Oakes v Chief Executive, Department of the Premier and Cabinet (SA)
[2015] SASCFC 144
•9 October 2015
Supreme Court of South Australia
(Full Court)
OAKES v CHIEF EXECUTIVE, DEPARTMENT OF THE PREMIER AND CABINET (SA)
[2015] SASCFC 144
Judgment of The Full Court
(The Honourable Acting Chief Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
9 October 2015
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - RETROSPECTIVE OPERATION - DECLARATORY AND VALIDATING ACTS
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF ACTS - RETROSPECTIVE OPERATION - AS REGARDS VESTED RIGHTS, PAST TRANSACTIONS OR NEW RIGHTS OR LIABILITIES - GENERALLY
Question of law referred to the Full Court for determination. Between the enactment of the Education Act 1972 (SA) and 21 February 2005, the Minister for Education purported to appoint teachers engaged on a temporary basis pursuant to general powers contained in section 9(4) of the Act, rather than section 15, which specifically addressed temporary teachers. The effect of this practice was to exclude teachers appointed under section 9(4) from the more generous long service leave regime provided for in part 3 of the Act, which was available to teachers appointed under section 15. This caused an industrial dispute. The High Court held that teachers could not be validly appointed under section 9 and could only be validly appointed under section 15. The Budget Measures Act 2014 (SA) was subsequently passed and addressed, inter alia, the long service leave entitlements of temporary teachers, including those “purportedly appointed” under section 9, who were treated “as if” they were lawfully appointed.
Whether the provisions of Part 1 of Schedule 1 to the Budget Measures Act 2014 (SA) are a valid enactment of the Parliament of South Australia.
Held per Gray ACJ (Sulan and Stanley JJ agreeing)(answering the question in the affirmative):
1. The provisions do not impermissibly interfere with the High Court’s decision in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1.
2. The provisions do not target courts or interfere with the courts’ processes or capacity to exercise judicial power.
Education Act 1972 (SA) s 9(4), s 15, s 22A and s 101B; Budget Measures Act 2014 (SA), referred to.
Australian Education Union v Department of Education and Children’s Services [2009] SAIRC 37; Australian Education Union v Department of Education and Children’s Services [2010] SASC 161; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Humby; Ex parte Rooney (1973) 129 CLR 231; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1913) 16 CLR 245; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings (2012) 250 CLR 503; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Duncan v Independent Commission Against Corruption [2015] HCA 32; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 (2012) 246 CLR 117; Re Macks; Ex parte Saint (2000) 204 CLR 158, considered.
OAKES v CHIEF EXECUTIVE, DEPARTMENT OF THE PREMIER AND CABINET (SA)
[2015] SASCFC 144Full Court: Gray ACJ, Sulan and Stanley JJ
GRAY ACJ.
The following question of law has been referred to the Court for determination:
Are the provisions of Part 1 of Schedule 1 to the Budget Measures Act 2014 (SA) a valid enactment of the Parliament of South Australia?
Background
Between the enactment of the Education Act 1972 (SA) and 21 February 2005, the Minister for Education purported to appoint teachers engaged on a temporary basis pursuant to general powers contained in section 9(4) of the Act,[1] notwithstanding that the Minister had the power to appoint temporary teachers under section 15, which specifically addressed the teaching service. The effect of this practice was to exclude teachers appointed under section 9(4) from the long service leave regime provided for in part 3 of the Act. After 2005, temporary teachers were appointed under section 15 of the Act. Those teachers’ long service leave entitlements were governed by part 3 of the Act.
[1] This provision was replaced with section 101B of the Education Act 1972 (SA). Section 9(4) as then in force 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.
In 2007, the South Australian Branch of the Australian Education Union notified an industrial dispute against the Department of Education and Children’s Services in the Industrial Relations Commission of South Australia. The proceedings, brought on behalf of the plaintiff in the present proceeding, Kerry Margaret Oakes, and another teacher, Nouhad Jawhari, were instituted as a test case. Two questions were referred to the Full Court of the Industrial Relations Court for determination on a case stated:
1. 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 of the Act provide exclusively for the appointment of teachers?
2. In consequence of the Court's answer to Question (1), are the long service leave entitlements of Mr. Nouhad Jawhari and Mrs. Kerry Margaret Oakes governed by the provisions of the Public Service Sector Management Act 1995, or Division 3 of Part III the Education Act 1972?
On 29 May 2009, the Full Court of the Industrial Relations Court concluded that section 9(4) of the Education Act authorised the Minister to appoint officers to be engaged as teachers, which made it unnecessary for the Court to answer question 2.[2]
[2] Australian Education Union v Department of Education and Children’s Services [2009] SAIRC 37.
On 28 May 2010, the Full Court of the Supreme Court dismissed the Union’s appeal from the decision of the Full Court of the Industrial Relations Court.[3] As a consequence, the Court did not consider question 2.
[3] Australian Education Union v Department of Education and Children’s Services [2010] SASC 161.
On 29 February 2012, the High Court allowed the Union’s appeal from the Full Court of the Supreme Court. The High Court held that the practice of employing temporary teachers pursuant to section 9(4) of the Education Act was unlawful and that temporary teachers could only have been lawfully employed pursuant to section 15.[4] The second question on the case stated was remitted to the Full Court of the Industrial Relations Court for “further consideration”. The proceedings in the Full Court of the Industrial Relations Court were subsequently abandoned. As a consequence, question 2 on the case stated has not been answered by any court.
[4] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1.
On 28 February 2013, the plaintiff commenced proceedings against the first defendant, the Chief Executive of the Department of the Premier and Cabinet,[5] as a class action on behalf of herself and about 1,000 other temporary teachers to recover the long service leave entitlements which they would have enjoyed had they been employed under section 15 of the Education Act, rather than section 9(4). By its defence, the State admitted that the plaintiff’s long service leave entitlements are to be determined in accordance with part 3 of the Education Act.
[5] The High Court ordered that the Chief Executive be substituted for the Department of Education and Children’s Services as a party to the proceedings. The State of South Australia has been added as the second defendant to these proceedings.
On 2 October 2014, the Budget Measures Act 2014 (SA) received Royal Assent. Part 1 of schedule 1 to the Act was proclaimed on 23 October 2014 and amends part 3 of the Education Act in the following terms:
Amendment of section 5—Interpretation
Section 5(2)(a)—delete paragraph (a) and substitute:
(a) —
(i) in the case of an officer to whom section 22A applies—the period (if any) of the officer's continuous service in the teaching service determined in accordance with that section; or
(ii) in any other case—the period (if any) of the officer's continuous service in the teaching service; and
Amendment of section 22—Interruption of service
Section 22—after subsection (4) insert:
(5) This section does not apply in relation to an officer of the teaching service to whom section 22A applies.
Insertion of section 22A
After section 22 insert:
22A—Special provisions relating to certain temporary officers of the teaching service
(1) This section applies to an officer of the teaching service who is, or was during any relevant period, a prescribed temporary teacher (other than an officer of a class declared by the regulations to be excluded from the operation of this section).
(2) On the commencement of this section—
(a) all entitlements in respect of long service leave and skills and experience retention leave accrued or purportedly accrued before the commencement of this section by an officer of the teaching service to whom this section applies will be taken to be extinguished; and
(b) the Minister must confer entitlements in respect of long service leave and skills and experience retention leave determined in accordance with this section on an officer of the teaching service to whom this section applies in respect of the officer's service completed before the commencement of this section.
(3) The entitlement to long service leave and skills and experience retention leave of an officer of the teaching service to whom this section applies is to be determined as follows:
(a) to the extent that the officer's service was completed before the commencement of this section—the entitlement is to be determined by the Minister as if the officer had been lawfully appointed under section 101B or a corresponding previous provision of this Act or the repealed Act;
(b) to the extent that the officer's service is completed on or after the commencement of this section—the entitlement is to be determined by the Minister—
(i) as if the officer had been lawfully appointed under section 15 or a corresponding previous provision of this Act or the repealed Act; and
(ii) on the basis that subsection (5) applies, and has always applied, to the question of whether a particular period of the officer's service is a period of continuous service.
(4) In making a determination under subsection (3)(a), the Minister must ensure that the entitlements of an officer are not less than the officer would have been entitled to had he or she been appointed under the Public Sector Act 2009 or a corresponding previous Act (as in force at the time of appointment) instead of this Act.
(5) For the purposes of this or any other Act, where either before or after the commencement of this section the service of a person employed under this Act, or the repealed Act, was interrupted otherwise than by resignation or dismissal for misconduct and he or she is, or was, subsequently appointed as an officer of the teaching service within the prescribed period after the date of that interruption, his or her service before the interruption and his or her service after the interruption will (except to the extent to which he or she has received long service leave, or payment in lieu of long service leave, in respect of any such period of service) be taken into account as though that service were continuous.
(6) For the purposes of this or any other Act, where an officer has previously been in prescribed employment and his or her service in the prescribed employment is continuous with his or her service as an officer (determined in accordance with this section as if the prescribed employment was employment in the teaching service), the long service leave to which he or she is entitled under this Act will be determined on the basis that his or her service in the prescribed employment is effective service (and section 24(3), (4) and (5) will be taken to apply to the service as if section 24(6) had not been enacted).
(7) To the extent that a matter relating to the long service leave or skills and experience retention leave of an officer to whom this section applies is not able to be determined under another provision of this section, the matter is to be determined in accordance with a determination of the Minister.
(8) If a person was, during a particular period, both an officer of the teaching service to whom this section applies and an officer of the teaching service to whom this section does not apply, this section will be taken to apply only in respect of that part of the officer's service undertaken as a prescribed temporary teacher.
(9) Nothing in this section affects the validity of—
(a) a period of long service leave or skills and experience retention leave; or
(b) a payment of a monetary amount in lieu of long service leave or skills and experience retention leave,
taken or made under this or any other Act before the commencement of this section.
(10) This section has effect despite—
(a) any other provision of this Act or a provision of any other Act or law; and
(b) a term of a contract, enterprise bargaining agreement, undertaking or other instrument or agreement (however described) that was in force immediately before the commencement of this section.
(11) In this section—
prescribed employment has the same meaning as in section 24(2);
prescribed period, in relation to an interruption of an officer's service as contemplated by subsection (5), means—
(a) 3 calendar months (disregarding any period of school vacation falling immediately after the officer's service before the interruption and immediately before his or her service after the interruption); or
(b) if a longer period is prescribed by the regulations for the purposes of this definition—that period;
prescribed temporary teacher means an officer of the teaching service who—
(a) —
(i) was, before the commencement of this section, purportedly appointed under section 9 of this Act (as in force at the time of the purported appointment); or
(ii) was or is (whether before or after the commencement of this section) appointed or purportedly appointed under section 15 of this Act; and
(b) was not, or is not, so appointed on a permanent basis.
(12) The regulations may make provisions of a saving or transitional nature in respect of the operation of this section.
Amendment of section 23—Transfer of teachers to other Government employment
Section 23—after subsection (2) insert:
(3) For the purposes of the Public Sector Act 2009 and any other Act, the question of whether particular service of an officer who is an officer of the teaching service to whom section 22A applies is continuous service is to be determined in accordance with that section.
Amendment of section 24—Rights of persons transferred to the teaching service
Section 24—after subsection (5) insert:
(6) This section does not apply to a person who is, or who will be on becoming an officer of the teaching service, an officer of the teaching service to whom section 22A applies.
The plaintiff has challenged the constitutional validity of the legislation, in particular the newly inserted section 22A. The plaintiff advanced three principal challenges to the legislation. The first is that Parliament has reversed the High Court’s decision in Australian Education Union v Department of Education and Children’s Services.[6]The second is that Parliament has intervened in the litigation so as to direct an outcome favourable to the State. The third is that the Parliament has withdrawn the litigation from the “ultimate superintendence of the High Court”.
[6] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1.
The defendants submitted that the Budget Measures Act does not alter the order made by the High Court, namely that section 9(4) of the Education Act did not authorise the Minister to appoint temporary teachers. It was further submitted that the Act does not confer any function on the courts, is not directed particularly at courts and would be applied by courts exercising judicial power in an independent and impartial manner according to the ordinary rules regarding judicial process. As a consequence, it was submitted that the Act does not infringe on the institutional integrity of state courts.
The High Court’s Decision in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1
Before turning to address the plaintiff’s contentions, it is necessary to consider the scope of the High Court’s decision in Australian Education Union v Department of Education and Children’s Services. As noted earlier in these reasons, the High Court only answered the first of the two stated questions. The Court ordered that the second question be remitted to the Full Court of the Industrial Relations Court. The Court’s answer to the first question on the case stated was:[7]
Section 9(4) of the Education Act 1972 (SA), at the time that it was in force, did not authorise the Minister to appoint offıcers to be engaged as teachers and s 15 of the Act provided exclusively for the appointment of teachers.
In arriving at that answer, French CJ, Hayne, Kiefel and Bell JJ said:[8]
... The conclusion that question 1 was erroneously answered by the Full Court of the IRC does not involve a conclusion about the validity of appointments purportedly made under s 9(4). A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. ...
[Emphasis added.]
[7] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 21.
[8] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, [34].
The High Court’s reasons and orders make it clear that the Court held that teachers could not be appointed pursuant to section 9(4) of the Education Act. The Court further held that teachers could only be appointed pursuant to section 15 of the Act. This was a declaration of the proper interpretation of statutory provisions. The High Court expressly declined to determine how the plaintiff’s long service leave entitlements were governed – it remitted that question to the Full Court of the Industrial Relations Court for further consideration. The plurality expressly declined to conclude whether the appointments purportedly made under section 9(4) could be supported by another source of power. In particular, the plurality did not conclude that appointments purportedly made under section 9(4) were to be taken to have been made under section 15. Heydon J, who arrived at the same conclusion on question 1 of the case stated as the plurality but provided separate reasons, did not address the point at all in his reasons.
The Budget Measures Act 2014 (SA)
Having determined the scope of the High Court’s decision in Australian Education Union v Department of Education and Children’s Services,[9] it is convenient to address the effect of the impugned provisions of the Education Act, as inserted by the Budget Measures Act. This requires a consideration of the text, context and purpose of the provisions.[10]
[9] Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1.
[10] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings (2012) 250 CLR 503; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378.
Section 22A(11) of the Education Act creates a class of “prescribed temporary teachers”. The members of that class include teachers “purportedly appointed” under section 9 or “appointed or purportedly appointed” under section 15 if they were not appointed on a permanent basis.
The newly inserted section 22A(2)(a) extinguishes certain leave entitlements “accrued or purportedly accrued” by prescribed temporary teachers prior to the commencement of the section. Section 22A(2)(b) requires the Minister to confer new leave entitlements on prescribed temporary teachers in accordance with the other provisions of section 22A. Depending on when a teacher’s service was completed, subsection (3) provides that their benefits are to be assessed “as if” they had been lawfully appointed under sections 15 or 101B, which, as noted above, was the successor provision to section 9. Subsection (4) provides that the entitlements must not be less than those to which teachers would have been entitled under the Public Sector Act 2009 (SA). Subsection (5) addresses the circumstances in which a period of service will “be taken” to have been continuous.
It may be accepted that the new provisions expressly contemplate that appointments under section 9(4) were invalid. The provisions do not validate those appointments, they treat the appointments as if they were valid. The provisions address the entitlements of teachers appointed on a temporary basis, irrespective of how they were appointed and whether their appointment was lawful.
The breadth of the new provisions discloses a parliamentary purpose of creating a new regime for the leave entitlements of temporary teachers, irrespective of the provision under which they were appointed or purportedly appointed. The legislation does not discriminate between teachers on the basis of whether they were purportedly appointed under section 9 or section 15.
The mischief to which the new regime is directed is disclosed in the second reading speech:[11]
On 29 February 2012 the High Court of Australia found that the mechanism used by successive governments for the appointment of temporary teachers was not authorised under the Education Act 1972.
The practical effect of the mechanism that is available for these appointments is that some temporary teachers with service from 1972 potentially have access to an allowable break in service of up to 2 years for the purposes of long service leave accrual, compared to 3 months break in service that applies to other public sector employees.
It was not the intention of successive governments to provide a more generous entitlement for accrual of long service leave to temporary teachers than are available to other public sector employees. The potential implications have significant financial consequences for the State and provide a benefit to temporary teachers not available to other public sector employees.
This Bill will retrospectively extinguish the 2 year rule for temporary teachers bringing long service leave accruals for temporary teachers in line with other public sector employees.
It is to be noted that, although the Treasurer refers to the High Court’s decision, the purpose of the legislation is to address the leave entitlements of all temporary teachers. As noted above, this includes teachers purportedly appointed under section 9 and teachers appointed under section 15.
[11] South Australia, Parliamentary Debates, House of Assembly, 19 June 2014, 917 (Hon A Koutsantonis).
Consideration
It may be accepted that the Budget Measures Act purports to treat as valid appointments by the Minister in circumstances where the High Court held that such appointments were invalid. The High Court has on a number of occasions considered whether legislative provisions of this kind are lawful. In Duncan v Independent Commission Against Corruption,[12] the High Court considered legislation which had retrospectively authorised conduct of the Independent Commission Against Corruption. It is relevant to consider that decision in some detail. The legislation considered by the High Court in that case relevantly provided:
[12] Duncanv Independent Commission Against Corruption [2015] HCA 32.
34 Interpretation
(1) In this Part:
relevant conduct means conduct that would be corrupt conduct for the purposes of this Act if the reference in section 8(2) to conduct that adversely affects, or could adversely affect, the exercise of official functions included conduct that adversely affects, or could adversely affect, the efficacy (but not the probity) of the exercise of official functions.
(2) A reference in this Part to anything done or purporting to have been done by the Commission includes a reference to:
(a)anything done or purporting to have been done by an officer of the Commission, and
(b)any investigation, examination, inquiry, hearing, finding, referral, recommendation or report conducted or made by the Commission or an officer of the Commission, and
…
35 Validation
(1) Anything done or purporting to have been done by the Commission before 15 April 2015 that would have been validly done if corrupt conduct for the purposes of this Act included relevant conduct is taken to have been, and always to have been, validly done.
(2) The validation under subclause (1) extends to the validation of:
(a)things done or purporting to have been done by any person or body, and
(b)legal proceedings and matters arising in or as a result of those proceedings,
if their validity relies on the validity of a thing done or purporting to have been done by the Commission.
(3) The validation under subclause (1) extends to the validation of things on and from the date they were done or purported to have been done.
(4) The Commission is authorised (and is taken always to have been authorised) to exercise functions under this Act on or after 15 April 2015 to refer matters for investigation or other action to other persons or bodies, or to communicate or provide evidence given to the Commission to other persons or bodies, even if the matter arose or the evidence was given to the Commission before 15 April 2015 and its validity relies on the validation under subclause (1).
(5) Subclause (4) applies even if any finding of corrupt conduct that relates to the matter or evidence is declared a nullity or otherwise set aside by a court.
The appellant in that case contended that the legislation was invalid as it directed the court to treat as valid acts which were and remained invalid. The plurality, consisting of French CJ, Kiefel, Bell and Keane JJ, considered that the legislation operated in the following manner:[13]
As a matter of the ordinary use of language, cll 34 and 35 deem to be valid acts done by the respondent before 15 April 2015 to the extent that they would have been valid if corrupt conduct as defined in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions.
In this way, cll 34 and 35 operate to amend s 8(2) of the ICAC Act in its application to acts done by the respondent prior to 15 April 2015. Parliament thereby changed the meaning of "corrupt conduct", as a matter of substantive law, from the meaning given to that expression in Cunneen in respect of acts occurring before 15 April 2015. It is not to the point that cl 35 does not expressly purport to "amend" s 8(2): it is well settled that a statute which effects an alteration of the provisions of an earlier statute amends that earlier statute even though it may not expressly describe itself as "an amending statute".
...
Clause 35 operates so that the legal position so declared is the same as if the respondent had been authorised by the ICAC Act to investigate and report on conduct that included "relevant conduct" as defined in cl 34; and cl 35 also attaches to the respondent's findings, "as acts in the law, consequences which it declares them to have always had".
[Footnotes omitted.]
The plurality then said:
Because cll 34 and 35 widened the scope of the expression "corrupt conduct", and thereby widened the jurisdiction of the respondent in relation to its investigation, the principal ground of the applicant's challenge to the validity of Pt 13 is not made out. On behalf of the applicant, it was acknowledged that if Pt 13, properly construed, does no more than attribute the consequences of legal validity to things done by the respondent, then his challenge must fail. This concession was rightly made. Some brief reference to earlier decisions of this Court will suffice to explain why that is so.
[13] Duncanv Independent Commission Against Corruption [2015] HCA 32, [11]-[12], [15].
The plurality summarised the Kable principle in the following terms:[14]
[14] Duncanv Independent Commission Against Corruption [2015] HCA 32, [16]-[17].
As this Court recently noted in Attorney-General (NT) v Emmerson, the Kable principle stands for the proposition that, in the case of a State court capable of being invested with the judicial power of the Commonwealth:
"State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid." (footnote omitted)
As was explained in H A Bachrach Pty Ltd v Queensland, Kable takes as its starting point:
"the principles applicable to courts created by the Parliament under s 71 [of the Constitution] and to the exercise by them of the judicial power of the Commonwealth under Ch III. If the law in question here had been a law of the Commonwealth and it would not have offended those principles, then an occasion for the application of Kable does not arise."
[Footnotes omitted.]
The plurality cited with approval the following remarks of Dixon J in Nelungaloo Pty Ltd v The Commonwealth, in which his Honour held that legislation was valid where it was:[15]
[S]imply a retrospective validation of an administrative act and should be treated in the same way as if it said that the rights and duties [of the parties to the litigation] should be the same as they would be, if the order was valid.
[15] Duncanv Independent Commission Against Corruption [2015] HCA 32, [19]; Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, 579.
The plurality considered R v Humby; Ex parte Rooney,[16] which concerned a challenge to legislation deeming the pronouncements of a non-judicial officer as having been pronounced by a judge of the Supreme Court. The plurality cited with approval the following remarks of Mason J in that case:[17]
Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.
[16] R v Humby; Ex parte Rooney (1973) 129 CLR 231.
[17] Duncanv Independent Commission Against Corruption [2015] HCA 32, [20]; R v Humby; Ex parte Rooney (1973) 129 CLR 231, 250.
The plurality addressed the High Court’s decision in Australian Education Union v General Manager of Fair Work Australia[18] in the following terms:[19]
[18] Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117.
[19] Duncanv Independent Commission Against Corruption [2015] HCA 32, [22]-[23].
In AEU, this Court considered the validity of s 26A of the Fair Work (Registered Organisations) Act 2009 (Cth), which provided that, where the registration of an association under the Workplace Relations Act 1996 (Cth) prior to the commencement of s 26A was invalid only because that organisation's rules did not provide for the termination of membership or preclusion from membership of particular persons, that registration would be taken to be valid and to have always been valid. All members of this Court rejected the contention that s 26A was an impermissible interference with judicial power.
French CJ, Crennan and Kiefel JJ said:
"If a court exercising federal jurisdiction makes a decision which involves the formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by the court. Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment. Section 26A was such a law."
To similar effect, Gummow, Hayne and Bell JJ referred with approval to the following passage in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs:
"It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch III vests exclusively in the courts which it designates." (emphasis added)
[Footnotes omitted.]
The plurality rejected the contention that the legislation was an impermissible interference in pending litigation:[20]
It is now well settled that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Constitution even if those rights are in issue in pending litigation.
[20] Duncanv Independent Commission Against Corruption [2015] HCA 32, [26]; see also HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547.
A further relevant consideration for the plurality was that:[21]
... cl 35 does not purport to confer any power or function upon a court. Importantly, it does not purport to give a direction to a court to treat as valid that which the legislature has left invalid.
[21] Duncanv Independent Commission Against Corruption [2015] HCA 32, [27].
Gageler J summarised the issue for consideration as follows:[22]
... The proposition is that cl 35 operates to attach new legal consequences to an invalid act of ICAC while accepting that the act remains invalid.
Gageler J expressly accepted that the acts addressed by the amendment would have been in excess of the power previously conferred on the Commission and would have remained so but for the new provisions.
[22] Duncanv Independent Commission Against Corruption [2015] HCA 32, [37].
Gageler J considered the effect of the legislation and said:[23]
In going on to provide that those historical acts of ICAC are "taken to have been, and always to have been, validly done", cl 35(1) does no more than to provide that the authority conferred on ICAC extends by force of cl 35(1) itself to include authority to have done those historical acts. An historical act of ICAC which would have been in excess of the power conferred on ICAC for the reason stated by the majority decision in Cunneen were it not for the enactment of the Validation Act is brought within the power conferred on ICAC through the operation of cl 35(1) itself. That which was "invalid" (in excess of the authority granted to ICAC by the Parliament) is thereby made "valid" (within the authority granted to ICAC by the Parliament). Sub-clauses (2) and (3) of cl 35 respectively spell out the consequential and retrospective effects of that "validation".
[23] Duncanv Independent Commission Against Corruption [2015] HCA 32, [41].
Gageler J concluded:[24]
There is no novelty in the proposition that "in general, a legislature can select whatever factum it wishes as the 'trigger' of a particular legislative consequence". There is even less novelty in the legislative selection of the historical fact of a previously unauthorised administrative act as the trigger for the retrospective conferral of legislative authority on the administrator concerned to have done that act: a legal consequence fairly described as validation . That is all that has happened here.
[Footnotes omitted.]
[24] Duncanv Independent Commission Against Corruption [2015] HCA 32, [42].
Nettle and Gordon JJ agreed with the plurality that the provisions had the effect of deeming to be valid acts which were invalid. However, they considered that the new provisions did not effect a change in the law. Rather they considered that the provisions:[25]
... create a new or different legal regime in which, for a prescribed period of time, the concept of corrupt conduct (as defined in s 8(2) of the ICAC Act) is taken to be expanded to encompass conduct which adversely affected, or could adversely affect, the efficacy, but not the probity, of the exercise of official functions. Clauses 34 and 35 then validate acts done during that time according to the new or different legal regime.
[25] Duncanv Independent Commission Against Corruption [2015] HCA 32, [47].
In my view, the plaintiff’s challenges to the Budget Measures Act should be rejected. The Act does not have the effect of impermissibly interfering with the High Court’s decision in Australian Education Union v Department of Education and Children’s Services. As earlier discussed, that decision determined that section 9 of the Education Act was not a valid source of power to appoint temporary teachers and that only section 15 empowered the government to appoint temporary teachers. The Budget Measures Act expressly accepts that appointments under section 9 of the Education Act were invalid by the use of terms such as “purported” and “as if”. The Budget Measures Act affects substantive rights and effects a change to the law, namely temporary teachers’ leave entitlements. It does not target courts or interfere with the courts’ processes or capacity to exercise judicial power. To adopt the language of the plurality in Duncan,[26] the legislation widens, retrospectively, the jurisdiction of the Minister to appoint temporary teachers. The legislation attributes the consequences of legal validity to things done which were not previously valid. To adopt the language of Gageler J, the legislation uses the historical fact of a previously unauthorised administrative act, namely purported appointments of temporary teachers under section 9 of the Education Act, as the trigger for the retrospective conferral of legislative authority on the administrator. If the approach of Nettle and Gordon JJ is adopted, the Budget Measures Act would be read as creating a new legal regime and validating the appointments according to that new regime.
[26] Duncanv Independent Commission Against Corruption [2015] HCA 32.
Conclusion
In my view, part 1 of schedule 1 of the Budget Measures Act 2014 (SA) is a valid enactment of the Parliament of South Australia. I would answer the question referred to this Court in the affirmative.
SULAN J: I would answer the question in the affirmation. I agree with the reasons of Gray ACJ.
STANLEY J: I would answer the question referred to this Court in the affirmative. I agree with the reasons of Gray ACJ.
I merely add that the conclusion that the provisions of Part 1 of Schedule 1 to the Budget Measures Act 2014 (SA) (the Act) are a valid enactment of the Parliament of South Australia follows from the proper construction of those provisions. Those provisions relevantly extinguish the existing entitlements to long service leave and skills and experience retention leave of persons who fall within the definition of “prescribed temporary teacher” and direct the Minister to confer fresh long service leave and skills and experience retention leave entitlements in respect of their service. The relevant provision, s 22A, is set out in the reasons of Gray ACJ and I need not repeat it.
Section 22A requires that to the extent a prescribed temporary teacher’s qualifying service is completed on or after the commencement of the section, the entitlement is to be determined by the Minister as if the officer had been lawfully appointed under s 15 or a corresponding previous provision of the Education Act 1972 (SA) (the Education Act) (emphasis added).
The employment of the “as if” devise in legislative drafting has a lengthy pedigree consistently upheld by the High Court.[27]
[27] Federated Engine Drivers and Fireman’s Association of Australasia v Broken Hill Pty Co Ltd (1913) 16 CLR 245; R v Humby, ex parte Rooney (1973) 129 CLR 231; Re Macks, ex parte Saint (2000) 204 CLR 158.
The employment of that device does not undo the effect of the High Court’s judgment in AEU v DECS.[28]On the contrary, the definition of “prescribed temporary teacher” in s 22A(11) proceeds on the assumption that the decision of the High Court in AEU v DECS[29] is correct. The impugned provisions leave untouched both the orders of the Court and the legal standing and effect of its decision, namely, that s 9(4) of the Education Act was not a source of power pursuant to which the Minister could act to appoint teachers to the teaching service. The Parliament, having extinguished accrued leave entitlements by s 22A(2), provides pursuant to s 22A(3) that the new entitlements to leave of prescribed temporary teachers are to be determined by the Minister by reference to an assumed state of fact identified in plactita (a) and (b) of s 22A(3). The content of the fresh entitlements of prescribed temporary teachers are to be determined by reference to what they would have received had they been lawfully appointed under s 101B or s 9(4) of the Education Act despite the fact that they were not.
[28] [2012] 248 CLR 1.
[29] [2012] 248 CLR 1.
The statute extinguishes the accrued rights of prescribed temporary teachers and creates a mechanism for the establishment of new rights, liabilities and obligations in relation to leave entitlements. Those new rights, liabilities and obligations operate prospectively. In fixing the new rights, liabilities and obligations in respect of leave entitlements, the Minister is directed by the Act to calculate the entitlement pursuant to a mechanism that is identified by the fiction in s 22A(3). The fiction is the direct result of the statute proceeding from the proposition that the High Court’s decision in AEU v DECS[30] is correct. The judgment is not nullified at all. The present proceedings in this Court are for the purpose of enforcing entitlements to leave which were the subject matter of the remittal by the High Court to the Full Court of the Industrial Relations Court of South Australia. No court has made any declaratory orders or entered any judgment establishing any entitlements to leave on the part of the plaintiff or the class of persons of whom she is a representative.
[30] [2012] 248 CLR 1.
None of this has the effect of nullifying the judgment of the High Court in AEU v DECS.[31]Accordingly, the plaintiff’s submission must be rejected.
[31] [2012] 248 CLR 1.
12
1