Australian Education Union v Dept of Education and Children's Services

[2012] HCA 3
(2012) 248 CLR 1
(2012) 285 ALR 27

Australian Education Union
v Dept of Education and Children's Services

Court:
High Court of Australia

Judges: French CJ
Hayne J
Heydon J
Kiefel J
Bell J

Judgment date: 29 February 2012

Order

1. The Chief Executive, Department of Premier and Cabinet of South Australia be substituted as respondent for the Department of Education and Children's Services in the proceedings in this court, in the Full Court of the Supreme Court of South Australia and in the Industrial Relations Court of South Australia.

2. Appeal allowed.

3. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 28 May 2010 and, in their place, order that:

(a)
the appeal be allowed;
(b)
the order of the Full Court of the Industrial Relations Court of South Australia be varied so as to answer question 1 as follows:
Question 1 -- Did s 9(4) of the Education Act 1972 (SA), at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did s 15 of the Act provide exclusively for the appointment of teachers?
Answer -- Section 9(4) of the Education Act 1972 (SA), at the time that it was in force, did not authorise the Minister to appoint officers to be engaged as teachers and s 15 of the Act provided exclusively for the appointment of teachers.
and;
(c)
the matter be remitted to the Full Court of the Industrial Relations Court of South Australia for further consideration of question 2.

4. The respondent, the Chief Executive, Department of Premier and Cabinet of South Australia, pay the appellant's costs in this court and in the Full Court of the Supreme Court of South Australia.

[1]
That subsection was replaced by s 101B(1) of the Act.

[2]
Australian Education Union v Dept of Education and Children's Services (2010) 270 LSJS 47.

[3]
Act, s 6.

[4]
Act, s 9(1).

[5]
Act, s 9(3).

[6]
Act, s 9(5).

[7]
Act, s 9(6).

[8]
Act, s 9(7).

[9]
Act, s 9(8).

[10]
Act, s 9(9).

[11]
The amendment was effected by the Education Act Amendment Act (1986) (SA), s 7.

[12]
The amendment was effected by the Education Act Amendment Act 1986 (SA), s 5.

[13]
Government Management and Employment Act 1985 (SA), s 4 and Pt 3, Div 5 entitled "Employment in the Public Service".

[14]
Act, s 5.

[15]
By operation of the Statutes Amendment (Public Sector Employment) Act 2006 (SA), s 31(2) and (3), the term "the employing authority" was substituted for "the Minister" in s 15(4) and (6) of the Act respectively. That term refers to the Director-General or a person designated for the purpose by proclamation: see Act, s 5 definition of "employing authority". The change occurred after the end of the period relevant to this appeal, being 14 December 1972 to 21 February 2005.

[16]
South Australia, House of Assembly, Parliamentary Debates (Hansard), 15 November 1972 at 3108.

[17]
Act, Div II, ss 16-17.

[18]
Act, Div III, ss 18-24.

[19]
Act, Div IV, s 25.

[20]
Act, s 25(1).

[21]
Act, Div V, ss 26-27.

[22]
Act, Div VI, ss 28-33.

[23]
Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (SA), s 53(b).

[24]
Act, s 37.

[25]
Act, s 45.

[26]
Act, s 49.

[27]
Act, s 26.

[28]
Australian Education Union v Dept of Education and Children's Services [2009] SAIRC 37 at [44] per Jennings SJ and Gilchrist J, [59] per McCusker J.

[29]
Australian Education Union v Dept of Education and Children's Services (2010) 270 LSJS 47.

[30]
Australian Education Union v Dept of Education and Children's Services [2009] SAIRC 37.

[31]
[2009] SAIRC 37 at [39].

[32]
[2009] SAIRC 37 at [40].

[33]
[2009] SAIRC 37 at [41].

[34]
[2009] SAIRC 37 at [41].

[35]
[2009] SAIRC 37 at [57]-[58] citing Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 571 [2] per Gleeson CJ, 592 [70] per Gummow and Hayne JJ; [2006] HCA 50.

[36]
[2009] SAIRC 37 at [59].

[37]
(2010) 270 LSJS 47 at 53 [29].

[38]
(2010) 270 LSJS 47 at 53-54 [30].

[39]
(2010) 270 LSJS 47 at 54 [31]. Gray J also referred at 53 [27]-[28] to obiter observations in Cusack v Parsons (1988) 48 SASR 364 that contract teachers could be appointed under s 9(4) and were often young recently qualified teachers awaiting appointment as officers of the teaching service.

[40]
(2010) 270 LSJS 47 at 54 [32].

[41]
(2010) 270 LSJS 47 at 58 [52].

[42]
[2009] SAIRC 37 at [40] per Jennings SJ and Gilchrist J.

[43]
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J; [1967] HCA 31; Baker v Campbell (1983) 153 CLR 52 at 104 per Brennan J; [1983] HCA 39; Miller v Miller (2011) 242 CLR 446 at 459-460 [29] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 9; Momcilovic v R (2011) 85 ALJR 957 at 1064-1065 [441] per Heydon J; 280 ALR 221 at 349 ; [2011] HCA 34; AB v Western Australia (2011) 85 ALJR 1233 at 1241 [38] ; 281 ALR 694 at 703-704.

[44]
Reference was made to Wheeler v Kelly (1956) 94 CLR 206 at 212 ; [1956] HCA 5 in which the court so construed the words "in addition to" in a quite different statutory setting -- the Crown Lands Consolidation Act 1913-1948 (NSW).

[45]
Act, s 5.

[46]
(1932) 47 CLR 1 ; [1932] HCA 9.

[47]
(1932) 47 CLR 1 at 7-8; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 589 [59] per Gummow and Hayne JJ; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 891 at 907 [50]-[51] per French CJ, 913-914 [84] per Gummow, Hayne, Crennan and Bell JJ, 940 [236] per Kiefel J; 280 ALR 18 at 39-40, 48, 84 ; [2011] HCA 32.

[48]
South Australia, House of Assembly, Parliamentary Debates (Hansard), 15 November 1990 at 1943.

[49]
Gerhardy v Brown (1985) 159 CLR 70 at 104 per Mason J, 111 per Wilson J; [1985] HCA 11; Hoare v R (1989) 167 CLR 348 at 360-361 ; [1989] HCA 33.

[50]
(2003) 214 CLR 318 at 362 [124] ; [2003] HCA 28. See also R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487 per Williams J; [1942] HCA 12; Lockwood v Commonwealth (1954) 90 CLR 177 at 184 per Fullagar J; [1954] HCA 31; Brown v West (1990) 169 CLR 195 at 203 ; [1990] HCA 7; Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 per Brennan J, 469 per McHugh J; [1993] HCA 56; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 618 per Gummow J; [1997] HCA 38; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412 per Black CJ; Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 at 656 [18] per Kiefel J.

[51]
(1988) 48 SASR 364 at 366.

[52]
(1988) 48 SASR 364 at 374.

[53]
(1988) 48 SASR 364 at 375.

[54]
Re Stegall 865 F 2d 140 at 142 (7th Cir 1989) per Judge Posner, Chief Judge Bauer and Judge Coffey agreeing. See also Baker v R [1975] AC 774 at 789.

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