THE PARK CASE

New Zealand Times, Volume XLIX, Issue 11250, 30 June 1922, Page 2

THE PARK CASE

AN INJUNCTION GRANTED MINISTER CAN NEITHER CANCER NOR SUSPEND. REGULATION ULTRA VIRES. Hio Honour, Mr Justice Salmoncl, yesterday delivered - judgment in the suit Jean Gladys Park v. The Minister for Education. The case was heard on May 24th and June Ist, Mr Myers being for the plaintiff. The Solicitor-General (Mr McGregor, K.C.), Sir John Findlay, E.C., and Mr Hart appeared for the defendant. A TEACHERS CERTIFICATE. His Honour’s review of the evidence was as follows: — The plaintiff, being a teacher in the employment of the Wellington Education Boar<U .seeks an injunction restraining the Minister for Education from cancelling or suspending the teacher's certificate which she holds under Section 71 of the Education Act, 1914. This section provides that “the board 6hall in accordance with this Act and regulations thereunder appoint teachers for the schools under its control, but no person shall be eligible for appointment who does not produce such teacher's certificate or license to teach, and such other certificates of fitness as might be required by the regulations. Section 161 empowers the Governor-General to make regulations "for the issue of certificates of competency to teadhers." EDUCATION ACT, 1914. The regulations now in force in this behalf were made on February 13th, 1912 (Gazette* 1912, Vol. 1, p. 761) under the corresponding provisions of the repealed Education Act, 19C8, but remain in operation for' the purposes of the Education Act, 1914. Clause 58 of * these regulations is in the following terms: "The Minister for Education shall have power to cancel any certificate or license to teach if the holder of the certificate or license shall at any time bo proved guilty of immoral conduct or gToes misbehaviour within the meaning of the Education Act, 1908. He shall also have power for sufficient 'cause shown to suspend any certificate or license to teach tor speh period as he thinks fit." ALLEGED DISLOYALTY. Certain charges of disloyalty and insubordination having been made against the plaintiff, the Wellington Education Board recently held an inquiry with a view to the suspension or dismissal of the plaintiff in the event of the charges being substantiated. The result of this inquiry was in the plaintiff's favour, and no further action was taken by the boards The Minister for Education, however, being dissatisfied with the motive and results of the board's investigation, proposes to institute a further inquiry into the'eame or similar charges, with a view to the cancellation or suspension of the plaintiff's certificate in pursuance of the regulation to which. I have referred. ULTRA VIRES. It is now contended, on behalf of the plaintiffs that the regulation is ultra vires, and that the Minister has there- ; fore no power to suspend or cancel a teacher's certificate. The question so raised is one of considerable importance, both with respect to the security of tenure possessed by teachers in the public schools, and with respect to the autonomous authority of the Education Boards, as opposed to the Minister for Education, in the appointment, transfer, promotion, and dismissal of their employees. SUSPENSION OF CERTIFICATE. The Education Act, 1914, contains no express authority for the making of regulations for the cancellation or 6us- , pension of certificates, nor does it contain any reference to such cancellation 1 or suspension. Section 161 expressly authorises regulations for the issue or such certificates, but not for their suspension or cancellation. It is contended,' however, on behalf of the Minister, that sufficient authority for this purpose is conferred by the final paragraph, of that section, which authorises the GovernorGeneral to make regulations "for any purposes which he thinks necessary in order to secure the due administration of this Act." NOT CROWN SERVANTS. The teachers of public schools undeT the Education Act are not the servants of the jCrown. The Minister or Department Sf Education has no authority in respect of the appointment, promotion, transfer, suspension, or dismissal of such teachers. They are the servants of the Education Hoards, *mid are appointed, promoted, transferred, suspended, ot dismissed by these boards without any control on the part of the Minister or of the department. The . Education Act contains elaborate provisions designed to protect teachers against any arbitrary or unjust exercise of the powers of Education Boards ii* this respect. RIGHT OF APPEAL. If any teacher is dismissed or suspended by a board, there is a right of appeal to the Teacher's Court of Appeal, which may review the decision of the board and order the :*ein6tatomont of the appellant. (Sections 149, 153.) Ho has the same right of appeal even against the determination of his employment by due notice. (Section 151.) So also if his salary is reduced. (Section 151.) So also if he is_ transferred by the board from one position to another. (Section 149.) Ho has no right of appeal from a refusal of the board to grant him promotion, but his interests in this respect are guarded by very elaborate provisions restricting the board's liberty of action in making appointments, and designed to secure for all teachers equality of opportunity for promotion. INCONSISTENT. The proposition that the Minister for Educaton possesses the power of cancelling a teacher's certificate is, I think, inconsistent both with the rights of Education. Boards and with the rights of teachers under this statutory scheme. If the legislature had intended that certificates should be capable of being revoked, it would have provided that the holding of a certificate was a continuing condition, of employment, and that a teacher should remain in the education service only so long us he held a certificate ALLEGED ANOMALIES. Such a provision would have avoided some of the anomalies to which I have referred, but it would have constituted a serious derogation from' Die autonomous authority of the Education Boards, and. would have conferred upon the Minister for Education a concurrent and rival power of dismissing or suspending the servants of those boards. It would also have seriously infringed upon the protection conferred upon teachers by their right of appeal against dismissal or A successful appellant could have been deprived of the fruits of his victory by the cancellation of his certificate. CERTIFICATES AND LICENSES. A difficulty in tho interpretation of the Education Act in respect of teachers' certificates is created bv tho fact that section 71 of the Act draws a. distinction between certificates and licenses to teach. It provides that no person shall bo appointed as a teacher unless ho holds either a teacher's certificate or a license to teach. The Act, however, contains no indication of the nature of this distinction. WHEN COMING INTO FORCE. As-I have already said, the regulations now in question, though originally made under the Education Art, 1908, are continued ia. operation as if made under tho

corresponding provision of section 161 of the Education Act, 1914. It is contended, on behalf of the Minister for Education, that regulations made under this section are not capable of being declared ultra vires inasmuch as the section expressly provides that, "all such regulations shall fix a day on which the same shall come into force, aftci’ which they shall have the force* of law." NO 1 POWER TO CANCEL. It is further contended on behalf of the Minister for Education that even if the regulation in question is ultra vires, and even if he has no power to cancel or suspend a teacher's certificate, an in junction cannot be obtained to restrain him from so acting in pursuance of the regulation. It is contended that such an Act would be a mere nullity having no effect on the plaintiff's rights, and not constituting any injury done to her, and that the remedy of injunction is available only for the purpose of preventing the commission, or continuance of an injury. SCOPE OF INJUNCTION. It is not necessary to determine whether this argument as to the soope of the remedy of injunction is sound or not. for I think that the Act contemplated bv the Minister would not be a mere nullity, but would amount to an actionable injury. The plaintiff has been charged with disloyalty and with misconduct in her office as a public school teacher. Tho Minister intends to hold a public inquiry into those chargee, and hp intends, if the result of that inquiry is adverse to the plaintiff, to cancel or suspend her certificate, and to publish the fact of such cancellation and suspension. If. ns I have held, the regulation under which he proposes so to act is ultra vires and void, the action so proposed by him would be not merely a nullity in respect of the plaintiff’s certificate, but would constitute an actionable infury to tho plaintiff either ns defamatory or at least as amounting to a false and injurious statement made against her in respect of her office without just cause or excuse. I think, there, fore, that the plaintiff is entitled to seek the remedy of injunction, and is uot bound to nroceed by writ or originating summons for' a mere declaration as to the Minister’s powers. INJUNCTION GRANTED. There will be an injunction restraining the Minister for Education from doing any act whereby, he purports to cancel or suspend on the ground ol' immoral conduct or gross misbehaviour the certificate . held by the plaintiff under the Education Act, 1914.