Te Whāriki Consultation Claimed to Beach Statutory and Legal Requirements.
December, 6, 2016.
Opposition to the process the Ministry of Education is taking in re-writing the early childhood curriculum Te Whāriki is growing.
The Federation of Rudolf Steiner Schools sought legal advice and has sent a letter to the Education Minister that sets out its concerns about the inadequacy of the consultation process, which it argues breaches the requirements in the Education Act 1989.
This follows on from Dr Sarah Alexander’s paper pointing to there being multiple issues multiple issues that the Ministry must address and recommending that the ministry postpone its planned release of the new curriculum in February next year and put time into getting it right.
The Federation of Rudolf Steiner School and signatories to the letter to the Minister of Education have requested “a full and proper consultation process”.
It is argued that the process and time frame that the Ministry of Education has provided for response is inadequate, given the very substantial change in direction that is being proposed and that the current process breaches the statutory and legal requirements for consultation.
The letter is 9 pages. The main section of the letter which is also the most important section is reproduced below only.
5 December 2016
The Hon Hekia Parata
Minister of Education
Breach of statutory requirement to consult
We submit that the Ministry is in breach of its statutory requirement to consult with “organisations representative of persons affected”.
The Education Act 1989 requires that the Minister consult with the sector before implementing a new curriculum. Section 314 Curriculum Framework says:
(1) The Minister may prescribe a curriculum framework for any or all of the following:
(a) all licensed early childhood services;
(b) all certified playgroups:
(c) all licensed early childhood centres and certificated playgroups
(2) The Minister may not prescribe a curriculum framework or amend a curriculum framework unless the Minister has consulted with those organisations that appear to the Minister to be representatives of persons likely to be substantially affected.
The courts have held that consultation requires the following four elements:
(a) Adequate notice;
(b) Adequate information;
(c) Adequate time to respond; and
(d) The consideration of our views with an open mind.
As organisations “representative of persons likely to be substantially affected”, we did not receive adequate notice for this consultation process. There is in fact clearer evidence that there was no intention to consult the broader sector at all.
The ECE sector has been aware for some time that the Ministry intended to review Te Whāriki. In 2014 an advisory group was established to consider the question of whether Te Whāriki should be refreshed. In June 2015 the advisory group reported to the Ministry recommending the Ministry commission an update with extensive sector engagement as part of the process.
On 25 July 2016 the Minister announced that there would be a review of Te Whāriki. In contrast to previous consultation processes no nominations were called for writers. On 11 and 12 August 2016 writers appointed by the Ministry met for the first time.
(From 4 November) Consultation notices were sent out to services only. They were not sent to communities, whānau, parents, schools, iwi or other important stakeholders. For example, schools have not been included in this consultation process. Yet they are directly affected and have many questions they want to ask and to engage in with the Ministry in this consultation process, including the following: Up until now Te Whāriki has focussed on scaffolding children with a wide range of foundation skills that support effective transition to school. Do schools want early childhood teachers to teach the recognition of letters, the counting system, and mathematical symbols and concepts and writing stories which are currently the domain of schools? Or are there other skills they consider more important for successful transition for example relationships, social competence, participation and contribution repertoire, wellbeing and the ability to manage self?
Many of the “persons likely to be substantially affected” have not been invited to the consultation meetings at all. A notice on the Ministry web site is not an invitation to consult if the attention of “persons affected” is not drawn to the notice. In such circumstances a website notice cannot be considered adequate notice of consultation.
Inadequate information to make an informed response
We have not received adequate information to allow us to respond in an informed manner and in some cases we have been given misinformation. The consultation documents that were placed on the Ministry of Education website on 4 November 2016 provide no information of any kind that explains the reason for the fundamental changes to Te Whāriki, nor is there any reference to research evidence that shows that the types of changes proposed address the perceived deficiencies in early childhood education at the moment. We say “perceived deficiencies” because we still have not been told the specific problems that these changes are trying to address. If we know what these problems are we will be in a position to offer alternative solutions which do not destroy the pedagogy of the existing curriculum.
Specifically, there is no evidence that the introduction of specific learning outcomes will improve the implementation of Te Whāriki in poor quality services. The recently released Education Review Office report Early Learning Curriculum What’s Important and What Works, has not indicated or recommended the introduction of specific learning outcomes as a possible response to identified concerns.
We have further concerns that attendees at some hui have been told be representatives of the Ministry that the learning outcomes are not mandatory, that guiding principles and strands have not changed and that the updated Te Whāriki would not challenge their Special Character Policy. We consider this advice from the Ministry to those attendees to be seriously misleading and designed to avoid any potential opposition to the curriculum being voiced. Misinformation cannot be considered to meet the criteria for “adequate information” which is required for consultation.
Inadequate time to respond
The sector has been denied adequate time to respond. Six weeks consultation is an inadequate timeframe for meaningful hui and consultation, particularly where some Ministry of Education organised hui do not occur until one week before the deadline for feedback. Organisations in these areas will have little time to digest the impact of the changes or make any meaningful response before submissions close.
Limited meetings and the variability of presentations significantly affected participation and compromised the quality of the presentations. Remarkably only one meeting was held in the Wellington area – held in Upper Hutt city and between 3 – 6pm which is one of the least suitable times to hold a meeting for early childhood practitioners. The meeting in Gore for example, was barely 1.5 hours while the meeting in Greymouth was 3.5 hours.
The Ministry also ran an online survey but this form of consultation does not make up for what can be gained from forums for discussion and supporting practitioners to gain an understanding of the changes, engage in debates with the writers/Ministry, and provide informed and considered input to the process.
The Minister is required to consult with “organisations that appear … to be representative of persons likely to be substantially affected”. The requirement to consult with organisations that are representatives of persons likely to be substantially affected means that the Minster must take into account the operational needs and minimum timeframes that organizations require in order to properly represent the views of their members. Because we are organisations, rather than individuals, we need time to:
(a) review and understand the impact of the draft curriculum;
(b) inform and consult with our centres and our staff; and
(c) provide an opportunity for centres to consult with parents and whānau.
It is impossible for this to occur in a six week time frame, at a time of the year when centres are leading up to Christmas and parents are swamped with end of year activities. Therefore consultation that does not take the above organisational needs into account is not “adequate” and will not meet the requirements for consultation set down by the courts.
Comparison with previous consultation processes
By contrast the original Te Whāriki curriculum took three years to write and a further three years to consult. Consultation then was a comprehensive and inclusive process which involved meetings with a very broad range of stakeholders. It was genuine consultation and resulted in a curriculum document that is internationally respected. We are not asking for three years of consultation but request six months to allow us to get through the Christmas and summer holiday season and have time to properly consult with our staff, parents and stakeholders, and to propose alternative solutions that are backed by evidence.
We have been told at hui meetings that the reason the process is so rushed is that these are only “amendments” rather than a completely new document, and as such there is no requirement for a normal consultation process and a condensed process will be enough.
We strongly disagree with this view. The changes are a complete shift in focus and values for early childhood pedagogy and are in no way “minor” or mere amendments.
Further the statute does not provide for a reduced consultation process in the case of amendments. Both new “curriculum frameworks” and “amendments” require the Minister to consult the same people. Under section 314 of the Act, the fact that this draft is called an “amendment” does not allow the Ministry to avoid or truncate the statutory consultation process. Even if it were held that time frames could be shorter in certain circumstances, this is unlikely to include a situation like the present one where the changes are very substantial because they will impact all children in ECE and their families.
Indications of predetermination
We query the reason behind the short time frame and the rush to complete the entire consultation process before the end of the year so that the sector can be presented with a hard copy of the final curriculum at the start of the 2017 school year. We can think of no valid educational reason why this process needs to be rushed and many reasons why it should not be.
We are concerned that the way that this consultation process has unfolded may indicate a predetermined view. We are particularly concerned by the following:
(a) The failure to involve the sector in the Ministry’s thinking at an early stage;
(b) The initial attempt to limit the “consultation” to a small group of people (one day with ECAC and two hub groups) and to require them to keep the document confidential;
(c) The failure to allow the members of that group to take the document away and speak to their colleagues and key stakeholders about it;
(d) The stated intention at the ECAC meeting not to get the curriculum writers back together;
(e) The statement that there would be no further consultation apart from that which had occurred with the members of ECAC and at the “confidential” hub meetings;
(f) The implementation of a rushed consultation process with invitations sent to a limited group (services);
(g) The failure to invite or notify all stakeholder organisations in the sector;
(h) The implementation of a six week time frame just before Christmas that does not allow organisations to consult their individual member organisations, and for those groups to consult with whānau; and
(i) The clear indication that the Ministry expects the document to be finalised and in print early in 2017.
The above history of this consultation process indicates an intention to reach a pre-determined outcome and gives us no confidence that our views will be considered with an open mind.
The above history also constitutes a breach of the Ministry’s requirement to consult under section 314 of the Act and arguably demonstrates either a complete misunderstanding of the Ministry’s legal obligations, or a deliberate intention to ignore them. The process has been seriously defective and leaves the Ministry open to challenge in the courts.
New consultation process required
The Ministry is required to consult in good faith. We, the undersigned, collectively request that the current consultation process be expanded and extended to allow all “persons likely to be affected” by the significant changes in the Te Whāriki curriculum to have their views heard.
We require a fair and reasonable opportunity to consider the proposed changes after we have been provided with the full background context and reasons for to the changes and the relevant research. Only then will we be able to respond in an informed manner.
We look forward to hearing from you urgently. Should the Ministry refuse to expand the current process into a proper consultation process we will consider all legal and media options open to us.
Hana Lambert, Chair, Federation of Rudolf Steiner Waldorf Schools Aotearoa New Zealand
And on behalf of:
Adam Dubignon, Principal, Michael Park School
Alan Cummins, Chairperson, Proprietors Trust Christchurch Rudolf Steiner School
Andrea Sorger, Tumuaki/Principal, Te Ra School
Andrew McFadden, Chairperson, Board of Trustees Waikato Waldorf School
Annemarie Mead, Chair, Board of Trustees Raphael House Rudolf Steiner School
Barbara McKenna, Centre Manager, Taikura Rudolf Steiner Kindergarten Hastings
Carmel Spencer, Principal, Taikura Rudolf Steiner School Hastings
Carol Scholes, Chairperson, Rudolf Steiner Schools Trust
Caroline Heath, Board Chair, Wellington City Rudolf Steiner Kindergarten
Chris Rae, Co-Chair, Rudolf Steiner School Trust (Wellington)
Christine Riegger, Centre Manager, Oromahoe Kindergarten
Clare Ridout, Licensee, Dunedin Rudolf Steiner Kindergarten
Claudia Hellberg, Chairperson, Waiheke Island Rudolf Steiner Education Trust
Corrie Levick, Centre Manager, Kereru Rudolf Steiner Kindergarten Hastings
David Gibson, Chairman, Rudolf Steiner Early Childhood Trust
David Stephenson, Interim Principal, Raphael House Rudolf Steiner School
Dominque Adcock, Management, Rose Ring Kindergarten
Ellen Appleton, Chairperson, Motueka Rudolf Steiner School Trust
Fenella Tinworth, Director/ Teacher, Four Seasons Rudolf Steiner Kindergarten
Fiona Dawson, Owner/ Head Teacher, The Farmyard for Early Learners
Francis Ritchie, Manager, Christchurch Rudolf Steiner Kindergarten
Gabriela Stuedemann, Chairperson, Rudolf Steiner School Trust Otago
Gerrit Raichle, Managing Director, Awhina Day Nursery and Kindergarten
Grant Carpenter, Chair, Board of Trustees Te Ra School
Heather Dodge, Centre Manager, Steiner Cottage
Helen Bedyn, Head Teacher and Manager, Taradale Kindergarten
Izumi Uchida, Chairperson, Board of Trustees Dunedin Rudolf Steiner School
Jacquie Sokolov Pearson, Director, At Home Childcare
Jane Ferguson, Head Teacher, Steiner Cottage
Jean Howarth, Senior Teacher, Motueka Rudolf Steiner Kindergarten
John Bartley, Chair, Board of Trustees Taikura Rudolf Steiner School Hastings
Julian Ketel, Chair, Waldorf Schools Bay of Plenty Trust
Kane Fisher, Acting Chairperson, Bay of Island Waldorf Education Trust
Karen Affleck, Centre Manager, Michael Park Kindergartens
Kathy Macfarlane, Titirangi Rudolf Steiner Kindergarten, and College of Teachers, Titirangi Rudolf Steiner School
Linda Ojala, Secretary, Whangarei Community Steiner Trust
Margaret McCarthy, Centre Manager, Miro House and Kowhai Childcare centres
Marianne Spiller, Principal, Waikato Waldorf School
Mary Tait-Jamieson, Principal, Tauranga Waldorf School
Merrie Waters, Trustee, Waiheke Island Rudolf Steiner Education Trust
Michele Andrews, Kapiti Waldorf Trust
Ngaire Cooper, Chair, Board of Trustees Michael Park School
Nina Macadam, ECE Liaison, Rudolf Steiner School Trust (Wellington)
Paul Denford, Co-Chair, Rudolf Steiner School Trust (Wellington)
Peter Flint, Chair, Tauranga Waldorf School Board of Trustees
Rachel Barrington, Principal, Dunedin Rudolf Steiner School
Robin McKenzie-Suggate, Manager, Christchurch Rudolf Steiner Kindergarten
Sandra Lukeman, Head Teacher, Dunedin Rudolf Steiner Kindergarten
Silke Carter, Chairperson, Rudolf Steiner Schools (Titirangi) Trust
Sue McGeorge, Manager, Pathways Steiner Kindergarten
Sue Simpson, Chairperson, Rudolf Steiner School Hastings Trust (Proprietors)
Suzan Bart, Centre Manager, Seven Dwarfs Childcare Centre
Thomas Proctor, Principal, Christchurch Rudolf Steiner School and Lead Principal Steiner Community of Learning
Tracey Burgess-Jones, Chairperson, Rudolf Steiner Schools (Waikato) Trust
Traceylee Hooten, Director/Manager, Four Seasons Rudolf Steiner Kindergarten
Vibhusha Delamore, Founder, Trustee and Teacher, Fossil Bay Kindergarten
Wayne Martin, Chairperson, Board of Trustees, Christchurch Rudolf Steiner School