Australian Education Union v Department of Education and Children's Services
[2010] SASC 161
•28 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
AUSTRALIAN EDUCATION UNION v DEPARTMENT OF EDUCATION AND CHILDREN'S SERVICES
[2010] SASC 161
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
28 May 2010
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION - CONFERRAL AND EXTENT OF POWER
Appeal by the Australian Education Union from a decision of the Full Bench of the Industrial Court, finding that section 9(4) of the Education Act 1972 (SA) authorised the Minister to appoint officers to be engaged as teachers, in addition to the appointment of teachers under section 15 of the Act – whether section 9(4), properly construed, authorised the Minister to appoint teachers or whether section 15 provided the exclusive power for such appointment – consideration of legislative scheme.
Held: appeal dismissed – section 9(4) of the Education Act, at the time it was in force, authorised the Minister to appoint officers to be engaged as teachers independently of section 15 of the Act.
Fair Work Act 1994 (SA) s 12, s 191; Education Act 1972 (SA) s 9(4), s 15, s 22, Part 2, Part 3; Education Act Amendment Act 1986 (SA) s 5; Education Act Amendment Act 1979 (SA) s 12; Education Act Amendment Act 1980 (SA) s 2; Education (Part Time Remuneration) Amendment Act 1991 (SA); Public Service Act 1967 (SA); Government Management and Employment Act 1985 (SA) s 11; Public Sector Management Act 1995 (SA), referred to.
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; Cusack v Parsons (1988) 48 SASR 364; Connaughton v Director-General of Education (Unreported judgment, Teachers Appeal Board, 31 October 1988); South Australian Education Department Casual Teachers Award (1984) 51 SAIR 159; Owen v South Australia (1996) 66 SASR 251; Hoare & Easton v The Queen (1989) 167 CLR 348; R v Nemer (2003) 87 SASR 168; Platz v Osborne (1943) 68 CLR 133; Thompson v Nixon (1966) 1 QB 103; Reg v Matthews (1873) 12 Cox CC 489; Smeaton v Secretary of State Health [2002] EWHC 610 (Admin), considered.
AUSTRALIAN EDUCATION UNION v DEPARTMENT OF EDUCATION AND CHILDREN'S SERVICES
[2010] SASC 161Full Court: Nyland, Gray and Vanstone JJ
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Gray J.
GRAY J:
This is an appeal by the Australian Education Union from a decision of the Full Bench of the Industrial Court.[1] The respondent to the appeal is the Department of Education and Children’s Services.
[1] Pursuant to section 191(1)(b) of the Fair Work Act 1994 (SA).
Introduction
A question of law was referred to the Industrial Court by the South Australian Industrial Relations Commission.[2] The question concerns the proper construction of certain provisions of the Education Act 1972 (SA) and was in the following terms: [3]
Did s 9(4) of the Education Act 1972, at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did s 15 provide exclusively to the appointment of teachers?
[2] Pursuant to section 12(a) of the Fair Work Act 1994 (SA).
[3] A second question put to the Industrial Court is not relevant for the purposes of this appeal.
The question arose in the context of claims made by two persons represented by the Teachers’ Union, who asserted that they, as relief teachers appointed by the Minister pursuant to section 9(4), were entitled to long service leave entitlements provided by the Education Act for members of the “teaching service”.
The question of law required the Industrial Court to decide whether the Minister of Education, when appointing a teacher in the exercise of powers conferred by the Education Act, had the power to appoint a teacher under section 9(4), with the consequence that the teacher in question did not become a member of the “teaching service” for the purposes of the Act.
The Industrial Court answered the question in the affirmative, finding that section 9(4) of the Education Act authorised the Minister to appoint officers to be engaged as teachers, in addition to the appointment of teachers under section 15 of the Act. It is from this answer that the Teachers’ Union appealed. Permission to appeal was granted by this Court,[4] for reason, inter alia, that, having regard to the statutory entitlements of a teacher who is a member of the teaching service, the question appeared to be of practical and industrial significance. The question before this Court raises an issue of law of broad importance as to the limits on the powers of appointment of the Minister of Education.
[4] Australian Education Union v Department of Education and Children’s Services [2009] SASC 208 (Doyle CJ, Bleby & Kelly JJ).
For over 30 years since the enactment of the Education Act in 1972, the Minister has appointed teachers engaged on a temporary basis by exercising his general powers contained in section 9(4) of the Education Act. The practice of appointing temporary teachers under section 9(4) developed, notwithstanding the fact that section 15 of the Act provides the Minister with powers with respect to appointments of teachers to be “officers of the teaching service”, including on a temporary basis.[5]
[5] It is to be noted that section 9(4) was deleted from the Education Act in 2006 by section 30 of Act No. 41 of 2006, and a provision in identical terms inserted as section 101B of the Act.
It is to be noted that the practice has been the source of a protracted dispute between the Teachers’ Union and the Department. The practice was ultimately discontinued on 21 February 2005. All temporary appointments are now made under section 15. However, the effect of the practice over time has been to exclude those appointed under section 9(4) from the teachers’ long service leave regime provided for in Part III of the Act, which is confined to persons appointed under section 15.[6] It is to be observed that those entitlements are significantly greater than those available to other officers and employees appointed under the Education Act, including those appointed pursuant to section 9(4).
[6] This in turn has also significantly reduced the potential entitlements of section 9(4) appointees by excluding them from more generous treatment following interruptions of service for the purpose of calculating continuous service pursuant to section 22 of the Education Act 1972 (SA).
If the appointments were not authorised by section 9(4), and were taken to have been made under section 15, then persons purportedly appointed under section 9(4) may have an entitlement, or a greater entitlement, to long service leave. The parties agreed that in that event, their entitlement should be determined in the Industrial Court.
In the Industrial Court, Senior Judge Jennings and Judge Gilchrist concluded that section 9(4) was the repository of relevant power:
Although, it is true that s 15 of the Act permits the Minister to appoint members of the teaching service on a temporary basis and therefore affords the Minister some flexibility, it does not necessarily follow that it gives the Minister all of the flexibility necessary to fulfil the Minister’s obligations under the Act.
The provisions contained within Part 3 of the Act provide detailed specified rights to members of the teaching service that might be thought unnecessarily prescriptive in respect of the ad hoc appointment of relief teachers in the diverse circumstances alluded to by the Commission as set out above.
The maxim and the Anthony Hordern principle that the Union referred us to are not rules of law. They are no more than aids to construction. Ultimately our task is to discern Parliament’s intention. The very wide and general powers conferred upon the Minister in Part 2 suggest that it was Parliament’s intention to empower the Minister, subject to the constraints imposed by the Act, to do whatever is necessary to make proper provision for primary and secondary education in this State. We agree with the Solicitor-General that this calls for a generous construction that allows for flexibility. The construction that he urges upon us does no violence to the language used and in our opinion should be preferred.
Judge McCusker, in agreeing, observed:
While recognising the force of the Union’s schematic argument, it does not however in my opinion overcome the language of the grant in s 9(4). The only limitation on the Minister when appointing officers and employees is the considered necessity for the proper administration of the Act or the welfare of the students at any school. Moreover s 15 is a power made, “subject to this Act”. No such limitation is placed on the Minister in s 9. Lastly the words, “in addition”, indicate simply that such appointees are in addition to existing personnel and additional to or supplementing the appointments under s 11 and s 15.
…
My conclusion must therefore be that s 9(4) of the Education Act 1972 authorised the Minister to appoint teachers to schools.
The Appeal
The question for determination on appeal, is the proper interpretation of section 9(4).[7] At issue is whether the subsection, properly construed, authorised the Minister to appoint teachers or whether section 15 provided the exclusive power for the appointment of teachers.
[7] At the time during which it was in force; that is, from the enactment of the Education Act 1972 (SA) in 1972, until the deletion of section 9(4) on 1 April 2007.
The Legislative Scheme
It is convenient to first address the relevant legislation, on its enactment, and as amended during the relevant period.
The Education Act creates a scheme to enable the provision and regulation of primary and secondary education in South Australia. The scheme addresses both public and private education. The scheme further addresses the appointment of teachers and other public officers necessary for the education and welfare of school students and for the proper administration of the Act. The Act provides the Minister with relevant powers to achieve these purposes.
The Education Act is divided into ten parts. Part II contains two divisions, with Division I dealing with the Minister and Division II with the Department.
There are relevant sections contained within Division 1, including section 6, which gives the Minister control of the teaching service and the general administration of the Act. Further, section 9 deals with general powers of the Minister, and as mentioned, section 9(4) is the provision the subject of these proceedings. When first enacted in 1972, section 9(4) provided:
The Minister may appoint such officers and employees (in addition to the officers of the Department and of the teaching service) as he considers necessary for the proper administration of this Act or for the welfare of the students of any school.
There was one amendment to the sub-section prior to its deletion in 2007. Section 5 of the Education Act Amendment Act 1986 (SA) struck out the words “officers of the Department” and substituted “employees and officers of the Department”. The change in terminology to “employees and officers of the Department” can be explained by the repeal of the Public Service Act 1967 (SA) and its replacement by the Government Management and Employment Act 1985 (SA)[8] which did not reproduce the definition of an “officer” found in the earlier Act but instead referred to “employment in the Public Service”.
[8]That Act was later replaced by the Public Sector Management Act 1995 (SA).
Division II of Part II, as in force at times relevant to this proceeding, by section 11,[9] provides that there be a Director-General of education as the permanent head of the Education Department, that there be Director-Deputy-Generals of education as may be necessary and that there be such other officers as may be necessary or expedient for the proper administration of the Act.
[9] Before its deletion by Act No 84 of 2009, section 11 had remained materially in the same terms since the enactment of the Education Act in 1972.
Part III of the Education Act deals with the teaching service, and is divided into eight divisions, dealing with, inter alia, the appointment of teachers to the teaching service, classification of officers and positions, promotions and transfers, retrenchment and retirement, long service leave, discipline, and the Teachers Appeal Board.[10] Section 15 appears in Part III, and at the time of its enactment, provided as follows:
[10] When first enacted, Part 3 also dealt with the Teachers Salary Board which set wages and conditions applicable to 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.
(3)The first appointment of an officer to the teaching service may be made upon probation.
(4)The probation shall be for such period not exceeding two years as may be determined by the Minister.
(5)No officer appointed on a permanent basis (other than an officer appointed on probation) 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.
There have been amendments to sub-sections (4), (5) and (6) of section 15 of the Education Act, so that prior to the repeal of section 9(4) in 2007, section 15 read:
(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.
(3)The first appointment of an officer to the teaching service may be made upon probation.
(4)The probation shall be for such period of effective service (not exceeding two years of effective service)[11] as may be determined by the Minister.
(5)No officer appointed on a permanent basis[12] 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[13] shall hold office at the pleasure of the Minister.
[11] Section 12(a) of the Education Act Amendment Act 1979 deleted the words “such period not exceeding two years” and inserted in lieu thereof the words in bold.
[12] The words “(other than an officer appointed on probation)” were deleted by s 12(b) of the Education Act Amendment Act 1979 and replaced with the words “(other than an officer on probation)”, which were in turn deleted by section 2(a) of the Education Act Amendment Act 1980.
[13] The words “or appointed on probation” were deleted by section 2(b) of the Education Act Amendment Act 1980.
Both “teacher” and “the teaching service” were defined in section 5 of the Education Act, as it stood prior to the repeal of section 9(4), as follows:
“teacher means a person who gives or is qualified to give instruction in any course of —
(a) pre-school education; or
(b) primary education; or
(c) secondary education;
the teaching service means the teaching service constituted under Part 3, and includes the teaching service as constituted under the repealed Act …”[14]
[14] These definitions were substituted by the Education Act Amendment Act 1976 (No 2), section 3(f) and (g).
At the time of its enactment in 1972, the definitions of “teacher” and “the teaching service” in the Act read as follows:
“teacher” means any person who gives, or is qualified to give, instruction at any Government of non-Government school…
the teaching service” means the teaching service constituted under Part III of this Act …
The Parties’ Submission
The Teachers’ Union’s primary contention was that it could not have been Parliament’s intention that the Minister had two mechanisms by which to appoint teachers. It drew support for this argument by relying on the structure of the Education Act, which it said provides an exhaustive code for the provision of education in the public school system, and contemplates that public education is to be effected by only members of the “teaching service” appointed by the Minister within schools regulated by the Department. The Teachers’ Union asserted that importantly, section 9(4) distinguished between on the one hand, officers of the Department and those of the teaching service, and on the other, additional personnel, separate to the Department and the teaching service. It was said that the words “in addition to” in section 9(4), reflected the fact that the appointments made under that section were outside of the corps of the Department and also the teaching service.
Further, the Teachers’ Union, sought to rely on the maxim expressum facit cessare tacitum, in support of its construction of the Act. The expression means the explicit overrides, or brings to an end, the implicit. A statement of the rule is to be found in the judgment of Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers as follows: [15]
An enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
[15] R v Wallis ex p. Employers Association of Wool Selling Brokers (1949) 78 CLR 529 per Dixon J (as he then was) at 550;
The maxim has at times been referred to as the Anthony Hordern principle. In Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia,[16] Gavan Duffy CJ and Dixon J observed:
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 for the same power.
[16] Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7.
The Teachers’ Union, in effect, contended for a narrow construction of section 9(4), such that the words do not apply to teachers. It was said that section 9(4) is a general power, as it is not on its face limited, and that section 15 is a specific power as it provides that only “teachers” may be appointed to the teaching service under section 15. It was then contended that applying the High Court’s reasoning in R v Wallis; Ex parte Employers Association of Wool Selling Brokers,[17] the ambit of section 15 is “ostensibly wholly within the ambit of” section 9(4). There would be nothing to prevent all teachers, permanent or otherwise, from being appointed under section 9(4). It was contended that however fanciful that eventuality might seem “politically speaking”, “legally speaking”, the Court should not adopt a construction which would permit something so fundamentally inconsistent with the purpose of the Education Act.
[17] R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529.
It was contended by the Department that ordinarily, a provision such as section 9(4) should be read widely. The essence of the Department’s submissions, was that the when giving the impugned words of the Education Act their natural and ordinary meaning, there was no warrant to read down the terms of section 9(4), nor was there any inference open in light of the language used, that the Minister could not appoint a teacher under either section 9(4) or section 15. It was said that although section 15 was the primary avenue by which teaching appointments were made, it was logical that a supplementary and more flexible means of appointing teachers was available to ensure the broad objectives of the Act were met; namely, that the educative needs of the State of South Australia be adequately met.
Earlier Authority
In Cusack v Parsons,[18] the Full Court determined that the Teachers Appeal Board lacked jurisdiction to hear an appeal brought by a teacher. The Board’s jurisdiction was limited to the hearing of appeals brought by “officers of the teaching service”. A matter considered by the Court was the effect of the teacher’s employment pursuant to section 9(4) of the Education Act. The Court considered whether the teacher was “an officer of the teaching service”.[19] After discussing the meaning of the word “teacher” as used in the Act, Jacobs J observed:[20]
It is important to notice the width of that definition: it embraces all persons with the stated qualifications and is not confined to teachers in departmental or governmental schools, and indeed the Act in Pt IV, dealing with registration of teachers, speaks clearly to all such qualified teachers whether employed in government or non-government schools, or not employed at all. It is equally important to notice, however, that "teachers" in departmental schools are not necessarily officers in the teaching service. They may be "employees" appointed and engaged by the Minister pursuant to cl 9(4). They are there distinguished from "employees of the Department" and in everyday usage (but not in the Act), are sometimes referred to as "contract teachers". They are often young or recently qualified teachers seeking and awaiting appointment as officers.
[18] Cusack v Parsons (1988) 48 SASR 364.
[19] The decision has been followed in Connaughton v Director-General of Education (an unreported judgment of the Teachers Appeal Board dated 31 October 1988) and Scalzi v Education Department (an unreported judgment of the Industrial Relations Commission of South Australia, 12 May 1989).
[20] Cusack v Parsons (1988) 48 SASR 364 at 366 (Millhouse J agreeing).
On the hearing of this appeal, it was contended by the Teachers’ Union that the Industrial Court had fallen into error in holding that the judgment in Cusack gave support to the Department’s position. It was said that it was entirely unnecessary for the Court in Cusack to speculate on the scope of section 9(4), that it did not purport to do so, and that the observations that the Department sought to rely on were obiter dicta. I agree that the observations in Cusack were obiter dicta, however the observations remain pertinent and are observations with which I agree.
Discussion
The earlier extracted provisions of the Education Act disclose that the scheme of the Act was to create an Education Department with departmental officers and employees, and a teaching service consisting of the officers of that teaching service appointed by the Minister. Accordingly, there was a teaching service and a formal public service framework for appointment. Each framework was characterised by strictures and a formal structure, and yet together contemplated the employment of a vast range of people. Parliament separately empowered the Minister through section 9(4) to appoint other officers and employees “in addition to the officers of the department and of the teaching service” necessary for the proper administration of the Act or for the welfare of students of any school. 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
It may be concluded that section 9(4) was designed to allow persons to be appointed who were considered necessary for the education scheme to function, that is, additional to the officers of the Department and the teaching service. The evident purpose was to allow these additional appointees to attend to the proper administration of the Act and the welfare of the students of any school. 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.
In my opinion the section recognised that while there is system for a whole of department appointments and another for formal teaching appointments, it was also recognised that occasions may arise for the need for additional appointments to be made. 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. To the contrary, there is good reason why teachers should be included, particularly when regard is had to the range of unpredictable exigencies that may confront an education system.
The further power provided by section 9(4) resulted in a measure of flexibility in the way in which the Minister could address particular needs. In respect to “teachers”, section 9(4) had traditionally been used to appoint persons ranging from newly graduated teachers seeking practical experience before seeking more permanent work, to highly experienced teachers who had retired from full-time work who wished to engage in specific part-time work.[21] In my view, the section contemplated greatly varying job specifications and degrees of responsibility, and scope for the provision of specific terms of work. The Department pointed to examples to demonstrate a flexibility in the terms of teaching appointments, consistent with the purposes of the Act as discussed. These included the ability for an appointee to contract out of the obligation to serve anywhere in the State, the abrogation of the requirement for probation, the absence of the contract being “at the pleasure of the Minister”, and the applicability of the retirement age.
[21] See South Australian Education Department Casual Teachers Award (1984) 51 SAIR 159 at 163.
Conclusion
Section 9(4) of the Education Act 1972 (SA), at the time it was in force, authorised the Minister to appoint officers to be engaged as teachers independently of section 15 of the Act. I would dismiss the appeal.
VANSTONE J:
The Full Court of the Industrial Court was asked to determine questions of law concerning interpretation of provisions of the Education Act 1972. As the Act stood, there was an undoubted power to appoint teachers to be “officers of the teaching staff” under s 15 Education Act. The question at issue is whether the relevant Minister could also appoint a teacher under the more general power given in s 9(4) to appoint “… officers and employees (in addition to the officers of the Department and of the teaching service) …”. The Full Court found that the Minister was so authorised. The Australian Education Union challenges the correctness of the answers given.
The Crown Solicitor, Mr S Stretton SC, for the Department of Education and Children’s Services, puts forward four principal reasons why the Full Court of the Industrial Court is correct in its interpretation of the former s 9 Education Act 1972, and that while it was in force it authorised the Minister to appoint officers as teachers, independently of s 15 Education Act.
First he says the words of s 9(4), as it then was, are clear. This is, in my view, the substantial argument in this matter and I shall deal with it last.
Then, Mr Stretton relies on the second reading speech made at the time of the Education (Part Time Remuneration) Amendment Act 1991. In association with the passage of that Act the then Minister for Education spoke of the current practice of appointing casual teachers under s 9 and permanent teachers under s 15 of the Act: South Australia, Parliamentary Debates, House of Assembly, 15 November 1990, 1943 (The Honourable GJ Crafter, Minister of Education).
This Court discussed in Owen v South Australia (1996) 66 SASR 251 the use which can be made of a second reading speech in interpreting the mischief to which legislation is directed. That practice was followed in subsequent cases and referred to in Hoare & Easton v The Queen (1989) 167 CLR 348. It was further referred to in R v Nemer (2003) 87 SASR 168.
I do not think that a legitimate use of a second reading speech contemplated in these cases comprehends the use to which the Crown Solicitor would put this speech. The second reading speech to which counsel took us was made on 15 November 1990, long after the enactment of s 9 Education Act. As I mentioned, it was the second reading speech for an Act which was to amend the Education Act. In passing, the Minister referred to the then current practice of appointing casual teachers under s 9 of the Act. The Minister said:
The Bill provides for the denial of both retrospective and prospective salary claims and extends to any category of teacher or employee employed on a part-time basis. This includes casual teachers who, unlike the permanent teachers appointed under section 15 of the Education Act (‘officers of the teaching service’), are engaged under contracts of service pursuant to section 9(4) of the Act. …
As can be seen, this was, in effect, an incidental reference to the practice of the Minister and of his departmental officers and the view of the legislation which is implicit in that practice. It is very far from being in the nature of a second reading speech which, at the time of an enactment, identifies the mischief being addressed and the aim sought to be achieved by passage of the legislation. I do not think it appropriate to have regard to the then Minister’s speech. I have examined the second reading speeches made at the time when the Education Act 1972 was enacted and those made at the time of some of the later amendments. In my view none of them is helpful in terms of the point now under consideration.
Next Mr Stretton relies on a previous decision of this Court in Cusack v Parsons (1988) 48 SASR 364. In that case Jacobs J, with whom Millhouse J agreed, referred to the practice of appointing permanent teachers under s 15 and “contract teachers” under s 9(4). Cox J, who dissented in the result, referred to the “clear distinction” made by the Act “between those teachers who are officers of the teaching service and those who are not”. However, those references were made in the course of giving reasons for a decision which had nothing to do with whether a correct interpretation of the Act might allow appointments under either section. On the contrary, the decision concerned whether or not a person who was qualified as a teacher, but not currently working as one, could avail herself of the right of appeal given to persons appointed under s 15 to contest an appointment for which she was an unsuccessful applicant. I note that the Court expressed no disquiet in relation to the previous appointment of the teacher under s 9(4); the legitimacy of that appointment was assumed. Therefore, it cannot be said on the strength of this decision that this Court has previously considered and approved the apparent longstanding practice of appointing teachers under both sections.
The next argument mounted by the Crown Solicitor rested on the assertion that for a period of some 35 years the Minister had proceeded on the assumption that it was open to him, in appropriate circumstances, to appoint teachers, not only under s 15, but also under s 9. The persons so appointed had taken whatever advantages were available to them under that regime and had apparently been prepared to weather any disadvantages. Counsel argued that if this Court were to, in effect, overturn that practice and find that all such appointments were in fact made under s 15, it might be that thousands of long-completed contracts might have to be renewed and entitlements to the more generous long service leave provisions associated with the teaching service might need to be calculated.
In a supplementary submission to the Court, the Crown Solicitor referred to several authorities in support of his contention that long-standing custom and practice in interpreting a statute was, of itself, a factor favouring that long-standing interpretation. He referred to the following statement by Latham CJ in Platz v Osborne (1943) 68 CLR 133 at 137:
Where the construction of a statute is a matter of doubt the fact that it has been interpreted during a long period by courts of a State in a particular manner is certainly a matter to be taken into consideration in determining whether this Court should adopt a different construction, and this is more particularly the case where rights have been acquired or disposed of upon the faith of such decisions.
It may be noted that the Chief Justice was discussing the approach of the High Court to interpretations taken in state courts; but more importantly, the Chief Justice’s observation seems to be directed to curial controversies concerning statutory interpretation which have raged over a period. In the present case, the point is that there has not been any occasion for this Court to consider the relationship of sections 9(4) and 15.
The Crown Solicitor also drew support from what was described as the “presumption in favour of long held interpretations recognised in the courts of England and Wales”. Reference was made to Thompson v Nixon (1966) 1 QB 103, where the question arose whether the defendant had been rightly convicted. He had found a large paper bag containing feeding pellets lying by the roadside and had taken the pellets, initially with the aim of discovering the true owner and returning them, but had later decided to keep them. The narrower issue was whether, when he took the paper bag, he became a bailee, in which case his guilt would rest on his having committed larceny by a bailee. Sachs J, at 109, found that the case was analogous to Reg v Matthews (1873) 12 Cox CC 489 where the absence of intention to permanently deprive at the time of the taking was held to be inconsistent with any offence of larceny occurring at that time. Sachs J observed that no writer had suggested that Matthews was bad law; the subject matter affected the liberty of the subject and the arguments against the long-standing interpretation, while cogent, should not be held to prevail. Lord Parker CJ and Browne J agreed. The Crown Solicitor referred to Smeaton v Secretary of State for Health [2002] EWHC 610 (Admin) where the presumption for which these cases were said to stand was referred to but, in the end, found to be inapplicable to the facts at hand.
In my view, it is one thing for the courts to take a particular view of the interpretation of a statutory provision and to be reluctant to depart from that view. It is quite another for the Minister of Education to assert that he has acted in accordance with his own interpretation of statutory provisions relevant to him and that this has created some sort of long-standing precedent. I am unpersuaded by this argument.
I return to the argument based primarily on the wording of s 9(4).
It is convenient to set out the relevant sections as they were immediately before the repeal of s 9(4), in 2006.
9—General powers of Minister
(1) …
(2) …
(3) …
(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.
Section 9(4) was deleted by Act No 41 of 2006 and a provision in identical terms inserted as s 101B of the Act.
15—Appointment to teaching service
(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.
(3)The first appointment of an officer to the teaching service may be made upon probation.
(4)The probation shall be for such period of effective service (not exceeding two years effective service) as may be determined by the Minister.
(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.
Both parties focus on the words “in addition to” in s 9(4). On one view those words could be interpreted to mean “as well as”. On the appellant’s argument they might be interpreted as “apart from”. It is a matter of interpreting those words in their context and in the context of the Act as a whole.
It is easy to see, as Mr Stretton argues, that the ability to appoint people as teachers outside the machinery of s 15 would advantage the Minister. There might be all sorts of situations which would make such appointments appealing to the Minister. For instance, it might be wished to appoint a qualified teacher who had gone beyond the retiring age regulating s 15 appointees to a position where his or her services were seen to be particularly valuable. Or a teacher might refuse to make himself available for country service, as required by s 15 appointees. However desirable flexibility might be seen to be, I do not think that dictates any particular interpretation of the provisions. It would be one thing to provide to the Minister a general power which might allow him to make specific appointments where unusual circumstances pertained. However, as Mr Stretton conceded, on his argument, all appointments of teachers might be made under s 9, the general power of the Minister, leaving s 15 and its quite specific machinery moribund.
The very heading of Part 3 of the Act (where appears s 15, but not s 9), namely “The teaching service” suggests that there the Act is dealing exclusively with the appointment of teachers. Moreover, the other subject matter of s 9 suggests that, generally, the section is dealing with matters other than the appointment and regulation of teachers forming part of the teaching service.
The appellants argue that the natural meaning of the words “in addition to” as they appear in s 9(4) is “apart from”, so that the category of persons appointed under s 9(4) is to be exclusive of teachers who are appointed under s 15. Senior Counsel took the Court through the structure of the relevant parts of the Education Act to demonstrate the quite specific regime in Part 3 of the Act governing the teaching service. He submitted that the clear intention was that Part 3 created a code and Part 2 – dealing with the Minister and the Department – was intended to provide for the appointment of ancillary staff.
In terms of statutory interpretation, the appellant argued that this was not a case where it was necessary to read any words into s 9(4); rather it was simply a matter of interpretation of the words “in addition to”. The wording of s 9(4) was apt to preserve the division between the officers of the teaching service and the additional personnel appointed under s 9(4) who might be either officers or employees. Counsel suggested it was highly unlikely that the Parliament would intend that there be two regimes for the appointment of teachers, the one governed by the very specific provisions of Part 3 and the other subject only to the very general provisions of Part 2. Such an interpretation would allow the Minister to circumvent the specific provisions governing the teaching service, including the disciplinary and remunerative provisions provided by Parliament for it.
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 agree with the conclusion of the Full Court of the Industrial Court. I would dismiss the appeal.
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