Australian Education Union (SA Branch) v The Chief Executive Department of Education & Children's Services
[2007] SASC 458
•21 December 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
AUSTRALIAN EDUCATION UNION (SA BRANCH) & ORS v THE CHIEF EXECUTIVE DEPARTMENT OF EDUCATION & CHILDREN'S SERVICES
[2007] SASC 458
Judgment of The Honourable Justice White
21 December 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EVIDENCE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY
Application for judical review of a direction issued by the Acting Chief Executive of the Department of Education and Children's Services concerning the method of reporting of students' progress to parents - whether direction unlawful - whether Chief Executive has power to issue directions with regard to reporting methods - whether duties imposed on teachers by Regulation displaced powers of the Chief Executive.
Held: The Chief Executive had power to issue the direction - application for judicial review dismissed.
Education Act 1972 s 6, s 7, s 9, s 12, s 15A, s 83, s 84, s 101B, s 107; Education Regulations 1997 reg 37, reg 48, reg 115; Fair Work Act 1994 .; Statutes Amendment (Public Sector Management) Act 2006 s 30, referred to.
Police & The State of South Australia v Lymberopoulos & Ors [2007] SASC 247; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Bradbury v Enfield London Borough Council [1967] 1 WLR 1311, applied.
Ramsay v Larsen (1964) 111 CLR 16; Morton v Union Steamship Co of New Zealand (1951) 83 CLR 402, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"answerable to"
AUSTRALIAN EDUCATION UNION (SA BRANCH) & ORS v THE CHIEF EXECUTIVE DEPARTMENT OF EDUCATION & CHILDREN'S SERVICES
[2007] SASC 458Civil
WHITE J: On 24 August 2006, the Acting Chief Executive of the Department of Education and Children’s Services (DECS) issued a written direction concerning the manner in which Government schools are to report to parents on students’ performance (the Reporting Direction). That Direction was issued to District Directors, School principals and to all School staff.
The Reporting Direction indicated on its face that it was issued to satisfy a condition imposed by the Australian Government in relation to its provision of education funding.
The plaintiffs challenge the validity of the Reporting Direction and seek judicial review of it. The first plaintiff is the Australian Education Union – SA Branch (AEU). As I understand it, it is a registered association of employees under the Fair Work Act 1994 (SA). Its members include principals and teachers in Government schools. The remaining plaintiffs are either principals or teachers in Government schools.
The statement of claim indicates that the plaintiffs seek an order in the nature of a writ of prohibition in respect of the Reporting Direction. In the alternative, they seek a declaration that the Reporting Direction is unlawful and need not be obeyed by those persons to whom it is directed. At the hearing, Mr Durkin, who appeared for the plaintiffs, indicated that the plaintiffs now seek the declaration only.
Although the plaintiffs advanced the claim of invalidity in a number of ways, the issues raised on the application are, in my opinion, to be determined principally by a consideration of the responsibilities and powers of the Minister for Education and Children’s Services (the Minister).
The Terms of the Reporting Direction
I set out the substantive part of the Reporting Direction in full.
TO: DISTRICT DIRECTORS, PRINCIPALS AND SCHOOL STAFF
RE: SOUTH AUSTRALIAN NEW STUDENT REPORTS
Following earlier advice to you in January and May this year I am now able to provide you with further direction regarding the legislative requirement under the Australian Government’s National Education Framework for Schools concerning student reports. The Australian Government requires all schools to use a new reporting format to parents and caregivers that explains, in plain English, their child’s achievement in relation to learning areas. Education funding provided by the Australian Government to States and Territories is conditional upon the implementation of the new reports.
Negotiations have now been finalised between the Minister for Education and Children’s Services and the Minister for Education, Science and Training regarding the implementation of the new Student Reports in South Australia for term 4, 2006 and beyond.
All schools must fully implement the new reporting requirements from term 4, 2006 as outlined below.
Primary Years
·The Minister for Education, Science and Training, the Hon Julie Bishop, has approved the use of 5 point “equivalent” levels as an alternative to 5 point A-E achievement levels in order to report to parents in the primary years.
·Primary schools therefore are offered a choice in their reporting formats for students in years 1 – 7; they may choose to use achievement levels A-E or the 5 point equivalent scale indicated below.
·Reception students are exempt from the reporting requirement as negotiated by Minister Lomax-Smith.
·The only wording approved by the Australian Government for use in the primary years is the following:
Excellent achievement beyond what is expected at this year level
Good achievement of what is expected at this year level
Satisfactory achievement of what is expected at this year level
Partial achievement of what is expected at this year levelMinimal achievement of what is expected at this year level
·The Australian Government further requires that it is necessary to indicate, on each student’s report, that the full five point scale outlined above, equates to the achievement levels A-E so that parents can understand clearly their child’s progress.
Secondary Years
·Secondary schools are required to use the achievement levels A-E to describe student achievement for years 8-10 in their reports to parents.
All Schools
Schools with more than 10 students in a particular year level are obliged to prepare information that shows the number of students in each of the 5 achievement levels in each year level so that parents can receive, upon request, comparative information about their child’s progress. Schools must include the following statement in their reports:
‘You can ask the school to provide you with written information that clearly shows your child’s achievements in the subjects studied in comparison to that of other children in the child’s peer group at the school. This information will show you the number of students in each of the 5 achievement levels’.
To maintain the privacy of individual students, schools with 10 or less students in a particular year level will not be required to report relative achievement information in that year level.
Most students with disabilities will receive a new report except where the nature and type of their disability is severe. In these situations, where the SACSA standards and outcomes have been modified for individuals through the Negotiated Education Plan process, these students will not receive new reports showing the required achievement levels. English as a second language students eligible for the ESL New Arrivals Program will not receive the new reports either, as their reports will provide information on their achievement in the intensive English program and be specially developed by their schools.
I wish to also confirm that for the purpose of complying with the Australian Government reporting requirements there must be 2 reports a year that describe student achievement in the manner outlined above. In addition, for DECS schools, student learning achievement for the purposes of reporting to parents will be referenced against the mandated curriculum outcomes and standards in the eight learning areas in the SACSA framework.
…
(signed)
Jan Andrews
A/Chief Executive
24 August 2006The principal effect of the Reporting Direction is to require a particular method of reporting to parents on their children’s progress. Primary schools are now obliged to report to parents using achievement levels numbered A-E or using a five point equivalent scale having “Excellent Achievement” at its uppermost level and “Minimal Achievement” at its lowest. In the secondary years, schools must use the achievement levels A-E to describe student achievement. The full content of the achievement levels A-E was not disclosed in the evidence before me.
The Evidence on the Judicial Review
The evidence received on the judicial review comprised the Reporting Direction and two affidavits of Ms York, a legal practitioner employed by the AEU. I refused to receive additional evidence proffered by the plaintiffs. This comprised affidavits from the five individual plaintiffs, two office holders in the AEU, two members of the academic staff at the University of South Australia, and one psychologist. The subject matter of these affidavits was the merit (or, as the deponents would have it, the absence of merit) of the reporting methodology imposed by the Reporting Direction. I considered the contents of these affidavits to be irrelevant to the issues to be decided on the judicial review.
On a judicial review of an administrative decision, the Court is not concerned with the merit or otherwise of the impugned decision. The Court is concerned only with the lawfulness of the decision, or of the process by which it was made. “A fundamental principle underlying the powers of a court in judicial review proceedings is that the court is enforcing a requirement of legality”.[1] The position appears clearly in the judgment of Brennan J in Attorney-General (NSW) v Quin:[2]
Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive …
The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. …
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[3] [Emphasis added]
In an education context, Lord Denning made the same point in proceedings arising out of the change to a comprehensive system of education in the United Kingdom in the 1960s, when he said:
I pause to say that this is solely a question of law. We are not concerned in this court with the policy of the Minister or of the education authority. Nor have we to consider whether it is a good thing to change from a selective system of education to a comprehensive system. We have only to consider whether the requirements of the law have been fulfilled.[4]
[1] Police & the State of South Australia v Lymberopoulos [2007] SASC 247 at [46] per Doyle CJ.
[2] (1990) 170 CLR 1.
[3] Ibid at 35-6.
[4] Bradbury v Enfield London Borough Council [1967] 1 WLR 1311 at 1320.
In some cases, the distinction between merits and legality can be difficult to draw. However, in the present case, as the question is simply one of the power of the Director-General, which in turn derives from the powers of the Minister, the reservations of the witnesses about the efficacy or wisdom of the new reporting regime are irrelevant. For those reasons I ruled that the additional material tendered by the plaintiffs was irrelevant.
The Submissions of the Plaintiffs
Mr Durkin put the submissions for the plaintiffs in a variety of ways. In his opening, he contended that the power to determine the appropriate reporting regime in a school lay with each individual teacher, and that the exercise of that power could not be made subject to any direction from the Minister or the Director-General. The submission was based on the terms of reg 37 of the Education Regulations 1997 (the Regulations) to which reference will be made later. At this stage of the hearing, the plaintiffs accepted that were it not for reg 37, the Reporting Direction would be valid.
Mr Durkin’s final submissions were to the effect that the Minister and the Director-General have no power at all to issue directions with respect to reporting methodology. In those schools which have a governing council, it is that council which has the power to determine the method of reporting to be applied in that school. If the governing council does not make a relevant determination, it is the head teacher who has that power. If that power is exercised, the individual teachers within the school are obliged to comply with the head teacher’s instruction. In the event that neither the governing council nor the head teacher make a determination, individual teachers may then determine the appropriate reporting method for their students.
Mr Durkin submitted that the method by which the Act grants specific powers to the Minister, namely, by various discrete sections addressing specific subject matters, evinces an intention that the Minister should not have a general “catch-all” power. As there is no specific grant of power to the Minister with respect to the topics of assessment and reporting, it should be inferred that the Minister has no power with respect to those topics and, instead, that the Act intends that power to be exercisable by head teachers and teachers.
In general, Mr Durkin categorised the Minister’s responsibilities under the Act and the Regulations as being administrative and not operational in nature. That being so, it was submitted that the Minister did not have power to issue the Reporting Direction. Hence there could be no valid delegation of that power to the Director-General.
The Powers of the Minister and the Director-General
It is convenient to commence with a consideration of the powers of the Minister as, in general, the powers of the Director-General derive by delegation from the Minister.
The long title to the Education Act 1972 (SA) (the Act) is: “an Act to make proper provision for primary and secondary education in this State; and for other purposes”. Section 6 of the Act provides:
Subject to this Act, the Minister shall have the general administration of this Act and the administration and control of the teaching service.
By s 7(1)(d) the Minister has “the powers, authorities, duties and obligations prescribed by or under this Act”. Section 8 of the Act provides that the Minister may delegate to the Director-General any of his powers, duties, responsibilities and functions under the Act.
In relation to the Director-General, s 12 of the Act provides:
The Director-General –
(a)shall be responsible to the Minister for maintaining a proper standard of efficiency and competency in the teaching service; and
(b)shall have such other powers and perform such other duties as are invested in or imposed upon him under this Act or as he may be directed to exercise or perform by the Minister.
The plaintiff’s submissions did not rest on any alleged absence of, or defect in the, delegation from the Minister to the Director-General or the Acting Director-General. It was accepted that if the Minister had power to issue a direction in terms of the Reporting Direction, then that power had been appropriately delegated. Mr Durkin also accepted that the Acting Chief Executive who issued the Reporting Direction was, for relevant purposes, the Acting Director-General.
Section 9 contains a number of general powers of the Minister. It provides:
(1)The Minister shall establish and maintain such Government schools as may be necessary—
(a) for the provision of primary and secondary education for children whose parents desire that they should receive education at Government schools; and
(b) for the provision of pre-school education (to such an extent as the Minister considers practicable and desirable) for children whose parents desire that they should receive pre-school education at Government schools.
(2)The Minister shall establish and maintain such correspondence schools as he considers necessary or desirable in the public interest.
(3) Subject to Part 2A, the Minister may close or amalgamate Government schools.
(4) The Minister may appoint such officers and employees (in addition to the employees and officers of the Department and the teaching service) as he considers necessary for the proper administration of this Act or for the welfare of the students of any school.[5]
(5)The Minister may establish such institutions and make such other provision as he considers necessary or expedient for the proper education and training of teachers.
(6)The Minister may, subject to this Act, establish and maintain such residences for the accommodation of teachers or students as he considers necessary or desirable for the purposes of this Act.
(7)The Minister may, subject to and in accordance with the Land Acquisition Act 1969, acquire land for the purposes of this Act.
(8)The Minister may, in such manner and to such extent as he thinks fit, provide or arrange for the transport of children to and from any school and may pay the whole or any portion of the cost of transporting children to and from any school.
(9)The Minister may establish any school, college or centre for the purpose of providing technical education or any other kind of education that he considers desirable in the public interest.
(9a)The Minister may provide courses of instruction or other services to students who do not reside in this State.
(10)The Minister may acquire, deal with, or dispose of, real or personal property as he thinks fit.
[5] Sub-section (4) was deleted by s 30 of the Statutes Amendment (Public Sector Employment) Act 2006 which came into force on 1 April 2007. It was substantially re-enacted as s 101B(1). It was not suggested that anything in this case turned on the deletion of s 9(4).
Mr Stanley QC, who appeared for DECS, submitted that the power of the Minister to issue a direction in terms of the Reporting Direction derived from s 6 and s 9(1) of the Act. The effect of s 6 is to vest in the Minister the responsibility of administering the Act so as to provide primary and secondary education in this State. By s 9(1) the Minister is to establish and maintain “schools” as may be necessary for “the provision of primary and secondary education”.
Mr Stanley submitted that the establishment and maintenance of a Government school involved more than the construction of buildings, the supply of equipment and the provision of appropriately trained staff. It extended, amongst other things, to the provision of curriculum, courses of study, the organisation of the teaching and other staff, the implementation of appropriate systems, procedures and practices, and all the other matters necessary or incidental to the provision of appropriate primary and secondary education. Of particular relevance to this case, it included the provision of means of assessment of students’ work and systems for the reporting of their progress to their parents.
Mr Durkin submitted that s 9, as a whole, was concerned with “logistics”. As I understand it, by “logistics” Mr Durkin meant matters such as the purchase of land, the construction of buildings, the provision of equipment and the provision of a necessary staffing complement for a school. It did not include the Minister having any power with respect to courses of study, curriculum, syllabuses or other matters, such as systems, relating to the actual conduct of a school.
It is possible to construe s 9(1) in the limited way for which the plaintiffs contend. There is a sense in which a school can be understood as a physical place, comprising the land, buildings and other infrastructure developed upon it. But in another sense, the word “school” connotes not only a physical place but also the function of teaching and learning which occurs at that place. Hence, the first meaning for the word “school” in the Macquarie Dictionary is “a place or establishment where instruction is given, especially one for children”. In this sense, the word “school” may refer to a teaching and learning environment. It connotes the whole environment in which the process of education occurs, and not the mere bricks, mortar and other infrastructure. Although speaking in a different statutory context, Lord Denning described a school as “an institution which exists independently of the buildings in which it is housed for the time being”.[6]
[6] Bradbury v Enfield London Borough Council [1967] 1 WLR 1311 at 1320.
In s 9, it appears that the word “school” is used with more than one meaning. Hence, the reference in s 9(8) to the transport of children to and from “school” may be understood naturally as a reference to the transport of children to and from a physical place. On the other hand, a “correspondence school” to which s 9(2) refers may not be a physical place at all but instead a method of delivery of education and instruction. It is not altogether uncommon for a word to be used in the one piece of legislation with different meanings.
In my opinion, s 9(1) is to be read as a whole. The Minister is to establish and maintain such Government schools as may be necessary “for the provision of public education”. I see no difficulty in construing s 9(1) to mean that the Minister is to establish and maintain schools in the sense of establishing and maintaining the environment in which the process of education is to occur. The provision of a physical place and appropriate equipment is an important aspect of the provision of that environment but it does not reflect the full extent of the Minister’s obligations.
I am unable to see that any good purpose would be served by construing the Minister’s responsibilities and powers narrowly. If the submissions of the plaintiffs are correct and the responsibility of the Minister is logistical in nature only, the consequences are likely to be significant. Mr Durkin acknowledged that it could mean that there may be as many different systems for reporting to parents as there are schools, and perhaps more, if individual teachers could determine for themselves the reporting method which they will adopt for all or some of their classes. It is likely that the validity or enforceability of a large number of other policies and directions issued by DECS may be questioned. It is likely to involve significant disruption to present day practice in the relationship between DECS and schools.
It is an ordinary and expected incident of the provision of education in a school that there will be some form of assessment of the students. Assessment serves a number of purposes. The assessment of students may take a variety of forms or combination of forms. There is nothing remarkable, in my opinion, in the notion that the general responsibility for the provision of public education will involve some responsibility for proper assessment of students. It is also an ordinary incident of the provision of a course of instruction that there will be a formal reporting to the parents of the children who participate in a course of instruction. It is said that teachers act in loco parentis.[7] It is to be expected that those who act in the place of parents in providing an education should report to the parents on the progress of the children. In my opinion, the assessment and reporting on students progress is an ordinary incident of the provision of primary and secondary education and comes within the power vested in the Minister by s 9(1).
[7] Ramsay v Larsen (1964) 111 CLR 16 at 25 per McTiernan J.
Even if I am wrong in the construction of s 9(1) which I favour, there remains s 6. The Minister has the “general administration” of the Act. I take that to mean that the Minister has the responsibility to implement the Act’s purpose of providing public primary and secondary education. For the reasons given above, such a provision will include systems for assessment and reporting. In addition, the Minister has the control and administration of the teaching service constituted under Pt 3 of the Act. The teaching service comprises those persons with teaching qualifications who are appointed by the Director-General. I do not see any indication that the Minister may not, in the exercise of his control of the teaching service, issue a direction as to the means of performance of the duties of head teachers and teachers. Those directions may extend to a range of specific matters, including the method of reporting.
For these reasons I conclude that the Minister had the power to issue the Reporting Direction. As noted earlier, the delegation of that power, if it existed, was not in issue.
Finally, I note that DECS did not seek to rely upon s 15A of the Act. Section 15A(a) provides that the Director-General may “fix the duties and titles of officers and positions in the teaching service”. It is possible that the Reporting Direction may have issued as part of the function of the Director-General in “fixing” the duties of teachers and head teachers. However as DECS did not seek to support the Reporting Direction by reference to s 15A(a), it is not necessary to consider whether it to provides legislative authority for that direction.
The Role of Governing Councils
Mr Durkin submitted that in those schools which have a governing council, it is that council, and not the Minister or the Director-General, which has the power to prescribe an assessment and reporting regime for that school. As I understood it, the submission was that it could be inferred from the vesting of powers in the governing councils with respect to reporting policy, that the Minister was not to have that power. For this purpose Mr Durkin relied upon s 84 of the Act. Section 83 of the Act provides that each primary and secondary school is to have a school council. Section 84 provides for the constitution of school councils. Section 84(1)(e) provides:
(1)The constitution of a school council must assign a name to the council and contain—
…
(e) in the case of a governing council—provisions stipulating—
(i) that the council is jointly responsible with the head teacher of the school for the governance of the school; and
(ii) that the council is to fulfil the roles specified in the constitution in respect of—
(A) strategic planning for the school; and
(B) determining policies for the school; and
(C)determining the application of the total financial resources available to the school; and
(D)presenting operational plans and reports on its operations to the school community and the Minister; and
(iii) that the members are to comply with a code of practice approved by the Minister; and
(iv) that the council is to participate in a scheme for the resolution of disputes between the council and the head teacher; and
…
Mr Durkin emphasised s 84(1)(e)(ii)(B). He submitted that that sub-paragraph indicates that a governing council is to have the responsibility for determining policies for the school, including policies with respect to assessment and reporting.
I am unable to conclude that s 84(1)(e) of the Act indicates that the power to determine policies with respect to assessment and reporting of students’ work is vested in a governing council to the exclusion of the Minister. Section 84 is a provision about the content of the constitution of a school council. It does not provide that the governing council is to have responsibility for certain policies. Instead, it provides that the constitution of a governing council is to have stipulations requiring the council to fulfil the roles specified in the constitution itself. It is for the constitution to specify what those roles will be. They may, or may not, include the formulation of policies for the assessment and reporting within the school.
There will be many schools which have a council, but not a governing council. Section 84(1)(e) will hence have no application to those schools. As already indicated, even if a school has a governing council, its constitution may not provide for it to have any role at all with respect to assessment and reporting policy. Those considerations make it difficult to draw the inference from the content of s 84 that the Minister is to have no function at all with respect to assessment and reporting.
It was not submitted that the Reporting Direction was invalid insofar as it applied in relation to those schools which do have a governing council whose constitutions do specify that they have a role in determining policies.
Regulation 37
A considerable amount of the plaintiff’s submissions rested upon reg 37 of the Regulations.
Regulation 37 appears in Div 6 of Pt 3 of the Regulations. The subject matter of Pt 3 is the teaching service. Division 6 has the heading “Duties of Teachers”. Regulation 37 provides:
Responsibilities of teachers
(1) A head teacher of a school is answerable to the Director-General and—
(a) in the case of a school with a governing council, is jointly responsible with the council for the governance of the school;
(b) in any case, is responsible for—
(i) providing educational leadership in the school;
(ii) the management of the day-to-day operations of the school;
(iii) the welfare and development of the students;
(iv)the establishment and maintenance of a social and educational environment within the school favourable to—
(A) learning; and
(B) acceptable forms of behaviour; and
(C)the development within students of self-control, self-discipline and a respect for other persons and their property;
(v) the provision, and the day-to-day management of the provision, of instruction in the school in accordance with the curriculum determined by the Director-General under Part 7 of the Act;
(vi) ensuring that staff, students and parents are consulted about, and informed of, the disciplinary rules governing students' behaviour both inside and outside the classroom;
(vii) the administration of discipline within the school;
(viii) promoting the continuing professional development of the staff of the school;
(ix) encouraging staff of the school to participate in processes for determining policies for the school and resolving problems;
(x) the conduct of regular staff meetings—
(A) as an integral part of decision making and communication within the school; and
(B) in a manner providing full opportunity for staff involvement;
(xi) keeping the school council informed of relevant educational and other policies;
(xii) fostering community participation in school programs and in educational developments generally;
(xiii) the proper care and safekeeping of school property belonging to the Minister.
(2)A teacher of a school is answerable to the head teacher of the school and is responsible for—
(a) being actively concerned with the welfare and development of the students in the teacher's care;
(b) attending staff meetings (subject to the acceptance of non-attendance on grounds similar to those applying to absence from other teaching duties or for reasons acceptable to the head teacher);
(c) participating in processes for determining school policies and properly implementing those policies;
(d) assisting in the general management of the school as required by the head teacher.
Mr Durkin’s submission emphasised that the head teacher is responsible for the “welfare and development” of students (reg 37(1)(b)(ii)) and that teachers are responsible for “being actively concerned with the welfare and development of the students” in their care (reg 37(2)(a)). He submitted that these prescriptions impose both a duty and discretion upon head teachers and teachers. The duty is to be concerned about students’ welfare and development. The manner of reporting of a student’s progress has the potential, it was said, to impact, favourably or adversely, upon a student’s welfare and development. Regulation 37 requires head teachers and teachers to consider this impact in determining the manner of reporting. Hence it was said to be implicit that head teachers and teachers have a discretion as to the manner of reporting so as to avoid an adverse effect on a student’s development.
Next, it was submitted that neither the Minister nor the Director-General could issue a direction concerning reporting practices which would qualify the discharge of the duty imposed upon head teachers and teachers by reg 37. As the Reporting Direction removed any discretion in head teachers and teachers with respect to reporting on secondary school students, and substantially circumscribed the manner of reporting on primary school students, it was, so it was said, unlawful. Mr Durkin submitted that it was not open to either the Minister of the Director General to issue any direction which conflicted with the professional obligations of head teachers and teachers.
This submission pre-supposes that it is head teachers and teachers, and only head teachers and teachers, who the Act requires to be concerned about the welfare and development of students. Further, the submission assumes that head teachers and teachers have a complete discretion as to the manner of discharge of their duties. Mr Durkin submitted that head teachers and teachers have “an unfettered discretion” with respect to matters bearing upon the welfare and development of students in their care. That unfettered discretion cannot, he said, be “usurped” by the Minister or the Director-General. Mr Durkin went so far as to submit that the Act vests no responsibility with respect to welfare and development of students “of an operational kind” in either the Minister or the Director-General.
In my opinion, the submission based on reg 37 should not be accepted. In the first place, reg 37 is just that: a regulation. It is made under the regulation making power of the Act contained in s 107. As a general proposition, unless there is an express statutory authority to the contrary, regulations made under an Act cannot contradict or qualify the provisions in the enabling Act itself.[8] In the present case, there is no such express authority. This means that reg 37 cannot be construed as removing a responsibility of power vested in the Minister or the Director-General by the Act itself.
[8] Morton v The Union Steamship Company of New Zealand Limited (1951) 83 CLR 402.
Further, it is one thing to say that head teachers and teachers have certain duties. It is another thing to hold that they have an unfettered discretion as to the manner of discharge of those duties. The latter does not follow from the former. There is no inconsistency between a teacher having a responsibility for the welfare and development of the students in the teachers care, and a responsibility to discharge that duty in accordance with directions or policies issued by the head teacher or the Director-General. Regulation 37(2)(c) provides an example. It provides for a duty of a different kind, namely, that teachers are responsible for participating in processes for determining school policies and properly implementing those policies. In my opinion, it cannot sensibly be maintained that individual teachers have an unfettered discretion as to the manner in which they will participate in processes for determining school policies or as to the way in which they will properly implement those policies.
Similarly, there is no inconsistency between a head teacher having responsibility for the welfare and development of students but, at the same time, having to discharge that responsibility in accordance with directions or policies issued by the Director-General. The scope of the discretion of the head teacher with respect to the matters specified in reg 37(1) may be larger than the corresponding discretion of an individual teacher but that is not to say that it is altogether unfettered.
The content of reg 37 indicates that it has two principal purposes: first, to indicate in general terms the duties of head teachers and teachers and, secondly, to impose a hierarchy of accountability. A head teacher has the duties imposed by reg 37(1), and teachers the duties imposed by reg 37(2). Teachers are “answerable to” the head teacher, and the head teacher, in turn, is “answerable to” the Director-General. By ss 6, 8 and 12 of the Act, the Director-General is accountable to the Minister. The notion of being “answerable to” another involves the notion of being “accountable to” – see the Macquarie Dictionary. In the context of reg 37, both counsel also accepted that it includes the notion of being subject to the directions of the head teacher or the Director-General, as the case may be. In my opinion, that is an appropriate understanding of the meaning of the expression “answerable to” in reg 37. This means that reg 37(1) expressly contemplates that a head teacher is subject to the direction of the Director-General and that a teacher is subject to the direction of the head teacher.
Given my conclusion about the Minister’s and Director-General’s powers, this means that a lawful direction can be given by the Director-General to a head teacher about reporting methodology. Regulation 37 does not have the effect for which the plaintiffs contend.
Quite apart from the implications arising from reg 37, reg 48(1) provides expressly for compliance by teachers with Departmental directions. Regulation 48(1) provides:
(1)Teachers are required to comply with these regulations and with such Departmental instructions as are authorised in writing by the Minister or the Director-General.
Mr Durkin accepted that the Reporting Direction came within the description of a Departmental instruction authorised in writing by the Minister or the Director-General. As I understood his submission, he also accepted that reg 48(1) applied to head teachers as well as teachers.
Regulations 48 and 37 should be read together. They are not inconsistent. Regulation 48 serves to confirm, in my opinion, that both head teachers and teachers may be subject to Departmental instructions in the manner of carrying out the specific duties in numerated in reg 37.
I note that neither party sought to invoke reg 115. It is not necessary to consider its application in the present context.
Summary and Conclusion
For the reasons given above, I conclude that the Minister did have power to issue the Reporting Direction. That was a power which could be delegated to the Director-General. No question about the existence or validity of the delegation was raised in this case. The provisions in s 84 concerning the content of the constitution of a governing council do not indicate that it is the governing council of a school which has the responsibility of determining the method of reporting a student’s progress to parents, to the exclusion of the Minister and the Director-General. Further, although reg 37 does specify particular duties of head teachers and teachers, it does not do so in terms excluding altogether the existence of a responsibility in the Minister and the Director-General in relation to the same subject matter. In particular, reg 37 does not vest in head teachers and teachers respectively an unfettered discretion as to the way in which their duties are to be discharged. Each may be subject to appropriate direction from the Director-General in relation to the discharge of those duties. The Reporting Direction is a lawful direction of that kind.
Accordingly, the application for judicial review is dismissed.
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