The Education and Training (Teaching Council Fees, Levies, and Costs) Amendment Act 2021 (the Act) came into force on 20 November 2021. The Act broadens the Teaching Council’s existing power to set fees, and authorises the Council to impose levies, for teacher registration and the issuing of practising certificates and Limited Authorities to Teach for early childhood, primary, and secondary school teachers. It also validates some fees set previously and the receipt of fees payments.

What the Act does

Part 1 of the Act separates the Council’s functions into mandatory and optional functions and enables the Council to set fees and impose levies to recover the costs of undertaking all its mandatory functions and exercising related powers.

The Act provides that fees and levies can only be used to recover costs related to mandatory functions, which are functions focussed on teachers. Optional functions are professional leadership functions focussed on growing and improving the capability of principals and other education professionals. Optional functions can only be undertaken with the approval of the Minister and will continue to be funded by the government.

The Act also confirms that the Council is able to charge fees and levies in the manner it prescribes (eg by instalments), and to recover unpaid fees as a debt due to the Council. These measures are necessary for the Council to operate on a fully self-funded basis in relation to its mandatory functions.

Part 2 of the Act retrospectively validates the receipt of payments for fees that took effect from 1 February 2021 and have now been quashed by the High Court. Payments received for the now-quashed fees will be credited to the teacher toward other fee payments. The Act does not, however, validate the quashed fees.

The Act also validates any previous fees set (with the exception of those set by the quashed fees order) and payments received by the Council or its predecessor organisations.

The Act places a requirement on the Council to:

• ensure that fees and levies only cover the actual and reasonable costs of performing the Council’s functions and
• consult with the teaching profession and to receive views presented to it with an open mind and to give due consideration to those views when making decisions about fees.

Why the Act is necessary

The Act is necessary because 2021 High Court judgment overturned Council decisions about practising certificates and fees related to the 2020 fees notice and this created uncertainty about the Council’s ability to set fees to cover the costs of all its statutory functions.

This deficiency in the legislation was problematic because Government expects the Council to operate on a fully self-funded basis in relation to its mandatory statutory functions.

The Act gives effect to this policy.

Retrospective effect

This is necessary because the Court’s finding that the Council is not mandated by the Act to charge for all of its statutory functions may have raised doubt as to the validity of the previous (and now current) 3-yearly fee, as well as any fees charged prior to that by the Council and its predecessors.

The Act does not validate the annual certification and fee decisions that were overturned by the High Court, but it does allow the Council to retain payments received for that fee and to credit these in part-payment of the three-yearly fee that now applies (the annual certificates have been reissued as three-year certificates). This avoids the Council having to refund annual fee payments to affected teachers and then collect the three-yearly fee from the same teachers.

Education and Training (Teaching Council Fees, Levies, and Costs) Amendment Bill – New Zealand Legislation

Supplementary analysis reports

The Education and Training (Teaching Council Fees and Costs Amendment Bill) required 2 Supplementary Analysis Reports to be prepared. The first supports the Bill and the second supports a Supplementary Order Paper.