State of South Australia v Collins - [2018] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
STATE OF SOUTH AUSTRALIA v COLLINS
[2018] SASCFC 110
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)
22 October 2018
PUBLIC SERVICE - BOARDS, TRIBUNALS AND APPEALS - SOUTH AUSTRALIA - DISCIPLINARY PROCEEDINGS
EDUCATION - SCHOOLS - GOVERNMENT SCHOOLS - TEACHERS' EMPLOYMENT AND CONDITIONS OF SERVICE - DISCIPLINARY MATTERS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
Application for judicial review.
The second defendant Mr Collins lodged an appeal with the Teachers Appeal Board against decisions by the Education Department not to grant to him an Authority to Teach. The State’s application for summary dismissal for want of jurisdiction was dismissed. The State contends that the South Australian Employment Tribunal (which has succeeded the Teachers Appeal Board) lacks jurisdiction to entertain the appeal.
Mr Collins was employed as a Temporary Teacher pursuant to a one year contract expiring at the end of January 2015. In November 2014 the Education Department commenced an investigation into allegations of misconduct against him, suspended him on full pay and withdrew his 2014 Authority to Teach. In December 2014 he applied for an Authority to Teach for 2015 which was not granted. In January 2015 his employment expired by the effluxion of time and he ceased to be an officer of the teaching service. In October 2015 he applied for an Authority to Teach for 2016. In June and December 2016 the Director-General wrote to him stating that he had engaged in misconduct and would not be granted an Authority to Teach.
Former section 54 of the Education Act 1972 conferred a right of appeal against “any administrative action or decision affecting the officer in relation to which a right of appeal is conferred by the regulations” and regulation 36 of the Education Regulations 2012 (SA) conferred a right of appeal 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 State contends that the decisions the subject of the appeal were made after January 2015 when Mr Collins had ceased to be an officer and the Tribunal has no jurisdiction to entertain an appeal against those decisions.
Held by Blue J (Kourakis CJ and Bampton J agreeing):
1. On the proper construction of section 54, it operates to confer a right of appeal upon an appellant affected in his or her capacity as an officer by a decision or administrative action. The question when the appellant is required to be an officer is dictated by the question whether the appellant is affected in his or her capacity as an officer by the decision or action (at [62]).
2. Given the paucity of evidence adduced on judicial review (and before the Tribunal) of the steps taken by Department officers and communications with Mr Collins concerning his applications for an Authority to Teach, the State has failed to prove that he was not an officer when the relevant decisions were made or that the decisions did not affect him in his capacity as an officer (at [72]).
3. Action dismissed (at [76]).
Education Act 1972 (SA) ss 5, 15, 16, 17, 26, 28, 53, 54; Education Regulations 2012 (SA) r 36; Public Sector Act 2009 (SA) s 3; Supreme Court Civil Rules 2006 (SA) r 201; Taxation Administration Act 1996 (SA) s 92, referred to.
Collins v Chief Executive Department for Education and Child Development [2015] SATAB 1; Collins v Chief Executive Department for Education and Child Development [2017] SATAB 3; Cusack v Parsons (1988) 48 SASR 364; State of South Australia v Teachers Appeal Board [2011] SASCFC 3, (2011) 109 SASR 168, considered.

STATE OF SOUTH AUSTRALIA v COLLINS
[2018] SASCFC 110
Full Court: Kourakis CJ, Blue and Bampton JJ
KOURAKIS CJ:

I agree with the reasons of Justice Blue and the orders he proposes.
BLUE J:
This is an application by the State of South Australia for judicial review of a decision by the Teachers Appeal Board of South Australia to dismiss an application for summary dismissal of an appeal by the second defendant, Barry Collins, against decisions by the Education Department not to grant to him an Authority to Teach. The application was made on the ground that the Board had no jurisdiction to entertain the appeal under former section 54 of the Education Act 1972 (SA) (the Act).[1]
[1] Section 54 has since been repealed and replaced by section 107(2)(fa) in similar terms.
In November 2014 Mr Collins was employed as a Temporary Teacher pursuant to a one year contract when allegations of misconduct were made against him. The Education Department commenced an investigation, he was suspended on full pay and his 2014 Authority to Teach was withdrawn. In December 2014 he applied for an Authority to Teach for 2015 which was not granted. In January 2015 his employment expired by the effluxion of time and he ceased to be an officer of the teaching service.
In October 2015 Mr Collins applied for an Authority to Teach for 2016. In June and December 2016 the Director-General wrote to him stating that the allegations were found proved on the balance of probabilities, they amounted to formal misconduct and he would not be granted an Authority to Teach.
Mr Collins lodged with the Board a notice of appeal against the Director-General’s decisions. The Director-General filed an application for summary dismissal on the ground that the Board had no jurisdiction to entertain the appeal because the decisions the subject of the appeal were made after Mr Collins had ceased to be an officer. The Board dismissed the Director-General’s application. The State contends in this action that the Board had, and the first defendant the South Australian Employment Tribunal (which has succeeded the Board) has, no jurisdiction to entertain the appeal.
This application raises for consideration the proper construction and application of section 54 of the Act and regulation 36 of the Education Regulations 2012 (SA) (the Regulations).
Background
In July 2007 Mr Collins commenced employment by the Education Department[2] as a temporary teacher under a fixed term contract. He was appointed as a temporary (contract) teacher pursuant to section 15 of the Act. He was employed by the Education Department as a temporary teacher under a series of fixed term contracts of up to one year’s duration until mid-2012.
[2] The Department was at material times generally called the Department for Education and Child Development but its name has changed over time. For ease of reference I refer to it simply as the Education Department.
After a series of short term temporary relieving teacher appointments, in January 2014 Mr Collins was again appointed as a part-time temporary teacher from 23 January 2014 to 21 January 2015 pursuant to a letter of appointment dated 3 February 2014. Mr Collins was engaged to work as a preschool teacher at a Children’s Centre in a north-eastern suburb (the School).
It was at all times a precondition to Mr Collins obtaining employment with the Department that he hold an Authority to Teach issued by the Department. This precondition applies to all temporary teaching appointments but does not apply to permanent teachers. Teachers who seek an Authority to Teach are required to complete an application towards the end of the calendar year. The criterion for the grant of an Authority to Teach is whether the applicant is suitable for employment within the Department. If granted, an Authority to Teach applies to the following calendar year and the applicant’s details are placed on the Employable Teacher Register for the duration of that calendar year. Principals of schools and directors of preschools have authority to engage only teachers who hold an Authority to Teach and therefore whose names appear in the Employable Teacher Register for the relevant calendar year.
On 13 November 2014 allegations of misconduct by Mr Collins at the School were made against him. The Department commenced an investigation. On 17 November 2014 Mr Lovegrove, an officer of the Department, wrote to Mr Collins informing him that he had decided that, pending the investigation, Mr Collins should be suspended from work on full pay. This decision was confirmed by a letter from Mr O’Loughlin, another officer of the Department, dated 22 December 2014. These letters were not tendered before the Board or at the hearing of this action and are not in evidence.
Also on 17 November 2014 Mr Mullan, another officer of the Department, wrote to Mr Collins informing him that he had decided that, pending the investigation, Mr Collins’ current Authority to Teach should be withdrawn. This letter is not in evidence.
On 8 December 2014 Mr Collins lodged an application for an Authority to Teach for calendar 2015. The application is not in evidence.
On 21 January 2015 Mr Collins’ employment expired by the effluxion of time. He thereby ceased to be an officer of the teaching service within the meaning of sections 5 and 54 of the Act.
On 28 April 2015 Mr Collins wrote to the Chief Executive of the Department seeking a review of the decisions by officers of the Department to suspend him and withdraw his 2014 Authority to Teach. On 4 May 2015 Mr Mullan wrote to Mr Collins in relation to his application for an Authority to Teach for 2015. These letters are not in evidence.
On 26 May 2015 the Chief Executive wrote to Mr Collins affirming the decisions by officers of the Department. This letter is not in evidence.
On 9 June 2015 Mr Collins filed with the Board a notice of appeal (the 2015 appeal) against the Chief Executive’s decision of 26 May 2015 pursuant to section 54 of the Act and regulation 36 of the Regulations. On 7 October 2015 the Board heard the 2015 appeal.
On 30 October 2015 Mr Collins lodged an application for an Authority to Teach for 2016. The application is not in evidence.
On 12 November 2015 the Board delivered reasons for decision and dismissed the 2015 appeal: Collins v Chief Executive Department for Education and Child Development [2015] SATAB 1. The Board concluded that on the evidence it was unable to make a finding that the impugned decisions were wrong or that the decision-makers acted unfairly in their decision-making process. In relation to the decision to withdraw Mr Collins’ 2014 Authority to Teach, the Board accepted the Chief Executive’s contention that the decision was not made in the context of Mr Collins’ employment relationship with the Department as an officer of the teaching service and concluded that it did not have jurisdiction with respect to that matter.
On 5 January 2016 the Chief Executive of the Department wrote to Mr Collins in relation to his applications of December 2014 and October 2015 for Authorities to Teach. The Chief Executive of the Department is ipso facto the Director-General of Education pursuant to subsection 5(1) of the Act. The Chief Executive set out details of three allegations of misconduct made against Mr Collins and gave him an opportunity to respond. The letter was not tendered before the Board or at the hearing of this action.
On 28 June 2016 the Chief Executive wrote to Mr Collins. He referred to his predecessor’s letter of 5 January 2016 and Mr Collins’ comprehensive response of 24 March 2016 (which was not tendered). He found each of the three allegations proved on the balance of probabilities. He found that this proved conduct amounted to a contravention of the relevant Professional Conduct Standards which in turn amounted to “misconduct” as defined in section 3 of the Public Sector Act 2009 (SA). He said that it was his intention to deny Mr Collins an Authority to Teach. He gave Mr Collins an opportunity to make submissions in response.
On 2 December 2016 the Chief Executive wrote to Mr Collins. He referred to his letter of 28 June 2016 and Mr Collins’ response of 26 September 2016 (which was not tendered). He upheld his previous decision about misconduct by Mr Collins and confirmed his earlier expressed intention not to grant Mr Collins’ application for an Authority to Teach.
On 16 December 2016 Mr Collins filed with the Board a notice of appeal against the decisions of 28 June and 2 December 2016. Mr Collins relied on the right of appeal conferred by section 54 of the Act and regulation 36 of the Regulations.[3]
[3] Mr Collins also relied on section 26 but this head of jurisdiction can be disregarded because he does not rely upon it in this action.
On 23 February 2017 the Chief Executive filed at the Board an application for directions seeking summary dismissal of the appeal on the ground, amongst others, that the Board did not have jurisdiction to entertain the appeal. The application was supported by an affidavit by Allan McDonald, an officer of the Department. Mr McDonald exhibited the letter of appointment dated 3 February 2014, the Chief Executive’s letters dated 28 June and 2 December 2016 and a statement of service in respect of Mr Collins. Mr McDonald also referred to facts set out in the Board’s reasons for decision in Collins v Chief Executive Department for Education and Child Development [2015] SATAB 1. On 19 May 2017 the Board heard the Chief Executive’s application and reserved its judgment.
On 9 June 2017 the Board dismissed the Chief Executive’s application for summary dismissal of the appeal. The Board first addressed arguments advanced by the Chief Executive that are not relevant on this application for judicial review. The Board then addressed the relevant argument as to jurisdiction in the following terms:
As for the submission that Mr Collins has no standing because he is no longer a member of the teaching service, we reject it. The right of appeal that the Act affords to teachers who have been retrenched, forcibly retired or dismissed, indicates that the right of appeal is not limited to teachers currently employed by the Department.
On 1 July 2017 the Act was amended effectively to substitute rights of review to the South Australian Employment Tribunal for the rights of appeal to the Board previously conferred by the Act.[4] The transitional provisions of the Amending Act provide that extant appeals before the Board as at 1 July 2017 are continued as reviews before the Tribunal but the parties have proceeded on the common basis that otherwise such appeals are implicitly to be governed by the substantive provisions of the Act before the amendment.[5]
[4] Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA). The amendments include the repeal of section 54 and the enactment of section 107(2)(fa) which empowers the regulations to confer a right on an officer of the teaching service to apply to the Tribunal for a review of decisions affecting the officer of a kind or class prescribed by the regulations in similar terms to the right of appeal to the Board conferred by repealed section 54.
[5] Even if this assumption were incorrect, because new section 107(2)(fa) empowers the regulations to confer a right of review in similar terms to the right of appeal conferred by repealed section 54 and regulation 36 has not been amended, the substantive issue raised in this action would not be affected.
On 31 July 2017 the State instituted this action against the Tribunal and Mr Collins seeking a declaration that the Tribunal does not have jurisdiction under section 54 and regulation 36 to hear and determine an appeal if the appellant was not an officer of the teaching service at the time of the relevant decision or action and an order in the nature of certiorari quashing the Board’s decision dated 9 June 2017. The Tribunal agreed to abide the decision of the Court and did not take part in the action.
On 27 September 2017 the Acting Chief Executive wrote to Mr Collins. She referred to her predecessors’ letters of 5 January 2016, 28 June 2016 and 2 December 2016. She maintained the factual findings made about Mr Collins’ conduct but rescinded the findings that this conduct amounted to a contravention of the relevant Professional Conduct Standards and amounted to “misconduct” as defined in section 3 of the Public Sector Act 2009 (SA). It is common ground that the rescission is not relevant to the jurisdictional issue that arises on this application for judicial review.
Evidence
The hearing and determination of this application for judicial review was referred by a Judge directly to the Full Court pursuant to subrule 201(2) of the Supreme Court Civil Rules 2006 (SA).
At the hearing the State tendered an affidavit by Helen King, the solicitor for the State in this matter, which exhibited Mr Collins’ notice of appeal,[6] the Director-General’s application for directions and supporting affidavit of Mr McDonald (together with its exhibits), the transcript of the hearing before the Board on 19 May 2017 and the Board’s reasons for decision dated 9 June 2017.
[6] The notice of appeal was amended with the permission of the Board granted at the hearing on 19 May 2017.
The State also tendered an affidavit by Michael Papps, Director of People and Culture Operations within the Department. Mr Papps exhibited the Acting Chief Executive’s letter dated 27 September 2017 and explained processes within the Department for teaching appointments and Authorities to Teach.
Contentions by the parties
Section 54 of the Act confers on an officer a right of appeal to the Board against a decision affecting the officer in relation to which a right of appeal is conferred by the regulations. Regulation 36 confers a right of appeal on a teacher who considers that he or she has just cause of complaint against an officer of the Department when that officer is acting in the course of his or her duties provided that the teacher first appeals to the Director-General and is dissatisfied with the Director-General’s determination.
It is common ground that the reference in regulation 36 to a “teacher” is a reference to an “officer” within the meaning of section 54 as defined by section 5 of the Act, namely a teacher holding office in the teaching service constituted under Part 3 of the Act.[7]
[7] In Cusack v Parsons (1988) 48 SASR 364, Jacobs J (with whom Millhouse J agreed) held that the reference to a “teacher” in regulation 111 of the Education Regulations 1976 (SA), which was in the same terms as regulation 36, was to be construed as confined to an officer as defined in section 5 of the Act. Both parties accept the correctness of that decision in this respect.
The State contends that on its proper construction the reference in section 54 to an “officer” is a reference to a person who is an officer at the time of the impugned decision the subject of the appeal. As Mr Collins ceased to be an officer in January 2015, he had no right to appeal against decisions made in 2016 when he was no longer an officer.
Mr Collins contends that on its proper construction the reference in section 54 to an “officer” is a reference to a person who was an officer at the time of the conduct or other subject matter of the impugned decision the subject of the appeal. As Mr Collins was an officer in November 2014 when he allegedly engaged in the conduct the subject of the impugned decisions, he has a right to appeal against the decisions.
Both parties cite and rely upon the decision of this Court in Cusack v Parsons.[8]
[8] (1988) 48 SASR 364.
The legislative scheme
As observed above, the Act was amended on 1 July 2017 since the Board’s decision made in June 2017. For ease of expression, for the purpose of this judgment I refer to the Act in its pre-1 July 2017 form as if it were still in that form.

Section 15 of the Act provides for the Director-General to appoint permanent and temporary teachers as officers of the teaching service. The Director-General (and a limited number of senior delegates) appoints permanent teachers. School principals and preschool directors (collectively school principals) have delegated authority to appoint temporary teachers.
Sections 16 and 17 empower the Director-General (or where applicable a school principal) to retrench officers or retire officers who are incapable of satisfactorily performing their duties. Section 26 empowers the Director-General (or where applicable a school principal) to dismiss or impose a lesser sanction (including reduction in remuneration, a fine or a reprimand) on an officer who has acted in a manner giving rise to cause for disciplinary action.
Section 28 empowers the Director-General (or, where the power has been delegated, a school principal), on application by an officer, to reclassify the officer or his or her position to accord with the duties performed. Section 53 empowers the Director-General (or, where the power has been delegated, a school principal) to promote provisionally an officer to a promotional position.
Sections 16, 17, 26, 30 and 53 respectively confer specific rights of appeal to the Board[9] in favour of an officer against a retrenchment, retirement, disciplinary, and promotion decision.
[9] Now a right of review to the Tribunal. Section 30 coferred a review to a panel rather than the Board.
Subsection 54(1) confers a general right of appeal to the Board against administrative action or a decision affecting the officer to the extent that the regulations so provide. That subsection provides:
54 Additional rights 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.
Regulation 36 of the Regulations provides:
36—Complaint against a Departmental officer
(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 14 days of the receipt of that notification, appeal to the Appeal Board against the determination of the Director-General.
In State of South Australia v Teachers Appeal Board[10] it was held by this Court that the reference in subregulation 36(1) to an officer encompasses the Director-General and a teacher can appeal under that provision to the Director-General against a decision of the Director-General himself or herself.[11] No issue is taken by the State on the judicial review that Mr Collins did not invoke regulation 36 if (contrary to the State’s contention) he was entitled to do so notwithstanding that he ceased to be an officer in January 2015.
[10] [2011] SASCFC 3, (2011) 109 SASR 168.
[11] At [44]-[45] per Gray J; [88], [90] per White J (Doyle CJ agreeing).
It is to be noted that regulation 36 refers to the subject matter of the appeal being that a teacher “considers that he or she has just cause for complaint” whereas section 54 refers to the subject matter of the appeal being “administrative action or [a] decision affecting the officer”. If regulation 36 were read literally and outside the context of section 54 as its empowering provision, it might be thought that “just cause for complaint” might relate to something other than “administrative action or [a] decision affecting the teacher”. However, by reason of the context and the limit of the power conferred by section 54, the subject matter of the just cause for complaint referred to in regulation 36 must be administrative action or a decision affecting the teacher within the meaning of section 54.
The construction of subsection 54(1) and regulation 36
The scope of the Board’s jurisdiction depends primarily on subsection 54(1) and secondarily on regulation 36.
In Cusack v Parsons[12] this Court considered the time at which an appellant under section 54 is required to be an officer of the teaching service. Ms Robbins had been appointed as a temporary (contract) teacher under section 15 but her most recent appointment had terminated on 17 December 1982. On 21 December 1982 Mr Dorey was appointed head teacher at Mount Gunson Rural School. On 3 February 1983 Ms Robbins was appointed as a permanent teacher and posted to Mount Gunson Rural School. She complained to the Director-General that the Department engaged in sexual discrimination against her in appointing Mr Dorey as head teacher in preference to her, a complaint which the Director-General dismissed. Ms Robbins then appealed to the Board against that decision pursuant to section 54 of the Act and regulation 111 of the Education Regulations 1976 (SA) which was in similar terms to regulation 36. The Director-General contended that the Board had no jurisdiction because Ms Robbins was not an officer of the teaching service on 21 December 1982 when the conduct the subject of her complaint occurred. The Board rejected that contention and the Director-General brought a judicial review application challenging the Board’s jurisdiction.
[12] (1988) 48 SASR 364.
This Court held that the Board did not have jurisdiction to entertain the appeal. Jacobs J (with whom Millhouse J agreed) said:
There is no doubt that when Ms Robbins purported to institute her appeal she was an officer of the teaching service who was not satisfied with the determination of the Director-General. She was at that time within the purview of reg 111 (2), but in my opinion that is not the date which really governs her rights. The relevant and critical date must surely be the date of the event which gave rise to her complaint, that is, the appointment of Mr Dorey as an act of sexual discrimination against her. On the only evidence before the Court, that appointment was confirmed to Mr Dorey on 21 December 1982.
On that date, Ms Robbins had no teacher status within the Department at all. She was not an officer of the teaching service… she had no status to complain to the Department, or to the Director-General, of sexual discrimination by Anstey in the appointment of Mr Dorey.[13]
Cox J said:
In my opinion, a complaint may be made out under sub-reg 1(f) of reg 1ll, and an appeal instituted under sub-reg (2), only by a person who had the required status – teacher or officer, whichever it might be – both at the time of the act or omission complained of and at the time the aggrieved person invoked the reg 111 procedure..… The natural construction of any provision that is cast in this very common form requires that the stipulated status should coincide with the designated action.… Certainly the words are inadequate, in my view, to reverse the natural meaning of a provision of that kind – that a “teacher” may make a complaint under reg 111, and if need be later appeal, only about some prejudicial behaviour that occurred at a time when she was a “teacher”.[14]
[13] At 370-371.
[14] At 377-378.
The material provision in subsection 54(1) provides:
… 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.
The task of construing subsection 54(1) begins with its text. The first thing to be noticed about the subsection is that, in contrast to the other provisions of the Act which confer rights of appeal only against specific types of decision, the right of appeal conferred by subsection 54(1) refers to any type of decision or administrative action. The only limitation will be any limitation imposed by the contemplated regulation (albeit in the absence of a regulation the right of appeal conferred by the subsection will have no content).
The second thing to be noticed is that the first part of the subsection simply provides that “an officer may appeal to the Appeal Board”. This is expressed in neutral terms as to temporality. It does not refer to a person who is or was an officer at any particular time. If any temporality were to be read into this part of the subsection, it would be a literal reading that the appellant must be an officer at the time of the appeal. However such a construction would be irrational and it is common ground that the subsection is not so limited.
The third thing to be noticed is that the subsection goes on to provide that the right of appeal conferred is against “administrative action or [a] decision affecting the officer”. This entails that it is first necessary to identify the subject matter of the appeal before it can be determined whether the appellant is an “officer” within the meaning of the subsection. It also suggests that the decision or action in question must affect the appellant in his or her capacity as an officer.
The combination of the last two mentioned matters suggests that the test whether an appellant has a right of appeal under section 54 is essentially a functional rather than a temporal test. This is not to say that there is not a temporal aspect to the test. Obviously the appellant must have been an officer at some point; otherwise the appellant could not on any view be regarded as an “officer” within the meaning of the provision. In addition, the appellant must have been an “officer” at the relevant time, but the relevant time is determined by the functional aspect of the test that the appellant must be affected by the decision or action in his or her capacity as an officer.
This construction suggested by the text of the provision can be illustrated by hypothetical examples. Assume that Jane Doe was employed by the Department, and therefore an officer of the teaching service, between 1 January and 31 December 2016. She was then employed in a private school between 1 January and 31 December 2017. She is again employed by the Department on 1 January 2018. On 30 June 2018 her Authority to Teach is revoked on the ground of misconduct allegedly committed on 31 May 2016 (when she had been employed by the Department). Ms Doe is affected by the decision to revoke her Authority to Teach in her capacity as an officer because she was an officer on 30 June 2018 when her Authority to Teach was revoked.
Assume the same facts except that the Authority to Teach is revoked on the ground of misconduct allegedly committed on 31 March 2017 (when Ms Doe was employed by the private school). Notwithstanding that the conduct the subject of the decision occurred when she was not an officer, nevertheless she is affected by the decision to revoke her Authority to Teach in her capacity as an officer because she was an officer on 30 June 2018 when her Authority to Teach was revoked.
Assume that Richard Rowe was employed by the Department between 1 January and 31 December 2016. He was then employed in a private school between 1 January and 31 December 2017. On 1 May 2018 he applies to the Department for an Authority to Teach. On 30 June 2018 an Authority to Teach is refused on the ground of misconduct allegedly committed on 31 May 2017 (when he was employed by the private school). Mr Rowe is not affected by the decision not to grant an Authority to Teach in his capacity as an officer because he was not an officer in May or June 2018 when he applied for and was refused an Authority to Teach.
Assume the same facts except that the Authority to Teach is refused on the ground of misconduct allegedly committed on 31 March 2016 (when Mr Roe had been employed by the Department). Notwithstanding that the conduct the subject of the decision occurred when he was an officer, nevertheless he is not affected by the decision not to grant an Authority to Teach in his capacity as an officer because he was not an officer in May or June 2018 when he applied for and was refused an Authority to Teach.
On the facts in Cusack v Parsons[15] the decision to appoint Mr Dorey as head teacher was made on 21 December 1982. Ms Robbins was not employed by the Department, and hence was not an officer, at that date and was incapable of being affected by that decision in her capacity as an officer. On the construction suggested by the text of the provision, she had no right of appeal against that decision.
[15] (1988) 48 SASR 364.
Turning to the context of subsection 54(1) within the Act, Part 3 addresses the teaching service. Various provisions of that Part govern the appointment, classification, promotion, discipline and termination of employment of teachers. Teachers employed by the State under that Part hold office in the teaching service and are called officers. The scheme of Part 3 is to confer specific rights of appeal against specific types of decision (summarised at [38] above) and to confer, subject to regulations defining the scope thereof, a general or residual right of appeal against decisions or administrative actions generally.
The specific rights of appeal are conferred upon officers notwithstanding that an appellant may have ceased to be an officer at the time the appeal is lodged. For example, subsection 16(3) confers upon an “officer” a right of appeal against a decision to retrench the officer and subsection 16(4) confers upon the Board power to order that an appellant be reinstated after having been terminated. It is clear that for the purposes of the specific rights of appeal conferred by Part 3 an appellant need not, and in some cases clearly will not, be an officer at the time the appeal is lodged. It is unlikely that the legislature intended to take a different approach in respect of the general right of appeal conferred by subsection 54(1). In any event, it would be irrational to construe subsection 54(1) as requiring that an appellant be an officer when the appeal is lodged because in various circumstances the appellant will have ceased to be an officer at that time but will have a grievance about a decision affecting him or her in his or her capacity as an officer. Such circumstances will include a complaint that the appellant was dismissed other than pursuant to section 16 or 17.
In the case of each of the rights of appeal conferred by sections 16, 17, 26, 30 and 53, the appellant will necessarily have been affected by a decision in his or her capacity as an officer. A construction of subsection 54(1) under which the test focuses on the appellant being affected by a decision in his or her capacity as an officer would operate harmoniously with the other sections of Part 3 that confer rights of appeal.
Turning to the evident purpose of subsection 54(1), it is to confer, subject to the regulations, a general right of appeal against a decision or administrative action affecting an officer. There are a range of circumstances in which a teacher employed by the State might be affected by a decision or administrative action and the evident purpose of the subsection is to confer, again subject to the regulations, a general right of appeal against such decisions and actions. This purpose suggests that the appellant must be affected in his or capacity as an officer and that the time at which the appellant is required to be an officer will be dictated by that requirement.
On the proper construction of section 54, it operates to confer a right of appeal upon an appellant affected in his or her capacity as an officer by a decision or administrative action. The question when the appellant is required to be an officer is dictated by the question whether the appellant is affected in his or her capacity as an officer by the decision or action.
Regulation 36 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 14 days of the receipt of that notification, appeal to the Appeal Board against the determination of the Director-General.
Subregulation (1) contemplates and provides for a two stage process. The first stage involves a decision or action by a Department officer that gives rise to cause of complaint by the appellant. As observed above, the subject matter of a cause of complaint in regulation 36 is a decision or action affecting the appellant within the meaninf section 54. Subregulation (1) is drafted in a manner which suggests that the cause of complaint in question must affect the complainant in his or her capacity as an officer.
The second stage involves an appeal to the Director-General by the appellant against the decision or action by the Departmental decision-maker or action-taker. Subregulation (2) in turn confers a right of appeal to the Board when the appellant is dissatisfied with the determination by the Director-General. Although the appeal is expressed to be against the determination by the Director-General, in substance it is an appeal against the decision or action by the original Departmental decision-maker (who in some cases will be the Director-General). In this respect, the appeal to the Board is analogous to an appeal to the Court under section 92 of the Taxation Administration Act 1996 (SA) by a taxpayer who is dissatisfied with a decision by the Treasurer on an objection against an assessment by the Commissioner of State Taxation where in substance the appeal is against the original assessment.[16]
[16] T & S Liapis Pty Ltd v Commissioner of State Taxation [2015] SASC 63 at [106] per Blue J.
On the proper construction of regulation 36, it operates in conjunction with section 54 to confer a right of appeal upon an appellant affected in his or her capacity as an officer by a decision or administrative action taken by a Department officer in the course of his or her duties. The question when the appellant is required to be an officer is dictated by the question whether the appellant is affected in his or her capacity as an officer by the decision or action.
This construction is not dissimilar to the construction adopted by the Board in the 2015 appeal that the question was whether the decision was made in the context of the appellant’s employment relationship with the Department as an officer of the teaching service. However, although the question does not arise in this application for judicial review, for completeness I record that I do not agree with the Board’s conclusion on the facts that the decision to withdraw Mr Collins’ 2014 Authority to Teach was not made in such a context.
The facts in the present case
As appears above, the evidence tendered at the hearing of this application (and adduced before the Board) is extremely limited. The only evidence of the steps taken by Department officers and communications with Mr Collins concerning his applications for an Authority to Teach is confined to the Director-General’s letters to Mr Collins dated 28 June and 2 December 2016. None of the earlier correspondence or other communications passing between Department officers and Mr Collins between 17 November 2014 and 24 March 2016 was tendered. No evidence was adduced of internal decisions or action taken by Department officers between 17 November 2014 and 28 June 2016.
On the one hand, for the reasons given above the mere fact that the decisions not to grant an Authority to Teach related to conduct by Mr Collins in 2014 while he was an officer does not suffice to give him standing to appeal under section 54 and regulation 36. The contention by Mr Collins to the contrary must be rejected.

On the other hand, the mere fact that the Director-General made the decisions which he did in June and December 2016 after Mr Collins had ceased to be an officer is not in itself fatal to Mr Collins’ standing to appeal. This is so for the following reasons.
Mr Collins applied on 8 December 2014 for an Authority to Teach for the forthcoming calendar year. The affidavit by Mr Papps indicates that the decision whether to grant an Authority to Teach is normally made in advance of the calendar year for which it is sought. This is a natural inference in any event because obviously school principals need to engage staff well before the attendance of students at the start of the school year at the end of January. In any event the State bears the onus of proof on the application and has not proved that the position is otherwise.
Mr Collins was an officer until 21 January 2015. An inference is clearly open that a Department officer must have decided before that date that Mr Collins was not to be granted an Authority to Teach for 2015. Again the State has not proved otherwise. Any such decision would have been made while Mr Collins was an officer and would have affected him in his capacity as an officer. In the absence of detailed evidence from the Department, it cannot be concluded that the Director-General’s ultimate decisions affirming earlier decisions was not to affirm a decision made before 21 January 2015 while Mr Collins was still an officer. Alternatively an inference is clearly open, if not inevitable, that a Department officer must have decided before 21 January 2015 that Mr Collins was not to be granted an Authority to Teach for 2015 in the ordinary course: ie that he would not be granted an Authority that would enable him to teach from the commencement of the 2015 school year even though the possibility might remain that he would be granted a belated or deferred Authority enabling him to teach later in the year. Alternatively, if the decision to refuse Mr Collins an authority was not made while he was still a teacher, it may be a matter affecting him as teacher that the decision was not made within the usual time frame or before he ceased to become a teacher because the delay in making the decision denied him the statutory procedural safeguard. In addition, depending on the facts, it may be that it is sufficient that Mr Collins’ application for an Authority to Teach was made while he was an officer and was not granted while he was an officer.
It is true that Mr Collins made a subsequent application on 30 October 2015 for an Authority to Teach for 2016 and he was not then an officer. However, it is clear that the annual process of granting Authorities to Teach is a renewal process after the first Authority has been granted and, if an Authority to Teach for 2015 was refused while Mr Collins was still an officer, it is arguable that a decision not to grant an Authority to Teach for 2016 was consequential on the earlier decision. Again, given the paucity of evidence adduced by the State, the State has not proved otherwise.
It follows that the decision of the Board not to dismiss summarily the appeal was correct on the material before the Board. The State failed to prove that Mr Collins did not have standing and consequently that the Board did not have jurisdiction. On the other hand, the Board did not have sufficient material to make an affirmative finding that Mr Collins did have standing.
Accordingly the application for judicial review should be dismissed. The appeal should proceed to a hearing before the Tribunal at which evidence relevant to Mr Collins’ standing is adduced together with evidence as to the merits. The Tribunal can then decide both the issue of jurisdiction and the merits on all available evidence.
Conclusion
I would dismiss the application for judicial review.
BAMPTON J:
I agree with Blue J and would dismiss the application for judicial review.