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New Zealand does not have a stand-alone document that forms its constitution; instead, the country’s constitutional arrangements are found in a range of sources, including certain statutes, court decisions, and uncodified constitutional conventions.[1]  For example, the New Zealand Bill of Rights Act 1990 is considered constitutional in nature and gives effect, under domestic law, to the rights contained in the International Covenant on Civil and Political Rights.[2]  It does not contain economic, social, and cultural rights, such as the right to education, which may be seen as imposing positive duties on the state.

However, the right to access free education is reflected in the Education Act 1989.  Section 3 of this Act states as follows:

3  Right to free primary and secondary education
Except as provided in this Act or the Private Schools Conditional Integration Act 1975, every person who is not an international student is entitled to free enrolment and free education at any State school or partnership school kura hourua during the period beginning on the person’s fifth birthday and ending on 1 January after the person’s 19th birthday.[3]

In a 2003 case, the Court of Appeal noted that, in New Zealand, “the right or entitlement to free enrolment and free education has existed for 125 years, since the enactment of the Education Act 1877.”[4]

A further provision, section 8, relates to special education and provides “equal rights to primary and secondary education,” stating that people who have special educational needs (whether because of disability or otherwise) have the same rights to enrol and receive education at State schools as people who do not.”[5]

In addition, the Human Rights Act 1993 prohibits discrimination in access to educational establishments by reason of any of the prohibited grounds of discrimination in the Act, which include disability as well as sex, religious belief, race, etc.[6]

New Zealand has also ratified several international treaties that affirm the right of access to free education, including the International Covenant on Economic, Social and Cultural Rights (ICESCR).[7]  There is a “presumption that New Zealand will act in accordance with its international obligations, and that legislation will comply with those obligations.”[8]  Where necessary, legislation is enacted to give full effect to the country’s international obligations.[9] 

The New Zealand government, in its reporting on the country’s compliance with the ICESCR, refers to various activities and initiatives related to protecting and enhancing the right to education in New Zealand, including with respect to curriculum development, special education, and improving the educational achievements of other vulnerable groups.[10]

The New Zealand Human Rights Commission “first considered the extent to which the right to education was realised in New Zealand” in 2004.[11]  It refers to international treaties in defining the core elements of the right, as well as standards developed by a United Nations Special Rapporteur for assessing the realization of the right.  It notes that the right to education “is not explicitly provided for in New Zealand law,” although elements are reflected in legislation, with education policy and administrative practice further supplementing the realization of this right.[12]

The Human Rights Commission receives a number of complaints each year related to discrimination by educational establishments or in terms of access to education.[13]

In terms of the justiciability of the right to education in New Zealand, the Court of Appeal, in the 2003 case referred to above (which related to special education), overturned the High Court’s finding that sections 3 and 8 of the Education Act 1989 conferred an individual entitlement to education in a form that is not clearly unsuitable for the pupil and that must be regular and systematic.[14]  The Court of Appeal found that

[a]ny requirement that the education be “regular and systematic” is met in its essence, it seems to us, by the statutory requirements including those for minimum days and hours, teacher registration and curriculum.  Those and the other features of the Act mentioned above, together with the very opaqueness of the proposed standard, also appear to us to negate a judicially enforceable “not clearly unsuitable” general standard and the grave difficulty it presents for judicial supervision. . . .

. . . while there are rights under the 1989 Act that can be enforced by court process, those rights do not include generally, and abstractly, formulated rights of the kind stated by the Judge.  Rather, the rights are essentially those specifically established by and under the legislation which, to recall the Judge’s formulation, do in themselves provide for regularity and system and are designed to ensure appropriate quality.  There is no freestanding general right, held and enforceable by each individual student under ss3 and 8, of the kind stated.[15]

Therefore, while the High Court found that a substantive right to education existed under the Education Act 1989, the Court of Appeal took a narrower view, interpreting the right to be procedural only.[16]

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Prepared by Kelly Buchanan
Chief, Foreign, Comparative, and
International Law Division I
May 2016


[1] See Kenneth Keith, On the Constitution of New Zealand, The Governor General, https://gg.govt.nz/role/ constofnz/intro (last visited May 4, 2016), archived at https://perma.cc/VZE9-FXGQ.

[4] Attorney-General v Daniels [2003] NZCA 29, at ¶ 59, http://www.nzlii.org/nz/cases/NZCA/2003/29.html, archived at https://perma.cc/U6QF-9PME.   

[5] Education Act 1989, s 8(1).

[7] International Covenant on Economic, Social and Cultural Rights, arts. 13 & 14, Dec. 19, 1966, NZTS 1978, No. 18, https://admin.treaties.mfat.govt.nz//document/td/2011, archived at https://perma.cc/BBC2-TDM5.

[8] Legislation Design and Advisory Committee, LAC Guidelines: 2014 Edition, ch. 3, “Basic Constitutional Principles and Values of New Zealand Law” (2014), http://www.ldac.org.nz/guidelines/lac-revised-guidelines/ chapter-3, archived at https://perma.cc/73MH-VALU.

[9] Id. ch. 8, “Treaties and International Obligations,” http://www.ldac.org.nz/guidelines/lac-revised-guidelines/ chapter-8, archived at https://perma.cc/76FX-L53L.

[11] Human Rights Commission, Human Rights in New Zealand 2010, ch. 12, “Right to Education,” at 169 (2010), https://www.hrc.co.nz/files/5114/2388/0504/HRNZ_10_Right_to_education.pdf, archived at https://perma. cc/FC8W-YDDN.

[12] Id. at 171.

[14] Attorney-General v Daniels [2003] NZCA 29, at ¶ 62 (quoting Daniels v Attorney-General (3 April 2002) HC AK M1516/SW99, ¶ 137).

[15] Id. at ¶¶ 82–83.

[16] See E.J. Ryan, Failing the System? Enforcing the Right to Education in New Zealand, 35 VUWLR 735, 739 (2004), http://www.victoria.ac.nz/law/research/publications/vuwlr/prev-issues/pdf/vol-35-2004/issue-3/ryan.pdf, archived at https://perma.cc/44NR-BF62; Philippa Moran, No Learner Left Behind: Is New Zealand Meeting Its Obligation Under Article 24 of the United Nations Convention on the Rights of Persons with Disabilities?, PILJNZ 1, 13–15 (2014), http://piljnz.org/wp-content/uploads/2016/01/PILJNZ-2014.pdf#page=3, archived at https://perma. cc/Z9LJ-SVTD