The New Zealand Times. SATURDAY, JULY 1, 1922. THE PARK JUDGMENT

New Zealand Times, Volume XLIX, Issue 11251, 1 July 1922, Page 4

The New Zealand Times. SATURDAY, JULY 1, 1922. THE PARK JUDGMENT

The judgment in the Park case of His Honour Sir John Salmond reaches far enough to touch the whole question of the Ministerial connection with the education system of the country. As a matter of fact, it touches it with radical penetration. The Park case arose out of a conflict of authority between the Minister for Education and the Wellington Board of Education. Certain charges were made against a teacher in the Wellington educational district; the Wellington Board of Edu. cation inquired into these, with a view to action —acquittal, suspension, or dismissal—in case of conviction, and decided practically for acquittal; the Minister for Education, being dissatisfied with both the decision and the method of inquiry, took 6teps for the holding of a further inquiry into the same or similar charges, with a view to suspension or cancellation of the accused teacher’s certificate, in case of conviction under this further inquiry. This action of the Minister’s showed a variance of opinion between the Board and the Minister. The announced intention of the Minister to deal with the teacher’s certificate, if necessary, indicated what, in his view, was the only method of preventing the Board from retaining the services of a teacher whom he had condemned, after inquiry, as unfit. The Minister relied on a regulation as specifically giving him authority. The teacher, contending that ho had no authority at all, declared the regulation of the Minister’s reliance a nullity—ultra vires—and applied to the Supremo Court for an injunction to prevent the Minister’s announced action. The conflict of opinion—for the teacher reflected the Board’s opinion, which may be presumed from the Board’s action—thus had become a conflict of authority. Who rules supreme ■—the Board or the Minister? That was the question at bottom. The Court, after hearing arguments, and a few days’ consideration, granted the injunction. The question was decided against the Minister.

The decision of His Honour Sir John Salmond is based, according to liis | written judgment, on several points: (1) The Act gives no power to suspend certificates, and none to cancel certificates. Therefore, the regulation relied on by the Minister for power to suspend or cancel is ultra vires. (2) The regulation is also against the spirit and the whole trend of the Education Act, which, as shown by various clauses quoted in the judgment, are evidence of the intention of the Legislature to secure the independence of the Boards and the tenure of office to the teachers. (3) There is the analogy of the degrees granted by the University, which cannot be either suspended or cancelled, which is shown in the construction of the Education Act to be the status the Legislature intended to give to the teaohers holding certificates under that statute. (4) The validity of the disputed regulation would lead to a great anomaly under the Education Act; the anomaly of teachers holding office without certificates or the possibility of promotion or transfer. The chief of these reasons we take to be the second, the spirit and trend of the Education Act. The supreme truth is that, from the first, the aim of the Legislature has been to place and maintain the Department of Education under democratic government, which, in all departmental matters, means control by authorities directly responsible to the representatives of the people; in other words, Parlia. ment. It is true that, from the first, there has been an effort to maintain, as far as possible, the benefit of the principle of local government, the utility and even necessity of which has’ been freely recognised. But the safeguarding of the local government principle cannot, even though that principle is one of the strongest roots of the tree of self-government which flourishes so well in British soils, new and old, be an excuse for establishing bureaucracy—the worst form of government. But a department deprived of the Minister’s controlling power becomes a bureaucracy. None the less, though provided with a Minister who is only not a cypher, because he is the conduit pipe for the demands the bureaucracy may choose to make on Parliament, wore the Minister reduced to such a level, and public money would be voted without reserve, and spent without responsibility, controlled or otherwise. To regard the precautions . taken for the proper utilisation of tlio local principle as signß of a determination to make that principle paramount is to misread the writing of our history. Moreover, the provisions of the Education Act are not all in favour of laeai > gamountex, There axe several

pointing the way of real Ministerial control. Take, for example, the clause giving the Governor-in-Council the power to make regulations in the matter of the certificates on which the admission to the teaching profession depends. That is a sign of legislative effort to give power to the Minister. There is, besides, the constitutional power of the purse. That power is in the Minister, and it involves the power of raking the whole administration of the local boards from stem to stern and from truck to keelson. These are real powers, with important ramifications. They and the clause giving power over the inception of certificates, amply, we think, justify the regulation declared to be ultra vires. There may be inconvenience, as the learned Judge pointed out, in the matter of teachers holding office without either certificate or hope of promotion. But that ie a reason for legally improving Ministerial power, not for declaring that it does not exist. The argument of analogy does not apply, for the cases are different. A university degree i 6 a finality; a proof that a* certain condition has been fulfilled; a brand that cannot be obliterated by anything that may happen subsequently. A Master of Arts in Porirua is still a Master of Arts, because all the oceans, backed by all the Parliaments in the world, cannot alter the fact that he has fulfilled certain conditions of culture. On the other hand, a teacher’s certificate is a going concern. Its only value is the daily exercise of the gift of proficiency, of which it is the sign. If such exercise is vitiated by evil done, it must stop; and there must be power somewhere to stop it. The degree is passive, so to speak, while the certificate is active. To bracket the active and the passive together into a root of justice is absurd.

The decision may go to the Court of Appeal. If the decision there is to reverse, nothing more need be said. If the decision is to affirm, or if the Minister accepts the verdict that has declared him poworless. the matter will require the attention of the Legislature. The ideal of democracy is r4al Ministerial control. This democracy wants real control. It does not want bureaucracy, which leads to futility by the road of farce, through the bogs of confusion, under unconstitutional sanction. If the law does not give us the ideal of constitutional democracy, the sooner it is made by amending legislation to do so, the better.