Mileng v Tololo [1976] PGLawRp 650; [1976] PNGLR 447 (6 October 1976)

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EDUCATION - Government school - Multi-racial primary school - Whether power in Board of Management to impose “economic fee” to cover payment of overseas teachers’ salaries and allowances - Constitution of the Independent State of Papua New Guinea s. 209[cdxciii]¹ - Education Act 1970, ss. 19 (1)[cdxciv]², 75[cdxcv]³, 96[cdxcvi]⁴ - Teaching Service (Auxiliary Members) Act 1974 s. 17[cdxcvii]⁵.

N1>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[cdxcviii]⁶.

N1>STATUTES - Interpretation - Taxing act - Strict construction - Necessity for clear and unambiguous language - Constitution of the Independent State of Papua New Guinea s. 209[cdxcix]⁷.

On 29th October, 1975, 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 debated 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, under the first of which an economic fee of K400.00 was to be levied in respect of each pupil following the Australian based curriculum and paid into a single National Trust Account to be set up for the purpose, thus enabling the Government to pay the teachers of its schools a full overseas salary, (held to be invalid in Norah Mairi v. Alkan Tololo and Others (No. 2) 1976 P.N.G.L.R. 125) and under the second of which the arrangements for both the collection and disbursement of the fee were left to the Board of Management of each Government school.

In proceedings for the recovery of fees called the “economic fee” imposed by the Board of Management of, in one action the Coronation Multi-Racial Primary School, and in the second action, the Gordon Primary School, and seeking declaratory orders as to the invalidity of the fee.

N1>(1) The Board of Management of the schools had no authority to impose or retain the economic fee under the second option, in respect of the children of the plaintiff, or as a condition of the enrolment of the plaintiff’s children at the school.

Norah Mairi v. Alkan Tololo and Others (No. 2), 1976 P.N.G.L.R. 125 followed.

A tax, which (includes a charge or fee) may not under s. 209 of the Constitution of Papua New Guinea be imposed without parliamentary sanction; such sanction must be unambiguous and imposed with “clear and distinct authority”; s. 19(1) of the Education Act 1970, taken with s. 75 and s. 96 does not disclose such a sanction for the charging of fees by the Boards of Management of State (primary) schools, to provide a fund for the payment in satisfaction of the Government’s statutory obligation of the overseas component of the teachers’ remuneration; nor can such a sanction be found in s. 17 of the Teaching Service (Auxiliary Members) Act, 1974.

These were two actions referred under s. 5 of the Supreme Court Act 1975, in which the plaintiff sought recovery of fees called “the economic fee”, imposed by the Board of Management of two schools, in the first action the Coronation Multi-Racial Primary School and in the second action the Gordon Primary School. Further relief was also sought by way of declaratory orders as to the validity of the fee, and in each case injunctions.

FROST CJ: These are two actions brought by the plaintiff for the recovery of fees called “the economic fee” imposed by the Board of Management of two schools in the National Capital District; in the first action the Coronation Multi-Racial Primary School, and in the second action the Gordon Primary School. Further relief is sought also by way of declaratory orders as to the invalidity of the fee, and in each case an injunction.

The actions arise out of the imposition of the fee by the National Education Board as a means of maintaining and extending the educational facilities throughout the provinces in the face of the increasing cost of providing the highly-paid expatriate teachers required to teach the Australian curriculum.

The two schools in question are attended by expatriate children who are taught that curriculum. In imposing the fee the immediate aims were to discourage the parents of indigenous children from continuing to send them to the Australian curriculum schools, and also to provide sufficient funds to pay a substantial portion of the cost of running these schools.

The action taken by the National Education Board was to direct the Board of Management of the schools in question to adopt one of two options as a means of collecting the fee. Under the first option an economic fee of K400.00 was to be levied in respect of each pupil following the curriculum, and it was to be paid into a single National Trust Account set up for the purpose. The fund was to enable the Government to pay the teachers in these schools additional sums to cover overseas allowances and special conditions of salary. That option was considered by the Supreme Court in Norah Mairi v. Alkan Tololo & Ors.[d]⁸ and was held to be illegal.

N1>Under the second option the arrangements for both the collection and disbursement of the fee were left to the Board of Management of each Government school. The Department of Education provides fully-paid teachers in proportion to the number of children at the school whose parents are “foreigners” and are employed by the Government, and for whom the Government has a special interest in providing this type of education. In the case of the other teachers required at the school the Government has the responsibility under the legislation, to which I shall later refer, of paying the Papua New Guinea rate of salary only, but these salaries are supplemented by overseas allowances paid by the Board of Management out of moneys comprising the economic fee collected by the Board, but only from those parents who are not in the above exempt class. Children of these parents are excluded from the Australian curriculum unless the fee is paid.

N1>So far as the first action is concerned the Board of Management decided to adopt Option 1, and the plaintiff paid K400.00 in respect of his two children at Coronation. Following this Court’s decision the Board of Management then decided to adopt Option 2. The plaintiff then requested a refund of his payments. Two letters from the Board were then received by him, one enclosing a cheque for K800.00 in full refund of the earlier payments, and the second advising the plaintiff that following his refusal to pay the economic fee he should remove his children from the school until payment of the fee was made. On 10th May, 1976 the plaintiff handed to a representative of the Board a letter enclosing a cheque in payment of the full amount of K800.00 for the two children, but under protest.

N1>In the second action the Board of Management of Gordon resolved to implement Option 2 and thereby imposed an economic fee of K175.00 in respect of each of the plaintiff’s children. At the beginning of the school year the plaintiff attended at the school for the purpose of enrolling two of his children for the present academic year. At a request on behalf of the Board of Management and the Headmaster the plaintiff then paid the Board K350.00 as the economic fee for the two children in order to obtain enrolment of the two children at the school. Following the Supreme Court’s decision upon Option 1 the plaintiff requested the Board to refund to him moneys thus paid, but by a letter on behalf of the Board of Management the refund was refused.

N1>It was not disputed by the defendants that if the fees were illegally demanded the plaintiff was entitled in each case to recovery of the sums involved as money paid either involuntarily under colour of an Act of Parliament or in circumstances such that the plaintiff was entitled to repayment. T. & J. Brocklebank Ltd. v. The King[di]⁹; T. & J. Brocklebank Ltd v. The King[dii]¹⁰; Mason & Another v. The State of New South Wales[diii]¹¹.

N1>In this case I do not consider it necessary to review again the provisions of the Education (Papua New Guinea) Act 1970, the Teaching Service Act 1971 or the Teaching Service (Auxiliary Members) Act 1973, the provisions of which were referred to in this Court in Norah Mairi v. Alkan Tololo & Ors.[div]¹².

The submissions of the Acting Public Solicitor were in general two-fold. First, that Option 2 upon examination could not be supported by the legislation for reasons similar to those which led this Court to find that Option 1 was invalid; and that certain action taken since the earlier decision by each Board of Management under the 1973 Act, s. 17 (3), was also ineffective to confer any power to impose fees. I shall refer later to this second submission.

My view is that this Court should decide the case only upon the arguments as to invalidity which have been put before the Court by the Acting Public Solicitor, and should not go on to consider other arguments which the facts might suggest.

The general principles of law applicable to this case can, in my opinion, be simply stated. The first is s. 209 (1) of the Constitution which is in the following terms:

(1) 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.”

Criticism has been expressed of the use I made in my judgment in Norah Mairi v. Alkan Tololo & Ors.[dv]¹³ of the Bill of Rights of England and its interpretation, in arriving at the proper construction of s. 209 (1) of the Constitution. “Mairi v. Tololo: Constitutional Interpretation and the Declaration of the Underlying Law”[dvi]¹⁴. So I should make my views clear. For the interpretation of s. 209 (1), the Constitution Sch. 1. and, subject thereto, the underlying law, are applicable — Constitution, s. 8. Under the Schedule the word “taxation” is defined as including fees.

N1>Secondly, there is the principle of the common law, as I consider it is, which was stated by Scrutton L.J. in the Court of Appeal, Attorney-General v. Wilts United Dairies, Ltd.[dvii]¹⁵, and applied in Liverpool Corporation v. Arthur Maiden, Ltd.[dviii]¹⁶, which was cited by the Acting Public Solicitor. The passage from the judgment of Scrutton L.J. is as follows:

“It is conceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive, but in my view the clearest words should be required before the Courts hold that such an unusual delegation has taken place. As Chief Justice Wilde said in Gosling v. Veley, 7 Q.B. at p. 407: ‘The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate or toll, except upon clear and distinct legal authority, established by those who seek to impose the burden, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it.’ Particularly where the sums to be paid to the Crown are to be paid as a condition of obtaining a licence to exercise the ordinary rights of a subject should the clearest words be required. In practice, legislation protecting certain acts except on licence usually states the pecuniary terms on which licences can be obtained.”

The principle is thus that “clear and distinct legal authority” must be shown for the imposition of any fee, or, as Lord Atkin said in the passage I cited in the earlier case, it must be shown “in clear terms that Parliament has authorized the particular charge”.

The question is whether the principle so stated is applicable as part of the common law of England immediately before Independence Day, the principles and rules of which were adopted under the Constitution, Sch. 2.2. In my opinion the above decisions are sufficiently persuasive in value (Constitution, Sch. 2.12. (2)) to establish that the principle does represent the common law as at the date stated. To turn to the tests of applicability laid down in the Constitution, Sch. 2.2. (1), the principle in my opinion is not inconsistent with the Constitution or, in particular, s. 209 (1). Indeed, as explained by Wilde C.J. in Gosling v. Veley[dix]¹⁷, it is wider than s. 209 (1) which is concerned with the raising and expenditure of finance by the National Government. As a principle of the common law it is applicable both by way of interpretation of s. 209 (1) and also as to manner of its application. Finally, it is not inapplicable or inappropriate to the circumstances of Papua New Guinea, nor can it be suggested that it is inconsistent with any custom.

N1>Detailed and useful written submissions have been provided by defendant’s counsel. Of particular interest was the historical reference to the earlier legislation. For myself I appreciate the assurance which these submissions afford that all relevant sections of the comprehensive legislative scheme have been drawn to the Court’s attention. However, as I see the case it falls within a rather narrow compass. It is convenient to deal first with the position under the Education (Papua New Guinea) Act 1970.

N1>The main provisions of that Act which the defendants relied upon were ss. 19 (1) (i), 49 (1) (h), 75 and 96. As I said in Norah Mairi v. Alkan Tololo & Ors.[dx]¹⁸ the first two sections, which prescribe the functions of the National Education Board and the Provincial Education Board respectively to determine the limits within which and the conditions subject to which fees may be charged in schools, do pre-suppose the existence of a power to impose fees residing in some authority, but no such authority is expressly specified in those sections. The power to impose a fee such as the economic fee must be found elsewhere in the Act. Section 49 (1) (h) which prescribes also as a function of the Provincial Education Board the determination of “what book, boarding and other fees may be imposed in schools” was referred to by the defendants also in this case, and the opinion I previously expressed upon the meaning of “other fees” was sought to be re-opened. However, the views I expressed were, as I made clear, of no direct application as no action had been taken by the Board concerned, and for the same reason that section has no application to the present case[dxi]¹⁹.

N1>Before turning to the legislation it is fundamental to this case to note that under the Teaching Service (Auxiliary Members) Act the Government, as the education agency of the schools in question, is responsible for the payment of both the common salary and the allowances relevant thereto, which it is agreed are confined to the travelling allowance, s. 18, and also the overseas allowance and the special conditions of service of the overseas teachers, ss. 11 (1) and 17 (1).

N1>The broad issue in the case is whether the effect of the legislation is to confer “a clear and distinct legal authority” upon the Board of Management to charge fees, and thereby provide a fund for the payment in satisfaction of the Government’s statutory obligation of the overseas allowance component of the teachers’ remuneration.

N1>I am prepared to assume that the decision of the National Education Board in relation to the economic fee, Option 2, amounts under s. 19 (1) to a determination of the limits within which and the conditions subject to which that fee may be charged. I shall assume also that it is unnecessary for the Provincial Education Board to act as an intermediate authority in respect of that fee. As I understand the section the reference to the determination of fees being charged “in schools” is of significance, and does give an indication of the nature of the fees concerned. It seems to me that the legislative intention was directed to fees being charged of a nature particular to the school concerned. Thus fees may be determined for materials such as books, and goods supplied and services rendered in the nature of board by individual schools, to enable the school to recoup itself for expenses incurred by it. The section may support a wider range of such fees but it is unnecessary for me to go further in this case.

N1>Section 75 of the Act sets out the functions of a Board of Management. So far as is relevant to this case, they are concerned only with the provision and maintenance of school buildings, teachers’ houses, ancillary facilities as required and the enrolment of pupils. The section is silent as to any power to charge fees. But to effectuate the clear legislative intention that certain fees may be charged in schools it seems to me that a power to charge such fees as are lawfully determined by the National Education Board or the Provincial Education Board should be implied as residing in the Board of Management as the only body responsible for the administration of the individual primary school. As the Board has no function in relation to the employment or payment of teachers no further power in relation to fees to pay teachers can be implied from the provisions of s. 75.

N1>Indeed it would be difficult to find a clearer case of powers entirely outside the Board’s functions than the procedure in all its periodic arrangements, of the collection of the economic fee, the issuing of receipts, the payment of teachers, the preparation of their payslips, and possibly the provision of group certificates for tax purposes, and the like.

N1>Whether the power to impose fees is wider than I have indicated I am however left in no doubt that s. 19 (1), taken with s. 75, does not disclose any clear or distinct legal authority for the Board of Management to levy an economic fee, and thereby pass on to parents the clear responsibility of the Government under the legislation for the payment of teachers’ overseas allowances. Indeed, if such an authority was intended by Parliament one would expect to find in s. 75 express provision for appropriate procedures relating to the payment of teachers. The omission of any specific provision to charge tuition fees is also in significant contrast to the express provision to be found in the Public Hospitals (Charges) Act 1972 for the payment of hospital and clinic fees. The staff of the public hospitals, as part of the Public Service, is also paid by the Government as provided by Act of Parliament, Public Service (Interim Arrangements) Act 1973, Pt. V, Div. 2.

Before leaving this part of the case I wish to refer to s. 80, which provides for the functions of the Board of Governors of a secondary school. Whether the power to levy fees is expressly conferred or recognized as being vested in the Board of Governors under s. 80 (1) (b), as was argued in both the earlier and the present case, or is to be implied for the same reason as the implication is to be made in respect of s. 75, the result is the same so far as s. 80 is concerned, for in that section also no clear and distinct legal authority, in the absence of any function thereby conferred in relation to teachers, is to be found for the levying of the economic fee.

The remaining two arguments advanced on behalf of the defendants can in my opinion be answered without difficulty.

Section 96 cannot avail the defendants. That section contemplates the raising of funds by way of voluntary contributions, fetes and the like and, let it be assumed for the purposes of this case, for it was not argued to the contrary, by the levying of compulsory fees. The funds may then be expended for the benefit of the school. As I said in the earlier case, this can only mean for the benefit of the school generally considered as an institution comprised of the staff and student body. The purpose so authorized would include, for example, improvements to the buildings and grounds, the provision of teaching facilities, libraries, sporting equipment, excursions to town and country, and the like. But the levying of an economic fee upon a parent for the purpose of paying teachers’ overseas allowances, as a condition for the child to be admitted to a special curriculum, in my opinion, does not fall within this purpose. It may possibly be treated as the raising of funds and the expenditure of them for the benefit of the individual child or parent, or of the teachers who thereby receive their pay. So far as the school is concerned it may ensure, as a consequence, its continued operation and the teaching of the particular curriculum. But in no sense can it be said, in my opinion, to be for the benefit of the school within the meaning of s. 96.

The final submission concerns the action taken by the Teaching Service Commission since the earlier decision, under the Teaching Service (Auxiliary Members) Act, s. 17 (3). Section 17 provides for the financial responsibilities of education agencies and authorities. As I understand sub-s. (1) it does not seem to go any further than s. 11 (1) in providing that the education agency conducting an educational institution is responsible for the cost of any additional benefits provided under s. 11 in respect of auxiliary members or associate auxiliary members — in effect the overseas teachers — appointed to teaching positions in the institution.

The crucial provision for this part of the case is contained in sub-s. 3, to the effect that where an education authority — the significant change in terminology from education agency is to be noted — undertakes in the prescribed manner to accept all or any of the responsibilities of an education agency in relation to such members, the authority is responsible and the agency is relieved of responsibility accordingly. Since the earlier decision a General Order has been made by the Teaching Service Commission prescribing the “prescribed manner” for the purposes of s. 17 (3), and there has been a purported acceptance in that manner by the Boards of Management, in the case of each school, of the responsibilities of the Government in relation to the overseas teachers at each school.

I must say that the defendants’ appreciation of the effect of this legislation seems to me quite incongruous. The Government remains responsible for the common salary and travelling allowances of all overseas teachers, s. 18. It is also responsible for the overseas and special conditions of service of overseas teachers appointed to its institution as the education agency concerned, s. 11 (1), s. 17 (1). So far as the overseas teachers are concerned, they have the security of both components of their remuneration, that is the common salary and also the overseas allowance, being payable from Government moneys lawfully appropriated for the purpose, s. 19. It would seem a remarkable result, and one unlikely to be intended by the Legislature, that a Board of Management of a Government school which is entirely dependent upon funds being made available by the Government and having no power — as I have held — to charge tuition fees, should have the power of relieving the Government of its statutory responsibility, and at the same time also depriving the teachers of the security of their overseas allowances being payable from Government moneys.

The matter in my opinion is resolved by the Acting Public Solicitor’s submission based on s. 8 of the Education (Papua New Guinea) Act 1970. (It is not necessary to consider all his submissions). That section vests the administration of the Act and the National Education System in the education authorities therein set out, including a Board of Management, but in the manner and to the extent set out in the Act and any other law of Papua New Guinea relating to education, which of course includes the 1973 Act. In my opinion the effect of s. 17 (3) is not to confer further administrative powers upon education authorities generally but, reading that provision with s. 8 of the Education (Papua New Guinea) Act, to enable an education authority, vested with the appropriate administrative powers, in the exercise of those existing powers to accept the responsibility of an education agency under s. 17 (3), and to relieve that education agency of its previous responsibility. Education authorities empowered to act in this way would include another educational agency having adequate resources for conducting the school (s. 67 (1) (d)), or a Local Government Council (s. 65 (1) (f)), both of which are vested with the necessary power, or, according to its constitution, the governing body of a non-Government secondary school. But having regard to the limited extent of its powers and functions as prescribed by s. 75, any such action under s. 17 (3) is beyond the power of the Board of Management of a Government Primary School. Finally, if the contrary conclusion was open, it would not avail the defendants because the crucial power in this case is the power to charge fees, and there is nothing in s. 17 (3) which confers a clear and distinct legal authority upon any education authority not already vested with the power, to charge fees to enable it to carry out the responsibilities it has voluntarily accepted.

Indeed, it is the “mischief” that some authority would wish to interpret a quite general power in a manner not intended by Parliament that points up, for the protection of the citizen, the need for the common law principle.

For all these reasons in my judgment the Board of Management has no power to impose the economic fee Option 2, and the demands made upon the plaintiff in both cases were illegal.

The plaintiff is accordingly entitled to judgment for the recovery of the moneys he has paid, viz. K800.00 in the first action and K350.00 in the second action. Declaratory orders should also be made that the Board of Management has no authority to impose or retain the economic fee Option 2, in respect of the children of the plaintiff or as a condition for the continued enrolment of the said children at the school. However, upon an undertaking given by the defendants by their counsel that sufficient moneys will be appropriated to enable the economic fee Option 2 to be repaid to the parents, and that the fee will not be re-imposed in its present form as a condition for the admission or continuance of the plaintiff’s children at the school in question, in my opinion it is unnecessary for this Court to make orders by way of injunction. There should, however, be liberty to apply.

PRENTICE DCJ: This action is concerned with the validity of the so-called “Option 2” scheme devised by the National Education Board to raise revenue from which components of certain teachers’ salaries might be paid. The facts and the legislation pertaining to the action are set out in the judgment of the Chief Justice. The scheme was initiated following recognition of the Department’s inability to do what it wished, namely, to impose directly an “economic fee” on parents of certain pupils attending particular Government schools. It has been persisted with despite the ruling in this Court in Norah Mairi’s case[dxii]²⁰ that the Option 1 scheme whereby the Board of Governors of Port Moresby High School purported to impose such fees on the Government’s behalf was invalid. Both schemes issued from the National Education Board’s decision of 11th November, 1975 that “since the Government cannot collect the fee directly the Board must now issue instructions for this to be done as per s. 19 (1) (i) of the Education Act”.

N1>It was pointed out in the judgment of this Court in Norah Mairi’s case[dxiii]²¹ that a tax (which includes a charge or fee) may not under s. 209 (1) of the Constitution of Papua New Guinea be imposed without parliamentary sanction; and that the imposition of fees such as the “economic fee” for attendance at Government schools amounted to a “tax”. The Court decided that the relevant legislation contained no clear unambiguous grant to Boards of Governors of State schools of powers to impose such a fee (a tax).

N1>In that case this Court held that s. 80 (1) (b) of the Education (Papua New Guinea) Act 1970 was a subsection which only imposed responsibilities on Boards of Governors and did not itself empower levying of fees. It held that s. 19 (1) in association with s. 80 (1) was insufficiently clear to be construed as a vesting of such power in Boards of Governors of State High Schools. I am of the opinion that s. 19 (1) construed with s. 75 of the Education (Papua New Guinea) Act 1970, produces a similar result in regard to Boards of Management of State (primary) schools.

N1>Section 49 (1) of that Act which has been adverted to in submissions on behalf of the defendants, concerned as it is with district Education Boards, has in my opinion no relevance to the issue.

N1>In Norah Mairi’s case[dxiv]²² this Court also gave attention to the terms of s. 96 of the Act. It was of the opinion that it would be a straining of language to interpret the power given by s. 96 of Governing Boards to “... raise funds and expend them for the benefit of the school ...” as including power to levy fees such as the “economic fee” to pay overseas teachers’ allowances.

N1>In written submissions the defendants have endeavoured to convince the Court that its previous decision in Norah Mairi’s case[dxv]²³ was, in effect, incorrect. I remain unpersuaded that the decision in that case was wrong.

N1>The Government through its instrumentalities has taken advantage of ss. 11, 17, 18 and 19 of the Teaching Service (Auxiliary Members) Act 1974, purportedly to vest responsibility for payment of auxiliary members’ allowances payable under determination and contract (above salaries at “national level” plus travel allowances) in the Boards of Management of Gordon Primary School and Coronation Primary School.

N1>In my opinion the only question remaining to be considered by this Court is whether such purported vesting is valid, and if so, whether it carries with it to Boards of Management of the Government schools concerned, power to impose the economic fee.

N1>There is I think, much force in the suggestion that s. 17 of the Teaching Service (Auxiliary Members) Act 1974 headed “Financial Responsibilities of Agencies and Authorities” followed as it is by s. 18 headed “Fnancial Responsibilities of the Government” is not intended to operate in regard to the Government in its capacity as “an education agency”. However, putting this consideration aside I am of the opinion that in its reference to “education authority” in s. 17 (3) of that Act, the legislature was referring to a restricted set of “education authorities”. It seems to me natural to construe the phrase as referable to “education agencies” and local government councils — “authorities” which by their nature and constitutions may have power to enter into contractual arrangements because of power to impose fees for services and to raise funds — power gained independently of the Education (Papua New Guinea) Act 1970 and the Teaching Service (Auxiliary Members) Act 1974. (Their power to impose fees would be subject to limitations which District Education Boards or Government might impose on fees if their schools came with the “system”.) It makes sense of the collation of sections I think, to construe it in this way. This construction is also supported by what I take to be the intention of Government as illustrated in the legislation since 1970 (it has been set out in detail in the submissions by counsel for the defendants), namely that in taking agency schools into the system, a measure of financial support, to the extent of payment of basic salaries of teachers in agency schools, would be given by Government to such schools. As was stated in Norah Mairi’s case[dxvi]²⁴ I do not understand the scheme, which apparently issued from the Weedon Report, to have been one which contemplated freeing Government from meeting the costs of teachers’ salaries in its own schools (by transferring responsibility for such payment in the case of Government teachers in Government schools to other agencies or authorities), I take the view that s. 17 (3) is not to be interpreted as being a grant of power to Boards of Management of Government Schools to accept responsibility for the engagement and dismissal of teachers and payment of their salaries.

N1>I am of the view that such a shift of responsibility as is sought to be construed from s. 17 and to have been effected in the cases of the two schools concerned here, cannot be made to Boards of Management of Government schools. This is because they have no power to accept such responsibility; their powers are to be found only in ss. 75 and 96 of the Education (Papua New Guinea) Act 1970.

However, as my brother Williams points out in his judgment (and I agree in his reasoning and conclusion) even were one to assume that such a shift of responsibility may be worked and that the undertakings given by the Boards of Management concerned are validly given, the sections of the Teaching Service (Auxiliary Members) Act 1974 do not grant powers to Boards of Management to levy fees any more than do the sections of the Education (Papua New Guinea) Act 1970. Nor should, in my opinion, such powers be found by implication. A clear and unambiguous legislative intention is necessary.

I agree that the charges imposed have no legislative warrant and should be held invalid and I am of the opinion that the plaintiff is entitled to relief.

WILLIAMS J: The facts giving rise to these actions are fully set out in the judgment of the Chief Justice and there is no need for me to repeat them.

The central question for decision is, in my view, the power of the Boards of Management of the respective schools to impose and exact from the plaintiff the so-called “economic fees”.

Boards of Management of schools are the creature of the Education (Papua New Guinea) Act 1970 as amended. Section 71 of that Act requires an “education agency” to establish a Board of Management for each primary school conducted by it. The term “education agency” is defined to mean the Government or an organization or person recognized or deemed to be recognized under Div. 6 of Pt. III of the Act as an “education agency”. The “education agency” for the schools concerned in these actions is the Government.

The functions of a Board of Management are set out in s. 75 of the Act which is in the following terms:

N2>“75(1) Subject to this Act, a Board of Management is immediately responsible, within the limits of funds and other resources available to it:

(a) for the planning for, and the provision and maintenance of, school buildings, teachers’ houses and ancillary facilities as required;

(d) within the general framework of policy established under this Act, and the philosophy of the education agency conducting the school or centre, for determining the aims and goals of the school or centre and for supervising the achieving of those aims and goals; and

(e) for such other matters in relation to the National Education System as are prescribed by or under this or any Act relating to education.

N2>(2) A Board of Management has, in addition to the functions and responsibilities set out in sub-s. (1) of this section, any other functions and responsibilities which are necessary or convenient for carrying out, or which are ancillary to, the functions and responsibilities set out in that subsection.”

It is to be observed that a Board of Management is “immediately responsible, within the limits of funds and other resources available to it” for certain specified functions and that there is no mention in express terms of any power to raise revenue. Further, the section confers no power or function upon a Board of Management to engage or pay the salaries and allowances of teaching staff. Subsection (2) cannot in my view assist the defendants as the functions thereby conferred must necessarily be associated with one of the functions conferred by sub-s.(1). It does not extend the ambit of sub-s. (1) but provides a means of carrying into effect what is enacted in sub-s. (1) and what is incidental to the performance of those functions (cf. Shanahan v. Scott[dxvii]²⁵).

N1>Accordingly it is my view that the imposition of an “economic fee” of a kind now under consideration by a Board of Management cannot be supported by reference to s. 75 alone. It remains to consider whether it can be supported by reference to any other statutory provision.

N1>Reference has been made in argument to s. 96 of the Act. That section is in the following terms:

N2>“96. 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, vocational centre or college may raise funds and expend them for the benefit of the school, centre or college.”

It is said on behalf of the defendants that this section empowers a Board of Management to raise an “economic fee”. However, it should be observed that the powers given by the section are expressed, inter alia, to be “Subject to compliance with the requirements of any other law of Papua New Guinea and of its constitution” (emphasis mine). I take the words “its constitution” to refer, in the case of a Board of Management, to powers and functions conferred by s. 75 together with its own rules. The latter, of course, could only relate to procedural matters and could not extend the powers and functions of the Board as laid down by Parliament. It thus seems to me that whatever meaning is given to the words “may raise funds” in s. 96 it is necessary, in order that a Board of Management act regularly under it, to find some function in s. 75 to which the raising of funds relates. As already stated, I can see no functions conferred by s. 75 to engage or pay the emoluments of office of teaching staff. In consequence it is my opinion that s. 96 does not assist the defendants in these matters.

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;”

The subsection does not confer any revenue raising power but appears, in my view, to give to the Board a supervisory power. It proceeds upon an assumption that there is elsewhere some provision empowering the charging of fees in schools but does not in its own terms authorize those charges. In my view an assumption that a power has otherwise been given falls far short of conferring that power.

Upon a consideration of the Education Act as a whole it does not seem to me that any other section is relevant for present purposes.

A considerable amount of argument centred around the provisions of the Teaching Service (Auxiliary Members) Act 1974. As its title states that Act is largely concerned with the appointment of overseas teachers as auxiliary members of the Teaching Service and the provision of their terms and conditions of employment. Pursuant to s. 7 of the Act a General Order has been made the general effect of which is to fix what I may call basic common salaries. By s. 11 an “education agency” is permitted to make special arrangements with an auxiliary member to provide benefits additional to those given by the Act. In the case of the Government being the “education agency” the requirements of sub-s. (3) and sub-s. (4) must be met.

Section 17 of the Act, as far as is relevant for present purposes, is as follows:

(1) The education agency conducting an educational institution is responsible for the cost of any additional benefits provided under Section 11 to or in respect of auxiliary members or associate auxiliary members appointed to teaching positions in the institution.

(3) Where an education authority undertakes in the prescribed manner to accept all or any of the responsibilities of an education agency in relation to an auxiliary member or associate auxiliary member, the authority is responsible and the agency is relieved of responsibility accordingly.”

In addition to its responsibilities as an education agency (including its responsibilities under any agreement entered into by it or any determination made under Section 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 Section 11).”

Counsel for the plaintiff in a close analysis of the terminology used in these sections drew attention to difficulties arising in the construction of them. However, it seems to me that giving them an interpretation most favourable to the defendants they can extract no more from them than that the Boards of Management of the schools concerned had assumed responsibility for the additional remuneration paid to overseas teachers and had relieved the Government of this responsibility. Even if, contrary to the submissions of counsel for the plaintiff, the Boards of Management concerned are “education authorities” the question immediately arises as to their power to enter into undertakings of the kind contemplated in s. 17 (3). This in itself seems to me to be highly dubious but, again assuming an answer to the question favourable to the defendants, there is another obstacle in their way; neither ss. 17 or 18 contains any provision which authorizes either of the Boards of Management concerned to impose charges and exact payment of them from parents for the payment of emoluments of office to overseas school teachers. It is said that such a power should be implied but as was pointed out by Prentice, Deputy Chief Justice and myself in Norah Mairi v. Alkan Tololo & Ors.[dxviii]²⁶ impositions of this kind cannot be raised by mere implication: rather a clear and unambiguous legislative provision is necessary.

N1>I am clearly of the opinion that the charges raised are without proper legislative authority and that the plaintiff is entitled to relief.

N1>Judgment for the plaintiff in Action No. 331 for K800.00 and in Action No. 332 for K350.00. Further order in each action declaring that the Board of Management has no authority to impose or retain the economic fee Option 2, in respect of the children of the plaintiff, or as a condition of the continued enrolment of the plaintiff’s children at the school, and that the plaintiff have liberty to apply.

N1>Solicitor for the plaintiff in each case: N. H. Pratt, Acting Public Solicitor

[cdxciii]Infra p. 450.

[cdxciv]Infra p. 461.

[cdxcv]Infra p. 459.

[cdxcvi]Infra p. 460.

[cdxcvii]Infra p. 461.

[cdxcviii]Infra p. 450.

[cdxcix]Infra p. 450.

[d][1976] P.N.G.L.R. 125.

[di][1924] 1 K.B. 647.

[dii][1925] 1 K.B. 52.

[diii](1959) 102 C.L.R. 108.

[1976] P.N.G.L.R. 125.

[dv][1976] P.N.G.L.R. 125.

[dvi]Unpublished paper by Mr. C. J. Lynch.

[dvii] (1921) 37 T.L.R. 884 at p. 885.

[dviii](1938] 4 All E.R. 200 at p. 204.

[dix][1847] EngR 232; (1847) 7 Q.B. 406 at p. 407; 115 E.R. 542.

[dx][1976] P.N.G.L.R. 125.

[dxi]For a criticism of the relevant passage in my judgment in Norah Mairi v. Alkan Tololo & Ors. see also the unpublished paper by Mr. C. J. Lynch (supra).

[dxii][1976] P.N.G.L.R. 125.

[dxiii][1976] P.N.G.L.R. 125.

[dxiv][1976] P.N.G.L.R. 125.

[dxv][1976] P.N.G.L.R. 125.

[dxvi][1976] P.N.G.L.R. 125.

[dxvii][1957] HCA 4; (1957) 96 C.L.R. 245 at p. 250.

[dxviii][1976] P.N.G.L.R. 125.

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Papua New Guinea Law Reports

Mileng v Tololo [1976] PGLawRp 650; [1976] PNGLR 447 (6 October 1976)

Papua New Guinea Law Reports - 1976