Submission Education and Training (System Reform) Amendment Bill – Director of Regulation (Proposed Subpart 5A) Dec 2025

New Zealand Kindergartens

New Zealand Kindergartens (NZK) is a For-Purpose Charitable Peak Body. It represents nineteen of the twenty six local Kindergarten Associations (73%) across Aotearoa. This submission is published on behalf of NZK Member Associations: Ashburton, Central Kids, Dannevirke, Dunedin, Geraldine, Heretaunga, Hutt City, Kindergartens South, Marlborough, Napier, Nelson Tasman, Northland, Oamaru, Ruahine, South Canterbury, Te Aroha, Waikato, Waimate, and Westport.

Executive Summary

This submission addresses the proposed establishment of a Director of Regulation within the Education Review Office (ERO) under Subpart 5A of the Education and Training (System Reform) Amendment Bill.

The proposal represents a significant shift in the education regulatory framework, consolidating responsibility for registration, licensing, enforcement, and prosecution into a single statutory role.

New Zealand Kindergartens recognises that the proposal has the potential to improve regulatory clarity, consistency, and Tamariki safety. In particular, the creation of a clearly identifiable regulatory authority and the strengthened focus on oversight may address existing gaps in accountability and protection for vulnerable learners.

However, the submission raises substantive concerns about the concentration of regulatory, enforcement, and prosecutorial powers within one role, and about the placement of these powers within ERO, an organisation historically focused on independent, improvementoriented review.

Without strong safeguards, the proposal risks undermining procedural fairness, blurring the boundary between evaluation and enforcement, and eroding trust between regulators and education providers.

The submission therefore supports the proposal only with conditions. It emphasises that the effectiveness and legitimacy of the Director of Regulation model will depend on implementation, including clear separation between review and regulatory functions, robust internal governance, transparent use of delegation powers, adequate resourcing, and accessible review and appeal mechanisms.

Accordingly, this submission recommends that the proposed provisions proceed only alongside explicit safeguards to protect independence, proportionality, and trust, and that the operation of the Director of Regulation be subject to an independent review within two to three years of implementation.

Overview – New Zealand Kindergartens

Kindergarten in Aotearoa New Zealand is steeped in the history of pioneers who sought to provide education and care for children within their local communities. Dunedin is the “Home of Kindergarten,” established in 1889. Christchurch followed in 1899, Wellington in 1905, Auckland in 1908, and Invercargill in 1919. By 1975, there were 75 Kindergarten Associations operating 384 Kindergartens.

Our pioneering foremothers/fathers focused their efforts and resources on teacher training, policy and funding. They were pivotal in improving the standards of programmes, staffing, qualifications, and buildings and equipment.

New Zealand Kindergartens as we are known today was established as the New Zealand Free Kindergarten Union in 1912/13 and was legally constituted in 1926.

New Zealand Kindergartens is a For-Purpose Charitable Peak Body. It represents nineteen of the twenty six local Kindergarten Associations across Aotearoa. Collectively we have provision to education and care for more than 14,000 Tamariki, we employ a minimum of 1,785 registered teachers, and a minimum additional 380 professionals to support our teaching teams.

Our purpose is to support for-purpose trailblazers to thrive in the provision of fit-forpurpose, teacher-led, quality education that enhances social, emotional, economic and environmental impact.

Submission Feedback on the Education and Training (System Reform) Amendment Bill Director of Regulation (Proposed Subpart 5A)

The proposed establishment of a Director of Regulation within the Education Review Office represents a significant shift in how regulatory authority is exercised. It marks a move away from a dispersed regulatory model toward one that consolidates decision-making, enforcement, and prosecutorial powers within a single statutory role. While this change has the potential to strengthen regulatory coherence and Tamariki safety, it also raises important questions about independence, proportionality, and the preservation of trust in the education system.

At its best, the proposal offers clarity. By assigning responsibility for registration, licensing, compliance, and enforcement to a clearly identified Director of Regulation, the legislation creates a visible locus of accountability.

For providers, families, and Tamariki, this has the potential to reduce confusion about who is responsible for regulatory decisions and to promote more consistent application of standards. The requirement that the Director be suitably experienced and expert, and the ability to authorise regulatory officers, further supports the development of a professional and capable regulatory function.

However, these advantages must be weighed against the risks inherent in concentrating such a wide range of powers in a single role located within the Education Review Office. The Director of Regulation is empowered not only to assess compliance and make registration decisions, but also to authorise investigations, take enforcement action, and prosecute offences. Without strong internal checks and balances, this accumulation of functions risks undermining perceptions of fairness and procedural separation. Regulatory systems rely not only on legal authority, but also on confidence that decisions are made impartially and proportionately.

There is also a deeper structural concern arising from the location of the Director within ERO itself. ERO has historically been understood as an independent, improvement-focused review agency, whose effectiveness depends on trust, openness, and cooperation from education providers. Introducing coercive regulatory and prosecutorial functions into this environment risks blurring the boundary between evaluation and enforcement. Providers may become more guarded during reviews if they perceive that information shared for improvement purposes could later be used for punitive action. Over time, this could erode the very conditions that make evaluative review effective.

The delegation provisions, while offering flexibility, further heighten the need for careful governance. The ability to delegate powers across the public service, and in limited circumstances outside it, introduces complexity around accountability and consistency. Even with safeguards, there is a risk that regulatory decisions may be perceived as uneven or insufficiently transparent, particularly where delegated actors are not clearly identified or understood by the sector.

These risks do not render the proposal unworkable, but they do underscore that legislative authority alone is insufficient. The success of the Director of Regulation model will depend on how it is implemented in practice. Strong internal separation between review and regulatory functions, clear decision-making frameworks, transparent use of delegation powers, and robust conflict-of-interest management will be essential. Equally important is adequate resourcing, including legal, investigative, and regulatory expertise, to ensure that enforcement powers are exercised judiciously and consistently.

In our view, the proposed changes should proceed only alongside explicit commitments to safeguard independence, fairness, and trust. This includes clear public guidance on how ERO’s review role interacts with its regulatory responsibilities, accessible appeal and review mechanisms for affected providers, and a commitment to review the operation of the Director of Regulation after an initial implementation period.

In summary, the proposed Subpart 5A provisions offer an opportunity to strengthen regulatory oversight and Tamariki safety, but they also represent a profound cultural and functional shift for the Education Review Office. If the balance between evaluation and enforcement is not carefully managed, the system risks achieving greater regulatory power at the expense of trust and improvement.

With strong governance, transparency, and ongoing review, however, the proposal could deliver a more coherent and effective regulatory framework that serves both accountability and educational quality.

Proposal Pros, Cons, Risks, and Mitigation Strategies

Alignment with New Zealand Kindergartens’ Previous Submission on the Director of Regulation

New Zealand Kindergartens’ position on the proposed Director of Regulation builds directly on the principles and concerns articulated in our October 2025 submission on the Education (Early Childhood Services) Amendment Regulations. In that submission, NZK consistently supported the Government’s intent to strengthen regulatory oversight, provided that enforcement is proportionate, transparent, and firmly centred on the health, safety, and wellbeing of Tamariki.

Across our previous submission, NZK emphasised that the effectiveness and legitimacy of any regulatory framework depend not only on the powers conferred, but on how those powers are exercised in practice. In particular, we highlighted the risks of over-reliance on blunt enforcement tools, the need for graduated and flexible responses to non-compliance, and the importance of safeguarding trust between regulators, providers, families, and whānau. These same considerations are directly relevant to the establishment of a Director of Regulation.

NZK welcomed the move toward a broader suite of graduated enforcement tools, clearer thresholds for intervention, and improved transparency. We supported a regulatory model that enables early intervention, improvement-focused responses, and timely escalation where children’s safety is at risk. At the same time, we cautioned that without clear guidance, proportionality, and discretion, regulatory powers may be applied in ways that create unintended consequences, such as inequitable impacts on smaller or rural services, excessive administrative burden, or reputational harm disproportionate to the seriousness of the issue.

A central theme of our earlier submission was the importance of clarity and consistency in decision-making. We called for plain-language guidance, published thresholds, and anonymised case examples to support understanding and confidence in regulatory decisions. These expectations apply equally to the Director of Regulation role, particularly given the breadth of powers proposed, including enforcement action, public notices, and prosecution.

NZK also consistently stressed the need for flexibility and fairness. We argued that regulatory frameworks must be able to distinguish between wilful or persistent non-compliance and providers making genuine, good-faith efforts to improve in challenging circumstances. This principle is critical in the context of the Director of Regulation, whose decisions may have significant consequences for service continuity, workforce stability, and community access to early childhood education.

Finally, our previous submission underscored that regulation must drive improvement, not failure. Enforcement should be paired with guidance, support, and capability-building wherever possible, reserving the most severe sanctions for situations where children’s safety is genuinely at risk or where providers have failed to respond to repeated interventions. The establishment of the Director of Regulation must therefore be accompanied by strong safeguards, transparent processes, and adequate resourcing to ensure that regulatory authority is exercised judiciously, consistently, and in a manner that sustains high-quality, teacher-led early childhood education.

In this context, NZK’s position on the proposed Director of Regulation is not new, but a continuation of a clear and principled stance – strong regulation is essential, but it must be proportionate, improvement-focused, and implemented in a way that preserves trust, fairness, and sector sustainability.

Recommendation

NZK recommends that the proposed Subpart 5A provisions proceed only with strengthened safeguards and explicit implementation commitments, to ensure that regulatory effectiveness does not come at the expense of fairness, independence, or trust.

Specifically, we recommend that:

1. Clear separation of functions be established between ERO’s evaluative review activities and the regulatory and enforcement functions of the Director of Regulation, including information-handling protocols.
2. Robust internal governance arrangements be implemented to prevent overconcentration of power and to support consistent, proportionate decision-making.
3. Transparent regulatory guidance be published to assist providers understand expectations and consequences.
4. Delegation powers be exercised narrowly, transparently, and subject to clear conflictof-interest management.
5. Adequate resourcing and specialist capability be provided to support enforcement and prosecutorial functions.
6. The operation of the Director of Regulation role be subject to an independent review within two to three years of implementation, with findings made public.

Subject to these conditions, the proposal has the potential to deliver a more coherent and effective regulatory framework that strengthens Tamariki safety while preserving the integrity of ERO’s core review function. Without such safeguards, however, the reforms risk undermining confidence in both the regulator and the wider education system.