NZQA prosecution policy

NZQA Prosecution Policy relating to offences under the Education and Training Act 2020 and other relevant legislation

Te Take/Purpose

The purpose of this policy is to outline NZQA’s approach to the enforcement of the law in the education sector by commencing and conducting a criminal prosecution.

Specifically, the policy is intended to assist with:

• determining whether a prosecution should be commenced;
• determining what charges should be filed;
• determining whether, if commenced, criminal proceedings should be continued or discontinued;
• considering whether to commence, defend or continue appeals against court decisions arising from NZQA’s prosecutions;
• providing guidance for the conduct of criminal prosecutions; and
• establish standards of conduct and practice for NZQA staff managing and conducting prosecutions.

Te Tirohanga Whānui/Scope

This policy relates primarily to the prosecution of offences under the Education and Training Act 2020, but also offences under other statutes, such as the Crimes Act 1961, where they are relevant (collectively referred to in this policy ‘relevant offences’).

This policy applies to all NZQA personnel and legal counsel acting on behalf of NZQA in dealing with relevant offences. It must be adhered to by all staff involved in prosecution matters.

This policy does not apply to offences that are handled by other government agencies (such as Police) on referral from NZQA.

Compliance with this policy is required under the NZQA Code of Conduct.

Te Kaupapahere/Policy

1. Principles

1.1. Decisions to commence criminal prosecutions (or not) must be made on sound objective grounds following a full assessment of all relevant factors.

1.2. No prosecution should be commenced without a clear understanding of what NZQA seeks to achieve.

1.3. There is no presumption that conduct in breach of relevant law and regulations will result in the commencement of a prosecution. However, the starting point must always be that the relevant law and regulations must be obeyed, and NZQA recognises that deterrence of misconduct is assisted by visible public denunciation and consequences.

1.4. Prosecution decisions must be made in the context of the available resources and to ensure the best value outcome.

1.5. All prosecutions will be commenced and conducted in accordance with the Solicitor-General’s Prosecution Guidelines (Prosecution Guidelines). This policy is to be read together with the Prosecution Guidelines. In the event of any conflict between the Prosecution Guidelines and this policy, the Prosecution Guidelines are paramount.

1.6. Prosecution decisions will be promptly advised to the Board Chair. Details of prosecutions underway will be included in the Chief Legal Advisors monthly litigation report to the Board.

2. Framework

2.1 NZQA’s responsibilities include prosecuting offences under the Education and Training Act 2020 (see Subpart 7 of Part 4, Subpart 8 of Part 5 and section 665 of the Act). NZQA’s roles include:

• maintaining the New Zealand Qualifications Framework and Directory of Assessment Standards;
• administering the secondary school assessment system;
• Administrator of the Education (Code of Pastoral Care for International Students) Code of Practice;
• independent quality assurance of non-university education organisations; and
• qualifications recognition and standard-setting for some specified unit standards.

2.2. Compliance and enforcement are part of NZQA’s quality assurance role.

2.3. NZQA will apply the most appropriate and cost-effective enforcement tools to instances of non-compliance. In appropriate cases, this will include prosecution. Prosecutions may be commenced in addition to (and at the same time as) other enforcement and compliance action (such as issuing compliance notices, imposing conditions, withdrawing approvals, or formal warning letters).

3. Conflicts of interest

3.1. All NZQA staff with duties or accountabilities under this policy must act without any actual or potential conflict of interest.

3.2. Any person involved in the investigation, preparation or conduct of a prosecution who may have any actual or potential conflict of interest whatsoever must disclose the matter of concern immediately to the Chief Legal Advisor.

4. Decision-making procedure

4.1. Each NZQA team is responsible for identifying potential offending in their relevant area of responsibility. Depending on the circumstances, an investigation will then be carried out by that team or passed over to the Risk Team and/or Legal Team.

4.2. For most offences NZQA prosecutes under the Education and Training Act, there is currently a 12-month limitation period for prosecutions, which starts from the date on which the offence was committed (not detected). Early detection and investigation is desirable.

4.3. In every case where we are aware of an offence having been committed NZQA shall apply the Test for Prosecution in order to make a decision on whether to prosecute.

4.4. A preliminary determination will then be made as to whether the test for initiating a prosecution (discussed below) has been met. This determination will be made by the Legal Team at NZQA, in consultation with an experienced lawyer who has been briefed in the matter (usually a prosecutor at a Crown Solicitor’s office).

4.5. The matter will then be referred to the Chief Executive to make the final decision on whether to prosecute in accordance with the Prosecution Guidelines, this policy and legal advice.

4.6. Where the Chief Executive decides to prosecute, charges will be filed, and the defendant is to be notified through service of those charges.

4.7. Where the Chief Executive decides not to prosecute, the relevant persons should be notified of the decision (to the extent that is reasonable).

5. Test for prosecution

5.1 A prosecution will be initiated or continued if the case meets the two-part test set out in the Prosecution Guidelines:

• the evidence which can be adduced in Court is enough to provide a reasonable prospect of conviction (Evidential Test); and
• prosecution is required in the public interest (Public Interest Test).

5.2. Each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The Evidential Test must be satisfied before the Public Interest Test is considered. The prosecutor must analyse and evaluate all the evidence and information in a thorough and critical manner.

5.3 If a prosecution that has been commenced no longer meets the two-stage test, it will be discontinued. An ongoing assessment against the two-stage test is required throughout all prosecutions.

The Evidential Test

A reasonable prospect of conviction exists if, in relation to an identifiable individual, there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury or Judge, properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.

It is necessary that each element of this definition be fully examined when considering the Evidential Test in each particular case:

• identifiable individual: a prosecution can take place where the evidence sufficiently identifies that a particular person is responsible.
• credible evidence: this means evidence which is capable of belief. Where there are substantial concerns as to the credibility of essential evidence, criminal proceedings may not be appropriate as the evidential test may not be capable of being met.
• evidence which the prosecution can adduce: Evidence which is, or reliably will be, available and legally admissible can be taken into account in reaching a decision to prosecute. Consideration (with the assistance of legal advice, if necessary) should be given as to whether potential evidence would be ruled inadmissible. For example, evidence could be excluded because of the improper way in which it was obtained.
• could reasonably be expected to be satisfied: The apparent cogency and credibility of evidence is not a mathematical science, but rather a matter of judgement. Insofar as is possible, a consideration of likely defences should be anticipated and evaluated.
• beyond reasonable doubt: the evidence available must be capable of reaching the high standard of proof required by the criminal law.

The Public Interest Test

If the Evidential Test is met, the next step is the Public Interest Test. If this test is not met, then no charges may be filed.

All the applicable public interest factors set out in the Prosecution Guidelines are to be taken into consideration, as well as any other relevant matters going to the public interest.

Where NZQA is aware of an offence having been committed NZQA shall apply the Test for Prosecution in order to make a decision on whether to prosecute.

6. Charges to be filed

6.1. Once a decision to prosecute has been made, the choice as to which charges should be filed should reflect the criminality of the conduct. Sections 17 to 20 of the Criminal Procedure Act set out the requirements on the content and choice of charges.

6.2. When making decisions on charges, the following matters must be taken into account:

6.2.1. The charges must take into account the totality of offending, and representative charges should be considered for repeated or ongoing conduct;

6.2.2. If the offending relates to acts or omissions attributed to a company or other corporate entity (such as a private training establishment), the charges should reflect:

• the purpose of the relevant legislation and any express provision as to party liability; and
• the relevant culpability of that corporate entity and/or its officers and employees.

7. Prosecution process

NZQA will endeavour to conduct itself with propriety and fairness in the course of a prosecution. In particular, NZQA will:

• deal with the prosecution promptly and efficiently and without causing unnecessary delays or expense;
• act consistently, fairly and even-handedly in the handling of the prosecution;
• consider the possibilities for, and initiate where appropriate, alternative means of resolving the prosecution;
• responsibly spend public funds in relation to a prosecution;
• not seek to take inappropriate advantage of an opponent who lacks resources;
• not require the other party to prove a matter which NZQA knows to be true or seek to take unmeritorious points for tactical reasons; and
• act in compliance with the NZQA Code of Conduct.

8. Disclosure

Disclosure to a person charged by NZQA is made in accordance with the requirements of the Criminal Disclosure Act 2008. Responsibility for meeting those requirements rests with the staff at NZQA handling the prosecution and the prosecutor.

In all cases, NZQA will endeavour to comply with its disclosure obligations promptly.

9. Focused programmes

From time to time, NZQA may concentrate on a particular area, or areas of, offending by way of focused programmes in order to bring about compliance and provide deterrence.

10. Information gathering

10.1. For all information gathering for prosecution:

• there must be a clear purpose and necessity for the information gathering;
• the information gathering must be lawful and ethical;
• the type of information gathered must be proportionate and reasonable;
• the way the information is gathered must be proportionate and reasonable; and
• appropriate approval must have been obtained.

10.2. NZQA shall only engage security consultants for information gathering where there may be a threat to the safety of NZQA personnel.

Any use of security consultants must be supported by strong governance and information management practices and be in accordance with all conditions in point 10.1 above.

11. Appeals

11.1. NZQA may appeal a Court decision in the course of a prosecution. The [Chief Executive] Chief Legal Advisor will make the decision whether to appeal, given the circumstances, based on advice from the Legal Team at NZQA, in consultation with an experienced lawyer who has been briefed in the matter (usually a prosecutor at a Crown Solicitor’s office). Appeals in non-Crown prosecutions require the consent of the Solicitor-General.

11.2. NZQA will not pursue appeals unless NZQA considers that it has reasonable prospects of success and/or the appeal is otherwise justified in the public interest.

12. Media and publicity

In accordance with the Prosecution Guidelines and subject to considerations in the Crown Law “Media Protocol for Prosecutors”, the NZQA Communications team will manage any media communications.

Ngā Kawenga Mahi/Responsibilities

Chief Legal Advisor

• Providing legal advice throughout the intervention process, especially providing the Manager Risk advice as to whether the Test for Prosecution has been met.
• Advising the NZQA Board of the status of prosecutions in the monthly litigation report.

Chief Executive

• Making the decision whether, or not, to prosecute.
• Approving any information gathering being undertaken under powers given in sections 458 and 634 of the Education and Training Act 2020.
• Advising the Board Chair of prosecution decisions where it is considered that escalation is required.

Manager Risk

• Managing interventions under this policy.

NZQA Personnel

• Ensuring that any investigations and information gathering activities are undertaken in accordance with the organisational safeguards in the relevant published policies and processes.

Ngā Puna Tautoko/ References

Education and Training Act 2020 (external link) – www.legislation.govt.nz

Fair Trading Act 1986 (external link) - www.legislation.govt.nz

Crimes Act 1961 (external link) - www.legislation.govt.nz

Process 11.4.6.2 Manage allegations of unauthorised use of trademarks and logos.

Policy - Information gathering for regulatory compliance and law enforcement.
Intervention processes

Policy - Escalate issues to the NZQA Board

Ngā Kōrero Tautuhi/Definitions

For the purposes of this policy, unless otherwise stated, the following definitions apply.

Intervention:

A non-statutory action, and/or a statutory action, and/or a prosecution.

Prosecution:

A court proceeding in respect of an offence that is commenced by or on behalf of the Crown, and includes a proceeding in respect of an offence that is commenced by or on behalf of a Crown entity within the meaning of section 7 of the Crown Entities Act 2004 (refer Criminal Procedure Act 2011).

Party:

Any individual person, or company, or both, whether or not that person or company is related to an institution as defined in section 10 of the Education and Training Act 2020.

Ngā Kōrero Whakatau/Measurement Criteria

Confirmation that the intention of the Policy is being met will be provided through the internal audit process.