Furnell v Whangarei High Schools Board

November 13. The majority judgment of their Lordships was delivered by LORD MORRIS OF BORTH-Y-GEST.

The Education Act 1964 (No. 135) is “an Act to consolidate and amend certain enactments of the General Assembly relating to the education of the people of New Zealand.” It is an Act of over 200 sections. The undoubted public importance of the subject matter is reflected in the range and the precision of what the legislature has laid down. Part IV deals with the enrolment and attendance of pupils. Part V (comprising sections 131 to 165) deals with the appointment and employment of teachers. Part VI (comprising sections 166 to 182) deals with the incorporation of societies of teachers and with appeals by teachers.

Included in the sections dealing with the appointment and employment of teachers are various sections which relate to offences. Section 157 concerns certain cases where a criminal charge is brought against a teacher. It is provided that if a teacher is charged with having committed any offence for which the maximum punishment is not less than two years' imprisonment (whether on indictment or on summary conviction) then he may be suspended by the school board employing him. The board would exercise its discretion. In such cases the decision whether he had or had not committed the alleged offence would of course be made in the appropriate criminal court and not by the board. Likewise the board would not decide as to the bringing of a charge. If the teacher were convicted, then (whether or not he had been suspended) he might either be peremptorily dismissed by the board or if the board so determined he might be deemed to have committed an offence under the Education Act 1964 and the board might impose on him one or more of certain prescribed penalties. Further detailed provisions were made. The board is empowered to transfer a teacher temporarily to other duties if of the opinion that pending the hearing of the charge the teacher should be removed from his position but need not be suspended (see subsection (2)). A teacher may appeal to the Teachers Court of Appeal. Subsection (3) is as follows:

“(3) Any teacher who is dismissed or otherwise punished, or who is suspended, by the board under this section may appeal to the Teachers Court of Appeal in accordance with the provisions of Part VI of this Act against the decision of the board.”

The subsection, as also does subsection (4), makes it clear that suspension is not to be regarded as a punishment. Subsection (4) is as follows:

“(4) Where a teacher who is dismissed or otherwise punished or suspended under this section is subsequently acquitted of the charges made against him, he shall be reinstated in his position and shall receive his full salary in respect of the period for which he did not receive that salary; but, subject to any decision of the Teachers Court of Appeal, a teacher shall in no other case receive any salary or payment in respect of any period of suspension imposed under this section unless the board otherwise directs.”

The next section (section 158) relates not to conduct which might constitute a serious criminal offence but to conduct which, within the framework of the Education Act 1964, is to be regarded as constituting a disciplinary offence. The section is as follows:

“158. Disciplinary offences — (1) Every teacher commits an offence against this section who — (a) By any act or omission fails to comply with the requirements of...