An Attorney-General's Report that says a Government-supported Bill is an unjustifiable restriction on freedom of expression, claims of a ban on the phrase "ballet teacher", none of which turns out to be that exciting after all (probably).
First they came for the charter school ‘teachers’, and I did not speak out ... because honestly I don’t have a strong opinion on the whole charter school thing
Then they came for the ballet teachers …
Hold on a second, they’re coming for the ballet teachers?
At least, that’s what I’ve been led to believe, given recent news coverage of the Education (Protecting Teacher Title) Amendment Bill, which the Labour-led Government is supporting. National MPs have been sharing images on Facebook that suggest that use of phrases like “Arts Teacher”, “Ballet Teacher”, and “Music Teacher” might result in a $2,000 fine. As a law teacher, this worries me a bit.
So, I thought I better have a closer look at what’s going on, although unfortunately the opportunity to make submissions has already passed. What really piqued my interest in this case is that, as it turns out, the Attorney-General’s New Zealand Bill of Rights Act Report on the Bill concluded that the measure limited the rights enshrined in our Bill of Rights Act in an unjustifiable fashion.
When the senior law officer (and cabinet minister) charged with considering whether legislation conflicts with basic human rights protected by law says that a Government-supported Bill does exactly that, it should be kind of a big deal. Another notable time when the Attorney-General said a Bill was inconsistent with our human rights law is when Parliament decided to ban prisoners from voting. In case you don’t know how that worked out, the High Court - for the first time ever - issued a declaration stating that the law was an unjustifiable restriction on the right to vote. This case recently made it all the way to the Supreme Court.
I should probably mention that my expertise is more in contract law than human rights law. However, I’m interested in legal interpretation issues, which turn out to be relevant here. I’ll set out the relevant parts of the Bill, then walk you through the Attorney-General’s reasoning, before moving onto my own commentary.
If the Bill were passed into law, it would become an offence punishable by a fine of up to $2,000 whenever any person (which includes legal persons like businesses):
not being a qualified and registered teacher, uses or permits to be used, in connection with the person’s name or business, the words “teacher”, or any words or initials intended or likely to make any other person believe that the person is a qualified and registered teacher
Currently, the Education Act 1989 makes it an offence to use the term “registered teacher” in such a way. The Bill changes this provision to “teacher” and also defines “qualified teacher” as someone who has a 3-year Bachelor of Education, Bachelor’s degree and 1-year Graduate Diploma of Teaching, or 4-year conjoint degree that combines study in teaching subjects with teacher training.
The Explanatory Note attached to the Bill expressly links the Bill to Charter Schools, and suggests that:
There are occasions when the perception by the public, particularly with the introduction of Charter Schools, may be unclear as to whether the titles being used by individuals means that person is adequately qualified for them to have confidence in their professional judgement and practice.
The Attorney-General’s Report
The argument in the Attorney-General’s Report is pretty straight forward (and pretty much follows the standard pattern for Bill of Rights Act analysis):
- The Bill’s effect is to prevent individuals from lawfully describing themselves as a “teacher” unless they are qualified and registered in terms of the Act;
- In doing so, the Bill infringes on the individual right to freedom of expression;
- That limit on freedom of expression does serve an important purpose: lifting the status of duly qualified teachers by preventing people who are not qualified from calling themselves “teachers”;
- However, the limit on freedom of expression is not justified, because the Education Act already provides some protection for registered teachers, and the Bill limits the freedom of expression of a wider group of people than required to meet that purpose, and the limitation on freedom of expression is not proportional to that purpose.
I think we can question the assessment that “[t]he Bill’s effect is to prevent individuals from lawfully describing themselves as a “teacher” unless they are qualified and registered under the principal”, because I do not think that the pivotal provision must be read that way.
For the Attorney-General’s analysis to be correct, we have to read the Bill as saying that an offence is committed when:
- a person is not a registered or qualified teacher; and
- that person uses in connection with their name or business the word ‘teacher’; or
- uses in connection with their name or business any other words or initials intended or likely to make any other person believe that the person is a qualified or registered teacher.
However, it seems me quite possible that the intention is to create an offence only when:
- a person is not a registered or qualified teacher;
- that persons uses in connection with their name or business the word ‘teacher’ or other words or initials;
- the use of 'teacher' or other words or initials are intended to, or likely to, make any other person believe that the person is a qualified and registered teacher
The difference is whether the “intended to or likely to make any other person believe that the person is a qualified and registered teacher” applies both to ‘teacher’ and 'other words or initials', or just the latter.
The Attorney-General’s Report says that:
[T]here are numerous people who legitimately use the title “teacher” to earn their livelihoods. Indeed, the natural reading ... would also prevent any businesses using the word “teacher” in their title – for instance if they were selling teacher supplies.
I agree with the first sentence – people who are not registered or qualified teachers do legitimately advertise themselves as “ballet teachers”, “speech and drama teachers” and so on. I think that the Attorney-General is right that a plain meaning-type approach does bar that usage, based on the way that the provision is written.
But, reading law isn’t just about plain meaning, and the way courts read statute law is an important check on Parliament in our system. Two important principles of statutory interpretation are that courts can move away from a plain meaning reading of a law if there’s another reading that: (i) is more consistent with the Bill of Rights Act; and (ii) does not produce an absurd outcome.
I think both principles are engaged in this case. I agree with the Attorney-General that preventing people from describing themselves as ‘teachers’ unless they are qualified and registered is an unjustifiable breach of the right to freedom of expression. I think that regulating established everyday use of the word ‘teacher’ is absurd. So, I think that, if the Bill were to be passed into law as is (which I doubt, because the clause can be worded more clearly one way or the other), the Courts would probably not give the law the effect that the Attorney-General’s Report assumes.
This Bill is a Member’s Bill From New Zealand First MP Jenny Marcroft, which was drawn from the ballot and is now being supported by the Government. I don’t know the details of exactly where the wording came from. Private Members’ Bills are not always precisely worded or fully-thought-out. Perhaps there’s really a group of teachers that want to wrest control of the word ‘teacher’ from the public at large, and it’s just too bad for ballet teachers. But, perhaps, the goal here was never meant to be so wide-ranging, and this is an error of expression rather than intention. The Explanatory Note does not make things clear one way or the other.
In short - no, they’re probably not coming for the ballet teachers. Yes, they are still coming for the charter school ‘teachers’.
The Attorney-General’s conclusion is sound – but only for one reading of the Bill, and there’s a more sane one available, which is what I’m expecting the Bill will probably get amended to reflect. Regardless of the precise origin of the wording of the Bill and the writers’ intentions, the parliamentary and judicial processes should conspire to produce a rights-consistent outcome one way or the other.
Despite the adverse Attorney-General’s report, the chance that this law leads to another ground-breaking declaration is pretty much zero.