I read David Farrar's post on the secrecy with which the New Zealand Teachers Council Disciplinary Tribunal conducts its hearings, and, like David, was disturbed with what I read in Kathryn Powley's Herald on Sunday article. The Teachers Council Disciplinary Tribunal doesn't just claim a power to suppress sensitive information, but rather has rules which automatically suppress all information, instead allowing people to seek official permission before publishing particular information.
David observed that "...the rule should be repealed or amended. If the Council won’t do so, then the enabling legislation should be amended."
My first thought was to comment in agreement with his general observation: secrecy should not be the default position. My second, to point out that his proposed solution of amending the enabling legislation was excessive, when you could just ask Parliament to vote to disallow, or amend the rule - it's the rule, not the primary legislation, that is the problem.
My third thought is the basis of this post. If I think the rule is fundamentally misguided, and that it limits freedom of expression in an unreasonable, unjustifiable way, why don't I do something about it, instead of just talking away to no-one in particular on the Internet?
So instead of just writing a blog post, what follows below is a complaint I sent to Parliament's Regulations Review Committee yesterday evening.
Any member of Parliament can move a motion to amend, or disallow a regulation, but the Regulations Review Committee is empowered to inquire into subordinate legislation, and a successful complaint to that Committee is a good way to get the rest of Parliament to take notice of your concerns. It operates on a more consensual basis than ordinary select committees, but the individual members of the Committee (currently three National and two Labour), have a special power that other members of Parliament don't have. If one of them moves a motion of disallowance, the House has to vote on it, or the motion succeeds.
I make a lot of submissions to select committees, but this is my first complaint about a regulation. I hope it doesn't need to go far. This seems like an obvious case to me, so my hope is that the Teachers Council will realise its position is untenable, and adopt amendments to its rules more in keeping with freedom of expression.
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The Regulations Review Committee
Complaint about New Zealand Teachers Council (Conduct) Rules 2004
Submission of Graeme Edgeler
Introduction
I am concerned about rule 32 of the New Zealand Teachers Council (Conduct) Rules 2004 (SR 2004/143), which has recently come to my attention.
This complaint is from Graeme Edgeler. I am a Wellington barrister with a strong interest in constitutional law, including free speech issues, and open justice.
I would like to appear before the Committee to speak to my complaint. I anticipate other organisations (including organisations such as Media Freedom Committee of the Commonwealth Press Union) will also be interested in matters I raise below.
I have provided contact details to the Committee in my covering email.
Overview
My complaint is principally concerned with rule 32 of the New Zealand Teachers Council (Conduct) Rules 2004, but also touches upon rules 31 and 33. These rules concern the secrecy of proceedings of the Disciplinary Tribunal of the New Zealand Teachers Council, and in effect, impose blanket suppression on teachers’ disciplinary matters, following the holding of secret hearings. Rule 32(1) provides that
32 Publication of proceedings
(1) Except as provided in subclause (2) or as ordered under rule 33(1)(b), (c), or (d),—
(a) no person may publish any report or account of a hearing; and
(b) no person may publish any part of any document, record, or other information produced at a hearing; and
(c) no person may publish the name, or any particulars of the affairs, of any party or witness at a hearing.
I consider that the rule 32:
- Involves an unusual or unexpected use of regulation making powers;
- Contains matters more appropriate for Parliamentary enactment; and
- Unduly trespasses on freedom of expression.
I recommend that the Committee Investigate the New Zealand Teachers Council (Conduct) Rules 2004, and consider recommending to the House that it either disallow rule 32 under s 5 of the Regulations (Disallowance) Act, or that amend any or all of rules 31-33 under s 5 of the Regulations (Disallowance) Act to better provide for freedom of expression. The Committee may also wish to invite the Teachers Council to adopt its own amendments to avoid the necessity for a more formal response.
Jurisdiction of the Regulations Review Committee
The New Zealand Teachers Council (Conduct) Rules 2004 are rules adopted by the New Zealand Teachers Council under powers given to it by section 139AJ of the Education Act 1989. The rules are declared to be regulations for the purposes of the Regulations (Disallowance) Act 1989, under s 139AJ(5). This gives this Committee jurisdiction to investigate these rules.
Rule 32 Involves an Unusual or Unexpected Use of Regulation Making Powers
The power under which the New Zealand Teachers Council has adopted rule 32 is s 139AJ(1)(d), which empowers the Council to make rules providing for “the practices and procedures of the disciplinary bodies”.
It has used this power in a way that does not principally affect the Disciplinary Tribunal itself, but affects the world at large, by forbidding not merely those involved in its processed, but everyone else as well, from publishing reports or accounts of proceedings.
I do not consider that Parliament would have intended that a power to set up a Disciplinary Tribunal, and to provide rules regulating it, would incorporate a power to regulate the news media, which is the principal effect of the rule that has been adopted. This is especially so when the rule-making power is not one that is exercised by, for example, the Governor-General-in-Council, but by the New Zealand Teachers Council.
The offence provision provided in section 139ZA(2) of the Education Act 1989 is clearly predicated on the assumption that any rules should at most provide for orders suppressing particular information, not rules forbidding the publication of all information to which exceptions can be made.
In adopting rules 31-33 of the New Zealand Teachers Council (Conduct) Rules 2004, the Teachers Council has created a disciplinary process that is both private and secret unless expressly ordered to be public by the Disciplinary Tribunal itself. This is contrary to the usual approach that such matters are public unless there is good reason to make them private. Had Parliament intended the rule making power to be used in contravention of the usual practice, it would have been explicit in doing so.
Rule 32 Contains Matters More Appropriate for Parliamentary Enactment
Parliament has created disciplinary bodies across a range of professions. In respect of the major comparators with the teaching profession, Parliament itself has legislated for suppression powers, and powers to exclude the public from hearings in primary legislation.
The two obvious examples of professional discipline for which Parliament has legislated are health professionals and lawyers. The disciplinary tribunals for both of these groups of professionals hold public hearings, but are empowered to close hearing (or suppress names and evidence) where necessary.
In using its general rule making powers in the way it has, the Teachers Council has taken for itself powers not granted to it by Parliament – powers which Parliament has historically guarded. Parliament has not given the Teachers Council the power to regulate the news media, and the Council should not claim that power for itself.
On other occasions, when Parliament has sought to create some restrictions on the news media in the context of disciplinary proceedings, Parliament itself has done it, and done so sparingly. The excessively wide effect of rule 32 can be contrasted, for example, with section 148(2) of the Lawyers and Conveyancers Act. That section prohibits improper disclosure by members or staff of Standards Committees of certain information held by those committees. Even Parliament did not see fit to create a rule that applies to everyone else as well.
Rule 32 Unduly Trespasses on Freedom of Expression
Starting from the point that all hearings of the Disciplinary Tribunal should be secret, and that it should be illegal to publish reports of its hearings, and its decisions, without express permission, goes against decades of increasing openness in government, and greater and greater respect for freedom of expression, and the public right to know. Particularly since we adopted the Official Information Act and the New Zealand Bill of Rights Act, the trend toward greater openness in public affairs has continued. Rule 32 of the New Zealand Teachers Council (Conduct) Rules are a notable and disappointing exception.
There are clearly occasions where we would want the Teachers Council Disciplinary Tribunal to keep certain information from public currency: information leading to identification of victims of abuse is an obvious example. But these specific examples should be the exception, not the rule. They are not a good enough reason to presumptively suppress all information.
The procedures we have put in place in the health sector are instructive. There is little that is more private than information about one’s health, yet the procedures of the Health Practitioners Disciplinary Tribunal still provide for a presumption of openness, with information suppressed only when it needs to be.
Blanket suppression orders are concerning enough, but blanket suppression rules are anathema to principles of open justice, and freedom of expression that our society recognises are of vital importance.
Recent changes to our suppression laws in respect of criminal cases have shown Parliament’s strong support for openness, and its recognition that if information is to be suppressed, that suppression needs to be reasoned, and as narrow as possible to achieve whatever purpose is considered proper.
There is simply no reasonable justification for a rule that presumptively prohibits the publication of all information in respect of teachers’ disciplinary proceedings, no matter how innocuous that information is. People should not need to seek official permission before being permitted to publish such information. If particular information – or the names of particular witnesses – is sensitive, it would appropriate for there to be a suppression power which enables that information to be kept out of the public arena, but the New Zealand Teachers Council (Conduct) Rules go far beyond what is required, or reasonable. In their current form, they clearly represent an unreasonable limitation on freedom of expression.
Recommendations
My concern is with the excessive scope of the restrictions on publication and openness that the New Zealand Teachers Council (Conduct) Rules currently impose. The mechanism by which this is fixed is not particularly concerning. I consider it would be appropriate for the offending provisions of the rules to be disallowed, but an amendment (whether adopted by the Teachers Council, or by Parliament) that better reflects community expectations of openness and freedom of expression would be an equally satisfactory result.
If the Committee considers public hearings will assist it, I look forward to appearing before the Committee to discuss this matter further.