THE LAW ON THE SUBJECT

New Zealand Times, Volume XLIX, Issue 11225, 2 June 1922, Page 7

THE LAW ON THE SUBJECT

ADDRESS BY SIR JOHN FINDLAY. WHAT ACT SAYS. Sir John Findlay cited the Education Act, 1877, which lie pointed out gave no right of appeal whatever to teachers; while section 100, in regard to the issue of certificates of competency, paragraph (5), wag in the same words as the paragraph in section 10l cf the Act of 1914, giving the Governor-in-Council power to make regulations; and regulations were made, providing, inter alia, that the Minister should have power to cancel the certificate or license in the case of any teacher whom ho held to be proved guilty of criminal conduct or gross misbehaviour. The amending Act. of 1895 first gave the right of appeal to teachers, giving what his learned friend, Mr Myers, called “fixity of tenure.” In the Consolidation Act of 1908 a large number of sections in the Education Act weTe amended, but the words in section 100 of the Act of 1877 were retained. The Act of 1908 continued the right of appeal to teachers, and the regulations made under the Act gave the Minister power to suspend as well as cancel teachers’ certificates.

His Honour: What do you say a “suspended certificate” is? Sir John Findlay: We suggest that during the suspension the teacher would not''■have authority to teach. His Honour suggested that the authority to teach was given by the appointment of the teacher by a board. The Act said that a teacher must not be appointed unless he or she could produce a certificate of competency, but, in the case of suspension, the teacher, would still hold the certificate.

Sir John Findlay: My answer is that suspension is a temporary revocation of the certificate. His Honour: I should say that the teacher either holds the certificate or he does not. Sir John Findlay: It is not very clear; hut that is the beet answer I can give. “POWER EXTENDED AND RENEWED.” By later legislation, he added, the Minister for Education was given further power to suspend the license in the case of military defaulters; and the Act of 1920 apparently deliberately renewed the power of the Minister to cancel or suspend certificates; and that, of course, long after the right of appeal had been given to teachers. If it was not intended that the section in the Act of 1877 should continue in force, that, surely, would have been stated in the subsequent Acts referred to. If there had been any intention to limit the meaning of the words in the section of the Act of 1877, as his friend contended, some indication of it should have been given in the subsequent legislation ; hut, instead, there was a provision saying that the regulations were to have the force of law. His friend, had, quite properly, challenged ihim to show that there had been a practice of cancelling certificates without dismissal by a Board of Education. Counsel prooeeded to cite oases in which teachers’ 'certificates had been cancelled. In two oases the certificate® had been obtained by fraud. In other cases the certificates of teachers, employed both by education boards and in native schools and in private schools, had been cancelled on the ground of immorality or gross misbehaviour. DISMISSAL RECOMMENDED.

In one case the Education Board had recommended the dismissal of the teacher, but the teacher had resigned before the recommendation took effect. His Honour would see, said counsel, that there was no right of appeal in the case of teachers engaged m the native schools, or in private schools, all of whom, or a great many of them, received certificates of competency from the Minister; and teachers in Catholic schools, deaf and dumb schools, and' so forth, were not subject to the jurisdiction of any Education Board. There was another very large class of teachers—those who were out of employment or had left the profession. Married women, for example. retained 1 their certificates, and oould afterwards return to the profession on the strength of the certificates which they took with them. But, should they grossly misbehave themselves, the Minister could, it was contended exercise the right to cancel such certificates, so as to prevent them seeking employment as teachers again. But his learned friend, Mr Myers, contended that the Minister had the power to cancel only in a case where an Education Board had dismissed a teacher and the ■appeal against dismissal was disallowed. Mr Myere: I submitted also that the whole thing Is ultra vires,. “NO JURISDICTION OVER MINISTER.” Sir John Findlay quoted examples to show that in cases of this character the court had no jurisdiction over the Minister. He had, he said, raised the point before in the Australian case, and ■ he wanted to supplement it with further cases. What do you say the effect of cancelling a certificate is? asked His ourSir John Findlav: If the Minister hn« not the legal power, it is a futility. But. if that is net the case, the cancellation of a certificate moans that, not having a certificate, the tea-

cher could not he employed by an Education Board. His Honour; Not transferred? Sir John Findlay: No; the teacher would need a certificate. Mr Myers: The Act declares a transfer to he an appointment, Your Hononr. His Honour: But cancellation would not affeqt the existing position held by a teacher? Sir John Findlay: I am not prepared to answer that. THE MAIN POINT. Our main point is that we want to claim the right to exercise our power over these certificates, to cancel them, so that a teacher cannot in such oases take the certificate and get employment elsewhere. His Honour: But it would not prevent the teacher holding his present position ? Sir John Findlay: Probably not. But if the teacher sought other employment, or, not being then employed, sought employment, at would prevent him getting it. His Honour: The right of the teacher is only the right to appeal against dismissal, not against not getting promotion. Then the cancellation of a certificate apparently does not interfere with the right? Mr Myers:' But a teacher cannot hs graded unless ho is on the classification list. Sir John Findlay: But the teacher could continue in the same position or grade, probably, notwithstanding the cancellation. His Honour: But the teacher would to graded, even if he had not got a certificate, if he continued in the service of the Government ". . . So that the holding of a certificate cannot bo a condition of grading or classification ? ■Sir John Findlay said that he was not prepared to answer that point. He urged that, the principle that applied in the case of the Marine Board should apply. A master’s ccrficate was suspended pending an inquiry by the board. His HonourProbably there is an analogy'. But in the case of a marine board inquiry tho suspension of the. lertifieate is recognised under the Merchant Shipping Act gir John Findlay said that the Minister merely wished suspension pending inquiry; hut the chairman or tho Education Board apparently looked upon that as a very serious reflection on the character of the teacher. Civil Servants were often, suspended pending inquiry into a charge. The Minister for Education, however, could not suspend employment, as the teacher was a servant'' of the board. MR MYERS IN REPLY MEANING OF “PROVED GUILTY.” As to the meaning of the words “proved, guilty,” stated Mr Myers in the course of his reply, the only authority that seemed to be of any assistance at all was that of Leeson against the General Council of the Medical Association. There was nothing in the regulations or statutes to show the meaning of the words; but he contended that tho Minister, as in the case cited, had to be satisfied judicially—as the result of a judicial inquiry. Two of the cases cited by counsel' were cases in which the certificates had been obtained by fraud; and the other cases were ones in which a teacher had done some disgraceful act and the MJbistcr, had purported to exercise the power of cancellation giren by the regulation. But his power had ne/er been tested, nor the validity of the regulation called in question. The n.ere fact that the Minister had purported to exorcise that power did not necessarily give him that power. It was contended that if the teacher’s certificate was suspended or cancelled the teacher could not appear in any grading or classification list

His Honour: Not if still in the employment of the Education Board? Mr Myerß: Not if the certificate is pioperly oancollei. His Honour: Would the teacher not be entitled to the standard grade of pay?

Mr Myers: -She might or might not be. Jit is a puzzle. Until there is o regrading she might, but what about when the regrading caaneP His Honour: What do you say is the effect of the cancelling of a license? Does the teacher lose her job? \ Mr Myers: That is a question that I confess I aom not prepared to answer. But she Would be seriously prejudiced in her position as a teacher. His Honour: But it is a question I have to answer. (Laughter.) Mr Myers snid that it wns quite plain that tho teacher oould not ba promoted; not even .in the same school. TEACHER “STALEMATED.” His Honour: She is stalemated, as It were; but she is still in existence, and still gets the same salary. Mr Myers: I understand the uneertifieated teacher is paid ten per cent, less than the certificated teacher holding a similar position. Uncertificated teachers, I understand from the director, are not graded; and there is special pay on grading. Ho submitted that what was in the mind of the Minister was that if tho certificate of a teacher was cancelled she could not be omployed at all.

His Honour: I have nob been able to gather that from the statutes. Some argument as tc the grading regulation'-, followed; but His Honour remarked that cne -set of regulations cculd not be brought forward to show that another set were ultra vires. That could only bo shown from the statuto itself.

Mr Myers submitted that it might be held that tho words “found guilty” meant proved guilty in some court of law or proved guilty to the satisfaction of an Education Board; hut in either case, he contended, the Minister would have no jurisdiction in such circumstances as admittedly existed in the present case, where there had been no determination by the board against tho teacher, and where there had been no proceedings in any court. He maintained that the court had power of prohibition wherever powers had been exceeded. He contended, too, that the certificate was a right of property and conferred a status, and that the status entitled the holder to employment—and, further, to employment which might lead to promotion or to other employment.

THE MINISTER’S CLAIM.

But the Minister said, “I claim the power to. so deal with that certificate as to curtail the rights which its possession gives you."' Now, if that claim could not be substantiated, it was submitted that, quite apart from prohibition, an injunction would lie. His Honour: Prirna facie, an in. junction is a remedy against some wrong.

Mr MyerS: Or threatened wrong. His Honour: This is not a wrong. Would the teacher have a right of action for damages? Supposing she has not, she is asking for an injunction where no wrong has been done? Mr Myers: I submit that she would have a right to damages if the Minister has not the power which he claims; because this is doing- something which purports to affect her right. Supposing he cancels or suspends the certificate —whatever may be meant by the word “suspends”—and gives notice accordingly to the board, it is submitted that her prospect of obtaining employment would be affected, because no board would appoint her under such circumstanced. \ His Honour: If the thing was dons maliciously, rthere would be a case for action, no doubt. Mr Myers claimed that an injuns tion would then lie. He held that an injunction "R-ould lie wherever a .prohibition would lie. The defendant had threatened to do something which they said was unlawful; and the defendant asserted his right so to do. NO MALICE, BUT BIAS', ALLEGED Sir John Findlay asked whether his learned friend was arguing on the ground of malice. Mr Myers: No. His Honour: How could you prove malice when there has been no act? Sir John Findlay: Surely, by a threat. I don’t know what the position of a Minister would be worth, he added, if he is to be liable to action for damages for an act done perfectly bona fide, but which might prove to be erroneous. Mr Myers submitted that if it could bo shown that the Minister had predetermined the matter, then it would ■not be just that he should hold an inquiry of the nature he desired for the purpose of determining whether the certificate should be suspended or cancelled ; and then certiorari would lie. He drew attention to tlio fact that the. Minister had filed a number of affidavits —many of them sighed by women and children. He had not answered these affidavits, except by a general written statement by Miss Park; and he suggested that, in considering the question of predetermination or bias on tile part of the Minister, they should not he taken into account.

His Honour: What are they ? Charges against the plaintiff?

Mr Myers: Rather statements against the plaintiff. ■His Honour said that lie had not read them, and was not going into them at all, except in so far as it might be necessary to understand the acts of the Minister. Mr Myers asked his Honour to rule that the affidavits should not be referred to at the present stage. His Honour: I am certainly not going into the merits of the case noV Sir John Findlay protested tlraj that would shut out his examining the affidavits to show that they disposed of any suggestion of bias; and would also shut him out from showing that the affidavits disclosed a condition of things which made absolutely necessary the power claimed for the Minister in these cases.