Tukuafu v Kingdom of Tonga [1999] TOCA 2; CA 13 1999 & 14 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
ON APPEAL FROM THE
SUPREME COURT OF TONGA

APPEAL NO.13/99
APPEAL NO.14/99

BETWEEN:

SALOME TUKUAFU
by her next friend
SAMUELA TUKUAFU
Appellant

AND:

KINGDOM OF TONGA
and LIA LATU MAKA
Respondents

AND

BETWEEN:

KINGDOM OF TONGA
and LIA LATU MAKA
Appellant

AND:

SALOME TUKUAFU
by her next friend
SAMUELA TUKUAFU
Respondent

Coram: Burchett J.
Tompkins J.
Beaumont J.

Counsel: Mr Edwards for the Appellant in first appeal, Respondent in second.
Mr Taumoepeau for the Respondents in first appeal, Appellants in second.

Date of hearing: 13 July 1999
Date of judgment: 23 July 1999

JUDGMENT OF THE COURT

These appeals raise important questions concerning government schools in Tonga. Schools are vital to the progress of any people, and Tonga can claim a proud tradition of education. Dr N. Rutherford, a recognised authority, has written, in his Shirley Baker and the King of Tonga, 1996 edition, at 31, that the new code of laws put forward by King George Tupou I in 1862 included an "innovation [which] was to make school attendance free and compulsory, thus making Tonga one of the very first states to introduce such a measure". Twenty years later, the Schools Act proclaimed in 1881 had the effect (ibid, 136).

"Attendance at the government schools was to be compulsory for all children between five and sixteen years of age".

Today, government school education is controlled by the provisions of the Education Act of 1974 (Cap. 86). The questions before the Court concern an aspect of that control - the exercise of the power of the Minister administering the Act to suspend a pupil on disciplinary grounds.

It is necessary to give a summary account of the circumstances. The Principal of Tonga High School, Mrs Maka, the second respondent to the first appeal and the second appellant in the second appeal, received information on 22^nd June 1998 that several young girls, who were pupils, had been drinking alcoholic liquor (a mixture containing rum), at the school and in uniform, on Friday 12 June 1998. One of these young girls was Salome Tukuafu, aged 14, who is the appellant (by her next friend, her father) in the first appeal, and the respondent to the second. The others were of a like age. If the information was correct, a serious infraction had occurred of the school rules, clause 7 of which provides (inter alia):

"No smoking of tobacco, drugs or consumption of liquor or drugs permitted."

The school rules also provide, by cls. 1 and 3:

"1. It is the sole responsibility of the school to protect its good name. Every student's conduct must be at a standard of which the school must be proud. Students must do their best at all times. After a probationary period it is within the power of the Ministry of Education to direct whether a student is to continue on with his studies in this school or that be transferred to another school.

3. This [the rule is headed "DISCIPLINE and PUNISHMENT"] is to be at the discretion of the Principal..."

Mrs Maka instituted inquiries. She interviewed Salome and another girl particularly implicated in the matter, Latu Taufateau, as well as a number of students who gave information. At a first interview, Salome denied drinking liquor on the occasion in question. But after Latu had admitted putting rum in the bottle from which she, Salome and d third girl, Kelela Tu'ivailala, had drunk, a fourth girl, Nina Tupou, having taken a sip but spat it out, Salome returned to the Principal's office the next day in tears and acknowledged her involvement in the drinking. But she claimed she did not know that Latu had added alcohol to the drink.

After consulting the Deputy Director of Education, who expressed the view that, to be effective, any punishment should be immediate (the practice is that, for serious offences such as drinking alcohol, a suspension is usually immediate), Mrs Maka decided on Monday 29 June that Salome should be suspended for a period from the school. As the Principal of a high school at which Salome was an outstanding student academically of her age, there is no reason to doubt that Mrs Maka had considered the matter with anxious care. Inquiries had been conducted for a week, the allegations had been put to Salome for her response on two occasions, and now Mrs Maka telephoned Salome's mother to inform her of the impending decision, which was based on the conclusion that Salome had knowingly participated in a very serious breach or the school rules.

Later the same morning, Salome's father asked to see the Principal and also to talk to the students involved. Mrs Maka agreed to this. The father began to question the students, making it clear he "would go to court if necessary". In response to his questions, Latu said Salome did not know there was alcohol in the drink and, whereas previously she had said Salome was afterwards sick in the toilet, now she denied having said so. Other students did not repeat what they had previously told the Principal. Salome's father asserted his belief that his daughter drank the alcoholic drink unknowingly, and told Mrs Maka (as she swore her affidavit) that she "should make further investigations before letting him know of the decision."

Mrs Maka did make further investigations, which satisfied her that what she had originally concluded was in fact correct that Salome "did drink and she did it knowingly". On 6 July, four written statements were received from students, three of which set out clear evidence of Salome's knowledge that the drink was alcoholic. Accordingly, Mrs Maka wrote on 9 July a letter to Salome's parents advising them of her decision to suspend Salome "for a period of 3 weeks effective from 13 July 1998". The letter continued:

"Strong and compelling evidence points out that not only your daughter did consume alcohol on Friday 12 June 1998, in school uniform and at school, but that she did this knowingly. This is a serious breach of Clause 7 of the School Regulations and a Category A offence (usually punishable by suspension) under the school rules.

I regret this most unfortunate news and the delay in the decision taken but I had to ensure that my decision is fair and just."

Two of the other students were also suspended, one for 3 weeks and the second indefinitely, pending a decision whether she should be dismissed from the school, as she was a repeat offender.

By mischance, the letter, sent to the work address of Salome's mother was not received before 13 July. However, on that day, Salome's father, being told, called on Mrs Maka and was shown the statements. He said he would take the matter to court.

On the same day, the Principal informed the Deputy Director of Education of her decision to suspend Salome, and on 15 July (two days later), she received his endorsement by telephone. In due course, it was confirmed in writing on 21 July.

The period of the suspension has, of course, long expired, and that cannot now be undone; but what Salome seeks by her appeal is effectively a declaration that the suspension was invalid as being ultra vires, or that the decision to impose it was made in breach of the rules of natural justice: cf. Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582, 597; but see also Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 430. The trial judge's finding was that there was no denial of natural justice, and although he considered the Principal lacked power to suspend d pupil, he did not exercise his discretion to make any declaration. He did, however, make an order for costs against Mrs Maka. The Kingdom of Tonga and Mrs Maka, by their appeal, challenge the conclusion that the decision was ultra vires, and the costs order.

As to the issue of ultra vires, the argument put on behalf of Salome was that the power to suspend a pupil was not conferred upon the Principal, but upon the Minister of Education or his delegate. Although the Education Act contains (in s.2) a definition of "principal teacher" as meaning "in relation to any school, the teacher in charge of the school", s.18 provides:

"(1) The Minister shall have control within the provisions of this Act of all government schools...

(2) Subject to any regulations made under this Act the Minister shall appoint, transfer, suspend or dismiss teachers on the staff of Government schools and shall admit, transfer, suspend or dismiss pupils in government schools."

When s.18 is read, regard should be had to the definition of "control" in s.2 as meaning "in relation to an any school the management thereof in accordance with the provisions of this Act."

The fundamental question is one of construction. When s.18(1) gives the Minister "control", in the defined sense of "management", of government schools, which have principal teachers who are "in charge" of them, does ??????????????????????? personally in all government schools throughout Tonga, from 'Eua to Niuafo'ou? It is worth noting that the subsection does not make separate provision for suspension or even for dismissal, but includes them in the one collocation of words with admission and transfer. The alternative view would see these powers as devolving from the Minister, in accordance with the practice established in his department, to sufficiently senior officers, such as the Principal in charge of a school, who act on the Minister's behalf. The practice evidenced in this case would require a Principal, although deciding for the Minister in the first instance, thereafter promptly to submit a matter as serious as a suspension to a delegate of the power for confirmation. The Deputy Director of Education is such a delegate.

A line of authority has developed in England which supports a construction of statutory powers of this kind as permitting a devolution to agents of the Minister. Such a devolution is to be distinguished from a delegation. When a delegate exercises a power delegated to him, it is his act. But when the Minister exercises a power through an officer as his agent, and not personally, the act remains that of the Minister. The principle by which a statutory power may be so understood is to be traced back to the decision of the Court of Appeal in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, and has been elaborated in Lewisham Metropolitan Borough and Town Clerk v Roberts [1949] 2 KB 608 and In re Golden Chemical Products Ltd [1976] Ch. 300. The rule laid down by these cases was stated by Denning L.J. in Lewisham Metropolitan Borough and Town Clerk v Roberts at 621, as follows:

"Now I take it to be quite plain that when a Minister is entrusted with administrative, as distinct from legislative, function she is entitled to act by any authorised official of his department. The Minister is not bound to give his mind to the matter personally. That is implicit in the modern machinery of government."

These English decisions have been considered by the High Court of Australia in O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1992) 153 CLR 1. There, a power was conferred on the Commissioner of Taxation, the exercise of which could have a serious impact on individuals. There was express provision for delegation, and the power was delegated to Deputy Commissioners. Nevertheless, the majority of the High Court held the power could also be exercised by the Commissioner, not personally, but through a properly authorised officer not being a delegate. Gibbs CJ (with whom Murphy J agreed) said (at 10) that the question was "simply one of construction". He continued (at 11):

"The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and on all the other circumstances of the case".

After referring to Carltona Ltd and to In re Golden Chemical Products Ltd, he said:

"Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorised officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy .... However they also rest on the recognition that the functions of a Minister are so multifarious that business of government could not be carried on if he were required to exercise all his powers personally."

Wilson J. took a similar view. Mason J. dissented, but not on the basis of any rejection of the English authorities.

We have concluded that section 18 should be construed as permitting the Minister to act through appropriately authorised officers. He is not required to exercise the powers conferred on him by the section personally. In the case of the admission of a pupil to a school, it is obvious that he would not be likely to do so. Normally, the Principal, who is in charge of the school, would admit pupils to it and attend to any appropriate transfer to or from the school. The evidence shows that, on the other hand, responsibility for a dismissal, a very serious matter, is not left with the Principal; a delegate of the Minister makes the decision. A suspension is less severe, but is still a serious matter. The practice, as has been indicated, involves an initial decision by the Principal, prompt imposition of any necessary punishment being important for its effectiveness, followed by a submission of the matter to a delegate of the Minister for confirmation. We think this practice accords with the true construction of section 18, understood in the light of the authorities. It should be emphasized that this conclusion depends on the nature of the power and all the circumstances attending its exercise; a passage we have cited from the judgment of Gibbs CJ in O'Reilly states these broad considerations as the test.

We turn to the issue of natural justice. The appellant Salome says she was denied natural justice when the Principal failed to give either her or her father an opportunity before 13 July to examine the four written statements obtained after the father had questioned those who had provided the original evidence. Nor had the father been permitted to cross-examine once more in relation to these new statements. The circumstances include, of course, that his previous intervention had led to some changes in the versions given by some of the children, changes the Principal apparently did not regard as reflecting genuine corrections of errors. Sensitivity is obviously required towards any suggestion of cross-examination of children by a parent. Several of these children had requested confidentiality. The four statements did not change the essential allegation, which had been clearly put to Salome over two interviews, and to her father, that she had knowingly participated in the drinking of alcoholic liquor at school with certain named girls on an identified occasion. Her explanation had been heard. Her father had told the Principal that she "should make further investigations before letting him know of the decision", not that he or his daughter wished to have yet another interview. In Ainsworth v Criminal Justice Commission at 578, Mason CJ Dawson Toohey and Gaudron JJ said:

"It is not in doubt that, where a decision - making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness' (South. Australia v O'Shea (1987), 163 C.L.R. 378, at p.389, per Mason C.J)."

Of course, there are many situations where the principle of natural justice, which is a principle of fairness, requires quite detailed information to be furnished to a person who may be affected by a decision, and may even, perhaps, require the provision of an opportunity to have a full hearing. But, as Kitto J pointed out in Mobil Oil Australia Proprietary Limited v The Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504, "fairness is not a one-sided business"; the "interests of other people" must also be considered. In the present case, that included the interests of the children who had requested confidentiality, and of the morale of the school which should not be disturbed, over such a matter, by the deployment of anything like the full panoply of the procedures of litigation between adults.

In determining whether the opportunity to meet the allegation, which had been given to Salome, was sufficient to satisfy the rules of natural justice, the Court should consider the principles expounded by Kitto J in Mobil Oil at 503-504:

"[N]otwithstanding what Lord Loreburn said in Board of Education v Rice [1911] UKLawRpAC 18; [1911] A.C. 179 about 'always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view' ([1911] A.C., at p. 182), the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter: cf Ridge v Baldwin [1963] UKHL 2; [1963] 2 WLR 935, at p947. As Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109, in a passage approved by the Privy Council in University of Ceylon v Fernando [1960] 1 All ER. 631, at p. 637, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth" ([1949]1 All ER, at p.118). What the law requires in the discharge, of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. And it is not a one-sided business. What is a fair opportunity to allow the taxpayer in a given case is a question which by its very nature forbids an answer in disregard of the interests of other people."

Having regard to these considerations, it is impossible to disagree with the view of the trial judge that the requirements of natural justice were fully met in the circumstances of this case. Natural justice called for a clear statement to Salome of what she was alleged to have done; and that she was given. It called for an opportunity to be given to her to state whether she had done what was alleged, and to make explanation; and that opportunity she had. It did not in the circumstances call for her to be shown the four written statements, or to have something in the nature of a farther hearing on top of the interviews in which she and her father had been involved. Salome's appeal must fail.

Accordingly, the appeal by Salome is dismissed; the appeal by the Kingdom of Tonga and Mrs Maka is allowed; the application to the Supreme Court is dismissed, and the costs order made below is set aside, and in lieu thereof it is ordered that the costs of the proceeding below be paid by Salome's next friend, Samuela Tukuafu; and the costs of the appeal are also ordered to be paid by Samuela Tukuafu.

Burchett J
Tompkins J
Beaumont J