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Education (Protecting Teacher Title) Amendment Bill (Inconsistent) (Section 14) [2018] NZBORARp 7; Education (Protecting Teacher Title) Amendment Bill (Inconsistent) (29 January 2018)
Last Updated: 18 November 2018
J.4
Report of the
ATTORNEY-GENERAL
under the New Zealand Bill of Rights Act 1990 on the Education (Protecting
Teacher Title) Amendment Bill
Presented to the House of Representatives pursuant to
Section 7 of the New Zealand Bill of Rights Act 1990 and Standing Order 265
of
the Standing Orders of the House of Representatives
- I
have considered whether the Education (Protecting Teacher Title) Amendment Bill
(‘the Bill’) is consistent with the
rights and freedoms affirmed in
the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights
Act’).
- I
have concluded the Bill limits the right to freedom of expression affirmed in s
14 of the Bill of Rights Act and that limit cannot
be justified under s 5 of
that Act.
- As
required by s 7 of the Bill of Rights Act and Standing Order 265, I draw this to
the attention of the House of Representatives.
The Bill
- The
Bill’s expressed intention is to lift the status of teachers by removing
the ability of those who have not gained certain
teaching qualifications to
represent themselves as “teachers” by using that title. The
explanatory note states there
are occasions, particularly with the introduction
of charter schools,1 where it is unclear to the public
whether the titles being used by individuals means those people are adequately
qualified to warrant
confidence in their professional judgement and
practice.
- Currently,
s 374(1)(b) of the Education Act 1989 (‘the Education Act’) makes it
an offence to use the title “registered
teacher”, or any words or
initials that are intended or likely to make another person believe that person
is a registered teacher,
when they are not registered. The Education Act sets
out the criteria for teacher registration, which includes a requirement to be
satisfactorily trained to teach.
- Clause
5 of the Bill replaces s 374(1)(b) of the Education Act to make it an offence
for a person to use or permit to use, in connection
with a person’s name
or business, the word “teacher”, or any words or initials intended
or likely to make any other
person believe that the person is a qualified and
registered teacher, when they are not so qualified or registered.
- Clause
4 of the Bill also defines “qualified” to mean one or more of the
following qualifications:
- a
3-year Bachelor of Education (Teaching);
- a
Bachelor’s degree and a 1-year Graduate Diploma of Teaching;
or
- a
4-year conjoint degree that combines study in teaching subjects with teacher
training.
- The
Bill’s effect is to prevent individuals from lawfully describing
themselves as a “teacher” unless they are qualified
and registered
under the principal Act.
1 Referred to as partnership schools kura
hourua in the Education Act 1989.
Inconsistency with s 14 — Right to freedom of expression
- Section
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek,
receive, and impart information and
opinions of any kind in any form. The freedom of expression is “as wide as
human thought
and imagination”2 and includes any
activity which conveys or attempts to convey a
meaning.3
- The
Bill is intended to provide clarity around the use of the title
“teacher”, to avoid any misunderstanding by the public
about the
qualifications, registration status and professional oversight of those using
the title of teacher. It creates an offence
for individuals to describe
themselves as “teachers” without specific qualifications and
registration.
- The
right to freedom of expression is generally construed as having a wide ambit in
New Zealand, as is the word “teacher”.
Individuals, however
qualified, who represent themselves as teachers (for example, on the basis that
they are sufficiently expert
in a particular subject or subjects to teach
others) are exercising their right to freedom of expression. Therefore, I
consider that
the offence provision in the Bill constitutes a limit on the right
to freedom of expression.
Is the limitation justified under s 5 of the Bill of Rights Act?
- Where
a provision appears to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is demonstrably justified in a free and democratic society under s 5
of the Bill of
Rights Act. The s 5 inquiry may be approached as
follows:4
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
Is the objective sufficiently
important?
- As
I have noted above, the Bill’s expressed intention is to lift the status
of teachers by preventing those who have not gained
certain teaching
qualifications from lawfully using the title “teacher”. The
explanatory note specifically refers to
the potential lack of clarity regarding
teachers in charter schools. The Education Act was amended in 2012 to introduce
charter schools,
and allow such schools to employ
2 Moonen v Film and Literature Board of
Review [1999] NZCA 329; [2000] 2 NZLR 9, (1999) 5 HRNZ 224 (CA) at [15].
3 Irwin Troy Ltd v Attorney-General (Quebec)
[1989] 1 SC 927, 969 – 970 (SCC).
4 Hansen v R [2007] NZSC 7 at [123].
individuals in teaching positions who are not qualified and registered
teachers under that Act. Accordingly, the Bill is intended
to provide clarity
around the use of the title “teacher” to avoid any misunderstanding
by the public, particularly in
charter schools, about the qualifications,
registration status and professional oversight of those using the title of
teacher.
- At
its highest level, the stated objective the Bill serves to address –
ensuring the professional and qualified status of teachers
is recognised –
is important. This recognition helps protect the public and the integrity of the
education system.
- However,
the professional status of registered (and therefore qualified) teachers is
already recognised by the Education Act’s
provisions for registration and
the existing offence under s 374(1)(b). As protections for the registered
teaching profession already
exist, I am not convinced there is a pressing social
objective (to the extent it differs from the objective of the current offence
provision) that is sufficiently important to justify limiting s 14 in the manner
proposed by the Bill.
- If
I were convinced of a pressing social objective for the Bill, I have set out
below why I do not consider the Bill meets subsequent
steps in the s 5 test.
Is there a rational connection between the limit and the
objective?
- I
consider that restricting the use of the title “teacher” to those
with certain qualifications is connected to the objective
of ensuring those who
call themselves teachers in fact do have those qualifications. On balance, I
accept this in turn may assist
to protect the status of teachers.
Is the impairment on the right greater than reasonably
necessary?
- I
do not think the Bill as drafted meets this element of the s 5 test, which seeks
to ensure the relevant right is preserved as much
as possible. By restricting
the title of “teacher” to those who have completed the
qualifications prescribed in the Bill,
the provision limits the freedom of
expression of a wider group of persons than required to meet the Bill’s
objectives.
- There
are a range of people who hold themselves out as “teachers” and
teach in particular subject areas, but are not qualified
and registered under
the Education Act. Such individuals may work outside the general education
system, and in some cases, they may
have obtained specialist teaching
qualifications in their field, such as music, ballet or yoga. The restriction
imposed by the Bill
would impose a significant limit on the ability of these
people, ordinarily thought of as teachers, to conduct their business and
describe themselves as teachers. The likelihood of confusion arising between
teachers who are qualified and registered under the
Education Act and specialist
teachers who do not work in schools is low. I am not satisfied that it is
necessary to limit their ability
to call themselves “teachers” in
order to protect that title within the education system.
- The
current registration system under the Education Act appears to provide adequate
protections to ensure teachers in the general
education system are properly
qualified, registered and subject to professional oversight. If it is unclear to
the public whether
teachers, particularly in charter schools, are adequately qualified, or if
their presence in teaching roles gives the impression they
are qualified and
registered teachers under the Education Act when they are not, there are other
ways of addressing that concern
which would have less impact on the right to
freedom of expression. One such alternative could be to require unqualified
teachers
in teaching positions under the Education Act to disclose that they are
not registered (and therefore not qualified) in accordance
with that Act.
- As
such, I consider the Bill limits s 14 more than is reasonably necessary.
Is the limit in due proportion to the importance of the
objective?
- The
considerations discussed above also support my view that the limit on freedom of
expression is not proportionate to the objective’s
importance.
- Unlike
other protected titles such as “lawyer”, there are numerous people
who legitimately use the title “teacher”
to earn their livelihoods.
Indeed, the natural reading of cl 5 would also prevent any businesses using the
word “teacher”
in their title – for instance if they were
selling teacher supplies. The limit the Bill places on freedom of expression is
significant.
- On
the other hand, as I have indicated above, I consider the Bill’s objective
to be of limited importance. In light of both
the current protections for
“registered teachers”, and the related view that the offence goes
further than required to
achieve the Bill’s stated objectives, I do not
consider that adding extra protections under the Education Act to restrict the
use of the title “teacher” is in due proportion to the objectives of
the Bill (to promote the status of teachers and
to protect the public by
ensuring those holding themselves out as such have specified
qualifications).
- Accordingly,
I do not consider the limitation placed on freedom of expression in the Bill is
proportionate to its stated objective.
Conclusion
- For
the above reasons, I have concluded the Bill appears to be inconsistent with s
14 of the Bill of Rights Act and the inconsistency
cannot be justified under s 5
of that Act.
Hon David Parker
Attorney-General
January 2018
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