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

[2011] HCATrans 269

[2011] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A4 of 2011

B e t w e e n -

AUSTRALIAN EDUCATION UNION

Appellant

and

DEPARTMENT OF EDUCATION AND CHILDREN’S SERVICES

Respondent

FRENCH CJ
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 28 SEPTEMBER 2011, AT 10.46 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friends, MR M.B. MANETTA and MR A.P. DURKIN, for the appellant.  (instructed by Australian Education Union (SA))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS K. HODDER, for the respondent.  (instructed by the Crown Solicitor (SA))

FRENCH CJ:   Thank you.  Yes, Mr Whitington.

MR WHITINGTON:   We, if the Court pleases, have provided to the court officer a short time ago a copy of our outline of oral argument and we have also provided a schedule of relevant amendments to the Education Act 1972 and, in particular, the amendments to section 5, the definition section, section 9, one of the critical sections, and section 15, the other critical section so that the Court can conveniently, if needs be, track through the way in which those provisions have changed. It is our ultimate submission that the changes do not have any material effect on the nature of the argument that we wish to advance.

There is one other preliminary matter I wanted to raise and that is that we were alerted, when we read the respondent’s submissions, that the respondent takes the view that we have a case of mistaken identity, we have named the wrong respondent and the State is of the view that the correct respondent should be the Chief Executive, Department of Premier and Cabinet.  On the basis of the intimation to that effect in the plaintiff’s submissions, we would seek an order pursuant to rule 21.05 substituting the Chief Executive, Department of Premier and Cabinet for the present respondent.  Of course, that is on the basis that, as we understand it, an answer to the question in issue will have the relevant binding authority within the State.

HAYNE J:   Changing the parties in this Court will not automatically change the parties in the court below.

MR WHITINGTON:   No.

HAYNE J:   Our jurisdiction is to make such order as the court below should have directed to the parties in that court, I would have thought.

MR WHITINGTON:   Yes.

FRENCH CJ:   That would be an order changing the party in the court below, would it not?

MR WHITINGTON:   Ultimately, yes, and I think in this Court first of all, but in the court below as well, and that would take us down, ultimately, to the Industrial Commission and the Industrial Relations Court where the question was stated.

FRENCH CJ:   Is this application opposed?

MR HINTON:   No, your Honour.

FRENCH CJ:   Mr Solicitor, would you accept that if we were to make the order sought now, a consequence of that would be, at least if the appeal is allowed, that it will be necessary to make an order reconstituting the proceedings below in terms of the party?

MR HINTON:   I would accept that, yes, your Honour.

FRENCH CJ:   Is the Department an incorporated entity, by the way?

MR HINTON:   No, it is not.

FRENCH CJ:   No.  It is a very common mistake.

MR HINTON:   That is part of the difficulty.  At all times the proceedings have been argued on the footing that it was the Executive Government generally and we never bothered to actually identify particularly who under the Fair Work ‑ ‑ ‑

HAYNE J:   Do we need now to do so, Mr Solicitor?  I mean, if we need to, we need to, but what are we achieving if we make these orders?

MR HINTON:   Other than being technically correct, nothing.  The Executive Government ‑ ‑ ‑

HAYNE J:   Is there any doubt that the Executive Government will abide the order of this Court?  Obviously not, is there?

MR HINTON:   None at all, your Honour.

FRENCH CJ:   Perhaps it is a matter that we can reserve on, depending on the outcome of the case.

MR HINTON:   If your Honour please.

FRENCH CJ:   Yes, all right.

MR WHITINGTON:   The questions stated for the Full Court of the Industrial Relations Court appear in the appeal book at page 8 and despite the inapposite use of the preposition “to” in the third line, that is the question that was before the Full Court of the Industrial Relations Court and answered by it unanimously.  The second question before the Court is question 2 at page 8, although if the Court turns to the Industrial Relations Court reasons and the reasons of the majority at page 87, the Court will notice that by a slip the Full Court inserted an earlier version of question 2, which the Court will see at appeal book page 6, and nothing turns on that for present purposes because the only question that was answered by the Industrial Relations Court was question 1.  It was that question and that answer which was the subject of the appeal to the Full Court and then which is now the subject of the appeal to this Court.

The relevant parts of the Education Act 1972 came into operation on 14 December 1972 and, amongst other places, the Court will see that stated in the respondent’s submission in footnote 2. Between that date and sometime in 2005, said in the respondent’s submission to be 21 February 2005, certain teachers were appointed by the Minister for Education or the relevant employing authority to teach in government schools as what were called contract teachers or temporary relieving teachers. That is in the agreed facts, agreed fact 2 at appeal book 10.

Those appointments were made in purported reliance on section 9(4) of the Act.  That section was deleted from the Education Act in 2006 by an Act No 41 of 2006.  Just by way of further elaboration, that Act came into operation on 1 April 2007, as appears from the Government Gazette of 29 March 2007.  But, in any event, the relevant time span over which section 9(4) was in the Act and in force is from the commencement of the Act through to that time in 2007.

It is common ground on the appeal that those teachers, those contract teachers and temporary relieving teachers, were not regarded as officers or members of the teaching service as it is constituted by Part III of the Education Act and as a result their terms and conditions of employment were different from those applying to teachers in the teaching service and they were potentially denied access to many significant regulatory protections including, amongst them, at least from the appellant’s point of view, was a denial of the right conferred by Part III to ignore interruptions of service for the purpose of calculation of continuous service of up to two years in the calculation of entitlement to long service leave.

The appellant in the past has considered that contract and temporary teachers were allowed to discount service interruptions of up to three months to accumulate long service leave entitlements on the basis they were entitled to general public service or public sector conditions.  At page 24 of the appeal book the Court has before it a letter from an officer of the Department dated 16 April 2007 where, in paragraph 4, it is suggested that the applicable long service regime governing interruptions is the general public service regime.  The Court will have seen that the respondent in its submissions, in paragraph 7.6, has cast doubt on that position and has suggested that even that level of benefit may be denied to contract teachers and temporary relieving teachers.

FRENCH CJ:   What is the significance in document 1, which appears at page 12 of the book, of the reference to the Teachers Salaries Board Award?  That was applied to these temporary or contract teachers appointed under 9(4), is that right?

MR WHITINGTON:   Yes, that is so.  As I apprehend it, if the Court pleases, there is not a lot of significance in documents 1, 2, 3 and 4 attached to the agreed statement of facts.  They were intended as exemplar documents.  Document 1, I think, was intended to exemplify the kind of contract entered into, historically at least at certain times, between the Department and contract teachers regulating their terms and conditions and, amongst other things, the Court will see that it is asserted that they are employed under section 9(4) and that certain of their rights which they would otherwise have if they were members of the teaching service are denied them.  But as to your Honour’s question about the award, as I understand it and I stand to be corrected, there was a separate award or separate provisions in an award for contract teachers.

FRENCH CJ:   On the assumption that they were validly appointed under 9(4)?

MR WHITINGTON:   Correct, yes.  That appears to have been the Government’s assumption for many, many years and, indeed, I think they still maintain that position.  That is why they are here, of course.  But that matter was the subject of some issue and dispute between the Union and the employer over many years.  Nothing turns on the suggestion of the respondent that the long service leave entitlements of the contract and temporary relieving teachers may be even less than the Union had previously thought.  Nothing turns on that for the purpose of the appeal question of interpretation which is raised, but we simply flag that.

The matter went on reference to the Full Court of the Industrial Court of South Australia on a question stated pursuant to what was then section 214 of the Fair Work Act and the Full Court delivered judgment on 27 April 2009 and unanimously answered question 1 that I have taken the Court to to the effect that section 9(4) authorised appointments of teachers independently of section 15.  For instance, if the Court would turn in the appeal book to page 87, the Court has the answer of the senior judge and Judge Gilchrist at paragraph 44 and then in the separate reasons of Judge McCusker, his answer really is in his conclusion at paragraph 59, page 92.  The appellant applied to the Full Court of the Supreme Court of South Australia for leave to appeal ‑ ‑ ‑

HAYNE J:   Just before you come to that, as to the orders taken out page 94, the answer is given to the question.  How do you say we are to understand that answer?  Are we to understand it, when it speaks of section 9(4) authorising the Minister, et cetera, independently of section 15?  Is that an answer that says, in effect, that both 9(4) and 15 authorise or is it an answer that says 9(4) on its own authorises?  How do we construe it?

MR WHITINGTON:   I think in the latter sense, your Honour.  In other words, I think the gravamen of the answer is that there are two separate and independent sources of power permitting the appointment of teachers, but that these contract ‑ ‑ ‑

HAYNE J:   To which the Minister may resort as the Minister chooses?

MR WHITINGTON:   Correct.  I do not think the answer embraces the possibility that the subject teachers were employed pursuant to section 15 of the Act because had they been so, they would have become officers of the teaching service – and I will take the Court to that in a moment – with all the panoply of protections and rights and so on as members of that service.  I think it is common ground that these teachers stand outside the teaching service proper.  So, in effect, the argument means that the Industrial Court and ultimately the Full Court of the Supreme Court held that there were, if I can put it this way, two parallel teaching services; a proper teaching service constituted on Part III of the Act and a kind of phantom teaching service outside the regular teaching service constituted of contract teachers and temporary relieving teachers. 

The Crown Solicitor of the State, who was my opponent in the Full Court, conceded to the court that we are talking about some thousands of teachers over the years who have been members of this phantom teaching service and who, therefore, have not been afforded the rights and protections of the Part III regime.  So I think that is an answer to your Honour’s question.  They are really saying there are two separate sources of power, that they are independent.  The Minister has accessed one of them, he has been entitled to at section 9(4) and, therefore, these teachers’ employment does not attract the regulatory regime that accompanies appointments under section 15. 

The appellant made application for leave to appeal to the Full Court of the Supreme Court of South Australia and that leave was granted on 16 July 2009 and the full appeal was heard on 28 May 2010.  The Full Court unanimously dismissed the appeal.  The Court has in the appeal book the reasons of the Full Court commencing on page 102.  There are two judgments; that of Justice Gray with whom Justice Nyland presiding agreed, and that of Justice Vanstone.  The reasoning is in a fairly short compass and so it is convenient for me, if I might, just to take the Court to it and highlight the critical factors and passages.  If I could start at page 111 in the appeal book in paragraph 29 of the reasons of Justice Gray and the critical passage is at about line 25 first of all.  He wrote:

Insofar as the powers in section 15 and section 9(4) both relate to the appointment of “teachers”, section 9(4) is an auxiliary power to that conferred by section 15.  The two powers do not relevantly deal with the same subject matter.  As a consequence the earlier referred to statutory maxim has no application.

That is the maxim referred to in Anthony Hordern or the expressum facit maxim.

HAYNE J:   Does his Honour identify what are the two different subject matters?  His Honour says that they do not relevantly deal with the same subject matter.

MR WHITINGTON:   We say he does, except to this extent, that his argument or his reasoning can be reduced to the proposition that the subject matter of section 15 is the very terms of section 15 and the subject matter of section 9(4) is the very terms of that subsection, in which event one would never be able to apply the common subject matter test in the application of the rule.  That kind of reasoning dissolves the concept of subject matter, we say, almost into a kind of meaningless verbalism and it ignores the real substance of the issue.  We say the subject matter correctly identified was for the employment of teachers and that section 15 and Part III of the Act created a comprehensive and cohesive code for the employment of teachers.

FRENCH CJ:   Well, you say also that the words in parenthesis in 9(4) carve out or excludes from its application the appointment of teachers, do you not?

MR WHITINGTON:   We do, yes,  Yes we do.

FRENCH CJ:   This is the construction of the words “in addition to”?

MR WHITINGTON:   That is right, yes.

FRENCH CJ:   Is there a separate regime for the appointment of officers of the Department referred to in that?

MR WHITINGTON:   Yes, there is.  I think it is section 11 of the Act and I was going to come to that when I travel through the Act.

FRENCH CJ:   Do not let me take you out of your course, Mr Whitington.

MR WHITINGTON:   But, yes, there is, your Honour, and I think the answer is in section 11.  Can I just complete the references to the judgment before I come to the Act.  If the Court would then come to his Honour Justice Gray’s reasons at paragraph 30.  The next proposition we want to emphasise appears in the last sentence at about line 35.  It reads:

The broad powers conferred on the Minister, including those conferred by section 9(4), suggest that it was the intention of Parliament to ensure that the Minister was equipped to do what was necessary for the provision of primary and secondary education in the State of South Australia.

Then if we come to paragraph 31, the second sentence starting there:

In this respect the purpose of section 9(4) is clear; namely, to provide power of additional appointment to address the diverse and unpredictable employment requirements necessary for the proper administration of the Act and the welfare of students.  There is no good reason why “teachers” should be excluded from this process.

So, in other words, his Honour considered that section 9(4) was intended to permit flexibility to the Minister in the way he administered the education system and that that was a reason to undercut the entire scheme in Part III.

HAYNE J:   What are the words in 9(4) that suggest or connote this notion of flexibility?

MR WHITINGTON:   It is difficult to see, except that section 9(4) is so broad and vague in its terms.  We really do not think one can ‑ ‑ ‑

HAYNE J:   Do you accept that it is broad and vague in its terms?

MR WHITINGTON:   Well, we accept that it confers a general power, perhaps if I can put it that way.  It confers a general power, but we also accept and submit that the words interpolated are meant to carve out the power and stand it aside from the power to appoint officers of the Department and officers of the teaching service.

HAYNE J:   The last words “proper administration of this Act or for the welfare of students of any school” might be understood as suggesting that the subject matter of 9(4) at least include the appointment of people like school counsellors, people who do not teach but whose presence at the school is thought to be for the welfare of students at the school.  It might be thought apt to apply to the appointment of school administrators, again persons who do not teach and who are not officers of the Department administering the Department but are there to administer the financial affairs of a particular school.

MR WHITINGTON:   That is our submission, with respect, and one can extend the category to include positions such as librarians, ground staff ‑ ‑ ‑

HAYNE J:   Well, librarians would say they teach, but let us not go there.

MR WHITINGTON:   I do not think ground staff would say that, your Honour.  Maintenance staff perhaps out of the woodwork shop and unfortunately, in the present age, security staff.  But we say that section 9(4) was designed to permit those kind of categories of employment and the suggestion that it permits a phantom teaching service cannot stand alongside the very detailed regulation in Part III.  Can I just very briefly, because it is very quick, alert the Court to the ultimate reasoning of Justice Vanstone at page 117 in paragraph 52.  She had earlier put a whole lot of arguments that we had put against the ultimate interpretation she adopted, but then she said:

In my mind the matter is finely balanced.  I consider that the appellant’s argument that the specific provisions addressing appointment of teachers in Part 3 should be read as implicitly excluding the use of the Part 2 powers for that purpose has some attraction.  However, in the end, I cannot find in the language of the section, or the structure of the Act, any clear indication that the Minister was to be restricted to appointing teachers under s 15.  In particular, the words “in addition to” in s 9 are not words of limitation; they are conjunctive or expansionary, rather than preclusive.  As I see the issue, the implication contended for by the appellant cannot prevail in the face of the permissive words of s 9.

I would have to say that the appellant could not have had any disagreement with her Honour’s recitation of the arguments and the issues up to that point, but in the end she said it was finely balanced and she tipped one way and it was against us and we say ultimately that she tipped the wrong way.  But those reasons are a helpful segue into the Act where I must take the Court.  We have copied the Act in its original form together with the amendments that are relevant to the argument and they were attached to our original submission filed in the Court.  I hope that the Court has them.

FRENCH CJ:   Yes.

MR WHITINGTON:   I will try and be fairly quick about this, but what I am endeavouring to show through an analysis of the Act is that the Act was designed to constitute a teaching service, that the provisions around the teaching service are comprehensive and cohesive and that the Act did not intend to lead in by a side wind the power of the Minister to employ teachers otherwise.

FRENCH CJ:   I was wondering about the term the “administration of this Act” in section 9(4) and I notice that in section 6 of the Act that, as attached to your submissions, it talks of the Minister having “the general administration of this Act and the administration control of the teaching service.”  In other words, it seems to carve out those two concepts, administration of the Act and administration of the teaching service.

MR WHITINGTON:   Yes, and, your Honour, I was going to emphasis that and that is one of the many places where this Act does appear to carve out the distinct and separate treatment of the teaching service.  But I would ask the Court to quickly note first of all in section (4) subsection (7).  That appears to presume and proceed from the premise that teachers carried over from the old regime are to go into the teaching service and it does not single out any other possibility.  Then section 5 is the definition section.  Could I highlight the definition of “Government school” and then “officer”:

“officer” in relation to the teaching service means a teacher holding office in the teaching service under this Act ‑

Later the words “under this Act” were deleted, but nothing turns on that.  Then there is a definition of “teacher”:

“teacher” means any person who gives, or is qualified to give, instruction at any Government or non‑Government school –

That is significant because the Act, while it deals primarily with the State system of eduction, also goes on to a limited extent to regulate the system of education in non‑government schools and provide for a system of registration for teachers who can, upon registration, teach in either government or non‑government schools and hence the definition of “teacher” is a broad one that is not qualified by reference to the teaching service because it is used primarily within the concept and scheme of registration of teachers.  There is a definition of “the Minister” and then a definition of “the teaching service”. 

I was going to draw attention first of all to Part II which deals with the Minister and the Department and then Division I deals with the Minister.  Then there is section 6, which your Honour the Chief Justice has already alluded to.  Then section 9.  Section 9 is a statement of either nine functions or heads of power awarded to the Minister under the Act as it originally stood.  Subsequently, some of the formulations have changed and two new heads of power were added, but again nothing turns on that.  But the point we would want to make is that this really represents a grant of miscellaneous powers and an award of miscellaneous functions and amongst those one finds almost incidentally subsection (4).

It is our submission about subsection (4), while I am at it, that it is intended to provide for three classes employees; officers of the Department, officers of the teaching service and employees otherwise, but that the employees otherwise are not intended to include persons who teach in government schools who are not members of the teaching service.  In other words, we say the proper interpretation of the Act is that the teaching service is to be the exclusive source of teachers in government schools.

HAYNE J:   What elements of 9(4) are said to be engaged in appointing a part‑time teacher?  Is that the Minister appoints an officer or an employee, question 1.  Is it that the Minister appoints either an officer or employee for the proper administration of the Act?  I would have thought not in light of 11(4).  Or is it said that the Minister appoints an officer or an employee for the welfare of students of any school?  It would be an unusual description I think of the task of a teacher.  It includes welfare issues, I suspect many would say too much welfare issues today, but I would have thought it is a rather unusual turn of phrase to apply.

MR WHITINGTON:   Well, it made a challenge with respect to those in the State because I do not know that they have ever squarely faced up to your Honour’s questions and in the material we have before us, from time to see the section 9(4) teachers, if I might call them that, referred to as officers but not officers of the teaching service and, as I recall it, their employment under section 9(4) has been justified as falling within the rubric of the proper administration of the Act.  The learned Solicitor‑General may correct me or may put a different complexion on that, but that is my memory as to how it has been justified.

HAYNE J:   In the light of 11(4), that may require some elasticity of thought to achieve.

MR WHITINGTON:   Well, we would say so, but we would say it is even more fundamental than that because even allowing that elasticity of thought, that application of the section has the potential to eviscerate, as we say, the whole teaching service.  It has the potential to allow the Minister to employ a large number of teachers, perhaps even all teachers, under section 9(4).  That was a matter that her Honour Justice Vanstone noted.  We note that the responses put against us on this appeal that the Minister would not do that because the Minister would not act in bad faith, but we say that is no answer at all because the Minister either has the power or he does not have the power.  If he does have the power to employ teachers under section 9(4), presumably he is entitled to employ them and employ them as he sees fit.  So the suggestion that somehow good faith in State motives enters into the construction of section 9(4) we say can be put aside.

KIEFEL J:   Where is the reference to bad faith?

MR WHITINGTON:   It is in our learned friend’s submission.

KIEFEL J:   Do not let me delay you, Mr Whitington, if you ‑ ‑ ‑

MR WHITINGTON:   No, I am sorry, your Honour, I had it ‑ ‑ ‑

KIEFEL J:   If your juniors want to research that while you are ‑ ‑ ‑

MR WHITINGTON:   I should be able to find it very quickly.  Paragraph 28, your Honour.  It is actually stronger than bad faith; it is put as an abuse of power.  It is the last sentence in paragraph 28.

FRENCH CJ:   So there is a constraint said to be built in through the words “necessary for the proper administration of this Act”?

MR WHITINGTON:   Yes, but we say one would not interpret plain words in an Act by reference to the possibility of restraint as an abuse of power, but, moreover, we come back to this, either the respondent is right or it is wrong.  If section 9(4) does permit the employment of teachers outside the teaching service, why cannot the Minister simply appoint for whatever he considers to be a good reason in a way that would really be quite untrammelled?

KIEFEL J:   The notion of an abuse of power might be founded upon the view of Justice Gray that this is an auxiliary or incidental power in section 9(4), but then one would have to ask, incidental to what, for what purpose?

MR WHITINGTON:   Exactly.

KIEFEL J:   But that means probably the starting point is a consideration of section 15 in the context of the teaching service provisions and then to see what purpose could have been served by the need for appointments otherwise than under section 15.

MR WHITINGTON:   Yes.  I think, with respect, I am trying to make the same point, that is, our learned friends are starting the analysis too late.  You must start the analysis earlier and look at the Act as a whole and construe section 9 and section 15 and divine the purpose and the scope of the power and if there is within section 9 the power to appoint teachers, then it is difficult to see why it should be constrained in any way.

HAYNE J:   Sorry, put that again; I have missed that.  What was your proposition?

MR WHITINGTON:   The proposition is this, that the first issue, and it always come back to the premise, what is the premise here?  Is the premise that teachers can be appointed on section 9 or is it not?  That is the ultimate question for decision and we say you have to decide that question in a kind of Nystrom way and there is no point in saying, well, their power will not be abused because that begs the question, what is the power in the first place?

FRENCH CJ:   You are basically contending that if the Minister has a power to appoint teachers under section 9(4), that power is at large subject to the very general words of the Act and that a power at large is an unreasonable construction of section 9(4).

MR WHITINGTON:   Yes.

FRENCH CJ:   It does not suit you to say that it is ancillary.

MR WHITINGTON:   Well, no, but if it is ancillary, I suppose it then begs the question, ancillary in what sense?  That is a completely open‑ended proposition, really an indeterminate term.  Ancillary in what sense?

FRENCH CJ:   Well, you would have to construction some sort of constraint by reference to the proper administration of the Act and the function of Part III.

MR WHITINGTON:   Yes.  Can I pick that up.  Justice Gray in his reasons in the context of his reference to an auxiliary power, in paragraph 32 at page 112, posits some possible uses of the power to give flexibility.  The first he says is that it might be that an appointee would want to “contract out of the obligation to serve anywhere in the State”, but that is an obligation that is imposed, if at all, by regulation and if the Minister can impose that obligation by regulation, then the Minister can vary by regulation.  That is no reason for saying that a special need is called for such as to require section 9(4) to be characterised as auxiliary.  He then speaks of “the abrogation of the requirement for probation”, but that appears in section 15 of the Act and it is, in effect, self‑abrogating.  The power in section 15 is contained in subsection (3) which reads:

The first appointment of an officer to the teaching service may be made upon probation.

It need not be made upon probation.  So that does not justify a requirement for some special power in section 9(4).

HAYNE J:   But the observation that the powers on under 15 are subject to limitations and qualifications, whereas, by contrast, the power that exists under 9(4) is not, might be thought of itself to engage what was said in Anthony Hordern 47 CLR 1, particularly at page 7 where Chief Justice Gavan Duffy and Justice Dixon said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon –

Observing that there are limitations on one invites the question, does not answer it.

MR WHITINGTON:   As your Honour said along with Justice Gummow in Nystrom in a passage that was approved in – I think it is M70, is it not – this is an example of different ways in which the underlying principle may be formulated.  Now, I say that because your Honour has read out a particular passage from page 7 in Anthony Hordern that our learned friends seize on and they seize on the word “mode”, the mode in which the power should be exercised, in that passage and they say, well, what the appellant is putting about section 15 does not involve any prescription of the mode in which the power of appointment is to be exercised. 

Now, we have two answers to that; a textual answer and a more substantive answer.  The textual answer is that section 15 does prescribe the mode of exercise of power because it only permits teachers to be appointed to the teaching service and that is quite fundamental because there is no requirement in section 9(4) that teachers be appointed to undertake teaching service.  There is a later requirement in the Act which was suspended for the first two years of the operation of the Act, that a person who engaged in teaching services in a school be registered, but there is no requirement in section 9(4) that only a teacher be appointed to teach.  So we say, first of all, if our learned friends seize on the expression the “mode in which it shall be exercised”, a ready answer is that there is a prescription on the mode of exercise.  Only teachers can be appointed. 

The other point we want to emphasise is perhaps more fundamental and that is that there is a passage, if the Court pleases, at page 7 immediately preceding the passage your Honour read out.  It reads:

Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing.

Now, in that context we say the next sentence cannot be taken as wholly writ so that our learned friends can seize on the word “mode” of exercise in the way they do and say that the relevant limitation can only be on the mode of exercise.  As well, we have not put this in our book of authorities, but there is also the extract from the reasons of Justice McTiernan at the bottom of page 20 on to page 21 in that case that your Honour Justice Hayne and Justice Gummow also cited with approval in Nystrom’s Case.  It is at the bottom of page 20, your Honour, starting:

In my opinion, no latent power to award preference can be discovered in the Act.

If the Court has Nystrom’s Case available, MIMIA v Nystrom, at least our extract of it, it is reported at 228 CLR 566, I believe we have extracted for the Court paragraphs 52 through to 59. I am sorry, I think the whole case is in the respondent’s book. It is case 1 in the respondent’s book. At page 587 of the report in paragraph 55, your Honours Justice Hayne and Justice Gummow cite that particular passage from Justice McTiernan in Anthony Hordern.  Now, of course, if the Court has it open, the ultimate proposition for which we contend is that which was approved by six or seven Judges in M70 at page 589 of the Nystrom report paragraph 59:

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction.  These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power.  However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power.  In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

We say that in that passage starting from “However, what the cases reveal” one finds an apposite description of the interaction in this case between section 9(4) and section 15.  Section 9(4) in that sense is the general and unrestricted power.  On its face it might permit, it might, on its face it might permit the doing of what section 15 permits if it can be so interpreted despite our textual argument about interpolated words, then it nonetheless would be read down so as to exclude the specific power to be found in section 15 because it comes with a number of special restrictions.

FRENCH CJ:   If the interpolated words bear more than one construction, one of which is that which you contend, another which does not, as it were, carve out departmental officers and teaching service, I suppose you invoke similar arguments in favour of that constructional choice?

MR WHITINGTON:   Yes, exactly.  So in a sense, if we do not win immediately on the textual carve out, nonetheless ‑ ‑ ‑

FRENCH CJ:   That all feeds back to the same proposition, does it not, in a sense that you cannot just put the textual carve out to one side.  You look at the relationship of 9(4) and 15 and then ask whether that informs the construction of the textual carve out, and also section 11.

MR WHITINGTON:   Yes.  This Court has repeatedly said you look at the text in the context and then the purpose and so on.  We say it is a holistic approach and that is why one cannot unravel separate strands without appreciating there are strands of the one argument.  Can I also finally in Nystrom refer the Court briefly to the passage in the reasons of your Honour Justice Heydon and Justice Crennan’s judgment, paragraph 165 at page 616.  Your Honour said this:

While the powers are different, with different criteria for their exercise and different consequences when exercised, they are both special powers. 

These are the powers to remove from the country –

The power in s 501(2), construed as it must be, together with s 501(6) and (7), is not a vague or general power.  The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers.  In fact, they are consonant with each other.

Now, we say that the converse applies here.  Section 9(4) is a very general, indeed, we would say vague power.  It is not a case of there being two specially constructed schemes with their own special conditions and prescriptions for the exercise of the power such as in Nystrom, two entirely different mechanisms for removal.  It said here we have one power which exclusively is detailed, comprehensive and confined and another power which is completely vague, general and open ended.  So we say that this is an Anthony Hordern or Nystrom kind of case in the sense of paragraph 59 of Nystrom.

I then was going to draw the Court’s attention, coming back to the Education Act, to Division II of Part II, the Department, and section 11 and particularly subsection (4), in other words, section 11 contemplates the employment of officers of the Department.  Then can I come to Part III, the teaching service.  Division I deals with the appointment of teachers:

(1)Subject to this Act, the Minister may appoint such teachers to be officers of the teaching service as he thinks fit.

(2)An officer may be so appointed on a permanent or temporary basis.

So if one is looking for flexibility, here is an element of flexibility embodied in the very provision –

(3)The first appointment of an officer to the teaching service may be made upon probation.

. . . 

(5)No officer appointed on a permanent basis . . . shall be dismissed or retired from the teaching service except in accordance with the provisions of this Act.

(6)An officer appointed on a temporary basis or appointed on probation shall hold office at the pleasure of the Minister.

Then Division II deals with retrenchment and section 16 provides for retrenchment rights and appeal rights to the appeal board.  Section 17 permits the State or the director-general to retire an officer of the teaching service for incapacity and it confers appeal rights.  Division III deals with long service leave and provides a comprehensive scheme and section 19(2) confers the basic right to long service leave.  It requires some 10 years continuous service in the first instance and you accumulate nine days for each year and thereafter it is consecutive leave for years of continuous service. 

Then section 20 provides for the award of long service leave or payout of long service leave where a teacher is retrenched or retired after five years continuous service but before they have obviously become entitled to a payment after 10 years.  Section 21 provides for a special payment of long service leave where the teacher dies after five years continuous service. 

Then section 22 is significant, at least practically, for the appellant because it governs the circumstances in which interruptions to continuous service can be ignored and section 22(2) provides that if the teacher’s service is suspended for some reason, apart from certain disqualifying reasons, for some period of less than two years, then continuity is not broken.  So, in other words, a teacher under this regime who is a member of the teaching service can work, say, for eight years, have their employment suspended, take a kind of leave for up to two years, resume, and the period of resumption will count towards continuous service. 

Then section 25 provides for a compulsory retiring age of 65 for both men and women, although women may elect in a particular way to retire earlier.  This was the third illustration of necessary flexibility that Justice Gray cited in that paragraph I took the Court to in his reasons.  He said the authorities might want to employ teachers beyond the retiring age of 65 and, therefore, section 9(4) had a use to permit that.  But we say the answer to that is that if there is a statutory mandated retirement age, one should not allow the State to outflank it – the Executive to outflank it by the use of section 9(4).  In other words, if Parliament has decreed limits on executive power, the courts should not go looking for ways to permit the Executive to outflank those limits, and this is one such case.

Sections 26 and 27 impose a regime of disciplinary breaches and rights of appeal.  Sections 28 and 29 create a system of teacher’s classification and rights of appeal.  Division VII creates a Teachers Salaries Board and the Court will see from section 37 that the powers of the board are in respect of the teaching service and officers of the teaching service.  So, in other words, the Teachers Salaries Board jurisdiction is confined to the teaching service comprised of teachers appointed under section 15.

FRENCH CJ:   Its award was purportedly applied to contract teachers under 9(4).

MR WHITINGTON:   Yes, I think by a separate industrial process.

FRENCH CJ:   Was it exercising powers or was that just an adoption by reference of some award that had ‑ ‑ ‑

MR WHITINGTON:   I stand to be corrected, but, as I understand it, that was not the Teachers Salaries Board.  That was another industrial tribunal.  I will just check.

FRENCH CJ:   Yes, just that the exemplar memorandum of contract that is shown first to the award made by the Teachers Salaries Board.

MR WHITINGTON:   Yes, and I think that meant that by contract certain parts of that award were to be adopted.  I am told by my learned juniors at the Bar table that at some point there may have been a joint sitting between the Teachers Salaries Board constituted under the Act and another industrial tribunal with jurisdiction outside the Teachers Salaries Board and so they brought in an award, an amalgam award that covered all the bases.

Can I come back then to the Act.  Section 44 deals with the effect of an award.  I do not think I need to stay with that.  Then Division VIII creates an appeal board and section 49 deals with jurisdiction of the board and along the way through the Act there are miscellaneous examples of power conferred upon this board to hear appeals from members of the teaching service.  Then there are other powers conferred, for instance, by section 53.  This especially confers a power for a member of the teaching service to appeal in respect of the filling of a position by a rival, if I can put it that way, and the jurisdiction is defined by reference to the notion of an officer, and an officer is defined as an officer of the teaching service.

Section 54 as well we refer to.  Then finally we come to Part IV of the Act, registration of teachers, and I can quickly refer to sections 60, 61 and 62, but critically section 61.  It provides for registration of a teacher with certain qualifications and a person so registered then is permitted to teach, and a person not registered is not permitted to teach in any school.  The Court sees that from section 63.  That is why it is important to understand that the use of the expression “teacher” in this Act is wide and extends to any person who gives instruction in schools because such persons have to be registered.

FRENCH CJ:   Or otherwise, actually, is it not:

provide or offer to provide for fee or reward instruction to any person seeking primary or secondary education –

It is not limited to schools.

MR WHITINGTON:   Your Honour is correct.  Presumably, if you read this literally, it might even include home tutoring, but clearly the intention is to preclude persons teaching in schools after an initial letting-in period, so to speak, of the new Act if they are not registered teachers.

The only other provision to have regard to is section 107, the regulation‑making power, and the Court might notice in particular subsection (2)(d) and (e).  I should tell the Court that the point I want to make is that the Act as originally cast only referred to a regulation‑making power in relation to officers of the teaching service.  There was an amendment by Act No 2 of 1991 which interpolated or inserted after the words “teaching service” in paragraph (d) “or other persons employed under this Act”, and a similar inclusion was made to paragraph (e).  But be that as it may, we say that one can still discern from the regulation‑making power an adherence to a structure of the Act which entails teaching appointments in government schools under section 15, not under section 9.  I think I have covered along the way the points I wanted to make and have highlighted in our outline of oral argument. 

If I might be permitted, could I briefly just address some of the propositions put against us in the hope that we can deflect them at the outset.  The first proposition, as we apprehend it, made by the respondent against us is in paragraph 16 of their written submissions to the effect that the Court should prefer a construction of the Act that would promote the purpose or object of the Act.  Now, we say be that as it may, that does not take the matter very far because that involves first of all a divining of what is the proper purpose or object and, as Chief Justice Gleeson said in Carr’s Case, often Acts can have multiple purposes and here, the respondents themselves appear to acknowledge different purposes which are not always congruent.  They acknowledge, for instance, there is a purpose of establishing a system to meet the educational needs of South Australian children, but there is also a purpose of ensuring the establishment of a high quality teaching service.  Those are not necessarily congruent purposes.  The ensuring of the establishment of a high quality teaching service, we say, is effected through the Act by section 15 in Part III. 

The next proposition, in paragraph 23.1, that we would wish to answer is that there is no command in the Act that the Minister should not employ a teacher in a government school who is not a member of the teaching service, but we say to pose the inquiry in those terms is to avoid the question.  The appellant’s submission is that there does not need to be a command, that the effect of the Act is it goes without saying that all teachers employed in government schools should be members of the teaching service.  We say that is the point of the maxim expressum facit cessare tacitum and the cases around it and to put it another way, we say the positive grant or power to do things on terms or within a particular statutory framework imports the negative, that is, the denial of power to do the same thing without regard to those terms or that framework.

The respondent then says the appointment of teachers to government schools under section 9(4) allows for contingency which may confront the Minister in providing an education system.  That is at paragraph 23.3 in the respondent’s submissions.  But we say that the data was given by the Full Court at reason 32 in Justice Gray’s judgment, appeal book 112, are de minimis, as I will attempt to explain, that his point about serving anywhere in the State goes nowhere because that is simply imposed by regulation.  The point about the abrogation as a requirement for probation goes nowhere because probation under the Act need not be imposed.  The point about outflanking the retirement age we say raises a very fundamental question.  If Parliament has seen fit to impose a retirement age, why should an interpretation be encouraged which would permit the Executive to outflank it?

The respondent then says in paragraphs 24 and 29 to 30 of its submissions that there is a distinction drawn in the Act between a teacher and an officer of the teaching service and they rely on that somehow to justify the appointment of teachers to government schools under section 9 outside of the teaching service.  But the distinction, as I have sought to explain already, is readily explicable on another and necessary basis and that is the Act not only has the object of providing for staff in government schools, it has the object of providing a system of registration for teachers generally in the State, including those who teach in non‑government schools and the requirements for registration of teachers apply to both teachers in government schools and non‑government schools.  That explains why the Act draws a distinction between teachers and officers of the teaching service. 

Then the respondents in paragraph 26 reason by simple syllogism, they reason this way, as we understand it, they say section 9(4) permits the appointment of staff inter alia where it is necessary for the proper administration of the Act.  They say the employment of teachers is necessary for the proper administration of the Act.  Therefore, they say it follows by simple syllogistic logic that section 9(4) must permit the employment of teachers in government schools.  But that argument can only be as good as the major premise.  If the major premise is truly that section 9(4) permits the employment of staff except for teachers, then the logic breaks down and that means that the ultimate question for the Court still boils down to the true scope of section 9(4) in light of section 15. 

The next proposition is in paragraph 28 to the effect the Minister cannot employ teachers under section 9(4) unless it is “necessary for the proper administration of this Act or the welfare of the students of any school.”  If the Minister were to appoint for the sole purpose of avoiding the powers in Part III of the Act, that would be an abuse of the power and subject to review.  I mentioned that in passing and we say that is also a questioned being, the underlying question still remains, is there the power?  If there is the power, then it is hard to see why it could not be put to a wide use, and indeed it has been put to a wide use in the employment of thousands of teachers over many years. 

Then the argument is put in paragraph 53 in reliance on that statement in the joint judgment of Chief Justice Gavan Duffy and Justice Dixon in Anthony Hordern at page 7 that I mentioned earlier, that section 15 does not ‑ ‑ ‑

HEYDON J:   You said 53.  Do you mean 33?

MR WHITINGTON:   I am sorry.  Did I say 53?  I meant 33.  I apologise, your Honours.  That section 15 does not contain a fetter on the mode of exercise of the power to appoint teachers to the teaching service and therefore it does not qualify under a strict reading of that dictum.  I have already addressed that.  We say that is a highly literal and semantic argument which focuses on the word “mode”.  It ignores the earlier passage in Anthony Hordern and we say it also ignores the effect of this Court’s reasoning around the proposition in Nystrom at paragraph 59. 

Then the respondent, as we read the submissions in paragraph 35, seek to avoid the consequences that Anthony Hordern and the Nystrom Case and the maxim expressum facit cessare tacitum by, in a subtle way, seeking to confine the operation to the rule of construction to cases of common subject matter and then seek to demonstrate that section 15 and section 9(4) have different subject matters.  In the former case, it is said to be the appointment of teachers to the teaching service and in the latter case it is said to be the appointment of teachers that teach in government schools.  But we say first all and fundamentally there is no warrant for confining the rule of construction by reference to the same subject matter, and we rely on Nystrom for that proposition. 

The reference to the same subject matter in those cases is really no more than an exemplification to search for a broader underlying principle which endeavours to uncover through meaning of the statute.  But, in any event, we would say that this refinement in our learned friend’s argument really reduces the competing fields of operation to an impermissible degree.  One can always refine away subject matter to the point where there appears to be no overlap, but if that is contrary to the substance and reality of the matters, we say it is, then the Court should not indulge that argument. 

The next argument put against us is that the construction of section 9(4) for which the respondent contends will provide the Minister or the authorities the flexibility necessary to provide the educational requirements of the students of government schools.  That is put in paragraph 37.  But there are a number of difficulties with that argument.  The first is a construction one.  Section 9(4), as I have said, only imports flexibility if one interprets the section in the way that the respondent would have it in the first place, but more fundamentally, the respondent offers no basis in authority as principle for the suggestion that the Act should be

interpreted with an eye to affording the Executive flexibility, particularly flexibility to outflank or undermine specific limitations on the power contained elsewhere in an Act. 

Finally, the asserted need for flexibility is not the subject of any evidence and, to the contrary, there is evidence in the agreed statement of facts and the associated papers that the authorities took a decision in 2005, and have since acted on it, that all teaching appointments should be made under section 15.  We would say that seems to gainsay any suggestion that the authorities have needed to rely on section 9. 

Then finally there is an argument put at paragraphs 39 to 40 relating to an insertion of section 101 in the Act in the second reading speech as somehow confirming the interpretation of section 9(4).  The section 101A relied on is entirely equivocal as to the issue in.....before the Court and it says nothing of consequence about that issue.  The Minister, in his second reading speech, did suggest that he considered section 9(4) permitted the appointment of teachers, but that is not any statement of authority or any statement which can be relied upon for the interpretation of the Act, let alone the historic interpretation of the Act.  They are our submissions if the Court pleases.

FRENCH CJ:   Thank you, Mr Whitington.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.  I have been successful in reducing my outline of oral submissions to two pages.  Can I start working backwards.  Rather than looking at text upon text and purpose in that order, can I start with purpose, and I will be coming to what perhaps may loom large as the crucial question, and that is, what is the administration of the Act or what do these words mean in section 9(4)?  As is set out at paragraph 3 of our oral submissions, we put to the Court that this is beneficial legislation and we put that for a specific purpose.

HAYNE J:   To whom?

MR HINTON:   Beneficial to children between ages 6 and 15 in this State, all of whom have to attend school.  All of whom, if they are not in a non‑government school have to attend a school provided by the Minister.  Your Honours will find that sections 75 and 76 of the legislation.  It is an important starting point, in my submission.  Section 75, “A child of compulsory school age”, that is defined in section 5, the ages five to 16, as I recall.  Sorry, six and 15.

KIEFEL J:   Mr Solicitor, is there a provision that says that teaching service provides teachers for government schools?

MR HINTON:   No, your Honour, there is not.

KIEFEL J:   Is it implied in the Act?

MR HINTON:   To the extent that there is a teaching service, it is implied that there is this body of teachers ‑ ‑ ‑

KIEFEL J:   Available and obviously for government schools.

MR HINTON:   Yes, your Honour.  Government schools, children six through to 15, primary and secondary.  In 1972, primary, secondary and technical schools subsequently, no longer technical schools, but primary, secondary and preschool for every child between six and 15 in this State, whatever their circumstances, wherever they are, including correspondence schools.

KIEFEL J:   Well, given that one can say then that a purpose of Part III is to provide a teaching service for those children who are not attending non‑government schools, how would you otherwise describe the purposes of Part III?

MR HINTON:   Sorry, your Honour, undoubtedly to meet your obligations under this Act, to provide education to those children, as I have just mentioned, you cannot every January be on the phone ringing people up.  So you have this body of teachers at your disposal whose terms and conditions – and that is what Part III does; it settles their terms and conditions ‑ ‑ ‑

KIEFEL J:   Well, it does more than that; it contains provisions to regulate their conduct and their entitlements – their terms and conditions and entitlement.  But the disciplinary measures are not unimportant, are they not?

MR HINTON:   No, they are not.  But just having that body of teachers, in my submission, does not allow the Minister to cater for every contingency and that is really what I am building up to.  The notion of flexibility, as your Honours will see and as you have been taken to in Justice Gray’s judgment, is really an appreciation of the objective purpose of the Act, a description ‑ ‑ ‑

KIEFEL J:   Well, are you saying that section 15 contains some restriction in a practical sense in relation to the appointment of teachers?  I mean, an appointment under section 15 can be a temporary appointment, section 15(2) says that.  What other restrictions are there to be found in section 15?

MR HINTON:   I am not saying it is a restriction, your Honour.  What I am endeavouring to do is to persuade your Honours that is not enough.  Yes, you can appoint temporary ‑ ‑ ‑

KIEFEL J:   But why?

MR HINTON:   But if you only need them for a month, why would you appoint someone to a teaching service for a position of a month where there is ‑ ‑ ‑

HAYNE J:   Because the office is held at the pleasure of the Minister.  See section 15(6).  The Minister can say, “It no longer pleases me that you are a member of the teaching service.  Goodbye.”

MR HINTON:   Then we engage questions of procedural fairness, the appeal mechanisms potentially, and so on.

HAYNE J:   But if a temporary teacher is engaged, terminable at will, where is the difficulty that requires additional flexibility?

MR HINTON:   At the objective purpose level, all I can point to is the requirement to provide teachers for education, preschool, primary, secondary anywhere in this State at any time, and the obvious contingencies then that must be planned for, anticipate if you can, but you cannot always anticipate them of course, in the course of doing so.  Everything from School of the Air to English teachers on the Aboriginal lands to the primary school two blocks away in Gillie Street.

KIEFEL J:   But it is not as if an appointment under section 15 creates some hurdles or obstacles or delays, you are hinting at there being some urgency or something which would distinguish an appointment under section 15 from a contractual appointment.

MR HINTON:   What I am hinting at is really what is wrong with having this residual power to make sure that you can cater for every given situation?

HAYNE J:   Well, let us point it up a bit, Mr Solicitor, what does the contract which we see as the typical contract at page 12 of the appeal book give the Minister that section 15 does not?  A lot of equation with the provisions of section 15.  There is frequent reference to as if the contracting party were a member of the teaching service.  What does it give the Minister that he or she does not have under 15?

MR HINTON:   The short answer is nothing.  But again, does that mean that there is an absence of the power in section 9?

KIEFEL J:   It is more a question of what it does not give the person appointed, I suppose.

MR HINTON:   True.  But at the time that the appointment is made the person exercising the power has the discretion.  It is then a question of exercising the power for the proper purposes of the Act, for the proper purposes of the Act dictate, in one of those given situations where is not anticipated that the teacher will necessarily continue, that you must appoint to the teaching service.

KIEFEL J:   The regulation of persons appointed under contract, how is that undertaken, that is, the power to discipline?

MR HINTON:   Purely via the contractual arrangements, your Honour.

FRENCH CJ:   Can you appoint part‑time teachers under Part III whether they be permanent or temporary?

MR HINTON:   Yes, you can.

FRENCH CJ:   Where do you find that?

MR HINTON:   Purely in the breadth of the power in section 15.

HAYNE J:   You are temporally appointed to fulfil a point five teaching load at school X would be within the power of 15, would it not?

MR HINTON:   Yes, your Honour.  With the special needs of a handicapped child somewhere else, you might need someone.....if I can use that phrase.

FRENCH CJ:   Would you accept then that anything for which you could invoke section 9(4) in terms of the appointment of a teacher could be done under section 15, apart from the constraints and terms and conditions and so forth are imposed by Part III.

MR HINTON:   Yes.  Is it necessary then, is the question, and does 9(4) still give you the power for practical reasons not to do so, and our submission is for practical reasons section 9(4) is an auxiliary player, if you like.  It provides flexibility, if you like.  It reflects the breadth of the function, role and purpose of the Minister in administering the Act in providing education for those children ‑ ‑ ‑

FRENCH CJ:   When you speak of flexibility, you mean flexibility in terms and conditions?

MR HINTON:   Flexibility in terms and conditions and in being able to discharge his functions.

FRENCH CJ:   Flexibility in terms and conditions outside the framework of terms and conditions required by Part III.

MR HINTON:   If necessary, yes, and the primary example is a 67‑year‑old teacher that you might need because there is no one else who can at the time or is available at the time to fulfil that two week need.

KIEFEL J:   Mr Solicitor, would a purpose of Division V of Part III, which deals with discipline, be the creation and maintenance of standards in relation to teaching which might not be met by ad hoc appointments?  Leaving the latter part of the question aside, could it be said that that is a purpose of Division V?

MR HINTON:   It could definitely be said if we had that consequence.

KIEFEL J:   Yes, and its purpose.  It is intended ‑ ‑ ‑

MR HINTON:   Including you could achieve it through the contractual process and equally, there are the non‑government schools who also obtain a standard.  So it is not necessary ‑ ‑ ‑

KIEFEL J:   But the provision of powers to discipline in relation to a body implies something more, does it not?  It implies that there would be some consistency of treatment and standards to which teachers thereby come to learn that they must aspire both in relation to the quality of teaching and their conduct.

MR HINTON:   I do not disagree with your Honour.  That equally can be achieved through regulation, course content.

KIEFEL J:   What about the conduct of teachers?  You were going to say it is sufficient if their contracts are terminated.

MR HINTON:   Yes, your Honour.  In terms of quality in teaching though, the existence of the teaching service is not the primary mechanism of ensuring that there is this quality.  There are other mechanisms, the requirements for registration, for example, which exist for all teachers in this State wherever they teach, and then we have the regulation‑making power that could also feed into ‑ ‑ ‑

KIEFEL J:   But the disciplinary powers, the purposes of them, are not unlike any other profession and we know what they are intended for in relation to lawyers.

MR HINTON:   True, your Honour, but at the same time you can avoid them by virtue of simply having your ticket and complying with the normal guidelines of the profession itself, course content, satisfaction of your headmaster.  The context, if I can move to that, and it is here that we do concern ourselves with the Anthony Hordern principle and we do not latch onto mode.  What we do look at is the question of whether or not section 9(4) and section 15 are the same power such that one defeats, if you like, the other. 

We accept that section 15 and Part III will have the consequence that there is that body of teachers available to the Minister at any time, but it is not a body of teachers from which there is – and we do make this submission – a demand anywhere in the Act from which teachers must be appointed to government schools.  It is a facility that allows the Minister to have that body available, but it is not exclusive, in our submission, of a power that permits appointment where that facility does not allow him to discharge his responsibilities.  It is not the same power within the Anthony Hordern principle, as explained primarily by your Honours Justices Hayne and Gummow in Nystrom’s Case.  If it is not the same power, then as a principle of construction it does not decide this case.  We get that perhaps, as your Honour the Chief Justice says, to the question of the text. 

Importantly, the observations we made about Part III and the teaching service are that there is no obvious criteria for eligibility other than you are a teacher, but it is only so many teachers as the Minister thinks fit are appointed to the teaching service, and one can imagine that the size of this body of teachers at any given time is controlled by practical budgetary constraints that any Minister responsible for the administration of an Act such as this, with the assistance of the Department, will be subject to.

HAYNE J:   No doubt that is why section 16 is there, to permit retrenchment.....

MR HINTON:   Your Honour is right.  Does it permit a speedy expansion?  Budgetary constraints might not allow that.  Time might not allow it.  Why not just appoint under section 9(4) for the three weeks over which we had the difficulty in that school in the south east?

FRENCH CJ:   What is the difference between doing that and appointing a temporary teacher under section 15?

MR HINTON:   Nothing other than why, when it was not anticipated, that the ongoing benefits of Part III for that teacher are necessary is it necessary?

FRENCH CJ:   A temporary teacher is temporary.  The benefits are only there for so long as the teacher is – the term continues.

MR HINTON:   Yes, your Honour, but a temporary teacher might be one ‑ ‑ ‑

FRENCH CJ:   You can appoint a teacher for three weeks, can you not?

MR HINTON:   Yes, your Honour, you can.  If the Court pleases, the best I can do is submit that there are some exigencies, contingencies that 9(4) allows for that ‑ ‑ ‑

HAYNE J:   The bottom line, Mr Solicitor, is the Minister thinks it can be done cheaper under 9(4) than it can under 15.  Is that not the bottom line?

MR HINTON:   The Minister thinks that in the prevalent circumstances, that is the best approach, yes, your Honour.  But if by your Honour’s question it carries with it an implication that for 30 years in South Australia successive Ministers have sought to short change teachers, then I need to disabuse your Honour of that.

HAYNE J:   Those are questions that can be beaten out in the industrial tribunals with all the rigour and fire that is expected of such bodies.

MR HINTON:   There has never been any allegation of it, your Honour.  Everybody has, from the moment they have been employed, understood which provision they have been employed under and to the extent that as of 1988 there was an award that set out these things, it was made ‑ ‑ ‑

FRENCH CJ:   I suppose what we are trying to do is pin down the exigencies to which you Delphically refer which justify the application of section 9(4) to the appointment of teachers.

MR HINTON:   I cannot walk away from the fact that many of them can be dealt with under Part III, perhaps the vast majority, but does that mean that you necessarily do not have the residual power?  In my submission, it does not, because the power contained in section 15(1) is not a power to appoint to teach, it is a power to appoint to the teaching service.  Implicit in that is yes, there is that body of teachers and they will be plundered so that the schools of the State and the kindergartens of the State.....but not exclusively.  Unless there is the exclusive requirement and section 9(4) lives on, the words in parentheses do not achieve a cut.  They say in addition to, as well as. 

We come then to your Honour Justice Hayne’s question as to those words in 9(4) where one comes to appointing a teacher, is it for the proper administration of the Act, and for the reasons we have provided in our written submissions at paragraph 28 that my learned friend took you to, we say it is.  The proper administration of the Act starting with the long title, moving through to the requirement to provide schools, correspondence schools, courses of instruction, accommodation for teachers, accommodation for students, technical education, transport, et cetera, is such that the administration of the Act includes, in our submission, the appointment of teachers.  Whether it means then as well as or apart from, does not answer the question.  It is still broad enough, in our submission, to be that auxiliary power that provides flexibility where required.

The context in which section 9(4) is to be found within section 9 itself is not unimportant.  Section 9(1), of course, burdens the Minister with having to establish primary and secondary schools and later, as I have said, preschool education as well.  Subsection (2), correspondence schools, subsection (3) has the power to close through its rationalisation, but that is not something that can necessarily be done overnight, of course.  Subsection (4) is where we deal with the personnel in schools in addition to a broad power, in my submission, to achieve the purposes of the Act and should be given that broad interpretation.

FRENCH CJ:   You have got constructional choice, have you not?  The words “in addition to the officers of the Department and of the teaching service” may be taken on one view as simply adjectival in relation to the class of officers and employees that the Minister may appoint.  In other words, they are a distinct class.

MR HINTON:   If you have constructional choice, they are minded of the functions and the role of this Act and what it seeks to achieve throughout the State.  Why give it a narrower interpretation, where there is no allegation of abuse, where there is the power undoubtedly to review or acting beyond the exercise of the discretion, or acting beyond a valid exercise of discretion?  You go on, we have teacher training, we have accommodation for students and teachers, you can acquire land, to provide transport, and you then have technical education and the needs that that itself contemplates. 

Of course, in section 7, the Minister is created as a body corporate, perpetual succession, common seal can acquire, hold and dispose of real and personal property and acquire other legal rights and liabilities capable of being sued and suing, et cetera, indicative of give this Minister every power he needs in order to make sure that this Act works.  In my submission then, there is no reason to read down section 9(4) to exclude

from it a power to appoint a teacher to a government school who is not a member of the teaching service.

FRENCH CJ:   It is a question of whether the alternative is reading down or reading up.  I mean, the proposition I just put to you that what is in parentheses is, in effect, descriptive of the class of officers and employees that the Minister may appoint and it does not involve a reading down.  It says that is what the class is and there are other provisions relating to another class of person called officers of the department and another class of person called officers of the teaching service.

MR HINTON:   Yes, your Honour.  My submission is such officers ‑ ‑ ‑.

FRENCH CJ:   You say the interpolated part is part of the description of the power?

MR HINTON:   Yes, your Honour, and give it the breadth that the Act requires in order to have its full effect.  For my learned friends to succeed, there has to be in section 9(4) words read in.  There has to be somewhere the words “other than teachers”.  It is not a necessary implication by any means.  For them to succeed, in my submission, the section has to read something like, “The minister may appoint such officers and employees, other than teachers in addition to the officers of the department and of the teaching service.”  An officer appointed under 9(4) cannot be a teacher and an employee under 9(4) cannot be a teacher.  You have to have a proper carve out.  Without those words, in my submission, the section is not capable of being construed as having a proper carve out. 

It is undoubtedly a broad discretionary power and in our oral submission notes we refer your Honours to Klein v Domus Pty Ltd 109 CLR 467. I have copies for your Honours. It is not on our list, I regret. I wish to take your Honours, in particular, to page 473 of the report, the judgment of Chief Justice Dixon at about point 5, the sentence commencing “This Court”. The breadth of discretion is given to judicial and administrative bodies and the relevance of looking at the scope and purpose of the provision and its real objective has been the criteria according to which one determines the valid exercise of the power provided in the discretion. That, in my submission, would apply to the Minister in the exercise of his power under section 9(4) to appoint a teacher to a government school who is not a member of the teaching service. If the Court pleases, for those reasons and those contained in our written submissions.....

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Whitington.

MR WHITINGTON:   Nothing in reply, if the Court pleases.

FRENCH CJ:   Thank you.  The Court will reserve its decision.  The Court adjourns until 2.30 this afternoon.

AT 12.34 PM THE MATTER WAS ADJOURNED