Special education units irretrievable Crown says

A High Court judge has been cautioned not to stray into the area of making Government policy for special-needs education.

Justice David Baragwanath has been asked to order the Government to reinstate special-needs units - disestablished by former Education Minister Wyatt Creech in 1998 - except where there is demonstrably no need for them.

The Court of Appeal ruled in February that the minister had acted unlawfully because he failed to consider, unit by unit, whether there were suitable alternatives.

Grant Liddell, for the Crown, told the judge that the plaintiffs - families with special-needs children - were asking the court to exercise a power that was the minister's.

"The court has a fine line to tread between marking, as it might choose, the illegality with judicial disapproval and becoming an improper participant in the policy enterprise, which the court has earlier recognised is the province of the elected parts of government."

Mr Liddell likened the minister's single error to a "technical irregularity" and said there had been no substantial wrong or miscarriage of justice.

There was no need for the court to intervene, as no one's rights had been affected by the decision, which was effectively a "tidying-up" exercise following Government decisions removing the teaching resource attached to special units.

Mr Liddell told Judge Baragwanath that the new policy, introduced over five years, had meant new spending of $160 million a year and had brought resources more equitably to 2 1/2 times as many students.

The policy was "embedded" and too much water had flowed under the bridge since 1998.

New arrangements for special-needs education had been put in place.

If the court determined that some relief was necessary, a declaration of unlawfulness would be sufficient.

Mr Liddell said the cost of implementing the remedy sought by the plaintiffs was "vastly disproportionate" to any harm done.

It would cost $63.9 million and require an extra 670 teachers, 136 support staff and 260 more resource teachers.

There was no evidence to show that schools where units were disestablished had not been able to provide suitable education for children with special needs, he said.

"Unravelling" the measures taken to implement Special Education 2000 would seriously prejudice schools, students who missed out under the old "inflexible" system, teachers and the Government, which had invested a "substantial" amount of money in the new policy.

Mr Liddell said the plaintiffs were seeking a return to the old "unfair" system where resources were distributed based on historical patterns of need.

The court was being asked by the plaintiffs to declare that special-needs units were best, something it was neither empowered nor fitted to do.

Re-establishing the units was inconsistent with present policy.

It was an attempt by the plaintiffs to dictate the shape and content of special-education policy in a way the law did not mandate or allow.

Mr Liddell told the judge that even if he ordered the re-establishment of the units, the minister would not be prevented from exercising his power to disestablish.

"The relief the plaintiffs seek may well be futile," he said.

Mr Liddell noted that CCS, IHC and the national Assembly of People with Disabilities had been reported as saying the re-opening of special-need units would be a backward step.