Government action unlawful in Unitec case

Steve Maharey

The Government breached several laws in an attempt to block a polytechnic becoming a university, a court ruled yesterday.

It means last night Unitec in West Auckland was able to celebrate a crucial victory in its six-year battle with the Government over its tertiary status.

Justice Forrest Miller, at the High Court in Wellington, ruled that the Government acted unlawfully in its handling of Unitec's 1999 university application, breaching:

* The Bill of Rights Act, 1688;

* The New Zealand Bill of Rights Act, 1990; and

* The rules of natural justice.

Justice Miller put Social Development and Employment Minister Steve Maharey in the firing line in his judgment.

Mr Maharey, who was associate education minister in 2000, was responsible for suspending Unitec's application, while the Government tried to introduce legislation to limit the number of universities.

"By suspending the application, the associate minister plainly refused to exercise a statutory power ... " Justice Miller said in his judgment.

Unitec applied for university status in 1999 and filed legal papers in January this year after losing patience with a Government it claimed was determined to prevent the polytechnic's application to become the country's ninth university.

The institution, which boasts more than 50,000 students on programmes from certificates to doctorates, has since re-applied and is still awaiting the outcome.

Unitec CEO Dr John Webster said last night that the findings were welcome - but increased his reservations about the latest application.

The court's decision showed the Government had deliberately blocked Unitec's application to be established as a university, despite the strength of Unitec's case, he said.

"I wonder if the minister can now make his final decision on the merits of our case, without being influenced by his own central role in the events covered in this judgment."

The application has received support from industry, local government and the community. But it remains unpopular in some quarters, including the Vice-Chancellors' Committee which represents New Zealand's universities.

Mr Maharey's office yesterday referred calls to Minister of Education Trevor Mallard, who declined to comment on the judgment as he had not seen it.

However, he said the application process was underway and he was receiving advice from the Qualifications Authority and the Tertiary Education Commission.

"I have yet to make a decision," Mr Mallard said.

Unitec also took action against the Qualifications Authority for its role in the delays, but these were rejected by Justice Miller as NZQA was not obliged to give advice when the "minister has made it plain he does not want its advice".

The institution originally sued for $3.5 million.

Whether compensation will be awarded, and how much, will be decided at another hearing.

Deborah Coddington, Act's education spokeswoman, warned Labour's "we know best attitude" could leave the taxpayer footing the bill.

"It's appalling that Unitec had to go to this extent to fight Maharey, who acted as if he was above the law. It now appears that taxpayers will have to fork out for his arrogance and bullying."