A Limitation On Executive Power
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00604.x |
| Published date | 01 May 1960 |
| Author | Peter Brett |
| Date | 01 May 1960 |
310
THE
MODERN
LAW
REVIEW
VOL.
23
a workman’s employment
or
non-employment. But, though not
a binding precedent, nevertheless, as the only case in this field, it
has the persuasive force of uniqueness and involves in principle a
sound interpretation of the statutory definition in the context of the
requirements of British labour relations.
C.
GRUNFELD.
A
LIMITATION
ON
EXECUTIVE
POWER
THERE must be something in the woes of schoolboys which the law
finds peculiarly appealing to its sense
of
justice. Half a century
ago, the celebrated
Mr.
Archer-Shee, battling on behalf of his son,
put
the Admiralty to flight and forced the Crown to surrender, for
a
brief moment, its prerogatival claims to stand outside the law.
Now, once again, a father has taken
up
the cudgels on behalf of
his son, this time in the courts
o€
New Zealand; and again the
Crown has been vanquished, in circumstances which deserve the
widest notice. Smith was the
father of a schoolboy; the family had been living in Auckland since
1954.
The boy was first enrolled at the Point England Public
School; in February
1955
he was transferred to the Glen Innes
School under a zoning scheme of the Auckland Education Board.
A
year later there was a further re-zoning, and the boy was trans-
ferred to the Glen Brae School. By August
1958
this school had
become overcrowded, and the boy was directed to transfer to a
new school (Glen Taylor) for the third time. His father, being
concerned
at
the unsettling effect of ‘these continual changes on his
son’s education, refused
to
comply with the transfer notice and
continued to send the boy to the Glen Brae School (where he was
refused tuition). In due course he was charged under the truancy
sections of the Education Act, but the magistrate dismissed the
information, holding that the regulations authorising the compulsory
transfer of a pupil were invalid. The attendance officer appealed
by way of case stated to the Supreme Court of New Zealand, where
the matter came before Turner
J.
The only point in dispute was the validity of the regulations.
These had been made by the Governor-General in pursuance of
powers conferred on him by the Education Act,
1914,
and by section
6
of the Education Amendment Act,
1915.
The Crown pointed to
several provisions of the
1914
Act which conferred power to make
regulations for specific purposes, but the attempt was faint-hearted
;
the powers were plainly too narrow to justify a general compulsory
transfer scheme designed to overcome overcrowding in schools.
And
so
the Crown fell back on section
161
(1)
(k)
of
the
1914
Act, which empowered the Governor-General to make regulations
The facts in
Reade
v.
Smith1
were simple.
1
[1959]
N.Z.L.R.
996.
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