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Unitec to seek judicial review

Unitec to seek judicial review

Unitec will seek an immediate judicial review of today’s decision by the Minister of Education to deny them university status, said Unitec Council Chair Alan Dickinson.

CEO Dr John Webster said that, if the process had been fair and carried out in good faith, the facts would have made it almost impossible to decline Unitec’s application for university status. Unitec had pointed out to the Minister that he, and the relevant agencies, had made several serious errors in the way in which they had come to a decision.

“As we made clear to the Minister, Unitec satisfies the characteristics of a university in the Education Act to a greater extent than AIT did when the then National Government granted it university status to become Auckland University of Technology in 1999.” (See chart attached).

“The criteria for university status have not changed since the last assessment, that of AIT, and Unitec is well ahead of where AIT was when their application was accepted.

“Our application shows 50% of our students at degree level, while AIT had only 44.8%. We show 272 equivalent full-time students (EFTS) at postgraduate level. AIT had only 98 EFTS. We show a much higher proportion of staff members with postgraduate qualifications than did AIT, and more than three times as many refereed research outputs – in fact we are well ahead in all areas.

“Based on these figures, any fair assessment must conclude that Unitec should be granted university status.

“We agree with the Minister’s assessment that we are an excellent institution, and that is because we operate as a university of technology.”

Dr Webster said that the High Court’s findings last month, that the Government acted unlawfully and breached the Bill of Rights in handling the Unitec application, suggested that the Minister had not been able to maintain a genuinely open mind on this issue.

“The last thing we want to do is to involve the courts again. If the Government had dealt with us fairly six years ago when we first applied for university status, all of this could have been avoided.

“However, we owe it to our students, staff and stakeholders to ensure that their hard work isn’t simply dismissed out of hand by a Minister who seems intent on ignoring the facts – that we are a university of technology in all but name, and deserve official recognition for that.”


% total EFTS at Level 6 and above 59.8% 65%
% total EFTS at degree level 44.8% 50%
% degree EFTS at postgraduate level 2.5% 6%
Number of undergraduate degrees 19 (plus majors) 22 (plus majors)
Number of postgraduate programmes 10 (3 Masters) 28 (14 Masters)
Number of doctoral programmes 0 2 (PhD, Doctor of Computing)
EFTS in postgraduate programmes 98 272 EFTS (535 students)
% staff with postgraduate qualification 18% – 24% 54%
% staff with doctoral qualifications 7% 11.9%
Number of refereed research outputs 61 196
Total number of research outputs 530 838

Unitec's reply to the Minister on his initial view of their assessment:

25 July 2005
Hon Trevor Mallard
Minister of Education
Parliament Buildings

Dear Minister

1. Thank you for your most recent letter, which we received by fax on 18 July 2005, and for the additional information appended to that letter.

2. Our substantive response to your preliminary view, as set out in your letter dated 27 June 2005 and elaborated upon thereafter, initially in your letter dated 8 July 2005, and then in your letter received on 18 July 2005, is attached.

3. We submit that you cannot confirm your preliminary view that you will not be recommending to the Governor-General that Unitec be established as a university by Order-in-Council for four main reasons:

4. The first reason why you cannot lawfully confirm your preliminary view to decline our current application is that you have indicated that you reached your preliminary view based mainly on the particularly compelling advice from the Board of the New Zealand Qualifications Authority (NZQA). This advice was based on the report from the NZQA Panel of experts (Expert Panel).

We are very concerned that the Expert Panel made a crucial mistake of law in concluding that, as recorded in paragraph 11.4 of the minutes of the NZQA Board meeting on 5 May and 6 May 2005, the Education Act 1989 (“Act”) … did not recognise dual sector providers such as United [sic] New Zealand. But the Act does recognise dual sector providers, and Auckland Institute of Technology (“AIT”) was a dual sector provider when established as a university under the Act in 1999. Auckland University of Technology (“AUT”) remains a dual sector university in 2005.

5. Furthermore, we submit that the Direction given by the NZQA Board to the Expert Panel was misguided and is likely to have resulted in an inconsistent assessment in breach of the section 162(4) of the Act. The Direction stated that: some may argue or consider that [the NZQA Guidelines] do not correctly interpret the legislative characteristics; or fail to cover all matters or to cover them exhaustively and that the Expert Panel…may exercise their own judgment. We submit that this Direction is quite inconsistent with the advice given to Unitec by the NZQA Board, negates the whole point of having guidelines (which is to provide guidance, and thereby to secure consistent decision-making), and is also inconsistent with the Board Direction to the Expert Panel that reviewed AIT against the same characteristics. The failure of the Expert Panel to follow the guidelines in reviewing Unitec creates a significant risk that the review has been ultra vires the characteristics of a university set out in section 162(4) of the Act, and could also be in breach of natural justice through inconsistency.

6. The second reason why you cannot lawfully confirm your preliminary view to decline our current application is that Unitec substantially complies with all of the characteristics of a university set out in section 162(4). Your advisors agree that Unitec clearly meets three of the characteristics and express reservations only in relation to characteristics (i) and (iii).

We submit that our alleged failure to demonstrate characteristic (i) in section 162(4) of the Act arises solely from an incorrect interpretation made by the Expert Panel and the NZQA Board of the term total EFTS for the purposes of the relevant criterion in the NZQA Guidelines The Panel and the Board should have followed the precedent set when AIT was assessed for university status, and excluded International English EFTS and community EFTS from their calculations.

Many of the courses are delivered off campus, and none can be credited to mainstream award programmes. Unitec could easily follow the example of many NZ universities and deliver them through subsidiary companies. The students simply do not form an integral part of the academic community.

7. We submit that our alleged failure to demonstrate characteristic (iii) in section 162(4) of the Act arises primarily from the incorrect direction given by the NZQA to the Expert Panel, allowing the Expert Panel to set aside the Guidelines and to use traditional universities as the benchmark for research performance. This is inconsistent with the approach adopted by the Expert Panel that assessed the AIT application and may well be in breach of natural justice. In fact, the extent and quality of research at Unitec is comparable to that achieved by one New Zealand university and is improving each year. We believe that, had the Expert Panel been properly directed, it would have found that we already demonstrate characteristic (iii) in respect of research, at least at a level commensurate with a university which is still at a relatively early stage of development.

There appears to be no dispute that we do meet international standards in respect of teaching.

8. We would draw your particular attention to the Accord between Unitec and RMIT University in Melbourne, Australia, which has just been reaffirmed and strengthened. The Accord will further enhance our capacity to deliver postgraduate teaching and research of international quality, to increase our postgraduate EFTS, and to expand our research and development activities. There is therefore every reason to expect that we will progressively move well beyond the threshold level of research performance required by characteristic (iii).

9. We therefore submit that, bearing in mind that the Solicitor-General advised on 19 July 1999 that substantial compliance is sufficient, and that we clearly meet all the other characteristics of a university, you can conclude that Unitec substantially meets the characteristics of a university as AIT was found to do.

10. The third reason why you cannot lawfully confirm your preliminary view to decline our current application is that we have a substantive legitimate expectation that our application will be dealt with on the same basis as the only previous application, by AIT. In 1999, AIT was found by the responsible Minister substantially to comply with the characteristics of a university. Neither the statutory characteristics of a university nor the substantive NZQA Guidelines have changed since that time. Measured against these benchmarks, Unitec is well ahead of where AIT was at the point where AIT was established as a university. AUT has gone on to be a very successful university. Considering the many similarities between the institutions, we are confident that Unitec will be at least as successful, given the same opportunity.

11. Finally, we submit that the national interest test does not apply to our application and that there are good reasons under section 164 of the Act why Unitec should now be disestablished as an institute of technology and established as a university. We submit that the national interest test included in subsection 162(3)(ab) of the Act does not apply to the Unitec application because of the recent statement of Justice Miller in Unitec v Attorney–General & Ors (CIV 2005-485-89, High Court, Wellington, 7 July 2005) that …I consider that the Associate Minister [of Education] ought to have been in a position to make his recommendation by the end of 2000. The test in subsection 162(3)(ab), which did not come into effect until 1 January 2003, cannot be applied to our application. We have not engaged with the Tertiary Education Commission in relation to the national interest test except on a without prejudice basis. Even if the national interest test did apply, we submit that establishing Unitec as a university must be very much in the national interest, for the reasons set out in the attached substantive submission.

12. We appreciate this opportunity to comment on your preliminary view. We hope and expect that our application will be treated fairly and you will consider our submissions on your preliminary view with a genuinely open mind. Official recognition of our true status as a university, and of the critical importance of maintaining and expanding the opportunities we provide for students to progress seamlessly between the various levels of education, as their careers unfold and their confidence develops, surely cannot be denied for much longer.

Yours sincerely

Dr John Webster

Chief Executive and President

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