have been realised. It was submitted that the benefit that wouldotherwise have flowed from the implementation of Hapori Matatū was significantlydissipated with the move to annual certification.[104] A reference was also made to the fact that not all teachers had the same time-saving experience as a result of the implementation of Hapori Matatū and a systemcalled Professional Growth Cycle (PGC).[105] The PGC process was described as one of "high trust". It was also a processwhich left significant discretion to Principals as to the way in which it would beimplemented.[106] Susan Haugh, for the applicants, deposed that the approach to this process byschools could be split into three different types. Approximately one-third of theschools not requiring any evidence of meeting the standards and fulfilling PGC targetsfor certification purposes. One-third retained large parts (if not all) of the old appraisalapproach to use as its PGC approach, and requiring documented inquiry projects,evidence of professional conversations and the like. The final third adopted a kind ofa half-way point between the full PGC approach and appraisals and required someadditional evidence of meeting the standards and fulfilling PGC targets such asdocumenting PGC achievements and having pre-applications meeting with endorsers.[107] This description of what was actually happening in practice was not challengedby the respondent. Instead it was submitted that the extra work identified in two ofthe three categories was not required by the Teaching Council for certificationpurposes but was "extra work voluntarily adopted by the schools concerned over andabove the requirements of the PGC process".[108] This submission misses the point that it is not the teachers who choose how toimplement the PGC processes, it is the schools. The net result is that for a largenumber of teachers, it is seriously arguable that the move to annual certification, evenwith the ability to use Hapori Matatū and PGC, the work involved is greater than thework involved with triennial certification.[109] There was no cross-examination on the affidavit evidence. It is therefore notpossible to come to a definitive view on exactly how much extra work by teachers andheads of department is caused or the precise value of that work in dollar terms.However, the proposition put forward by the respondent that there is no detriment ishighly contestable.[110] This is not a situation where members of the respondent Board have themonopoly on knowledge in relation to these sorts of matters. The teachers haveequally as extensive knowledge as to the actual as opposed to theoretical effect onthem, of the move to annual certification.[111] The issue of whether or not a consultation has been carried out in accordancewith the rules of natural justice is not a question where the Court is obliged to defer tothe expertise of members of the Council. It is a legal question and it is resolved by theapplications of settled principles of law, not the opinions of individual members of theCouncil.[112] Counsel for the respondent submitted this case was analogous to Lab TestsAuckland Limited v Auckland District Health Board13 and quoted a passage from thatjudgment where the Court of Appeal said:14In this context, the obligation to consult must depend on whether a DHB isproposing significant changes to a service, viewed objectively, rather than the13 Lab Tests Auckland Limited v Auckland District Health Board [2009] 1 NZLR 776;[2008] NZCA 385.14 At [327]-[328].fears of a particular group or groups within the DHB's resident population thata service reduction may result.[113] In this case, the fears expressed by the teachers were not subjective ones aboutsomething that might potentially happen in the future, they were based on the actualexperience of teachers under the new system.[114] Ms Chen claimed that the Teaching Council "had already been "influenced"by the feedback from the 2017 Consultation about excess workload driving a80 per cent response in favour of triennial fees "[115] The 2017 proposal was different to the current proposal. Some 11,000 of theteachers affected by the 2019 proposal would not have been teachers in 2017 andwould therefore not have been consulted. They were entitled to be consulted.[116] There is no evidence that the variation of the 2019 proposal to include a changeto triennial certification had any connection at all with any feedback received either in2017 or 2020. It appears to have arisen from the mistaken view that the Council wasunable to charge fees on an instalment basis and if fees were to be charged annuallythen certification also needed to occur annually.[117] The teachers consulted on the 2019 proposal had no opportunity to influencethe Council's decision to abandon triennial certification in favour of annualcertification.[118] In terms of the language used by the Supreme Court in New Zealand PorkIndustry Board v Director-General of the Ministry for Primary Industries,15 theBoard's decision to move to annual certification involved a "substantially differentapproach" to that which had been set out in the consultation proposal.[119] The respondent submitted that the real reason that the Council did not consulton the prospect of triennial certification but annual instalments was "because theydid not have the administrative capability to provide instalments and due to the risks15 New Zealand Pork Industry Board v Director-General of the Ministry for Primary Industries,above n 8.with issuing a PC in advance of full payment". These are exactly the sorts of issuesthat may well be resolved with consultation. In any event, this submission isinconsistent with the emphasis in the consultation and other documents alreadyreferred to, on the claimed legal inability of the respondent to accept payment byinstalment.[120] The respondent also argues that it did not have to consult on the change to theterm of certification because it had no option but to accept the proposal from theMinister for further funding of $16.5 million. Reliance is laid on the fact that, in theestimates for Vote Education for the 2020/21 financial year, the nature of the policyinitiative for which the additional funding was authorised was described as being"Supporting the Teaching Council to Transition to an Annual Practising CertificateFee".[121] There is a difference between annual certification and an annual fee forcertification. There is no evidence that would indicate that the Minister had anypreference one way or the other for triennial certification or annual certification. It isalso clear that the Minister was misled by the Council in the briefing paper of 18 May2020 which responded to his query by saying that it was unlawful for the TeachingCouncil to pay for triennial certification by annual instalments.[122] The Minister's principal concern has clearly been to alleviate the financialhardship on teachers from such a large increase in their registration fees. It isunrealistic for the respondent to suggest that the funding provided by the Minister wassomehow dependent on the change to annual certification.[123] For the reasons set out above, I have reached the conclusion that the change tothe period of certification was a significant one that produced detriment for a largenumber of teachers. The teachers had no opportunity for meaningful or indeed anyinput into the decision. There is also no indication that the funding provided by theMinister would have been any different had the proposal put to him been for retentionof three-yearly certification with payment by annual instalment. Fairness required thatthe respondent consult on this decision.[124] In relation to the second ground of judicial review, the failure to consider themerits and disadvantages of annual certification, it is clear that the Council did not dothis. This appears to have been because they formed the view that this was not anoption because they could not lawfully accept payment by instalments.[125] In coming to this conclusion, I have not overlooked the evidence of Ms Hoskinand Ms Ngarewa. Although there is no documentary record of the Board havingconsidered the merits of annual certification, Ms Hoskin and Ms Ngarewa bothdeposed to there having been discussions on this point. Ms Hoskin also deposes thatthe Council considered whether to consult on the move to annual certification before"deciding whether or not to accept the Minister's offer" and was advised that "naturaljustice did not require a re-consultation" because there would be "no detriment" toteachers from a move to annual certification.[126] None of these comments are recorded in any Board papers or meeting minutes.[127] Judicial review proceedings differ from other High Court proceedings.Generally, they proceed on the basis of affidavits filed without cross-examination.They are also determined on the basis of the material before the decision-maker at thetime of the decision. As Randerson J said for the Court of Appeal in Taylor v ChiefExecutive of Department of Corrections:16A decision-maker may file affidavits explaining relevant facts andcircumstances at the time the decision was made. But where, as here, therecord reveals an adequate record of the decision and the facts before thedecision-maker, the scope for additional explanatory evidence will be limited. The decision-maker must refrain from descending into ex post factojustification in an attempt to improve on the original decision. The Court willgive little weight to such explanations in the absence of compelling reasons.[128] In the present instance, not only does the written record not support aconclusion that the Board discussed the merits of a move to annual certification, it alsoshows that the overwhelming pre-occupation of the Council was the cashflowconsequences of the move from triennial payment of the fee to annual payment.16 Taylor v Chief Executive of Department of Corrections [2015] NZCA 477 at [33](footnotes omitted).[129] The briefing note from the Chief Executive to the Minister of 18 May 2020referred to at [84] above is also inconsistent with the proposition that the Council hadgiven any real consideration to the consequences of a move to annual certification.Ground Three – Error of law in respect of paying by instalments[130] The Board of the Teaching Council claims that it did not misunderstand thelegal position in relation to its legal ability to have triennial certification but annualpayments and refers again to the contents of the affidavit of the Chair, Ms Ngarewa.Also referred to is the claim that some of the earlier documents submitted to the Boardin relation to the consultation did not contain the incorrect statement about thelawfulness of payment by instalments. There are two difficulties with this argument.[131] Firstly, the Council unequivocally represented to those who had attended theDecember stakeholders' meeting, in its 24 December 2019 document, and in theconsultation document sent to all teachers, that it was unable to lawfully considerpayment of fees by annual instalments.[132] By making that incorrect representation, the Council denied itself theopportunity of receiving feedback on the option of continuing with triennialcertification but paying fees on an annual instalment basis.[133] Secondly, if, as deposed by Ms Ngarewa, the members of the Council correctlyunderstood their legal situation, it is astonishing that not one of the Council members(all of whom, Ms Ngarewa deposes, are said to have been aware of the correct legalposition) took no steps to point out the errors in the 2020 Fees ConsultationInformation Pack for Council Members that they were provided with, or the error inthe consultation document itself.[134] The respondent appears to blame the second applicant for not identifying theerror in the respondent's understanding of the legal position. It was submitted:No responses were received to the 24 December 2019 email, including anyresponse from the PPTA.[135] Given the fact that this document was sent out on Christmas Eve, it is hardlysurprising that neither teachers nor the PPTA had obtained legal advice on it prior to15 January 2020 when the consultation document was provided to the Board members.[136] The claim that all of the Board members were aware of the correct legalposition is also inconsistent with the Chief Executive's briefing note to the Minister aslate as 18 May 2020.[137] Again, this is a situation where the Court prefers the evidence set out in thedocumentary record and not subsequent conflicting affidavit evidence.[138] If the consultation document had not misstated the legal position, and if theadvice given to both the Board and Minister on payment by instalments had beencorrect, then it cannot be asserted with confidence that the outcome of the consultationprocess would have been the same. This ground of review is also made out.Ground Four – Error in respect of ability to set period of validity for practisingcertificates[139] The applicants argue that the Council's power to set expiry dates for practisingcertificates differs as between teachers who already hold a current practising certificateand graduate teachers who do not already hold a practising certificate. It is argued thatthe term of a certificate issued to a graduate cannot simply be determined by theCouncil and notified in the Gazette but must be decided in accordance with thestandards and criteria maintained under s 382(1)(h) of the Act.[140] It is submitted that departures from the default three-year period for newteachers can only be made on a teacher by teacher basis, and that in setting an expiryperiod of one year for all practising certificates, the Council did not consider the"standards and criteria" maintained under s 382(1)(h).[141] The applicants acknowledge that in respect of the renewal of existingcertificates, s 361(4)(a)(ii) authorises the Teaching Council to specify, by notice in theGazette, a time earlier than the third anniversary of the day on which the certificatealready held expires. It is submitted that this is in distinction to the provisions ofs 361(4)(b) which say:a practising certificate issued to a teacher who does not already hold a currentpractising certificate expires–(i) on the third anniversary of the day it is issued;(ii) at any earlier time that the Teaching Council decides in accordancewith the standards and criteria maintained under s 382(1)(h).[142] The significant distinctions in the sections are said to be that s 361(4)(b)(ii)uses the word "decide" rather than "specify"; that there is no obligation to publish anearlier expiry in the Gazette; that the Council is not provided with the power todetermine an earlier expiry period for any and all kinds of certificate; and that it mustset any period of expiry earlier than three years in accordance with the standards andcriteria. It is noted that the relevant standards are set out in the Code of ProfessionalResponsibility and Standards for the Teaching Profession. It is said that a teacher byteacher approach is required to assess whether compliance with the six standards havebeen met.[143] The applicants say that the teacher by teacher focus is supported by thestandards themselves. They submit that first time teachers are in a different positionto those who have already been certified and that they have yet to establish theirteaching practice through which they can demonstrate that they meet the standards.[144] It is submitted that they require a default period of time over which to developthat practice and that, where Parliament has set that default period at three years, torequire annual certification for all new teachers, without reference to the Standards orthe different position new teachers are in, is to set the bar too high.[145] The respondent asserts that the applicants failed to correctly identify thedifferent kinds of practising certificates that s 361(4)(b) may apply to, in particular thefact that the category of teachers applying for a practising certificate who do notcurrently hold a practising certificate is not limited to new teachers but may includeteachers who have taken a break from teaching and overseas teachers. It is allegedthat the applicants have placed an unwarranted gloss on the requirement to specify anearlier expiry period by Gazette notice for renewals of current practising certificatesas opposed to the issue of practising certificates to teachers who do not already hold acurrent practising certificate. It is submitted that there is nothing in s 361(4)(b)(ii) thatprevents the Teaching Council from deciding to set an expiry time earlier than thethree-year default so that the expiry time equally applies to all applicants who do notalready hold a current practising certificate.[146] The respondent says that the only mandatory requirement in s 361(4)(b)(ii) isthat any earlier time set by the Teaching Council must be decided "in accordance withthe standards and criteria maintained under s 382(1)(h)".[147] It is submitted that when teachers apply for a practising certificate, themandatory requirements it must be satisfied of before one of the different types ofpractising certificate are issued, are generic. It is submitted that the criteria establishedand maintained by the Teaching Council, as published in April 2020, and updated inFebruary 2021, apply to all teachers who apply for that particular kind of certificate,and that the criteria are not variable on a case by case basis, depending on thecircumstances of individual applicants.[148] The starting point to resolve these contentions is to identify what the "standardsfor ongoing practice" and "criteria for the issue of practising certificates of differentkinds" referred to in s 382(1)(h) actually refer to. The standards for ongoing practicewould appear to be contained in the document "Our Code, Our Standards"|Ngā tikangamatatika ngā paerewa (Ngā Paerewa).[149] Separately, the "criteria for the issue of practising certificates of differentkinds" are found in the document "Requirements for Teacher Registration, PractisingCertificates and Limited Authority to Teach" published in April 2020.[150] The criteria apply to all applicants. Although an applicant will applyindividually, all applicants must meet the same criteria.[151] The April 2020 document Requirements for Teacher Registration, PractisingCertificates and Limited Authority to Teach does not appear to contain anything thatsupports a one-year teaching certification process. Under the heading "Overview" itstipulates:If you want to be employed as a teacher, you also need to apply for and begranted a practising certificate which is renewed every three years, if you wantto continue to practice.[152] On page 9, there is the statement "Practising certificates are issued for threeyears", and on page 10, the paragraph dealing with Tiwhikete WhaakorangaTōmua|Provisional Practising Certificates says:Most new teachers will be required to complete a compulsory two-yearprogramme of induction and mentoring provided by their employer andsupervised by a mentor who is fully certificated (tūturu) your tōmua gives youthree years to do this.[153] What s 361(4)(b)(ii) requires is that, in respect of the types of application thatit relates to, if a practising certificate is to be less than the default period of three yearsset out in s 361(4)(b)(i), the departure has to be decided in accordance with thestandards and criteria maintained under s 382(1)(h).[154] In determining that the period of certification for all applicants would be oneyear, the Council does not appear to have analysed what standards for ongoing practiceor criteria for the issue of practising certificates necessitate that. The soleconsideration appears to have been the need to ameliorate the burden of the substantialfees increase by spreading payment over three years.[155] The respondent submitted that the default expiry period of three years ins 361(4)(b) was an interim measure while the Education Council completed a fullpolicy review that would be the platform for establishing new standards and criteriafor teaching practice and the issuing of practising certificates of different kinds. Thissubmission is not supported by an analysis of the Regulatory Impact Statement thatpreceded the amendments brought in by the Education Amendment Act 2015. Thisdocument discussed the various options available in relation to the regulation ofteachers and its overall conclusion was:Accordingly, Option 3; Lifetime registration and three-yearly practisingcertificates, is assessed to best meet the specified objectives and address theidentified policy problem.[156] The Act, in s 361(4)(b), has specified different criteria for the Teaching Councilto depart from the default three-year period of certification. In relation to the renewalof practising certificates for teachers who currently hold them, the procedure set outin s 361(4)(a)(ii) is straightforward. All that is required is a notice in the Gazette.However, the practice in relation to departing from the default three-year period forthose other types of practising certificates governed by s 361(4)(b) is different. It doesnot simply require a notice in the Gazette but needs to be decided "in accordance withthe standards and criteria maintained under s 382(1)(h)". This provision has not beencomplied with in this case, as there is no connection between departure from thedefault three-year period and anything to do with standards and criteria. The decisionis therefore unlawful.Ground Five – Ultra vires in setting omnibus fee to cover other expenses[157] The issue here is whether or not the Act authorises the Teaching Council to setfees only for the specific matters authorised by the Act or whether it is permitted to setan omnibus fee to cover all its operating expenses.[158] The applicants submit that setting an omnibus fee is inconsistent with theempowering legislation and also with the language commonly used by Parliamentwhen it intends to authorise the use of an omnibus fee of the type involved here.[159] As noted above in [14]-[27], the Act has evolved significantly since it was firstenacted in 1989. The applicants point to the fact that although the functions andpowers of the Council were successively expanded, there was a disconnect betweenthe expansion of the fee setting powers and the allocation of new functions.[160] Mr Every-Palmer drew attention to the fact that the 2015 amendments, whichforeshadowed a move away from Crown Entity status and a corresponding reducedreliance on Government funding, only amended the Council's fee setting powers toinclude "the provision of professional leadership" and "costs relating to theperformance of disciplinary functions".1717 Education Amendment Act 2015, s 40.[161] Counsel noted that the first funding agreement dated 26 October 2016 alsorequired fees to be set by reference to tasks.18[162] The applicants compared and contrasted the language used in the legislationrelating to other professions where it was intended that omnibus registration fees couldbe set. Section 40(2)(h) of the Chartered Professional Engineers of New Zealand Act2002, s 76 of the Registered Architects Act 2005, and s 73(3) of the Lawyers andConveyancers Act 2006 were referred to as examples.[163] Counsel also submitted that when Parliament had intended to impose astatutory mandate for a professional body to be financially self-sufficient it had usedspecific language, and noted, by way of example, that cl 11(d) of the Schedule to theRegistered Architects Act 2005 provided specifically that the Board was required tooperate in a financially responsible manner and for that purpose to ensure that it:(i) maintains its long-term financial viabilities; and(ii) covers all of its annual costs from its net annual income; and(iii) acts as a successful going concern; and(iv) prudently manages its assets and liabilities.[164] This wording was distinguished from the more limited wording in Schedule 21of the Act to operate in a financially responsible manner and for that purpose prudentlymanage its assets and liabilities.[165] The applicants referred to the long-established proposition that a charge for aservice which exceeds its reasonable cost can be regarded as an unlawful tax. Counselreferred to the dictum of Lord Justice Atkin in Attorney General v Wilts United DairiesLtd:19There is no suggestion that the charge made in this case is part of a pricepayable by the defendants for milk bought by them In these circumstances,if an officer of the executive seeks to justify a charge upon the subject madefor the use of the Crown (which includes all the purposes of the publicrevenue), he must show, in clear terms, that Parliament has authorised theparticular charge. The intention of the legislature is to be inferred from the18 See Measure G in Schedule 2 (p9) of the second funding agreement.19 Attorney General v Wilts United Dairies Ltd (1921) 37 TLR 884 at 886.language used, and the grant of powers may, though not expressed, have to beimplied as necessarily arising from the words of a statute [166] Counsel noted that the current Treasury Guidelines for Setting Charges in thePublic Sector also reiterated this principle saying:20Important note: Charges that are in excess of the costs of providing theservice could be interpreted as a tax, in which case such charges must beauthorised by or under an Act of Parliament as required by section 22(a) ofthe Constitution Act 1986. Taxes are outside of the scope of this guidance.[167] The respondent asserts that it is entitled to fix a "bundled" fee which covers allof its operational costs. Counsel relies on s 383(1)(h) of the Act. The structure ofs 383 is that it starts by saying that "the Teaching Council may, by notice in theGazette, fix fees for all or any of the following". Thereafter, seven specific functionsare listed starting with "any addition or alteration to a person's registration as ateacher" and including matters such as "the provision of professional leadership" and"costs relating to the performance of disciplinary functions". To this list of sevenspecified functions, s 383(1)(h) adds:any other matter for which this Act provides that the Teaching Council maycharge fees.[168] It is submitted that s 383(4) which says:The Teaching Council may charge a fee for anything that it has fixed a fee forunder subsection (1).[169] And s 383(7) which says:The Teaching Council has all other powers conferred by this Act or reasonablynecessary to enable it to perform its functions.are also relevant.[170] Section 383 clearly proceeds on the basis that the Teaching Council isauthorised to fix fees for "all or any" of the matters set out in s 383(1)(a)-(h). Thecorollary of that is that it cannot levy fees for functions that are not covered bys 383(1)(a)-(h).20 Treasury Guidelines for Setting Charges in the Public Sector (April 2017) at [1.1].[171] The use of the words "all or any" at the start of s 383(1) indicate that, in respectof those functions identified in s 383(1)(a)-(h), there can be a combined fee coveringone or more of those matters. However, what it does not authorise is a combined orbundled fee that includes a fee for matters which are not listed in s 383(1).[172] Section 383(1)(h) is not a catch-all provision which authorises the setting offees to cover the costs of every function that the respondent carries out. In order to beauthorised by s 383(1)(h), a function must relate to a "matter for which this Actprovides that the Teaching Council may charge fees".[173] As already discussed, there is a gap between the functions that have beenprogressively added to the Teaching Council and its predecessors and the specificstatutory authorisation to charge fees for those functions. For example, the documenttitled "Your fees at work" produced by the Teaching Council in May 2020 provided abreakdown of what was described as "the new annual fee of $157". It identified$16.43 of the fee being for "professional services" and included within thisdesignation are the functions of "Ensuring the voice of the profession is heard" and"providing independent policy advice to Government and other agencies".[174] Neither of these matters fall within the ambit of s 383(1)(h) as matters whichthe Act specifically authorises the Teaching Council to charge fees for. Theconsequence of this is that the Teaching Council is not authorised to charge a bundledfee which covers these matters.[175] Section 383(4) is of no assistance to the respondent because it has not fixed afee for these matters under subs (1), and neither does s 383(7) help because, when thestructure of s 383 is so clearly based on authorising fees for identified functions, itcannot be said that the authorising of fees for functions that the statute does notexpressly entitle the levying of a fee, could be said to be something "reasonablynecessary to enable it to perform its functions".[176] As a separate issue relating to the applicants' challenge in Ground Five, therespondent claimed that the applicants had only sought judicial review of two mattersbeing the decision to reduce the period of certification for teachers from three years toone, and the decision to increase the fee of the issuing of a practising certificate.[177] It was submitted that the Council had made nine discrete decisions in relationto eight different fee categories with a separate decision being made relating to thediscontinuance of transitional rebates for teachers moving from provisional to fullpractising certificate within the certification cycle.[178] While the respondent chose to pass separate motions in relation to the fees foreach different category of certificate, the basic decision was to move from a fee of$220.80 paid every three years to a new annual fee of $157 to which, for certaincategories of registration, surcharges were added. Indeed, the "Your fees at work"document distributed by the respondent to teachers in May 2020 explaining itsdecision in relation to fees, did not refer to eight separate fees but only one. It said:The new annual fee of $157 (or $3 per week) replaces a previous fee of$220.80 paid every three years ($1.40 per week). The increase will take effectFebruary 2021.[179] The applicants have clearly challenged the fixing of the base annual fee at$157. That base fee is a component of the various categories for registration as ateacher. If it is invalid, then it invalidates each fee decision of which it was acomponent. This ground for judicial review is made out.Ground Six – Failure to provide sufficient information and options on level ofexpenditure/services rendered[180] The applicants claimed that the respondent did not make available, during theconsultation process, sufficient information for teachers to assess the reasonablenessof its projected annual expenditure. They submit that in order to be able to makeinformed and useful responses, they ought to have been provided with:(a) a detailed explanation of the basis for the costs incurred; and(b) options for the delivery of services and the costs that each would incur.[181] They complain that the figure of $18.3 million for operating costs set out in theconsultation document has an estimate of operating costs for the Teaching Council forthe 2020/21 financial year that was based on an assumption representing the outcomeof various decisions as to what the Council was going to do. The applicants complainthat the consultation treated the quantum of the projected operating costs as beingoutside the scope of consultation.[182] The applicants refer to the view of their financial analyst, Mr Cox, who stated,"the financial material does not provide a sufficient basis for assessing the TeachingCouncil's efficiency or value for money".[183] The applicants say that the Council ought to have consulted on alternativeoptions for the delivery of the Council's statutory functions and rely on observationsof the UK Supreme Court in R (Moseley) v Haringey London Borough Council.21 Theapplicants submit that there "must have been" alternative options available fordelivery of the services that the Council was obliged to provide.[184] The respondent refers to the fact that it received lots of feedback from theconsultation process including 29 pages of written feedback from the PPTA and 13 ofits branches. It noted that there were no requests by any party consulted for furtherinformation. Counsel relied on the decision in Wellington International Airport Ltd vAir New Zealand as authority for the proposition that what was obliged to be providedto consultees was "relevant information and with such further information as theyrequest".22 The reference was made to the various cases which make a point thatconsultation is not litigation nor is it a process akin to that of discovery.[185] As all counsel accepted, the content of the obligation of fairness in relation tothe statutory power of decision is very much context specific. In some cases, a greatdeal of information will need to be provided before it can be said that those consultedare fully informed and able to make intelligent responses and in other cases much lesswill be required.21 Above n 12.22 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 at 676.[186] The relevant background or contextual matters here are that it was commonknowledge that, since the establishment of the Teaching Council in 2015, only about40 per cent of its overall operating costs had been met by the registration andcertification fees charged. Apart from some minor income from services provided, thebalance of the operating costs had come from advances from the Government. It wasequally clear that the Government had decided that the Teaching Council, goingforward, would have to meet its own costs.[187] The consultation document issued by the respondent referred to previousfinancial analysis undertaken by Deloitte and reviewed by the Ministry of Educationand PricewaterhouseCoopers as to the ongoing income needs of the Council.[188] The information provided in the consultation document broke down into threecategories what the components of the estimated $18.3 million operating costs were.Appendix 3 to the consultation document provided a further breakdown.[189] The consultation document also included comparative data on the registrationfees for other professional organisations. That data showed that the existing fees werebelow (in some cases very significantly below) corresponding registration/certification fees for other bodies.[190] It is significant that no request was made by any of those consulted for accessto the financial modelling which the consultation document identified as having beencompleted by Deloitte and reviewed by PricewaterhouseCoopers and the Ministry ofEducation.[191] The facts in this case can be distinguished from those in Haringey. The PPTAis a well-informed, well-resourced and effective representative. If it had concernsabout the reliability of the forecast Budget, it could have asked for the financialmodelling data but did not do so.[192] While it is possible that a reduction of services might have produced somesavings, the reality was that the Act was prescriptive in relation to the functions theCouncil was required to deliver. The other reality was that, even if services could bereduced, cost savings would be minimal. It is also not possible to seriously disputethe proposition that, the only source of income that was going to permit the Councilto meet its estimated operating costs was a substantial fee increase.[193] While the estimated operating costs of $18.3 million were an assumption andthe consultation document did not identify alternatives to a fee increase, in the absenceof any request for further information or assertion of inadequacies in the informationprovided, it cannot be said that fairness required more of the Council. This ground ofreview is accordingly not made out.Leadership Centre Decision[194] The applicants contend that on or around 6 March 2020 the Teaching Councildecided to accept a proposal to establish a professional development initiative knownas the Leadership Centre. The purpose of this centre is to provide teachers with theopportunity to develop leadership capabilities. The applicants assert that the TeachingCouncil has not secured any additional funding for the establishment and running ofthe Centre and that no consultation was undertaken with the teaching profession inrespect of the decision to establish the Centre.[195] The respondent admits that it decided to accept the invitation to establish theLeadership Centre but otherwise denies the applicants' claims.[196] The respondent accepts that it did not consult with the teaching profession butsays that it was justified in not doing that "because there was no intention for thecost of operating the Leadership Centre to be borne by the Teaching Council, andtherefore teachers, through fees".[197] The respondent does not assert that any agreement exists between it and theGovernment in relation to the funding of the Leadership Centre. In her affidavit,Ms Barnes admits that for the financial year ended 31 March 2021, the TeachingCouncil had spent some $47,000 on matters to do with the Leadership Centre. Shesays these funds came from its general projects budget.[198] Costs were also incurred in the 2019/20 financial year but Ms Barnes deposesthat they were all related to the Stewardship Group which was funded under a contractwith the Ministry of Education.[199] The respondent acknowledges that the funds allocated for the LeadershipCentre were not included within the category of "Professional Leadership and TeacherCapability" functions for which the forecast operating costs of $5 million per annumfor the 2020/21 financial year were published in the "Consultation on ProposedChanges to Teaching Council of Aotearoa New Zealand Fees" consultation document.It says that they were not included under this heading because the Leadership Centrewas "seen as a separate project with separate funding arrangements".[200] The respondent further says that it did not identify the extent to which costsassociated with the establishment and running of the Leadership Centre should beincluded in the Budget to be recovered through teachers' fees "because there was nointent to cover the costs of operating the Leadership Centre through teachers' fees".[201] Beyond the statement that the Teaching Council did not "intend" to fund theLeadership Centre, there is no evidence of any contractual arrangement entered intowith the Government to reimburse it for the funds already allocated or spent. Therespondent dismisses the $47,000 taken from its general projects budget to fund thisinitiative as being "de minimis".[202] The establishment and operation of a Leadership Centre is not something thatthe Act authorises the respondent to charge a fee for.[203] From the limited evidence available, it appears that the respondent has not yetbeen reimbursed in respect to the $47,000 spent in the 2020/21 financial year for theLeadership Centre. It is not clear whether those funds will be reimbursed. It is alsonot clear why a contract was not entered into if there had indeed been a commitmentby the Government to meet all of the costs of the establishment and operation of theLeadership Centre.[204] By way of contrast, the two provisional funding agreements entered into beforethe Government provided the funding subsidies, were very specific about what themoney was for, even down to specifying milestones for payment.[205] It appears that the invitation to the Teaching Council to establish a LeadershipCentre did not come out of the blue. As long ago as March 2018, the then EducationCouncil made submissions to the Government on a Draft Leadership Strategy. It alsoseems that the PPTA was consulted and, in her affidavit, Ms Barnes deposes the PPTAposition as being:If the Leadership Centre or any other functions are added to the work of theTeaching Council it is essential that the full funding for this is provideddirectly by Government. If Government believes that these roles are of valueand worth creating, then they should stump up the resources.[206] It also appears that the Government wants the Teaching Council to be involvedin this initiative and has entered into a number of funding agreements to facilitate theTeaching Council's activities. These include a funding agreement dated 19 April 2018between the then Education Council and the Ministry for the Leadership CapabilitiesProject totalling $87,687.50 including GST; a funding agreement between the Ministryof Education and Teaching Council dated 3 October 2018 in the sum of $34,500, plusGST for distributing material relating to Leadership Capabilities; and a further similaragreement signed on 13 June 2019 for sums totalling $300,235, including GST.[207] Therefore, in spite of the apparent absence of any contractual agreement toreimburse the Teaching Council for the $47,000 spent in the 2020/21 financial year,there appears to be a basis for an assumption that those funds might be reimbursed.[208] Ms Barnes further deposed:The discussions are proceeding on the basis that the Government will providethe funding, as it does now, and teachers will not have to pay for it. Once wehave options for a proposed operating model, we will consult with theprofession before making any final decision.[209] Given the fact that there has been some consultation generally on issuesrelating to the Leadership Strategy and the undertaking by Ms Barnes for furtherconsultation once the proposed operating model is finalised, it is premature to suggestthat there has been a breach of the obligation to consult simply because the TeachingCouncil has agreed in principle to establish the Leadership Centre and has spent some$47,000 of its general funds for which it has not yet been reimbursed.[210] This ground of judicial review is therefore not made out. To the extent mattersrelating to the Leadership Centre have any relevance to these proceedings, it wouldseem, at best, that they are an example where the Government appears to be preparedto separately fund a function that it wishes the Teaching Council to undertake as anexception to its policy that the Teaching Council should be financially self-sufficient.Relief[211] Both parties acknowledged that, in judicial review proceedings, the Court hasa discretion as to whether to grant relief although, where grounds of review areestablished, "strong reasons" are required to decline to grant relief.[212] Here the respondent says that it will suffer "substantial prejudice" and that thisis a sufficient reason to decline relief.[213] The applicants acknowledge that the granting of relief sought would causeconsiderable disruption to the process of issuing practising certificates. Their solutionto this is for the Court to quash the annual certification and fee decisions with effectsix months from the date of the judgment. They submit that this would allow forconsultation to occur and new decisions to be made.[214] However, as the applicants acknowledge, if the Court upholds the fifth groundof review (as it has), the bundled levy would amount to an unlawful tax which wouldbe void ab initio. It says that the consequence of this is that the previous triennial feeof $220.70 would apply to teachers who have been certified from 1 February 2021.[215] The respondent points to the fact that it has spent not only the transitionalfunding provided by the Government but also a substantial amount of its cash reservesand that it cannot recover this money.[216] It also submits that it would be required to repay the $11 million in Governmentfunding appropriated to support it in transitioning to annual fees and would becomeinsolvent as a result.[217] The respondent also says that the relief sought would be of no practical valueto the applicants and it would adversely affect the interests of third parties. It wassubmitted that the granting of the relief sought would undermine the performance bythe Teaching Council of:Functions including those most important to the safety of children and youngpeople in classrooms to ensure teacher applicants for certification were fit toteach and have been properly vetted and that they are competent and have noconduct issues.[218] In a memorandum dated 26 May 2021 filed pursuant to leave, Ms Chenclaimed that delay was a relevant factor for the Court to consider in relation to relief,claiming that these proceedings were filed almost six months after the annualcertification fee was gazetted on 22 May 2020. This submission is not entirely correctalthough the Fees Decision was published in the New Zealand Gazette on 22 May2020, the Annual Certification Decision was not published in the New Zealand Gazetteuntil 6 November 2020.[219] The starting point in considering whether the Court should exercise itsdiscretion not to quash an unlawful decision is the proposition that there must be strongreasons not to grant relief and that cases in which relief would be declined were"exceptional".23 The Court of Appeal in Air Nelson Limited v Minister of Transportobserved that in considering whether to exercise its discretion not to quash an unlawfuldecision or grant another remedy, the Court can take into account the needs of goodadministration, any delay or other disentitling conduct of the claimant, the effect onthird parties, the commercial community or industry, and the utility of granting aremedy.24[220] The Supreme Court in Ririnui v Landcorp Farming Limited also observed thatalthough relief in judicial review is discretionary, Courts today will generally consider23 See Air Nelson Limited v Minister of Transport [2008] NZCA 26 at [59] and [60].24 At [59].it appropriate to grant some form of relief where they find a reviewable error, andwhere there has been a fundamental error by a decision-maker concerning anapplicant's legal status, for which the decision-maker is responsible, a Court wouldusually grant relief by ordering the decision-maker to reconsider on the correct basis.25[221] Counsel for the respondent submitted that the requirement for "strong reasons"to decline relief in judicial review proceedings has now been modified so as to applyprincipally to a case where the claimant has suffered "substantial prejudice" and thatin the generality of cases a more nuanced approach is required.26[222] Counsel also referred to the decision of the Court of Appeal in Department ofInternal Affairs v Whitehouse Tavern Trust Board where the Court of Appeal indicatedthat relief may be refused where it would be futile, legislation was likely to be changed,or administrative chaos would otherwise result.27[223] The respondent submitted that there was no substantial prejudice to theclaimants requiring the Court's intervention and re-consultation.[224] The respondent also asserted that the fact that the applicants had proposed aprospective invalidation of the decisions not to take place until six-months hence"acknowledges and underscores that there is no serious detriment to teachers thatrequire urgent reversal".[225] I accept the respondent's submissions that the Court of Appeal has recentlychampioned a more cautious approach, as articulated by Arnold J in Rees v Firth28 andStevens J in Tauber v Commissioner of Inland Revenue.29 This is consistent with theviews expressed by the author of Judicial Review: A New Zealand Perspective whousefully articulated the existence of the "substantial prejudice" requirement asfollows:3025 Ririnui v Landcorp Farming Limited [2016] NZSC 62 at [112].26 Relying on Rees v Firth [2011] NZCA 668, [2012] 1 NZLR 408; and Tauber v Commissioner ofInland Revenue [2012] NZCA 411, [2012] 3 NZLR 549 at [91].27 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398,[2015] NZAR 1708 at [96].28 Above n 27.29 Above n 27.30 Above n 7, at 5.33.if the plaintiff is not prejudiced by the decision or action, or is only a littleprejudiced, then the weight in favour of granting a remedy will in this respectbe little and existence of a matter of public interest pointing against a remedywill more easily lead to a refusal of a remedy. The matter can be viewed fromthe opposite direction. If the effects of a remedy on others are very great, sotoo must be the prejudice to the plaintiff.[226] I have rejected the respondent's submission that the applicants suffered nodetriment as a result of the failure to consult on the change to annual certification. Thenature of the detriment is that teachers applying for certification will have to spendmore time and effort undertaking that exercise on annual basis as compared to atriennial basis.[227] For some teachers, the amount of extra work will be ameliorated, to someextent, by the implementation of Hapori Matatū and PGC. However, because of thevariation in approach between schools over which the teachers effected have nocontrol, there are many teachers who will end up having to undertake significantlymore work by having to complete the recertification process annually rather thantriennially.[228] As mentioned, it is impossible, in the context of judicial review proceedings,to quantify the time value of this extra work but it seems more appropriatelycategorised as prejudice rather than substantial prejudice. This means that I have someflexibility in considering the public interest factors that might militate against relief.[229] The three most relevant public interest factors would seem to be:(a) effect on third parties;(b) prejudice to public administration; and(c) delay.[230] It is my view that the respondent has exaggerated the effect on third parties ofquashing the decisions. As noted in [217] above, the third parties identified by therespondent as potentially being affected were "children and young people inclassrooms" whose safety was said to be compromised in relation to "ensuringapplicants for registration and certification were fit to teach and had been properlyvetted, and that teacher conduct and competence matters were appropriately dealtwith".[231] This submission is predicated on the proposition that if the Fee Decision andAnnual Certification Decision are quashed, the Teaching Council will becomeinsolvent and therefore unable to operate causing chaos.[232] The idea of insolvency is also predicated on the assumption that the TeachingCouncil will be required by the Government to repay the funds that it had beenadvanced. It seems improbable that the Government would act in such a manner. Itis far more likely that the Government would continue to support the Teaching Councilas it has done since 2015. To the extent that legislative amendments are required, italso seems likely that the Government would attend to them promptly.[233] The fact that legislative amendment may be required is not a reason forrefusing relief. Indeed, in Mangawhai Ratepayers' and Residents' Association Inc vKaipara District Council, the Court of Appeal said, in the context of validatinglegislation being required in respect of an unlawful rate:31Validating legislation has frequently been passed where Parliament hasformed the judgement that it is necessary in the overall public interest torectify errors by local authorities. Parliament is the appropriate forum foraddressing such issues.[234] At the hearing, there was some discussion by counsel as to the question of theneed for possible reimbursement of registration fees. That is a separate question towhether or not judicial review should be granted. Duffy J was presented with a similarissue in Mangawhai Ratepayers' and Resents Association Inc v Northland RegionalCouncil where she said:32The plaintiffs want an order directing the NRC to return the rates I have foundto be unlawful to the respective ratepayers. Such an order goes beyond thebounds of the present proceeding. It is in the nature of restitutionary relief.However, the statement of claim makes no claim for restitution. There are31 Mangawhai Ratepayers' and Residents' Association Inc v Kaipara District Council [2015]NZCA 612, [2016] 2 NZLR 437 at [205].32 Mangawhai Ratepayers' and Resents Association Inc v Northland Regional Council [2017]NZHC 1972 at [7] (footnotes omitted).occasions where a decision in judicial review that payments in the nature ofgovernment levies or taxes are unlawful has subsequently led to a courtordering return of those payments. However, such orders are inevitably madein subsequent proceedings for restitution. A notable example is WoolwichEquitable Building Society v Inland Revenue Commissioner.[235] These comments are apposite here. It is possible that following re-consultation, the Teaching Council may come to a similar decision in relation to thefee increase required. It is also possible that there may be a legislative responseauthorising the backdating of that fee increase to 1 February 2021. In any event, aclaim for recovery of fees paid is a private law restitutionary claim rather than a publiclaw one.33 It is not a matter for determination in these proceedings.[236] In relation to prejudice to public administration, this factor, by itself, normallyhas little weight.34 Generally, it would need to be coupled with other factors such asdelay35 or prejudice to third parties to justify withholding a remedy.[237] In relation to the question of delay, particularly when judicial reviewproceedings are challenging something such as the imposition of a rate, applicants areexpected to act reasonably promptly. What is an unreasonable delay is dependent onthe facts.[238] In Hauraki Catchment Board v Andrews,36 the Court of Appeal held that adelay of approximately two and a half years in bringing judicial review proceedingsregarding the fixing of a rate, particularly where the issue intended to be raised wasreadily discernible from the start was lengthy but, nonetheless, upheld the decision ofWild CJ at first instance that a delay of this length was not fatal.[239] In Meridian Energy Co v Wellington City Council,37 notwithstanding somedelay, Collins J found that because the case involved the lawfulness of a tax, he wouldnot have declined the judicial review application on the grounds of delay "because33 See Vodafone Ltd v Ofcom [2020] QB 857 for an example of such a restitutionary claim.34 See Judicial Review: A New Zealand Perspective, above n 7, at 5.40.35 See Anderson v Valuer General [1974] 1 NZLR 603.36 Hauraki Catchment Board v Andrews [1987] 1 NZLR 455 at 448 and 457-458.37 Meridian Energy Company v Wellington City Council [2017] NZHC 48.money paid to a public authority in the form of an unlawful tax ought to attract aremedy".[240] I do not find that there has been any particular delay here so as to disentitle theapplicants from remedy. The applicants needed to understand the background to therespondent's decision. Ms Haugh deposes that the challenged decision was issued ata time of change to COVID levels, that the second applicant needed to have meetingswith members to receive instructions on options and that it also engaged in directcorrespondence with both the respondent and the Minister and it was only when theseinitiatives failed that it commenced these proceedings. The applicants also undertookan information gathering exercise by way of Official Information Act (OIA) request.The respondent says it responded diligently to the OIA request. The applicants havea different view. It is unnecessary for me to ascribe fault. The reality is that theinformation gathering exercise preparatory to the issue of proceedings took some time.[241] If the Court was simply dealing with the first three grounds of judicial review,the course proposed by the applicants of the Court making a prospective quashing ofthe decisions, suspended for six months, would have had some merit.38 However, thedifficulty arises with Grounds Four and Five.[242] In terms of Ground Four, my finding that the respondent did not have a lawfulpower to set a blanket one-year expiry period for new graduates, if suspended for sixmonths, would effectively amount to a judicial amendment to the Act. That is notsomething I can do.[243] The situation is similar in relation to my finding in respect of Ground Five. Ifthe setting of an omnibus fee is ultra vires the respondent's powers, then it effectivelyamounts to an unlawful tax. That is also something that is void ab initio.38 In considering whether the decision should be considered invalid ab initio, or whether there is anyprospect of applying relief in the form of prospective invalidation, a useful starting point isFisher J's decision in Martin v Ryan [1990] 2 NZLR 209. See also Spencer v Attorney-General[2013] NZHC 2580 at [117]; Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) 276at 320; and Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, ThomsonReuters, 2021) at 973.Outcome[244] I make a declaration that the Fees Decision and Certification Decision areunlawful and the first five grounds for judicial review are upheld. The sixth groundof judicial review is not upheld.[245] The Fees Decision and Annual Certification Decision are quashed.[246] The Leadership Centre Decision is lawful and the application for judicialreview in respect of it is dismissed.Costs[247] The parties are encouraged to agree costs but if that is not possible, theapplicants are to file and serve a memorandum within 14 days of the date of thisdecision with the respondent to reply within 14 days of receipt of the applicants'memorandum.Churchman JSolicitors:Izard Weston, Wellington for ApplicantsChen Palmer, Auckland for RespondentCounsel:J D Every-Palmer QC, Wellington