South Australia v Teachers Appeal Board - [2011] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
THE STATE OF SOUTH AUSTRALIA v TEACHERS APPEAL BOARD AND ANOR
[2011] SASCFC 3
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
25 February 2011
EDUCATION - SCHOOLS - GOVERNMENT SCHOOLS - TEACHERS' EMPLOYMENT AND CONDITIONS OF SERVICE - OTHER MATTERS
PUBLIC SERVICE - BOARDS, TRIBUNALS AND APPEALS - SOUTH AUSTRALIA
The second defendant, a member of the teaching service under the Education Act 1972 (SA), appealed to the Teachers Appeal Board (the first defendant) against a decision of the Chief Executive of the Department of Education and Children's Services transferring her from her position within the Department - the State sought a declaration that the Teachers Appeal Board did not have jurisdiction to hear the appeal, contending that s 54 of the Education Act and reg 31 of the Education Regulations 1997 (SA) provide only for appeals against determinations by Chief Executives of appeals to them and not against first instance decisions of Chief Executives.
Held: the Teachers Appeal Board does have jurisdiction to hear the second defendant's appeal - Declaration made accordingly.
Education Act 1972 (SA) s 5, s 12, ss 15-17, s 26, s 45, s 53, s 54; Education Regulations 1997 (SA) reg 31, reg 32; Public Sector Act 2009 (SA) s 3, Sch 3; Education Act Amendment Act 1986 (SA), referred to.
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, discussed.
Cava & Ors v Marshall (2003) LSJS 347; Cusack v Parsons (1988) 48 SASR 364; Pooraka Holdings Pty Ltd v Participation Nominees Ltd (1989) 52 SASR 148; R v Ninnes [2009] SASC 40; Nguyen v Nguyen (199) 169 CLR 245; State of South Australia v McDonald (2009) 104 SASR 344; Barbaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1; Campbell College, Belfast (Governors) v Northern Ireland Valuation Commissioner [1964] 1 WLR 912; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Vardon v Promotion and Grievance Appeal Board [2007] SASC 137; Australian Education Union v Department of Children's Services [2010] SASC 161; Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551; Ringrose v College of Physicians and Surgeons [1977] 1 SCR 814; Law Society of Upper Canada v French [1975] 2 SCR 767; R v Peterborough Police Commissioners; Ex parte Lewis [1965] 2 OR 577; R v Howard [1902] 2 KB 363; R v The Corporation of the City of Whyalla (1979) 20 SASR 386; Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376, considered.

THE STATE OF SOUTH AUSTRALIA v TEACHERS APPEAL BOARD AND ANOR
[2011] SASCFC 3
Full Court: Doyle CJ, Gray and White JJ

DOYLE CJ: I have had the advantage of considering the proposed reasons of Gray and White JJ in this matter. I agree with the reasons that White J gives for joining in the declaration that the Court made on 10 February 2011.
White J would reject the tender of the affidavit affirmed by Ms Burtenshaw on 21 October 2010, subject to one exception. Gray J would admit the affidavit and exhibits. In his reasons Gray J draws on that material to support a conclusion that the appeal to the Teachers Appeal Board under consideration in these proceedings is part of a single disciplinary process that includes another decision by the Chief Executive, which decision is the subject of an unchallenged appeal to the Teachers Appeal Board. I also would reject the tender of the affidavit, subject to the same exception as White J. The case has proceeded before the Full Court on the basis that it is concerned only with a decision by the Chief Executive to transfer Ms Burtenshaw to another position. It was only during the course of argument that the suggestion first arose that the decision under consideration should be regarded as part of another decision by the Chief Executive. No submissions were developed on either side on this point. In any event, I would not permit Ms Burtenshaw to change the nature of the case at this late stage.
Accordingly, the case should be considered on the factual basis outlined by White J, and in relation to that I agree with his reasons.
GRAY J:
Introduction
Sue Burtenshaw, the second defendant, a teacher employed under the Education Act 1972 (SA) seeks to pursue an appeal before the Teachers Appeal Board. The plaintiff, the State of South Australia, has issued proceedings in this Court seeking a declaration concerning the jurisdiction of the first defendant, the Teachers Appeal Board. The State seeks a declaration in the following terms:
The Teachers Appeal Board does not have jurisdiction under section 54 of the Education Act 1972 and regulation 31 of the Education Regulations 1997 to hear and determine the appeal filed on or about 23 July 2010 by the second defendant from the decision of the Chief Executive of the Department of Education and Children’s Services communicated to the second defendant in a letter dated 8 July 2010.
The application of the State came on for hearing before a Judge of this Court on 10 November 2010. The Judge referred the proceeding to the Full Court for hearing and determination. The Teachers Appeal Board has taken no part in the proceedings. It has advised that it will abide the order of the Court. The trial proceeded before the Full Court on 9 December 2010.
On 20 December 2010, the Court listed the matter for the purposes of intimating to the parties that the Court had reached the conclusion that the Teachers Appeal Board had jurisdiction under regulation 31(2) of the Education Regulations 1997 (SA) to hear and determine an appeal to the Teachers Appeal Board against the decision of the Director-General to transfer the teacher the subject of the these proceedings, Ms Burtenshaw, to another location, provided that she first appeals in writing to the Director-General under regulation 31(1) and provided that she is not satisfied with the determination of the Director-General notified to her in writing. Subsequently, the Court has been informed that the parties have agreed that Ms Burtenshaw is able to pursue an appeal to the Teachers Appeal Board. That process has been undertaken.
On 10 February 2011 the Court made the following declaration:
[t]he Teachers Appeal Board has jurisdiction under section 54 of the Education Act 1972 and regulation 31 of the Education Regulations 1997 to hear and determine the appeal filed on 5 January 2011 by Ms Burtenshaw from the determination of the Chief Executive of the Department of Education and Children’s Services communicated to Ms Burtenshaw in a letter dated 23 December 2010.
My reasons for agreeing with the intimation and joining in the subsequent declaration now follow.
Background
Prior to 8 July 2010 Ms Burtenshaw was a member of the teaching service. That service was established by section 15 of the Education Act. Ms Burtenshaw held the position as principal of the Coober Pedy Area School. Matters of concern had arisen in regard to that school and disciplinary proceedings were initiated by the Chief Executive Officer[1] of the Education Department against Ms Burtenshaw. The facts and circumstances surrounding these disciplinary proceedings are set out in affidavits on file including in particular an affidavit of Ms Burtenshaw exhibiting extensive documentation.
[1] The Director-General is the Chief Executive Officer of the Department of Education and Children’s Services: see section 5(1) of the Education Act 1972 (SA). These terms are often used interchangeably in this context. For the purposes of consistency, I will now refer to the ‘Chief Executive’.
The Chief Executive reached certain conclusions in the disciplinary proceedings. He decided to discipline Ms Burtenshaw. A reprimand was imposed and shortly thereafter, Ms Burtenshaw was advised that a decision had been made to transfer her to another position in the Department. Ms Burtenshaw was notified of the reprimand by letter dated 1 July 2010, and was notified of the decision to transfer her by letter dated 8 July 2010.
Ms Burtenshaw has sought to appeal to the Teachers Appeal Board both the decision to reprimand and the decision to transfer her. The State of South Australia challenges the jurisdiction of the Teachers Appeal Board to address the decision to transfer. The scope and effect of regulation 31 of the Education Regulations arises for consideration. This brief introduction underscores the primary issue in this proceeding – the jurisdiction of the Teachers Appeal Board.
The challenge to jurisdiction, as will be discussed later in these reasons, has relevance well beyond the present proceeding. The challenge raises important matters of statutory interpretation and of administrative law. It has profound implications for members of the teaching service whose rights under the Education Act are the subject of administrative decisions and actions.
I should at the outset address the decision of a Judge of this Court in Cava v Marshall.[2] That case involved judicial review proceedings, where a denial of procedural fairness had been alleged. Teachers had been transferred from their positions, without notice or any opportunity to be heard in relation to the transfers. In the decision, Mullighan J, after referencing earlier decisions of the Teachers Appeal Board on the scope and effect of regulation 31 of the Education Regulations,[3] observed: “The Board could see no reason to conclude that “any officer of the Department” in Reg 31(1) could not include the Director-General, and I agree.”[4] The issue currently before this Court was not argued in Cava. Jurisdiction was conceded. The question of the construction of regulation 31 was not developed in the Judge’s reasons. It is to be accepted that the Full Court in State of South Australia v McDonald[5] cited the relevant passage in Cava v Marshall with approval. However, the issue arising in the present proceeding was not in question at all in McDonald. These factors, in my view, materially limit the weight that can be accorded to the observations made in Cava.
[2]    Cava v Marshall (2003) 230 LSJS 347.
[3]    And the predecessor to regulation 31.
[4]    Cava v Marshall (2003) 230 LSJS 347, 368.
[5]    State of South Australia v McDonald (2009) 104 SASR 344, 393.
Tender of Evidence on the Hearing
On the hearing of the application before the Full Court, counsel for the State initially proceeded as though the Court was addressing a question of law on referral. When it was pointed out that the full hearing of the summons was under consideration, the question of the tender of evidence arose. At this point the submissions of counsel for the State were interrupted to allow the evidentiary state of the proceedings to be addressed. The State tendered two affidavits. Ms Burtenshaw did not oppose the tender and did not seek to cross-examine on the affidavits. The State then closed its case. Ms Burtenshaw then tendered an affidavit dated 21 October 2010, and the exhibits to that affidavit. This tender was opposed by the State. The Court marked the affidavit and exhibits for identification, giving leave to the State to correspond with the Court in due course about its considered attitude to the tender. The State has advised that it does not object to paragraph 41 of the affidavit and exhibit SB 17 to the affidavit being received as part of the evidence in the trial. The exhibit is a letter, of 5 July 2010, written to the Chief Executive from Ms Burtenshaw, requesting that the Chief Executive not proceed to transfer Ms Burtenshaw to another position in the Department. However the State has advised that it does not admit the truth of all of the contents of the exhibit. The State has not informed the Court as to what portions of the exhibit the qualification relates.
It is my view the affidavit of Ms Burtenshaw and the exhibits thereto are relevant and probative and should be admitted in their entirety. The affidavit and exhibits set out the factual framework against which the declaration sought by the State is to be determined. I have drawn on the affidavit and exhibits to set out the chronology of events and to identify the assertions by the parties of their respective positions. I make it plain that I have not considered that the assertions of the parties as to their dispute are correct or justified. They are matters to be determined by the Teachers Appeal Board.
A decision as to jurisdiction in proceedings such as this should not be decided in a factual vacuum. To do so would involve the risk of this Court making assumptions of fact rendering the process hypothetical. This is not a case where the State has, pursuant to the Rules of Court, sought an interpretation of the statutory provision. What is being sought is a declaration as to the jurisdiction in the particular circumstances affecting Ms Burtenshaw. Part of the tendered material relates to disputes of fact lying behind the relevant circumstances at Coober Pedy. As discussed above, the material is not to be received as to the truth of those matters. However, the material should be received as to the course of events relevant to providing the context in which the question as to the jurisdiction of the Teachers Appeal Board is to be considered.
The Factual Background
Ms Burtenshaw was appointed as a member of the teaching service in about 1984. During 2004 she was the principal of Coober Pedy Area School, and between 2005 and 2007, as the principal of Gepps Cross Girls High School in Adelaide. Ms Burtenshaw was re-appointed as the principal of Coober Pedy Area School in about January 2008. Ms Burtenshaw deposed that she was aware that issues were extant with respect to student and staff retention and community and parent involvement in the school. In November 2009, consultants were appointed by the Department to undertake an external review of the school. In January 2010, Ms Burtenshaw met with the Chief Executive of the Department, where he informed Ms Burtenshaw of his intention to stand her aside from her position as principal of the school while an investigation was carried out into the school. In March 2010, Ms Burtenshaw met with the investigators.
By letter dated 30 April 2010, the Chief Executive informed Ms Burtenshaw that he had reached the view that she had engaged in conduct in breach of the Education Act and was liable to disciplinary action. The letter advised that if the Chief Executive determined that there was sufficient cause for disciplinary action, the Chief Executive may, amongst other things, reprimand Ms Burtenshaw. Ms Burtenshaw instructed solicitors. Further correspondences ensued.
Finally, by letter dated 1 July 2010, the Chief Executive notified Ms Burtenshaw that she was liable to disciplinary action pursuant to section 26(1) of the Education Act and imposed a reprimand pursuant to section 26(2)(a)(i) of the Act.
By letter dated 2 July 2010, the Chief Executive notified Ms Burtenshaw of his intent to transfer her to another position in the Department pursuant to section 15C of the Act.[6] Ms Burtenshaw wrote to the Chief Executive and by letter dated 5 July 2010, requested that he not proceed to transfer her as indicated. By letter of response of 8 July 2010, the Chief Executive notified Ms Burtenshaw of his decision to transfer her to another position in the Department.
[6] Section 15C of the Education Act 1972 (SA) relevantly provides:
15C—Transfer
The Director-General may transfer officers between positions in the teaching service but not so as to—
(a)reduce an officer's salary without the officer's consent; or
(b)effect promotion of an officer to a position at a higher classification level.
On 14 July 2010 Ms Burtenshaw lodged an appeal[7] to the Teachers Appeal Board against the disciplinary decision of the Chief Executive to reprimand. On 20 July 2010, Ms Burtenshaw lodged an appeal[8] to the Teachers Appeal Board against the transfer decision of the Chief Executive, seeking, inter alia, that the Board quash the decision. It is to be recalled that the challenge to the jurisdiction of the Teachers Appeal Board by the State to this Court relates to this latter decision; the Chief Executive’s decision to transfer Ms Burtenshaw.
[7] Pursuant to section 26(4) of the Education Act 1972 (SA).
[8] Pursuant to regulation 37 of the Education Regulations 1997 (SA).
Statutory Scheme
Part 3 of the Education Act is dedicated to the “Teaching Service”. Division 8 of Part 3 of the Act contains the primary statutory provisions dealing with the Teachers Appeal Board. Section 45 addresses the constitution of the Appeal Board. Section 46 sets out the terms and conditions on which the Appeal Board members hold office. The jurisdiction of the Appeal Board is addressed in section 49 as follows:
The Appeal Board should exercise such jurisdiction as is conferred on the Board under this Act or any other Act.
The Acts Interpretation Act 1915 (SA), by section 4(1), defines “Act” to mean:
(a)     an Act of the Parliament of South Australia or an Act or ordinance of some earlier legislative authority in South Australia; or
(b)     an Act of the Imperial Parliament that has been received into the law of South Australia or applies to South Australia by paramount force;
Section 4 further provides that when used in an Act, the term “this Act” includes statutory instruments made under the Act in which the expression is used. Statutory instrument is further defined to mean:
(a)     a regulation, rule, by-law or statute made under an Act; or
(ab)   a proclamation, notice, order or other instrument made by the Governor or a Minister under an Act and published in the Gazette; or
(b)     a code or standard made, approved or adopted under an Act; or
(c)     any other instrument of a legislative character made or in force under an Act;
Section 50 of the Education Act sets out the powers of the Teachers Appeal Board. Section 51 addresses representation. Section 52 provides that the Appeal Board is not bound by the rules of evidence, and is in the following terms:
In any proceedings under this Division, the Appeal Board shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms, and it shall not be bound by any rules of evidence, but may inform itself in such manner as it thinks fit.
Section 53 addresses appeals in respect of appointments to promotional level positions and in particular section 53(2a)(b), provides: “this section does not apply to – … transfer of an officer between positions in the teaching service”.
Section 54 is of particular relevance to the present proceeding, is titled “Additional Rights of Appeal”, and provides:
(1)In addition to the rights of appeal otherwise conferred on an officer by or under this Act, an officer may appeal to the Appeal Board against any administrative action or decision affecting the officer in relation to which a right of appeal is conferred by the regulations.
(2)Upon the hearing of any appeal under this section, the Appeal Board may give such orders and directions as it considers just in the circumstances of the case.
Also central to the present proceeding is regulation 31 of the Education Regulations, which falls under Division 5 of Part 3 of the Regulations dealing with “Appeals and disciplinary provisions for teachers”, is headed “Complaint against a Departmental officer”, and provides:
(1)If a teacher at any time considers that he or she has just cause of complaint against any officer of the Department when that officer is acting in the course of his or her duties, the teacher may appeal in writing to the Director-General for consideration of his or her case, and the Director-General shall notify the teacher in writing of his or her determination in that matter.
(2)Where the teacher is not satisfied with the determination of the Director-General notified to him or her in writing pursuant to subregulation (1), he or she may, within fourteen days of the receipt of that notification, appeal to the Appeal Board against the determination of the Director-General.

The Education Department is an administrative unit of the Public Service. That unit is, through the Education Minister, responsible for the administration of the Education Act. A person employed in or for the purposes of an administrative unit is employed in the Public Service under the Public Sector Act 2009 (SA). Section 3(2) of that Act deals with employment and is in the following terms:
(2) For the purposes of this Act and any other Act or law—
(a)a person employed in, or for the purposes of, an administrative unit is treated as an employee employed by the chief executive (from time to time) of the unit on behalf of the Crown; and
(b)a person employed or appointed under another Act, on behalf of the Crown, by an unincorporated public sector agency (including a chief executive of an administrative unit) is treated as an employee of the agency (as constituted from time to time); and
(c)a change in the chief executive of an administrative unit or the person who constitutes an unincorporated public sector agency will not affect the continuity of employment of a person employed in, or for the purposes of, the unit or by the agency.
Section 25(1) of the Public Sector Act, falling within the Division dealing with the composition of the Public Service, states that all persons employed by or on behalf of the Crown must be employed in the Public Service under the Public Sector Act.
Division 3 of Part 6 of the Public Sector Act addresses chief executives. The relevant provisions of that Division are set out below:
30—Chief executive to employ persons for administrative unit
(1)     The chief executive of an administrative unit may, on behalf of the Crown, engage persons as employees for the purposes of the unit.
(2)     A person engaged as an employee under subsection (1) becomes an employee in the unit unless excluded from the Public Service under section 25.
31—General duties of chief executive
(1)     The chief executive of a department is responsible to the Premier and the department's Minister for—
(a)making an effective contribution to the attainment of the whole of Government objectives that are communicated in writing by the Premier or the department's Minister and relate to the functions or operations of the department; and
(b)the attainment of the performance objectives set from time to time by the Premier and the department's Minister under the contract relating to the chief executive's employment; and
(c)the effective management of the department and the general conduct of its employees.
(2)     The chief executive of an office that is an attached office to a department or departments is responsible—
(a)     to the Premier and the office's Minister for—
(i)making an effective contribution to the attainment of the whole of Government objectives that are communicated in writing by the Premier or the office's Minister and relate to the functions or operations of the office; and
(ii)the attainment of the performance objectives set from time to time by the Premier and that Minister under the contract relating to the chief executive's employment; and
(b)to the chief executive of the department, or the chief executives of the departments, for—
(i)any specific matters relating to the attainment of whole of Government objectives; and
(ii)the effective management of the office and the general conduct of its employees.
34—Employment or assignment of persons as chief executives
(1)A chief executive of an administrative unit is to be engaged by the Premier.
(2)The Premier may assign a public sector employee to act as the chief executive of an administrative unit, or an administrative unit's Minister may assign an employee in the unit to act as the chief executive of the unit, during any period for which—
(a)no person is for the time being employed as the chief executive of the unit; or
(b)the chief executive of the unit is absent from, or unable to discharge, official duties.
The Teaching Service is the subject of Part 3 of the Education Act. Teachers are to be appointed by the Employing Authority, which is relevantly defined to be the Director-General who is further defined as the Chief Executive of the Education Department. As a consequence, members of the teaching service are employed under the Education Act and not the Public Sector Act. However, members of the teaching service are subject to administration by the Department of Education, being an administrative unit of the Public Service.
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 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.[9]
[9] See Australian Education Union v Department of Children’s Services [2010] SASC 161 at [13].
Consideration
Against the background provided by the facts and the statutory scheme, it is to be understood that Ms Burtenshaw’s complaints which she seeks to advance before the Teachers Appeal Board, relate to decisions made by the Chief Executive exercising administrative responsibilities under the Education Act.
When the factual circumstances are explored, they reveal an inextricable link between, on the one hand the disciplinary proceedings, and on the other, the decisions to reprimand and transfer. In my view, a question arises as to whether both decisions should be properly characterised as being part of the one disciplinary process. It is conceded by the State that Ms Burtenshaw had a right of appeal to the Teachers Appeal Board from decisions taken in disciplinary proceedings by the Chief Executive. There is no challenge to the jurisdiction of the Teachers Appeal Board in this respect. The challenge to jurisdiction only arises when there is a separation of the two decisions, and the decision to transfer is treated as being a separate and distinct decision from those decisions taken as part of the disciplinary process.
This now brings me to a consideration of the challenge to jurisdiction in the present proceeding. The contention of the State is that Ms Burtenshaw’s rights of appeal with respect to the decision to transfer are restricted to those rights that arise under regulation 31. It is said that regulation 31 contemplates a two-stage process: a right of appeal to the Chief Executive against a decision or action of an officer of the Department, and then a further right of appeal to the Teachers Appeal Board against the determination of the Chief Executive. In the present proceeding, the officer of the Department making the original decision, that is the decision to transfer, was the Chief Executive. It was said that in that circumstance, there was no right of appeal to the Chief Executive from a decision of the Chief Executive. The Chief Executive could not, it was said, sit on appeal from his own decision. As a consequence, it was submitted that the further right of appeal to the Teachers Appeal Board could not arise. The precondition contained in the regulation could not be fulfilled.
To my mind, this would be a most unfortunate interpretation. The regulation contemplates two rights of appeal; the second conditional on the first. On the State’s contention, the right of appeal to the Teachers Appeal Board would be avoided if the Chief Executive were to make the initial decision. It is unlikely that Parliament intended that rights of appeal should depend upon such a fortuity. It is to be noted that counsel for the State accepted that all decisions could be taken by the Chief Executive and that this could frustrate all rights of appeal under regulation 31. However, counsel acknowledged that a person acting as a delegate of the Chief Executive would be subject to review or appeal under regulation 31. A consideration of the above matters would suggest that the construction advanced by the State is artificial, implausible, and cannot be understood to give effect to the statutory purpose behind the regulation.
An alternative interpretation is available. There are many instances of statutes authorising the participation of decision makers who may have been held to be disqualified under the common law. I see no difficulty in the present proceeding of the Chief Executive reviewing his own decision to transfer. There is no difficulty in principle, and the teacher, if dissatisfied, has the further right of appeal to the Teachers Appeal Board.
A number of authorities have considered the circumstance where rules against interest and bias have been impliedly modified by reference to the construction of a statutory provision – particular regard being had to the legislative scheme and to common sense considerations relevant to its practical operation.[10]
[10] See for example Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551; Ringrose v College of Physicians and Surgeons [1977] 1 SCR 814; Law Society of Upper Canada v French [1975] 2 SCR 767; R v Peterborough Police Commissioners; Ex parte Lewis [1965] 2 OR 577; R v Howard [1902] 2 KB 363; see further R Tracey, ‘Disqualified Adjudicators: The Doctrine of Necessity in Public Law’ (1982) Public Law 628, 629.
In Jeffs v New Zealand Dairy Production and Marketing Board[11] the judicial committee of the Privy Council considered certain provisions of a New Zealand Act, which Act allowed the Dairy and Production Marketing Board to control product marketing through zoning arrangements and to make loans to dairy companies. Ultimately, the Privy Council rejected the submission that the Board should be disqualified from making zoning and other decisions in regard to a company to which it had loaned money. This conclusion was on the basis that the statute contemplated the exercise of the conflicting functions of adjudicator and creditor.[12]
[11] Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551.
[12] This reasoning has been cited for example in South Australia in R v The Corporation of the City of Whyalla (1979) 20 SASR 386, and Victoria in Metropolitan Fire and Emergency ServicesBoard v Churchill [1998] VSC 51, [132]-[136].
In R v The Corporation of the City of Whyalla,[13] King CJ made the following observations in the context of an alleged conflict between the adjudicating function of a municipal council and its financial interests in a project:
I have no doubt that the Council, in considering applications of this kind, is required to act judicially in the broad sense of that expression and is bound by the common law rules of natural justice so far as they may be applicable to the situation created by the statutory provisions: The Queen v. Medical Board of South Australia; Ex parte S.; Parliament may, however, by the scheme which it creates or authorises, impliedly exclude or modify the common law rules. In Jeffs v. New Zealand Dairy Production and Marketing Board, the Privy Council considered the problem which arose from New Zealand legislation which established a Dairy Production and Marketing Board with zoning powers and also authorised the Board to make loans to companies which would be affected by the zoning decisions. It was held that the legislature had shown a clear intention to make an exception to the general rule that a person should not be a judge in his own cause, and that the Board was required to determine zoning questions even though its pecuniary interests might be affected. I appreciate that it is not mandatory under s 36 of the Act for the Council to be the consenting body. The Regulations, consistently with s 36, could have made the consenting body the Authority either alone or concurrently with the Council. I think, however, that the legislative intention that the Council should make planning decisions is so clear and the area of potential interest, financial and otherwise, of the Council in those decisions so wide, that there must be implied a statutory exclusion of the common law rule that no one may be judge in his own cause, to the extent that the Council's interest arises out of the exercise or purported exercise of its local government functions. At the very least, in my opinion, the regulation-making power in s 36 should be construed as authorising regulations which exclude the common law rule to that extent.
(Footnotes omitted. Emphasis added.)
[13] R v The Corporation of the City of Whyalla (1979) 20 SASR 386, 390.
The following observations of and authorities referred to by Brennan J in 1983 in Builders' Registration Board of Queensland v Rauber,[14] are pertinent:
The rules of natural justice cannot be invoked to invalidate the performance by the Board of one of its functions merely because, in the earlier performance of another of its functions, the Board formed a view upon a question which was material to its decision in both cases. Those rules cannot be invoked to frustrate the intended operation of the Act. The rules of natural justice, implied by the common law to govern the exercise of statutory powers, may be excluded by the statutory provisions which create the power or affect its exercise; see Salemi v MacKellar [No 2] (1977), 137 CLR 396, at pp 401, 422; FAI Insurances Ltd v Winneke (1982), 41 ALR 1, at pp 3, 14, 52. Or, to put the proposition in another way, where the legislature intends a power to be exercised in particular circumstances the common law does not imply a rule of natural justice which would prevent an exercise of the power in those circumstances.
The common law allows an exception to the disqualifying effect of bias, whether arising from an earlier prejudgment of a material question, from interest, or from some other cause where the exception is necessary to allow the functioning of the sole tribunal with power to act. In 1742, in the case Between the Parishes of Great Charte and Kennington (2 Strange 1173; 93 ER 1107), it was said that an exception to the rule that a person interested could not be a judge “might be allowed to prevent a failure of justice”. The exception was acknowledged by the advice given by the judges in Dimes v Proprietors of Grand Junction Canal (1852), 3 HLC 759, at pp 787-788; 10 ER 301, at p 313 and by the Privy Council in The Judges v Attorney-General for Saskatchewan (1937), 53 TLR 464. The exception, appropriately described as the rule of necessity, is well established in the common law, as Mr H H Marshall has shown: Natural Justice (London, 1959) p 38 et seq. In the United States the rule has been recognized in order to prevent the frustration of the purpose of an Act of Congress: see Federal Trade Commission v Cement Institute, at p 702; Professor K C Davis, Administrative Law Treatise (2^nd ed, San Diego, 1980) vol 3 p 404 et seq. And in the Supreme Court of Canada, De Grandpre J, with the concurrence of the majority of the Court in Ringrose v College of Physicians and Surgeons of Alberta (1976), 67 DLR (3d) 559, at pp 567-568 said that “no reasonable apprehension of bias is to be entertained when the statute itself prescribes overlapping of functions”. The rule was acknowledged in this Court by Isaacs J in Dickason v Edwards, at p 259:
“If it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then prima facie he must not act as a judge at all. That is a fundamental and essential principle of justice. Aliquis non debet esse judex in propria causa, so it is put in Co.Litt.141a, or, as it has been otherwise expressed, nemo debet esse judex et pars. There are two exceptions to this rule recognized by law. One is where a person is relieved from the operation of that rule by Statute, and the second is where there is a necessity for him to act. That principle of necessity is recognized by the House of Lords in Dimes v Grand Junction Canal Co (3 HLC 759) and in Ranger v Great Western Railway Co (5 HLC 72).”
[14] Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376, 385.
As set out above by Brennan J, the issue may also be addressed through the application more directly of the doctrine of necessity. This doctrine was reviewed by Deane J in Laws v Australian Broadcasting Corporation.[15] In that decision, it was held by Mason CJ, Brennan and Deane JJ that the doctrine of necessity applies to a statutory administrative tribunal, as it does to a court, to ensure that the tribunal is not disabled from performing its statutory functions. Deane J went on to state that the doctrine does not apply where its application would involve positive and substantial injustice, and when it does apply, the rule does so only to the extent that necessity justifies. The following passages have, in my view, application to the present proceeding. Mason CJ and Brennan J observed:[16]
…the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit: Dimes v. Proprietors of Grand Junction Canal. The existence of the principle has been recognized in this Court by Isaacs J. in Dickason v. Edwards, and by Brennan and Deane JJ. in Builders' Registration Board (Q.) v. Rauber. In the latter case, Brennan J. had no hesitation in holding that the principle applied to a statutory tribunal as well as to a court. And Deane J. acknowledged that this might be so. The conclusion reached by Brennan J. upon this point conforms to principle and to received opinion in other common law jurisdictions: see the citations in Rauber. The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist v. Randwick Municipal Council; Salemi v. MacKellar [No. 2]; F.A.I. Insurances Ltd. v. Winneke.
(Footnotes omitted. Emphasis added)
Deane J agreed with these observations of Mason CJ and Brennan J, going on to observe:[17]
[The doctrine of necessity] operates to qualify the effect of what would otherwise be actual or ostensible disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment. There are, however, two prima facie qualifications of the rule. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Second, when the rule does apply, it applies only to the extent that necessity justifies.
The question whether the application of the rule of necessity would involve positive and substantial injustice must be answered by reference to the circumstances of the particular case. In a case where the appearance or actuality of disqualifying bias is the result of conflict of interest or extrinsic knowledge, the relevant circumstances will include the manner in which the conflict of interest arose or the extrinsic knowledge was obtained (see, generally, Tracey, Disqualified Adjudicators: The Doctrine of Necessity in Public Law, Public Law (1982), 628, at pp. 634ff.). In particular, the circumstance that, in such a case, the conflict of interest or extrinsic knowledge arose from or was caused by the deliberate act of the party who would otherwise be entitled to complain of bias may dictate a negative answer to the question whether the application of the rule would involve positive and substantial injustice to that party. Conversely, the fact that such a conflict of interest or extrinsic knowledge arose from or was caused by some voluntary collateral act of the adjudicator may constitute a powerful consideration favouring an affirmative answer to that question. ...
[15] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
[16] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 88-89.
[17] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 96-97.

As observed in Laws, the rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it.[18] Influential to this conclusion were the observations of Brennan J in Builders' Registration Board of Queensland v Rauber,[19] where his Honour had no hesitation in concluding that the doctrine applied in this context to a statutory tribunal as well as a court. In my view, given the basis of the doctrine of necessity in the context of statutory displacement of the rules of natural justice, I see no reason why the observations above should not apply to an individual administrative decision maker as well as a board, tribunal or court.
[18] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 88-89 (Mason CJ and Brennan J).
[19] Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376.
The legislative scheme plainly intends that the public service administer the teaching service. A principal purpose of the Teachers Appeal Board is to allow a review by peers of decisions made by administrators. I am not prepared to impute to Parliament a conflicting intention to abrogate this process by allowing it to be frustrated by the Chief Executive making decisions about the employment of teachers which are not able to be appealed. Insofar as the doctrine of bias would otherwise operate, Parliament has displayed a sufficient intention to alter it in this instance.
In my opinion, regulation 31 provided Ms Burtenshaw with two rights of appeal. First, she had a right to appeal to the Chief Executive against the decision to transfer her to another position. I consider that Parliament intended the regulation to permit the Chief Executive to review by way of appeal his own earlier decision or action. Ms Burtenshaw, if dissatisfied with his determination in such a review, would be entitled to invoke the jurisdiction of the Teachers Appeal Board by way of appeal. If such a construction were not open, I consider that the doctrine of necessity would apply as set out above. I do not consider that Ms Burtenshaw’s appeal rights can be rendered nugatory as suggested by the State.
WHITE J. The question in these proceedings for declaratory relief is whether a teacher who is aggrieved by a first instance decision of the Chief Executive of the Department of Education and Children’s Services in respect of which the Education Act 1972 (SA) does not grant a specific right of appeal, nevertheless has a means of appeal to the Teachers Appeal Board. This question arises in the context of the Chief Executive’s decision to transfer Ms Burtenshaw, the second defendant, away from the position of Coober Pedy Area School to another position in the Department.
After hearing submissions, on 20 December 2010 the Court informed the parties that it considered that the Teachers Appeal Board does have jurisdiction under reg 31(2) at the Education Regulations 1997 (the Regulations) to hear and determine an appeal to the Board against the decision of the Chief Executive to transfer Ms Burtenshaw to another location, provided that Ms Burtenshaw first appeals in writing to the Chief Executive under reg 31(1) and provided that she is not satisfied with the determination of the Chief Executive notified to her in writing in respect of that appeal.
Subsequently, and in the light of further events, the parties agreed on the form of declaration which was appropriate to give effect to the decision announced on 20 December 2010. The Court made a declaration in those terms on 10 February 2011.
The Court said on 20 December 2010 that it would publish its reasons later. The following are my reasons.
Background
Ms Burtenshaw is a member of the teaching service established under s 15 of the Education Act and was formerly the principal of Coober Pedy Area School. On 2 July 2010 the Chief Executive gave Ms Burtenshaw notice that, acting under s 15C of the Education Act, he intended to transfer her to another location and role. The Chief Executive invited Ms Burtenshaw to make submissions to him in relation to that proposed course of action.
By letter dated 5 July 2010, Ms Burtenshaw made submissions opposing the proposed transfer. However, the Chief Executive decided to proceed with the transfer and notified Ms Burtenshaw of that decision by letter dated 8 July 2010.
Ms Burtenshaw’s next step was to file an appeal with the Teachers Appeal Board against the Chief Executive’s determination of 8 July 2010. This was done on 23 July 2010. The notice of appeal contained six separate grounds and sought orders overturning the decision of the Chief Executive, together with ancillary orders.
The appeal has not yet been heard. Following a directions hearing by the Board, the State of South Australia commenced the present proceedings seeking a declaration that the Board does not have jurisdiction to hear Ms Burtenshaw’s appeal. Ultimately, the State sought a declaration in the following terms:
The Teachers Appeal Board does not have jurisdiction under s 54 of the Education Act 1972 and Regulation 31 of the Education Regulations 1977 to hear and determine the appeal filed on or about 23 July 2010 by the second defendant from the decision of the Chief Executive of the Department of Education and Children’s Services communicated to the second defendant in a letter dated 8 July 2010.
The proceedings were referred to the Full Court for hearing and determination. By consent, the State tendered two affidavits affirmed by Mr Stevens, which disclosed the background outlined above. There was no dispute about the circumstances disclosed in Mr Stevens’ affidavits. However, there was some difference between the parties as to the proper characterisation of those events but, in the events which have happened, it is not necessary to resolve that difference.
Ms Burtenshaw tendered her own affidavit affirmed on 21 October 2010. The State objected to that tender and the Court reserved its decision on that question. Having now reviewed the affidavit, I consider that, with one exception, its contents are not relevant to the issues raised for this Court’s consideration. The exception is Exhibit SB17 to the affidavit, which is a copy of Ms Burtenshaw’s letter to the Chief Executive of 5 July 2010. I would admit that exhibit into evidence.
The Statutory Regime
The Minister of Education and Children’s Services (the Minister) has the responsibility for the general administration of the Education Act and the administration and control of the teaching service constituted by Part 3 of the Act (s 6). The Director-General is the Chief Executive of the Department of Education and Children’s Services (s 5(1)) and is responsible to the Minister for maintaining a proper standard of efficiency and competency in the teaching service and for the administration of the Department more generally (s 12). The Department is the administrative unit continued under the Public Sector Act 2009 (SA) and is, under the Minister, responsible for the administration of the Education Act (s 5(1)). The Chief Executive is also the principal “employing authority” (s 5(1)) and, as such, may appoint teachers to be officers of the teaching service (s 15(1)). Ms Burtenshaw is a member of the teaching service.
I mention a matter of nomenclature. Both the Education Act and the Regulations use the expression “Director-General”. The Public Sector Act 2009 (SA) uses the expression “Chief Executive” for the person who is the administrative head of a Department. In order to maintain consistency I will use the latter expression when referring to the administrative head of the Department.
The Education Act provides for appeals by teachers against decisions of the Chief Executive in a number of circumstances. These include appeals against decisions of the Chief Executive as an “employing authority” in relation to retrenchment (s 16); against decisions of the Chief Executive to retire teachers on the grounds of incapacity (s 17); against decisions of the Chief Executive to dismiss a teacher on disciplinary grounds (s 26(4)); and against recommendations of the Chief Executive in relation to the appointment of a teacher to a promotional level (s 53). In addition to the right of appeal in these particular circumstances, s 54 of the Education Act provides a more general right of appeal:
(1)In addition to the rights of appeal otherwise conferred on an officer by or under this Act, an officer may appeal to the Appeal Board against any administrative action or decision affecting the officer in relation to which a right of appeal is conferred by the regulations.
(2)Upon the hearing of any appeal under this section, the Appeal Board may give such orders and directions as it considers just in the circumstances of the case.
Thus, an “officer” may appeal against any “administrative action of decision” affecting the officer “in relation to which a right of appeal is conferred by the regulations”.
Regulation 31 of the Education Regulations 1997 is the only relevant regulation. It provides:
(1)If a teacher at any time considers that he or she has just cause of complaint against any officer of the Department when that officer is acting in the course of his or her duties, the teacher may appeal in writing to the Director-General for consideration of his or her case, and the Director-General shall notify the teacher in writing of his or her determination in that matter.
(2)Where the teacher is not satisfied with the determination of the Director-General notified to him or her in writing pursuant to subregulation (1), he or she may, within fourteen days of the receipt of that notification, appeal to the Appeal Board against the determination of the Director-General.
Although her notice of appeal did not refer to s 54 and reg 31, Ms Burtenshaw relied on these provisions in appealing to the Teachers Appeal Board.
The Contention of the State
The State contends that reg 31(2) allows appeals to the Teachers Appeal Board only against the determination of appeals by Chief Executives under sub‑reg (1) and does not contemplate appeals from first instance decisions of Chief Executives. By “first instance decisions”, I mean those decisions made by Chief Executives as the initial decision-maker. In support of that submission, the State submitted that the expression “any officer of the Department” in sub-reg (1) did not, on its proper construction, include the Chief Executive. This was confirmed, it submitted, by the improbability that the regulation contemplated an appeal to Chief Executives from previous determinations of the Chief Executive themselves.
Inconsistency in the State’s Position
The construction of reg 31 for which the State, on the instructions of the Chief Executive, now contends, is inconsistent with the construction which the State, on the instructions of a former Chief Executive, has previously urged on this Court. In Cava v Marshall,[20] the Court considered judicial review proceedings commenced by five teachers. They had been transferred by the Chief Executive of the Department from their positions at Craigmore High School part-way through a school term, without any prior notice that such transfers were contemplated, and without any opportunity to be heard in relation to such transfers. They sought judicial review on the grounds that they had been denied procedural fairness.
[20] [2003] SASC 371; (2003) 230 LSJS 347.
At the heart of the State’s resistance to that application was the submission that teachers had, on the proper construction of reg 31, a means of appeal to the Teachers Appeal Board by which they could obtain a full merits review of the transfer decisions. Mullighan J upheld that submission, saying:
The defendant contends that pursuant to s 54 of the Act and Reg 31 the plaintiffs have a full right of appeal to the Teachers Appeal Board. The procedure is that they should request the defendant to reconsider his decision to transfer them and if he refuses to do so or makes the same decision which should be in the form of a determination, the plaintiffs may then appeal pursuant to Reg 31(2). I do not think it matters that the original decision is made by the defendant himself as the Director-General.[21]
Later, Mullighan J said:
[T]he defendant contends that there should not be an order as now sought by the plaintiffs in view of the other remedies available to them. I have mentioned the right of appeal to the Teachers Appeal Board. That remedy is available. As I have said, the Teachers Appeal Board is a specialised tribunal and may fully investigate the decisions to transfer the appellants, …. the reasons for those decisions and whether they were justified. That is a matter, which, in itself justifies the refusal to exercise the jurisdiction in the exercise of discretions.[22]
[21] Ibid at [101], 367-8.
[22] Ibid at [134], 375.
Mullighan J noted conflicting decisions of the Teachers Appeal Board itself concerning the availability of a right of appeal under reg 31. In Everingham v The Director-General of Education[23] and Robbins v Director-General of Education[24] the Board had found that reg 31(1) did not provide for an appeal against first instance decisions of the Chief Executive. However, in three other decisions (Everingham v The Minster for Education;[25] Brooks v The Director-General of Education;[26] and Wade v The Chief Executive Officer, Department for Education and Childrens Services[27]) the Board had taken the view that reg 31 did provide a means of appeal against first instance decisions of the Chief Executive. In Brooks v The Director-General of Education the Board (comprised of Senior Judge Jennings of the Industrial Court and two lay members) said:
The Act clearly recognises that the Director-General, in performing administrative acts and decisions, is not necessarily infallible. That is why it has granted officers of the Department the right to seek an external review of his actions or decisions in the specific circumstances provided for by the Act. There is no reason to think that other personal administrative actions or decisions of the Director-General not specified in the Act are inherently less capable of being capricious or unfair to a particular teacher. If the Director-General stands to be corrected about the disciplinary action that he proposes to take as against a particular teacher, why should he not also be the subject of correction in respect of other actions taken against teachers that although not strictly disciplinary in nature are nonetheless detrimental and wrong.
In Cava v Marshall Mullighan J agreed with this conclusion.[28]
[23] 17 January 1992.
[24] 30 June 1995.
[25] 27 October 1989.
[26] T.A.B. 12/1995 12 December 1995.
[27] T.A.B. 10/1995 1 February 1996.
[28] [2003] SASC 371 at [101]; (2003) 230 LSJS 347 at 368.
The construction of reg 31 for which the State contended in Cava v Marshall was an essential step in the reasoning of Mullighan J which led to the dismissal of the plaintiffs’ application for judicial review in that case.
I note also that in his affidavit received in evidence in Cava v Marshall, the then Chief Executive deposed to his reasons for not affording procedural fairness to the transferred teachers. His affidavit included the following:
I was also aware of the administrative appeal processes available under the Education Act if my decision was disputed.[29]
This indicates that the former Chief Executive accepted, at the time when he made his decisions to transfer, that each of the plaintiffs would have the means of appealing to the Teachers Appeal Board from his decision.
[29] Ibid at [64], 357.
It can be seen that the State now asserts a position which is directly contrary to that which was accepted by the former Chief Executive and which the State has previously urged on this Court. It was not suggested that there has been any relevant amendment to the Education Act or to the Regulations since the decision in Cava v Marshall. Without there being any relevant difference in the circumstances of the decision to transfer Ms Burtenshaw, the Chief Executive now asks this Court to find that the decision in Cava v Marshall upholding the State’s previous position on the present point was wrong.
Ms Burtenshaw did not suggest that this change of position by the Chief Executive gave rise to an abuse of process. It could also be said that it behoves the State to seek to have corrected errors which it perceives in the construction of statutes or regulations adopted by the Court in previous decisions. Nevertheless, the previous position of the Chief Executive and the decision of this Court in Cava v Marshall do have a consequence for these proceedings to which I will refer shortly.
The Right of Appeal Established by s 54 and reg 31
It is plain enough that s 54 and reg 31 contemplate a right of appeal to the Teachers Appeal Board only against those determinations made by the Chief Executive on an appeal to him or her made under reg 31(1). The concluding words of reg 31(2) make that clear. The “determinations” against which there can be an appeal to the Board are the determinations by Chief Executives of appeals to them. The 14-day period during which appeals to the Board may be made is defined by reference to the determination of the appeals by the Chief Executive.
I also consider that the State is correct in its submission that the reference in reg 31(1) to a “complaint against any officer of the Department when that officer is acting in the course of his or her duties” should be read as a complaint against an “administrative action or decision” of that officer. Such a construction follows from the terms of s 54(1).
In support of the submission that the Chief Executive was not an “officer of the Department” to whom reg 31(1) referred, the State relied first on the presumption that words in a statute or regulation are used with a consistent meaning. In this respect, the State drew attention to s 45(2) and (3) of the Education Act and reg 32 of the Regulations. The latter regulation uses the expression “panel of officers of the Department”. The State’s argument was that the panel of officers of the Department to which reg 32 refers can be seen, when read in conjunction with s45(2)(b) and s 45(3)(b) to mean “employees in the Department”, and that the Chief Executive was not such an employee.
Section 45(1) establishes the Teachers Appeal Board. Section 45(2) provides for the membership of the Board and s 45(3) for its composition for the hearing of a particular appeal. Section 45(2) provides (relevantly):
(2)     The Appeal Board is to consist of—
(a)     such presiding members as may be nominated from time to time by the President of the Industrial Court of South Australia from amongst the members of the Industrial Court for the hearing and determination of appeals to the Appeal Board; and
(b)     the members of a panel of employees in the Department appointed by the Governor on the nomination of the Minister; and
(c)     the members of a panel of officers of the teaching service appointed by the Governor on the nomination of the Institute of Teachers made after elections have been held in accordance with the regulations; and
…
It can be seen that s 45(2)(b) contemplates a panel of employees of the Department. Section 45(3) provides:
(3)For the purpose of hearing and determining an appeal by an officer of the teaching service under this Act, the Appeal Board shall be constituted of:
(a)     a member of the Industrial Court nominated by the President of the Industrial Court to be the presiding member of the Appeal Board; and
(b)     a member of the panel appointed under subsection (2)(b) (or a temporary member of the Board) selected by the Director-General; and
(c)     a member of the panel appointed under subsection (2)(c) (or a temporary member of the Board) selected by the appellant or appellants or, where there are two or more appellants and they fail to agree on the selection of the member, a member of that panel selected by the presiding member.
Regulation 32 relates to the Chief Executive’s selection under s 45(3)(b), and provides:
Where the Director-General is required under section 45(3)(b) of the Act to select from the panel of officers of the Department an officer to be a member of the Appeal Board for a particular appeal, he or she shall not select an officer who—
(a)performed the action or made the decision, determination, recommendation or provisional appointment appealed against; or
(b)is employed in that division or group of the Department of which the appellant is a member.

The State accepted that Chief Executives are employees, but contended that they are not “employees in the Department” for the purposes of s 45(2)(b). This was so, it was said, because the Public Sector Act 2009 (SA) provides that Chief Executives are engaged by the Premier (s 34(1)); are responsible to the Premier and the Minister for the effective management of their Departments (s 31(1)); and are authorised to engage persons as employees for the purposes of their Departments (s 30(2)). This led to the inference, it was submitted, that the Public Sector Act intended that the Chief Executive should be regarded as overseeing the Department on behalf of the Premier and the Minister, and not as an employee in the Department. The State supported this submission by reference to s 3(2) of the Public Sector Act which provides:
(2)     For the purposes of this Act and any other Act or law—
(a)     a person employed in, or for the purposes of, an administrative unit is treated as an employee employed by the chief executive (from time to time) of the unit on behalf of the Crown; and
(b)     a person employed or appointed under another Act, on behalf of the Crown, by an unincorporated public sector agency (including a chief executive of an administrative unit) is treated as an employee of the agency (as constituted from time to time); and
(c)     a change in the chief executive of an administrative unit or the person who constitutes an unincorporated public sector agency will not affect the continuity of employment of a person employed in, or for the purposes of, the unit or by the agency.
I do not regard this submission as persuasive. In the first place, it seeks to have the Education Act, first enacted in 1972, construed by reference to the Public Sector Act enacted in 2009. Section 45(2)(b) of the Education Act has, relevantly, been in its present form since it was amended by the Education Act Amendment Act 1986 which came into operation on 1 December 1987. There is no reason to suppose that the expression “employees in the Department” in s 45(2)(b) should be construed by reference to an Act enacted some 26 years later, dealing with a distinct subject matter.
Further, even if it was appropriate to have regard to the Public Sector Act, I doubt that it assists the State’s submission. The particular features of the Public Sector Act upon which the State relied do not mean that Chief Executives may not be employees in the Department. In many respects it is natural to regard them as such an employee. Where are Chief Executives employed if not in the department for which they are responsible? The transitional provisions contained in the Public Sector Act reflect that understanding. Schedule 3, cl 2(1) provides:
(1)A person (including a chief executive) employed in an administrative unit of the Public Service under the Public Sector Management Act 1995 immediately before the commencement of this Act continues to be employed in the same administrative unit with the same duties, subject to this Act.
(Emphasis added)
Finally, the principle that words are used in the one statute or regulation with a consistent meaning is to be applied with caution in relation to the Education Act and Regulations. There are instances of words in the Regulations not being used with a consistent meaning. For example, this Court has previously held, in relation to the predecessor of reg 31(1), that the word “teacher” has to be read down from its ordinary meaning so as to apply only to teachers in the teaching service, and not to all teachers as defined in s 5 of the Education Act.[30]
[30] Cusack v Parsons (1988) 48 SASR 364 at 368.
There are, however, other indications in the Education Act and the Regulations that the expression “officer of the Department” may not include the Chief Executive. If the Chief Executive is such an officer for the purposes of reg 31(1), it means that reg 31 contemplates teachers having to appeal to a Chief Executive against a decision of that Chief Executive. It is now well accepted that, subject to any express statutory provision to the contrary, persons hearing an appeal should not be affected by real or perceived bias nor by any actual or perceived prejudgment of the issues to be raised on the appeal. [31] For this reason, any appeal which is in the nature of an appeal from Caesar to Caesar is usually regarded as either illusory or ineffective, and ordinarily one would not expect the Education Act or Regulations to create such a right of appeal.
[31] Singh v Minister for Immigration (1997) 77 FCR 440; Livesey v New South Wales Bar Association (1963) 151 CLR 288 at 293-4; Kwan v Victorian Legal Aid [2007] VSC 122 at [13].
The Education Act and Regulations themselves reflect this principle. As can be seen from reg 32 quoted earlier, the Chief Executive may not, when selecting an officer from the panel of officers of the Department to be a member of the Appeal Board, select an officer who “performed the action or made the decision, determination, recommendation or provisional appointment appealed against”.
Similarly, the Education Act contains illustrations of the legislature having addressed expressly the incongruity of Chief Executives making recommendations to themselves. For example, s 17 contemplates Chief Executives making recommendations to the “employing authority” in relation to officers of the teaching service who have become incapacitated. As the Chief Executive is the principal employing authority (s 5(1)), this would involve the Chief Executive making a recommendation to himself or herself. Section 5(5) of the Education Act avoids that incongruity by providing that in that circumstance, the Chief Executive may take the recommended action without having to make the recommendation. There is no corresponding provision in relation to appeals under reg 31(1).
I regard these considerations as being of some substance. If the present issue was before the Court for the first time, they may well justify the grant of the declaration which the State sought. However, there are other considerations and, for the reasons which follow, I consider that this Court should not uphold the State’s submission unless it is satisfied that the contrary view of reg 31 adopted by Mullighan J in Cava v Marshall is clearly wrong.
The Significance of Previous Decisions
This Court applies the principle that the doctrine of precedent requires it to follow its own previous decisions unless satisfied that the previous decision in question was clearly wrong. In Pooraka Holdings Pty Ltd v Participation Nominees Ltd,[32] King CJ, with whom Jacobs, White, Matheson and Prior JJ agreed, spoke of the proper approach:
The question remains whether this Court should now cease to follow Honeychurch v Honeychurch. It is a settled rule that this Court regards itself as bound by its own previous decisions, subject only to the qualification that it may depart from a previous decision if satisfied that that decision is plainly wrong … Honeychurch v Honeychurch has stood as an authority in this Court for 46 years and there is a strong presumption against departing from it. Nevertheless I have reached the clearest of conclusions that the reasoning by which the decision was arrived at is fallacious and that there is a strong tide of authority contrary to both the decision and the reasoning upon which it is based. I think that it would be wrong for this Court to continue to follow it. I consider that the case should not be regarded in future as good authority in this State.[33]
This approach is consistent with the decision of the High Court in Nguyen v Nguyen.[34] Dawson, Toohey and McHugh JJ (with whom Brennan and Deane JJ agreed on this point) said:
The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself. …
Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law … [N]ow that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. … In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.[35]
[32] (1989) 52 SASR 148. See also R v Ninnes [2009] SASC 40 at [35].
[33] Ibid at 157.
[34] (1990) 169 CLR 245.
[35] Ibid at 268-70.
Of course, the decision in Cava v Marshall was a decision of a single judge and not of the Full Court. If that was all there was to it, the principles just stated would not be applicable. However, in State of South Australia v McDonald[36] the Full Court referred with approval to the construction of reg 31 in Cava v Marshall. It is true that the proper construction of s 54 and reg 31 was not in issue in McDonald, that the Court did not hear submissions of the kind now made, and that the approval of Cava in this respect was not essential to the Court’s decision. Nevertheless, it is significant that the Full Court approved this aspect of the decision in Cava. This suggests that this Court should not, in effect, overrule Cava v Marshall without first being satisfied that it is clearly wrong.
[36] [2009] SASC 219 at [252]; (2009) 104 SASR 344 at 393-4..
Related to these considerations is the further principle that a decision of longstanding of an inferior court or tribunal on the basis of which many persons will have arranged their affairs should not be lightly disturbed by a superior court. The application of this principle was discussed by the High Court in Babaniaris v Lutony Fashions Pty Ltd[37] in which, in 1987, the High Court was asked to consider the correctness of Little v Levin Cuttings Pty Ltd,[38] a 1953 decision of the Workers’ Compensation Board of Victoria. Mason J, having referred to the principle, continued:
[37] (1987) 163 CLR 1.
[38] (1953) 3 WCBD (Vic) 71.
Adherence to this approach promotes the certainty of the law and protects the integrity of acts and transactions which have taken place in the faith of the law as it has been previously declared.
There are, however, countervailing considerations which have special force in cases of statutory construction. The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute … It is no part of a court’s function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention … The injustice or inconvenience which will result from displacement of a long-standing decision is certainly a very important factor to be considered, but there is no supporting principle or authority for the proposition that the court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience. There is, after all, an obvious injustice in departing from the legislative intention and in most cases a proposed departure from antecedent authority involves competing detriments. …
Although the use of expressions as “plainly” and “manifestly” erroneous has been criticised in context where the question is one on which different minds might reach different conclusions …, this criticism does not diminish the utility of the expressions in their application to a case in which the question on analysis is capable of but one answer.
The matter may stand differently when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions. This is very often the case when the court is called upon to consider one of its earlier decisions. Then it is a matter of ensuring that a change in the law does not proceed from mere personal choice and result in injustice or inconvenience, as, eg, by impairing actions and transactions undertaken on the faith of the law as it had been declared previously. In such a situation lack of clarity in the expression of the legislative intention makes it legitimate for the court to regard the injustice or inconvenience which would flow from overruling the earlier decision as having an influential effect on the outcome.[39]
(Citations omitted) (Emphasis added)
Wilson and Dawson JJ, in separate reasons, agreed in substance with the approach of Mason J. Brennan and Deane JJ applied the same principle but reached the opposite conclusion on the issue of construction raised in Babaniaris. Their Honours quoted with approval a passage from Lord Reid’s speech in Campbell College, Belfast (Governors) v Northern Ireland Valuation Commissioner[40] as follows:
I would not seek to lay down any general rule as to the circumstances which ought to prevent this House from correcting a longstanding error. But one consideration is, I think, of paramount importance. In arranging their affairs people are entitled to rely on a decision which appears to have gone unchallenged, and it would require some exceptional reason to justify a reversal if it appeared that there was likely to create any serious embarrassment for those who had acted on the faith of what seemed to be settled law.[41]
Thus, if satisfied that the decision of the lower court or tribunal is plainly wrong, the appellate court should discharge its function by saying so. But if the correct construction is more uncertain, an appellate court should exercise restraint about overturning the decision of a lower court, because to do so would detract from certainty in the law and would interfere with the unchallenged basis upon which persons have conducted their affairs.[42]
[39] Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13, 14.
[40] [1964] 1 WLR 912 at 918.
[41] See Babaniaris at 30.
[42] See also Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 at [302].
In the present case, the question of whether s 54 of the Education Act and reg 31 of the Regulations provide a means of appeal from a first instance decision of the Chief Executive to the Teachers Appeal Board was settled by that Board in 1995. The approach of the Board was upheld by this Court in 2003 and that construction was followed by the Full Court in McDonald in 2009. Further, as the passage from the affidavit of the Chief Executive filed in this Court in Cava v Marshall (quoted above) indicates, at least one former Chief Executive has acted on the basis that the decisions of the Teachers Appeal Board in Brookes and in Wade were correct. It is reasonable to suppose that teachers too have come to consider the right of appeal under s 54 and reg 31 against decisions of the Chief Executive as one of their employment entitlements.
The 15 year period between 1995 and 2010 is not, in relative terms, a long period. It is not as long as many of the periods considered in the authorities applying this principle of stare decisis. Nevertheless, I consider that it is a relevant consideration that both the Teachers Appeal Board and this Court have adopted the same view of a teacher’s appeal rights for a period of 15 years.
Further, the employment of teachers is heavily regulated by statute, regulation, industrial instrument and departmental policies.[43] Section 54 and reg 31 form part of that regulatory framework. The adoption of a different construction of reg 31 at this stage would have the effect of removing one element of an integrated framework regulating the employment of teachers. This is a further reason for this Court to proceed with caution presently.
[43] See the review in State of South Australia v MacDonald [2009] SASC 219 at [245]-[268]; (2009) 104 SASR 344 at 292-7.
Accordingly, I consider that this Court should differ from the construction of reg 31 adopted in Cava v Marshall only if first satisfied that that decision was clearly wrong.
Is the Decision in Cava v Marshall Clearly Wrong?
As noted earlier, the State’s submission that reg 31 should not be understood as having created, in effect, an appeal from Caesar to Caesar has considerable force. But there are countervailing considerations.
In the first place, it is to be remembered that an appeal to the Teachers Appeal Board is a creature of the Education Act itself. It is that Act which establishes and defines the appeal entitlements. Accordingly, it is open to the Parliament, and the Governor when making regulations giving effect to the Act, to specify the circumstances in which an aggrieved teacher will have a right of appeal, to specify the person or entity to whom the appeal may be made, and to specify the conditions affecting the exercise of the right of appeal. This includes the power to specify that appeals from decisions of Chief Executives may lie, in the first instance, to the Chief Executives themselves, especially as a condition of the exercise of a subsequent right to obtain a de novo[44] review of the merits of the decision on appeal to the Teachers Appeal Board.
[44] See Koh v State of South Australia (1989) 154 LSJS 38 at 44
Secondly, the content of the requirements of natural justice varies according to the circumstances of the particular case. There are some situations in which, despite their actual or apparent pre‑judgment of an issue, a particular person or tribunal must of necessity consider a matter a second time. The High Court considered the operation of the principle of necessity in an analogous context in Laws v Australian Broadcasting Tribunal.[45] Mason CJ and Brennan J said:
[45] (1990) 170 CLR 70.
[E]ven if, contrary to the view which we have expressed, there be a case for holding that a reasonable apprehension of bias attaches to all the members of the Tribunal, the operation of the rule of necessity would ensure that the Tribunal is not disabled from performing its statutory functions. The rule of necessity permits a member of a court who has some interest in the subject-matter of the litigation to sit in a case when no judge without such an interest is available to sit … The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a Tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the Tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice.[46]
Similarly, Deane J said:
It has long been settled that the content of the requirements of procedural fairness may vary according to the particular circumstances of a case, including the nature and general functions of the entity required to observe them and the relationship between that entity and the person to whom procedural fairness must be accorded. Plainly, such variations may occur in the content of the requirement that a Tribunal required to observe procedural fairness be not tainted by either the actuality of the appearance of disqualifying bias. Thus, acquaintanceship with, or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.[47]
Later, Deane J said:
I agree with Mason CJ and Brennan J that the rule of necessity is, in an appropriate case, applicable to a statutory administrative tribunal, as it is to a court, to prevent a failure of justice or a frustration of statutory provisions. That rule operates to qualify the effect of what would otherwise be actual or extensile disqualifying bias so as to enable the discharge of public functions in circumstances where, but for its operation, the discharge of those functions would be frustrated with consequent public or private detriment.[48]
Deane J went on to identify two qualifications to the operation of the rule of necessity:
It does not apply if its application will involve positive and substantial injustice since it cannot be resumed that either the legislature or the law intended that the rule of necessity should represent an instrument of such injustice; secondly, when the rule does apply, it applies only to the extent that necessity justifies.[49]
[46] Ibid at 88-9.
[47] Ibid at 90.
[48] Ibid at 96. See also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [165]; (2001) 205 CLR 507 at 558 (Kirby J).
[49] Ibid.

In the present case, it could be said that the principle of necessity requires that an appeal against a first instance decision of the Chief Executive be made to the Chief Executive. Regulation 31 does not create a direct right of appeal from a first instance decision of the Chief Executive to the Teachers Appeal Board, and an appeal from a decision of the Chief Executive could hardly be to anyone else within the Department. It is not readily to be supposed that the Regulations would provide for an appeal from a decision of the Chief Executive to, say, the Deputy Chief Executive or some more subordinate officer within the Department.
Of course, the Regulations could have addressed this problem in another way, for example, by dispensing altogether with the requirement for an appeal from Chief Executives to themselves (in the manner of s 5(5) of the Education Act), or by providing expressly that there was to be no right of appeal under reg 31 to the Teachers Appeal Board in respect of first instance decisions of Chief Executives (in the manner of s 31 of the Education Act). But, absent provisions of that kind, reg 31 may be explicable on the basis that it contemplates that there should be no appeal to the Teachers Appeal Board without the Chief Executive having had a “second look” at the impugned decision. The specified procedure for bringing about the “second look” is an appeal. In the case of appeals from first instance decisions of Chief Executives, such appeals could not, for practical reasons, be made to any person in the Department other than the Chief Executives themselves.
The concept of administrative decision-makers reconsidering their own decisions occurs in a variety of contexts. There is no overriding principle that administrative decision-makers, once having made their decision, become functus officio. In Minister for Immigration and Multicultural Affairs v Bhardwaj[50] the High Court accepted that it was open to the Immigration Review Tribunal established under Part 6 of the Migration Act 1958 (Cth) to provide a rehearing to an applicant to whom it had denied procedural fairness in its initial consideration of the matter. In Vardon v Promotion and Grievance Appeal Board[51] this Court held that the Promotion and Grievance Appeal Board established under the Public Sector Management Act 1995 (SA) could not itself make an order redressing the grievance of an officer of the Public Service which it had upheld: the Board could only remit the matter for reconsideration by the original decision-maker in accordance with appropriate directions of the Board. This conclusion involved implicitly the prospect of the original decision-maker reconsidering, in whole or in part, the officer’s original grievance.
[50] [2002] HCA 11; (2002) 209 CLR 597.
[51] [2007] SASC 137.
If the submission of the State is correct, then reg 31 would have this further consequence. It would mean that Chief Executives could immunise decisions from appeal under reg 31 by choosing to make decisions personally, rather than leaving them to a delegate or some other officer. Thus, it would be open to Chief Executives when the Department is proposing contentious or unpalatable decisions, to preclude the exercise of appeal rights by the simple expedient of choosing to make the first instance decisions themselves. In this way the right of appeal contemplated by s 54 and reg 31 could be deprived of much of its practical content.
I would not readily attribute to the regulation-making authority an intention to bring about this effect. It does not seem reasonable to suppose that the regulation-maker intended that the availability of a means of appeal should turn only on the identity of which of two or more alternative decision-makers made the decision in question.
The State submitted that there may be good policy reasons for the Regulations precluding decisions of the Chief Executives from review on appeal. Chief Executives may be required from time to time to act decisively and promptly to address a particular circumstance affecting the operation of the Education Act. One may readily accept that this may be so. However, it is not self-evident that circumstances of this kind would mean that the exercise of a right of appeal would be inappropriate. On the contrary, circumstances of that kind may make a means of appeal more important and, in any event, it is to be expected that the Teachers Appeal Board would take into account in its determination of the appeal the circumstances requiring the decisive and prompt action.
The State also submitted that the decisions of Chief Executives may reflect a myriad of policy and practical considerations which will not always be readily amenable to review on appeal. This submission faces the difficulty that the same decision, if made by someone other than the Chief Executive, would be amenable to appeal, and that must have been intended by the Parliament and the regulation-maker. There is no reason to suppose that an appeal against decisions of this kind should be available if made by one decision-maker, but not by another.
Finally, on the issue of the correctness of Cava v Marshall, I note the incongruity of this Court now being asked to find plainly wrong the construction of reg 31 for which the State itself previously contended.
For the reasons given above, I do not consider that the decision in Cava v Marshall is plainly incorrect. It is accordingly appropriate for this Court to give effect to the construction of reg 31 adopted in Cava. I would decline therefore to determine the present proceedings on the basis that reg 31 does not contemplate any means of appeal to the Teachers Appeal Board from a first instance decision of the Chief Executive.
Disposition of the Present Proceedings
When the Court informed the parties on 20 December 2010 of its opinion regarding the right of appeal, it was not clear that Ms Burtenshaw had adopted the procedure of appealing to the Chief Executive against his own decision of 8 July 2010. It seemed that she had not. The Court considered however that it was still open to Ms Burtenshaw, if so advised, to make such an appeal.
Subsequently, the Court was advised of further events. On 20 December 2010, following the announcement of the Court’s opinion, Ms Burtenshaw did appeal in writing to the acting Chief Executive of the Department against the decision of 8 July 2010. On 23 December 2010 the acting Chief Executive informed Ms Burtenshaw that he had rejected her appeal and maintained the original decision. Ms Burtenshaw filed an appeal against the decision of the acting Chief Executive with the Teachers Appeal Board on 5 January 2011.
In the light of these events, the parties agreed on the form of the declaration which the Court should make to give effect to its decision of 20 December 2010, and, on 10 February 2011, the Court made a declaration in the agreed terms, namely:
The Teachers Appeal Board has jurisdiction under s 54 of the Education Act 1972 and reg 31 of the Education Regulations 1997 to hear and determine the appeal filed on 5 January 2011 by Ms Burtenshaw from the determination of the Chief Executive of the Department of Education and Children’s Services communicated to Ms Burtenshaw in a letter dated 23 December 2010.