New South Wales Teachers Federation v Director-General of Education and Training

Industrial Relations Act 1996 Interpretation Act 1987 Police Act 1990 LEGISLATION CITED: Public Sector Employment and Management Act 2002 Teaching Service Act 1980 Teaching Service Act 1970

Attorney General for the State of Queensland v Australian Industrial Relations Commission & Ors (2002) 213 CLR 485 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 205 ALR 1 CASES CITED: Maxwell v Murphy (1957) 96 CLR 261

APPLICANT: Ms PF Lowson of counsel SOLICITORS: MacMahon Associates LEGAL REPRESENTATIVES:

RESPONDENT: Mr P Menzies QC with Ms RA Pepper of counsel

• 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

NEW SOUTH WALES TEACHERS FEDERATION v DIRECTOR-GENERAL OF EDUCATION AND TRAINING (NSW)

Application by New South Wales Teachers Federation for declaratory relief under section 154 of the Industrial Relations Act 1996

1 These proceedings concern the proper construction of s83 of the Teaching Service Act 1980. The parties agreed that 'there are on foot two disciplinary proceedings which involve allegations of misconduct that is alleged to have occurred prior to the promulgation of the 1980 Act.' 2 In evidence, were three notices of charge in respect of breaches of discipline, alleged to have occurred prior to the enactment of the 1980 Act. At the time of the events in question, the Teaching Service Act 1970 was in operation. At the time of the charges, the 1970 Act had been repealed. The charges were each said to have been laid under the 1980 Act, but the parties also directed their respective cases to the proper interpretation of the 1970 Act. 3 The declaratory relief sought was: (i) The respondent and prescribed officers of the respondent have no jurisdiction to initiate or continue disciplinary proceedings under section 83 of the Teaching Services Act ("the 1980 Act") in relation to alleged breaches of discipline where the conduct allegedly constituting the breach pre-dates the prolongation of the 1980 Act.

(ii) The respondent and prescribed officers employed under the Teaching Services Act 1980 have no jurisdiction to initiate disciplinary proceedings under section 37 of the Teaching Service Act 1970 in relation to alleged breaches of discipline. 4 While at the hearing Mr Menzies QC, appearing for the respondent, raised the question of the Court's jurisdiction to determine the issues raised, no submissions were finally pressed as to that question. I am satisfied that the Court has jurisdiction to determine the matters raised, in accordance with the provisions of s154 of the Industrial Relations Act 1996, given the factual circumstances agreed by the parties as relevant to the questions here to be determined. Section 154 provides: 154 Declaratory jurisdiction

(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought.

5 The case advanced for the Union by Ms Lowson of counsel was that properly construed, s83 of the 1980 Act was not concerned with conduct that was not contemporaneous with, or which occurred before, the enactment of the 1980 Act. The repeal of the 1970 legislation, without transitional provisions preserving the breach of discipline provisions of the 1970 Act, meant that there was no power to deal with alleged breaches of discipline which had occurred prior to the enactment of the 1980 Act, under the provisions of that Act. Section 83 of the 1980 Act had no retrospective operation, so as to extend to events which occurred prior to its enactment. 6 The 1970 Act contained similar provisions to s83 of the 1980 Act. They appeared in s37 of the 1970 Act. It was the Union's case that the 1970 Act, once repealed, had no further operation, despite the provisions of s30(1) of the Interpretation Act 1987. This was because the 1980 Act evinced a contrary intention (see s5 of the Interpretation Act). It followed that alleged breaches of discipline to which the 1970 Act applied, could not be dealt with after the repeal of that legislation. This result flowed from the savings and transitonal provisions of the 1980 Act, which showed an intention that s30(1) of the Interpretation Act was not to apply in relation to alleged breaches of discipline. 7 The case advanced for the Department by Mr Menzies QC, was that it had two bases for initiating and proceeding to deal with alleged breaches of discipline which had occurred prior to the enactment of the 1980 Act. Namely, because of the continuing liability created by the 1970 Act and because the conduct fell within s83 of the 1980 Act. 8 Section 30(1) of the Interpretation Act applied to the 1970 Act, so as to preserve liability for a breach of discipline. The fact that there were no relevant savings and transitional provisions in the 1980 Act, did not have the result contended for. The proper construction of s83 of the 1980 Act had to be ascertained, having regard to its language, context and apparent purpose. The liability of a teacher for a breach of discipline under the 1970 Act was accrued, not any participation in disciplinary proceedings. This was consistent with s33 of the Interpretation Act. The purpose of the provisions in question was to protect students from certain conduct by teachers. The Union's construction was inconsistent with that purpose. On its approach, any misconduct could not amount to a breach of discipline, nor could a breach be dealt with as such, if committed before the enactment of the 1980 legislation, no matter when it first came to the Department's attention, or how serious the conduct was. Such an outcome was manifestly inconsistent with the statutory purpose. 9 The construction urged by the Department did not involve retrospective operation of the 1980 Act. The Act merely took account of antecedent facts as the basis of proscription of current conduct. In that regard it was relevant that the relevant provisions of the 1970 and 1980 Acts were similar. The protective nature of these provisions had to be given effect. 10 In reply, it was argued for the Union that the 1980 Act made clear that it did not apply retrospectively to allegations of misconduct. The minority judgments of Kirby and Callinan JJ in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 205 ALR 1 were relied upon. Consideration

11 The relevant provisions of the 1980 and 1970 Acts are: 1980 Act

83 Breaches of discipline (1) An officer or temporary employee of the Teaching Service who: - (a) commits any breach of this Act or the regulations; (b) engages in any misconduct; (c) uses intoxicating beverages or drugs to excess; (d) wilfully disobeys, or wilfully disregards, any lawful order made or given by a person having authority to make or give the order; (e) is negligent, careless, inefficient or incompetent in the discharge of his duties; or (f) engages in any disgraceful or improper conduct, is guilty of a breach of discipline.

1970 Act 37. (1) Any officer or employee who - (a) commits any breach of any provision of the regulations; (b) is guilty of any misconduct; (c) uses intoxicating beverages or drugs to excess; (d) is guilty of any wilful disobedience or disregard of any lawful order or direction made or given under this Act or the regulations; (e) is negligent, careless, inefficient or incompetent in the discharge of his duties; or (f) is guilty of any disgraceful or improper conduct, is guilty of a breach of discipline. 12 Section 83 of the 1980 Act is to be found in Divison 6, Discipline and Conduct of Part 4, The Teaching Service. Likewise, s37 of the 1970 Act was to be found in Divison 4, Discipline and Conduct of Part IV, the Teaching Service. The similarity of the operative provisions in question is patent. 13 The proper construction of both Acts must be approached, in the ordinary way, from a consideration of statutory purpose. As recently discussed by the High Court in Network Ten, the relevant precepts of statutory interpretation are: In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112. McHugh J observed: "[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context."

His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said at 408: "It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." [footnotes omitted]

14 In New South Wales, it is the provisions of s33 of the Interpretation Act to which attention must be paid. It provides: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 15 In that context, it must be immediately observed that the construction contended for by the Union would have quite a startling result. Namely, that with the enactment of the 1980 Act, any breach of discipline under the 1970 Act, committed by a teacher prior to the enactment of the 1980 Act, no matter when or how serious, could not be dealt with in accordance with either the disciplinary processes established by the 1980 Act, or by the 1970 Act, unless the teacher were found guilty of a criminal offence. (See s86 of the 1980 Act.) 16 Given the apparent purposes of the disciplinary provisions of both the 1970 and 1980 Acts, that is for the protection of students, as the Department contended, or even as the Union contended, for the additional purposes of protecting the public, maintaining proper standards, protecting the professional reputation of the teaching service and stopping the conduct from occurring, it is impossible to see that the construction urged by the Union would assist in achieving these objects. Rather than ensuring that the mischief to which the provisions are directed are achieved, the construction urged would appear to ensure the reverse - that certain breaches of discipline could not be dealt with, no matter how serious, unless a criminal prosecution is launched and results in a guilty finding. 17 These are powerful reasons for approaching the Union's arguments with some caution. 18 Reliance was placed upon the approach of the High Court in Maxwell v Murphy (1957) 96 CLR 261 at 267: The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 Ch D 62. "No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done" (1876) 3 Ch D, at p 69. 19 I am unable to conclude that these observations can lead to the construction urged. While it is true that the 1980 legislation achieved a restructure of the departmental arrangements under which teachers were employed, the legislation ensured their ongoing employment and, so far as disciplinary processes are concerned, under a relevantly unchanged scheme. It is difficult to see how this could be regarded as the 1980 statute 'changing the law', as Dixon J was discussing. Not only are the provisions of s37 of the 1970 Act and s83 of the 1980 Act relevantly indistinguishable, the 1980 Act ensured that the 1971 regulations governing disciplinary proceedings continued unaltered. 20 This flowed from clause 15 of the transitional provisions in the 1980 Act, which provided that: Any regulations in force under section 49 of the Teaching Service Act, 1970, immediately before the appointed day, shall, to the extent that they could have been made under the Education Commission Act, 1980, on or after that day, be deemed to have been made under section 100 of the Education Commission Act, 1980. 21 The Federation argued that regulation 30 of the 1971 Regulations, (which dealt with disciplinary proceedings) were thereby not preserved, because it was only those regulations which could have been made under the 1980 Act, which continued to operate. Because the 1971 Regulations referred in regulation 30 to some offices changed or abolished by the 1980 Act, the entire operation of the disciplinary regulations was thus displaced. 22 I am unable to accept that submission. A comparison between the 1971 Regulation and the 1982 Regulation, later made under the 1980 Act to govern disciplinary proceedings, demonstrates that much of the 1971 disciplinary process was thereby repeated. True it is that some different officers were referred to, as being persons who could be appointed as prescribed officers. This could not, however, have the result urged. The abolition of certain offices and the creation of others by the 1980 Act, meant that those aspects of the 1971 Regulations which referred to abolished officers were not saved. That, however, could have had no impact upon the effective operation of the balance of regulation 30, which could clearly have been made under the 1980 Act. Were that not the correct view, the again surprising result would have been that any disciplinary processes underway when the 1980 Act commenced would have ceased and that there were no disciplinary processes in existence under the 1980 Act, until the making of the new regulations in 1982. Again, that startling result is another good reason for rejecting the construction urged. 23 The nub of the Union's argument as to the construction of s83 of the 1980 Act, was that it followed from the use of the present tense in s83(1), that the provision was concerned only with breaches of discipline which had occurred contemporaneously with, or after the enactment of the statue. This was reinforced by the principle that statutes are assumed to have no retrospective operation. Nothing in the 1980 Act gave the Department power to take action in relation to conduct which would have been a breach of discipline under the 1970 Act. It was also relevant that savings provisions such as those found in schedule 4 of the Public Sector Management Act 2002, or s187 of the Police Act 1990, which dealt expressly with disciplinary proceedings, were not contained in the 1980 Act, even though the 1980 Act contained detailed savings provisions as to other matters. 24 I accept that there is some force in this argument. The 1980 Act contained detailed savings provisions and could readily have dealt with breaches of discipline under the 1970 Act, including any the subject of disciplinary processes underway when the 1980 Act came into force, or which were first discovered after its enactment. That it did not do so, suggests that the legislative intention was that those matters would continue to be dealt with pursuant to the 1970 Act. This was an approach available to the legislature. It was one expressly provided for under s30(1) of the Interpretation Act, which provides: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. 25 The Union argued that this conclusion was not available, because, in accordance with s5 of the Interpretation Act, the 1980 Act evinced a contrary intention. I disagree. That this is not what the Parliament intended, is not only apparent from the underlying purpose of this aspect of both the 1970 and 1980 Acts, but clearly also follows from the preservation of the regulations under which such allegations were dealt with in the disciplinary process established by regulation 30 of the 1971 Regulations. That approach not only ensured that ongoing disciplinary proceedings could continue or be instituted, but that new allegations under the 1980 Act could thereunder be dealt with. That the 1982 Regulations, when made, continued that process, in large measure unchanged, but lends force to this conclusion. 26 As I earlier noted, there was a clear Parliamentary intent that teachers' obligations and the way in which breaches of those obligations were dealt with under the 1970 Act, were essentially unaltered by the enactment of the 1980 legislation. There is no discernable intent that teachers would be relieved of either their obligations under the 1970 Act, or the consequences of the breach of these obligations, by the enactment of the 1980 Act. 27 A comparison of what is being here considered, with the legislative scheme considered by the High Court in Attorney General for the State of Queensland v Australian Industrial Relations Commission & Ors (2002) 213 CLR 485, lends force to the conclusion I have reached. As Gleeson CJ observed at [8], legislation does not '... compete for attention, or rank, in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act'. 28 The 1980 Act does not expressly provide for the extinction of a teachers' obligations and liabilities under the 1970 Act in relation to any breaches of discipline, unlike the express alteration of rights created by the legislation under consideration in Attorney General for the State of Queensland. Those rights were expressly dealt with and qualified by a legislative injunction to 'cease dealing with' certain kinds of dispute. Nothing of that kind appears in the 1980 Act. To the contrary, there is a relatively seamless continuation of the obligations and liabilities imposed in the 1970 Act, as well as the disciplinary process whereby any breaches of the obligations might be dealt with. 29 There is some alteration in language used, the 1980 obligations imposed on teachers are somewhat broader than those created by the 1970 Act. This perhaps explains why the new obligations in the 1980 Act, couched in the present tense, were intended to apply from the enactment of the 1980 legislation and the former obligations, imposed under the 1970 Act, were left unaltered, to be dealt with under that legislation and the regulations made thereunder, as, s30 of the Interpretation Act envisaged. That is not an approach which, in my view, permits the conclusion that teachers were thereby relieved of the consequences of any breaches of their obligations under the 1970 Act. Orders 30 For all of the reasons given, the Union's motion must be dismissed. I order accordingly.

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