Oakes v Chief Executive, Department of the Premier and Cabinet (SA)

The parties in this matter were Kerry Margaret Oakes, the appellant, and the Chief Executive, Department of the Premier and Cabinet (SA), the respondent. The dispute concerned the validity of provisions within the Budget Measures Act 2014 (SA) that sought to retrospectively validate certain appointments of teachers. The question of law was referred to the Supreme Court of South Australia for determination.

The central legal issue before the Court was whether Part 1 of Schedule 1 to the Budget Measures Act 2014 (SA) constituted a valid enactment of the Parliament of South Australia. This question arose in the context of a prior High Court decision which had found that the Minister for Education had unlawfully appointed temporary teachers under section 9(4) of the Education Act 1972 (SA), rather than exclusively under section 15 of that Act, as had been the practice. This unlawful practice had the effect of excluding certain teachers from long service leave entitlements.

The Court considered the High Court's decision in *Australian Education Union v Department of Education and Children’s Services* (2012) 248 CLR 1, noting that the High Court had determined that section 9(4) did not authorise the appointment of teachers and that such appointments could only be made under section 15. However, the High Court had remitted the question of the teachers' long service leave entitlements for further consideration and had not determined whether appointments purportedly made under section 9(4) could be supported by another source of power. The Court then examined the text, context, and purpose of the impugned provisions of the Budget Measures Act 2014, which purported to treat as valid appointments made by the Minister in circumstances where the High Court had found them to be invalid. The Court drew a parallel with the principles discussed in *Duncan v Independent Commission Against Corruption* [2015] HCA 32, concerning the retrospective validation of conduct.

The Court concluded that the provisions of Part 1 of Schedule 1 to the Budget Measures Act 2014 (SA) were a valid enactment of the Parliament of South Australia.