Greenbaum v Teaching Council of Aotearoa New Zealand
[2021] NZHC 509
•15 March 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-276
[2021] NZHC 509
UNDER the Judicature Review Procedure Act 2016 UNDER
Part 30 of the High Court Rules 2016
BETWEEN
ADAM RAPHAEL GREENBAUM
Applicant
AND
TEACHING COUNCIL OF AOTEAROA NEW ZEALAND
Respondent
Hearing: 7 September 2020 Appearances:
L Long and J K Grimmer for Applicant
M F McClelland QC and D R La Hood for Respondent
Judgment:
15 March 2021
JUDGMENT OF CLARK J
Introduction
[1] In this application for judicial review Dr Greenbaum challenges the Teaching Council’s processes for handling complaints about teachers. Dr Greenbaum’s case is that the Teaching Council (the Council) dealt his two complaints by means of a process that was contrary to the Education Act 1989 and was unlawful.
Background
[2] This rather measured account of the background does not reflect Dr Greenbaum’s description of the distress he says the experience caused him. Mr Long observed in his submissions on behalf of Dr Greenbaum that, although the
GREENBAUM v TEACHING COUNCIL OF AOTEAROA NEW ZEALAND [2021] NZHC 509 [15 March 2021]
facts underlying Dr Greenbaum’s complaints are of some personal importance to him, they are not critical to the issues of law that arise.
[3] In June 2013 Dr Greenbaum’s daughter started attending the Country School (the school). In November 2015 the daughter, by now aged 8, sustained a broken wrist during an incident of bullying involving other children at the school. Dr Greenbaum engaged in email correspondence with the Principal. Becoming dissatisfied with the responses — and feeling he was placed in the position of having to press for a competent investigation and to advocate for his daughter — on 13 December 2015 Dr Greenbaum complained to the Board of Trustees about the conduct of two of the school’s teachers in their investigation and handling of the bullying incident. One of the two teachers was the Principal.
[4] The Board of Trustees set up an investigation sub-committee to review Dr Greenbaum’s many points of concern. The sub-committee included the Board’s chair. The sub-committee met with Dr Greenbaum on 20 December 2015. It then undertook a lengthy investigation into the matter including questioning relevant staff and reviewing all relevant policies, documents and processes. Because of the timing of the complaint, and the fact the review fell over the summer holiday period, the investigation took longer than anticipated. The Board kept Dr Greenbaum informed by emails on 21 January and 10 February 2016.
[5] In its report to Dr Greenbaum on 19 February 2016, the Board advised it had reached a conclusion that was ratified at a Board meeting on 18 February 2016. In summary:
(a)The Board acknowledged there was a significant behavioural event that impacted on the daughter’s health and concluded that the process for handling the event was appropriate and in accordance with the school’s policy for managing serious behaviour incidents.
(b)The Board noted a number of staff members were involved and time pressures with end of year commitments were also present. While all
matters were correctly acted upon, “overall coordination and timeliness could have been improved upon”.
(c)The Board was satisfied the outcomes reached and punishments involved were appropriate and that the staff involved acted at all times in the best interests of the children involved and worked towards a considered resolution to the situation.
(d)However, Dr Greenbaum’s wish to be privy to the outcomes and punishments for the children involved, in particular a year 13 girl who Dr Greenbaum specifically mentioned, was considered to be inappropriate in light of the school’s privacy obligations. That part of Dr Greenbaum’s request was therefore declined.
[6] The Ministry of Education conducted an independent review of the incident and the quality of support provided by the Ministry to the Principal and Board of Trustees and to Dr Greenbaum regarding his ongoing requests for assistance and complaints. A 10-page report to the Director of Education, Waikato, is dated 10 February 2017. In relation to Dr Greenbaum’s original complaint to the Board of Trustees that there was a culture of bullying in the school, the report noted there had been no other complaints to the Board in the previous five years about bullying but it recommended that the Board carry out a review later in 2017 to ensure it was fulfilling its obligation to provide a safe environment.
[7] The report made no recommendation in relation to any specific teacher. The report concluded with the observation that the Ministry could expect that the complainant, Dr Greenbaum, would acknowledge his complaint had been thoroughly and carefully considered and in doing so, that the Ministry’s investigation closed the matter.
[8] Over 18 months later, on 3 October 2018, Dr Greenbaum lodged a complaint with the Council in relation to the conduct of one of the two teachers associated with the school’s management of the incident in 2015. Dr Greenbaum alleged the teacher had shown bias towards his family, mismanaged the investigation into the assault on
his daughter and breached confidentiality in relation to his family’s personal information.
[9] The Council responded to Dr Greenbaum’s complaint on 10 May 2019. In summary:
(a)Following its analysis of all information provided in the complaint, all of the evidence including the Board of Trustee’s report, the independent report from the Ministry of Education, and responses received by the Council, the Council had referred the matter to its Triage Committee for re-assessment.
(b)The letter set out the processes the Triage Committee undertakes which may lead it to request further information, or refer the matter for initial investigation or full investigation by the Complaints Assessment Committee (CAC), or to take no further action.
(c)Based on the information provided by Dr Greenbaum and the school, the Triage Committee did not consider there was evidence warranting any further action or a continuing disciplinary process
(d)The Council advised Dr Greenbaum that, pursuant to r 11(d) of the Teaching Council Rules 2016, no further action would be taken with regard to his complaint. Accordingly, the file would be closed.
Dr Greenbaum’s application for judicial review
[10] Dr Greenbaum filed his application for judicial review on 28 May 2020. There are three grounds of review.
[11] First, Dr Greenbaum says the Council had no power under the Education Act to investigate complaints about teacher conduct or “triage” or otherwise refuse to refer complaints about teacher conduct to the CAC. A declaration is sought to that effect.
[12] The second ground of review is directed at the Teaching Council Rules 2016 (the Rules). Rule 11(1) provides that the chief executive of the Council may take a range of steps on receipt of a complaint about a teacher’s conduct, including taking no further action. Dr Greenbaum argues that insofar as r 11(1) permits the chief executive to do anything with a complaint about a teacher’s conduct other than refer it to a CAC, the rule is ultra vires the Act. Dr Greenbaum seeks a declaration to that effect.
[13] The third ground of review concerns the Triage Committee’s decision to take no further action on the complaints. Dr Greenbaum says the Triage Committee’s decisions were made pursuant to an unlawful sub-delegation and were therefore unlawful and invalid. He seeks a declaration that when the Triage Committee dismissed the complaints it was acting under an unlawful sub-delegation of the Council’s powers under s 400(1) of the Education Act.
[14] The final two remedies Dr Greenbaum seeks are an order of certiorari quashing the decisions to take no further action on the complaints and an order of mandamus directing the Triage Committee to refer the complaints to the Complaints Assessment Committee.
The legislative setting
[15] In this part I set out the legislative backdrop against which the Council operates. I discuss specific further provisions when considering the individual grounds of review.
[16] The Education and Training Act 2020 came into force on 1 August 2020. That Act repealed the Education Act 1989. The parties do not dispute that the applicable statutory regime for the purpose of this application for judicial review is the Education Act 1989 (the Act). For clarity I will speak of the Act in the present tense and discuss the applicable provisions in the present tense as though they had not been repealed.
[17] The Act established a framework for New Zealand’s education system. Part of that system involves the registration and regulation of the teaching profession. Until the repeal of the Act, responsibility for registration and regulation of the profession
lay principally with the Teaching Council, a statutory body that, until the repeal of the Act, was governed by Part 32 of the Act.
[18] The provisions engaged by this proceeding are all in Part 32 of the Act. The purpose of Part 32 is to establish a Teaching Council.1 The Council comprises 13 members, six of whom are appointed by the Minister of Education and seven of whom are elected. Of the seven, three are teachers representing the early childhood, primary and secondary education sector. A fourth is to be a teacher in the field of ongoing teacher education. Two principals are to be elected from the primary and secondary education sector and one childhood education service leader is to be elected by leaders from that sector.
[19]The Council has the following statutory purpose:2
… to ensure safe and high quality leadership, teaching, and learning for children and young people in early childhood, primary, secondary, and senior secondary schooling in English medium and Māori medium settings through raising the status of the profession.
[20] The functions of the Council are set out in s 382. The functions of greatest relevance to this proceeding are the following:
(a)to provide leadership to teachers and direction for the education profession;
(b)to enhance the status of teachers and education leaders;
(c)to carry out Part 31 functions relating to the registration of teachers;
(d)to establish and maintain standards for ongoing practice and criteria for the issue of practising certificates of different kinds;
(e)to establish and maintain a code of conduct for teachers;
(f)to monitor and enforce the requirements relating to mandatory
1 Education Act 1989, s 36.
2 Section 377.
reporting in Parts 31 and 32 of the Act;
(g)to perform the disciplinary functions in Part 32 relating to teacher misconduct and reports of teacher convictions;
(h)to set the criteria for reporting serious misconduct and for reporting competence issues;
(i)to perform the functions in Part 32 relating to teacher competence; and
(j)to perform any other functions conferred on the Council by the Act or any other enactment.
[21] The Council has the powers conferred by s 383. In addition to the specific powers set out in s 383(1)–(6), the Council has “all other powers conferred by the Act or reasonably necessary to enable it to perform its functions.”3
[22] Under s 388 the Council “must, as soon as practicable,” make rules providing for—
…
(a)a Complaints Assessment Committee to—
(i)investigate complaints of misconduct about, and reports of convictions of, teachers; and
(ii)carry out any other function, and exercise any power, given under this Act or delegated to it by the Teaching Council; and
(b)a Disciplinary Tribunal to conduct hearings relating to misconduct by, and convictions of, individual teachers, and to exercise the powers given under this Act; and
(ba) a Competence Authority to consider reports and complaints about teacher competence and to exercise the powers given under this Act; and
…
3 Section 383(7).
(2)The Teaching Council may make rules for any other purpose relating to the performance of its functions.
[23] Under s 389 the Council has wide powers of delegation. These are discussed in the section dealing with the third ground of review.
[24] Under s 390 the Council may appoint a chief executive and any other employees the Council thinks necessary for the efficient performance of its functions.
[25] A framework for disciplinary functions by disciplinary bodies is set out in ss 398–409. The “disciplinary bodies” are the CAC and the Disciplinary Tribunal both established by rules made under s 388 and whose constitutions are set out in rules also made under s 388.4 The rules setting out the constitutions of the disciplinary bodies must be consistent with s 398 which describes the manner in which the disciplinary bodies may operate and qualifies the membership of the disciplinary bodies.5
[26] There are two main pathways by which the Council is made aware of matters coming within its statutory sphere. The first is via mandatory reporting. Mandatory reports are required to be made to the Council in the circumstances set out in ss 392– 395 and 397. Broadly speaking, the Council must be told immediately if a teacher is dismissed;6 if there is a complaint about a former teacher’s conduct within 12 months of the teacher ceasing to be employed;7 where there is serious misconduct;8 incompetence;9 or where an employer or former employer has been convicted.10
[27] The second pathway is by way of complaints about conduct. Under s 399 any person may at any time make a written complaint to the Council about the conduct of a teacher. Generally speaking the person must first make the complaint to the teacher’s employer.11
4 Education Act 1989, s 378(1) definition of “Complaints Assessment Body” and “Disciplinary Tribunal”.
5 Section 398(1).
6 Section 392.
7 Section 393.
8 Section 394.
9 Section 395.
10 Section 396.
11 Section 399(1).
[28] The options available to the Council when it receives reports under any of ss 392 to 394 and 397 relating to teacher conduct and when it receives any complaint under s 399 are discussed under the first ground of review to which I now turn.
First ground of review
Parties’ respective positions
[29] This ground concerns the Council’s role in handling complaints under the Act. Dr Greenbaum’s position is that the Council dealt with his complaints in a way that was contrary to the processes set out in the Act. Specifically, the investigation and dismissal of his complaints without consideration by a CAC is said to be unlawful, in breach of the Council’s duty to refer complaints to the CAC and ultra vires the Act.
[30] On behalf of Dr Greenbaum, Mr Long advanced detailed written and oral submissions in support of all grounds of review. In relation to this first ground of review, I summarise Mr Long’s submissions as follows:
(a)Under the Act the only body permitted to investigate and take no further action on complaints in the first instance is the CAC. The Act does not permit any other body, whether the Council itself or a Triage Committee, to investigate and take no further action.
(b)The Council has only a facilitative and administrative role in ensuring complaints are received, properly categorised as “conduct” or “competence” and referred for investigation and consideration on the merits by the appropriate bodies.
(c)The logical interpretation of the word “may” in s 400(1) is that to the extent the Council has a discretion it is only to ensure the correct processes are engaged following the Council’s receipt of a complaint. In support of the argument that “may” does not give the Council a discretion to investigate and take no further action on a complaint, Mr Long relied on B v Waitemata District Health Board and the
Supreme Court’s acknowledgment in that case that in some situations “may” means “must”.12
[31] The respondent’s case is that Dr Greenbaum misconceives the statutory scheme and the power conferred by s 400(1). The respondent submits it is clear from the Act that the Council has a discretion as to whether or not to refer a report or complaint to the CAC.
Discussion
[32] For the reasons that follow, I agree with the respondent’s position as to the nature of the discretion conferred by s 400(1).
[33]Section 400 provides:
Complaints and reports relating to teacher conduct
(1)The Teaching Council may refer to the Complaints Assessment Committee—
(a)any report received by it under any of sections 392 to 394 and 397 that relates to teacher conduct; and
(b)any complaint received by it under section 399.
(2)The Teaching Council may refer to the Complaints Assessment Committee any matters that relate to teacher conduct of its own motion as it sees fit.
(3)In relation to a complaint received under section 399 from a person other than the current employer of the teacher concerned,—
(a)if the Complaints Assessment Committee considers that the complaint should have been sent first to the teacher’s employer or former employer, it must refer the matter to the employer or former employer; and
(b)if the teacher is currently employed by an employer and it has not already referred the matter to the employer under paragraph (a), it must notify the employer that it has received a complaint about the teacher.
[34] As B v Waitemata District Health Board makes clear, whether “may” means “must” will be “dictated by the particular context of words and … circumstances in
12 B v Waitemata District Health Board [2017] NZSC 88, [2017] 1 NZLR 823 at [31].
which the power is to be exercised”.13 In the statutory context before it, the Court concluded there was no obligation on the Health Board to provide dedicated smoking rooms. Rather, it had a discretion as to whether or not to do so.14
[35] The first point to be made about s 400(1) is the use of the permissive “may”. In this regard s 400(1) contrasts with other provisions in Part 32 which give the Council no such discretion. Section 413(1) for example—“[t]he Teaching Council must establish …” (emphasis added) — obliges the Council to establish a system for co-ordinating Police vetting in relation to teacher registration and the granting of authorities to teach.
[36] Secondly, s 400(1) contrasts with its immediate predecessor, s 139AS which provided:15
139AS Complaints and reports relating to teacher conduct
(1)The Teachers Council must refer to the Complainants Assessment Committee:
(a)every report received by it under any of sections 139AK, 139AL, or 139AM that relates to teacher conduct; and
…
(c)every complaint received by it under section 139AR.
…
(emphasis added)
[37] The change in language from “must” to “may” is a clear indication of Parliament’s intention to give the Council a discretion as to when to refer complaints and reports to the CAC. I agree also with the further telling contrast the respondent makes between s 400(1) and s 139AS. Under s 139AS the Council was obliged to refer to the CAC “every report” and “every complaint” it received. By contrast the Council now has a discretion in relation to “any report” and “any complaint” it receives.
[38] Dr Greenbaum argues that s 401 gives the CAC, and only the CAC, the power to investigate and “take no further action” in the first instance. Section 401 provides (relevantly):
13 At [31].
14 At [51].
15 Section 139AS was repealed by the Education Amendment Act 2015 in July 2015.
401Powers of Complaints Assessment Committee
(1)The Complaints Assessment Committee may investigate any report, complaint, or matter referred to it under section 400.
(2)Following an investigation, the Complaints Assessment Committee may do 1 or more of the following:
(a)resolve to take the matter no further:
(b)refer the teacher concerned to a competency review:
(c)refer the teacher concerned to an impairment process, which may involve either or both of the following:
(i)assessment of an impairment:
(ii)assistance with an impairment:
(d)if there has been made a finding of misconduct that is not serious mis-conduct, by agreement with the teacher and the person who made the complaint or report or referred the matter, do 1 or more of the following:
…
(3)The Complaints Assessment Committee may, at any time, refer a matter to the Disciplinary Tribunal for a hearing.
…
[39] Dr Greenbaum’s argument overlooks the catalyst for the CAC’s investigation of reports or complaints. The CAC may investigate only those reports, complaints or matters “referred to it under section 400” by the Council. Section 401 does not assist in construing the nature of the discretion conferred on the Council by s 400(1).
[40] The Council is the statutory body to whom mandatory reports and complaints are to be made. In practice, it will be the Council’s chief executive who deals with reports and complaints in the first instance. Rule 4, the “Overview”, states that the rules:16
…
(d)provide a procedure for the chief executive to deal with reports and complaints about teachers in the first instance (see Part 4); and
…
[41] Section 400 is to be read with part 4 of the Rules. Rule 11 is within Part 4 and provides:
16 Teaching Council Rules 2016, r 4(1)(d).
11Investigation and referral of report or complaint by chief executive
(1)On receipt of a report or complaint, the chief executive may do any or all of the following:
(a)request further information from any person in order to assess what further action, if any, to take:
(b)appoint an investigator to make an initial investigation of the report or complaint:
(c)refer the report or complaint, or part of the report or complaint, to the Complaints Assessment Committee, a professional practice evaluator, the Teaching Council, or the teacher’s current employer, as applicable:
(d)take no further action.
…
[42] Rule 11(1)(d) puts beyond doubt that the Council, acting through its chief executive, may take no further action.
[43] Dr Greenbaum’s further argument that the Council is not described as a “Disciplinary Body” gains little traction at this stage in the analysis. The Council is not acting as a disciplinary body when it receives a complaint, exercises its discretion not to refer the complaint to the CAC, and decides under r 11(1)(d) to take no further action.
[44]For the foregoing reasons, the first ground of review is not established.
Second ground of review
Parties’ respective positions
[45] Dr Greenbaum submits his second ground of review logically follows from the errors he alleges in the first ground. Dr Greenbaum contends the Council has created rules that are contrary to the complaints process in the Act and that the Rules are ultra vires the Act. He submits:
Properly interpreted, the Act envisages that all complaints about teacher conduct are to be investigated and considered in the first instance by the Complaints Assessment Committee. But through the Rules, the Teaching
Council has purported to confer investigatory powers and powers of dismissal on the chief executive as a precursor to consideration by the Complaints Assessment Committee.
Because the Teaching Council has no power to undertake these actions itself, it has acted ultra vires in enacting Rules that purport to confer the same powers onto the chief executive.
[46] The respondent’s position is that if the Court rejects the first ground of review, the second must fall with it.
Discussion
[47] As Mr Long submitted, the law in relation to a challenge to the validity of delegated legislation is well established. If the delegated legislation is within the objects and intention of the Act, it is valid. The objects and intention of the Act are to be gathered only from the words used.17
[48] In Commercial Fishers Whānau v Attorney-General, Dobson J set out the steps to be taken in considering the validity of regulations:18
[15] The law in relation to challenging the validity of regulations is well settled. The first step involves construction of the Act under which the regulation purports to be made. This requires analysis of the scope of the authority conferred by Parliament in light of the purposes for which those powers were conferred. Where Parliament has given the Executive a broad power to regulate, it is a power to carry out the purposes of the empowering legislation and the Executive’s discretion is constrained by those purposes.
[16] The second step is to determine the meaning of the regulations, and the third step is to decide whether the regulations comply with the empowering Act.
[17] The focus is on the legal limits of the power, not the merits of its use; unless regulations are irrational, review is not an opportunity to assess the reasonableness of the policy being promoted.
[18] As recently confirmed by the Court of Appeal in New Health New Zealand Inc v South Taranaki District Council, in respect of delegated legislation “matters are presumed to have been done regularly and lawfully and the courts will only interfere in a clear case”. The onus is therefore on the challenger to establish invalidity.
[49]The following propositions are grounded in the legislation.
17 Carroll v Attorney-General [1933] NZLR 1461 (CA).
18 Commercial Fishers Whānau v Attorney-General [2019] NZHC 1204. (footnotes omitted)
(a)Complaints about the conduct of a teacher are made to the Council under s 399 (providing the complaint has first been made to the teacher’s employer).
(b)One of the options available to the Council on receipt of such a complaint is to refer it to the CAC. I have determined that the power in s 400(1) is discretionary. The Council may decide not to refer the matter to the CAC. If the Council decides not to refer the matter to the CAC, the question arises as to what other options are available to the Council.
(c)Under r 11(1) the Council, through its chief executive, may request further information, appoint an investigator, refer the complaint to the CAC or other bodies set out in r 11(1)(c), or it can take no further action.
(d)Rule 11(1) falls within the rule-making powers of the Council. Section 388 requires the Council to make rules for the purposes set out in subs (1) and empowers the Council to make rules for any further purpose relating to the performance of its functions.19
(e)Plainly, r 11(1) is a rule made for the purpose of the Council exercising its functions under s 399 and s 400.
[50] I make this further observation. If all complaints about teacher conduct were to be investigated by the CAC in the first instance as Dr Greenbaum submits, one would expect the Act to provide that complaints be made straight to the CAC. That is not the statutory process however. Complaints are to be made to the body with the statutory function of leadership and maintenance of teaching standards. Not all reports and complaints will warrant consideration by a disciplinary body. It will be for the Teaching Council, as the body charged with the statutory responsibility for receiving mandatory reports and complaints, to decide what steps, if any, are to be taken.
19 Education Act 1989, s 388(2).
Referral to the CAC under s 400(1) is but one of a range of options available to the Council. Other options are provided in Part 4 of the Rules notably r 11.
[51] As r 11(1) serves the purpose for which the Act authorises the making of rules, it is not ultra vires the Act.
[52]The applicant has not made out his second ground of review.
Third ground of review
Parties respective positions
[53] Unlike the second ground of review, the third ground does not depend on the success of either the first or second grounds. Mr Long submitted the third ground “assumes the existence of a power in s 400 to investigate and take no further actions on a complaint prior to any consideration by a Complaints Assessment Committee”.
[54] This ground of review proceeds on the premise that the sub-delegation of powers from the Teaching Council to the chief executive and then from the chief executive to the Triage Committee is not permitted by the delegations provision in the Act.
[55] Mr Long invites the Court to adopt an interpretation of s 389(1) that does not permit sub-delegation of the Council’s powers with the result that the sub-delegation of the chief executive’s power to the Triage Committee was unlawful.
[56] The respondent’s submissions in relation to this ground of review are extensive. First it is said that this third ground is irreconcilable with the first and second grounds. More fundamentally the respondent’s position is that:
(a)Section 389(1) does not prohibit the sub-delegation of a specific power and instead only prohibits delegation of the general power of delegation contained in s 389(1) itself.
(b)Even if s 389(1) prohibited sub-delegation, applying the Carltona principle, the chief executive’s sub-delegation of her r 11(1) powers was lawful.20
Discussion
[57]The Council’s powers of delegation are provided in s 389 of the Act:
389 Delegations
(1)The Teaching Council may delegate any of its powers (other than this power of delegation), either generally or specifically, as it sees fit.
(2)Despite subsection (1), the Teaching Council may not delegate its powers—
(a)to appoint a chief executive:
(b)to make rules:
(c)relating to voluntary deregistration:
(d)relating to cancellation of registration, practising certificates, or limited authorities to teach:
(e)to establish and maintain a code of conduct for teachers under section 387.
[58] The first point of note is that s 389(1) confers on the Council a power to delegate “any of its powers” as it sees fit. This is a very wide power of delegation as the Council has all the powers conferred by the Education Act or that are “reasonably necessary to enable it to perform its functions”.21 By s 389(1) the Council may delegate any of these powers.
[59] There are two limitations on the Council’s broad power of delegation. It may not delegate any of the powers listed in subs (2)(a)–(e), and s 389(1) prohibits the Council from delegating its power of delegation.
[60] Dr Greenbaum’s objection is to the chief executive’s delegation of powers to a Triage Committee. The issue then is whether the delegation is prohibited by s 389(1).
20 Carltona Ltd v Commissioner of Works [1943] 2 ALL ER 560 (CA).
21 Education Act 1989, s 382(7).
[61] Dr Greenbaum’s central argument is that the wording used in s 389(1) has been recognised by the Courts as prohibiting sub-delegations. In support of his argument Dr Greenbaum relies on Just One Life Ltd v Queenstown Lakes District Council22 and O’Reilly v Commissioners of the State Bank of Victoria.23
[62] In my view, these cases do not assist Dr Greenbaum. In O’Reilly the Commissioner of Taxation had a statutory power to delegate to a Deputy Commissioner “all or any of his powers, except this power of delegation”.24 The Deputy Commissioner authorised certain officers to issue notices requiring taxpayers to attend to give evidence or produce documents. Dr Greenbaum relies on the minority decision of Mason J who considered the words limited all sub-delegation.25 The majority, however, upheld the validity of the Deputy Commissioner’s actions, although on the basis of the Carltona or “alter ego” principle.
[63] In One Life the issue was whether a local authority had the ability to delegate to a private company its power to grant and notify resource consents. The sub- delegation was held to be invalid because the company could not be regarded as an “officer of the local authority”. In other words, had the devolution of power been a delegation rather than a purported sub-delegation, the Court would have reached the same conclusion. The local authority could not delegate its extensive statutory powers to a private company.
[64] Rex Smith filed an affidavit on behalf of the Council. Mr Smith is responsible for the management of information received by the Council from the profession or the public in relation to registered teachers. His role includes managing the investigations of teachers for the CAC, managing the monitoring of conditions placed on teacher practicing certificates and managing the coordination of disciplinary panels.
[65] Mr Smith described the broader context in which the Council operates. There are approximately 120,000 teachers currently registered in New Zealand. The Council has a statutory jurisdiction, however, in relation to both currently and formerly
22 Just One Life Ltd v Queenstown Lakes District Council [2004] 3 NZLR 226 (CA).
23 O’Reilly v Commissioners of the State Bank of Victoria [1983] 153 CLR 1.
24 At 16.
25 O’Reilly v Commissioners of the State Bank of Victoria, above n 23.
registered teachers. The Board is supported by an organisation of around 100 employees who are led by the chief executive. The organisation operates in five divisions: customer services; professional services; teacher registration; professional responsibility and Council services and operations. Teacher discipline falls within the professional responsibility arm of the Council.
[66] Mr Smith deposed to the number of complaints and mandatory reports received by the Council in the past three financial years:
(a) in 2018, 619;
(b) in 2019, 647; and
(c) until August 2020 (when Mr Smith filed his affidavit), 544.
[67] The Rules came into force on 1 July 2016. Around September 2016 the chief executive directed the Manager Teacher Practice to establish a Triage Committee “to consider all mandatory reports and complaints when they arrive at the Council”. The letter delegated to the Triage Committee the chief executive’s responsibilities under r 11(1).
[68] The respondent relies on the High Court decision in Bounty Oil & Gas NL v Attorney-General decided some six years after One Life. At issue was a delegation provision similar to s 389(1). The Court decided that the words “other than this power of delegation” do not prohibit sub-delegation of a specific delegated power but only delegation of the general power of delegation itself.26
[69] I take the view that the delegation of the chief executive’s powers under Part 4 of the Rules was not in fact a sub-delegation to the Triage Committee. The Council is a body corporate. As such it acts through its chief executive and employees. When the chief executive acts in her or his permitted capacities as the Council, the chief executive is not acting pursuant to a power of delegation but rather as the Council’s servant or agent. Consequently, I view the delegation to the Triage Committee as a
26 Bounty Oil & Gas NL v Attorney-General [2010] NZAR 120 (HC) at 120.
delegation from the Council (acting through its chief executive) to the Triage Committee rather than a sub-delegation.
[70] If that is wrong and the delegation to the Triage Committee was a purported sub-delegation under s 389, I do not regard the sub-delegation as unlawful. What is prohibited by s 389(1) is not any sub-delegation of a specific power but a sub- delegation of the general power of delegation itself. In that regard the point is on all fours with the point decided in Bounty Oil & Gas NL.
[71] It is clear from the Act that Parliament did not seek to tightly control the Council’s functions and indeed left it to the Council, by rules, to not only establish the important disciplinary bodies but their constitutions. Other aspects of the statutory framework within which the Council and chief executive operate support a construction of s 389 that would permit sub-delegation of the chief executive’s powers. There is a practical necessity argument. The chief executive must have assistance with triaging the 500 to 600 complaints and reports submitted annually to the Council.
[72] I note that r 8 of the Rules provides that in addition to the requirements in the Act a report or complaint must meet the prerequisites for content specified in r 8(1). Under r 8(2) the chief executive may decline to take any action on a report or complaint that does not comply with these requirements.
[73] The Triage Committee is made up of employees of the Council and is under the chief executive’s direct control. Members are chosen for their leadership, experience and expertise in the profession. There being some 120,000 registered teachers the teaching profession is New Zealand’s largest profession. The Triage Committee is required to regularly report to the chief executive and does so on a monthly basis.
[74] The chief executive is given extensive responsibilities under the Rules. It is not necessary that I traverse these because Dr Greenbaum’s challenge is only to the delegation of the r 11(1) powers.
[75] I agree with the respondent that a sub-delegation to the Triage Committee is entirely consistent with the statutory scheme. A range of unmeritorious complaints is apparently made to the Council concerning matters such as children not being selected for sports teams, or involving children’s use of phones in class. That a body of expert and experienced employees of the Council, under the direct control of the chief executive, can sift through complaints to decide if there is sufficient substance for referral to the CAC is entirely consistent with the Council’s statutory purpose of ensuring “safe and high quality leadership, teaching, and learning for children and young people … through raising the status of the profession”.
[76]This third ground of review is not made out.
Summary
[77] In summary, s 400(1) gives to the Council a discretion whether or not to refer to the CAC any report received by it under ss 392 to 394 and 397 and any complaint received by it under s 399. The word “may” is permissive. It does not mean “must”.
[78] Rule 11(1) is a rule made for the purpose of the Council exercising its functions under ss 399 and 400. As r 11(1) serves the purpose for which the Act authorises the making of rules, it is not invalid.
[79] The delegation to the Triage Committee of the chief executive’s powers under r 11(1) is not an unlawful sub-delegation but a delegation of power that is entirely consistent with the statutory scheme.
Result
[80] The application for judicial review is dismissed. Costs follow the event. The respondent is entitled to its reasonable disbursements and costs, which I award on a 2B basis.
Karen Clark J
Solicitors:
Braun Bond Lomas, Hamilton for Applicant
Luke Cunningham Clere, Wellington for Respondent
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