Australian Education Union v Department of Education and Children's Services [2011] HCATrans 22 (11 February 2011)

Last Updated: 11 February 2011

[2011] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A12 of 2010

B e t w e e n -

AUSTRALIAN EDUCATION UNION

Applicant

and

DEPARTMENT OF EDUCATION AND CHILDREN’S SERVICES

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 11 FEBRUARY 2011, AT 11.30 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friends, MR M.B. MANETTA and MR A.P. DURKIN, for the appellant. (Australian Education Union (South Australia))

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia): If the Court pleases, I appear with my learned friend, MS K. HODDER, for the respondent. (instructed by Crown Solicitor (SA))

GUMMOW J: We will hear first from Mr Hinton.

MR WHITINGTON: If the Court pleases.

MR HINTON: If the Court pleases, the crucial question is the relationship between section 9(4) and section 15(1) of the Education Act at the relevant time. That is or involves a routine question of construction, a question, the resolution of which quite obviously will not have any impact beyond the borders of South Australia. It does not give rise to a question of general importance. So we are in the realms of an application for special leave - - -

KIEFEL J: Mr Hinton, how many people are likely to be affected by the decision in this case? There is a reference to a number of persons who are said to have been affected, that is, appointed under arguably the wrong section.

MR HINTON: That task has not been undertaken as yet. The materials before the Full Bench had two cases presented to it of two particular teachers who were examples of a number, an indeterminate number, who would be dealt with depending upon the answers to the questions. I know that is unsatisfactory, but the way in which it was planned - - -

GUMMOW J: Well, it may be unsatisfactory for you in resisting - - -

MR HINTON: It may well be, your Honour.

GUMMOW J: Yes, go on.

MR HINTON: The way in which it was planned that this litigation would resolve itself was that depending upon the answers to the first two questions, then the arithmetic exercise would be undertaken with respect to the two teachers, assuming it went - - -

KIEFEL J: It is a test case, though? That is the way it was conducted.

MR HINTON: It is, your Honour. I can put it this way - - -

KIEFEL J: The impact upon those affected is that they will either receive or not receive additional benefits in the way of superannuation and the like?

MR HINTON: That is right, your Honour. It is not that their appointment was one that did not attract benefits, superannuation, et cetera, just that it did not attract benefits at the rate or the same rate, a more generous rate, that a teacher appointed to the teaching service would attract.

CRENNAN J: They would have got, if appointed under section 15, as I understand it, greater long-service leave entitlements?

MR HINTON: Yes, your Honour. It is not a question of all or nothing. It is just more than what you have already got.

CRENNAN J: Greater entitlements.

MR HINTON: Yes, your Honour. The question then is really – or the applicant really comes to this Court as the final Court of Appeal for South Australia and poses a question which, in the submission of the respondent, has been answered by six judges in South Australia and that answer is not attended by sufficient doubt such that this Court should grant special leave. The relevant sections are contained in the respondent’s outline of submissions at application book 67 and 68. Section 9(4) appears at - - -

GUMMOW J: They are rather incomplete selections. We have to look first at Part II which is sections 6 and following, including section 9. That is headed “The Minister and the Department” and that includes section 9.

MR HINTON: Yes, your Honour.

GUMMOW J: Then we get to Part III which is headed “The Teaching Service” and that brings us to section 15.

MR HINTON: Yes, your Honour.

KIEFEL J: What do you say to the applicant’s argument that, as a matter of construction – and one assumes by reference to Part III being headed “The Teaching Service” that the teaching service is intended to be the exclusive source of teachers?

MR HINTON: If your Honour pleases, my response to that is one of the ordinary meaning of the words contained in section 15(1), section 9(4) and, indeed, the definition of “teacher” itself. The definition of “teacher” in section 4 is not someone who is a member of the teaching service:

“teacher” means any person who gives, or is qualified to give, instruction at any Government or non-Government school –

When we go to section 15(1), The Teaching Service, we note the Minister has a discretion to “appoint such teachers”, any teachers, not all teachers, “such teachers to be officers of the teaching service as he thinks fit.” Implicit in section 15(1) then is the possibility that not all teachers will be members of the teaching service. That then suggests that when one looks at section - - -

GUMMOW J: Why?

MR HINTON: Because it is such teachers as the Minister thinks fit, not all, your Honour.

GUMMOW J: Yes, that is right. There might be a person who satisfies the definition of “teacher” but for good reason the Minister is not going to appoint them. Lack of funds, for example, would be one good reason.

MR HINTON: My submission is not that a teacher cannot be appointed to the teaching service. My submission is that not all teachers have to be appointed to the teaching service.

GUMMOW J: That is right, but it does not then follow that they can be appointed under section 9.

MR HINTON: Equally it does not exclude their possibility of being appointed as a – well, it follows that they cannot be appointed to the teaching service under section 9, but not that they cannot be appointed as a teacher by virtue of some other power, and that is how we get to section 9. It is section 9(4) that allows the Minister to appoint such officers and employees in addition.

GUMMOW J: You are saying to us that all this is as plain as a pikestaff, but what I am saying to you is there seems to be some problems, notwithstanding the unanimous views in the courts of South Australia.

MR HINTON: Your Honour, I can put it no higher than there might be, there might be as a matter of construction, interesting questions, but the decision of the Full Court is not attended by sufficient doubt such as to warrant a grant of special leave. If the Court pleases.

GUMMOW J: Yes. We do not need to hear from you, Mr Whitington. There will be a grant of leave in this matter. A half-day case, I would think? Does that seem right, gentlemen?

MR WHITINGTON: Yes, your Honour, no more than that.

GUMMOW J: Thank you. Do you agree with that, Mr Solicitor?

MR HINTON: I do, your Honour, yes.

GUMMOW J: Thank you. Very well.

MR WHITINGTON: We make an application for costs of the application for special leave, if the Court pleases?

GUMMOW J: That will follow the outcome of the appeal in accordance with the usual practice. We will take a short adjournment.

AT 11.39 AM THE MATTER WAS CONCLUDED