Mairi v Tololo, Secretary for Education [1976] PGLawRp 612; [1976] PNGLR 125 (15 April 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 125 - Norah Mairi v Alkan Tololo, Secretary for Education 

[1976] PNGLR 125

SC94

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

NORAH MAIRI (AN INFANT BY HER NEXT FRIEND MAIRI-MAIRI)

V

ALKAN TOLOLO AS SECRETARY FOR EDUCATION AND CHAIRMAN OF THE NATIONAL EDUCATION BOARD

FIRST DEFENDANT

THE NATIONAL EDUCATION BOARD

SECOND DEFENDANT

ROSS FUREY DEVERE AS CHAIRMAN OF THE BOARD OF GOVERNORS, PORT MORESBY HIGH SCHOOL

THIRD DEFENDANT

LLOYD WILLINGTON

FOURTH DEFENDANT

(NO. 2)

Waigani

Frost CJ Prentice DCJ Williams J

5-8 April 1976

15 April 1976

STATUTES - Interpretation - Taxing Act - Strict construction - Necessity for clear and unambiguous language - Constitution of the Independent State of Papua New Guinea s. 209[clix]¹ - Education Act 1970 s. 96[clx]².

CONSTITUTIONAL LAW - Construction of the Constitution - Taxing powers - Strict construction - Necessity for clear and unambiguous language - Constitution of the Independent State of Papua New Guinea s. 209[clxi]³.

EDUCATION - Government school - Multi-racial school - Whether power in Board of Governors to impose “economic fee” to cover payment of overseas teachers salaries and allowances - Whether power in National Education Board to direct imposition of such a fee - Constitution of the Independent State of Papua New Guinea s. 209[clxii]⁴ - Education Act 1972 s. 19 (1) (i)[clxiii]⁵, s. 96[clxiv]⁶ - Teaching Service Act 1972 - Teaching Service (Auxiliary Members) Act 1974, s. 18[clxv]⁷.

On 29th October, 1976, the National Executive Council approved the levy of an “economic fee” in all multi-racial schools in Papua New Guinea, the object of which was to increase funds available to enable educational facilities provided by the National schools to be extended, not only by means of additional payments but also by discouraging Papua New Guinea parents from demanding the Australian-based curriculum. A bill for the purpose of implementing this decision having been defeated in the Parliament the National Education Board purporting to act under s. 19(1)(i) of the Education Act 1970 directed the governing bodies of multi-racial schools to adopt one of two options, one of which was the collection of an “economic fee” of K400 per pupil in 1976 to be paid into a single National Trust Account to be set up for the purpose “Thus enabling the Government to pay all the teachers of its schools, a full overseas salary.”

In proceedings seeking to restrain the Board of Governors of the Port Moresby Multi-Racial High School from imposing or collecting such a fee:

Held

N1>(1)      Section 209(1) of the Constitution of the Independent State of Papua New Guinea which provides that notwithstanding anything in the Constitution, “the raising and expenditure of finance by the National Government, including the imposition of taxation” (defined in Sch 1.2 as including rates, charges and fees and imposts of any kind) “and the raising of loans is subject to the authorization and control of Parliament, and shall be regulated by an Act of Parliament”, is to be strictly construed:—(per Frost C.J.) so that to justify a charge made for the use of the Executive including all purposes of the public revenue it must be shown in clear terms, that Parliament has authorized the particular charge, (per Prentice Dep. C.J. and Williams J.) so that to render imposition of tax for the raising of revenue constitutional, the statutory grant of power must be clear and unambiguous and the circumstances bringing it into operation sufficiently clear.

Attorney-General v. Wilts United Dairies, Ltd. (1921) 37 T.L.R. 884 referred to.

N1>(2)      The intention of s. 96 of the Education Act 1970 which provides that the governing body of a school “may raise funds and expend them for the benefit of the school” is that the purposes for which the funds may be raised or expended must be related to the benefit of the particular school, considered in the wide sense, not only as a building but also as an institution comprised of the staff and the student body.

N1>(3)      Accordingly, the imposition by the Board of Governors of the Port Moresby Multi-Racial High School, at the direction of the National Education Board, of an “economic fee” of K400 per annum per student, for the purpose of paying overseas teachers’ salaries and allowances (which are the responsibility of the Government) being to provide a financial benefit for the Education System as a whole, was outside the power conferred by s. 96 of the Education Act 1970; and (per Prentice Deputy C.J. and Williams J.), could not be construed as an exercise of the National Education Board’s powers under s. 19(1) of the Education Act 1970 to “determine the limits within which and the conditions subject to which fees may be charged”.

N1>(4)      The clear authorization which the Constitution requires under s. 209 for the fee to be lawfully imposed not being found in the Education Act 1970, the imposition or collection of the fee was invalid and should be restrained.

Reference

This was an action referred under s. 5 of the Supreme Court Act, 1975 (see Norah Mairi v. Alkan Tololo and Others (No. 1), [1976] P.N.G.L.R. 59) in which the plaintiff sought a declaration concerning the validity of the imposition of a fee called an “economic fee” of K400 per pupil imposed by the Board of Governors of the Port Moresby Multi-Racial High School, and an injunction restraining the imposition or collection of the fee.

Counsel

NH Pratt and J Alman for the plaintiff

JA. Ross for the first, second and fourth defendants

JA Griffin for the third defendant

Cur. adv. vult.

15 April 1976

FROST CJ:  This action concerns the validity of a fee called the economic fee of K400 per pupil imposed by the Board of Governors of the Port Moresby Multi-Racial High School on students following an integrated Papua New Guinean and Australian curriculum.

The proceedings are brought by the plaintiff, a school girl, by her father as her next friend against the defendants, seeking a declaration that the fee was illegally imposed and an injunction restraining them from imposing or collecting the fee.

Turning first to the facts, whilst most Government multi-racial high schools provide an alternative curriculum which is followed by the national students, until the end of last year all students of this school, both expatriate and national students, followed the common curriculum based on the Australian curriculum which has been continued pending the hearing of this action. It is the much higher cost involved in teaching the Australian-based curriculum, because the services of expatriate teachers are required and more expensive equipment, which led the National Executive Council on the 29th October, 1976, to approve the levy of the economic fee in all multi-racial schools both primary and secondary. The Government’s object was to increase the funds available to enable the educational facilities provided by the National schools to be extended, not only by means of the additional payments but also by discouraging Papua New Guinean parents from demanding the Australian-based curriculum which was seen as a status-type education.

The Government sought to implement its decision by introducing a bill into Parliament empowering the Minister for Education to impose such a fee. When the bill was defeated it was necessary to turn to the Education Act, 1970 to seek a legal basis to impose the fee. Following a request by the Education Department the National Education Board by resolution directed the governing bodies of multi-racial schools to adopt one of two options, one of which was the collection of the economic fee, and to pay it into a single National Trust Account to be set up for the purpose, thus enabling the Government to pay all overseas teachers of its schools a full overseas salary. To compensate for the exemption from payment of the children of Government employees, for whom the Government felt bound to provide the Australian curriculum, the Education Department undertook to allocate sufficient funds to pay the salaries of a proportionate number of expatriate teachers.

In February 1976, after an initial reluctance, the Board of Governors of the Port Moresby Multi-Racial High School decided to put into operation a dual curriculum, consisting of an integrated curriculum to be followed by the expatriate students upon payment of the economic fee, an a Papua New Guinea curriculum for the national students. The Australian curriculum was to be open to national students also but only upon payment of the economic fee. To implement this particular option, one general trust fund called the “Special Multi-Racial Schools Trust Account” was finally established by the Minister on 22nd March 1976 for the purpose of receiving moneys remitted by the governing bodies of multi-racial schools “on behalf of pupils who paid those fees to the governing body, and who attend such schools and described as ‘economic fees’, so as to enable the government to pay, in respect of such fee-paying pupils and on behalf of the governing bodies, all necessary costs of such an education over and above the costs of Papua New Guinea Curriculum Schools, being overseas teachers’ special conditions of salary and allowances and the purchase of specialised school materials ...”

It is now necessary to turn to the relevant legislation which includes the Education Act 1970, the Teaching Service Act 1971 and the Teaching Service (Auxiliary Members) Act 1973. The structure of the legislation is innovatory and designed especially for the needs of Papua New Guinea. The scheme of the Education Act 1970 is quite clear. It is to set up an education system consisting of the various types of schools with which there was to be associated a teaching service, s. 6. The schools are to be conducted by approved education agencies which comprise not only the Government but also other persons and bodies interested in education in Papua New Guinea including churches, missions and the community as a whole — s. 7. The administration of the Act and of the education system is vested in various authorities including a National Education Board, the Director of Education and the Department, the Teaching Service Commission, Provincial Education Boards, the Education Agencies and the governing bodies of the schools — s. 8. Advisory, supervisory and directory functions are entrusted, in effect, on the national level to the National Education Board and on the provincial level to the Provincial Education Boards, these bodies being constituted by representatives of the various education authorities — Pt III, Divisions 1 and 4. So far as the teachers are concerned, separate and permanent provision was made by the Teaching Service Act 1971, to quote the long title, “for the Teaching Service Commission, for the terms and conditions of service of the members of the Teaching Service, and for other matters relating to the employment and welfare of teachers in Papua New Guinea ...”

The provisions of the latter Act relevant to this case are those relating to the financial responsibilities of the education agencies and authorities, Pt XIII. The emoluments of teachers are divided in substance into a common salary and allowances payable to all teachers which are the financial responsibility of the Government, s. 151 (a), and additional benefits such as those contained in special conditions of salary and allowances for overseas teachers which are negotiated by any education agency, including of course the Government, s. 142. The cost of these additional benefits are under the Act the clear financial responsibility of the education agency concerned, s. 150 (1). However, as from the coming into operation of the Teaching Service (Auxiliary Members) Act 1973 overseas teachers ceased to be members of the Teaching Service but were deemed to have been admitted to auxiliary membership or associate auxiliary membership of the Teaching Service, pursuant to the Teaching Service (Auxiliary Members) Act, s. 4 (1). The effect of the latter Act is to preserve the previous division of financial responsibility in that additional benefits may be specially provided for overseas teachers by an education agency including the Government, but such special provision is the responsibility of the agency concerned (s. 11), and that in addition to its responsibilities for such special provision as an education agency the Government is responsible for the common salary and allowances paid to all teachers including those overseas teachers, s. 18.

It is important to note that the payment of all amounts payable by the Government to teachers are payable out of moneys lawfully available to the Government for the purpose — the Teaching Service Act, s. 152; Teaching Service (Auxiliary Members) Act, s. 19. No appropriate amendment of this provision was ever enacted to substitute or add the special trust account as an alternative source of payment, despite the fact that additional benefits by way of salary and allowances payable to overseas teachers were to be paid out of that trust account under the new scheme for the imposition of the economic fee.

It was argued by counsel for the plaintiff that the financial responsibilities prescribed by these statutes excluded any other provision by Parliament for payment of the teachers such as the passing on of the required expenses or portion thereof to parents by way of fees imposed by the governing body under the Education Act. It was argued that Parliament intended that the overseas teachers employed in Government schools should be paid entirely by the Government out of Government funds and therefore without contribution by way of fees imposed upon parents.

But further consideration shows that this cannot necessarily be so. The mere fact that a statute establishing, for example, a hospital provides for the payment of doctors’ salaries by the Government could not be regarded as precluding further legislative provision for medical fees to be paid by patients. This brings me to the issue of the validity of the fee.

Under the Constitution the imposition of taxation, an expression which includes fees, requires the authorization of an Act of Parliament, Constitution s. 209 (1), Sch. 1.2. This section is based upon the Bill of Rights (1 William and Mary, sess. 2, c.2) of England. A strict construction of that section has been adopted by the English courts so that to justify a charge made for the use of the Executive including all purposes of the public revenue it must be shown, “in clear terms, that Parliament has authorized the particular charge.” Attorney-General v. Wilts United Dairies Ltd.[clxvi]⁸. This does not mean of course that “the grant of powers may, though not expressed, have to be implied as necessarily arising from the words of a statute.” (op. cit.). I see no reason why the same construction should not be placed on s. 209 (1), as a similar provision transplanted into the Papua New Guinea Constitution, despite the fact that Papua New Guinea has been spared the experience of “the historic struggle of the Legislature to secure for itself the sole power to levy money....” (op. cit.).

The main provision relied on by the defendant’s counsel is s. 96 of the Education Act which, so far as is relevant, provides that the governing body of a school “may raise funds and expend them for the benefit of the school.” It was not argued that the power to raise funds did not include a power to impose fees for the purpose stated. Purposes which would clearly be authorized under the section include the provision and maintenance of school buildings and ancillary facilities, and the engagement and control of locally employed ancillary staff which are the only relevant functions of the Board of Governors under the Education Act, ss. 80 (a) and (h). Thus the plaintiff’s counsel conceded that the section authorized the management fee charged by school governing bodies to cover, among other things, the payment of cleaning staff.

The intention of the legislature was in my opinion that the purposes for which the funds may be raised and expended must be related to the benefit of the particular school, considered in the wide sense, as counsel for the defendants submitted, not only as a building but also an institution comprised of the staff and the student body. But the economic fee was not designed to provide a benefit for any particular Multi-racial school. It was approved by the Government and imposed by the governing body to provide a financial benefit for the Education System as a whole, and thus in my opinion falls outside the power conferred by the section.

The other provisions relied upon by defendants’ counsel are ss. 19 (1) (i)[clxvii]9, 49 (1) (h)[clxviii]10 and 80 (1) (b)[clxix]11. The first two provisions prescribe as a function of the National Education Board and the Provincial Education Board the determination of the limits of the fees to be charged, a function which so far as s. 19 (1) (i) is concerned the National Education Board purported to exercise in giving directions for the economic fee. It seems to me that these sections do presuppose the existence of a power to impose fees residing in some body which is unspecified. The only possible body in the case of a secondary school may well be the Board of Governors, but when one turns to s. 80 (1), it is seen that the rather narrow functions which are prescribed for the Board of Governors do not include the levying of fees of any description, or even the employment of teachers from which an incidental power to levy fees for the payment of salaries and allowances might be implied. The section may possibly be capable of operation in the case of non-government secondary schools with independent powers to charge certain kinds of fees, but in my opinion in relation to government secondary schools s. 19 (1) (i) when read with s. 80 (1) is not in sufficiently clear terms to confer upon a Board of Governors the power to impose tuition fees such as the economic fee. Section 96 is thus the only provision authorizing the Board of Governors to raise funds, a conclusion which is consistent with the framework of the Act.

So far as s. 49 (1) (h) is concerned that provision has no direct application to this case in view of a decision by the National Education Board that the Multi-racial schools should not be administered through a Provincial Education Board. However, analysis of the section shows such Boards have no concern with tuition fees. The fees referred to are stated in terms as “book, boarding or other fees”. The question is whether the general words “other fees” include a fee of the nature of the economic fee. The rule of law applicable, which is called the “euisdem generis” rule, is that “where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified.” R. v. Edmundson[clxx]¹². This passage is cited by Craies on Statute Law, 7th ed., at p. 179. As Craies adds: “It is really a question of the assumed intention of the Statute.” (ibid.) The words “book, boarding ... fees”, in my opinion refer to fees of a single kind, in the sense of fees of a different or lesser kind than tuition fees or fees to assist in the payment of teachers’ emoluments. The Parliament has thus stated a class of fee which in my opinion excludes the “economic fee”.

Turning to s. 80 (1) (b) all that can be said of that provision is that it places upon the Board of Governors the responsibility for accounting for certain moneys made available to the school, including moneys made available by the levying of fees, and the use of that general term does not take the defendants’ case any further than as relied upon under s. 19 (1) (i).

The conclusion that I have reached is that the clear authorization by Parliament which the Constitution requires under s. 209 (1) for the fee to be lawfully imposed cannot be found in the Education Act 1970, upon which the Department was driven to rely when the Parliament rejected the amending Bill. Other arguments were advanced and are suggested by the facts which it is unnecessary to consider. This conclusion is, of course, solely a matter of law. The considerations involved in the imposition of the economic fee as a means of furthering the Government’s beneficial aim of extending education facilities to an increasing number of Papua New Guinean children are of a political nature and not within the province of the Supreme Court.

Finally, it is proper that I express no opinion upon the validity of the second option decided upon by the National Education Board, which was not in issue in this case.

For these reasons the plaintiff is entitled to judgment in the terms of the relief sought.

PRENTICE DCJ WILLIAMS J:  In this action the plaintiff seeks relief from a direction of the Board of Governors of Port Moresby High School that she shall pay K400.00 to the Board, if she wishes to continue to study the “common curriculum” at the High School.

The matter has been referred to this Court by the National Court, which itself, in so doing, made orders preserving until this hearing, the situation previously existing at the school. The reference was made under s. 5 of the Supreme Court Act.

For some time the Department of Education, its Director (now “Secretary”), and the National Education Board, have been concerned about the cost of maintaining multi-racial high schools which have, at times, been dual-curriculum schools; and with the cost of maintaining “A” schools intended primarily for the children of expatriates but at which certain children of some Nationals may attend. It can readily be seen that the cost of these schools is high, because they require, we are told, to be staffed by a high percentage of expatriate teachers to whom a higher salary must perforce be paid. The authorities are unable to appreciate why Nationals should wish their children to attend such schools. Some of the documents exhibited suggest that the authorities feel a sense of grievance that Nationals should entertain such desires. The attitude of the authorities in this regard does not appear to be appreciated by the parents of some National children. The next friend of the plaintiff, her father, is one of these.

Apparently the Department became alarmed at the rising cost of multi-racial and “A” stream schools. It decided that costs could be checked if an “economic fee” of a substantial nature were charged for attendance at such schools, and if National children were prevented from attending it. Public protest seems to have ensued. The Department, while wishing to discourage such attendance by National children, conceded that the right to do so (subject to certain standards of ability and background) should be maintained. But it considered that attendance at such schools should “except in the case of children of expatriate servants of the Government”, be conditional upon the parents paying an “economic fee” of K400.00. This fee was to be in addition to the usual “management fee” commonly imposed by Governing Bodies for certain purposes of a school’s management — purchase of equipment, cleaning fees, improvement of facilities, and such like.

The Departmental policy was enshrined in a recommendation to the National Executive Council, and a draft Bill to be presented to Parliament. The Bill appears to have been drafted on the supposition that power did not lie in the education agency (in the case of this school the Government), the Department, the Director or the National Education Board; to impose the contemplated fee. Cabinet approval of the proposal, as is revealed by N.E.C. Minute of 30th October, 1975, was given in the following form:

“On 29th October, 1975, National Executive Council approved the distribution of the Education (Amendment) Bill 1975. (Draft of 21/10/75) and its introduction to the current sitting of Parliament. In doing so, National Executive Council confirmed that a K400 fee would apply in 1976 to all students attending primary “A” schools and multi-racial high schools and that Nationals who could afford such fees would be permitted to apply for enrolment ...”

The Education (Amendment) Bill 1975 was duly introduced in the National Parliament; but was rejected at its third reading. It has not been re-introduced. Despite the failure to get legislative warrant for the imposition of the K400.00 fee the National Education Board, no doubt at the instance of the Director, decided to go ahead with its scheme. On the 11th November, 1975 by Decision 33/9 the Board made the following decision:

N2>“(c)    The economic fee of K400 per pupil in Multi-Racial schools as approved by the Executive Council, is still necessary.

N2>(d)      Since the Government cannot collect the fee directly, the Board now must issue instruction for this to be done as per s. 19 (1) (i) of the Education Act.

N2>(e)      Notes that the Education Department, because of its obligation to provide a suitable education for the children of expatriate recruits of Government departments and authorities, is prepared to provide teachers on overseas salary in proportion to the number of school children enrolled at each Multi-Racial school (with suitable safe-guards for identity in the case of church agency multi-racial schools) the Board accordingly directs the governing bodies of Multi-Racial schools to exempt expatriate parents employed by Government departments and authorities from payments of the K400 economic fee (but not existing types of Governing body fees).

N2>(f)      Therefore directs governing bodies of Multi-Racial schools to adopt one of the following methods of collecting an economic fee.

(1)      Collect an economic fee of K400 per pupil in 1976 and pay it into a single National Trust Account to be set up for the purpose, thus enabling the Government to pay all teachers of its school a full overseas salary.

or

(2)      Accept the Papua New Guinea rate of salary for all teachers over and above those supplied by the Education Department in respect of the children of expatriate government recruits and supplement it with such overseas allowances as it desires to offer, paid by the governing body out of an all-inclusive fee, up to a maximum of K500 per pupil which it may charge its parents in 1976. The governing body may, at its discretion vary the fee in respect of particular parents or classes of parents.

N2>(g)      Restricts governing bodies at dual curriculum schools to apply these options to the Australian curriculum stream only.

N2>(h)      In order to facilitate staff posting, directs each governing body to advise the Board by 30th November 1975 which of (f) (1) or (2) it intends adopting.

N2>(i)       The full fee to be paid before the pupil is enrolled at the beginning of the year.

N2>(j)      The fee to be adjusted in future years in terms of cost.”

The decisions of the National Education Board were communicated to all schools and the Board of Governors of Port Moresby High School thereafter made representations to the N.E.B. as to the special position of Port Moresby High School. However, the Department was unable to accept these recommendations, and thereafter a direction was issued to the Chairman of the Board of Governors in the following form:

N2>“1.      Since curriculum is a matter for Director of Education to decide, the status of Port Moresby High School is now dual curriculum as from 1976. The expatriate students will follow the integrated course, while PNG students (Forms 1 to 4) will follow PNG curriculum.

N2>2.       Students who follow the integrated curriculum will pay K400, while those students who follow PNG curriculum will pay K3 for SETA plus the Board of Governors set fees ...”

The Board of Governors then set out to implement the instructions they had received; and at this stage the proceedings which have now been referred to this Court were initiated in the National Court to restrain the intended separation of the school into two curricular streams and in effect the levying of K400 from National students as a condition of entry to the integrated curriculum (that is, curriculum designed for expatriate students).

By proclamation or instrument under the Public Finances (Control and Audit) Act 1973 the Minister for Finance on 22nd March, 1976 set up a Multi-Racial Schools Trust Account to deal with the proceeds of the K400 levy. The instrument was in the terms following:

N2>“(A)    Establish, within the Trust Fund a Trust Account to be called the Multi-Racial Schools Trust Account; and

N2>(B)      Direct that the purpose of the Account is to receive and hold monies remitted by governing bodies of Multi-racial schools on behalf of pupils who paid those fees to the governing body, and who attend such schools and described as ‘economic fees’, so as to enable the Government to pay, in respect of such fee-paying pupils and on behalf of the governing bodies, all necessary costs of such an education over and above the costs of Papua New Guinea Curriculum Schools, being overseas teachers’ special conditions of salary and allowances and the purchase of specialised school materials. Refund of fees shall be on the authority of the Superintendent, Multi-Racial Schools Unit, Department of Education.”

The effect of the decisions of the various authorities concerned, is that a $400.00 fee (“the economic fee”) has been imposed upon all students undertaking the “common curriculum” at Port Moresby High School (except the expatriate children of Government servants) by the school’s Board of Governors; which fee is paid into the Multi-Racial Schools Trust Account, from which it is to be disbursed by the Government for “overseas teachers’ special conditions of pay and allowances and the purchase of specialised school materials”. The process of collection of fees has gone on.

THE LEGAL BASIS OF THE PLAINTIFF’S CLAIM

The imposition of the “economic fee” by the Board of Governors is challenged as being without legislative warrant and thus unconstitutional under s. 209 (1) of the Constitution. The plaintiff contends that the imposition of the “economic fee” for the clear purpose of paying teachers’ salaries, is a raising of finance within the meaning of this section of the Constitution. There must be an authorization of such revenue raising, it is submitted, by a section of a statute (as perhaps implemented by a subsidiary instrument) which is clear and sets out the circumstances and amounts of revenue which may be so collected. An examination of the appropriate statutes will not, it is said, reveal such an unmistakable or any grant of power to Boards of Governors (or any other bodies) to raise an “economic fee” for payment of overseas teachers’ salaries and allowances.

THE LEGAL BASIS OF THE DEFENCE

The defendants, as we understand their submissions, have sought to justify the imposition of the fee by reliance upon s. 96 of the Education Act, when read in association with s. 19 (1) (i), s. 49 (1) and s. 80 (1) (b) of that statute. If power cannot be found expressed; it is, they say, implicit in the sections and in the scheme of the Acts concerned. Every law made by Parliament must receive “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit....” (s. 109 of the Constitution). At this stage it should be noted that the Constitution itself also demands that “all provisions of, and words, expressions and propositions in, a constitutional law” (which by definition includes the Constitution itself) “shall be given a fair and liberal meaning” (Sch. 1.5).

THE STATUTE LAW

No doubt induced by the surge of events since 1970, the collation of statutes which governs the administration of the education system of Papua New Guinea is very complex. The court has been referred to these statutes in detail. But in considering the legality of the imposition of an “economic fee” for the purpose of paying overseas teachers’ special conditions of salary and allowances, the cardinal ones appear to be the Education Act of 1970, and (after following the various provisions as to administration and payment of teachers’ pay and allowances through various other Acts) the Teaching Service (Auxiliary Members) Act No. 7 of 1974.

Section 18 of the last-mentioned Act provides as follows:

“FINANCIAL RESPONSIBILITY OF THE GOVERNMENT

In addition to its responsibilities as an education agency (including its responsibilities under any agreement entered into by it or any determination made under s. 11), the Government is responsible for the payment of salaries and allowances of auxiliary members and associate auxiliary members and, except where the contrary intention appears in this Act, for all other amounts payable in respect of auxiliary members and associate auxiliary members (other than the cost of any additional benefits provided by any other education authority under s. 11).”

The Government is the “education agency” for Port Moresby High School. It seems to be implicit in the documents, and admitted by defendants’ counsel in argument, that the Government is responsible for the payment of salaries and allowances, (under which latter term are now to be envisaged all emoluments above those common to all teachers) of auxiliary and associate members (that is, overseas teachers). This appears to be so, even allowing for the responsibility over to the Australian Government for such of those teachers as are members of the ASAG scheme.

The inescapable conclusion then would appear to be, that the Government being baulked in its legislative intention has sought this alternative method of meeting its financial responsibilities, namely, of directing the Board of Governors to levy fees which it considers that it itself cannot do through its Department of Education.

Section 19 of the Education Act sets out the functions of the National Education Board. They appear to be advisory (upwards and downwards), supervisory, and of a planning nature. Its responsibilities are set out in s. 20. Among other functions the following one is set out in s. 19 (1) (i) — “subject to such conditions and limitations as are laid down by the State, to determine the limits within which and the conditions subject to which fees may be charged in schools”. It will be noted that this section does not seem to empower it actually to levy fees.

Section 49 (1) sets out the functions of the District Education Boards and includes among them (h), “subject to such conditions and limitations as are laid down by the National Education Board, to determine what book, boarding or other fees may be imposed in schools in the District, and the limits within which and the conditions subject to which such fees may be charged”.

Section 80 (1) provides:

N2>“(a)    for planning for, and the provision and maintenance of, school buildings and ancillary facilities;

N2>(b)      subject, in the case of moneys made available by the Department or the Administration, to any directions by the Treasurer, for accounting for moneys made available to the school by any other education authority by the levying of fees and other charges and otherwise, and for controlling the expenditure of such moneys;

N2>(h)      for the engagement and control of locally employed ancillary staff.”

Section 96 provides that:

“Subject to compliance with the requirements of any other law of Papua New Guinea and of its Constitution and to any directions of the education agency the Governing Body of a school may raise funds and expend them for the benefit of the school, centre or college”. (Emphasis ours).

It seems to have been assumed that by a combination of ss. 19, 49, 80 and 96, power has always lain in Governing Bodies to “raise funds” not only by means of the kind envisaged by s. 95 (fetes and such like), but by imposition of what have come to be known as “management fees”, to cover boarding and other school costs ... those costs other than capital costs. In some cases these costs have been taken to include some teachers’ salaries, or at least some portion of them. Mr. Ross contends that the phrase “for the benefit of the school” is apt to cover the payment of overseas teachers’ salaries and allowances for which the Board of Governors has no responsibility whatever.

THE CONSTITUTION

Section 209 (1) of the Constitution provides:

“Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the Parliament, and shall be regulated by an Act of the Parliament.”

Under Schedule 1.2 of the Constitution “taxation” includes rates, charges and fees and imposts of any kind.

This provision in s. 209 (1) of the Constitution is similar in kind to that first introduced in England by the Bill of Rights in 1689, 1 Wm. & M. sess. 2, c. 2. In accordance with the Constitution it is necessary to give this constitutional section “its fair and liberal meaning”, and to construe it so that it will take effect and not become attenuated. We consider that it must be construed so that it will maintain parliamentary responsibility for revenue raising and “ultimate parliamentary control over public moneys”, as contemplated by the recommendations of the Constitutional Planning Committee (Final Draft, Chapter 9, at 2, 3 and 5). But to do so, we think it is incumbent upon the court to follow a well-trodden road of interpretation. This path suggests that for the imposition of a charge upon the subject to be legal, a clear and unambiguous intention must be shown in a Statute. Insofar as the Education Act is sought to be relied on as giving powers to raise revenue, what has been said about taxing acts seems appropriate; “In a taxing Act one has to look at what is clearly said. There is no room for intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied, one can only look fairly at the language used.” And again, “If the case is not brought within the words of the statute, interpreted according to their natural meaning; and if there is a case which is not covered by the statute so interpreted, that can only be cured by legislation and not by any attempt to construe it benevolently in favour of the (State)”. (See the cases collected in Craies on Statute Law, 6th ed., 113 to 114). To render imposition of tax for the raising of revenue constitutional, the statutory grant of power must be clear and unambiguous and the circumstances bringing it into operation sufficiently clear. That the operation of s. 209 (1) of the Constitution ought not to be precluded by reason of the fact that a benefit such as tuition at school is provided in respect of the fee or that a fee is paid voluntarily, is illustrated by Attorney-General v. Wilts United Dairies, Limited[clxxi]¹³.

It seems to us that the power of the Board of Governors of Port Moresby High School to impose an “economic fee’ for the purpose of paying overseas teachers’ salaries and allowances (which are the responsibility of the Government), must be found in s. 96 of the Education Act or nowhere. We say this, because we are of the opinion that s. 80 (1) (b), the only other section conceivably relevant to this school’s situation, can only be read as a subsection imposing responsibility to account for funds received, and not as one empowering the levying of fees.

It is clear to us that the scheme of the legislation provides for the payment of overseas teachers’ salaries to be the responsibility of the Government, as is capital expenditure. And it appears to us that to construe a power to “raise funds and expend them for the benefit of the school”, as including power to levy fees such as the “economic fee” here for the purpose of helping the Government by taking over a considerable portion of its financial responsibilities — that of paying overseas teachers’ salaries and allowances; is a straining of the legislator’s language to achieve an intention opposite to that clearly expressed in the Teaching Service (Auxiliary Members) Act No. 7 of 1974. That this is so is rendered evident when one looks to s. 80 which sets out the duties of Boards of Governors and finds that though it allows them to engage and control locally employed ancillary staff, it makes no reference to the making of contracts with, and payment of, teachers (let alone overseas teachers).

The Board of Governors decision to comply with the National Education Board’s directions cannot, we think, be construed an exercise of the National Education Board’s powers to “determine the limits within which and the conditions subject to which fees may be charged.”

We consider, therefore, that the plaintiff is entitled to relief from this court.

ORDER OF THE COURT

N1>(1)      Declared that the imposition upon or collection from the plaintiff of the K400 “economic fee” by the defendants or any of them is void and illegal and of no effect.

N1>(2)      Ordered that:

N2>(a)      the defendants or any of them are hereby restrained from imposing on or collecting from the plaintiff the “economic fee” of K400;

N2>(b)      the defendants or any of them are hereby restrained from directing or placing the plaintiff in a curriculum of studies which is in any way based on or dependent on the imposition or collection of the said “economic fee” of K400.

Solicitor for the plaintiff: N. H. Pratt, Acting Public Solicitor.

Solicitor for the first, second and fourth defendants: B. W. Kidu, State Solicitor.

Solicitors for the third defendant: McCubbery Train Love & Thomas.

[clix]Infra p. 138.

[clx]Infra p. 138.

[clxi]Infra p. 138.

[clxii]Infra p. 138.

[clxiii]Infra p. 131 footnote.

[clxiv]Infra p. 138.

[clxv]Infra p. 137.

[clxvi] (1921) 37 T.L.R. 884 per Lord Atkin at p. 886.

[clxvii]19(1)          Subject to this Act, the functions of the National Education Board are—

...

N2>(i)         subject to such conditions and limitations as are laid down by the Government, to determine the limits within which and the conditions subject to which fees may be charged in schools;

[clxviii]49(1)         The functions of a Provincial Education Board are—

...

N2>(h)        subject to such conditions and limitations as are laid down by the National Education Board, to determine what book, boarding or other fees may be imposed in schools in the Province, and the limits within which and the conditions subject to which such fees may be charged;

[clxix]80(1)          Subject to this Act, a Board of Governors is responsible, within the limits of funds and other resources available to it—

...

N2>(b)        subject, in the case of moneys made available by the Department or the Government, to any directions by the Treasurer, for accounting for moneys made available to the school by any other education authority by the levying of fees and other charges and otherwise, and for controlling the expenditure of such moneys;

[clxx][1859] EngR 703; (1959) 28 L.J. M.C. 213, per Lord Campbell at p. 215.

[clxxi] (1921) 37 T.L.R. 884 and 38 T.L.R. 781.