Evening Post. MONDAY, JULY 3, 1922, FAR – REACHING DECISION

Evening Post, Volume CIV, Issue 2, 3 July 1922, Page 6

Evening Post. MONDAY, JULY 3, 1922, FAR - REACHING DECISION

The Minister of Education makes an interesting statement on the farreaching effect of the' judgment which Miss Park has obtained against -him. x On the face of the judgment neither the Minister nor the present Government is responsible; for the Regulation which has been declared invalid. The Regulation empowering the Minister of Education to cancel a teacher's certificate was made on the 13th February, 1912, when the Ward Government was still in office, and Mr. Parr has merely administered the law, or what appeared to be Ihe law, as he found it. But a point with which the Court was ijot concerned is that the Regulation was no new 'thing in 1912, It was merely the repetition of a Regulation which, having been made in 1878, was for all practical purposes as old as the Education Act itself. The power of cancelling the certificate of a teacher proved guilty of serious misconduct has therefore been in existence for more than forty years under a Regulation which was supposed to have the force of law, and it has been exercised by Mr. Parr's predecessors without challenge. It has also, as he reminds us, been exercised by Mr.. Parr himself. Miss Weitzel lost her certificate in.this way,' and some interesting legal conundrums' may arise as to the position of this certificate and some of the many others which have been cancelled during the last forty-four years under an authority now proved to be invalid. The case' is indeed a striking illustration of the saying that a blot is not a blot till it is hit. There are some things ■which the law regards as cured by acquiescence and the lapse of time, but the invalidity of a Regulation made in excess of the statutory authority is not one of jfchem. Nor does there appear to 'be anything analogous to a statute of limitations to protect the official acts done under such a Regulation, In the cheque-betting case . which fluttered England towards the end of last year, and is now fluttering Australia, the legal pitfallrWealed by the decision of the House of Lords had been in existence aboijfc twice as long as the Regulation now pronounced invalid; but the retrospective effect of the decision was limited by the! general rule which prevents proceedings for any ordinary debt after sjx years. The cancellation of a. teacher's certificate under a power which is now proved to have had no legal basis might presumably be attacked even after the lapse of forty, years. The risk is so slight that the point may not be of more than academic interest, and, so far as any personal liability for damages is concerned,the case is clearly one in which a retrospective indemnity should not be grudged to the cancelling authority. But the case\raises other problems which are not nearly so. simple. Mr. Parr's contention that there must be some power of cancelling and suspending these certificates iB, of course, unanswerable. It would be absurd that a teacher guilty, to quote the terms of the Regulation in question, of " immoral conduct or gross misbehaviour " should be free to retain his certificate! after losing his position in a service which he had disgraced. The retention of the certificate might enable the teacher to obtain employment 1 under some* other Education Board, or to damage the credit of our teaching profession abroad by using New Zealand credentials as a means of obtaining employment elsewhere. Nobody would defend such a possibility, but that the proper' solution would be to amend the Act so as to act the Regulation on its legs again is not so clear. The circumstances of the very case which has revealed the invalidity of the Regulation show that a more fundamental, logical, and comprehensive change is required. In the course which he was taking in Miss Park's case the Minister of Education was> in effect, constituting, himself £i Court of Appeal lirpm -a! -decision of the Education

Board? Charges had been made against Mis,s Park by her School Committee and others. The Education Board had investigated the charges, and taken such action as it deemed appropriate. Dissatisfied both with the procedure adopted by the Board, and with its decision, the Minister of Education proposed to hold' a second inquiry himself.

This inquiry would, in effect, have been an appeal in so far as it involved a review of exactly the same facts which the Education Board had already investigated. It would, on the other hand, have differed; from an appeal on one vital point—viz., that it could not have reversed the decision of the Board. The Board had decided that Miss Park was a fit' and proper person1 to be in their employ, and that she should remain; there. If the Minister's inquiry had proceeded, it might have led him to the cpnclusion that she was not a fit and proper .person to hold a teacher's certificate, but the cancelling of the certificate would not have removed Miss Park from her present position, nor would it have compelled the Board to dismiss her. As Mr. Justice Salmond pointed out, it would have left the Board free to retain Miss Park's services in, her present capacity, but not to promote her or to transfer her to any other school, nor could any other Board have given her employment of any kind- Thus, though Mr. Parr is quite right in emphasising the anomalies arising from the judgment against, him, the anomalies of a judgment in his favour must not be overlooked. As we haiie said, something more than a mere validation of the Regulation which had stood without question for forty-four years is needed. A valid procedure for the cancellation and suspension of certificates must be provided, and as this may involve a clash between the Department and a Bqar<J, provision must also be made for avoiding a deadlock. That the ultimate determination should rest with some independent and judicial tribunal seems to be clear. The inconvenience of allowing the Minister to be the judge in his own cause is obvious. The sepond ground of attack in the present case—viz., that he has disqualified himself from an impartial inquiry by statements which implied a predetermination of the issue—shows that the consequences may even be inconvenient for the Minister himself. As it }s eminently desirable that an executive officer should retain full freedom of speech, and criticism, both private and public, it follows that the judicial decision of a ease to which he may have made himself a party should be in other hands.