The Dominion THURSDAY, AUGUST 6, 1931. GOVERNMENT AND THE LAW

Dominion, Volume 24, Issue 266, 6 August 1931, Page 8

The Dominion THURSDAY, AUGUST 6, 1931. GOVERNMENT AND THE LAW

A judicial ruling has just been given in a test case heard in Auckland that an education board has no power under the Finance Act, 1931, to dismiss a woman teacher _ because she happens to be married. Although the case is of special importance to education boards and the teaching profession, it raises also a question of genera interest, namely, the tendency of Government to arrogate to itself, or to its official deputies, arbitrary powers of decision affecting the liberty of the subject, and above the law. ' The temptation to do this arises from the enormous amount of legislation that modern Parliament's take upon themselves. The first result of this is that obscure legal phraseology, undetected in the rush of hasty legislation, frequently passes into the Statute Book. This leads to needless expense in subsequent litigation.. The second is the legislative device of enunciating a principle of action in general terms, and making statutory provision for applying it by rules and regulations to be framed by a Government department. ■Although the procedure under “Orders-in-Council” implies supervision and approval of these by the statutory authority, the process, is a mere formality. Indeed the powers vested in rules and regulations issued by Orders-in-Council have even gone beyond the authority of Parliament, as witness the frequently-recurring phrase in New Zealand departmental regulations, "Notwithstanding anything to the contrary in the principal Act ...” . , . . These tendencies have not escaped the notice of eminent jurists. In the course of an address to the American Bar Association some years ago, Lord Hewart remarked that it was a. commonplace to say that “the Rule of Law involves at least two things—the absence of arbitrary power on the part of the Government, and equality before the law.” The speaker went on to say that the tendency of modern law-making was to transgress this rule in at least three ways. One was to provide in express terms by Statute that the decision of certain questions belonged to this or that Government department, that the departmental decision (in effect the Minister s) was to be final and binding on both parties, and that that decision was not to be questioned in a Court of Law. Another was to confer upon a Government department power to make rules and regulations having the force of law, and a third was “by Statute to make orders for the removal of difficulties and actually for that purpose even to modify the provisions of the Statute itself.” The Auckland case offers an almost perfect illustration of the transgression of the Rule of Law to which Lord Hewart referred, and also emphasises the danger of entrenching upon a principle in order to make a compromise with expediency. As the result of abnormal unemployment in the teaching profession, due to retrenchments, the education boards brought pressure to bear on the Minister of Education to give them discretionary power, by Statute, to dismiss married women teachers who had husbands able to support them. The Minister thereupon inserted a clause in the Finance Bill which at first sight looked as if their request had been granted. On careful analysis, however, the wording appeared to certain boards to limit their discretion to “refusal to appoint,” not “refusal to employ.” Other boards, Auckland and Nelson in particular, read into the clause the full powers they had requested, and acted accordingly, with the result that their action has now been invalidated.

Here is an instance where a piece of slovenly legislation led to needless expense. But this does not end the story. Had the clause been so worded that the power of dismissal conferred by .this particular piece of legislation could not have been questioned, every teacher so dismissed would have had the right of recourse to the Teachers’ Appeal Court, and the onus would have been placed upon the board of proving to- .the satisfaction of the court that the dismissal was justified on professional grounds. So carefully guarded are the rights, of the- teachers in this connection that the question has been raised whether the ban sought to be imposed by the boards could have held in Common Law.