Australian Education Union v Department of Education and Children's Services [2012] HCA 3

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, HEYDON, KIEFEL AND BELL JJ

AUSTRALIAN EDUCATION UNION APPELLANT

AND

DEPARTMENT OF EDUCATION AND CHILDREN'S

SERVICES RESPONDENT

Australian Education Union v Department of Education

and Children's Services

[2012] HCA 3

29 February 2012

A4/2011

ORDER

1. The Chief Executive, Department of Premier and Cabinet of South Australia be substituted as respondent for the Department of Education and Children's Services in the proceedings in this Court, in the Full Court of the Supreme Court of South Australia and in the Industrial Relations Court of South Australia.

2. Appeal allowed.

3. Set aside the orders of the Full Court of the Supreme Court of South Australia made on 28 May 2010 and, in their place, order that:

(a) the appeal be allowed;

(b) the order of the Full Court of the Industrial Relations Court of South Australia be varied so as to answer question 1 as follows:

Question 1: Did s 9(4) of the Education Act 1972 (SA), at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did s 15 of the Act provide exclusively for the appointment of teachers?

Answer: Section 9(4) of the Education Act 1972 (SA), at the time that it was in force, did not authorise the Minister to appoint officers to be engaged as teachers and s 15 of the Act provided exclusively for the appointment of teachers.

and;

(c) the matter be remitted to the Full Court of the Industrial Relations Court of South Australia for further consideration of question 2.

4. The respondent, the Chief Executive, Department of Premier and Cabinet of South Australia, pay the appellant's costs in this Court and in the Full Court of the Supreme Court of South Australia.

On appeal from the Supreme Court of South Australia

Representation

R J Whitington QC with M B Manetta and A P Durkin for the appellant (instructed by Australian Education Union (SA))