Norah Mairi (an Infant by her next friend Mairi–Mairi) v Alkan Tololo, as Secretary for Education and Chairman of the National Education Board, The National Education Board, Ross Furey Devere as Chairman of the Board of Governors, Port Moresby High School and Lloyd Willington (No 2) [1976] PNGLR 125

• Jurisdiction: Papua New Guinea
• Judge: Prentice DCJ and Williams J:
• Judgment Date: 15 April 1976
• Court: Supreme Court
• Citation: [1976] PNGLR 125
• Year: 1976
• Judgement Number: SC94

Full Title: Norah Mairi (an Infant by her next friend Mairi-Mairi) v Alkan Tololo, as Secretary for Education and Chairman of the National Education Board, The National Education Board, Ross Furey Devere as Chairman of the Board of Governors, Port Moresby High School and Lloyd Willington (No 2) [1976] PNGLR 125

Supreme Court: Frost CJ, Prentice DCJ, Williams J

Judgment Delivered: 15 April 1976

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 — Education Act 1970 s. 96

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.

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 — Education Act 1972 s. 19 (1) (i), s. 96 — Teaching Service Act 1972 — Teaching Service (Auxiliary Members) Act 1974, s. 18

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

(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.

(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.

(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".

(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 statustype 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...